COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alst on and Senior Judge Coleman LEWIS ROBERT NEWMAN, SR. MEMORANDUM OPINION * v. Record No. 2754-08-2 PER CURIAM JUNE 2, 2009 CHARLOTTESVILLE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Paul M. Peatross, Jr ., Judge Designate (B. Stephanie Commander, on brief), for appellant. (Allyson Manson-Davies, Deputy City Attorney; Ro se Burks Emery, Guardian ad litem for the infant child, on brief), for appellee.

Lewis Robert Newman, Sr. (fat her) appeals the termination of his residual parental rights to his child, L.N., under both subsection B and paragraph 2 of subsection C of Code § 16.1-283. 1

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

1 Code § 16.1-283 states, in pertinent part: B. The residual parental rights of a parent or parents of a child found by the court to be neglected or abused and placed in foster care as a result of (i) court commitment; (ii) an entrustment agreement entered into by the pare nt or parents; or (iii) other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that: 1. The neglect or abuse suffered by such child presented a serious and substantial threat to his lif e, health or de velopment; and 2. It is not reasonably likely th at the conditions which resulted in such neglect or abuse can be subs tantially corrected or eliminated so as to allow the child’s safe retu rn to his parent or parents within a reasonable period of time. In making this determination, the court shall take into consideration the efforts made to rehabilitate the parent or parents by any pub lic or private social, medical,- 2 - On appeal, father contends the trial court erred in fi nding the evidence sufficient to terminate his parental rights. He also contes ts the trial court’s approval of th e foster care plan’s “change in goal” to adoption. For the reasons that follow, we summarily affirm the decision of the trial

court. BACKGROUND L.N., who was born on October 27, 2004, is the biological child of Connie Ryan (mother) and father. In 2005, mother and father’s parental rights were involuntarily terminated to their four other children. On January 31, 2006, father struck mother re peatedly while she was holding L.N. As a result of the incident, the Charlottesville Juveni le and Domestic Relations District Court (J&DR court) removed L.N. from father’s physical cu stody, found L.N. to be neglected and abused, and placed him in the custody of the Charlottesv ille Department of Soci al Services (CDSS). At the time of the January 31, 2006 incident, Nancy Newman (aunt), L.N.’s paternal aunt, had legal custody of him. Shortly after she received legal custody, she allowe d father physical

