COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Alston and AtLee Argued by teleconference

DANIEL RAY ESSENMACHER v. Record No. 0086-17-3
LYNCHBURG DEPARTMENT OF SOCIAL SERVICES MEMORA NDUM OPINION  BY J UDGE ROSSIE D. ALSTON, JR. DANIEL RAY ESSENMACHER MARCH 6 , 2018 v. Record No. 0087-17-3
LYNCHBURG DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG R. Edwin Burnette, Jr., Judge Christopher C. Graham (Eustis & Graham, PC, on brief), for appellant. Susan L. Hartman, Assistant Cit y Attorney (Yvonne Z. Schewel, Guardian ad litem for the minor childre n, on brief), for appellee.
Daniel Ray Essenmacher (appellant ) argues that the trial court abused its discretion in denying his motion to strike. Appell ant specifically contends that the trial court erred when it 1) approved the goal of adoption i n the revised foster care pla n and 2) terminated his parental rights pursuant to Code § 16.1-283(C )(2) without the requisite evidence. We disagree.
B ACKGROUND Appellant and Tymatha Ayers (Ayer s) share two minor children, L .R. and A. The family initially lived in Michigan. Wh ile there, appellant and Ayers were under investigation for

 Pursuant to Code § 17.1-413, this op inion is not designated for publication.UNPUBLISHED- 2 - leaving A. outside in a play pen f or extended periods of time w ithout supervision. There were also inquiries regard ing L.R. being born subs tance-exposed to m arijuana. In 2015, additional allegations of physical abuse, ne glect, sexual abuse, and failu re to protect the children also arose. The family moved to Virginia. On May 24, 2015, there was a dom estic assault call to the family’s residence. Two days lat er, police responded to a call regarding possible sexual abuse of A. after a neighbor, who was bathi ng the children, noted A.’s h ypersexual behaviors. Lynchburg’s Department of Social Services (LDSS) initiated an i nvestigation. The police came to the home again on May 29, 2015. They discovered that the ho me was condemned; it was infested with bugs, there were e xposed wires on the walls, and open air ducts on the floors. In addition, both appellant and Ayers tested positive for marijuan a. Moreover, the children were caked in dirt, and bug bites from carpenter ants and bed bugs c overed their bodies. The children were taken to Lynchburg General Hospital for foren sic exams. A. had a significant tear below her vagina l opening. It was concluded t hat it was not possible that this injury was self-inflicted. The forensic nurse identified that L.R. experienced possible sexual abuse as well. Supporting documen tation indicated that appella nt changed A.’s diaper in a “sexual way,” would throw he r on the ground, and slap her on th e face, hands, and legs. An emergency removal order was ex ecuted, and the children were pla ced in the custody of LDSS. A. was approximately twenty months old, and L.R. was six months old at the time. On June 15, 2015, appellant was arre sted for failing to registe r as a sex offender; he was required to register because of his felony conviction for aggra vated sexual battery of a child in Michigan. Ultimately, appellant was convicted and remained inc arcerated until September 6, 2015. During this time, the adjudi catory hearing was held on J uly 6, 2015. The Juvenile and Domestic Relations District C ourt of the City of Lynchburg (J&D R court) found that the children were “abused or neglected” or at risk of such because their “pa rents . . . create[d] or inflict[ed],- 3 - threaten[ed] to create or inflic t, or allow[ed] to be created o r inflicted upon suc h child[ren] by other than accidental means, or c reate[d] a substantial risk of death, disfigurement, or impairment of bodily or mental functions.” A dispositional hearing was he ld on August 3, 2015. The J&DR court ordered that custody of t he children be transferred to LD SS, noted that continued placement at home would be contrar y to the welfare of the children, and found that LDSS made reasonable efforts to prevent th e removal of the children. The J&DR court approved the foster care plan which contained the f ollowing goals: “return home/re lative placement.” The J&DR court noted that vis itation between appellant and the children would be at the discretion of LDSS and ordered appellant and Ayers t o comply with the foster care plan. A review hearing was set for November 25, 2015. Appellant and an LDSS employee met on October 26, 2015 to discu ss what appellant needed to do in order for his ch ildren to be returned to his ca re. The recommended services included: psychological assessmen t, services at Horizon Behavi oral Health (Horizon), weekly outpatient therapy, psychiatric services, and intensive wrap-ar ound services. Appellant was arrested for a probation violati on and was incarcerated from No vember 9 to December 7, 2015. The services recommended by LDSS we re further frustrated as app ellant was arrested again for probation violations, including vi olating a protective order Ay ers took out against appellant, on December 18, 2015. Appellant has since been incarcerated conti nuously until his release in June
2016. LDSS filed a petition for a perman ency planning hearing on Marc h 21, 2016. LDSS requested that the J&DR court te rminate appellant’s parental ri ghts and approve the updated foster care plan. The updated pl an reflected new goals: “adop tion/relative placement.” At the hearing on April 20, 2016, the J&DR court found that reasonable efforts were made to reunite the children with appellant. It noted that LDSS’s permanent go als for the children are- 4 - achievable, approved the plan, and terminated appellant’s paren tal rights and found that it was in the children’s best interests. A ppellant appealed both determi nations to the Circuit Court for the City of Lynchburg (trial court). 1
