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McGuire v. Frederick County Dept. Of Social Services10/26/2004
Connie McGuire (appellant) appeals from a decision of the Frederick County Circuit Court terminating her residual parental rights to her two minor children. On appeal, appellant contends the trial court erred in finding the evidence was sufficient to terminate her residual parental rights under Code § 16.1-283(B). [FN1] Specifically, appellant argues that the Frederick County Department of Social Services (DSS) failed to show by clear and convincing evidence that (1) the termination of appellant's parental rights was in the best interests of the children; and (2) it was not reasonably likely that the conditions resulting in the neglect and abuse could be substantially corrected or eliminated so as to allow the safe return of the children to appellant's custody within a reasonable period of time. [FN2] Finding no error, we affirm.
FN1. Appellant also contends error premised on language found in Code § 16.1-283(C)(2). However, the trial court did not make a finding under § 16.1-283(C). Code § 16.1-283(B) provides an independent basis for the termination of residual parental rights, and DSS prevailed thereon. We will not review a finding the trial court did not make.
FN2. The natural father's residual parental rights also were terminated, but he is not a party to this appeal.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to DSS as the party prevailing below, and its evidence is afforded all reasonable inferences fairly deducible therefrom. Logan v. Fairfax County Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 463 (1991). Where the record contains credible evidence in support of the lower court, we may not retry the facts or substitute another view of the facts for those of the trial court. Ferguson v. Stafford County Dep't of Social Servs., 14 Va.App. 333, 336, 417 S.E.2d 1, 2 (1992). So viewed, the facts are as follows.
In September of 2000, appellant and Brian Norford were the custodial parents of two minor children (children), K.A.N., born September 5, 1995 and J.K.N., born November 25, 1996. On September 18, 2000, by an Emergency Removal Order unrelated to appellant's conduct, children were taken from their custodial parents and placed into the custody of DSS. Children were returned to appellant's custody on September 22, 2000 under the terms of a protective order. DSS again took custody of children on April 13, 2001, when appellant was arrested on a charge of driving under the influence with children in the vehicle. On February 12, 2002, a juvenile and domestic relations district court found that children were abused and neglected. They were nevertheless returned to the custody of appellant and Norford under another protective order.
Sometime between February 26 and early May of 2002, appellant separated from Norford, and all were evicted from their residence. Appellant, with the assistance of the DSS, moved with children to the Salvation Army. On May 13, 2002, appellant was evicted from the Salvation Army, and DSS again took emergency custody of children. Another finding of abuse and neglect was entered against appellant on July 1, 2002.
*2 By June of 2002 appellant had taken up residence in a one-bedroom apartment with Mark Smallwood. Appellant knew that Smallwood had a criminal history and a drinking problem, but thought he would be an "excellent influence" on her children when they were returned to her custody. At some point appellant told the senior social worker with DSS that she c
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