COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

LINDA BIVINS 

 MEMORANDUM OPINION* BY 

v. Record No. 0304-99-2 JUDGE MARVIN F. COLE 

 NOVEMBER 2, 1999 

NEW KENT COUNTY DEPARTMENT 

 OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF NEW KENT COUNTY 

William H. Shaw, III, Judge 

 (Rhonda L. Earhart, on brief), for appellant. 

Appellant submitting on brief. 

 (James E. Cornwell, Jr.; C. Michael DeCamps; 

Sands, Anderson, Marks & Miller, on brief), 

for appellee. Appellee submitting on brief. 

 Linda Bivins (Bivins) appeals the decision of the circuit 

court terminating her parental rights to her children, Adam and 

Elisabeth Sewell. Bivins contends that the record contains no 

indication that the New Kent County Department of Social Services 

(DSS) filed with the juvenile and domestic relations district 

court a foster care plan meeting the requirements of Code 

§ 16.1-281(B). Bivins also contends that DSS failed to present 

clear and convincing evidence sufficient under Code § 16.1-283 to 

terminate her parental rights. We find that the contentions 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
Bivins raised on appeal are without merit, and we affirm the 

decision of the trial court. 

 "When addressing matters concerning a child, including the 

termination of a parent's residual parental rights, the 

paramount consideration of a trial court is the child's best 

interests." Logan v. Fairfax County Dep't of Human Development, 

13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). 

"In matters of a child's welfare, trial 

courts are vested with broad discretion in 

making the decisions necessary to guard and 

to foster a child's best interests." The 

trial court's judgment, "when based on 

evidence heard ore tenus, will not be 

disturbed on appeal unless plainly wrong or 

without evidence to support it." 

Id. (citations omitted). 

 Both children are special needs children with cerebral 

palsy. Elisabeth, who was born prematurely after Bivins stabbed 

herself three times in the vagina, weighed three pounds at 

birth. At the time she came into foster care, Elisabeth was 

developmentally delayed and mentally retarded. She suffered 

from extremely poor hygiene. She was a victim of at least one 

instance of sexual abuse by her father, Dennis Sewell (Sewell). 

Elisabeth had difficulty sleeping, with nightmares, night 

wanderings, and bedwetting. 

 At birth, Adam weighed two and one-half pounds and tested 

positive for cocaine. At age four, when he was placed in foster 

care, he weighed twenty-two pounds, and could not speak, walk, 

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or eat. His dental hygiene was so poor that he had fourteen 

teeth extracted. 

 At the time the children were placed in foster care in 

December 1995, Bivins was incarcerated on charges of 

prescription drug fraud. The children were then in the custody 

of their father and his parents, John and Rose Murdock. 

 Both children made great strides while in foster care. At 

the time of the termination hearing, each demonstrated greater 

ability to function and to care for themselves. Both children 

continued to face substantial medical and developmental 

challenges in the future. 

Foster Care Plan

 Code § 16.1-281 requires social services agencies such as 

DSS to develop foster care plans detailing the services to be 

offered children placed in their legal custody. Subsection (B) 

provides, in pertinent part, that "[i]f consistent with the 

child's health and safety, the plan shall be designed to support 

reasonable efforts which lead to the return of the child to his 

parents or other prior custodians within the shortest 

practicable time which shall be specified in the plan." Bivins 

contends that the record fails to demonstrate that a foster care 

plan meeting the statutory requirements of Code § 16.1-281 was 

filed with the juvenile and domestic relations district court. 

Specifically, although Bivins admits that a foster care plan 

dated August 4, 1998 was prepared, she contends that an earlier 

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plan was the plan documenting termination of her parental rights 

as being in the best interests of the children. 

 Bivins concedes that the plans were admitted into the 

juvenile and domestic relations district court record and DSS 

was not required to refile them in the circuit court during the 

trial de novo. See Todaro v. Alexandria Dep't of Social Servs., 

226 Va. 307, 309 S.E.2d 303 (1983). The transcript of the 

circuit court hearing demonstrates that the foster care plans 

were admitted into evidence before the circuit court by 

stipulation and without objection. The record on appeal 

contains the plans. The trial court approved the plan "filed 

herein by [DSS]," and its order is presumed to be a correct 

recitation of the facts. We find no merit in this challenge to 

the order approving the foster care plans. 

Sufficiency of the Evidence

 Bivins contends that the trial court erred when it found 

that DSS presented clear and convincing evidence sufficient to 

support termination of her parental rights pursuant to Code 

§ 16.1-283. "Code § 16.1-283 embodies 'the statutory scheme for 

the . . . termination of residual parental rights in this 

Commonwealth' [which] . . . 'provides detailed procedures 

designed to protect the rights of the parents and their child,' 

balancing their interests while seeking to preserve the family." 

Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995) 

(citations omitted). We find no error. 

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 The trial court found that clear and convincing evidence 

supported the termination of Bivins' parental rights pursuant to 

Code § 16.1-283(B). Code § 16.1-283(B)(1) and (2) provide, in 

pertinent part, that the parental rights of parents of a child 

placed in foster care after being found by a court to be 

neglected or abused may be terminated if the court finds that 

termination is in the best interests of the child and finds 

clear and convincing evidence that: 

1. The neglect or abuse suffered by such 

child presented a serious and substantial 

threat to his life, health or development; 

and 

2. It is not reasonably likely that the 

conditions which resulted in such neglect or 

abuse can be substantially corrected or 

eliminated so as to allow the child's safe 

return to his parent or parents within a 

reasonable period of time. In making this 

determination, the court shall take into 

consideration the efforts made to 

rehabilitate the parent or parents by any 

public or private social, medical, mental 

health or other rehabilitative agencies 

prior to the child's initial placement in 

foster care. 

