COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, AtLe e and Senior Judge Clements

TIMOTHY ALLEN GUILL MEMORANDUM OPINION * v. Record No. 1028-15-3 PER CURIAM DECEMBER 8, 2015 CAMPBELL COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge (Grady W. Donaldson, Jr.; Sche nkel & Donaldson, P.C., on brief), for appellant. (David W. Shreve, County Attorn ey; Mark T. Stewart, Guardian ad litem for the minor child, on brief), for appellee.

On June 22, 2015, the trial c ourt terminated the residual pare ntal rights of Timothy Allen Guill (appellant) to his daughter, L.G., pursuant to Code § 16.1-283(B) and (C)( 2). On appeal of this decision, appellant challenges the sufficiency of the evidence to support the termination. Upon reviewing the record and briefs of the parties, we conclude this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27. On appeal, we view the evidence in the “‘ light most favorable’ to the prevailing party in the circuit court and grant to that party the benefit of ‘all reasonable infere nces fairly deducible therefrom.’” Toms v. Hanover De p’t of Soc. Servs., 46 Va. App. 257, 262, 616 S. E.2d 765, 767 (2005) (quoting Logan v. Fairfa x Cty. Dep’t of Human Dev., 13 Va. App. 123, 12 8, 409 S.E.2d 460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the circuit court “thoroughly weighed all the evidence, considered the statut ory requirements, and made its

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - determination based on the child’s best interests.” Id. at 265-66, 616 S.E.2d at 769 (quoting Fields v. Dinwiddie Cty. Dep’t of Soc. Serv s., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “The trial court’s judgment, ‘when based on evidence heard or e tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.’” Id. at 266, 616 S.E.2d at 769 (q uoting Logan, 13 Va. App. at 128, 40 9 S.E.2d at 463 (citation omitted)). “In its capacity as factfi nder, therefore, the circuit court retains ‘broad discretion in making the decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 32 8, 387 S.E.2d 794, 795 (1990)). On February 9, 2014, L.G. was born to Dawn Mi lls and appellant. 1 Following incidents on February 20, March 9, and Marc h 24, 2014, the police were call ed to the resi dence Mills and appellant shared with L.G. and Mills’ two other children. The incidents involved domestic violence and Mills’ use of alcohol and drugs. With the assistance of the Campbell County Department of Social Services (CCDSS), family safety plan s were developed and im plemented for Mills, appellant, and the childre n. However, because of Mills’ contin ued misuse of alco hol and drugs and continued domestic violence in the home, L.G. was placed in fo ster care on April 15, 2014. Dawn Wilson, the CCDSS social worker assigned to the matter, met w ith appellant on April 17, 2014. They discussed the foster care progra m and reunification process. Wilson advised that appellant and Mills should obtain couples’ counseli ng and parenting classes. Appellant agreed to obtain a psychological evaluation. They discussed appellant’s employment a nd his lack of reliable transportation. Appellant had not been taking hi s medication for manic depr ession and anxiety for several years. At the meeting, appellant tested positively for benz odiazepines. Appellant said he took both Percocet and hydrocodone. Wilson advised that before appellant could have visitation

1 Mills’ residual parental rights to L.G. were terminat ed voluntarily on February 27, 2015.- 3 - with L.G. he would have to test negatively for all medications for which he had no valid prescription. Appellant dismissed Wilson’s suggestio n that he had a problem with alcohol, stating that he could consume twenty beers and not be affected. At a Family Assessment and Planning Team meeting on May 7, 2014, appe llant tested positively for benzodiazepines, so he was ineligible for visitation with L.G. At that meeting, appellant was advised that Brandy Stinnett would pr ovide services to him a nd Mills to educate them regarding substance abuse, parenting, and domestic viol ence. Stinnett also would assist with supervised visitation with L.G. an d would provide appellant with tr ansportation. Appellant agreed to the plan. On May 12, 2014, appellant again tested positively for be nzodiazepines, rendering him ineligible for visi tation with L.G. On May 23, 2014, appellant passed a drug sc reening and had a one-h our supervised visit with L.G. 2 Mills also was present at th e visit. Appellant’s interac tion with L.G. was appropriate during the visit. Appell ant did not appear for a scheduled vi sitation with L.G. on May 30, 2014. Appellant was arrested on Ju ne 2, 2014, but was later rele ased on bond. At that time, appellant told Wilson that he did not want to have visitation with L. G. until his paternity, which had been questioned, was established. Following an altercation with Mills on June 26, 2014, appella nt was arrested for malicious wounding. He remained incarcerat ed thereafter. He wa s sentenced on February 25, 2015 to fifteen years with eight years suspended.

