Theodore Clayton Francisco v. Roanoke City Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Humphreys, Powell and Senior Judge Clements
THEODORE CLAYTON FRANCISCO
MEMORANDUM OPINION*
v. 	Record No. 0601-09-3 	PER CURIAM
SEPTEMBER 15, 2009
ROANOKE CITY DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge
(Eric Roland Spencer, on brief), for appellant. Appellant submitting
on brief.
(William M. Hackworth, City Attorney; Heather P. Ferguson,
Assistant City Attorney; L. Brad Braford, Guardian ad litem for the
infant children, on brief), for appellee. Appellee and Guardian ad
litem submitting on brief.
Theodore Clayton Francisco appeals the decision by the trial court changing the goal in the
foster care plan from return home to adoption. Francisco argues he is now in a better position to
comply with the requirements of the Roanoke City Department of Social Services (DSS). We
disagree and affirm.
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,
659 (2005) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). “[A]
preponderance-of-the-evidence standard governs judicial modifications of foster care plans.”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265 n.3, 616 S.E.2d 765, 769 n.3
(2005).
We view the evidence in the light most favorable to the prevailing party below and grant
to it 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). So viewed, the evidence
proved that Angela Mitchell, an employee of DSS, worked with Francisco and Samantha
Smithers prior to their twins’ premature birth on August 6, 2007. The children were in the
neonatal intensive care unit for a period of time due to medical conditions associated with their
premature birth. On September 12, 2007, Mitchell filed a preliminary child protective order
regarding Smithers’ older children due to consistent domestic violence between Francisco and
Smithers. Francisco was ordered to leave the home and was permitted only supervised contact
with his newborn children in the hospital. Between September 29 and October 1, 2007, DSS
monitored a rooming-in process for Smithers at the hospital for the healthier twin to determine if
Smithers could care for the child at home. Smithers was unable to successfully complete the
process, and DSS sought emergency removal for the twins because neither parent could
adequately care for them. At the time, Francisco was homeless due to the protective order
removing him from the home.
Shelby Stewart, Francisco’s caseworker until July 2008, informed Francisco that to
achieve the goal of return to home, he was required to obtain stable housing, obtain stable
employment, complete an infant CPR class, undergo substance abuse assessment and treatment,
complete psychological and psychiatric evaluations, complete any services deemed necessary
from the evaluations, complete a parenting class, complete a domestic violence program,
demonstrate he could adequately care for his children, maintain supervised visitation with the
children, and maintain contact with his caseworker. Stewart referred Francisco to the Blue Ridge

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Behavioral Health Care for an initial substance abuse assessment, which was needed prior to the
psychological and psychiatric evaluations. Francisco failed to complete the substance abuse
assessment. Stewart testified when she referred Francisco to the domestic violence program,
Smithers was almost finished with the program. Stewart testified Francisco did not have to wait
for Smithers to finish the program before he could start attending the program.
Heather Woods, the caseworker beginning in July 2008, attempted to contact Francisco,
but was unable to find him until September 2008 when he accompanied Smithers on a visit.
Woods reviewed with Francisco the requirements of the care plan. At the permanency planning
proceeding on February 3, 2009, Francisco had completed the infant CPR class, but he did not
have stable housing, he was unemployed, he had not completed any of the required assessments
or evaluations, he had not completed the parenting class, and he had not completed the domestic
violence program. The only information Woods received from Francisco regarding employment
was a pay stub from the Salvation Army for the 2008 Christmas season. Woods was unable to
verify other employment information Francisco provided to her. At the time of the permanency
planning hearing, the twins were progressing well in foster care, but due to their complex
medical history, they had higher needs than an average child.
At the permanency planning hearing, Francisco testified he was prohibited from attending
the domestic violence program due to the protective order and the fact that Smithers was in the
program. Francisco admitted he did not have steady employment, he had lived in shelters, and
he was currently living temporarily with his sister, but he was looking for places to live.
Francisco admitted since the twins were born, the longest he held a job was four months.
Francisco testified he had twice completed detoxification, but he failed to complete the substance
abuse assessment.

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The trial court concluded that DSS proved by a preponderance of the evidence that it was
in the children’s best interests to change the goal in the foster care plan to adoption and there was
no evidence that Francisco would now comply with the requirements in the care plan. Although
Francisco had completed an infant CPR class, he failed to obtain stable housing, he failed to
obtain stable employment, and he failed to obtain the psychological and psychiatric evaluations,
which were necessary to determine his counseling needs. Francisco failed to maintain contact
with the assigned caseworker, he failed to complete parenting classes, and he was inconsistent
with visiting his children. “‘[P]ast actions and relationships over a meaningful period serve as
good indicators of what the future may be expected to hold.’” Linkous v. Kingery, 10 Va. App.
45, 56, 390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d
315, 319 (1987)). Francisco’s explanation as to why he failed to complete the domestic violence
program was inconsistent with the caseworker’s testimony. Francisco attended a detoxification
program twice, but he failed to complete the substance abuse assessment, which was needed
prior to determining treatment for his substance abuse issues. “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 his [or her] responsibilities.” Kaywood v. Halifax County Dep’t of
Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Accordingly, the trial court did
not err in changing the changing the goal in the foster care plan from return to home to adoption.
Affirmed.