 The trial court also found that DSS presented sufficient 

evidence under Code § 16.1-283(C) to terminate Bivins' parental 

rights. Under Code § 16.1-283(C)(2), the parental rights of a 

child placed in foster care may be terminated if the court finds 

by clear and convincing evidence that it is in the best 

interests of the child and that: 

2. The parent . . ., without good cause, 

[has] been unwilling or unable within a 

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reasonable period not to exceed twelve 

months from the date the child was placed in 

foster care to remedy substantially the 

conditions which led to or required 

continuation of the child's foster care 

placement, notwithstanding the reasonable 

and appropriate efforts of social, medical, 

mental health or other rehabilitative 

agencies to such end. Proof that the parent 

or parents, without good cause, have failed 

or been unable to make substantial progress 

towards elimination of the conditions which 

led to or required continuation of the 

child's foster care placement in accordance 

with their obligations under and within the 

time limits or goals set forth in a foster 

care plan filed with the court or any other 

plan jointly designed and agreed to by the 

parent or parents and a public or private 

social, medical, mental health or other 

rehabilitative agency shall constitute prima 

facie evidence of this condition. The court 

shall take into consideration the prior 

efforts of such agencies to rehabilitate the 

parent or parents prior to the placement of 

the child in foster care. 

 The evidence established that the children were placed in 

foster care in 1995, while Bivins was incarcerated and the 

children were in the custody of Sewell and the Murdocks. The 

trial court reviewed the evidence based upon the steps Bivins 

had taken to satisfy her responsibilities under the foster care 

plan prepared after her release from prison in January 1997. 

Pat Woods, the DSS social worker, testified that DSS made 

arrangements for Bivins to have visitation with the children, 

kept her informed of doctors' appointments and school meetings, 

and provided a contract worker to assist Bivins with parenting 

skills during visitation. Woods testified that, despite the 

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requirements set out by court order, Bivins failed to file a 

psychological assessment with DSS or to cooperate with the home 

study and background check on her fiancé. 

 At trial, Bivins admitted that she had problems with drug 

abuse, particularly abuse of prescription painkillers. She 

admitted that a March 1998 urine test revealed evidence of drug 

use, but testified that she was undergoing drug counseling. 

While she admitted that she attended only some of the children's 

medical appointments and did not attend any meetings at school, 

Bivins testified that she lived too far away to attend those 

meetings regularly. She also testified that transportation and 

finances prevented her from complying with some of her 

responsibilities under the foster care plan. Bivins said that 

she was sometimes late for visitation because it was impossible 

to get to New Kent from Norfolk for a 9:00 visitation on 

Saturdays due to traffic. Sometimes, their car would break down 

and they needed to rent one. She was out of work for over a 

year as a result of a work-related injury, and her fiancé also 

lost his employment. She would not call DSS very often because 

it was too expensive to make the long distance call. She also 

refused to pay the $15 necessary to complete the background 

check of her fiancé because they did not have the money. Bivins 

indicated at trial that she would gladly pay for the background 

check now and would be willing to move from Norfolk to New Kent. 

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 While Bivins contends that DSS failed to provide her with 

sufficient services to allow the children to return to her, the 

record supports the trial court's finding that Bivins failed to 

substantially correct the conditions which led to the children's 

foster care placement despite DSS's reasonable rehabilitative 

efforts. It is true that Bivins completed some parenting and 

anger control classes while in prison. However, the evidence 

indicated that she failed to implement what she had learned into 

her dealings with the children. Nancy Geary, Elisabeth's 

therapist, indicated that Elisabeth became upset after 

visitation with Bivins and complained that Bivins "smacked" her 

in the face. Significantly, Geary noted that Elisabeth changed 

from wanting to be with Bivins to not wanting to be with her. 

That's because of the lack of parent-child 

relationship. That's not necessarily the 

lack of contact. The contact that she did 

have was not successful, was not promoting 

toward a loving relationship. 

Geary also noted that Bivins failed to follow through on Geary's 

offers of assistance or her recommendations that Bivins take a 

parenting class, receive psychological assessment, or have 

individual counseling. Bivins also threatened her following a 

previous court hearing. 

 Tammy Bays, the contract worker supervising the 

visitations, testified that Bivins was often frustrated dealing 

with the children and focused on herself rather than attending 

to the needs of the children. Bivins lacked an understanding of 

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the severity of her children's problems and, lacking that 

understanding, failed to provide the parenting skills necessary 

to assist the children. 

 While Bivins indicated her willingness in the future to 

live closer to the children, she made no effort to do so in the 

past despite her repeated complaints that the distance made it 

impossible for her to attend the children's medical 

appointments, educational planning sessions, or arrive on time 

for visitation. "It is clearly not in the best interests of a 

child to spend a lengthy period of time waiting to find out 

when, or even if, a parent will be capable of resuming [her] 

responsibilities." Kaywood v. Halifax County Dep't of Social 

Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). The 

trial court was not required to place more credibility in her 

proposed plans for the future than warranted by her actions in 

the past. Moreover, other evidence demonstrated that increased 

contact, without an improvement in Bivins' parenting and anger 

management skills, would not be in the children's best 

interests. 

 Evidence in the record fully supports the findings of the 

trial court that DSS presented clear and convincing evidence 

sufficient under Code § 16.1-283(B) and (C) to terminate Bivins' 

parental rights to Adam and Elisabeth. 

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 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed. 

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