COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Cha fin and Senior Judge Haley

JACOB BRANCH MEMORANDUM OPINION * v. Record No. 0211- 18-2 PER CURIAM JULY 24, 2018 RICHMOND CITY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Bradley B. Cavedo, Judge (Richard H. Lippson, on brief), for appellant. (Matthew R. Morris, A ssistant City Attorney; Donald Richardso n, Guardian ad litemfor the minor child, on brief), for appellee.

Jacob Branch (father) appeals an order terminating his parenta l rights to his child. Father argues that (1) the circuit cour t’s decision was “clearly erron eous” because “it did not receive sufficient evidence of [the Rich mond City Department of Social Services’ (the Department)] compliance with its affirmative duty to investigate . . . [fath er’s] relatives” and find that the Department “had met its affirmat ive statutory obligation to inv estigate [father’s] potential relative placements prior to recommending adoption and termination of th e residual parental rights of [father];” and (2) the circuit c ourt erred by finding that ther e was clear and convin cing evidence to terminate his parental rights pur suant to Code § 16.1-283(C)(2) . Upon reviewing the record and briefs of the parties, we concl ude that this appeal is without merit. Accordingly, we summarily affirm the decision of the cir cuit court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND “On appeal, ‘we view the evide nce and all reason able inference s in the light most favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S. E.2d 16, 18 (1991)). Father and Toesheba Barksdale (mother) are the biological pare nts of the child who is the subject of this appeal. Fathe r was forty-six years old, and mo ther was sixteen years old when she became pregnant with the child. In September 2014, the child, who was six years old at the tim e, lived with mother. The Department received a child prot ective services c omplaint alleg ing domestic violence in the home and substance abuse by mother. The Department interviewed the child, who confirmed that mother and her boyfriend, Andr e Madison, had been fighting on September 4, 2014, and did not stop until the child stepped i n between them. The Departme nt also asked the child about her father, but the child referred t o Madison as her father. When asked if the child “had any other dads,” the child responded no. The Department spoke with mothe r about father, and mother reported that father only saw th e child twice per year. Subsequently, the Department spoke with father, who indicated that he had be en involved in the child’s life but had not spoken with mother in more than a year. He repor ted that he did not see the child regularly because he could not communicate with mother; instea d, he would ask the maternal gra ndmother about the child. He never filed a petition seeki ng visitation with the child. In November 2014, mother gave bir th to a baby, who tested posi tive for heroin, cocaine, and methadone. 1 Although she initially denied us ing drugs, mother later admit ted that she used

