COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Ru ssell and Senior Judge Frank

MICHAEL SEAN ESKRIDGE MEMORANDUM OPINION * v. Record No. 1676-14-3 PER CURIAM MARCH 3, 2015 WASHINGTON COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY C. Randall Lowe, Judge (Barry Lynn Proctor, on brief), for appellant. (Edward G. Stout; Kimberly L. Mumpower, Guardian ad litem for the infant child; Curcio & Stout, PC ; HPS Legal Group, on brief), for appellee.
Michael Sean Eskridge appeals the trial court’s order terminating his parental rights to his child pursuant to Code § 16.1-283( C)(1) and (2). Eskridge argues the trial court er red because the evidence did not prove that he wa s responsible for the conditions le ading to his child being placed into foster care and th at he was not provided an y remedial services by the Washington County Department of Social Services (DSS) while he was incarcerated. 1 Upon reviewing the record and briefs of the parties, we conclude this appeal is without merit. Accordin gly, we summarily affirm the decision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Eskridge also assigns error to the trial cour t’s approval of a permanency plan of adoption when DSS did not provide remedial services to him. “Our decision to affirm the termination order necessarily subsumes [the circuit court’s order approving adoption as the goa l in the foster care plan] aspect of his appeal because a prepondera nce-of-the-evidence stan dard governs judicial modifications of foster care plans.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265 n.3, 616 S.E.2d 765, 769 n.3 (2005).UNPUBLISHED- 2 - The trial judge’s findings, “‘when based on evidence heard ore tenus , will not be disturbed on appeal unless pl ainly wrong or without evidence to support [them].’” Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va . App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). We view the evidence in the light most favorable to the prevai ling party below and grant to it al l reasonable inferences fairly deducible therefrom. Id. So viewed, the evidence proved that B.E. was born on Sept ember 9, 2011, an d, when he was six weeks old, DSS becam e involved with the fa mily due to concerns about drug abuse and domestic violence. B.E. live d with his mother, maternal gr andmother, and a half-brother. 2 On September 18, 2011, Eskridge was arrested for drug manufacturing and distri bution. In December 2011, Eskridge was released on bond, but within twelve days, hi s bond was revoked based on his possession of illegal drugs. While Eskridge remained in carcerated, B.E.’s family continued to experience turmoil and DSS took custody of B.E. on December 5, 2012. Eskridge remained incarcerated in the regional jail until July 16, 2014. B.E.’s mother did not c ontest the term ination of her parental rights to either B.E. or B.E.’s half-brother. Ashley Tolliver, a family serv ices specialist with DSS, testified that while Eskridge was incarcerated, he had no contact with B.E. after B.E. came into the care of DSS. Tolliver informed Eskridge how to make contact with her, and she sent a “relative fo rm” to him. Eskridge returned the form, which provided names of family members for possible placement of B.E. Tolliver sent certified letters to the fa mily members, but th ey did not respond. Tolliver testifie d that during the time Eskridge was incarcerated, hedid not send any messages or car ds to B.E. or have any contact with B.E.

2 Eskridge is not the father of B.E.’s half-brother.- 3 - When B.E. came into the custod y of DSS, he received early in tervention services and made some improvements, but he remain s behind both physically and deve lopmentally. B.E. is attached to his foster family, who also has custody of B.E.’s half-brother. B.E.’s guardian ad litem testified that B.E. and his ha lf-brother are very fragile children and both boys would “absolutely crumble” if they were separated. Eskridge testified that, while incarcerated, his father or stepmother br ought B.E. to the jail approximately seven times to visit and the last vi sit was in 2011, which was prior to DSS taking custody of B.E. Eskridge testifie d he wrote letters to B. E., which he sent to B.E.’s mother, and he wrote a letter to DSS rega rding contact with B.E. 3 Eskridge testified that he had not taken any parenting or drug rehabilitation classes while incar cerated because they were not offered while the jail was being renovated. At the time of the termin ation hearing, Eskridge rece ntly had been released from incarceration and testified that he was living in a house owned by his father and would work part-time for his father. 4 Eskridge acknowledged that he did not pay child support for his two other older children. Eskridge further acknowledged th at he had been incarcerated fo r most of B.E.’s life, that B.E. would not recognize hi m, and that he agreed th at it would be devastati ng to B.E. to separate him from his half-brother. Eskridge also confirmed the nature of his prior felony convictions, which included illegal drug distribution, weapon o ffenses, and misdemeanor convictions. Eskridge

3 At the termination hearing, B.E.’s guardian ad litem stated that she never heard about the visits or letters until Eskri dge’s testimony, that the visits we re not arranged by DSS, and that the letters to B.E. were not sent through DSS. According to DSS, Eskridge sent the letter to DSS on May 19, 2013.

