Beverly Jackson v Alexandria DSS

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
BEVERLY JACKSON MEMORANDUM OPINION* BY
v. 	Record No. 2331-94-4 	JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 12, 1995
ALEXANDRIA DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
Clare L. McCulla for appellant.
Molly S. Dietrich, Assistant Commonwealth's
Attorney (John E. Kloch, Commonwealth's Attorney,
on brief), for appellee.
Dorathea J. Peters (Peters & Mullins, on brief),
Guardian ad litem for Melody Jackson, an infant.
The appellant, Beverly Jackson ("mother"), appeals the
Alexandria Circuit Court's decision to terminate her residual
parental rights to her daughter, Melody Jackson ("child"). 	The
mother alleges that the evidence was insufficient to terminate
her residual parental rights pursuant to Virginia Code § 16.1-
283(B). 	For the reasons that follow, we reverse.
The child was born cocaine positive on September 21, 1991,
and Alexandria Department of Social Services ("DSS") was granted
legal custody of her soon thereafter. 	For most of her life, the
child remained in foster care while her mother made efforts to
complete drug treatment programs prescribed by DSS. 	By
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
mid-September 1993, DSS had concluded the mother's condition had

-2-
not sufficiently progressed and sought to change the foster care
service plan goal to adoption and to terminate mother's parental
rights. 	The family court approved the service plan goal of
adoption in December 1993 but because of the bond between the
mother and her child, the parental rights were not terminated at
that time. 	The court continued the matter until June 1994 to
allow the mother to prove that she had remained substance free
and had actively participated in treatment. In June 1994 it
entered a final judgment terminating the mother's residual
parental rights. 	Following a September 26, 1994 hearing, the
circuit court reached the same result.
There is no evidence that, after the child's birth, the
mother physically harmed her in any way. 	During the child's time
in foster care, the mother maintained a strong visitation record,
and the two carried on a normal mother/daughter relationship.
Indeed, both the DSS and the family court judge recognized a
positive bond between the mother and her child.
The evidence shows that the mother participated in various
treatment programs, with varying degrees of success, since early
1992. 	She participated in two inpatient programs and maintained
fairly regular attendance at Narcotics Anonymous meetings
following her discharge from the second program. 	The mother
received somewhat sporadic help from Substance Abuse Services in
both Alexandria and Arlington, but her treatment gained
regularity over time. 	By March 1994, the mother was attending

-3-
-3-
weekly treatment sessions with the Alexandria Substance Abuse
Services. 	After moving to Arlington in June 1994 the mother
contacted Arlington Substance Abuse Services. 	From August 1994
until the hearing in late September, the mother attended weekly
sessions at Arlington Substance Abuse Services, attended weekly
group counseling sessions, and went to Narcotics Anonymous
meetings two times per week.
Unquestionably, the mother had a drug problem prior to her
treatment programs. 	And, at first, the mother experienced a
rocky road to recovery, relapsing within two weeks of her
discharge from the first inpatient program in July 1992 and
continuing to use drugs until entering the second inpatient
program in March 1993. 	However, there is no evidence that the
mother had used drugs in the nearly eighteen months since that
time. 	The evidence reflects that, although she was not enrolled
continually in any one treatment program, beginning March 1993
until the date her parental rights were terminated, the mother
underwent numerous drug tests, often random, all of which were
negative. 	At the circuit court hearing, witnesses who had
observed the mother's previous drug use testified that the mother
had not used drugs since March 1993. 	Betty Richardson-Evans, an
expert in substance abuse counselling testified that she saw no
sign of the mother using drugs.
Moreover, the prognosis for the mother's future treatment

-4-
was positive at the time of the hearing. 	Although, Ms.
Richardson-Evans testified that people who relapse once are more
likely to relapse again, she opined that the mother would refrain
from using drugs this time. 	Ms. Richardson-Evans testified that
the mother was doing all she could to remain drug-free. 	The
mother testified that she would continue treatment regardless of
the result of the custody issue, and Ms. Richardson-Evans
testified that she believed the mother would continue drug
treatment regardless of whether her parental rights were
terminated.
The evidence also shows that the mother had trouble
maintaining either consistent housing or employment during the
period in question. 	The mother's continual moving may have been
related to family matters over which she had little control. 	She
lived in Fairfax to care for her mother who was dying of cancer.
The subsequent moves also prevented the mother from maintaining
a consistent treatment program because the Substance Abuse
Services are administered by county.
To terminate residual parental rights under § 16.1-283(B),
the court must make three findings based upon clear and
convincing evidence: (1) that termination is in the child's best
interest; (2) that abuse presented a serious and substantial
threat to the child's life, health, or development; and (3) that
it is not reasonably likely that conditions resulting in abuse
can be corrected to allow the child's safe return within a

-5-
reasonable time. 	E.g. Wright v. Alexandria Div. of Social
Servs., 16 Va. App. 821, 826, 433 S.E.2d 500, 503 (1993), cert.
denied, 115 S. Ct. 651 (1994); Kaywood v. Halifax Co. Dept. of
Social Servs., 10 Va. App. 535, 538, 394 S.E.2d 492, 494 (1990).
We agree that the mother's drug use resulted in abuse to the
child that presented a serious and substantial threat to her.
However, we disagree that the evidence clearly and convincingly
showed that terminating the mother's parental rights was in the
child's best interests. 	We also disagree that the evidence
clearly and convincingly showed that the mother's condition could
not be corrected to allow the child's safe return within a
reasonable time from the date of the hearing.
As the DSS stresses, the government's paramount objective is
maintaining the best interests of the child. 	Logan v. Fairfax
Co. Dept. of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,
463 (1991). 	As the mother stresses, it is the government's
objective to preserve, whenever possible, the parent-child
relationship. 	Lowe v. Dept. of Public Welfare, 231 Va. 277,
280-81, 343 S.E.2d 70, 72 (1986); Weaver v. Roanoke Dept. of
Human Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).
Clearly, the two objectives are not necessarily mutually
exclusive: the child's best interest may be served by maintaining
the parent-child relationship.
The evidence in this case reflects the bond that exists
between the mother and her child. 	Throughout the child's life,

-6-
the mother visited the child regularly, and, other than the
mother's drug problems, the two seem to have maintained a normal
parent-child relationship. 	We agree that the instability the
child has undergone her entire life does not serve her interests
well. 	However, the record does not demonstrate that the child's
interests would be better served by removing the child from her
mother.
Undoubtedly, the mother's drug use was the condition that
resulted in the abuse of the child. 	No evidence suggests that
the mother abused the child in any other way.
Proof that the mother had abused drugs and had not responded
to or followed through with recommended and available treatment
is prima facie evidence that the mother's condition would not be
corrected to allow the child's safe return within a reasonable
time. 	Code § 16.1-283(B)(2)(b). 	The mother's somewhat
inconsistent participation in drug treatment programs may
indicate that her drug abuse would not be corrected within a
reasonable time. 	However, the mother's success in remaining
drug-free shows that, though her participation may have been
sporadic, she successfully responded to and followed through with
treatment. 	At the date of the hearing the mother had been
drug-free for over seventeen months and the prognosis for her
future condition was positive. 	The evidence shows that the
mother was well on the road to recovery. 	It does not clearly and
convincingly show that, at the date of the hearing, her condition

-7-
would not be corrected within a reasonable time to allow the
child's safe return.
Given the mother's progress in remaining drug-free and her
positive prognosis for the future, together with the evidence of
a sound and close relationship between the mother and her child,
we conclude that the termination of the mother's rights was
premature and not in the best interests of her child at this
time.
Accordingly, the judgment of the trial court is reversed.
Reversed.