Jenkins v. Winchester Dept. of Social Services

• Decision Date: 27 August 1991
• Docket Number: No. 1909-90-4,1909-90-4
• Citation: 12 Va.App. 1178,409 S.E.2d 16
• Parties: Virginia Ann JENKINS v. WINCHESTER DEPARTMENT OF SOCIAL SERVICES. Record
• Court: Virginia Court of Appeals

Page 16

409 S.E.2d 16

12 Va.App. 1178

Virginia Ann JENKINS v. WINCHESTER DEPARTMENT OF SOCIAL SERVICES.

Record No. 1909-90-4.

Court of Appeals of Virginia.

Aug. 27, 1991.

Jesse J. Richardson, Jr. (Hazel & Thomas, P.C., on briefs), Winchester, for appellant.

Jeffery R. Patton (Thomas A. Louthan, P.C., Winchester, on briefs), for appellee.

Present: KOONTZ, C.J., and BAKER and DUFF, JJ.

DUFF, Judge.

In this consolidated appeal, Virginia Ann Jenkins (Ms. Jenkins) challenges two final judgments of the Circuit Court of the City of Winchester. By order entered August 1, 1990, the court terminated Ms. Jenkins' residual parental rights to her son, Jody Ray Jenkins, born November 26, 1987. By order entered August 9, 1990, the court found Ms. Jenkins' daughter, Rachel Ann Jenkins, born October 2, 1989, to be an "abused and neglected" child as defined in Code § 16.1-228(1) and (5). This latter order continued the care, custody and control of Rachel Ann with the Winchester Department of Social Services (Department), but did not terminate parental rights. The two cases were tried together and the record contains the evidence applicable to both cases. It does not contain a transcript of the testimony of the witnesses, but a "Written Statement" containing a detailed recital of the testimony presented was entered by the trial judge. This statement comprises our only source of information regarding the proceeding at trial.

Ms. Jenkins raises the following issues: (1) whether in the case of Rachel Ann, the court erred in making a finding of neglect and abuse where uncontradicted evidence established that the child had not been harmed and had not been removed by Ms. Jenkins from the hospital at birth; (2) whether in the case of Jody Ray, the court erred in terminating residual parental rights where uncontradicted evidence showed vast psychological improvement on the part of Ms. Jenkins since the child was removed from her custody; and (3) whether in the case of both children, the trial court erred in admitting hearsay evidence over the objection of the guardian ad litem for the mother and in admitting testimony relating to the termination of Ms. Jenkins' parental rights as to her three prior children. We affirm the judgment of the trial court in each case.

Under familiar principles, we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below, in this case the Department. Martin v. Pittsylvania County Dept. of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986). When so viewed, the record reveals the following pertinent facts:

I. THE FACTS

Rachel Ann Jenkins was born on October 2, 1989 at the Winchester Medical Center. On October 3, 1989, based upon its prior experience with the mother, the Department filed a petition with the court alleging that the child was abused or neglected as defined in Code § 16.1-228(1) and (5), and requested that custody be granted to the Department. The Department took custody of Rachel pursuant to an emergency removal order entered October 4, 1989, by the Winchester Juvenile and Domestic Relations District Court.

Ms. Jenkins began receiving services from the Department and other area agencies in December 1977. These included, inter alia, A.D.C., Medicaid, Fuel Assistance, Family Focus, transportation, psychological evaluations, baby-sitters, and parent support groups. Records indicated that several abuse and neglect complaints were found against Ms. Jenkins based on allegations of failure of her children to thrive, malnutrition, lack of food, lack of clothing, lack of shelter, bruising and emotional abuse. Since 1981, the evidence showed the termination of the residual parental rights of Ms. Jenkins to three other children. In 1981, Ms. Jenkins' rights to her second child, John, were terminated after he required hospitalization twice for failure to thrive. In 1986, her rights to her oldest child, Susanna, were terminated after it was determined that the child was significantly delayed in developing mentally and would not thrive in the home environment. In that same year her rights to her third child, Richard, were also terminated.

