COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Hu ff and Senior Judge Annunziata Argued at Lexington, Virginia

BRISTOL DEPARTMENT OF SOCIAL SERVICES v. Record No. 0532-14-3
MAGGIE S. WELCH OPINION BY JUDGE WILLIAM G. PETTY NOVEMBER 4, 2014 PATRICIA E. SM ITH, GUARDIAN AD LITEM FOR MINOR CHILD v. Record No. 0558-14-3
MAGGIE S. WELCH

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Isaac St. C. Freema n, Judge Designate Edward G. Stout (Curcio & Stout , on brief), for appellant Bristol Department of Social Services. Patricia E. Smith (Bradfor d & Smith, on brief), Guardian ad litemfor the minor child. Michael A. Bishop (Michael A. Bish op, P.C., on briefs), for appellee.
The Bristol Department of Social Servi ces (DSS) and Patricia E. Smith, Guardian ad litem , appellants, appeal from th e circuit court’s denial of the petition to terminate the pa rental rights of Maggie S. Welch w ith respect to her minor child, C.W. 1 The appellants argue that the circuit court erred in: (1) delaying its decision regarding the te rmination of Welch’s parent al rights, (2) ignoring

1 For purposes of this opinion , the Court has consolidated the cases of the Bristol Department of Social Services and Patricia E. Smith, Guardian ad litem . The facts of both cases are identical, the issues on appeal are the same, and the resolution of the ca ses is the same.PUBLISHED- 2 - the statutory time frame in which the parent may re medy the conditions that led to foster care, and (3) failing to protect the best interests of the child. For the following reasons, we affirm in part and dismiss in part. I. Background On appeal, we view th e evidence “in the light most favo rable to the prevailing party below and its evidence is afford ed all reasonable inferenc es fairly deducible there from.” Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). On December 26, 2010, DSS re moved two children from Welc h’s care because of their suspicious injuries. Welch’s three biological children, B.N.G., B.S.G. , and C.W., were also removed from her care on that day. At the time of removal, B.N.G. was seven years old, B.S.G. was two years old, and C.W. was five months old. On February 16, 2011, DSS prepared an initial fo ster care plan with the goal of returning C.W. to his own home within a year. DSS expressed con cerns about returning C.W. and the other children to Welch’s care because of her history of domestic violen ce with her husband and because of the trauma that the children suffered from witnessi ng the abusive relation ship. DSS referred Welch to various services, including parenting cl asses, individual counse ling, anger management classes, job searches an d programs, parenting and psychologica l assessments, and visitations as scheduled by DSS. Welch was arrested on federa l charges on June 7, 2011. Welch pled guilty to drug conspiracy charges and the know ing use and carrying of a fire arm in furtherance of a drug trafficking crime. DSS prepared a revised foster care plan with the goal of adopt ion. DSS stated in the plan that Welch had refused individual counseling and “continued her life style of drugs, dealing drugs,- 3 - and remaining involved with convicted felons.” On February 8, 2012, the juve nile and domestic relations district (JDR) court terminated Welch’s residual parental rights to B.N.G., B.S.G., and C.W. Welch app ealed to the circ uit court. On May 8, 2012, the circuit court heard evidence on DSS’s petitions to terminate Welch’s residual parental rights to her three children. Welch testified that she had not resided with her husband since December 2010 and that her relationship with him was over. On October 19, 2012, the circuit court termin ated Welch’s residual pa rental rights with respect to the two older children, B.N.G. and B.S.G. The circu it court found that B.N.G. was a special needs child and that B.S. G. “has been diagno sed with Post Traumatic Stress Disorder, Developmental Coordination Disord er, anxious moods, and is asthmatic.” This Court affirmed the circuit court’s decisions regard ing B.N.G. and B.S.G. by memorandum op inion dated May 21, 2013. The circuit court withheld its decision on the term ination of Welch’s resi dual parental rights with respect to C.W. until th e outcome of Welch’s federal sentencing h earing was