COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

BONNIE PRUDEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0949-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 JANUARY 7, 1997 

FAIRFAX COUNTY DEPARTMENT 

 OF HUMAN DEVELOPMENT, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 Dorathea J. Peters (Peters & Mullins, on 

brief), for appellant. 

 Dennis R. Bates, Senior Assistant County 

Attorney (David P. Bobzien, County Attorney; 

Robert Lyndon Howell, Deputy County Attorney, 

on brief), for appellee Fairfax County 

Department of Human Development. 

 Wayne D. Berthelsen (Freeman & Berthelsen, on 

brief), Guardian ad litem for appellee 

Russell Pruden. 

 Bonnie Pruden (mother) appeals from an order of the circuit 

court terminating her residual parental rights pursuant to Code 

§ 16.1-283(B). We conclude that the circuit court's findings are 

not supported by clear and convincing evidence and, therefore, 

reverse its decision and remand the case. 

 I. 

 The mother in this case is an alcoholic. She continued to 

drink on a daily basis through the early weeks of her pregnancy, 

until she realized she was pregnant. In March 1990, mother gave 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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birth to a son (child). Her drinking resumed in August 1990 and 

continued until July 1991, when she entered a detoxification 

program. After relapsing, mother entered the program twice more 

during the Fall of 1991. During that time, mother was in an 

abusive relationship with her husband which exposed the child to 

domestic violence. 

 In December 1991, the Fairfax County Department of Human 

Development (county), removed the child from his parents and 

placed him in foster care, citing continuing domestic violence 

and substance abuse by the child's parents as its reasons. At 

that time, the Fairfax County J&DR Court found the child had been 

"abused and neglected." The county prepared a foster care 

service plan, the goal of which was to return the child to his 

parents by December 1993. The plan directed the child's parents 

to cooperate with alcohol and drug services and mental health 

evaluations. In June 1992, mother and her husband separated. 

 Mother initially sought treatment from the Fairfax County 

Alcohol and Drug Services, and, in January 1992, she entered a 

two-week, residential treatment program. She subsequently 

entered an eight-week treatment program and, following that, 

entered a treatment program at the Northwest Mental Health Center 

(Northwest). Mother received individual counselling at Northwest 

from March 1992 through August 1992 and participated in group 

therapy from June 1992 until March 1993. During that period, 

there were some signs that mother had relapsed; however, none of 
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mother's urine screens evidenced alcohol use. The record shows 

mother was not always amenable to being monitored. 

 By April 1993, mother was asked to leave the Northwest 

therapy group because she had "gained maximum benefit" from it. 

Her attitude toward monitoring was not consistent with the 

program objectives, and her presence was viewed as 

disadvantageous to other members. 

 Nonetheless, by June 1993, the county was sufficiently 

satisfied with mother's progress to return physical custody of 

the child to her. Legal custody was restored in December 1993. 

Thereafter, except for sporadic Alcoholic's Anonymous (AA) 

meetings, mother did not continue treatment. 

 In March 1994, mother relapsed. On her third day of 

drinking, mother left the child alone while she went to the store 

to purchase more beer. She was intoxicated when Child Protective 

Services arrived soon after her return. 

 The county removed the child from mother's care, and, on 

April 4, 1994, the J&DR court again found that the child had been 

"abused and neglected" by mother. By May 27, 1994, the county 

had devised a new foster care service plan, this time with the 

goal of adoption. Following a hearing on December 22, 1994, the 

J&DR court terminated parental rights of both mother and the 

child's father. Mother has had no contact with the child since 

that time. Both parents appealed, and de novo hearings were 

conducted in the circuit court in May 1995. 
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 In May 1994, mother began treatment at the Recovery Women's 

Center, in which she continued to participate at the time of the 

circuit court hearing. At the hearing, mother admitted 

responsibility for her alcoholism and stated that she had not 

taken a drink since her March 1994 relapse. Likewise, Kelley 

Traver, the county's foster care social worker assigned to the 

case, and mother's counsellors at the Recovery Women's Center, 

Jean Larkin, Roberta Severo and Judith Leanes, all testified that 

mother had fully complied with the treatment program and that 

mother had shown no further sign of relapse. 