At trial the Department called Dr. John S. Crandell, Ph.D., as an expert in the field of clinical psychology. Dr. Crandell testified that he had completed two evaluations of Ms. Jenkins, one in 1985, and one in 1990. In the first evaluation, he found her to be easily confused and distressed. He diagnosed her as having mild to moderate mental retardation with an I.Q. of 49. She was a paranoid-schizophrenic functioning in the lowest percentile in her group in the administered tests.

In the 1990 evaluation, Dr. Crandell noted "marked stabilization" although she was still easily confused about childrearing. She was no longer suffering from the psychotic thinking exhibited in the 1985 evaluation. However, due to her mental retardation, she would have problems responding to the demands of childrearing. The church and family support systems available to Ms. Jenkins would not be able to provide the intensive, daily supervision she would need to care for her children at minimal levels. He testified that she had reached the maximum of her potential and was still not capable of being an independent parent. He concluded that leaving the children in Ms. Jenkins' care would present a substantial risk of impairment to their bodily and mental functions. Accordingly, in his opinion, the best interests of the children would be served by terminating the parental rights of Ms. Jenkins.

Dr. R. Winston Lutz, the medical director of the Parent-Infant Education Program, had eleven years of association with Ms. Jenkins and her children. He opined that because of her limited abilities, it was impossible for Ms. Jenkins to adequately support, nurture and raise children. He testified that to return Rachel to Ms. Jenkins would be to start the child down "the course that we have seen with both John ..., who is retarded, spastic, wears braces ... and Jody ..., who is also severely developmentally delayed." He believed, based on a reasonable degree of medical probability, that Rachel would be at substantial risk of harm if she were placed in the custody of her mother.

Other evidence established that, despite numerous hour-long parenting sessions, from Rachel's birth until the trial date, Ms. Jenkins was unable to properly hold, diaper or feed Rachel. She could not determine appropriate clothing or even remember Rachel's age. Adele Gabrielick, the case manager responsible for administering the parenting training, testified that Ms. Jenkins could not, at the time of the trial, care for the children independently. Finally, although various suggestions were made concerning structured parenting situations (e.g., twenty-four hour care facility, family support), such arrangements that did exist were either inadequate or unavailable to Ms. Jenkins.

As regards Jody Ray Jenkins, the record shows that he was initially removed from the care of his mother on February 7, 1988, by the Department due to the placement of Ms. Jenkins in a psychiatric unit. She was released on February 15, 1988, and Jody was returned to her on February 17, 1988.

On March 7, 1988, Ms. Jenkins was again admitted to a psychiatric hospital, and Jody was placed in the care of his aunt, Nina Mudd. Ms. Jenkins was released on April 29, 1988, and on May 2, 1988, Jody was returned to her care pursuant to a court order. However, he failed to sustain any physical or developmental growth after returning home, and was removed on October 3, 1988, due to failure to thrive. He has since been in foster care.

On October 21, 1988, a hearing was held and an order entered finding Jody to be an abused and neglected child. On January 18, 1989, a foster care plan was filed with the court and approved shortly thereafter. The plan called for various responsibilities and commitments on the part of Ms. Jenkins, including counseling at Northwestern Community Services. At an administrative panel review, held September 27, 1989, Ms. Jenkins was unable to state what she had learned through her counseling sessions, nor could she state the needs of Jody or how they could be met. Accordingly, a revised foster care plan was filed with the court on October 30, 1989, with the goal of adoption and the termination of parental rights.

II. RACHEL

Ms. Jenkins argues that the court erred in making a finding of abuse and neglect in the case involving Rachel because uncontradicted evidence established that the child had not been harmed in any way at the time of her removal from the hospital. Code § 16.1-228(1) and (5) defines "abused or neglected child" as any child:

(1) Whose parent ... responsible for his care ... creates a substantial risk of ......