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COURT OF APPEALS OF VIRGINIA
Judges Elder, Bumgardner and Humphreys
GARY LEE FISHER, SR.
Record No. 2860-99-4
MEMORANDUM OPINION *
MAY 30, 2000
WARREN COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Wetsel, Jr., Judge
(Alfred L. White, Jr.; Struckmann & White,
P.C., on brief), for appellant. Appellant
submitting on brief.
(Douglas W. Napier, County Attorney, on
brief), for appellee. Appellee submitting on
Gary Lee Fisher, Sr., appeals the decision of the circuit
court terminating his parental rights to his biological son.
appeal, Fisher contends that the trial court erred by (1) finding
that the Warren County Department of Social Services (DSS) made
reasonable and appropriate efforts to provide services to Fisher
so as to allow the child's return to Fisher within a reasonable
period of time; (2) finding that DSS proved by clear and
convincing evidence that it was not reasonably likely that the
conditions resulting in the child's placement in foster care could
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
be corrected to allow the child's return within a reasonable
period of time; (3) failing to require DSS to investigate the
possible placement of the child with his paternal grandmother; and
(4) failing to grant a continuance to determine the date of
Fisher's release from incarceration and the services available
upon his release.
Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, 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).
"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).
"'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
Logan, 13 Va. App. at 128, 409 S.E.2d at 463
The trial judge's findings, "'when based on
evidence heard ore tenus, will not be disturbed on appeal unless
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plainly wrong or without evidence to support it.'"
The trial court ruled that DSS presented sufficient evidence
to terminate Fisher's parental rights under Code § 16.1-283(B).
That section provides that
[t]he residual parental rights of a parent
or parents of a child found by the court to
be neglected or abused and placed in foster
care as a result of (i) court commitment,
(ii) an entrustment agreement entered into
by the parent or parents or (iii) other
voluntary relinquishment 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:
1. The neglect or abuse suffered by such
child presented a serious and substantial
threat to his life, health or development;
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
The child was born in 1990.
He was placed in foster care
following an emergency removal from his mother's custody in 1997
when he had striation bruises consistent with a beating by a belt.
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In foster care, the child demonstrated improved behavior and
increased intellectual functioning.
A psychological evaluation
indicated that the child displayed traits consistent with trauma
and abuse arising from the neglect and beatings by his mother and
He tested above average in intelligence, but
demonstrated evidence of internal turmoil, anger, and poor
Pursuant to the goal of returning the child home,
DSS planned for the child to have weekend visits with his mother.
After the first weekend in August 1998, however, the child
returned with bruises and hand marks along his spine.
child's return from visitation, his behavior rapidly deteriorated
and he was placed in an intermediate term psychiatric facility in
In the facility, he engaged in incidents of fire
setting and other serious and harmful behavioral problems.
child was released from the intermediate term psychiatric facility
in October 1999 into a therapeutic foster care family.
evidence indicated that it was essential to the child's well being
that he remain in a therapeutic setting.
The child displayed no bond or relationship with Fisher, who
was incarcerated from 1991 through 1996.
prison for eleven months.
Fisher remained out of
The child lived with Fisher and his
second wife for approximately five months from December 1996 until
April 1997, when Fisher was again incarcerated, this time in West
Fisher was in prison in Virginia at the time of the
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hearing and was unsure how much time he had left to serve.
parole hearing was scheduled for November 1999.
Reasonable Effort to Provide Services
Fisher contends that the trial court erred by failing to
require DSS to offer services to him designed to remedy the
reasons for the child's removal.
"Reasonable and appropriate
efforts must be made to assist a delinquent parent in remedying
the conditions that lead to a parent's temporary relinquishment
of the children to the care of the department.
The offer of
such assistance is a prerequisite to termination of parental
Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E.2d
682, 683 (1991).
However, "'reasonable and appropriate' efforts
can only be judged with reference to the circumstances of a
Ferguson v. Stafford County Dep't of Soc.
Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992).
DSS offered services to the mother, who was the custodial
parent at the time the child was placed in foster care.
Kitchen, the social worker assigned to the child's case,
testified that DSS was unable to provide direct services to any
incarcerated parents and it was more difficult than usual in
this instance because Fisher was imprisoned outside Virginia.
Through his repeated incarcerations, Fisher had already
relinquished care of the child to others.
from the child's life.
He removed himself
He made no provisions for the care of
the child for years at a time, and offered no relief to the
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child from the underlying problems of trauma and abuse suffered
at the hands of the mother.
Based upon the testimony received
ore tenus, the trial court determined that DSS made "reasonable
and appropriate efforts to provide services to these parents,
given their respective situations."
We find sufficient evidence
in the record to support the trial court's conclusion.
Return within a Reasonable Period
Fisher also contends that the trial court erred by
concluding that DSS proved the child could not be returned to
Fisher within a reasonable period of time.
evidence proved that Fisher had sporadic contact at best with
the child throughout the child's life.
The child had no bond
with Fisher and expressed negative feelings about Fisher and his
Fisher was in prison at the time of the hearing
and could not say when he might be released.
The trial court
found that clear and convincing evidence indicated that it would
not be in the child's best interest to place him with Fisher,
even if Fisher were in a position to immediately provide a home
for the child.
We find no error in the determination of the
Possible Placement with Paternal Grandmother
Fisher also contends that the trial court erred when it
failed to require DSS to consider placement with the paternal
The record does not support Fisher's contention.
DSS explored the possibility of placement with the grandmother
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and discovered that she had a history of "losing control of her
children when they hit their teenage years" and that at least
three of her nine children served extensive time in jail.
No family members expressed any interest in having custody
of the child.
Fisher testified that he was blocked from making
collect calls to his mother.
He presented no evidence but his
own testimony to indicate that the grandmother would be
interested in having custody of the child.
indicated that the family situation was inappropriate for the
child and his need for stability.
We find no error.
Failure to Grant Continuance
Finally, Fisher contends that the trial court erred by
failing to allow more time to determine his time left to serve.
As the party seeking a continuance, Fisher had the
burden to prove the merit of a delay.
"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 . . . responsibilities."
Kaywood v. Halifax County
Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,
The record supports the finding of the trial court that DSS
presented clear and convincing evidence sufficient to meet the
statutory requirements of Code § 16.1-283 that termination was
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in the child's best interests.
Accordingly, the decision of the
circuit court is affirmed.
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