known. On November 8, 2012, Smith filed a motion requesting that th e circuit court rule on the termination of Welch’s re sidual parental rights with respect to C.W. The circuit court again reserved the decision re garding C.W., noting that Welch’s anticipated rele ase date from federal custody was July 28, 2013. Smith and DSS filed a second motion, which was heard on September 5, 2013. Welch had been released from federal custody under terms and conditions. She was livi ng at a half-way house and working at a nursing home. Welch testified th at she would be eligible for release to house arrest in November 2013 and that she would continue her job at the nursing home. Welch stated that she had a trust fund to finance housing and support for herself and her child. Welch testified that she had not seen C.W. sinc e February 2011. While incarcer ated, Welch completed a parenting- 4 - certificate and acted as a mentor to other inmates who suffered drug addicti on. Both Welch and her father testified that he stood behind her during the entire period and that he would continue to support and assist he r in the future. The circuit court concluded that DSS failed to prove that terminating Welch’s parental rights was in the best interests of C. W. On February 29, 2014 the circuit court entered a final order denying DSS’s petition to terminat e. These appeal s followed. II. Analysis A. Delay in Ente ring a Final Order First, the appellants argue that the circuit court violated C.W.’s statutory right to expeditious review under Code § 16.1-296(D) by withholdin g judgment regarding the termination of Welch’s parental rights. However, it was within the di scretion of the trial cour t to reserve judgment following the Ma y 2012 hearing. 2 Furthermore, this issue is now moot. “‘[T]he general rule [is] that appellate courts do not sit to give opinions on moot questions or abstract matters, but only to decide actual contro versies injuriously affecting the rights of some party to the litigation.’” Baldwin v. Commonwealth , 43 Va. App. 415, 42 1, 598 S.E.2d 754, 757 (2004) (quoting Hallmark v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967)). The issues presented must be “live” at all stag es of review. Id. ‘“Courts are no t constituted . . . to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative.’” Id. (quoting Commonwealth v. Harley, 256 Va. 216, 219 -20, 504 S.E.2d 852, 854 (1998)). Where there is no actual controversy, th e case will be dismis sed as moot. Id. And even, as is the case here,

2 The Supreme Court has repeatedly held that “‘during the interval between the conclusion of the evidence and the entry of a written order . . . [a trial c ourt has] the inherent power, in the exercise of its discretion, to take the matter unde r advisement and to conti nue the case for future disposition.’” Starrs v. Comm onwealth, 287 Va. 1, 7, 752 S.E .2d 812, 815 (2014) (quoting Hernandez v. Commonwealth, 281 Va. 222, 226, 707 S.E.2d. 273 , 275 (2011)).- 5 - “when the parties do not raise the issue of mootness, appella te courts should raise the issue sua sponte when the record does not present a live case or controversy.” Id. at 421-22, 598 S.E.2d at 757. The circuit court’s ultimate termination decision regarding C.W., entered on February 19, 2014, rendered moot any justiciabl e challenge to the court’s delay in making that decision. See Najera v. Chesapeake Dep’t of Soc. Servs., 48 Va. App. 237, 241, 629 S.E. 2d 721, 722 (2006) (“[A] termination decision, if final and unappealed, moots any justiciable contest ov er a prior decision to approve DSS’s foster care plan re commendations.”). Because the circuit court decided to deny DSS’s petition to termin ate, it “no longer matters” how much time it to ok to do so. Id. at 241, 629 S.E.2d at 723. There is no relief that this Court can grant appellants, even if we were to agree that the circuit court should not have delayed its deci sion, because the decision has already been made. 3 Therefore, the appeal as to the question of whether the circuit court should ha ve made its decision at an earlier time is dismissed as moot. See id. B. Refusal to Termin ate Parental Rights Next, appellants argue that the circuit court erred in denying DSS’s petiti on to terminate Welch’s parental rights to C.W. We disagree.