A trial was held on December 7, 2016. An LDSS employee testifi ed to the conditions that caused LDSS to remove the c hildren and detailed the allega tions against appellant and Ayers. That same employee observed supervised visitations betw een appellant and the children--those ceased upon appe llant’s incarceration. At the first visit, “[A.] immediately . . . placed a toy doll house . . . in fr ont of her.” She crawled aw ay from appellant and put larger toys between her and appellant, preven ting contact. She turned away from appellant’s displays of affection. For days after visi tations, A. would cry, kick, and scream. She exhibited those behaviors outside of the home and experienced a night terror at her foster home. LDSS was also concerned about appellant’s housing status, subst ance abuse, and mental health issues. Appellant did nothave adequate housing; he cur rently sleeps on the couch of a friend’s one-bedroom apartment , and the family had a “pattern o f homelessness and transient living.” Appellant was willing to engage in psychiatric servic es but would only attend monthly outpatient therapy and refused t o sign releases to speak with w orkers at Horizon. Ultimately, appellant did not seek treatment f or those issues. However, ap pellant did complete the psychological assessment, which was conducted by Dr. Anderson. Dr. Anderson testified that appellant indicated he was dia gnosed with depression, bipolar d isorder, and post-traumatic stress disorder. Appellant also experi enced command auditory hallucin ations, ordering him to kill or harm someone or children. Dr . Anderson noted appellant posed arisk to anyone under his care.

1 The J&DR court terminated Aye rs’ parental rights on May 20, 20 16. She appealed. The trial court heard the m atter on September 1, 2016. After t he hearing and “upon written signed election not to appeal the T ermination of Parental Right s . . . on 18 August 2016,” the trial court dismissed her appeal.- 5 - Appellant was alcohol and cannabis dependent. He also admitted to using powder cocaine. Appellant has an extensive crimi nal history in addition to the felony child sex offense in Michigan, including a concealed weapons charge, marijuana posse ssion charges, and assault charges. Appellant is “extre mely narcissistic” and “would . . . have difficulty giving his children’s needs prio rity.” Dr. Anderson a lso noted that appel lant would have “difficulty maintaining a stable parental p resence in the home on a consist ent basis over time.” Appellant demonstrated inappropriate res ponses to routine child-rearing h ypotheticals. Dr. Anderson testified that if appellant di d not engage in LDSS services, th en it would be “ver y unlikely” that he would make sufficient progress. An LDSS employee testified tha t relative placement was not a vi able option for the children. When LDSS requested relative placement options, the names Ayers provided were not suitable. Ayers also indicate d her family sexually abused her. Appellant failed to respond. Regarding the goal change to a doption, LDSS employees noted it was in the children’s best interest. Appellant “was not able to demonstrate any meas ure of stability. When he was not in jail, he did not have suita ble hous[ing. The] children now have been in foster care for over a year and a half and have adjuste d very well and bonded closely with their foster parents.” Upon entering the foster care envir onment, A. displayed disturbing b ehavior and was very protective of L.R. Now, however, the ch ildren are “jovial, happy, . . . [and ] imaginative.” They have made friends and are quicker to trust and to love. In his case-in-chief, appellant testified that as part of the t erms of his probation requirements, he did not have cont act with the children while i ncarcerated. Appellant returned to Michigan shortly after bei ng released from jail in June 2016, e xplaining that he could not find employment in Virginia due to hi s sex offender status. He is n ow employed and is looking for a- 6 - home for him and the children. A ppellant stated that he has co ntrolled his substan ce abuse issues since January. Appellant noted that his work s chedule prevented him from engag ing in any other services, but he would attend couns eling if it was court-ordere d. Appellant discussed his plan of care for children: he request ed that custody be transferred to the DSS in Michigan and that he planned on having his mother and a full-time, live-in nanny hel p raise the childre n. He indicated he was actively sea rching for a four-bedroom house on a $2,800 monthly salary. This plan has been in place for six weeks. At the conclusion of all the evidence, appellant made a motion to strike, arguing that LDSS did not present the requisi te evidence to support the chan ge in goal nor the termination of his parental rights. The tri al court denied the motion. The trial court found that appell ant made “significant progress recently” regarding securing employment and mainta ining sobriety. It then denied appellant’s request for additional time to substantially remedy condi tions. The trial court found that instead of complying with services set forth by LDSS, appellant