4 The termination hearing was held on July 9, 2014, while Eskridge remained incarcerated. However, because his release date was set for July 16, 2014, the trial judge continued the hearing to July 18, 2014, to provide Eskridge an opportunity to present evidence “as to future events.”- 4 - conceded he had a guardian ad litem for the termination proceeding due to his incarceration and that he did not ask the guardian ad litem for help in setting up contact w ith B.E. In terminating Eskridge’s parental rights un der Code § 16.1-283(C)( 1) and (2), the trial judge acknowledged that Eskridge sent a letter to DSS on May 19, 2013, in quiring abou t B.E., but also noted that the lette r did not request help from DSS or propo se any plan for providing for B.E. upon Eskridge’s release from incarceration in July 2014. The trial judg e found that Eskridge admitted that he had not b onded with B.E., th at B.E. would not recognize him, and that it would be devastating to B.E. and hi s half-brother to separate them. Th e trial judge also found that, shortly after B.E.’s birth, Eskridge was unable to provide for B.E. because of his drug use and arrests for felony offenses. Th e judge further found that, after Eskridge was released on bond , he continued to use drugs, resulting in his bond be ing revoked within twelve days. The trial judge stated that, while Eskridge was out on bond, he c ould have made arrangements for the care of B.E., but instead he used drugs and violated the terms of his bond, thereby knowingly subjectin g himself to a longer period of incarceration. The trial judge di d not find credible Eskridge’s testimony that no parenting or drug rehabilitation cla sses were offered through the jail during the two-and-a-half year s Eskridge was incarcerated. The trial judge stated Eskridge had a “tremendous criminal history,” and he found that, despite previously receiving treatment at a diversion center, Eskridge continued to use drugs and commit criminal offenses. The trial judge concluded that Eskridge’s past history demonstrated that he would not place the interest s of B.E. above his own. The tria l judge also foun d that B.E. was in a stable loving environment and that separating B.E. from his half-broth er would be devastating
to B.E.. Eskridge argues his criminal conviction stan ding alone was insufficient to terminate his rights and that DSS failed to provid e appropriate services to him.- 5 - Pursuant to Code § 16.1-283(C)(1), a trial cour t may terminate the righ ts of a parent to a child upon clear and convincing evidence that the parent, without good cause, failed to mainta in continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the ch ild’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or othe r rehabilitative agencies to communicate with the parent . . . an d to strengthen the parent-child relationship. Proof that the pare nt . . . ha[s] failed without good cause to communicate on a continui ng and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition[.] When considering termination of parental ri ghts, “the paramount c onsideration of a trial court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463. We agree that Eskridge’s incarceration, sta nding alone, is not sufficient to support the trial court’s termination of his parental rights, but “it is a va lid and proper circumstance which, when combined with other evidence concerning th e parent/child relations hip, can support [the] court’s finding that the best interests of the ch ild 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). Moreover, Code § 16.1-283(C)(1) contains no ex cuse for a parent’s failure to maintain continuing contact and to substantially plan for the future of the child. This Court addressed whether services must be offered to an incarcerated parent in Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575 (2004). There, we stated, “as long as he was incarce rated, the Department w ould have had no avenue available to offer [the father] se rvices aimed at assisting him in regaining custody of the child.” Id. at 164, 590 S.E.2d at 583. “‘Reasonable and appropriate’ efforts can only be judged with reference to the circumstances of a particular case. Thus, a court must determine what constitutes reasonable and appropr iate efforts given the facts be fore the court.” Ferguson, 14 Va. App. at 338, 417 S.E.2d at 4.- 6 - Notably, Eskridge was not incarcerated when B.E. was born. Instead of providing for his newborn child, Eskridge chose to use drugs, co mmit felony offenses, and was arrested as a result. While out on bond, instead of taking care of B.E. and making plans for B.E. in case of incarceration, Eskridge chose to continue using drugs and committing criminal offenses, and his bond was soon revoked. Although Eskridge returned a form to DSS providing the names of possible family members to care for B.E., he made no further contact with DSS until sending a letter in May 2013, which was more than six m onths after DSS took custody of B.E. In the letter, Eskridge did not request help from DSS or propose any plan for provi ding for B.E. upon his release from incarceration in Ju ly 2014. Eskridge also did no t seek help from his guardian ad litem , who was appointed to assist Eskridge due to his incarceration. Eskridgemade no attempts to contact B.E. through DSS or to wr ite B.E. letters after DSS took custody of him. “‘[P]ast actions and relationships over a meaningful period serve as good indicators of wh at the future may be expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 695- 96, 492 S.E.2d 464, 467 (1997) (quoting Linkous v. Kingery, 10 Va . App. 45, 46, 390 S.E. 2d 188, 194 (1990)). Furthermore, “[i]t is clearly not in the best intere sts of a child to spen d a lengthy period of time waiting to find out when, or even if, a parent will be capable of resumi ng his responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). There was sufficient evidence supporting the tria l judge’s decision that Eskridge failed to maintain contact or substantially plan for the futu re of B.E. for a period of six months after B.E. was placed in foster care and in termina ting Eskridge’s parental rights under Code § 16.1-283(C)(1). Because we conclude the trial court’s term ination of Eskridge’s parental rights was warranted under Code § 16.1-283(C)(1), we need not decide if the termination also was warranted under Code § 16.1-283(C)(2). When a trial court’s judgment is made on alternative- 7 - grounds, we need consider only whether any one of the alternatives is su fficient to sustain the judgment of the trial court and, if we so find, need not address the other grounds. See Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005) (termination of parental rights upheld under one subsection of Code § 16.1-283 fo recloses need to consider termination under alternative subsec tions). Thus, we need not addr ess Eskridge’s contention that no evidence proved that he was responsible for th e conditions leading to the child’s removal, a requirement only under Code § 16.1-283(C)(2). For the reasons stated above, we summarily affirm the decision terminating Eskridge’s parental rights. See Rule 5A:27. Affirmed.