COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Ch afin and Senior Judge Haley

CECIL MOORE MEMORANDUM OPINION * v. Record No. 0756-15-3 PER CURIAM NOVEMBER 10, 2015 LEE COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF LEE COUNTY Tammy S. McElyea, Judge (Lisa Ann McConnell, on brief), for appellant. Appellant submitting on brief. (Gregory D. Edwards; C. M. Callahan, Guardian ad litem for the minor children, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Cecil Moore (father) appeals the orders terminating his parental rights to his two minor daughters. Father argues that the trial court erred in granting the petitio ns to terminate father’s parental rights, which were filed by Lee County De partment of Social Services (the Department), because (1) the “Department’s decision to deviate from its own policy and a ccelerate the foster care time line to petition for terminat ion of [father’s] residual parental rights was based solely upon [father’s] being incarcerated and after the children’s mother having unilaterally agreed to execute an entrustment agreement;” (2) the “Depar tment failed to offer services to [father], to investigate if any services were available to [father] or to communicate wi th [father] what services would need to be completed by [him] in order for [him] to be reunite d with his children as re quired by statute;” and (3) the “trial court’s failure to reco nsider its decision to terminate [father’s] residual parental rights in light of a subsequent reduction in sentence and before a final hearing on [father ’s] petition forUNPUBLISHED- 2 - compassionate release pending before the federa l court was arbitrary and prejudicial to [his] parental rights.” Upon reviewing the record and briefs of the parties, we conc lude that the trial court did not err. Accordingly, we affirm the decision of the trial court.
BACKGROUND We view the evidence in the light most favor able to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). So viewed, the evidence proved that father has two daught ers, who were born in 2007 and 2009. The Department first became involved with the family in 2010. At that time, the children were living with father and there was a drug raid at the home. Father was arrested and convicted of several charges. He was sentenced to prison in the federal system. 1 The children briefly entered foster care, and then the children’s paternal grandf ather obtained custody of the children. Although the paternal grandfather had custod y of both children, one child was living with a paternal aunt in May 2014. On May 9, 2014, the Departme nt received a telephone call from a local hospital because the medical staff suspected that one of the children had been sexually abused. Due to the injuries and allegations, the Department obtained an emerge ncy removal order for bot h children. When the children came into the De partment’s care, they had “extreme” lice and dirty clothes. One of the children had sores from MR SA that had not been treated. Both children had deve lopmental delays, and one child had a speech impediment.

1 At the time of the circuit court hearing, fa ther’s expected releas e date was August 12, 2018.- 3 - The Department sent letters and copies of the se rvice plans to father in prison to advise him of the children’s situation. Father did no t respond to the Department’s correspondence. 2 The social worker also tried to contact his case manager in prison, but was never able to speak with the case
manager. While in prison, father comp leted several drug ab use programs, two pare nting classes, and an inmate skills developmen t plan. Father to ld the social worker that when he was released from prison, he anticipated livi ng with his family. He te stified that he would liv e in one of the rental properties owned by the children’s paternal grandfather. The social worker testified that the children have “blossomed” in foster care. The children received counseling, and one of the children participated in sp eech therapy and occupational therapy. The children’s mother, Rosa L ee Moore, decided that she wa s unable to take care of the children and told th e Department that she wa s willing to sign an entr ustment agreem ent. In December 2014, the Department filed petitions to terminate father’s parental rights. On January 27, 2015, the Le e County Juvenile and Domes tic Relations District Court terminated father’s parental rights to his two daught ers. Father appealed to the circuit court. On April 6, 2015, the parties appeared before the circuit court to present their evidence and argument. The circuit court entered an order terminating fathe r’s parental rights to both children pursuant to Code § 16.1-283(B). Father subsequently filed a motion to reconsider because the federal court reduced his sentence by twenty months. He asked the trial co urt to set aside the April 6, 2015 order and direct the Department to file a new foster care plan with a goal of return home. On April 24, 2015, the