3 This does not leave the partie s without a remedy in future cases. Par ties claiming that a judge has unreasonably de layed rendering a decision may seek relief by filing a complaint under Code § 17.1-107, which pr ovides in part that: In any civil action, a judge of a circuit cour t who fails to act on any matter, claim, motion, or issue that has been submitted to the court for a decision or render a final deci sion in the action shall report, in writing, to the parties or their co unsel on any such matter, claim, motion, issue, or action held under advisement for morethan 60 days after such submission stating an exp ected time of a decision. In any civil action in which a judge fails to report as required by this section or fails to render a decision within the expected time stated in the report, any party or their counsel ma y notify the Chief Justice of the Supreme Court.- 6 - “In matters of a child’s welfar e, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child’s best interests.” Kilby v. Culpeper Dept. of Soc. Services, 55 Va. App. 106, 110, 68 4 S.E.2d 219, 220-21 (2009). “[ W]here, as here, the court hears the evidence ore tenu s, its finding is entitled to the same weight accorded a jury verdict, and it will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15 , 20, 348 S.E.2d 13, 16 (1986). “‘[W]e presume the circuit court thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child’s best interests.’” T.S.G. v. B.A.S., 52 Va. App. 583, 588, 665 S. E.2d 854, 857 (2008) ( quoting Toms v. Hanover De p’t of Social Servs., 46 Va. App. 257, 265-66, 616 S. E.2d 765, 769 (2005)). The United States Supreme Court has recogniz ed that the Due Proces s Clause protects the “fundamental right of parents to make decisions concerning the car e, custody and control of their children.” Troxel v. Gr anville, 530 U.S. 57, 65 (2000). That “ liberty interest . . . does not evaporate simply because they have not been model parents . . . . [P]arents retaina vital interest in preventing the irretrievable destruction of their family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). This Court has recognized that the termination of this fundamental right is a “‘grave, drastic, and irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 28 0, 343 S.E.2d 70, 72 (1986)). “‘While it may be occasionallynecessary to sever the legal relationship between parent and child, those circumstan ces are rare.’” Id. (quoting Weav er v. Roanoke Department of Human Resources, 220 Va. 92 1, 926, 265 S.E.2d 6 92, 695 (1980)). When considering petitions for termination of parental rights, “we must have a respec t for the natural bond between children and their natural parents. The pres ervation of the family, and in- 7 - particular the parent-child relations hip, is an important goal for not only the parents but also government its elf . . . . Statutes terminating the legal relationship between parent and child should be interpreted consistently with the government al objective of preserving, when possible, the parent-child relationship.” Richmond Dep’t of Soc. Servs. v. L.P., 35 Va. App. 573, 580, 546 S.E.2d 749, 752-53 (2001) (quoting Weaver, 220 Va. at 926, 26 5 S.E.2d at 695). “‘ [T]he rights of parents may not be lightly severed but are to be respected if at all consonant with the best intere sts of the child.’” Ward v. Faw, 219 Va. 1120, 1124 , 253 S.E.2d 658, 661 ( 1979) (quoting Malpass v. Morgan, 213 Va. 393, 400, 192 S.E.2d 794, 799 (1972) (emphasis added)). And th e state cannot “‘infringe on the fundamental right of parents . . . simply because a state judge believes a better decision could be made.’” Dung Thi Thach v. Human Servs. Dep’t, 63 Va. App. 157, 173, 754 S.E.2d 922, 930 (2014) (quoting Copeland v. Todd, 282 Va. 183, 199 , 715 S.E.2d 11, 19-20 (2011)). Finally, the Supreme Court has long recognize d that when it comes to the custody of children, “the law presumes that the child’s best interests will be served when in the custody of its parent.” Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954). Code § 16.1-283(B) and (C) governs the terminat ion of parental rights . In this case, DSS sought termination under subs ection (C)(1) and (C)(2). Code § 16.1-283(C) provides that [t]he 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 pare nt or parents or other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and co nvincing evidence , that it is in the best interests of the child and that: 1. The parent or parents have, withou t good cause, failed to maintain continuing contact with and to provi de or substantia lly plan for the future of the child fo r a period of six months after the child’s placement in foster care notw ithstanding the reasonable and appropriate efforts of social, me dical, mental health or other- 8 - rehabilitative agenci es to communicate with th e parent or parents and to strengthen the parent-ch ild relationship . . . ; or 2. The parent or parents, without g ood cause, have been unwilling or unable within a reasonab le period of time no t to exceed 12 months from the date the child was plac ed in foster care to remedy substantially the conditio ns which led to or re quired continuation of the child’s foster care placement, notwithstanding the reasonable and appropriate efforts of social, me dical, mental health or other rehabilitative agencies to such end . . . . (Emphasis added). “Code § 16.1-283(C) speaks in the conjunctiv e.” L.G. v. Amherst Cnty. Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S. E.2d 886, 889 (2003) (quoting Roan oke City Dep’t of Soc. Servs. v. Heide, 35 Va. App. 328, 335- 36, 544 S.E.2d 890, 893 (2001 )). It follow s that under Code § 16.1-283(C) the “trial judg e must make two separate inquires in order to terminate parental rights.” Richmond Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572, 579, 625 S. E.2d 670, 673 (2006). The court must find that DSS has met its burden of proving, by clear and convincing evidence: (1) that termination is in the best interests of the child; and (2) that the parent has not maintained a relationship with the child or remedied the conditions that le d to foster care placement. L.G., 41 Va. App. at 56, 581 S. E.2d at 889. Whether the second prong is met is determined by reference to the statutory time fram es. Crawley, 47 Va. App. at 579, 625 S.E.2d at 673. However, because Code § 16.1-2 83(C) requires a two-pronged inquiry, a parent’s failure to comply with the statutory time fra mes of (C)(1) or (C)( 2) will never be dispositive. See id. DSS must always also prove by clear and convincing evidence the first prong: that termination is in the child’s best interests. S ee id. And in evaluating the best intere sts of the child, “t he factfinder may consider evidence before or after the twelve-month time period.” Thach, 63 Va. Ap p. at 171, 754 S.E.2d at 929. To “temporally restrict the trial court’ s consideration” of the parent-child relationship to the statutory periods in (C)(1) and (C)(2) would “‘deny the fact finder the- 9 - opportunity to evaluate the present best interests of the child.’” L.G., 41 Va . App. at 57, 581 S.E.2d at 889 (quoting Heide, 35 Va. App. at 337, 544 S.E.2d at 894). Accordingly, a court may determine ‘“that a parent’s delayed, but nonetheless substantial, progress may overcome the time delay.’” Thach, 63 Va. App. at 171, 754 S.E.2d at 929 (quoting L.G., 41 Va. App. at 57, 581 S.E.2d at 889-90). “‘We will not deprive the trial court of the opportunity to weigh the rights of the parents and the best interests of the child.’ ” L.G., 41 Va. App. at 57, 581 S.E.2d at 890 (quoting Heide, 35 Va. App. at 337, 544 S.E.2d at 894). Here, the appellants claim that termination of parental rights would have been proper under (C)(1) or (C)(2) because DSS proved by clear and convincing evidence that Welch did not maintain contact with C.W. for a period of more than six months after fo ster care placement and Welch did not correct the conditions that causedC.W. to be placed in foster care within twelve months of such placement. These arguments fail to recognize that termin ation is not necessarily or automatically in the best interests of th e child, even where these statutory re quirements are me t by DSS. See Crawley, 47 Va. App. at 582, 625 S.E.2d at 675 (“The lack of a de finite timeline inwhich a parent will be able to comply with social services’ plan is a relevant factor under the statute, but is not alone dispositive of the inquiry the trial judge must make under the statute.”). In denying the petition to terminate in th is case, the circuit court explicitly stated that “[ t]he preservation of the family is of utmost importanc e, especially when it is in the best interest of th e child to do so. . . . The Court is looking at what is in the best interest of the child and permanency .” Thus, the appellants cannot prevail simply by proving th at Welch failed to co mply with the requir ements of (C)(1) or (C)(2). Rather, the appellants must persuade this Court that, as a matter of law, the circuit court erred in finding that term ination was not in the best interests of C.W. This , they simply have not done.- 10 - This Court has said that “there is no simple , mechanical, ‘cut and dried’ way” to apply the best interests of the child standa rd. Peple v. Peple, 5 Va. App. 414, 422, 364 S. E.2d 232, 237 (1988). Instead, “the questio n must be resolved . . . in light of the facts of each case.” Toombs v. Lynchburg Div. of Soc. Servs., 223 Va. 22 5, 230, 288 S.E.2d 405, 407 (1982). “In determining what is in the best interests of the child, a court must evaluate and consider many factors, including the ag e and physical and mental condition of the child or children; the age and physical and mental condition of the parents; the relati onship 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 ch ildren; and such other factors as are necessary in determining the best interests of the child or children.” Harrison v. Tazewell County Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d 575, 581-82 (2004) (quoting Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986)). The circuit court considered appropriate factor s in making its decision . In its December 20, 2013 opinion letter, the court di scussed Welch’s employment situat ion and financial ability to support