COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

ROANOKE CITY DEPARTMENT 

 OF SOCIAL SERVICES 

 OPINION BY 

v. Record No. 1157-00-3 JUDGE ROBERT P. FRANK 

 APRIL 24, 2001 

FLOYD ALLEN HEIDE, II 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Robert P. Doherty, Jr., Judge 

 Allen T. Wilson, Assistant City Attorney 

(William M. Hackworth, City Attorney, on 

brief), for appellant. 

 John H. Kennett, Jr., for appellee. 

 Roanoke City Department of Social Services (DSS) appeals the 

decision of the trial court denying DSS's petition to terminate 

the residual parental rights of Floyd Allen Heide, II, (father). 

Finding no error, we affirm the trial court's decision. 

I. BACKGROUND 

 On January 11, 1999, the Juvenile and Domestic Relations 

District Court for the City of Roanoke (JDR court) approved the 

foster care plans requesting a change of goal to adoption for 

Kescha Lynn Heide and Floyd Allen Heide, III. On January 19, 

1999, DSS filed petitions, pursuant to Code § 16.1-283(C)(2), 

with the JDR court requesting the termination of the residual 

parental rights of father to Kescha Lynn Heide and Floyd Allen 

Heide, III. 
 On October 22, 1999, the JDR court denied the petitions 

filed by DSS. DSS timely appealed the JDR court's decision to 

the Circuit Court for the City of Roanoke (trial court). On 

February 1, 2000, the parties presented evidence and the trial 

court denied the termination petitions, stating: 

 Had this case got into Court the next 

month after the J & D Court decision, then 

every single thing that the Department of 

Social Services has presented would be just 

as clear as could be, and terminating 

parental rights would be done just about as 

fast as I could find a rubber stamp to do it, 

but during that delay for some particular 

reason, I don't know what it is, the father 

has made enough changes to pull himself up 

above that level. . . . 

 From what I have heard thus far, I am 

just plain not willing to cut off all 

parental rights. Six months or a year ago, I 

would have done it in a flash, but the delay 

it took to get this thing up and the way he 

has pulled himself up, I am not willing to do 

it. 

 In its order entered May 5, 2000, the trial court found: 

 Further, based only on the evidence 

presented by DSS, and excluding all 

consideration of the limited testimony of the 

children's father, the Court found that DSS 

had not born [sic] its burden of proof by 

clear and convincing evidence that 

termination of the father's parental rights 

were in the best interest of the children, or 

that the father had failed to communicate or 

visit with the children, or that the father 

had failed to meet the goals that were set 

for him by stopping his consumption of 

alcohol, by failing to get steady full time 

employment, by failing to pay his bills, by 

failing to complete parenting classes or by 

failing to establish an appropriate, clean 

and stable home environment in which to raise 

the children. The failure of this evidence 

was that it ended with respect to the 

father's situation in January, 1999. That 

was 13 months prior to the de novo hearing on 

the petitions to terminate the parental 

rights of the father. There was no evidence 

 - 2 - 
as to whether the father had substantially 

remedied the conditions which led to the 

foster care placement of the children since 

January, 1999. The Court was not presented 

with any evidence that it was in the best 

interest of the children to terminate their 

parental rights at the time of the de novo

hearing. Evidence was not presented to 

overcome the presumption that the best 

interests of the children would be served by 

not separating them permanently from their 

natural parents. 

 DSS first became involved with Kescha Lynn Heide in February 

1996, when Katye Hale, a DSS prevention services worker, received 

a services referral from a local hospital. The hospital was 

concerned about the parental abilities of Kescha's parents, 

father and Tammy Lynn Cook. From the beginning, Hale's concerns 

were to educate the parents to improve their parenting skills, 

improve the family's housing, budget the family's income, and 

address father's reported alcoholism. There also were concerns 

about father's judgment, personal hygiene, general child care 

knowledge, and ability to follow instructions. 

 Over a period of years, DSS referred father to a number of 

alcohol rehabilitation programs. He never completed any of the 

programs. 

