COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, McClan ahan and Senior Judge Coleman

CASSIE GREENWAY MEMORANDUM OPINION * BY v. Record No. 2650-05-3 JUDGE SAM W. COLEMAN III JUNE 13, 2006 CRAIG COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT C OURT OF CRAIG COUNTY Diane McQ. Strickland, Judge Designate (Thomas E. Wray, on brief), for appellant. Appellant submitting on brief. (Carolyn H. Furrow, on brief), for appellee. Appellee submitting on brief. (Robin Dearing, Guardian ad litem for the infant child, on brief). Guardian ad litem submitting on brief.

Cassie Greenway contends the trial court erre d in terminating her pa rental rights to her minor child, T., because the Craig County Depart ment of Social Services (“DSS”) did not present clear and convincing eviden ce that she failed to correct the conditions which led to T.’s removal. For the reasons stated below, we affirm the trial court’s decision.

Facts On appeal, we view the evidence in the light most favorable to th e prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1992). T. was born on February 14, 1999, to Greenway and Clifton Ma tson. Although the record does not indicate

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - when, at some point Greenway entered into a re lationship with Darrell Greenway when T. was a few months old. The two ultimately married when T. was two years old. Shortly after their marriage, Greenway left Darrell during an incide nt of domestic violence in July 2001 and she took refuge in the home of Robert and Elisha Fisher.

When social worker Bill Burleson intervie wed Greenway in the Fisher home, she told

him she had left Darrell because he had threat ened her and her son with a knife. Burleson determined Greenway was sleeping on a sofa in th e Fishers’ living room, and T. was sleeping on the sofa or on the carpeted floor next to her. The carpet had “numerous spots where the Fishers’ cat had soiled [it],” and “the entire house smelle d of feces and urine.” Furthermore, while there was food in the refrigerator, “it consisted . . . mostly of a chocolate drink.” Greenway’s only income was approximately $69 a week in chil d support from T.’s father. Based upon these conditions, 1 Burleson obtained an emergency remova l order for T. on grounds of abuse and neglect. DSS records describe Greenway as “developmen tally delayed.” At the initial hearing in August 2001, the guardian ad litem for T. requested additional time to “more fully investigate the matter of custody,” and the case was continued. Greenway and T.’s biological father, Matson, were ordered to complete a “Trans-Parenting Class,” 2 and Greenway was granted weekly visitation, to be supervised by her father, John Aldridge.

1 Burleson’s review of social service records also disclose d that founded complaints for physical abuse had been brought against the Fish ers in connection with children they were babysitting.

2 While the record is unclear, this does not appear to be th e same parenting class which DSS claims Greenway did not complete after the j uvenile court terminated her parental rights. According to Greenway’s certificate of attendan ce, dated August 24, 2004, the class she attended to comply with DSS requirements was entitl ed “Parenting: The Early Childhood Years.”- 3 - T. was placed in the custody of Linda Ma nsberry, one of Greenway’s relatives. Mansberry had helped Greenway with T.’s care fr om the time he was a few months old. The placement with Mansberry continued until Februa ry 2002, when Aldridge made DSS aware of a criminal conviction Mansberry had failed to disclo se. As a result, T. was placed with foster parents Kevin and Pat Craft, and has rema ined in their custody since that time. 3 DSS filed a service plan with a stated goal of “return home” in June 2002. DSS noted that “services . . . [would] be provided which [w ould] address the needs identified . . . [i.e.], improve conditions [in] the parents’ home and facilitate return of the child home.” Specifically, the plan noted that the “parents [would] be gi ven the opportunity to atte nd parenting classes.” Greenway and Darrell had to maintain jobs, and Gr eenway had to show “the ability to care for a

small child.” By April 2003, Greenway had not completed the pa renting class, but she did comply with the juvenile court’s order for a psychological evaluation in July 2003. The evaluation, completed by Dr. Doris Nevin, revealed Greenway had an IQ of 65. Dr. Nevin testified Greenway was mildly mentally retarded and recommended further therapy to assist her with “some of her cognitive and . . . emotional difficulties . . . .” 4 Nevin expressed concern about Greenway’s “mental abilities in terms of her ability to take care of herself and to ma nage practical activities . . . [such as] writ[ing] out bills and pay[ing] th em . . . [b]eing able to plan a menu and provide for herself a nourishing diet.” Nevin stated Greenway would re quire support to parent T. adequately, qualifying that opini on by noting she did not know wh ether T. had any “special

needs.”

