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

TONYA J. COGAR, S/K/A TONYA LOPEZ COGAR MEMORANDUM OPINION * BY v. Record No. 0673-17-3 JUDGE RICHARD Y. ATLEE, JR. DECEMBER 27, 2017 SHENANDOAH VALLEY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Victor V. Ludwig, Judge Shelly R. James (John Elledge & Associates, on brief), for appellant. James B. Glick; Eric D. Swortzel, Guardian ad litem for the minor children (Vellines, Glick & Whitesell, P.C., on brief), for app ellee.
Tonya J. Cogar appeals a decisi on of the Circuit Court of Augus ta County terminating her parental right s to two of her ch ildren. We affirm.
I. B ACKGROUND The facts and legal proceedi ngs in this case unfolded over the course of approximately two years. In April 2015, the Shena ndoah Valley Department of Social Services (“DSS”) removed two children from Tonya J. Cogar (“mother”): her daugh ter “A.” (born in 2010) and her son “M.” (born in 2013). In A pril 2016, the Juvenile and D omestic Relations District Court of Augusta County (“the J&DR cour t”) terminated mother’s parent al rights to those children. Mother appealed that decision to the Circuit Court of Augusta C ounty (“the circuit court”), which terminated her parental r ights in April 2017. Mother now appeals that decision.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - We view the evidence in the li ght most favorable to the party t hat prevailed below, and draw all reasonable inferences f rom the evidence in that party’ s favor. Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 ( 2014). Here, DSS prevailed in the circuit court. The f acts were as follows. 1 DSS removed the children in Apr il 2015. The circuit court summ arized the issues precipitating that removal: [T]he reason for the removal was that Cogar had taken the children to Augusta Health with “concerns t hat [they had been] ‘injected with GPS tracking devices,’ and t hat they were ‘left with a pedophile and the Mexican Car tel.’” In addition, Cogar “apparently expressed concerns . . . that [the children] had be en ‘injected with needles that were still in t heir legs, and the c hildren [had] microchips implanted in th em.’” Cogar reported that the children’s father had “wired t he house” and that he was “direct ing water toward the flooring withi n the home so as to soften the flooring and cause an explosi on . . . with the electrical wirin g beneath the residence.” (Citations omitted) (quoting psychological evaluation (all but first alteration in original) (referring to mother as “Cogar”) (quoting foster care service p lan)). Mother reported to the evaluating psychologist previous diagnoses of attention deficit disorder and bipolar disorder. She also confirmed that, near t he time the children were remove d, Augusta Health diagnosed her as “delusional.” Unable to locate a relative with whom to place the children, D SS placed them in a foster home. The foster care service plan developed by DSS, and appro ved by the J&DR court, included requirements that moth er attend scheduled visitations with the children, maintain stable housing, maintain stable employme nt, “report any changes in her whereabouts” and contact information, cooperate with the “Promoting Safe and Stable Fami lies” program, and “attend,

1 Unless otherwise indicated, t he quotations that follow are fro m the circuit court’s detailed letter opinion, issued May 8, 2017.- 3 - participate in, and successfull y complete any services recommen ded from the [psychological] evaluation.” The psychological evaluation recommended “partici pation in psychiatric treatment as soon as possible,” “individua l counseling or psychotherapy,” and “participation in an intensive parenting education program.” T he evaluation also observed tha t mother had “a history of a documented bipolar disorder, yet sh e has not been taking any mo od stabilizing medication recently.” DSS arranged a supervised visita tion schedule for mother, but mother was frequently late for visits, and missed several ou tright. Within six months of the removal of her children, mother quit her job as a nurse’s aide and moved to West Virginia. Whe n that occurred, “the weekly [visitation] schedule was reduced to every altern ate week, at [ mother]’s request.” After June 2016, visitation ceased entirely. 2 DSS often had difficulty finding mother, who lived in multiple locations over a short span of time. She acknowledged f ailing “to keep [DSS] informed of her physical residence” after moving to West Virginia in 2015. Even her address at the time of trial was unclear: [W]hen asked about her current address, [mother] initially responded, with some lack of certainty, that she lived . . . in West Virginia. After the question was asked multiple times, and aft er [mother] evaded answering it, she testified thatshe had recent ly returned to Virginia and finall y said, “Well, I am homeless.” Pressed further, she said that s he was currently staying with “Poppy,” whose name, she believes, is “Valentine—maybe.” She has been with him for approxima tely three weeks (she was not certain of the time), at a house so mewhere in Stuarts Draft (sh e could not be more specific), and she did not know the street or post office address. Asked whether s he intended to remain in Virgin ia, her response was that she “woul d like to—maybe.” She testified