1 Madison is the biological fath er to the baby. Since father is not the biological parent to the baby and the baby is not the s ubject of this appeal, we wil l not discuss the baby herein.- 3 - cocaine and heroin within seve n days of the baby’s birth. The Department also learned that the child had not been seen by a docto r for a well check-up in two years and had missed two medical appointments in 2014. Because of the recent domestic violence incident, mother’s “lack of attention to [the child’s] h ealthcare and needs,” and the baby’ s positive tests for cocaine, heroin, and methadone, the Department removed the child from mother’s c are on November 14, 2014. The Department investigated sev eral relatives, including the m aternal grandmother and a maternal great aunt, as possible placement options for the chil d. The Department investigated the maternal grandmother as a possible relative placement, but she was an ineligible placement because of a prior barrier crim e. The Department could not loc ate the maternal great aunt. When the Department asked fathe r if he was willing to take the child in order to avoid foster care, father reported tha t “he was unable to take [the c hild] because of his living situation.” Father lived with another pers on, and father was not on the lea se for that apartment. The guardian ad litem discussed with father the a ppropriateness of his housing, but father continued to live there “for a while.” F ather reported that he did not w ant to “get a larger place” unless he knew that the Department was going to place the child with him. The Department explained that “that’s not how things work. If he wanted custody of his daugh ter, he would have needed to put forth that effort to get a larger place that could accommodate her so that that home could be evaluated . . . .” While the child was in foster care, the Department offered vis itation to father, and he regularly participated in visits with the child. The social wo rker testified that “the visits went well.” The City of Richmond Juvenile and Domestic Relations District Court (the JDR court) ordered father to participate i n parenting classes at Stop Chil d Abuse Now (SCAN). Initially, he was compliant. However, on A ugust 5, 2015, the County of Henri co Circuit Court found father- 4 - guilty of assault and battery of a family or household member f or an incident that occurred on November 20, 2014, and sentenced him to twelve months in jail. 2 Then, on September 17, 2015, the County of Chesterfield Cir cuit Court found f ather guilty of creating an unlawful image and disseminating a photograph to harass , with an offense date of F ebruary 4, 2015, and sentenced him to a total of twenty-four m onths in jail, with eighteen mon ths suspended. 3 As a result of his incarceration, father did not finish his parenting classes, and even after he was released from jail, he did not complete the parenting classes. On September 29, 2015, the Departme nt filed a petition to term inate father’s parental rights. On November 24, 2015, the JDR court terminated father’ s parental rights. 4 Father appealed to the c ircuit court. For the first time, on the same day as the termination hearing in the JDR court, father provided the Department with the names of his mother and his co usin as possible relative placements. The Department spoke with father’s cousin, who liv ed in Connecticut. Father’s cousin had never met or had any c ontact with the child. His co usin did not become involved in the matter. In March 2016, several weeks afte r he was released from jail, father contacted the Department about visiting the child. When asked why he had not contacted them sooner, he explained that he was tryi ng to obtain employment and housing. He visited with the child on March 8, 2016, which was his fi rst visit since July 2015.

2 The County of Henrico CircuitCourt found father not guilty of a charge of strangulation.

3 The sentences ran concurrently.

4 The JDR court also terminated m other’s parental rights, and sh e appealed to the circuit court.- 5 - On March 21, 2016 and November 21, 2017, the parties appeared before the circuit

court. 5 The Department presented evide nce that the child was doing we ll in foster care and excelling in school. When the child entered foster care, she w as behind in school, but she received tutoring and was on grade level at the time of the cir cuit court hearing. The child is in a possible adoptive placement. At the conclusion of the Department’s evidence, mother made a motion to strike and argued that the Department did not investigate all possible rel atives. The circuit court denied mother’s motion. Father joined in mother’s motion to strike an d also argued that the Department did not “provide[] a sufficient ba sis for terminating his paren tal rights.” The circuit court denied father’s motion. Father testified that he alway s had wanted custody of the chil d, but he admitted that he never filed for custody of the child. He denied telling the De partment that he was unwilling to have the child live with him a t the time of the removal. In March 2016, he moved in with his adult daughter for approximat ely seven or eight months. Then, for the two to three months prior to the circuit court hearing, father had lived in a private hou se, with a tenant living below him. Father explained that he receiv ed disability, which paid the re nt, and he did freelance photography work. When asked why he did not disclose any relatives as possible pl acements until the termination hearing in the JDR court, father testified, “I justcame in here to do the right thing and try to take control of my c hild, and I didn’t really want t o put nobody else into my family life or social life or however you wan t to put it.” His cousin visi ted him while he was incarcerated