3 According to the December 2001 service pla n, T. was the subject of a custody battle “between the mother, father, grandfather, stepfather, and friend of the family.”

4 Nevertheless, Greenway denied needing any services at the time of her psychological evaluation or at the time of the termination hearing.- 4 - In fact, T. had serious behavioral problem s which resulted in his being placed in counseling in 2002. Specifically, T. exposed himsel f to other children at daycare, and singled out specific children with this behavior. His teacher, Dreama Kirby, noticed that T. was sometimes more aggressive with other children after visits with Greenway and her family. The director of the daycare center, Teresa Oliver, te stified that T. had to be terminated from the program in November 2003 due to his misbehavior. Meanwhile, T. told his counselor, Kathl een Bagby, in the spring of 2003 that John Aldridge had sexually abused him. These charges were determined to be founded. As a result, visitation with Aldridge was terminated, and Aldridge was no longer able to supervise Greenway’s visitation. DSS atte mpted unsupervised visitation between Greenway and T. during the summer of 2003, but following the visitation, T. returned to daycare wi th a red and irritated penis. T. told Bagby in July 2003 that Greenwa y had showed him that “if you rub [your penis], it gets bigger.” The next month, Pat Craft told Bagby that T. had “exposed himself” at daycare. Visitation with Greenway was suspended in Se ptember 2003, and sexual abuse charges were brought against her. Greenway pleaded “no contest” to these charges in December 2003. DSS changed its goal to adoption and prep ared a petition for the termination of Greenway’s parental rights. The stated reasons for its change in position were the sexual abuse charges and Dr. Nevin’s psychological assessment th at Greenway was unable to care for a small child. On March 8, 2004, the juvenile and domestic relations district c ourt (“juvenile court”) terminated Greenway’s parental righ ts, and she appealed to circuit court. The circ uit court held several hearings, the last of which took place on May 27, 2005.- 5 - Burleson testified that Greenway had “signifi cant reduced mental capacity” and “a very poor work record.” He emphasized that sh e refused to attend the parenting class, 5 even though T.’s return was conditioned upon her completion of the class. At one point, Greenway lived only one block from the building where the class met. When asked why DSS changed its goal to te rmination in the fall of 2003, Burleson stated: Because the child’s father had already terminated his parental rights, and with the things going downhill with Cassie, visitation being suspended by the court order, the child had been in foster care almost three years at that point, maybe even over three years at that point, it just wasn’t work ing and it was time to move on to the next step. Carl Bailey testified concerning his observati ons of Greenway’s parenting skills. Bailey, manager of the apartment complex where she lived when T. was two years old, stated that he became alarmed when he saw T. unsupervised on the second floor balcony to Greenway’s apartment. Bailey related that “[T.] had crawled up in a chair and was at the top of the banister.” Bailey honked his car horn, and Gr eenway came out on the balcony. She told Bailey that T. was “all right, that he just liked to climb.” Bagby testified that T.’s behavior had improve d during the six months before the hearing. She stated that “he’s doing very, very well . . . [and that] we are not seeing the sexual behavior, the angry outbursts, he’s in a very calm place . . . .” She also noted he had become “very, very

attached” to the Crafts. Analysis “When reviewing a decision to terminate pare ntal rights, we presume the circuit court ‘thoroughly weighed all the evid ence, considered the statutor y requirements, and made its

determination based on the child’s best interests.’” Toms v. Hanover Dep’t of Soc. Servs., 46

