COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and O’Brien

EUGENE JEFFREY McNEIL MEMORANDUM OPINION * v. Record No. 0504- 19-3 PER CURIAM AUGUST 20, 2019 CITY OF ROANOKE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge (Phillip R. Lingafelt; Glenn, Feldmann, Da rby & Goodlatte, on brief), for appellant. Appellant submitting on brief. (Daniel J. Callaghan, City Att orney; Heather P. Ferguson, Ass istant City Attorney; Sarah J ane Newton, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Eugene Jeffrey McNeil (father) appeals an order terminating hi s parental rights and approving the foster care goal of adoption. Father argues that the circuit court erred by (1) denying his motion for continuance; (2) f inding that the evidence was s ufficient to termi nate his parental rights and that termination was in the child’s best interests; and (3) finding that the evidence was sufficient to approve the foster care goal and t hat adoption wa s in the child’s best interests. 1 Upon reviewing the recor d and briefs of the part ies, we conclude tha t the circuit court did not err. Accordingly, we affirm the d ecision of the c ircuit court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 In his assignments of error, father argued that the circuit co urt erred by terminating his parental rights under Code § 16.1- 283(B) and (C)(2), but the ci rcuit court terminated his parental rights under Code § 16.1-283(C)(2) only. Accordingly, we will not consider father’s arguments related to Code § 16.1-283(B).UNPUBLISHED- 2 - BACKGROUND 2 “On appeal from the termination of parental rights, this Court is required t o review the evidence in the light most favor able to the party prevailing inthe circuit court.” Yafi v. Stafford Dep’t of Soc. Servs., 69 Va . App. 539, 550-51 (2018) (quoting T hach v. Arlington Cty. Dep’t of Human Servs., 63 Va. App. 157, 168 (2014)). Father is the biological fat her to a child born in 2014. 3 The West Virginia Department of Health and Human Resources obtaine d custody of the child when h e was four months old after the child’s mother was arreste d. Father was incarcerated in No rfolk at the time, but was released in January 2015. In October 2015, the Circuit Court of Hampshi re County, West Virginia entered orders awarding legal and physical custody of the child to father, over the objection of the guardian ad litem at the time. In February 2016, the Franklin Coun ty Department of Social Ser vices received a call that father was allegedly abusing or neglecting the child. The chil d was placed in foster care from February 27 through March 3, 2016, and t he matter was determine d to be unfounded as to physical neglect. On February 29, 2016, father signe d a notarized statement desi gnating his girlfriend, Marlena Lawrence-Harvey as th e child’s “legal caregiver and gua rdian” because he was charged with a criminal offense. Father was incarcerated from May 19, 2016, through August 18, 2016,

2 The record in this case was seal ed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has raised. Evidence and factual findings below that are necessar y to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the seale d record, we unseal only those specific facts , finding them relevant to the decision in this case. The remainder of the previously sealed recor d remains sealed.” Levick v. Mac Dougall, 294 Va. 283, 288 n.1 (2017).

3 The Circuit Court of Hampshire County, West Virginia terminate d the parental rights of the child’s mother in 2015.- 3 - for his conviction of interferi ng with property rights. Then, in August 2016, he was convicted of unauthorized use and credit car d theft and received an active s entence of twenty-eight months. In June 2017, while father was incarcerated, Lawrence-Harvey t ook the child to the pediatrician for a check-up and the medical staff observed mark s and bruises on the child’s legs that appeared to be “switch” mar ks. The child’s growth rate al so had dropped since his last appointment in March 2016 from 64 % to 10%. The doctor contacte d the City of Roanoke Department of Social Services ( the Department). When asked how the child’s injuries occurred, Lawrence-Harvey reported that th e child fell backwards in a pil e of sticks, but then she said that he slid down the steps to her apartment. She also said that th e child had jumped off a bed and landed on top of another child’s dol l house. Lawrence-Harvey b ecame “visibly agitated” when the Department questioned her stor ies about the child’s injurie s. The Department also asked Law rence-Harvey about the child’s po or growth rate. Lawrence-Harvey reported that she had stopped feeding him “junk food” approximately eight months earlier, but also said that she gave him granola, cereal , raisin bran, and goldfish crackers every hour. The child was very hungry while he was at the hosp ital; he ate four bags of crackers and drank two juice boxes and one pint of milk. Due to Lawrence-Harvey’s incons istent statements and the child ’s poor growth rate, the Department decided to remove the child from her care. The Depa rtment contacted father in the jail, and he suggested two possible placements. After the Depa rtment determined that neither placement was a viable option, the Department placed the child in foster care. On June 13, 2017, the City of Roanoke Juvenile and D omestic Relations District Co urt (the JDR court) entered an emergency removal order. On J uly 6, 2017, the JDR court adjudi cated that the child was abused or neglected, and on August 4, 2017, the JDR court entered the dispositional order.