5 Only the Department pres ented its case on March 21, 2016, and the case was continued to another date to allow the pa rents to present their cases. T he delay in the hearings occurred because of issues regarding mother’s counsel. The parents pres ented their cases on November 21, 2017.- 6 - and told father that he would be w illing to care for the child. Father told his cousin that he had “been trying to do this all by [hi mself].” Father testified th at he was separated from his wife, and although she offered to come to the hearing with him, he refuse d and explained, “The same thing I have been saying earlier, I don’ t really want nobody else inv olved in this. . . . I don’t want to go no further than this. I just want to keep it with me.” Father indicated that he visite d with the child as often as he was allowed, and after the termination hearing in the JDR court, he was allowed to visit o nce per month. However, he recently missed two of the mont hly visitations because he was c aring for his mother, who had Stage 3 cancer. 6
At the conclusion of all of the e vidence, mother renewed her mo tion to strike and argued that the Department had not inve stigated all of the possible re lative placements. Father joined in with mother’s arguments regarding relative placements and also argued that the Department had not presented clear and convincing e vidence to terminate his pa rental rights. After hearing all of the arguments, the circuit court took the matter under adviseme nt, and on January 10, 2018, issued a memorandum opinion and o rder. The circuit court termi nated father’s parental rights pursuant to Code § 16.1-283(C)(2). 7 This appeal followed.
ANALYSIS Relative placement Father argues that the circuit court’s decision was “clearly e rroneous” because the Department did not comply with its duty to investigate father’s relatives as pot ential relative placements. Before terminating a parent’s rights, “the court s hall give a consideration to granting custody to relatives of t he child, including grandpare nts.” Code § 16.1-283(A). “This

6 In his opening brief, father repo rted that his mother has sinc e passed away.

7 The circuit court terminated mother’s parental rights pursuant to Code § 16.1-283(B).- 7 - Court has held that this provi sion obligates [the Department] ‘ to produce sufficient evidence so that the court may properly determin e whether there are relativ es willing and suitable to take custody of the child, and to consid er such relatives in compari son to other placement options.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 54 7, 567, 811 S.E.2d 835, 845 (2018) (quoting Brown v. Spotsylvan ia Dep’t of Soc. Servs., 43 Va. App. 205, 217, 597 S.E.2d 214, 220 (2004)). In its memorandum opinion and order, the circuit court reviewe d the Department’s investigation of the child’s mat ernal grandmother and maternal great aunt, as well as the baby’s paternal grandmother. The circu it court concluded that the Dep artment “met its burden to investigate reasonable alternatives to termination as mandated by Va. Code § 16.1-283(A).” The circuit court further found tha t “[a]fter due consideration of these alternative placements, . . . none of the alternative placements presented provide a home for [the child] conducive to effective childrearing.” Although mother addressed father’ s relatives in her motion to strike and renewed motion to strike, and father incorpor ated mother’s arguments into his own, the circuit court never addressed the Department’s inv estigation of father’s relatives. “Because the record does not show that the trial court rule d on appellant’s argument, there is no ruling of the trial court for this Court to review on appeal.” Duva v. Duva, 55 Va. App. 286, 299 , 685 S.E.2d 842, 849 (2009); see also Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E. 2d 886, 890 (1993). Accordingly, this C ourt will not address father’s first assignm ent of error. Termination of parental rights Father argues that the circu it court erred by terminating his parental rights pursuant to Code § 16.1-283(C)(2), which states that a circuit court may te rminate parental rights if: The parent or parents, wit hout good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 months- 8 - from the date the child was placed in foster care to remedy substantially the condi tions which led to or required continuat ion of the child’s foster care p lacement, notwithstanding the reasonable and appropriate efforts of social, medical, mental h ealth or other rehabilitative agencies to such end. “Where, as here, the court hears the evidence ore tenus , its finding is en titled to great weight and will not be disturbe d on appeal unless plainly wrong or without evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. Ap p. 185, 190, 717 S.E.2d 811, 814 (2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs ., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). “When considering ter mination of parental righ ts, ‘the paramount consideration of a trial court is th e child’s best interests.’” Id. (quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)). Father asserts that he was comp liant with the Department’s req uirements. He contends that he maintained contact with t he Department and attended mee tings and hearings. He enrolled in parenting classes, but admitted that he did not complete the m because he was incarcerated. He argues that his incar ceration was relatively short, from August 2015 until February 2016, and should not affect the fact that he wanted custody of the child. He further asserts that he regularly visited with the child. 8 He also contends that he had s uitable housing and sufficient financial means to meet the child’s needs.