 Leanes further testified concerning the strengths and 

weakness she perceived in mother: 

 What I have notice[d] about [mother], is 

[that she] has remained abstinent for more 

than a year. [She] has consistently attended 

all required meetings, she has been 

incredibly compliant, she didn't drink during 

some real stressful periods in her life, she 

didn't have a relapse at that point, and I 

think that that's a strength. 

* * * * * * * 

 [She] is also very willing to listen to 

feedback, which was really difficult for her 

to do in the beginning. She would be very 

angry and defensive, that doesn't happen 

anymore. If she does get angry, she goes 

away, thinks about it, and she comes back, 

but she doesn't drink over it. 

* * * * * * * 

 [Mother], also has gone to the Women's Center 

on her own, and taken the Strom inventory 

test, to find out about career options and 

choices that are available to her, and 

anything that has been suggested to her, she 

tries whole heartedly. If she has questions, 
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if she has problems, if she feels like she 

doesn't understand, she has the ability to 

ask. She also has the ability to admit when 

she's wrong, and I think that that's a really 

good strength. 

* * * * * * * 

 [Her] limitations are that [she] is an 

alcoholic, and [she] may someday drink again, 

[she] may not someday drink again. A 

limitation for [mother] might be her thoughts 

where she gets really kind of compulsive 

like, or obsessive, where she needs to kind 

of go back and check, and make sure that she 

has everything done, and that can be a 

limitation. She always needs to double check 

herself. 

Leanes further testified that mother's short term goals included 

completing treatment at the Recovery Women's Center and that her 

long term goals included schooling and living with her son. 

Mother was expected to complete her treatment at the Recovery 

Women's Center in July 1995. 

 Pam Wright, a mental health therapist for Arlington County, 

testified as an expert in substance abuse and as mother's sponsor 

at AA. Wright testified that mother had attended AA meetings at 

least five or six times per week for the preceding twelve months 

and participated in service work for the group. Wright described 

how she and mother worked to create a plan to keep mother sober 

and that mother had relied on her and abided by her suggestions 

for successfully implementing the plan. Specifically, Wright 

testified as follows: 

 [Mother] is working very hard at creating a 

new life for herself. She is reexamining 

what kind of work she wants to do, what are 

her professional strengths, what kind of 
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future she would like to have. She has done 

vocational testing. She has tak[en] the 

Strom Interest Inventory. She has looked at 

career planning. She has done a lot of 

things. 

* * * * * * * 

 [Mother], emotionally, is much more stable. 

When she feels, -- I guess the thing that I 

would say most about [mother] . . . is when 

she feels jeopardized, she is no longer 

afraid to ask for help, and that's a very 

important part of recovery, is to have that 

humility, to say I need help. 

 Nancy Colletta, a clinical psychologist who specializes with 

children, testified as an expert witness for the county. Dr. 

Colletta had evaluated the child in July 1994 and, based on her 

evaluation, stated that the child evidenced characteristics of 

Fetal Alcohol Syndrome (FAS), a condition which would have long 

term consequences. She also observed emotional problems in the 

child, including distrust of adults, fear of abandonment, anger 

at both his mother and foster mother because of his feelings of 

abandonment, and preoccupation with family violence. She 

testified that the child was delayed in both language and gross 

motor skills. 

 Because of the child's special needs, Dr. Colletta believed 

that the child's provider would have to provide a stable, 

predictable environment with clear limits and constant 

discipline. Dr. Colletta evaluated mother for two hours, during 

which time she was the first person to inform mother that the 

child suffered from FAS. Dr. Colletta testified that mother 
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denied responsibility for the child's problems. Following her 

evaluation of mother, Dr. Colletta observed mother interact with 

the child. At the hearing, Dr. Colletta expressed concern about 

mother's ability to meet the child's special needs. She was 

especially concerned that mother did not recognize the child's 

problems. Dr. Colletta recommended that the child be placed in a 

permanent home. 