 In September 1996, Hale investigated a protective services 

complaint involving a cigarette burn on Kescha's forehead. 

Father and Cook could not explain how the child was burned. It 

was never clear what happened, and the complaint was founded for 

physical neglect. 

 On October 7, 1996, the JDR court held a review hearing and 

placed Kescha in the custody of DSS. Crystal Brake was the 

caseworker when Kescha came into foster care. 

 - 3 - 
 In February 1997, the JDR court returned Kescha to father's 

custody under specific conditions, including his completion of 

substance abuse treatment. On February 15, 1997, Kescha came 

back into foster care through an entrustment agreement signed by 

father. Kescha has remained in foster care since that time. 

 Floyd Allen Heide, III, ("Allen") was born on April 8, 1997. 

Immediately following Allen's birth, DSS filed a request for a 

protective order with the JDR court. The protective order, 

entered on May 1, 1997, stated, in part, that father and Cook 

were to cooperate in the provision of reasonable services or 

programs designed to protect Allen's life, health, and normal 

development. 

 In May 1998, DSS received a complaint stating father had 

been arrested for contributing to the delinquency of a minor in 

association with driving while intoxicated with Allen in his 

vehicle. Allen was removed from his parents' custody at that 

time and placed in foster care in the same home as Kescha. 

 At the time Allen was placed in foster care, father had not 

followed through with the services recommended by DSS. Father 

was minimizing his alcoholism, but on May 20, 1998, when he was 

released from jail, he entered a detox program. He left the 

program on May 24, 1998. The staff at the detox program 

recommended that father enter PCU, an intensive in-patient 

substance abuse treatment program. He entered PCU on August 12, 

1998 and was discharged on September 14, 1998. 

 On September 16, 1998, the JDR court ordered father to 

successfully complete the Oxford House Program. Father told 

Brake he was attending all of his group sessions and living at 

 - 4 - 
Oxford House. On December 29, 1998, father admitted he lied to 

Brake about living at Oxford House, stating that he again was 

residing with Cook. Brake learned that father had been asked to 

leave Oxford House after he continued to drink alcohol. Father's 

case was closed and he was not participating in any counseling. 

His last group counseling session was on November 4, 1998, and 

his last individual counseling session was October 12, 1998. 

Father only participated in five sessions of what was to be a 

twenty-six week program. 

 On January 11, 1999, the foster care plan goal was changed 

to adoption. At the time the goal was changed, father had not 

fully completed the services offered by DSS. Kescha had been in 

foster care for two and one-half years, and Allen had been in 

foster care for eight months. William Bailey, Foster Care 

supervisor for DSS, testified that once the foster care plan goal 

changed to adoption, the focus shifted from family reunification 

to a focus on placement for adoption. However, DSS did provide 

visitation for the parents during this period. 

 Father only became serious about his substance abuse 

treatment after the foster care plan goal was changed to 

adoption. Father returned to individual counseling on January 

18, 1999, and group counseling on February 10, 1999. 

 DSS was aware that following the goal change, father had 

made progress in addressing DSS's concerns. Bailey testified 

that DSS would not consider changing the goal from adoption 

because too much time had passed and the children had bonded with 

their foster parents. 

 - 5 - 
 After the goal change, father completed substance abuse 

counseling at Blue Ridge Community Services. He has worked at 

the Hotel Roanoke for approximately one year and is a "good 

employee." Father invited a social worker to visit and 

investigate his house but DSS declined to do so because it no 

longer provided services to him. Father testified he attends 

three Alcohol Anonymous meetings per week, regularly takes 

antabuse, and has not had a drink since his arrest in May 1998.1

II. ANALYSIS 

 DSS contends the trial court applied the wrong statutory 

standard in requiring it to provide continuing services to father 

after the date the petitions were filed to terminate father's 

parental rights. DSS misreads the trial court's decision. 