5 Greenway finally completed the parenti ng class on August 24, 2004, more than six months after her parental rights were terminated by the juvenile court.- 6 - Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoti ng Fields v. Dinwiddie County Dep’t of

Soc. Servs. , 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). In its role as fact finder, the circuit

court has “‘broad discretion in ma king the decisions necessary to guard and to foster a child’s

best interests.’” Id. at 266, 616 S.E.2d at 769 (quoting Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

The circuit court’s order indicates it terminat ed Greenway’s parental rights “pursuant to Section 16.1-283(a) of the Code of Virginia.” The court’s order refers to subpart (a) of Code § 16.1-283(B)(2), which provides for termination of parental rights of a “neglected or abused” child if the court finds, based upon clear and convincing eviden ce, that it is in the best interests of the child and that:

* * * * * * * [i]t is not reasonably likely that the conditions which resulted in such neglect or abuse can be subs tantially corrected or eliminated so as to allow the child’s safe retu rn to his parent or parents within a reasonable period of time. . . . Proof of any of the following shall constitute prima facie evidence of the conditions set forth in subdivision B 2 hereof: a. The parent or parents are sufferi ng from a mental . . . deficiency of such severity that there is no reasonable expectation that such parent will be able to undertake responsibility for the care needed by the child in accordance with his age and stage of development[.] Under subsection B, parental rights may be terminated upon a showing of clear and convincing evidence that terminati on is in the child’s best intere sts, that the neglect and abuse suffered by the child presents a serious and substan tial threat to his life, health, or development,

and that it is not reasonab ly likely that the conditions which resu lted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child’s safe return to his parent within a reasonable period of time. Toms , 46 Va. App. at 266, 616 S.E.2d at 769.- 7 - While “the rights of parents may not be lig htly severed,” M. G. v. Albemarle County Dep’t of Soc. Servs. , 41 Va. App. 170, 187, 583 S.E.2d 761, 769 (2003) (citation omitted), the “paramount consideration” of the court is the “child’s best intere sts.” Akers v. Fauquier County Dep’t of Soc. Servs. , 44 Va. App. 247, 262, 604 S.E.2d 737, 744 (2004) (citation omitted). As borne out by both Greenway’s psychological asse ssment and her sexual abuse of T., the trial court found that Greenway’s mental deficiency is such that “the re is no reasonable expectation that [she] will be able to undertake responsibilit y for the care needed by th e child in accordance with his age and stage of devel opment.” Code § 16.1-283(B)(2)(a). “Virginia law recognizes the ‘maxim that, so metimes, the most reliable way to gauge a person’s future actions is to ex amine those of his past.’” Toms , 46 Va. App. at 267-68, 616 S.E.2d at 770 (quoting Petry v. Petry , 41 Va. App. 782, 793, 489 S.E.2d 458, 463 (2003)). Based upon Greenway’s history, we find no error in the tria l court’s decision to terminate her parental rights. Dr. Nevin’s conclusion th at Greenway lacked the ability to parent T. without assistance was borne out by her own behavior. Greenway consis tently made choices which were not in T.’s best interests: admittedly breaking a car window in a fit of anger as she held T. in her arms; leaving him unattended on a second floor balcony; allowing him to sleep on carpet soiled with feces; and exposing him to a family known to be abusive to children. Given the opportunity to have unsupervised visitation with her son, Gr eenway sexually abused him. Despite the foregoing, Greenway testified she did not need counseling services and refused to attend parenting classes until after her pa rental rights were terminated. Furthermore, T. exhibited behavioral pr oblems which required especially skillful parenting. Notably, these problems improved duri ng the six months prio r to the termination hearing, the same time frame during which visita tion with Greenway had ceased. At the time of the termination hearing, T. was six years old and had been in foster care for over four years.- 8 - Based upon the foregoing, we affirm the trial court’s decision terminating Greenway’s residual parental rights.

Affirmed.