 At the close of the evidence, the court deferred decision, 

stating that 

 because of [mother's] efforts in trying to 

rehabilitate herself, and become a sober 

mother for this child, the Court wants, and 

hopefully will find that there is additional 

evidence that she will remain sober in the 

future. . . . [Therefore,] it is my intention 

[albeit reluctantly] to continue this case 

for ultimate decision for approximately four 

months. During which time, hopefully, Mrs. 

Pruden will at least complete the treatment 

that she is in at this time, recognizing as 

most of these professionals suggest, that 

alcoholics remain in treatment the rest of 

their life. 

* * * * * * * 

 I would ask counsel to prepare an appropriate 

order, and let the record reflect, as well as 

the order, that if [mother] comes through the 

next four months without any recognizable 

problems, the Court, this Judge at least, 

would recommend that the petition be 

dismissed, and the child returned to you, 

after an arrangement of reasonable 

visitation. 

(Emphasis added.) 

 The matter was continued in the circuit court, ultimately 

until December 19, 1995, nearly seven months later, when it was 
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taken up by a different judge. At that point, mother had not 

seen her child in nearly one year. Following the hearing, the 

court ordered the termination of both parents' parental rights.1

 The circuit court found that the county had established a 

prima facie case pursuant to Code § 16.1-283(B)(2)(b), by proving 

that mother's proper parental ability had been seriously impaired 

by her alcoholism and that, without good cause, she had failed to 

respond to or follow through with recommended and available 

treatment which could have improved her capacity for adequate 

parental functioning. We read the court's letter opinion to make 

an alternative finding as well: that, even in the absence of 

prima facie evidence established pursuant to Code 

§ 16.1-283(B)(2)(b), the county had met its burden, pursuant to 

Code § 16.1-283(B)(2), of proving that it was "not reasonably 

likely that the conditions which resulted in . . . neglect or 

abuse [could] be substantially corrected or eliminated so as to 

allow the child's safe return . . . within a reasonable period of 

time."2

 We conclude that clear and convincing evidence fails to 

support the court's findings. 

 

 1The child's father did not appeal. 

 2The court concluded that mother "has not demonstrated her 

ability to substantially correct within a reasonable period of 

time the conditions that led to [the child's] neglect," having 

found (1) mother had a long history of relapsing alcohol 

problems; (2) as recently as September 1995, mother displayed 

"relapse symptoms"; (3) mother's condition is extremely fragile, 

and although she has maintained sobriety for a few months, she 

has done so without the burden of caring for a severely 

disadvantaged and troubled child; and (4) mother would be unable 
- 9 - 

 II. 

 An order terminating parental rights permanently severs the 

parent-child relationship, rendering each a "'legal stranger'" to 

the other. E.g., Edwards v. County of Arlington, 5 Va. App. 294, 

305, 361 S.E.2d 644, 650 (1987) (quoting Shank v. Department of 

Social Services, 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976)). 

It is a "grave, drastic" action, to be accomplished in "rare" 

circumstances, id. at 305-06, 361 S.E.2d at 650 (quoting Lowe v. 

Department of Public Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 

(1986); Weaver v. Roanoke Department of Human Resources, 220 Va. 

921, 926, 265 S.E.2d 692, 695 (1980)), and in contemplation of 

"'the use, where possible, of alternatives less drastic . . . .'" 