continued to reoffend. T he trial court explained that the statutory time frame existed to e nsure that the children had a stable environment and continuity and noted that the children have be en in foster care for over ayear. Although the statute does provide for some flexibility, appe llant still has not remedied LDSS’s concerns. Appellant failed to secure appropriate housing. Wh ile appellant stated that he is no longer abusing substances, appellant did not address his me ntal health and substance abuse issues through treatment. This demonstrated to the trial court that appellant did not substant ially remedy conditions placing the children into foster care. The trial court then indicated that it was not in the best interest to uproot the children and send them to a different foster care ho me in Michigan. Appellant’s recent progress was “much too little much too late.”- 7 - On January 3, 2017, the trial cou rt ordered the termination of appellant’s parental rights under Code § 16.1-283(C)(2), findin g that it was in the childre n’s best interest and that the clear and convincing evidentiary stand ard had been met. It then appr oved the foster care plan, finding by a preponderance of the evidenc e that LDSS made reasonable ef forts to reunite appellant and the children, “has identified a permanent goal [of adoption] fo r each of the children other than returning them home[, ] and reasonable efforts have been made to achieve the permanent goals,” and that “[t]he permanent goal of adoption is achievable for ea ch of the children at this time.” Appellant noted his ob jection to both of those determinations o n the ground of sufficiency. Now comes this appeal.
A NALYSIS “When reviewing a termination of aparent’s residual parental rights, we must acknowledge that ‘[t]he terminati on of residual parental rights is a grave, drastic[,] and irreversible action. ’” Farrell v. Warren Cty. Dep’t of Soc. Se rvs., 59 Va. App. 342, 361, 719 S.E.2d 313, 322-23 (2012) (quoting He len W. v. Fairfax Cty. Dep ’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)). “While recognizing the seriousness of such a determination,” id. at 361, 719 S.E.2d at 323, we presume that the trial court has “thoroughly weighed all the evidence, consider ed the statutory requirements , and made its determination based on the child’s best inter ests.” Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). “[T]he paramount consid eration of a trial court is the child’s best interests.” Logan v. Fairfax Cty. Dep’t of H uman Dev., 13 Va. App. 123, 128, 409 S.E .2d 460, 463 (1991). In determining what is in the best interests of the child, a co urt must evaluate and consider many f actors, 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 c hild or children; the role which each parent has played, and will pl ay in the future, in the upbringing and c are of the child or children ; and- 8 - such other factors as are necessary in determining the best int erests of the child or children. Eaton v. Washington Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 331, 785 S.E.2d 231, 239 (2016) (quoting Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d 575, 581-82 (2004)). It is well-settled that [w]hen a defendant in a civil or criminal case proceeds to intr oduce evidence [o]n his own behalf, aft er the trial court has overrul ed his motion to strike, made at the conclusion of the introduction of plaintiff’s evidence in chief , he waives his right to stand upo n such motion. Plaintiff’s case may be s trengthened by defendant’s evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the court must consider the entire record in reaching its conclusion. Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 73-74, 688 S.E.2 d 199, 204 (2010) (emphasis added) (quoting Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948)). “The trial court’s judgment , ‘when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or w ithout evidence to support it.’ ” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 266, 616 S.E.2d 765, 769 (2005) (quoti ng Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (20 05)). We will view the evidence in the light most favorable t o LDSS, the prevailing party below , and grant it all reasonable inferences fairly deducible from the evidence. Logan, 13 Va. A pp. at 128, 409 S.E.2d at 463. A. Goal Change Appellant argues that the tri al court erred in denying his mot ion to strike. He specifically contends that LDSS did not presen t sufficient evidence to suppo rt the trial court’s approval of the revised foster care plan. “Pr oof by a preponderance of the evi dence is the appropriate standard in this case.” Padilla v. No rfolk Div. of Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996). Code § 16.1-282.1 provides that- 9 - a permanency planning hearing s hall be held within 11 months of the dispositional hearing at which the foster care plan . . . w as reviewed if the child . . . (b) is under the legal custody of alocal board of social services . . . a nd has not had a petition to te rminate parental rights filed on th e child’s behalf . . . . The board or child welfare agency shall file a petition for a permanency planning hearing within 10 months of the dispositional hearing at which the foster care plan was rev iewed pursuant to § 16.1-281. The purp ose of this hearing is to establish a permanent goal for the child and either to achieve the permanen t goal or to defer such action through the approval of an int erim plan for the child. Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App. 29 6, 328-29, 746 S.E.2d 509, 525 (2013) (quoting Code § 16.1-282.1). The J&DR court adjudicated tha t the children were at risk of o r were abused or neglected on July 6, 2015. At the disposi tional hearing on August 3, 201 5, the J&DR court reviewed and approved the foster care plan w hich identified the goals of “re turn home/relative placement.” A foster care review hearing was set for November 25, 2015. Appe llant was arrested for failing to register as a sex offender and was incarcerated until early Nov ember. Upon his release, appellant met with an LDSS em ployee who recommended the followi ng services: psychological assessment, services at Horiz on, weekly outpatient therapy, psy chiatric services, and intensive wrap around services. Appellant underwent a psychological eval uation but did not engage in any other services. Shortly thereafte r, appellant was arrested and was continuously incarcerated for probation violations. LDSS then changed its goals for t he children to “relative place ment/adoption” in its March 21, 2016 petition. At the April 20, 2016 hearing, the J& DR court found that reasonable efforts were made to reunite t he children with appellant, that LDSS identified a permanent goal other than return home, and that r easonable efforts were made t o achieve that goal. The J&DR court subsequently approved the foster care plan and terminated appellant’s parental rights,- 10 - noting that it was in the best interests of the children. Appe llant appealed both determinations to the trial court. Turning to the factors a court c onsiders when analyzing the bes t interests of the children, A. and L.R. were twenty mont hs and six months of age upon enter ing into LDSS’s custody. Before appellant was incarcerate d, there were allegations again st him and Ayers in two different states regarding their abuse a nd neglect of A. and L.R. There was evidence that the children were sexually abused while in t heir parents’ care. Although em ployed, appellant did not engage in recommended services and ins tead chose to reoffend; he was a lso unable to provide stability for his children. When he was not incarcerated, he did not obt ain suitable housing and crafted a tenuous plan of care in the event t hat the children were return ed to his care. He also did not seek treatment for his substance abus e and severe mental health issu es, which included auditory command hallucinations ordering appellant to harm people and ch ildren. And the only evidence the trial court had that appella nt was substance-free was appel lant’s own testimony. With regard to creating a stable environmen t for the children, the children have been in their current foster care home for over 18 months. Transferring the children to ano ther foster care home in Michigan would undermine the stab ility and continuity that the children currently have. A. no longer displays disturbing beha viors, and both children are “jo vial, happy, . . . [and] imaginative[,]” have made frie nds, and are quicker to trust and to love. The trial court approved adopti on as a permanent goal and noted it was in the children’s best interest. Considering the entire record, that finding was supported by the evidence and not plainly wrong. B. Termination of Parental Rights Appellant argues that the tri al court erred in denying his moti on to strike. He specifically contends that LDSS did not presen t sufficient evidence pursuant to Code § 16.1-283(C)(2)- 11 - [hereinafter (C)(2)] to support the trial court’s termination o f appellant’s parent al rights. Proof by clear and convincing evidence is the appropriate standard. Fields, 46 Va. App. at 7, 614 S.E.2d at 659. (C)(2) states that a parent’s r esidual rights may also be termi nated when “it is in the best interests of the child and that:” [t]he parent or parents, w ithout good cause, have been unwillin g 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. The trial court found that termin ation was in the best interest s of the children. 2 Regarding whether appellant s ubstantially rem edied conditions w hich led to or required the continuation of the children’ s placement in foster care, in stead of trying to regain custody of his children, appellant chose to reoffend multiple times. Appe llant did not engage in any LDSS-recommended services other than undergoing a psychiatric e valuation. He refused to sign releases which would allow LDSS’ s employees to speak with worke rs at Horizon. Appellant failed to remedy LDSS’s additi onal concerns regarding housing a nd stability. Upon being released for the final time, a ppellant subsequently moved to Mi chigan to seek employment. Appellant seemingly made progres s outside of the twelve-month s tatutory window in that he found employment and is currentl y substance-free, but as the tr ial court noted, these efforts were “much too little much too late.” Considering the entire record, that finding was supported by th e evidence and was not plainly wrong.

2 See supra text on pages 10-11 disc ussing the best interests of the children.- 12 - C ONCLUSION Considering the entire record, t he trial court did not err in denying appellant’s motion to strike. The trial court was not plainly wrong and had ample ev idence to support its approval of adoption as a permanent goal a nd termination of a ppellant’s par ental rights under Code § 16.1-283(C)(2). Therefore, we will not disturb the trial cou rt’s findings on appeal. Affirmed.