Karen A. Gallupe v Roanoke City DSS

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
KAREN A. GALLUPE MEMORANDUM OPINION*
v. 	Record No. 0515-98-3 	PER CURIAM
DECEMBER 15, 1998
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
(Onzlee Ware, on brief), for appellant.
(L. Brad Braford, on brief), for appellee.
On appeal from the judgment of the trial court terminating
her parental rights to her three minor children, Karen A. Gallupe
contends that the evidence failed to support that termination.
Upon reviewing the record and briefs of the parties, we affirm
the judgment 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).
"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 best interests." 	The
trial court's judgment, "when based on
evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

- 2 -
without evidence to support it."
Id. (citations omitted). 	"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).
Code § 16.1-283(B) provides that the residual parental
rights of a parent of a child found by a court to be neglected or
abused may be terminated if the court finds that it is in the
child's best interests, that the neglect or abuse presents a
serious and substantial threat to the child's life, health or
development, and that it is not reasonably likely that the
conditions resulting in the neglect or abuse can be substantially
corrected or eliminated to allow the child's safe return within a
reasonable period of time. 	See Code § 16.1-283(B)(1) and (2).
Code § 16.1-283(C) provides that a parent's residual
parental rights to a child placed in foster care may be
terminated if the trial court finds it is in the best interests
of the child and, in pertinent part,
[t]he parent or parents, without good cause,
have been unwilling or unable within a
reasonable period not to exceed twelve months
to remedy substantially the conditions which
led to the child's foster care placement,
notwithstanding the reasonable and
appropriate efforts of social, medical,

- 3 -
mental health or other rehabilitative
agencies to such end.
Code § 16.1-283(C)(2).
Gallupe's two older children were taken into emergency,
short-term foster care when an investigation disclosed that the
apartment in which they lived lacked heat and that the extension
cords used to supply electricity were a fire hazard. 	Once in
foster care, the children disclosed that they had been sexually
abused by their father. 	Further investigation resulted in a
determination of "founded" abuse. 	Visitation with the father was
discontinued in mid-1996.
Gallupe continued bi-weekly visits with the children, and
completed the parenting classes required under the foster care
service plan. 	However, she did not believe the children's
allegations of sexual abuse. 	While she met with Dr. Van Patten
after he had tested the father, she stated that she did not
believe Dr. Van Patten's findings were valid or that his report
was truthful. 	She asked no questions concerning risks to which
the children would be exposed by further contact with their
father. 	During visitation, she blamed the children for
separating the family, and urged them to recant what they had
said. 	Despite evidence to the contrary, she refused to
acknowledge that the children were at risk.
The trial court found that
1) the evidence was overwhelming that [the
two older children] were sexually abused and
that their father was the perpetrator of this
abuse; 2) none of the children are safe in

- 4 -
the presence of their father; 3) the
children's mother does not believe that the
children's father sexually abused the
children; 4) therefore the children's mother
will not adequately protect the children from
their father; 5) the parents, without good
cause, have not responded to or followed
through with the appropriate, available and
reasonable rehabilitative services on the
part of social, medical, mental health or
other rehabilitative agencies designed to
reduce, eliminate or prevent the neglect or
abuse of the children; 6) the parents,
without good cause shown, have been unwilling
or unable within a reasonable period of time
to remedy substantially the conditions which
led to the children's foster care placements,
notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end . . . .
Witnesses for the Department of Social Services testified
that both older children had suffered sexual abuse at the hands
of their father and, as a result, had suffered serious emotional
damage. 	Despite the evidence, Gallupe refused to acknowledge the
father's guilt and urged the children to repudiate their reports
of abuse. 	She sided with the father against the children,
subordinating their welfare to her own interests. 	She became a
party to the abuse. 	She failed to safeguard her children. 	This
nonfeasance on Gallupe's part was as threatening to the health
and well-being of the children as was the father's malfeasance.
Thus, credible evidence supports the trial court's finding that
Gallupe was unwilling or unable to remedy substantially the
conditions that had led to the children's foster care placement.
Likewise, credible evidence supports the trial court's finding

- 5 -
that Gallupe had failed to respond to the appropriate services
designed to reduce, eliminate or prevent the abuse.
Gallupe contends that she was forced to choose between her
children and her husband. 	However, that choice was not imposed
on her by the trial court. 	Her children were at risk due to
behavior to which she turned a blind eye. 	She failed to support
her young children and to help them recover from their trauma.
She attempted to silence them and to make them bear the burden of
the family's separation. 	In the absence of force, threat or
intimidation, Gallupe's failure to protect her children from
their father's known abuse constituted neglect or abandonment.
The judgment of the circuit court is affirmed.
Affirmed.

- 6 -
Benton, J., dissenting.
The record indicates that when the male child was three
years of age he made a complaint of sexual abuse against the
father. 	The record does not indicate when the female child first
made her complaint; however, she is one year younger than her
brother. 	Both children were removed from their home before the
male child made his complaint. 	No criminal proceeding was ever
instituted against the father because "the detectives at the
Youth Bureau didn't feel like [the three-year-old child's]
statement would stand up in Court, given his age."
The record clearly demonstrates that the mother did not
sexually abuse her children and took all the steps requested of
her by the Department of Social Services. 	The trial judge's
decision wrongfully attributed to the mother responsibility for
the acts the father is alleged to have committed. 	"[T]he
termination of the legal relationship between a parent and a
child is a grave proceeding." 	Weaver v. Roanoke Dept. of Human
Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). 	Such a
drastic and irreversible action cannot be based upon a decision
that deems the mother a surrogate for the father. 	See id. at
929, 265 S.E.2d at 697. 	The evidence was insufficient under Code
§ 16.2-283 to prove that the mother's independent actions
warranted termination of her parental rights.
I respectfully dissent.