Id. at 312, 361 S.E.2d at 654 (quoting Knox v. Lynchburg 

Division of Social Services, 223 Va. 213, 223, 288 S.E.2d 399, 

404 (1982)). In Edwards, we addressed alternatives, including 

"[t]hose remedies, which merely effect `a transitory change in 

the child's custodial status . . . without affecting other 

parental rights,' [which] are specifically `designed for the case 

of a parent who shows extenuating circumstances and demonstrates 

[her] potential for rehabilitation as a fit parent.'" 5 Va. App. 

at 312-14, 361 S.E.2d at 654-55 (quoting Shank, 217 Va. at 509, 

230 S.E.2d at 456); see also Code § 16.1-278.2. We also 

addressed, as an alternative, the use of the trial court's 

discretion to continue a case on its docket "in order to allow 

(..continued) 

to shoulder such a burden without substantial risk of relapse. 
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further services to be rendered to a parent in the hope that 

termination of the parent's residual parental rights would not be 

necessary." Id. at 314, 361 S.E.2d at 655. 

 While the child's best interest is the "paramount concern," 

e.g., Wright v. Alexandria Div. of Social Servs., 16 Va. App. 

821, 827, 433 S.E.2d 500, 503 (1993), cert. denied, 115 S. Ct. 

651 (1994), the rights and interests of the parent must also be 

protected. Id.; Radar v. Montgomery County, 5 Va. App. 523, 

526-28, 365 S.E.2d 234, 235-37 (1988). A balance of these 

interests is struck by utilizing the procedural safeguards of 

Code § 16.1-283. Edwards, 5 Va. App. at 306, 361 S.E.2d at 650. 

 Before residual parental rights can be terminated under Code 

§ 16.1-283(B), the party seeking termination must prove by clear 

and convincing evidence that (1) termination of parental rights 

"is in the best interests of the child"; (2) the neglect or abuse 

suffered by the child presents "a serious and substantial threat 

to his life, health or development" and (3) 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 . . . within a reasonable 

period of time." 

 The third factor may be established by a prima facie showing 

that "the parent . . . [has] habitually abused or [is] addicted 

to intoxicating liquors . . . to the extent that proper parental 

ability has been seriously impaired and the parent, without good 
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cause, has not responded to or followed through with recommended 

and available treatment which could have improved the capacity 

for adequate parental functioning." Code § 16.1-283(B)(2)(b) 

(emphasis added). Where the prima facie case is overcome, the 

party moving for termination is put to the burden of proving the 

factors listed in Code § 16.1-283(B)(2). Banes v. Department of 

Social Servs., 1 Va. App. 463, 466, 339 S.E.2d 902, 904 (1986) 

(prima facie case overcome where evidence shows parent not 

offered or provided services by the social agency designed to 

remedy the conditions leading to the foster care placement); 

Harris v. Lynchburg Div. Soc. Serv., 223 Va. 235, 243, 288 S.E.2d 

410, 415 (1982) (same). 

 In the present case, the record makes clear that mother's 

drinking was the relevant condition which resulted in the child's 

neglect and abuse and which the county had to prove, by clear and 

convincing evidence, could not be substantially corrected or 

eliminated so as to allow the child's safe return to his mother 

within a reasonable period of time. Although the child was 

removed initially due to his exposure to domestic violence as 

well as substance abuse by his parents, mother separated from her 

husband in June 1992, and the record reveals nothing to indicate 

that the child's further exposure to domestic violence was a 

concern. Furthermore, the record reveals nothing to indicate 

that mother's parenting skills, post-removal visitation record, 

employment status, or housing conditions figured into the 
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county's decision to remove the child and seek termination of 

mother's parental rights, except to the extent that mother's 

drinking affected those factors. Indeed, Kelley Traver, the 

county's case worker assigned to the matter, testified that the 

county refused to allow mother to take the child to parenting 

classes, noting that the county's concern was mother's drinking, 

not her parenting skills. Moreover, the foster care service plan 

required mother to follow any and all recommended substance abuse 

treatment and refrain from any use of alcohol. When mother asked 

Traver what she should be doing following the child's removal, 

Traver told her she needed to comply with treatment for her 

alcoholism. Although it can be reasonably inferred that mother's 

drinking impaired her parenting ability, the county clearly 

anticipated that cessation of mother's drinking would cure her 

impaired parenting. Had the county considered otherwise, it 

would have been required to provide services to enable mother to 

remedy her impairment. See, e.g., Banes, 1 Va. App. at 466, 339 

S.E.2d at 904. 