8 The circuit court erroneously s tated in its memorandum opinionand order that father visited the child only once after he was released from incarcer ation. We find that this is harmless error, especially considering a ll of the other evidence support ing the circuit court’s ruling. An appellate court “will not reverse a trial court for evidentiary errors that were harmless to the ultimate result.” Carter v. Commonwealth , 293 Va. 537, 5 44, 800 S.E.2d 498, 502 (2017) (quoting Shifflett v. Commonwealth, 289 Va . 10, 12, 766 S.E.2d 906, 908 (2015)). “In Virginia, non-constitutional error is harmless ‘[w]hen it plai nly appears from the record an d the evidence given at the trial that the parties have had a fair tri al on the merits and substantial justice has been re ached.’” Andrews v. Creacey, 56 Va. App. 6 06, 625, 696 S.E.2d 218, 227 (2010) (quot ing Code § 8.01-678). An error may be found harmless when “overwhelming exp ert and other evide nce support[s] the court’s ultimate holding.” Jenkins v. W inchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185-86, 409 S.E.2d 16, 21 (1991).- 9 - “[S]ubsection C termination d ecisions hinge not so much on the magnitude of the problem that created the origi nal danger to the child, but on t he demonstrated failure of the parent to make reasonable changes.” Toms v. Hanover Dep’t of S oc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005). “Considerab ly more ‘retrospec tive in nature,’ subsection C requires the court t o determine whether the parent has been unw illing or unable to remedy the problems during the period in whichhe has been offered rehabil itation services.” Id. (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. Ap p. 556, 562-63, 580 S.E.2d 463, 466 (2003)). The circuit court held that te rmination of father’s parental r ights was in the best interests of the child and that father “fa iled to remedy substantially th e conditions leading to, or requiring the continuation of, foster care.” The circuit court expressed concern about father’s history with mother and “the various allegatio ns arising out of their relati onship.” The circuit court noted that father was forty-six years old a nd that mother was sixteen year s old when she became pregnant with the child. The circuit court further held t hat at the time of the removal , father reported that he could not take custody of the child due to choices he had made about his living situation. The circuit court acknowledged that father “ recently improved his living si tuation,” but was c oncerned about “the stability of this situation.” At the time of the circuit court hearing, father had lived in his current apartment for only two or three months. The circuit co urt also was concerned about father’s “varied monthly income.” In addition, the circuit court c onsidered father’s recent inca rceration and his suspended sentences. Father was convicte d of assault and battery of a fa mily or household member, who was identified as his estrange d wife. He also was convicted of creating an unlawful image and disseminating a photo to harass. Des pite the fact that the par ties “offered little factual- 10 - background” regarding the charges , the circuit court recognized that father was incarcerated for months while the child was in f oster care and when the Departme nt filed its petition to terminate his parental rights. Once he w as released from jail, father fa iled to complete the Department’s requirements, including the pare nting classes. T he circuit cou rt held that from the time of the termination hearing in the JDR c ourt to the time of final heari ng in the circuit court, father “was allowed almost two years to corre ct the conditions leading to [ the child’s] removal,” but he failed to do so. Meanwhile, the child was doing very well in foster care and wa s in an adoptive placement. At the time of the circuit court hearing, the child had been in foster care for almost three years. “It is clearly not in the bes t interests of a chi ld to spend a lengthy period of time waiting to find out when, or even i f, a parent will be capable of resuming his [or her] responsibilities.” T ackett v. Arlington Cty. Dep’t of Human Se rvs., 62 Va. App. 296, 322, 746 S.E.2d 509, 522 (2013) (quoting Kayw ood v. Halifax Cty. Dep’t o f Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)). Based on the totality of the cir cumstances, the circuit court did not err in terminating father’s parental rights pu rsuant to Code § 16.1-283(C)(2).
CONCLUSION For the foregoing reasons, the circuit court’s ruling is summar ily affirmed. Rule 5A:27. Affirmed.