C.W. The court also noted that Welch attended parenting classes and accepted responsibility for having her chil dren taken away from her. The court found that “there is no evidence before the [c]ourt that the mother ever abused or negl ected this child, except for her criminal enterprise . . . .” As to C.W.’s co ndition, the court found that “[t] he evidence is that [C.W.] appears happy, well-adjusted, and is progressing normally at Head Start . . . . He does not appear to have any special needs.” The court properly placed great weight on preser vation of the family and stated that it “consider[e d] all relevant facts” in making its decision. Given that the best interests of the child anal ysis is highly fact-sensitive and discretionary, overturning the circuit court’s decision in a case such as this regarding the be st interests of the child would necessarily require this Court to improperly substitute its judgment for that of the circuit- 11 - court. See Simmons v. Simm ons, 1 Va. App. 358, 361, 33 9 S.E.2d 198, 199 (1986). 4 There simply is no bright line standard that th is Court can apply to co nclude that as a matter of law, the circuit court erred in determining that termination was not in the best interests of the child. Instead, we must presume that the circuit court made its determination based on the best interests of the child. T.S.G., 52 Va. App. at 588, 665 S. E.2d at 857. Here, because the circuit court relied on appropriate factors and pointed to some evidence supporting its decision, th is Court cannot hold that the circuit court’s best interests determination was “plainly wrong” or “without ev idence to support it.” Martin, 3 Va. App. at 20 , 348 S.E.2d at 16. The appellants argue that the circuit court improper ly distinguished C.W. from his siblings in deciding his best inte rests. However, this Co urt has repeatedly affirmed decisions terminating a parent’s right to only some of her children. See Fauquier County Dep’t of So c. Servs. v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811 (2011); Norfolk Div. Soc. Servs. v. Hardy, 42 Va. App. 546, 593 S.E.2d 528 (2004). The pa rent-child relationship is to be pres erved whenever possible, even where the parent’s relationship with his or her other ch ildren must be terminated. Welch’s two older children, B.N.G. and B.S.G., w itnessed Welch’s abusive relations hip with her husband. C.W., however, was only five months old when he was remo ved from Welch’s care. The circuit court found that B.N.G. was a special needs child and that B.S.G. suffe red from post traumatic stress disorder and anxiety. As a result, both older children were in need of speci al care that Welch could not provide. C.W., though, did not appear to need the specializ ed therapy that the two older children required. C.W. was progre ssing normally at a regular foster care home and was reported to

4 Indeed, the appellants have not cited a single case in which this Co urt has reversed the denial of a petition for termination on the gr ounds that termination woul d have been in the best interests of the child. No r has this Court’s research revealed any su ch case.- 12 - be happy and healthy. Thus, the circuit court had credible factual basis for distinguishing C.W. from his siblings. The appellants also argue that the circuit court erred in findin g that termination was not in C.W.’s best interests because We lch did not present evid ence proving that sh e had the ability to parent C.W. However, DSS, not Welch, bore the burden of proving that parental rights should be terminated. When parents appeal to the circuit court from a final order of the JDR court terminating residual parental rights under Co de § 16.1-283, the burde n of proof is on DSS to demonstrate that the parent’s residual parental rights should be terminated. See Walker v. Dep’t of Public Welfare, 223 Va. 557, 562, 290 S.E.2d 887, 890 (1982). [T]he termination of parental rights . . . requires that DHS establish by clear and convincing ev idence that terminatio n of a parent’s right is the only reasonable and appropri ate recourse—it doe s not require a parent to prove by clear and co nvincing evidence that he should retain his fundamental lib erty interest in the custody of his child. Thach, 63 Va. App. at 174, 754 S. E.2d at 930. Thus, the appellants’ argument that Welch did not present certain evidence supporting her ability to parent C.W. is irre levant. She was entitled to rely on the strong presumption that it was in C.W.’s best in terests to ultimately be returned to his parent. DSS failed to meet its bu rden of proof and cannot ma ke up for that failure on appeal by arguing that Welch’s presentation of evidence was lacking. III. Conclusion In summary, the trial court held that the DSS failed to pr ove, by clear and convincing evidence, that it was in the best interests of C.W. to terminate Welch’s parent al rights. We cannot say that the evidence as to the best interests of the child, viewed in a light most favorable to Welch,- 13 - was so overwhelming that this d ecision was plainly wrong. Accord ingly, we affirm in part and dismiss in part. Affirmed, in part and dismissed in part.