COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, Judges Elder and Beales Argued by teleconference

REBECCA DUNN MEMORANDUM OPINION * BY v. Record No. 0671-10-1 JUDGE LARRY G. ELDER JANUARY 18, 2011 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COUR T OF SOUTHAMPTON COUNTY Westbrook J. Parker, Judge Wallace W. Brittle, Jr. (Wallace W. Brittle, Jr., P.L.C., on brief), for appellant. Richard E. Railey, Jr. (R ebecca S. Colaw, Guardian ad litem for the minor children, on brief), for appellee.
Rebecca Dunn (appellant) appeal s the circuit court’s termination of her residual parental rights in her three children, A.C. , G.C., and D.C., pursuant to Code § 16.1-283(C). Appellant contends the circuit court applied the incorrect st andard of proof to the stipulated evidence in determining that termination of her parental rights was in the best interests of her three children. Appellant further argues the circ uit court erred by failing to cont inue the termina tion hearing in order to further investigate placing the children in the custody of he r sister, Kimberly Smith. Upon consideration of the entire recor d, we conclude the circuit court applied the correct standard of proof. Further, because the circ uit court had the oppo rtunity to evaluate Smith’s willingness and suitability to raise th e children through her testimony at the termination hearing, the circuit court

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - was not required to order additional investigation. Accordingly, we affirm the circuit court’s orders terminating appellant’s resi dual parental rights in A.C., G.C., an d D.C.
I. When addressing matters concerning the custody and care of a child, this Court’s paramount consideration is th e child’s best interests. Toombs v. Lynchburg Div. of Soc. Servs. , 223 Va. 225, 230, 288 S.E.2d 405, 407-08 (1982). On app eal, we presume that the circuit court thoroughly weighed all the eviden ce, considered the statutory requirements, and made its determination based on the ch ild’s best interests. Farley v. Farley , 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). The circuit court is vested with broad discretion in making decisions “necessary to guard and to foster a child’s best interests.” Id. at 328, 387 S.E.2d at 795. Where, as here, the court hears the evidence ore tenus , its findings are entitled to great weight and will not be disturbed on appeal unl ess plainly wrong or without evidence to support them. Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs. , 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
A.
TERMINATION OF RESIDUAL PARENTAL RIGHTS UNDER CODE § 16.1-283(C) Pursuant to Code § 16.1-283(C), th e circuit court may terminate [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 pare nts . . . if the court finds, based upon clear and convincing evidence, that it is in the best interest of the child. Further, the circuit court must find [t]he parent or parent s, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child wa s 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 ag encies to such end.- 3 - Code § 16.1-283(C)(2). The Depa rtment of Social Services (DSS) has the burden of proving both conditions by clear a nd convincing evidence. See Kaywood v. Halifax Cnty. Dep’t of Soc.
Servs. , 10 Va. App. 535, 539, 394 S.E.2d 492, 494 (1990). Appellant does not challenge the sufficiency of the evidence supporting the circuit court’s conclusion. Rather, she argues the circuit cour t gave undue deference to the factual findings from the permanency planning hearing and tacitly applied those findings under the lesser standard of proof of a preponderance of the evid ence. According to appellant, such deference has the effect of circumventing the clear and convincing evidence standa rd. We disagree. The decision to terminate a parent’s rights in her children “must follow the approval of a foster care plan recommending termination.” Najera v. Chesapeake Div. of Soc. Servs. , 48 Va. App. 237, 240, 629 S.E.2d 721, 723 (2006). Howeve r, “[a] preponderance-of-the-evidence standard governs judicial review of the fost er care plan recommenda tions, while the more stringent clear-and-convincing-evidence standard applies to the ultimate termination decision.” Id. (citing Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 266 & n.3, 616 S.E.2d 765, 769-70 & n.3 (2005)). Despite the differing standards of proof be tween a permanency planning hearing and a termination hearing, appellant has pointed to no authority, and we have found none, that prohibits a circuit court from relying on facts addu ced at one hearing to make its determination in the other. Indeed, it would be a waste of judici al resources to reintroduce all the evidence from the previous hearing that could simply be stipul ated to without objection, and we will not require the circuit court to assume “a vain and useless undertaking.” Va. Passenger & Power Co. v. Fisher , 104 Va. 121, 129, 51 S.E. 198, 201 (1905).- 4 - It is clear from the record that the circuit court did not bind itself to the legal conclusions from the permanency planning hearing. At that hearing, the circuit cour t made several factual findings: [(1)] that the father of the . . . children has sexually abused one or more of the three children; [(2)] that through his guardian ad litem the father has advised the circuit court that in his opinion it would be in the best interest of th e three daughters to approve the permanency plan prescribing term ination of the parental rights; [(3)] that [appellant] is unable to protect and nurtur e her children[,] particularly children with special and extraordinary needs; [(4)] that the maternal grandm other, Edna Dunlow, and the step-grandfather are inca pable of providing for the special needs; [(5)] that reasonable efforts have been made by [DSS] to reunite the children with their parents . . . or [with] a relative; [(6)] that [the father] was previously married to the maternal grandmother, Edna Dunlow, and was previously appellant’s stepfather; and [(7)] that the best interest of the children demand that the permanency plan offered by DSS be approved and that a petition for termination of parental rights be filed. At the termination hearing on December 1, 2009, DSS requested that these findings be incorporated into the record. Counsel for appe llant did not object and conceded that DSS’s witnesses would have established those facts if they were to te stify at the termination hearing. Having assented to the inclusion of these stipulations, appellant cannot now claim the trial court erred in considering those stipulations in making its decision, especially where appellant did not provide evidence that disputed their validity. And, the evidence in the record— the testimony of the foster mother, the foster ca re plans, the psychological evaluations of the children, and the Parental Capaci ty Evaluations of appellant and the maternal grandparents— corroborates each of the s tipulations. In fact, th e final termination orders specifically referenced these other sources of evidence. When the circ uit court announced its ruling from the bench, it did not state it was bound by the ruling from the permanency planning hearing. Instead, it stated, “If there’s any case where parental rights should be terminated this is it.” From this strong language, we presume the circuit court applie d the more stringent “clear and convincing- 5 - evidence” standard of proof. 1 See Barker v. Barker , 27 Va. App. 519, 543, 500 S.E.2d 240, 252 (1998) (“Unless a party can show evidence to the contrary, we presume that the trial court properly applied the law to the fact s.”). It is clear the circuit c ourt merely used the stipulated facts in conjunction with th e other evidence in the reco rd to render its decision. See Akers v. Fauquier Cnty. Dep’t of Soc. Servs. , 44 Va. App. 247, 259, 604 S.E.2d 737, 742 (2004) (“The best interests of the child are to be determined at the time of the termination hearing.”). Accordingly, we will not reverse the circuit co urt’s decision based on its having incorporated findings from a related hearing.
B. REASONABLE ALTERNATIVE UNDER CODE § 16.1-283(A) Appellant next argues the circuit court did not give adequate cons ideration to Smith’s improved ability to care for the children. Appe llant maintains the circuit court should have continued the hearing to allow another investigation to determine whether Smith had become a viable candidate to raise the children. This ar gument ignores the fact th at the circuit court had the opportunity to assess Smith’s su itability in raising the childr en through her testimony at the termination hearing. Code § 16.1-283(A) provides that, in a termin ation of parental rights case, “the court shall give consideration to gran ting custody to relatives of the ch ild, including the grandparents.”