2 Father testified that he did not receive a ll of the Department’s correspondence because he was being transferred within the prison system.- 4 - trial court heard arguments on father’s motion. Counsel info rmed the trial court that father’s expected release date would be late 2016 or early 2017. The trial court noted that father’s release date was still more than a year away, a nd it denied the motion to reconsider. This appeal followed.
ANALYSIS “Where, as here, the court hears the evidence ore tenus , its finding is en titled to great weight and will not be disturbed on appeal unle ss 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) (citation omitted). When considering termination of pare ntal rights, “the paramount consideration of a trial court is the child’s best interest s.” Logan, 13 Va. App. at 128, 409 S.E.2d
at 463. Assignment of error #1 Father argues that the tria l court erred in term inating his parental rights because the Department’s deci sion to petition for terminat ion of parental rights ear lier than norma l was “based solely” on father’s incarceration. On cross-examination, the so cial worker adm itted that “the children would normally be in the department’s care for a year or more befo re [it] would consider adoption.” However, in this case, the Department filed the petitions to terminate parental rights after the children had been in foster care for approximately eight months. Contrary to father’s argument s, the Department’s decision to file petitions to terminate parental rights was not based “solely” on father’s im prisonment. There was evidence that father had limited contact with the ch ildren prior to his incarceration. Wh en he was arrested in January 2010, the oldest child was approximately two and a half years old, and the youn gest child was only six months old. He admitted that he had not built a relationship with his younge st child. As a result of his arrest, father has a founded Level One comp laint of child abuse an d neglect. Although the Department had sent corresponden ce to father about the foster ca re process, he did not respond.- 5 - While long-term incarceration does not, per se, authorize termination of parental rights . . . it is a valid and proper circumstance which, when combined with other evidence concerning the parent / child relationship, can support a court’s finding by clear and convincing eviden ce that the best interests of the children will be served by termination. Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). The evidence proved that the Department considered more than father’s imprisonment when it decided to file the petiti ons to terminate father’s parental rights. It also considered the children’s situation prior to the removal. The children came into the Department’s care because there were allegations of sexual abuse. They also were dirty and developmentally delayed. Despite the evidence regarding the children’s condition, father proposed that the children be returned to the paternal grandfather to await fa ther’s release from prison. The trial court was concerned that father suggested placing the children back in th e environment from which they were removed. The trial court did not err in terminating father’s parental rights. Assignment of error #2 Father argues that the tria l court erred in term inating his parental rights because the Department did not provide him with services or notify him of available services while he was incarcerated. This Court addressed a similar argument in Harrison v. Tazewell County Dep’t of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575 (2004), and we stated: [W]e find no merit in [father’s] contention on appeal that Code § 16.1-283(C)(2) required the Depart ment to offer him services during his incarceration. It woul d be patently unreasonable to require the Department, under such circumstances, to continue to offer services. . . . Thus as long as he was incarcerated, the Department would have had no aven ue available to offer [father] services aimed at assisting him in regaining custody of the child. Id. at 163-64, 590 S.E.2d at 583.- 6 - Likewise, Code § 16.1-283(B) does not require the Department to provide services to father during his incarceration. Even though the Depart ment was not required to provide services to father, it still kept him informed of the situation. The social work er testified that she sent father letters to update him on the children and the foster care process. She explained that the Department would not offer services to him while he was incarcerated; howeve r, she normally calls the case manager to discuss what services ar e available to the parent while he is in prison. The social worker left messages for father’s case manager, but no one called her back. In ad dition, the social worker provided father’s address to the clerk’s office so that he would r eceive copies of the foster care plan. Accordingly, the trial court did not err in terminating father’s parental rights because the Department was not required to provide him services while he was incarcerated. Assignment of error #3 Father argues that the trial court abused its discretion in no t reconsidering its decision to terminate his parental rights after he informed th e court that his prison sentence was reduced by twenty months. During the termination of parental rights hearing, the trial court learned that father’s anticipated release date was August 12, 2018. He testif ied that he was asking the federal court to reconsider his sentence in light of amended sentencing guidelines and to consider compassionate release. 3 After the termination of parent al rights hearing, the federal court reduced father’s sentence by twenty months based on the amended guidelines. Father then filed a motion with the trial court in this case an d asked the court to reconsider the decision to terminate his parental rights becaus e of the reduction in his pr ison sentence. Counsel

3 The record does not indicate whether the fe deral court ruled on father’s request for compassionate release.- 7 - informed the trial court th at father anticipated being released in late 2016 or early 2017. The trial court denied the motion to recons ider because father’s release da te was more than a year away. “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 capa ble of resuming his [or her] responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). The trial court considered father’s reduction in prison time. However, if father were released in late 2016 or early 2017, the children would have been in foster care for two to three years. As noted during the trial, father would still need to complete services after he was released from prison, so he would not be in a pos ition to take the children when he was released. Father testified that he would rely on the pate rnal grandfather for a ssistance when he was released, and the trial court wa s concerned that the children would be placed back in the environment from which they were removed. Considering the totality of the record, the tr ial court did not err in terminating father’s parental rights.
CONCLUSION For the foregoing reasons, the tr ial court’s ruling is affirmed. Affirmed.