- 4 - The Department maintained c ontact with father by visiting him at the jail and corresponding with him and his atto rney. The Department inform ed father that for the child to be returned to his care after hi s release from incarceration, f ather had to obtain stable and appropriate housing, maintain s obriety, comply with random drug screening, complete a substance abuse assessment a nd follow through with all recommen dations, obtain stable employment, comply with all proba tion requirements, not receive any additional criminal charges, complete parenting cla sses, and regularly visit with t he child in a supervised setting. The Department encouraged fathe r to participate in programs at the jail. While incarcerated, father completed a re-entry pr ogram, a fatherhood program, an a nger management program, a substance abuse program, a post-tr aumatic stress disorder class , and a public speaking class. Father was released from incarceration on July 31, 2018. He in itially resided with his sister, but had to move out due t o his felony record and live w ith a friend. F ather secured employment with Workforce Solutio ns and a lawn care service com pany. The Department referred father to Intercept Y outh Services for parenting coach ing sessions. The Department offered weekly supervised visita tions, and father visited with the child three times and missed three visits. When father vi sited, he was appropriate with the child. On September 8, 2018, father was incarcerated agai n for a new criminal charge. In October 2018, the Department filed a petition to terminate f ather’s parenta l rights. On October 30, 2018, the JDR court term inated father’s parental ri ghts to the child and approved the foster care goal of adoption. Father appealed the JDR court’s ruling to the circuit court, an d a hearing was scheduled for February 14, 2019. On February 8, 2019, father filed a mot ion for a continuance. He explained that the hearing for hi s most recent criminal matter was scheduled for April 15, 2019, and he requested that the termin ation hearing in the circuit co urt be continued until after his- 5 - criminal trial. The parties argue d the matter before the circu it court on February 13, 2019, and the circuit court denied the motion for a continuance. On February 14, 2019, the parties ap peared before the circuit c ourt for a de novo hearing on father’s appeal. The Departmen t presented evidence that whe n the child entered foster care, he was “seriously underweight” a nd had “a lot of fears.” The c hild also was delayed in speech and not very socialized. The child had been in the same foster home since the Department removed him in June 2017. He had bonded with his foster m other and foster sister and was doing very well in their home. Since he had entered foste r care, his weight had increas ed and was in the average range. The social worker testified that all of the child’s previous an xieties had disappeared. He attended day care, and his speech had improved “dramatically.” He could count to 100 and excelled at spelling. He also had participated in a dance class and a socc er camp. At the conclusion of the Department’s evidence, appellant made a motion to strike, which the circuit court denied. Fathe r testified that he anticipated being released fro m incarceration on April 15, 2019. He had enrolled wit h a re-entry program that w ould assist him with obtaining housing once he was released, and h e still had his job with the lawn care service company. Father asked the circuit court fo r more time, so that he could care for the child. He explained to the judge that he had planned t o live in Lynchburg, as he did w hen he was released in July 2018, even though all of the resources a nd the child were in the Roan oke area. At the conclusion of all of the e vidence and argument, the cir cuit court held that it was in the child’s best interests to t erminate father’s parental right s under Code § 16.1-283(C)(2). This appeal followed.- 6 - ANALYSIS Continuance Father argues that the circuit court erred when it denied his motion for continuance. “The decision to grant a motion for a c ontinuance is within the soun d discretion of the circuit court and must be considered in view of the circumstances unique to e ach case.” Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007). “The circuit court’s ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice to the movant .” Id.; see also Boatright v . Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 82 (2014). Father contends that if the termination hearing had been schedu led after his criminal hearing, then he would have had mor e time to show that he could have taken care of the child. He also asserts that a continua nce would have provided him with“a legitimate opportunity to keep his family together.” He emphasizes that he had plans for housing and employment, and the child would not have been harmed if the continuance had bee n granted. A similar argument was raise d in Geouge v. Traylor, 68 Va. App. 343 (2017). There, Geouge requested that the adoption proceeding be continued unti l after she was released from incarceration, so that she could “ present herself as a ready pa rent whose efforts at custody would not have been hampered by being incar cerated at the time a deci sion was being made.” Id. at 374. This Court held that the tr ial court did not err in denyi ng her motion to continue the hearing. Id. at 375. We found tha t Geouge had not proven that she was prejudiced by the trial court’s ruling. Id. at 374-75. T o the contrary, Geouge partic ipated in the proceedings and was “ably represented” by counsel. Id. at 374. Geouge’s criminal history and substance abuse issues were factors that the trial court would have considered “whethe r the trial t ook place a month before her release from prison or in the days or months immedia tely after her release.” Id.