mental health or other rehabilita tive agencies prior to the child’s initial placement in foster care.
* * * * * * * C. The residual parental rights of a parent or parents of a child placed in foster care as a re sult of court commitment, an entrustment agreement entered into by the parent or parents or other voluntary relinqu ishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that: 2. The parent or parents, wit hout good cause, have been unwilling or unable within a reasonable pe riod 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 - custody. While in the physical custody of father , L.N. was taken to the hospital and diagnosed with severe asthma. Doctors pr escribed two medications and directed use of an inhaler every four hours. Despite doctors’ warnings to mother and father that L.N. could not be in the presence of smoke, mother and father subj ected him to smoke on a consistent basis. When L.N. came into CDSS’s care, he exhibite d delayed verbal skills and indicated what he wanted by pointing and “babbled very little .” He expressed few em otions. L.N. did not recognize certain foods that were given to him, and he wanted to be bottle-fed. He was unfamiliar with eating utensils and how to use them. He was underweight, weighing approximately nineteen pounds. L.N. entered foster care with the foster care service plan goal of “return home” concurrently with “relative placement.” To that end, the service plan set forth that father must comply with CDSS’s recommendations for services to include in-home, individual, and family therapy; attend and participate in parenting cl asses; obtain education on child development and apply the skills father acquired to L.N. dur ing visits; visit L.N. on a regular basis and demonstrate parenting skills by showing love, nu rturing, and support during the visits; attend a psychological evaluation and follow all recomme ndations; attend, participate, and complete anger management classes; attend and complete a batterers’ group; refra in from alcohol and illegal substance use; sign all releases a nd communicate with providers; obtain stable employment and maintain financial stability; fi nd and maintain stable housing; update CDSS with any changes to phone numbers, addresses, and employment; communicate with CDSS on a monthly basis; provide CDSS with a list of relatives who could care for L.N.; refrain from illegal activity; and sign background checks. Despite CDSS efforts to help father, he faile d to comply with the foster care service plan’s requirements. Specifical ly, he refused to meet with therapists recommended by CDSS.- 4 - He refused to complete a psychological examinat ion arranged for him by CDSS. Father told a CDSS social worker that he was not going to do “this foster care thing” again. On another occasion when CDSS scheduled a meeting for fath er to discuss a developmental evaluation of L.N., father refused to sign a consent form perm itting the evaluation to occur. Later, father signed the consent form but CDSS cancelled the ev aluation on two occasions due to the inability to locate father to inform him of the scheduled evaluation. At a foster care hearing, fa ther claimed he lived with a unt. To the contrary, however, aunt contended that father did no t live with her. Father failed to update CDSS regarding his new address or contact information. He did not maintain a stable, sa fe home. Although father visited L.N. on six occasions in February and March 2006, fa ther failed to remain in contact with CDSS or visit L.N. from March 31, 2006 through Septem ber 11, 2006. During the six visits with L.N., father did not display nurturing parenting skills and did not complete se rvices to improve his parenting skills. Father remained unable to show stability, appropriate parenting, or sobriety. On October 11, 2006, the foster care servic e plan goal changed from “return home” to “placement with relatives” due to a lack of cooperation and progress by father. On August 24, 2007, the J&DR court terminated father’s parent al rights pursuant to Code § 16.1-283(B) and (E)(i). Father appealed the J&DR court’s decision to the trial court. The trial court conducted a hearing on September 4, 2008. Following the hearing, th e trial court terminated father’s parental rights pursuant to Code § 16.1-283(B) a nd (C)(2). This appeal followed.
ANALYSIS On appeal, father contends the trial cour t erred in finding the evidence sufficient to terminate his parental rights. He also contends the trial court erred in approving the foster care plan’s “change in goal” to adoption. We disagree with father’s contentions.- 5 - As a preliminary matter, we have recognized that the “termination of residual parental rights is a grave, drastic, and irreversible action,” Helen W. v. Fairfax County Dep’t of Human
Dev. , 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991), and we presume the trial court “‘to have thoroughly weighed all the evidence, consid ered the statutory requirements, and made its determination based on the ch ild’s best interests,’” Logan v. Fairfax County Dep’t of Human
Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Farley v. Farley , 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). “The trial c ourt’s judgment, ‘when based on evidence heard ore tenus , will not be disturbed on appeal unle ss plainly wrong or without evidence to support it.’” Id. (quoting Peple v. Peple , 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). We first consider father’s contention that the evidence was insufficient to terminate his parental rights under Code § 16.1-283(B). Th e record shows that on January 31, 2006, father struck mother while she was holding L.N. In a ddition, father subjected L. N. to the presence of smoke, knowing that L.N. had a severe asthma condition. When L.N. came into the care of CDSS, he was underweight, communicated by poin ting to what he wanted, was unfamiliar with certain foods, drank from a bottle, was unfamilia r with eating utensils, and expressed few emotions. Despite numerous attempts by CDSS to help father remedy these conditions and satisfy the foster care plan requirement s, father repeatedly refused to cooperate and comply with his responsibilities under the plan. He failed to complete CDSS’s recommended parenting skills classes, individual therapy and counseling, psyc hological evaluation, anger management classes, and failed to participate in a batterers’ group. He failed to refrain fr om alcohol and illegal substance use. He thwarted efforts by CDSS to have L.N. evaluated on a developmental basis by failing to initially sign the releas e permitting the evaluation. He did not maintain stable housing. He failed to communicate on a monthly basis w ith CDSS and failed to update his contact- 6 - information with CDSS. Although he visited L.N. six times in February and March 2006, he did not thereafter visit L.N. for several months. Du ring the time when father did not visit L.N., CDSS could not locate father. From this evidence, the trial court could fi nd that father did not complete most of his responsibilities set fort h in the foster care plan. We c onclude, therefore, that clear and convincing evidence supported the tr ial court’s finding that the neglect or abuse suffered by L.N. presented a serious and substantial threat to his life, health, and development and that it was not reasonably likely that th e conditions which resulted in the negl ect or abuse could be substantially corrected or eliminated by father. Accordingly, the trial court did not e rr in concluding that it was in the best interest of L.N. to terminat e father’s parental rights under Code § 16.1-283(B). We also find no error by the trial court in te rminating father’s parental rights under Code § 16.1-283(C)(2). Indeed, we have previously uphe ld terminations under multiple subsections of Code § 16.1-283. See Ferguson v. Stafford County Dep’t of Soc. Serv. , 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992) (upholding the trial court’s d ecision to terminate residual parental rights pursuant to Code § 16.1-283(B) and (C)(1)). The record amply supports the finding that father, without good cause, was unwilling or unable with in a reasonable period of time to remedy substantially the conditions that led to L.N.’s foster care plac ement. Accordingly, the trial court did not err in concluding that terminating father’s parental ri ghts was in L.N’s best interests under Code § 16.1-283(C)(2). Father additionally contends the trial cour t erred in approving the foster care plan’s “change in goal” to adoption. “A preponderanc e-of-the-evidence standard governs judicial review of the foster care plan recommendations, while the more stringent clear-and-convincing-evidence st andard applies to the ultim ate termination decision.” Najera v. Chesapeake Div. of Soc. Servs. , 48 Va. App. 237, 240, 629 S.E.2d 721, 722 (2006). It logically- 7 - follows, therefore, that our conclusion that the trial court did not err in terminating father’s parental rights under the more stringent clear–and-convincing-ev idence standard set forth in Code § 16.1-283(B) and (C)(2) “nece ssarily subsumes” this asp ect of father’s appeal. Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 265 & n.3, 616 S.E.2d 765, 769 & n.3 (2005). For these reasons, we summarily affirm the trial court’s decision to terminate father’s parental rights under Code § 16.1-283(B) and (C)(2). See Rule 5A:27. Affirmed.