 The trial court did not require DSS to provide post-petition 

services. Rather, the trial court found that DSS failed to meet 

its burden of proof to show that father had not remedied the 

conditions that led to foster care placement after the filing of 

the petitions in January 1999.2

 The evidence established that 

 1

 DSS contends, on appeal, that it was not given the 

opportunity to challenge father's "progress" on 

cross-examination because the court abruptly ended the 

proceeding during father's direct examination. Because DSS did 

not object to the court's termination of the proceeding at 

trial, we will not consider that issue on appeal. Rule 5A:18. 

2

 Section 16.1-283(C) states: 

 - 6 - 

The residual parental rights of a 

parent or parents of a child placed in 

foster care as a result of court commitment, 

an entrustment agreement entered into by the 

parent or parents or other voluntary 

relinquishment by the parent or parents may 

be terminated if the court finds, based upon 

clear and convincing evidence, that it is in 
 

the best interests of the child and that: 

1. The parent or parents have, without 

good cause, failed to maintain continuing 

contact with and to provide or substantially 

plan for the future of the child for a 

period of six months after the child's 

placement in foster care notwithstanding the 

reasonable and appropriate efforts of 

social, medical, mental health or other 

rehabilitative agencies to communicate with 

the parent or parents and to strengthen the 

parent-child relationship. Proof that the 

parent or parents have failed without good 

cause to communicate on a continuing and 

planned basis with the child for a period of 

six months shall constitute prima facie 

evidence of this condition; or 

 - 7 - 

2. The parent or parents, without good 

cause, have 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 to or 

required continuation of the child's foster 

care placement, notwithstanding the 

reasonable and appropriate efforts of 

social, medical, mental health or other 

rehabilitative agencies to such end. Proof 

that the parent or parents, without good 

cause, have failed or been unable to make 

substantial progress towards elimination of 

the conditions which led to or required 

continuation of the child's foster care 

placement in accordance with their 

obligations under and within the time limits 

or goals set forth in a foster care plan 

filed with the court or any other plan 

jointly designed and agreed to by the parent 

or parents and a public or private social, 

medical, mental health or other 

rehabilitative agency shall constitute prima 

facie evidence of this condition. The court 

shall take into consideration the prior 

efforts of such agencies to rehabilitate the 

parent or parents prior to the placement of 

the child in foster care. 
father completed substance abuse treatment and maintained steady 

employment. The trial court found that "[t]he court was not 

presented with any evidence that it was in the best interests of 

the children to terminate their parental rights at the time of 

the de novo hearing." 

 Consistent with its first contention, DSS further contends 

that under Code § 16.1-283(C), father had a finite period of time 

to "make substantial progress towards elimination of the 

conditions which led to . . . the child's foster care placement 

in accordance with their obligations under and within the time 

limits or goals set forth in a foster care plan filed with the 

court . . . ." Code § 16.1-283(C)(2). DSS argues that under 

Code § 16.1-283(C)(2), the parent has 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 . . . ." Essentially, DSS argues that the statute 

mandates a twelve month cut-off beyond which a parent's efforts 

to remedy the conditions are not relevant. We disagree. 

 Code § 16.1-283(C) speaks in the conjunctive. The court 

must find, upon clear and convincing evidence, (1) that 

termination is in the best interests of the child and (2) that 

[t]he parent or parents, without good cause, 

have 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 to or required 

continuation of the child's foster care 

placement, notwithstanding the reasonable and 

appropriate efforts of social, medical, 

mental health or other rehabilitative 

agencies to such end. . . . 

 - 8 - 
Code § 16.1-283(C). 

 DSS's argument only focuses on the second prong of Code 

§ 16.1-263(C). 

 Here, the trial court found that DSS had not borne its 

burden to prove that termination was in the children's best 

interests at the time of the de novo hearing. The trial court 

found that father had "pulled himself up." We find the evidence 

supports the trial court's findings. 

 "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.'" 

Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 

128, 409 S.E.2d 460, 463 (1991) (citations omitted). Where the 

trial court hears the evidence ore tenus, its decision is 

entitled to great weight and will not be disturbed on appeal 

unless plainly wrong or without evidence to support it. See Lowe 

v. Dep't of Pub. Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73 

(1986) (citation omitted). 