2 The visits ceased for what appe ar to have been several reasons , among them mother’s deteriorating relationship wit h DSS and the absence of any lega l requirement that DSS provide mother with visitation, once the J&DR court terminated mother’s parental rights in April 2016.- 4 - that she is seeking employment and housing, but she offered no details of her efforts or prosp ects for success in either endea vor. (Footnote omitted). Mother’s employment status w as similarly unsatisfactory. In Ju ly of 2015, she left her job at Shenandoah Nursing Home, whe re she had worked for two-an d-a-half years. She moved that October to West Virginia, remaining there until apparentlymoving back to Virginia just before the 2017 trial. During her time in West Virginia, she n ever worked, notw ithstanding her testimony that her CNA license remained valid. Mother did not participate i n psychiatric treatment, although s he testified that her family doctor prescribed medication that she was taking at the time of the termination proceeding. (The record does not disclose what th at medication was.) Mother rep orted attending some counseling sessions in West Virginia, but D SS could not confirm this becau se mother provided no contact information for the provider. No e vidence was presented that m other completed the “Promoting Safe and Stable Families” program . Mother participated in two sessions of a fifteen-session parenting program, then moved to We st Virginia. She testified that she was ineligible for participation in a parenting program in West Virginia.
II. A NALYSIS Mother assigns the following error: “The trial court erred in terminating Appellant/Mother’s parental ri ghts because the condition that l ed to the children going into foster care had been remedied and because DSS’s behavior in this case was ‘good cause’ for her failure to maintain a relationship with her children.” A. Standard of Review “A trial court is presumed to ha ve thoroughly weighed all the e vidence, considered the statutory requirements, and ma de its determination based on the child’s best interests.” Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). That presumption is rooted in a circuit- 5 - court’s “broad discretion in mak ing the decisions necessary to guard and to foster a child’s best interests.” Id. at 328, 387 S.E .2d at 795. A circuit court’s decision “based on evidence heard ore

tenus , will not be disturbed on appeal unless plainly wrong or witho ut evidence to support it.” Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)

. B. Applicable Statute The circuit court found that te rmination of mother’s parental rights was in the best interests of the ch ildren, and terminated those rights pursuant to Code § 16.1-283(C)(1) and (C)(2). A court may terminate pare ntal rights under subsection (C)(1) if it finds, by clear and convincing evidence, that: The parent or parents have, w ithout good cause, failed to maint ain continuing contact with and to prov ide or substantially plan fo r the future of the child for a peri od of six months after the child’ s placement in foster care notw ithstanding the reasonable and appropriate efforts of social, m edical, mental health or other rehabilitative agencies to communicate with the parent or paren ts and to strengthen the paren t-child relationship. A court may terminate parental rights under subs ection (C)(2) i f it finds, by clear and convincing evidence, that: The parent or parents, wit hout good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 mont hs 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 subsections provide different mechanisms and justifications for termination. Subsection (C)(1) addresses a parent’s fa ilure to maintain contact with a child or to plan for that child’s future; subsection (C)(2) addres ses a parent’s failure to remed y the conditions that caused a child to enter foster care, or require d the continuati on of the child ’s stay in foster care. “[E]ach subsection, although similar in natu re, is written as a distinc t and grammatically independent- 6 - provision of the statute” and the different subsections “set fo rth individual bases upon which a petitioner may seek to terminate residual parental rights.” Ci ty of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466 (2 003). Thus here, although the circuit court made findings t hat termination was supported unde r both subsections, a finding as to either subsection alone woul d have justified termination. F or the reasons we outline below, we find that termination was ju stified under subsection (C)(2). In light of that finding, we need not address whether termination w as justified under subsection (C)(1). C. Preservation of Error To begin, we address DSS’s argument that mother failed to prese rve the errors she now alleges on appeal and that this failure violates Rule 5A:18 and requires dismissal of her appeal. See Rule 5A:18 (stating, in part , that “[n]o ru ling of the tria l court . . . will be considered as a basis for reversal unless an obj ection was stated with reasonab le certainty at the time of the ruling”). Mother filed no trans cripts in this case. Rather, s he filed in the circuit court a copy of the circuit court’ s letter opinion, designa ting it as her “Stat ement of Facts.” She included with this pleading a two-page documen t containing a summary of the a rguments she had made at trial. She directs our attention to the se two pages as the location of the preservation of her assigned