2 The May 23, 2014 visit would be appellant’s on ly contact with L.G. after her removal from the home and before appellant’s termina tion hearing in the tria l court on April 21, 2015.- 4 - On August 25, 2014, prior to appellant’s sentencing on the malicious wo unding conviction, a protective order was entered prohibiting appellant from having contact with Mills or L.G. The duration of the protective order was two years. At the time of appell ant’s termination hearin g on April 21, 2015, L.G. had remained with the same foster family since her removal from th e care of appellant and Mills. She was happy and thriving in the care of th e foster family. The fam ily wanted to adopt her. Testifying in his own behalf, appellant said that he loved hi s daughter and did not want her to be adopted. He acknow ledged that he would be incarcerated for the fo reseeable future and had no current means of prov iding a home for L.G. A termination of parental rights under Code § 16.1-283(C)(2) require s clear and convincing evidence that termination is in the best interests of the child and that the parent, without good cause, ha[s] been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditions which led or required co ntinuation of the child’s foster care placement, notwithstanding th e reasonable and appropriate efforts of . . . rehabilitativ e agencies to such end. In addition, [p]roof that the parent . . . , without good cause, ha[s] failed or been unable to make substantial progress towards elimination of the conditions which led to or requ ired continuation of the child’s foster care placement in accordan ce with their obligations under and within the time limits or goals set forth in a foster care plan . . . shall constitute prima facie evidence of th is condition. Id. In determining what is in the best in terests of a child, this Court has stated: a court must evaluate and consider many factors, including the age and physical and mental condition of the child or children; the age and physical and mental condition of the parents; the relationship existing between each parent and each child; the needs of the child or children; the role which each parent has played, and will play in the future, in the upbringing and care of the child or children; and- 5 - such other factors as are necessary in determining the best interests of the child or children. Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986). Appellant maintains that his incarceration at the time of the termination hearing did not provide a basis for termination of his parental ri ghts. However, appellant’s incarceration was “a valid and proper circumstance which, when co mbined with other evidence concerning the parent/child relationship, can s upport [the] court’s finding that the best interests of the child will be served by termination.” Ferguson v. Sta fford Cty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). Clear and convincing evidence proved the f actors required for termination under Code § 16.1-283(C)(2), including that termination was in the best interests of L.G. An unstable home environment led to L.G.’s removal from the hom e in April 2014, when the child was two months old. During the year thereafter, while L.G. was in foster care, appellant had only one visit with her. Appellant could not have visitation with L.G. due to either his continued drug use or conduct that resulted in his incarceration. At the time of the termin ation hearing, L.G. was thriving in her foster home, which was a potential adoptive placement for her. Appellant faced years of incarceration, and had no ability to provide a home for L.G. in the foreseeable future. We recognize that “[t]he term ination of [residual] parental rights is a grave, drastic and irreversible action.” Helen W. v. Fairfax Cty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t is clear ly not in the best in terests 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 responsibilities.” Kaywood v. Halif ax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).- 6 - Considering all the facts and circumstances , there was clear and convincing evidence to prove the factors required for te rmination of appellant’s parent al rights pursuant to Code § 16.1-283(C)(2). In light of th is conclusion, we need not cons ider whether the evidence was sufficient to support termination under Code § 16.1-283(B). See Fields, 46 Va. App. at 8, 614 S.E.2d at 659. We summarily affirm the decisi on of the trial court. See Rule 5A:27. Affirmed.