 In Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995), 

the trial court found that termination would be in the best 

interests of the child and that the mother had been "'unwilling 

and unable to remedy substantially the conditions which led to 

the foster care placement . . . .'" Id. at 310, 456 S.E.2d at 

540. Nevertheless, the trial court found that the mother's young 

age, fourteen, constituted "good cause" under the statute and 

denied termination. Id. at 310-11, 456 S.E.2d at 540. In 

reviewing the decision of the trial court, we held: 

 - 9 - 
 The statute clearly contemplates that 

efforts to resolve the "conditions" relevant 

to termination are constrained by time. Code 

§ 16.1-283(C)(2). Absent "good cause," a 

parent or parents receiving the "reasonable 

and appropriate" services of "rehabilitative 

agencies" must "remedy substantially" the 

"conditions which led to . . . foster care" 

of the child in a "reasonable period not to 

exceed twelve months." Id. This provision 

protects the family unit and attendant rights 

of both parents and child, while assuring 

resolution of the parent/child relationship 

without interminable delay. "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 . . . responsibilities." Kaywood[v. 

Halifax County Dep't of Social Servs.], 10 

Va. App. [535,] 540, 394 S.E.2d [492,] 495 

[(1990)]. 

 Here, the record clearly supports the 

trial court's determination that (1) 

termination was in [the child's] best 

interests, and (2) that mother had been 

either unwilling or unable to remedy those 

conditions which led to [the child's] 

placement in foster care within twelve 

months, notwithstanding the significant 

efforts of DSS. Accordingly, these 

requirements of Code § 16.1-283(C) 

indispensable to termination of a mother's 

parental rights were satisfied. 

Nevertheless, the court declined to terminate 

because mother's "age" provided "good 

cause" . . . . 

Id. at 312, 456 S.E.2d at 540-41. 

 In Lecky, the issue on appeal was not the best interests of 

the child; rather we only addressed the time constraints 

contained in Code § 16.1-283(C). 

 In this case, DSS's construction of the statute would deny 

the fact finder the opportunity to evaluate the present best 

interests of the child. The trial court may discount the 

parent's current "progress" if the best interests of the child 

would be served by termination. However, as in the instant case, 

 - 10 - 
the trial court may determine that a parent's delayed, but 

nonetheless substantial, progress may overcome the time delay. 

We will not deprive the trial court of the opportunity to weigh 

the rights of the parents and the best interests of the child. 

 "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, 13 Va. App. at 128, 409 S.E.2d at 463 (citing Toombs v. 

Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405, 

407-08 (1982); Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 

794, 796 (1990)). "Code § 16.1-283 embodies '[t]he statutory 

scheme for the . . . termination of residual parental rights in 

this Commonwealth.'" Lecky, 20 Va. App. at 311, 456 S.E.2d at 

540 (quoting Rader v. Montgomery County Dep't of Social Servs., 5 

Va. App. 523, 526, 365 S.E.2d 234, 235 (1988)). "'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.'" Logan, 13 Va. App. at 128, 409 S.E.2d 

at 463 (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795). 

"The trial court's judgment, 'when based on evidence heard ore

tenus, will not be disturbed on appeal unless plainly wrong or 

without evidence to support it.'" Id. (quoting Peple v. Peple, 5 

Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). 

 As we stated in Lecky, "'[i]t 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 . . . responsibilities.'" Lecky, 20 Va. App. at 312, 

456 S.E.2d at 540 (quoting Kaywood, 10 Va. App. at 540, 394 

 - 11 - 
S.E.2d at 495). However, under the facts of this case, when the 

trial court heard the evidence and determined it would not be in 

the best interests of the children to terminate father's residual 

parental rights, we cannot say the trial court abused its 

discretion. Therefore, for these reasons, we affirm the decision 

of the trial court. 

Affirmed.

 - 12 -