Martin v. Pittsylvania County Dept. of Social Services

• Decision Date: 02 September 1986
• Docket Number: No. 1032-85,1032-85
• Citation: 348 S.E.2d 13,3 Va.App. 15
• Parties: Margie Sparks MARTIN v. PITTSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES. Record
• Court: Virginia Court of Appeals

Page 13

348 S.E.2d 13

3 Va.App. 15

Margie Sparks MARTIN v. PITTSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES.

Record No. 1032-85.

Court of Appeals of Virginia.

Sept. 2, 1986.

John L. Saxon, Danville, (Norman B. Sales; Virginia Legal Aid Society, Inc., Lynchburg, on brief), for appellant.

Robert P. Vines (Vansant, Millner & Vines, Chatham, on brief), for appellee.

Present KOONTZ, C.J., and COLEMAN and MOON, JJ.

KOONTZ, Chief Judge.

This case involves a controversy between the Pittsylvania County Department of Social Services (hereinafter referred to as "appellee" or "DSS") and Margie Sparks Martin concerning the custody of her son, John, born on June 20, 1976. By order dated June 23, 1985, the circuit court denied Mrs. Martin's petition for custody and directed that the child be placed in permanent foster care pursuant to Code § 63.1-206.1, subject to the visitation rights of Mrs. Martin. Mrs. Martin appeals from that order.

Procedural Background

The procedural background of this case is somewhat involved and we cite it to illustrate the events which led to the entry of the order on appeal. As a result of physical abuse of the child by the father, the Pittsylvania County Juvenile and Domestic Relations District Court, by order dated May 20, 1981, placed John in the appellee's custody. Subsequently, on December 30, 1982, that court granted the petition of the appellee to terminate the parental rights of Mrs. Martin. On appeal, the circuit court denied the petition to terminate Mrs. Martin's parental rights by order dated May 26, 1983. Thereafter, the appellee filed a foster care plan in the juvenile court with the goal being to return John to the custody of Mrs. Martin. The juvenile court approved the plan in November, 1983, but upon review of it in June, 1984, rejected it on the ground that Mrs. Martin would not be a proper custodial parent and ordered the appellee to file a plan with adoption as the goal. At that time Mrs. Martin unsuccessfully sought custody for herself. She appealed both of these determinations to the circuit court. Pending the hearing on appeal, the appellee filed a petition in the circuit court to terminate Mrs. Martin's parental rights. Mrs. Martin's appeal and the appellee's petition were consolidated and heard ore tenus in February and June, 1985. A guardian ad litem was appointed to represent John's interest in these proceedings. On June 23, 1985, the circuit court denied the petition to terminate Mrs. Martin's parental rights, denied her petition for custody, and directed that John be placed in permanent foster care.

During this four year period John remained in foster care and had visitations with his mother. The father voluntarily surrendered his parental rights under an entrustment agreement dated November 5, 1982, and consequently his rights were not involved in the proceedings below and are not involved in this appeal. There is no appeal from the denial of the petition to terminate the parental rights of Mrs. Martin.

Factual Background

At the hearing in the circuit court various caseworkers and mental health professionals, in addition to Mrs. Martin, were called as witnesses. The record reveals that Mrs. Martin had three children by her marriage to Mr. Martin. A fifteen year old son is in the custody of his father and an older daughter is in the custody of Mrs. Martin's brother. Mrs. Martin has little, if any, contact with these children. At the time of the abuse of John by his father in May 1981, Mrs. Martin had gone to Baltimore, Maryland for medical treatment. The precise reason for this trip is unclear from the record. Mrs. Martin testified that she had bronchitis and allergies and that she was treated in the emergency room of a hospital in Baltimore for this condition. She had been taking medication for "nerves" but had discontinued taking the medication. The children had been left in the care of the father's sister, who subsequently relinquished custody of John to his father. Upon learning of the abuse of John, Mrs. Martin returned but has not regained custody of him. Throughout these proceedings Mrs. Martin has remained separated from her husband though not divorced from him.

It is clear from the record that Mrs. Martin has never physically abused John. There is an emotional tie between the two. Pursuant to the first foster care plan, Mrs. Martin, according to her caseworker, for several years, until April 1984, made reasonable progress in establishing a stable home, attending parenting classes and providing care for John during home visitations. At that time John was concerned about alleged arguments between his mother and her boyfriend, that he had to do household chores, and that his mother had placed him inside garbage dumpsters to locate junk. This evidence was admitted by the trial court to establish the reasons the appellee changed the foster care plan goal to adoption rather than return of custody to Mrs. Martin. Mrs. Martin explained that John was in no danger during arguments with her boyfriend, that she considered household chores to be beneficial training, and that she often sold junk for extra income. Her regular income consisted of a monthly social security disability check and food stamps. We do not find that any of these matters were the basis of the trial court's denial of her petition for custody. Furthermore, the issue of their admissibility into evidence is not before us.

The crucial evidence came from the mental health professionals. It is undisputed that Mrs. Martin is mildly to moderately mentally retarded. Her therapist, Gloria Culley, testified that Mrs. Martin could function as a parent but would need supervision and assistance under stressful circumstances. Dr. Ashby, a psychiatrist, testified that Mrs. Martin "does not have the necessary capability to assume responsibility for the custody and care of her son at the present time and likely as not in the foreseeable future." At the direction of the trial judge, Mrs. Martin and John were seen for evaluation by Dr. Frazier, a child psychiatrist. Dr. Frazier testified that John "should not be considered retarded but should be considered a child who is on the low side of average but who needs help with verbal skills." He further testified that "a socially and intellectually stimulating program or environment" would help to improve verbal and arithmetic skills. Dr. Frazier further testified that Mrs. Martin needs "support in parent managing, assertive discipline and to be instructed in the various needs of the different levels of development as he grows," and for that "I think she needs help in managing him and that should continue throughout his life as a child until he becomes an adult." Dr. Frazier testified, however, that severing the maternal relationship would be detrimental to John, but that he should remain in foster care.

Mrs. Martin, in her brief, asserts that there are three issues presented to us in her appeal:

1. In a child custody proceeding involving the natural mother and the local welfare department (DSS), may the court permanently deprive the mother of custody without clear and convincing evidence of her unfitness as a parent?

2. In a child custody proceeding involving the natural mother and DSS, may the court permanently deprive the mother of custody based solely upon the fact that she is mildly mentally retarded without any evidence that she has abused or neglected the child or has been incapable of caring for the child due to such retardation?

3. Is the court's finding in this case that the natural mother was incapable of assuming physical and legal custody of her son supported by substantial evidence on the record?

We first consider Mrs. Martin's contention that the trial court's finding that she was incapable of assuming physical and legal custody of John is not supported by substantial evidence. We review the record to determine whether there is clear and convincing evidence to support the determination of the trial court. Under familiar principles we view that evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Simmons v. Simmons, 1 Va.App. 358, 361, 339 S.E.2d 198, 199 (1986).

It is well settled that in custody cases involving a controversy between parent and...