error. The problem with this pleading is that it was filed outside the deadline contained in Rule 5A:8. Pursuant to Rule 5A:8(c ), “[a] written statement of fact s, testimony, and other incidents of the case becomes a part of th e record when: (1) within 55 days after entry of judgment a copy of such statement is filed in the o ffice of the clerk of the trial court.” The circuit court entered termination orders on April 10, 201 7. Fifty-five days from tha t date would be June 4, 2017. That being a Sunday, the copy of mot her’s written statement of facts was due to be filed on or before Monday, June 5, 2017. Although the certificate mother i ncluded when she filed the- 7 - statement of facts indicates tha t the pleading was filed June 5 , 2017, the circuit court’s clerk’s office stamp, and handwritten deta ils written onto that stamp, show that it was actually filed in the clerk’s office on June 9, 2017. Because this filing comes outside the 55-day deadline, we cannot consider the two-page re citation of mother’s arguments o r the attached copy of the letter opinion. However, the circuit court’s le tter opinion is included elsewhe re in the record. For that reason, we can and do consider the letter opinion, and we treat it as a stateme nt of facts for purposes of this appeal. Rule 5A :18’s contemporaneous objectio n requirement serves “to inform the trial judge of the action c omplained of in order to give th e judge the opportunity to consider the issue and to take timely cor rective action, if warranted, i n order to avoid unnecessary appeals, reversals and mistrials.” Robinson v. Commonwealth, 13 Va. App . 574, 576, 413 S.E.2d 885, 886 (1992). We find that the circ uit court’s le tter opinion cl early addresses the arguments mother now raises on appeal. Thus mother’s brief complies with Rule 5A:18, and we consider her arguments on the merits. D. Code § 16.1-283(C)(2) Mother appears to misunderstand bot h the language of the termin ation statute, and the circuit court’s application of t hat statute in this case, as ev idenced by the following assertion at oral argument: [T]he court has to find as a ma tter of law, based on clear and convincing evidence, that ther e’s been . . . “a failure to reme dy the conditions that led to the placement” in foster care. While pe rhaps it would be easier, and maybe even better, if the statute were worded differently, the statute does not say “the conditions th at continue to keep” the children i n foster care. The statute pla inly says “fail to remedy conditions that led to” the placement. Oral Argument Audio at 12:57 to 13:38 (Nov. 29, 2017). In fact , Code § 16.1-283(C)(2) says precisely what counsel for mothe r claims it does not, namely th at the termination may not occur- 8 - unless it is proven that the “p arents, without good cause, have been unwilling or unable within a reasonable period of time not t o exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child’s foster care placement.” (Emphasis added). When this was point ed out to mother’s counsel, she responded: “Our position is that , that, that first sentence, f irst part, ‘to reme dy substantially the conditions that led to’ is wha t the judge found in this case.” Oral Argument Audio at 15:30-15:48 (Nov. 29, 2017). This a ssertion is belied by the o pinion letter of the circuit court, which states: “It is not so muc h [mother]’s failure to remedy the condition which led to the removal of the children; rathe r, it is her unwillingness to do the things that were not unreasonably required of her to pr event the continuation of the removal.” We agree with this conclusion. 3 Shortly after DSS removed the children, mother moved out of st ate. As the circuit court noted: Whatever benefit she might have derived from relocating to West Virginia, she acknowledged that the consequences included (a) h er leaving her employment, (b) her leaving her residence here, (c) complicating her ability to w ork with the Department to reg ain custody of her children, and (d) a significant re duction in the frequency of her visits. The circuit court went on to obs erve that mother was “by her ow n assessment, homeless, or, at best, living with a man whose name she does not know, in a hous e which she cannot locate, for a period she cannot project; that i s hardly an ideal situation.”

3 We also observe that mother’s a ssignment of error appears to r eference only her preferred portion of subsection (C)(2), by asserting that “the condition that led to the children going into foster care had been remedied.” The assignment of e rror does not address the language in subsection (C)(2) about “the conditions which . . . required continuation of the child’s foster care placement.” Notwithstanding mother’s failu re to mention this portion of subsection (C)(2) in her assignmen t of error, we address it in this opinion, given its centrality in the circuit court’s reasoning.- 9 - Mother failed to keep DSS adequa tely informed of her whereabout s, did not obtain adequate psychiatric treatment or psychological counseling, did not complete a parenting program, remained unemployed thr oughout the majority of the tim e the case was pending, and was sporadic in her visitation. T hese failures were of her own making. It is both unfair to the children, and contrary to the cont rolling statute, that mother be given an indefinite period within which to remedy “the conditions which . . . required continuati on of the child[ren]’s foster care placement.” Code § 16.1-283(C)(2). Her failure to do so requi res affirmance.
III. C ONCLUSION The circuit court’s decision to t erminate mother’s parental ri ghts under Code § 16.1-283(C)(2) was supported by cl ear and convincing evidence , was in the best interests of the children, and was not plainly wrong. Affirmed.