COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Be ales and Senior Judge Fitzpatrick

KENNETH ANDERSON, SR. MEMORANDUM OPINION * v. Record No. 2727-07-4 PER CURIAM APRIL 15, 2008 ALEXANDRIA DE PARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge (George P. Doss, Jr., on brief), for appellant. (Richard F. Gibbons, Jr.; Ign acio B. Pessoa; Office of the City Attorney, on brief), for appellee. (Dale Warren Dover, on brief), Guardian ad litem for the minor child.

On October 18, 2007, the trial court terminated the residual parental rights of Kenneth Anderson, Sr. (appellant), to his son K.A. pursu ant to Code § 16.1-283(C)(1) and (C)(2). On appeal, appellant contends the evidence was insu fficient to support the tr ial court’s ruling. Upon reviewing the record and briefs of the parties, we conclude th is appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
FACTS On appeal, we view the evidence in the “‘li ght most favorable’ to the prevailing party in the circuit court and grant to that party the benefit of ‘all reasona ble inferences fairly deducible therefrom.’” Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 262, 616 S.E.2d 765, 767

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - (2005) (quoting Logan v. Fairfax County Dep’t of Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)). K.A. tested positively for cocaine at his birth on November 24, 2005. Appellant was not married to and did not reside w ith the child’s mother, Tawanna Hines, but he was present at K.A.’s birth. 1 From the hospital, K.A. was placed in the home of Hines’ cousin, Kizzy Jackson. Appellant did not request that K.A. be placed with him. In the weeks following K.A.’s birth, appella nt and Hines were sc heduled to have two weekly visitations with K.A. in Jackson’s home. Appellant and Hines had conflicts during the visits because appellant brought his girlfriend with him, and appellant’s attendance at visitation with K.A. was inconsistent. Appellant then wa s granted visitation with K.A. separate from Hines. Without Hines, appellant visited K.A. at Jackson’s home about four times. On February 19, 2006, appellant was incarcerat ed in the Alexandria city jail for a probation violation. He remained incarcerated until the termination hearing in October 2007. While incarcerated, appellant had no contact or communication of any nature with K.A. On March 2, 2006, the Alexandria Departme nt of Human Services (DHS) was granted custody of K.A., who still resided in Jackson’s ho me. The court ordered appellant to submit to mental health and substance abuse evaluations. Laurie Best, a DHS social worker, was assi gned to K.A.’s case in January 2006. From the jail, appellant identified his mother in Boston as a relative who could assume custody of K.A. However, K.A. could not be placed with appellant’s mother because of her prior criminal record. In the fall of 2006, Best advised appellant he was required to reque st the court-ordered evaluations from the jail officials. Although Best twice told appellant he mu st initiate the request himself for the evaluations to be performe d, he did not do so. Appellant signed up for

1 Hines’ parental rights to K.A. were terminated in 2006.- 3 - Alcoholics Anonymous meetings, but he did not re gularly attend them. Nor did he complete a “fatherhood” course offered at th e jail. In December of 2006, a ppellant told Best he would be incarcerated for another twelve months. 2 Appellant also said he would be unable to care for K.A. until six months after his release. A second DHS social worker, Kathryn Kramer, assumed responsibility for K.A.’s case in May 2007. She had no contact with appellant because he had been transferred to Deep Meadow Correctional Facility in the state prison system. At the termination hearing, Kramer testifie d that K.A., who would be two years old in November 2007, exhibited delay in his speech deve lopment that required professional therapy. K.A. also demonstrated difficultie s with attachment and motor development. The child had been moved from Jackson’s home to a fo ster home, and was progressing well. Appellant had fathered two daughters with two different women. Appellant’s daughters lived with their mothers in Massachusetts. Appell ant testified that he and Hines “never really [had] a relationship.” At the time of K.A.’s bi rth and at the terminati on hearing, appellant was romantically involved with a woman other than Hines. Appellant testified that he did not complete the “fatherhood” class at the Alexandria jail because the course was discontinued. Appellant al so claimed that a mental health evaluation was performed while he was at the Al exandria jail, but he never rece ived a copy of the evaluator’s report. Appellant did not produce the mental h ealth evaluation at his termination hearing. Appellant said he was transferred to the state prison system before he was eligible to begin the Sober Living program at the jail. Appellant claimed that upon his release from prison in December 2007 he would be employed by his fa ther and could provide a home for K.A.

2 Appellant was scheduled fo r release on December 12, 2007.- 4 - ANALYSIS When reviewing a decision to terminate pare ntal rights, we presume the circuit court “‘thoroughly weighed all the evidence, consider ed the statutory requirements, and made its determination based on the ch ild’s best interests.’” Toms , 46 Va. App. at 265-66, 616 S.E.2d at 769 (quoting Fields v. Dinwiddie Count y Dep’t of Soc. Servs. , 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “The trial court’s judg ment, ‘when based on evidence heard ore 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 (quoting Logan , 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its capacity as factfinder, therefore, the circuit court retains ‘broad di scretion in making the decisions necessary to guard and to fo ster a child’s best interests.’” Id. (quoting Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). In determ ining what is in the best interests 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 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). The trial court terminated appe llant’s parental rights pursuant to Code § 16.1-283(C)(1) and (C)(2). A termination pursuant to Code § 16.1-283(C)(1) requires the tria l court to find by clear and convincing evidence that termination was in the child’s best interests and that the parent has, without good cause, failed to mainta in continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the ch ild’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or othe r rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationshi p. Proof that the parent . . . ha[s] failed- 5 - without good cause to communicat e on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition . . . . The evidence proved appellant did not seek custody of K.A. after his birth even though the child’s mother was a drug user . Appellant visited K.A. only a few times at Jackson’s home. Appellant was incarcerated from February 2006 until the termination hearing in October 2007. During that time, appellant di d not communicate with K.A. in any form. Although appellant testified otherwise, he told Best he would requ ire six months after his release from prison in December 2007 to be able to care for K.A. K.A., who tested positively for cocaine at birth, required ongoing therapy for his speech developm ent, and the child had other special needs. Appellant’s incarceration for a majority of K.A.’s life prior to the termination hearing was “a valid and proper circumstance which, when combined 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. Stafford County Dep’t of Soc. Servs. , 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). The record thus supports the trial court’s findi ng that the conditions contained in Code § 16.1-283(C)(1 ) were proven by clear and c onvincing evidence and that termination of appellant’s parental rights was in K.A.’s best interests. 3 We recognize that “‘[t]he termin ation of [residual] parental ri ghts is a grave, drastic and irreversible action.’” Helen W. v. Fairfax County 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 cl early not in the best interests of a child

3 Because we find the evidence sufficient to support termination pursuant to Code § 16.1-283(C)(1), we need not consider any challenge appellant raises to the sufficiency of the evidence for a termination under Code § 16.1-283(C)(2). See Fields , 46 Va. App. at 8, 614 S.E.2d at 659.- 6 - to spend a lengthy period of time waiting to find out when, or even if, a pare nt will be capable of resuming his [or her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Because the evidence supports the trial court’s decision to terminate appellant’s pare ntal rights, we do not disturb it.
CONCLUSION Accordingly, we find appellant ’s appeal is without merit, and we summarily affirm the decision. Affirmed.