 No evidence supports the circuit court's finding that the 

county established a prima facie case pursuant to Code 

§ 16.1-283(B)(2)(b). Even assuming the evidence supports a 

finding that mother's parenting ability was seriously impaired by 

her alcoholism, the record is devoid of evidence that she failed 

to respond or follow through with recommended and available 

treatment which could have improved her capacity for adequate 
- 13 - 

parental functioning. The evidence that mother fully complied 

with and completed her treatment program subsequent to the 

child's removal is undisputed. The evidence shows that mother 

responded to and followed through with treatment programs prior 

to her relapse as well. Furthermore, there is no evidence that 

mother took a drink subsequent to her March 1994 relapse, nearly 

twenty-one months prior to the end of the hearing. 

 Moreover, clear and convincing evidence does not support the 

circuit court's alternative finding that, even in the absence of 

prima facie evidence established pursuant to Code 

§ 16.1-283(B)(2)(b), the county met its burden, pursuant to Code 

§ 16.1-283(B)(2), of proving that it was "not reasonably likely 

that the conditions which resulted in . . . neglect or abuse 

[could] be substantially corrected or eliminated so as to allow 

the child's safe return . . . within a reasonable period of 

time." To the contrary, the weight of the evidence supports a 

finding that mother had substantially corrected or eliminated the 

condition, her drinking, which resulted in the child's abuse and 

neglect. 

 There is no evidence that mother took a drink during the 

twenty-one months between her relapse and the circuit court's 

ruling. We disagree with the court's characterization of this 

period as a "few" months of sobriety. Furthermore, the evidence 

is undisputed that mother fully complied with her treatment and 

everything that the county required of her during that time. In 
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addition to her treatment at Recovery Women's Center, mother 

attended AA meetings nearly every day during those twenty-one 

months. Mother admits that she is an alcoholic and will be for 

life. However, the evidence shows that mother is not likely to 

relapse again. Wright opined that relapse was very unlikely even 

with the stress of caring for the child and mother's pending 

divorce. Wright testified that mother had been sober since the 

May hearing and that she knew how to avoid relapse when a relapse 

warning sign presented itself. Since the initial hearings in May 

1995, mother completed her treatment at Recovery Women's Center, 

began individual therapy, continued to attend AA meetings on an 

almost daily basis and remained sober. 

 Furthermore, the circuit court continued the case following 

the first two days of hearings and established mother's continued 

sobriety for the proceeding four months and her completion of 

treatment at the Recovery Women's Center as conditions for 

dismissing the petition. Such a ruling, in effect, established 

the "reasonable period" for mother to substantially correct the 

condition which resulted in the finding of abuse and neglect. 

 All the evidence shows that mother fulfilled every condition 

upon which the circuit court premised its "recommendation" that 

the petition be dismissed within the period specified by the 

court. Moreover, there was no indication of relapse during that 

time. The circuit court's reliance on the fact that mother 

showed "relapse symptoms" as late as September 1995 is misplaced. 
- 15 - 

 The hearing testimony clearly shows that a "relapse warning 

sign" does not indicate that relapse will occur. Rather, the 

testimony shows that a "relapse warning sign" is a signal to a 

recovering alcoholic to be aware of a condition or circumstance 

that had been an impetus to that person's drinking. By 

identifying the sign, a recovering alcoholic is able to take 

preventative measures to avoid relapse. The evidence shows that 

identifying relapse warning signs makes relapse less likely to 

occur. 

