COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Ha ley and Senior Judge Coleman

DEBORAH PORTERFIELD MEMORANDUM OPINION * v. Record No. 2156-06-3 PER CURIAM DECEMBER 12, 2006 ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Do rsey, Judge (Scott R. Geddes; Scott R. Geddes, P.C., on brief), for appellant. Appellant submitting on brief. (William M. Hackworth, City Attorney; Heather P. Ferguson, Assistant City Attorney, on brief), for appellee. Appellee submitting on brief. (Ellen S. Weinman, on brief), Guardian ad litem for the infant child. Guardian ad litem submitting on brief.

Deborah Porterfield contends the trial court er red in terminating her parental rights to her minor child. For the reasons stated, we affirm the trial court’s decision. Background We view the evidence in the light most favor able to the 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 (1991). Before the child came into the custody of the Roanoke City Department of So cial Services on November 11, 2004, he was in the custody of Dwayne Farmer, who was living with the child’s mother. Farmer is not the child’s biological father but is th e father of the mother’s two girls. Farmer indicated he could not

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - meet the child’s needs and signed an entrus tment agreement delivering the child to the Department. The child suffers from DiGeorge Syndro me, a genetic condition which has caused him numerous health problems, including heart de fects, abnormal facial features, thymus underdevelopment, a cleft palate, and hypocalcemia, a shortage of calcium in his blood. When the Department obtained custody, the child was seve n years old. He had only a few teeth, all of which had been capped, and he was not completely toilet trained. The ch ild needed surgery on his tear ducts and had a hearing deficit in his left ear which n ecessitated his wearing a hearing aid. His speech could not be unde rstood to an “untrained” ear, a nd he used nonverbal gestures to communicate. Later testing reveal ed he did not know the alphabet or how to write his name. Initially, the Department established a goal of “return home” to the mother. To achieve that goal, mother was required to participate in parenting classes, and to undergo a psychological evaluation. She had undergone a prior psychologi cal evaluation in connec tion with the child’s younger siblings. The Department also recomme nded that a guardian be appointed to assist mother in meeting her day-to-day functions, such as paying bills and managing finances. Mother met with Dr. Doris Nevin on A ugust 12 and September 12, 2005, to complete the psychological evaluation. Dr. Ne vin found that mother suffered fr om mild mental retardation and that her “adaptive functioning [wa]s at a very low level which would make it difficult for her to manage the daily activities of caring for herself and others . . . particular ly in regards to caring for any child with special needs.” Dr. Nevin not ed that mother suffered from a serious cardiac condition as well as significant dental problems. In Dr. Nevin’s opinion, mother’s intellectual limitations were such that she was unlikely to meet the “complex needs” of her son. Sharon Brammer began providi ng counseling services to th e child in December 2004. Initially, he was “extremely violen t.” Brammer described him as “one of the most aggressive- 3 - children that [she] ha[d] seen,” displaying behaviors such as growling, primal screaming, and killing play figures. He also exhibited “indiscrimina te attachment pattern s,” i.e., he became excessively attached to indivi duals with whom he had relativ ely brief interaction. Brammer explained that such behavior occu rs when a child “has not learned to use a single caregiver as an attachment figure.” Upon observing the child’s inte ractions with mother, Bra mmer concluded a “disturbed attachment pattern” existed between them which consisted predominantly of a “negative kind of teasing.” Mother initiated the teasing, and th e two would “banter back and forth and call [each other] bathroom words.” As the sessions went on, [the child ] began to realize that this was escalating, and so he would kind of withdraw from her . . . and try to de-escalate the situa tion. So, he actually began to take a parent role. And I noticed he was also detaching from her in the waiting room. He would, he would be sittin g in the foster mother’s lap, or the foster brother’s lap, with his b ack to her and the foster mother would have to actually tell him to go up and speak to his biological mother. Brammer also noted mother had great difficulty in setting limits for the child, even after Brammer modeled appropriate di scipline techniques for her. Brammer testified the child had made “great progress” in his behavi or at school and in his foster home since she first began working with him. The evidence proved the child had earlier received numerous suspensions from school and riding the school bus as the result of hitting students and staff, b iting, and throwing objects. His foster mother, Sharon Fellows, described him as “completely defiant” initially, but stated his behavior “started turning around” within a couple of weeks of receiving appropriate limits. Fellows requested a study at the child’s school to determine whether his educational needs were being met, and she assisted him with his homework so that he could st ay on task. She noted he was doing “very well” in school and “instead of being insufficient, [was] making pr ogress.” Fellows testified that the child had- 4 - undergone two surgeries since his placement with her and that his medical needs required “at least six appointments a month.” Analysis The trial court terminated mother’s parent al rights pursuant to Code § 16.1-283(C)(2). That section states as follows: The residual parental rights of a parent or parents of a child placed in foster care as a re sult of court commitment, an entrustment agreement entered into by the parent or parents or other voluntary relinqu ishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that: * * * * * * * The parent or parents, w ithout good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child wa s placed in foster care to remedy substantially the conditio ns 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. (Emphasis added.) Mother argues the trial court erred in te rminating her parental rights because the Department failed to show, by clear and convinc ing evidence, that she had been unwilling or unable to remedy the conditions which led to or required the continuation of the child’s foster care placement because she “met all the requirements . . . set forth in the foster care plan.” We disagree. When addressing matters concerning a chil d, including the termination of a parent’s residual parental rights, the paramo unt consideration of a trial court is the child’s best interests.