1 We have defined clear and convincing evidence as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” C. S. v. Va. Beach Dep’t of Soc. Servs. , 41 Va. App. 557, 565-66, 586 S.E.2d 884, 888 (2003) (quoting Gifford v. Dennis , 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1 (1985)).- 6 - “Before termination of parental rights by the court, the agency seeking termination has an affirmative duty to investigate all reasonable opti ons for placement with immediate relatives.” Sauer v. Franklin Cnty. Dep’t of Soc. Servs. , 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994) (emphasis added). Prior to the circuit court granting custody of a child , however, DSS merely “has a duty to produce sufficient evidence so th at the court may properly determine whether there are relatives willing and suit able to take custody of the child, and to consider such relatives in comparison to other placement options.” Logan v. Fairfax Cnty. Dep’t of Human Dev. , 13 Va. App. 123, 131, 409 S.E.2d 460, 465 (1991). DSS m eets this burden where the relative in question “testifie[s] as to her suitability to assu me custody of [the child],” because “there [is] no reason to require DSS to investig ate her[] [when] the court [has] before it all the evidence necessary to consider [the rela tive] as a possible custodian.” Hawthorne v. Smyth Cnty. Dep’t of
Soc. Servs. , 33 Va. App. 130, 139, 531 S.E.2d 639, 644 (2000); see Brown v. Spotsylvania Dep’t of Soc. Servs. , 43 Va. App. 205, 218-19, 597 S.E.2d 214, 220-21 (2004). Here, appellant does not disput e that DSS investigated Smith as a potential candidate for assuming custody of the children. Smith admitted that at the time of the investigation, she told DSS she could not look after the children and chose not to file a petition for custody. Smith explained she had significant oblig ations related to raising her ow n family and also did not have adequate room in her residence to care for the three children in addition to her own family. At the termination hearing, Smith te stified before the circuit cour t that her circumstances had changed enough so that she was a suitable a nd willing candidate to assume custody of A.C., G.C., and D.C. The circuit court considered th is testimony and rejected Smith as a suitable candidate for placement of the children. Becau se Code § 16.1-283(A) requires nothing more, see Hawthorne , 33 Va. App. at 139, 531 S.E.2d at 644; Logan , 13 Va. App. at 131, 409 S.E.2d at- 7 - 465, we conclude the circuit court’s decision to re ject Smith’s request for custody of the children was not plainly wrong.
II. The record supports the conclusion that th e circuit court applied the “clear and convincing evidence” standard of proof when it terminated appellant’s residual parental rights. Its reliance on factual stipulations from the permanency pla nning hearing does not undermine this ruling. Further, the circuit court did not err in rejecting Smith as a su itable candidate without further DSS investigation because her testimony at the ore tenus hearing provided the court with sufficient evidence to determine whether she was a relative willing and suit able to take custody of the children. For these reasons, we affirm the circuit court’s decision. Affirmed.