COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, B eales and Senior Judge Willis

ERIC CHRISTOPHER LOGAN

v. Record Nos. 0341-06-1 and MEMORANDUM OPINION * 0363-06-1 PER CURIAM DECEMBER 5, 2006 CITY OF HAMPTO N DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge (J. Robert Harris, III, on brief), for appellant. Appellant submitting on brief. (Rachel Allen, Assistant City Attorney, on brief), for appellee. Appellee submitting on brief. (Robert G. Saunders, Guardian ad litem ; The Law Firm of Thomas L. Hunter, P.C., on brief), for the infant child. Guardian ad litem submitting on brief.

In a proceeding involving Eric C. Logan’s (“ father”) minor child, T., father argues that the trial court erred by changing the goal from re turn home to adoption. He also maintains the trial court erred by terminating his parental rights. We disagree, and affirm the decision of the

trial court. Background On appeal, we view the evidence in the “‘light 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. Fairfa x County Dep’t of Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)). T., along with her two older half-brothers, was removed from her residence on March 16, 2004, when she was five months old. On March 11, 2004, T.’s mother had been arrested on multiple outstanding felony warrants. The followi ng day, father was arrested and charged with six counts of felony child abuse of T.’s older ha lf-brothers. The boys cam e under the care of the Hampton Department of Social Services (“DSS”), and had severe belt marks, areas of scabbing, and broken skin on their face, arms, and back. Despite the arrests of T.’s parents, the initia l goal established by DSS was to return T. to her parents or to place her with her maternal gran dmother. DSS established several goals in the initial foster care service plan fo r father to accomplish T.’s return home. Father was required to “complete a parenting capacity evaluation . . . an d a substance abuse evaluation . . . and comply

with all recommendations . . . .” He was also required to “follow through with recommendations of the Department,” and “demonstrate [his] comm itment to work with the Department towards the goal of reunification.” Furthermore, he was to visit T. at least once a month. From the time T. was removed on March 16, 2004, until the goal was changed to adoption on October 18, 2005, father was incarcerated on three separate occasions. The first

incarceration lasted for one week in March 2004; the second incar ceration was from February to April 2005; and three days after hi s release in April, father was incarcerated again in connection with the attempted rape, abduc tion, and malicious wounding of T.’s mother on April 24, 2005. Father was sentenced to six years for these offenses, with five years suspended, and was incarcerated at the time of the hearing in circ uit court on the petition to change the goal to adoption and to terminate father’s parental rights.- 3 - The circuit court hearing was held on Janua ry 4, 2006. In support of its petition to change the goal to adoption and to terminate fa ther’s parental rights, DSS relied on father’s failure to accomplish several goal s. Specifically, father failed to undergo psychiatric therapy for possible bipolar disorder, as recommended by hi s parenting capacity evaluation, and did not complete a substance abuse evaluation. Without explanation, he also stopped visiting T. in December 2004. DSS cited father’s inability to m eet T.’s needs as the result of his frequent incarcerations, as well as his failure to demonstrate a commitment to reunify with T., as evidenced by his assaulting and abducting T.’s mother. T., born September 25, 2003, and her half-broth ers have resided with the same foster parents from the time of their removal thr ough the termination heari ng. Brenda Dixon, their foster mother, testified T. and her siblings are doing well under her care. Social worker Shelley

Matthews stated she had observed the children in the foster home on a m onthly basis, and they had “very much” bonded with their foster parents. At the time of the termination hearing, T. was two years old. Following the hearing, the circuit court gr anted the petition to change the goal to adoption pursuant to Code § 16.1-282, as well as th e petition to terminate fa ther’s parental rights pursuant to Code § 16.1-283(C)(2 ). This appeal followed. Analysis Father argues the trial court erred by changing the goal from return to home to adoption, and in terminating his parental rights. Because we affirm the trial court’s decision to terminate father’s parental rights, we al so affirm its decision approving the change in goal to adoption. 1

1 “Our decision to affirm the termination orde r necessarily subsumes this aspect of [his] appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms , 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3 (citing Richmond Dep’t of Soc. Servs. v. Carter , 28 Va. App. 494, 497, 507 S.E.2d 87, 88 (1998); Padilla v. Norfolk Div. of Soc. Servs. , 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996)).- 4 - 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 child ’s best interests.’” Toms , 46 Va. App. at 265-66, 616 S.E.2d at 769 (quoting Fields v. Dinwiddie County 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 fost er a child’s best interests.’” Id. (quoting Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). The trial court terminated father’s pare ntal rights under Code § 16.1-283(C)(2). Code § 16.1-283(C)(2) requires clear and convincing evidence that termina tion is in the best interests

of the child and that the parent . . . without good cause, ha[s] been unwilling or unable within a reasonable period of tim e not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditio ns 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. Father argues the trial court’s decision to terminate his parental rights was erroneously based solely upon his incarce ration. He notes that he had not abused T., he was “opposed” to the termination of his parental rights, and he “wished for his relatives to be considered as a possible placement.” 2

2 To the extent father argues that termin ation was inappropriate because DSS failed to investigate placement with his relatives, we note that he lodged no objection to the circuit’s ruling on this basis and, therefore, we decline to address this issue for the first time on appeal. See Rule 5A:18.- 5 - While father’s incarceration, standing alone, is not sufficient to s upport the trial court’s termination of his parental right s, “it is a valid and proper ci rcumstance which, when combined with other evidence concerning th e parent/child relationship, can support [the] court’s finding

that the best interests of the ch ild 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). By the same token, Code § 16.1-283(C)(2) contains no excuse for a parent’s failure to remedy the conditions leading to

foster care because he has been incarcerated fo r over twelve months subsequent to the child’s placement in foster care. The evidence showed not only that father had been repeatedly incarcerated during T.’s placement in foster care, but that he had physically abused T.’s older half-brothers and assaulted and abducted her mother. Futhermore, father fa iled to undergo psychiatric counseling and to complete a substance abuse evaluation, as required by DSS to facilitate T.’s return to him. By his actions and inactions, father failed to meet the requirements established in the foster care plan

for T.’s return. “When addressing matters concerning a child . . . 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. “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 his responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Even prior to his incarceration, father failed to maintain visitati on with T. and to complete the substance abuse evaluation required by DSS. Furthermore, father failed to undergo psyc hiatric counseling for bipolar disorder as recommended by his pare nting capacity evaluati on. Upon release from incarceration in April 2005, father demonstrated his lack of commitment to T.’s return by assaulting and abducting T.’s mother. Notably, fa ther had been incarcer ated on three separate- 6 - occasions between March 2004 and the time of the termination hearing. “‘[P]ast actions and relationships over a meaningful period serve as good indicators of what the future may be expected to hold.’” Linkous v. Kingery , 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte , 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)). DSS proved by clear and convincing eviden ce that father, “without good cause, [was] unwilling or unable within a reasonable period of time not to exceed twelve months . . . to remedy substantially the conditions which led to or required continuation of” T.’s placement in foster care. Furthermore, because T. had a st rong bond with her foster parents and had limited contact with father since infancy, the trial court did not err in finding that termination was in her

best interests. Based upon the foregoing, the evidence was su fficient to support the trial court’s termination of father’s parental rights and its de cision to change the goal in the permanent foster care service plan to adoption.

Affirmed.