See Toombs v. Lynchburg Div. of Soc. Servs. , 223 Va. 225, 230, 288 S.E.2d 405, 407-08 (1982); Farley v. Farley , 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). On review, “[a] trial court is presumed to have t horoughly weighed all the eviden ce, considered the statutory- 5 - requirements, and made its determination ba sed on the child’s best interests.” Farley , 9 Va. App. at 329, 387 S.E.2d at 796. Furthermore, “we will not disturb the trial judg e’s finding unless it is ‘plainly wrong or without evid ence to support it.’” Richmond De p’t of Soc. Servs. v. Crawley , 47 Va. App. 572, 580, 625 S.E.2d 670, 674 (2006) (quot ing M.G. v. Albemarle County Dep’t of
Soc. Servs. , 41 Va. App. 170, 181, 583 S.E.2d 761, 766 (2003)). Although the foster care serv ice plan acknowledges moth er’s attendance at the recommended parenting classes, it also notes her “lack of comprehension.” Mother’s inability to comprehend the material taught in the parenting class is consistent with Dr. Nevin’s findings that her limited intellectual functioning rendered her unabl e to care for a special needs child. In fact, Dr. Nevin testified mother was unable to identify the grade the child attended in school. Mother’s attempts to cooperate with the Depart ment in meeting the c onditions for the child’s return, while commendable, were not sufficient to establish her ability to remedy the conditions which led to the child’s placement. Our decision in this case is controlled in great measure by our decision in Richmond Dep’t of Soc. Servs. v. L.P. , 35 Va. App. 573, 546 S.E.2d 749 (2001). We held that a parent’s inability to remedy the conditions which led to the child’s placement is not excused where the “parent’s mental deficiency . . . is of such seve rity that there is no r easonable expectation that such parent will be able within a reasonable peri od of time befitting the child’s best interests to undertake responsibility for the car e needed by the child in accord ance with the child’s age and stage of development.” Id. at 585, 546 S.E.2d at 755. Thus, we held in L.P. , that the parent’s mental deficiency does not constitute “good cause” under Code § 16.1-28 3(C)(2). 35 Va. App. at 585, 546 S.E.2d at 755. “[W]hen considering a termination of parental rights, ‘the child’s best interest is the paramount concern.’” Crawley , 47 Va. App. at 579, 625 S.E.2d at 673 (quoting Wright v.- 6 - Alexandria Div. of Soc. Servs. , 16 Va. App. 821, 827, 433 S.E.2d 500, 503 (1993)). “‘[I]t 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 . . . responsibilities.’” Lecky v. Reed , 20 Va. App. 306, 312, 456 S.E.2d 538, 540 (1995) (alte ration in original) (quoting Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1995)). “[In Lecky ] we ordered termination of the mother’s pare ntal rights partially be cause the record did not suggest ‘that the mere passage of time would resolve her difficulties.’” Crawley , 47 Va. App. at 581-82, 625 S.E.2d at 674-75 (quoting Lecky , 20 Va. App. at 312, 456 S.E.2d at 541). We also noted the mother and child were “emotionally distanced.” Lecky , 20 Va. App. at 309, 456 S.E.2d at 539. The evidence in this case established that the mother suffers from mental deficiencies that render her unable to meet the child’s needs. The evidence also showed that a “disturbed attachment pattern” existed between the child an d his mother and that the child had developed “indiscriminate attachment patterns ” toward outsiders due to his fa ilure to attach properly to a primary caregiver. Brammer testified the child grew so detached from mother that he would not speak to her without encouragemen t from his foster mother. Brammer also noted that the child who initially was “extremely violent” when he be gan therapy, had made “great progress” in his behavior at home and at school since his placement in foster care. Likewise, the foster mother stated that, with daily support, the child was “making progress” and was doing “very well” in school. “Nothing in this record . . . suggests that the mere passage of time would resolve [mother’s] difficulties.” Id. at 312, 456 S.E.2d at 541. “[F]ur ther delay would prolong [the child’s] familial instabilit y without the promise of benefit to h im, a result clearly contrary to the child’s best interests.” Id. Cf. L.G. v. Amherst County Dep’t of Soc. Servs. , 41 Va. App. 51,- 7 - 581 S.E.2d 886 (2003) (mother possessed innate abil ity to improve her parenting skills, albeit beyond the twelve-month period contemplated by the statute). As in L.P. , “the mother’s mental deficiency in this case does not preva il over the child’s best interests.” L.P. , 35 Va. App. at 585, 546 S.E.2d at 755. We note that mother’s parental rights to the child’s siblings alrea dy had been terminated, thereby providing an additional basis for the tria l court to conclude she was unable to remedy the conditions which led to the child’s placement. See Fields v. Dinwiddie County Dep’t of Soc.
Servs. , 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005) (under Code § 16.1-283(E), “[a] finding of a prior termination substitutes for a finding that the parent had failed to remedy the conditions leading to the child’s foster care placement”). Nevertheless, mother argues that the trial court erred in finding the ev idence sufficient to warrant termin ation under Code § 16.1-283(C)(2) after concluding termination was not warranted under Code § 16.1-283( B). While the trial court based its ruling on Code § 16.1-283(C)(2) ra ther than Code § 16.1-283(B) or Code § 16.1-283(E), it made no findings regarding the sufficiency of the evidence under subsection (B). In any event, as appellant failed to presen t this argument to the trial court, we decline to address it for the first time on appeal. See Rule 5A:18. Clear and convincing evidence proved that th e mother’s mental capacity rendered her unable to remedy the conditions which led to the child ’s placement in foster care. Therefore, we affirm the trial court’s decision. Affirmed.