- 7 - Regardless of whether the heari ng occurred before or after her incarceration, the trial court “would have been required to enga ge in conjecture about what th e future held for Geouge regarding her ability to stay out of prison and parent [her chi ld] given her year s-long history of criminal and substance abuse issues.” Id. at 375. We explaine d that “[n]o one can divine with any assurance the future course of human events. Nevertheless, past actions and relationships over a meaningful period serve a s good indicators of what the f uture may be expected to hold.” Id. (quoting Frye v. Spot te, 4 Va. App. 530, 536 (1987)). Likewise, in this case, father did not prove that he was prejud iced by the circuit court’s ruling denying his continuance requ est. Father was present at and participated in the proceeding. The circuit court’s denial of his motion did not prevent him fr om presenting his case or otherwise “lose the case.” Id. a t 374. As with Geouge , the “circuit cou rt’s ultimate ruling against [him] was the result of its determina tion of the facts of the case an d not the result of t he denial of [his] continuance request.” Id. Fathe r had been incarcerated for mo st of the child’s life, and even if the hearing had not occurred unt il after April 15, 2019, the ci rcuit court still would not have known whether father would have c ontinued to engage in criminal activity or whether he would have been able to stay out of pr ison and care for the child. S ee id. at 375. Because father did not prove that he was prejudiced by t he circuit court’s ruling, we cannot say that the circuit court erred in denying his continuance request. Id. Termination of Parental Rights Father argues that the circuit court erred in finding that ther e was sufficient evidence to terminate his parental right s under Code § 16.1-283(C)(2) and t hat the termination was in the best interests of the child. “On review, ‘[a] trial court is presumed to have thoroughly wei ghed all the evidence, considered the statutory requirements, and made its determinati on based on the child’s best- 8 - interests.’” Castillo v. Loudoun C ty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018) (quoting Logan v. Fairfax Cty. D ep’t of Human Dev., 13 Va. App. 123, 128 (1991)). “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 plai nly wrong or without evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quotin g Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)). Father argues that he was notgiven an opportunity to remedy t he conditions that led to the child’s placement in foster care and that the Department di d not make reasonable and appropriate efforts. Code § 16.1-283(C)(2) states that a court may terminate parent al 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 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. “[S]ubsection C termination deci sions hinge not so much on the magnitude of the problem that created the original danger t o the child, but on the demonstrat ed failure of the parent to make reasonable changes.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271 (2005). Father was incarcerated when the child entered foster care, an d he was incarcerated at the time of the circuit court heari ng. The circuit court held that “[i]t’s his own misconduct that is the hurdle and the road block that’ s kept him from getting out and complying with the very simple standards that the Department [established].” The child had been in and out of fos ter care for years. The ch ild had been placed in foster care in December 2014, when he was four months old. The child had lived with father from September 2015 until March 2016. Then, father was incarcerated , and the child had lived with- 9 - father’s girlfriend until June 2017, when the Department remove d him and placed him in foster care. When father was rel eased in July 2018, he had an opportunity to remedy the conditions that led to the child ’s continued placeme nt in foster care, but instead he committed another criminal offense, which, as the circuit court found, led to “an other half a year’s confinement for him.” Considering the circum stances, the circuit court did not err in finding that father had “failed to make substantial progress . . . toward elimination o f the conditions which required continuation of the child’s foster care placement.” Contrary to father’s arguments , the Department was not require d to offer him services while he was incarcerated. S ee Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 163-64 (2004). This Court has held that “[i]t would be patentl y unreasonable to require the Department, under such circumstances, to continue to offer serv ices.” Id. “[A]s long as he was incarcerated, the Department w ould have had no avenue available to offer [father] services aimed at assisting him in regaining c ustody of the child.” Id. at 16 4. Nevertheless, the Department visited father in jail and co rresponded with him and his attorn ey. The Department encouraged him to participate in services w hile he was incarcerated, and h e did so by completing numerous classes. When father was releas ed from incarceration in July 2 018, the Department referred him to parenting coaching sessions a nd arranged for six visitations with the child, but father only attended three visitations. At the time of the circuit court hearing, the child had been i n foster care for over twenty months. When he entered foste r care, he had bruises and marks on his legs. He was severely underweight and had a lot of anxiety. The Department presented evidence that the child had done very well in foster care. H is weight was average. He was no longer anxious and afraid. He was socializing, participating i n extracurricular activities , and learning to count and spell. “It is clearly not in the best inter ests of a child to spend a leng thy period of time waiting to find out- 10 - when, or even if, a parent will be capable of resuming his [or her] responsibilities.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App. 296, 322 (201 3) (quoting Kaywood v. Halifax Cty. Dep’t of Soc . Servs., 10 Va. App. 535, 540 (1990)) . The circuit court did not err in finding that termination of fathe r’s parental rights was in the child’s best interests. Adoption With respect to father’s challe nge of the foster care goal of a doption, “[o]ur decision to affirm the termination order nece ssarily subsumes this aspect o f his appeal because a preponderance-of-the-evidence st andard governs judicial modific ations of foster care plans.” Toms, 46 Va. App. at 265 n.3. CONCLUSION For the foregoing reasons, the circuit court’s ruling is affirm ed. Affirmed.