 We also find no support for the trial court's finding that 

mother's condition is extremely fragile and that she would be 

unable to shoulder the burden of raising the child without 

substantial risk of relapse. To the contrary, the testimony of 

Judith Leanes, mother's counselor at the Recovery Women's Center 

at the time of the initial hearing, and Pam Wright, mother's AA 

sponsor, depicts mother as stable, confident and able to 

understand when she needs help and from where to get it. Leanes 

and Wright testified that mother had accepted responsibility for 

her situation and had set goals for improving it. 

 Finally, we find the testimony of the county's expert 

witness, Dr. Colletta, unpersuasive on the dispositive issue in 

this case. Initially, we note that Dr. Colletta's opinion 

regarding mother's inability to meet the child's needs was based 

on one personal interview which lasted two hours. She based her 

opinion, in part, on mother's reaction to her findings with 
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respect to the child. In context, however, those reactions came 

after Dr. Colletta informed mother, for the first time, that her 

child suffered from FAS. Such information, it would later be 

revealed, was incorrect. 

 Irrespective of the basis for Dr. Colletta's opinion, it is 

clear that opinion bears no relationship to mother's drinking. 

Dr. Colletta's focus was on the child's "special needs," and she 

was concerned that mother could not meet those needs, regardless 

of her success in treatment. However, the issue is not mother's 

ability to parent her child notwithstanding her alcoholism. If 

it were, the county failed to offer or provide services to mother 

to enable her to remedy that situation and, therefore, the 

petition for termination would have to be denied. See, e.g., 

Banes, 1 Va. App. at 466, 339 S.E.2d at 904. Rather, the issue 

is mother's ability to correct the condition, her drinking, which 

led to the child's neglect.3

 

 3Furthermore, to the extent mother's relationship with the 

child had deteriorated while the matter was on appeal in the 

circuit court, as suggested by Dr. Colletta, the result was one 

created, in good part, by the denial of mother's visitation with 

the child during that twelve month period. The quality of 

mother's bonding with the child was not the ground for removing 

the child at the initiation of the action, and mother exercised 

visitation with the child throughout the period she was receiving 

treatment. Visitation was terminated upon the grant of the 

petition to terminate parental rights by the J&DR court. The 

circuit court likewise denied mother's motion for visitation 

pending appeal of the termination decision. The attenuation of 

the parent-child bond under these circumstances is not 

surprising; however, consideration of this "system-created" new 

circumstance in deciding to terminate parental rights appears, at 

minimum, unjust. 
- 17 - 

 For the reasons stated, the order of the circuit court is 

reversed. The case is remanded, therefore, to the circuit court 

for further proceedings not inconsistent with this opinion. 

Reversed and remanded.
- 18 - 

Fitzpatrick, J., dissenting. 

 I respectfully dissent and would hold that the evidence, 

when considered in the light most favorable to the prevailing 

party, is sufficient to meet the requirement of Code 

§ 16.1-283(B)(2) that it was "not reasonably likely that the 

conditions which resulted in . . . neglect or abuse [could] be 

substantially corrected or eliminated so as to allow the child's 

safe return . . . within a reasonable period of time." 

 This is the classic case of a child who came into foster 

care as a toddler because of parental neglect or abuse, and 

remains so, six years later. The evidence established that while 

the mother clearly has made progress in attempting to remedy her 

dependency on alcohol, it is still uncertain whether she has been 

successful. After an earlier period of sobriety, the Department 

attempted a return of the child to her. She relapsed, put the 

child at risk, and a removal was again required. The trial court 

was not required to accept the testimony of mother's expert that 

relapse despite "stress" was unlikely. 

 In considering all of the evidence, including the demeanor 

and credibility of the witnesses, the trial court specifically 

weighed the history of relapse and the recent display of "relapse 

symptoms." It observed that the mother was "extremely fragile on 

the date of the hearing," that she had "maintained sobriety . . . 

without the burden of caring" for her child who has special 

needs, and lastly, that it was in the child's best interest that 
- 19 - 

the termination of parental rights be accomplished completely and 

expediently. I would hold that this decision was not clearly 

wrong or without evidence to support it. For these reasons, I 

would affirm the trial court.