COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russe ll and Senior Judge Frank

JOEL EAST DAVIS, II MEMORANDUM OPINION * v. Record No. 1777- 17-2 PER CURIAM JUNE 26, 2018 CHARLOTTE COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COUR T OF CHARLOTTE COUNTY Kimberley S. White, Judge (Michael Thomas Trent; The Tren t Law Practice, PLC, on brief) , for appellant. (Michael J. Brickhill; David P. Mitchel; T. Michael Jones, Gu ardian ad litemfor the minor child; Michael J. Brickhill, P.C.; The Jones Law Firm, P.C., on brief), for appellee.
Joel East Davis, II (father) appeals the orders terminating hi s parental rights and approving the foster care goals of termination and adoption. Father argu es that the circuit court “erred in accepting the Department’s foster care plan with the goals of t ermination and adoption and in terminating [father’s] parental r ights because the evidence was not sufficient as a matter of law to show” that (1) “termination at that time was in the best intere sts of the child;” and (2) father “failed to substantially remedy the cond itions that led to removal, and because there was go od cause for any failure, namely incarceration.” Upon reviewing the record and briefs of the parties, we conclude that this appeal is without me rit. Accordingly, we summarily a ffirm the decision of the circuit court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND “On appeal, ‘we view the evide nce and all reason able inference s in the light most favorable to the prevailing part y below, in this case the Department.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S. E.2d 16, 18 (1991)). Father and Charlene W illiams (mother) are t he biological paren ts of the child who is the subject of this appeal. In Decem ber 2014, approximately eighte en months after the child’s birth, the Charlotte County Department of Soc ial Services (the Department) received a child protective services complaint alleging that the parents physically abused and neglected the child and were using illegal drugs. The Depart ment investigated and found tha t the house was “fin e.” In February 2015, the Department asked father to take a drug test, and he t ested positive for amphetamines and benzodiazepines. The Department opened a foster care preventio n case and offered parent aide services to the family. The Dep artment also offered employment services through the Virginia Initiative for Employm ent not Welfare (VIE W) program. In Novem ber 2015, the Department received a second child protectiv e services complaint alleging that the parents physically abused the child. The Department continued to provide services to the fam ily, while they obtained suitable housing and father found a job. In early 2016, father advised th e Department that their housin g situation was not stable again, and both father and mother had pending criminal charges. In April 2016, father tested positive for oxycodone, but he had a valid prescription. At a family partnership meeting, it was agreed that the child would be placed with the paternal grandmo ther; however, this placement was not successful due to the patern al grandmother’s housing situat ion. Another placement with the child’s paternal great-aunt was not successful, so the child wa s placed with the maternal great-aunt for several weeks. In July 2016 , the Department gave father an other drug test, and he tested- 3 - negative for all drugs. The De partment returned the child to t he parents and patern al grandmother’s care, after they obtained housi ng and father found a job. 1 The Department con tinued to offer the parent aide services, and the family “showed signs of improveme nt.” However, fathe r lost his job in August 2016, and the family was e victed from thei r home in Sept ember 2016. On September 13, 2016, the Depar tment placed the child in fost er care due to concerns about housing and drug use. Bot h father and mother tested posi tive for cocaine. At the time of the removal, the child was at the ho me of the maternal great aunt. The child was “thin ,” and his clothes were “unclean.” After the child entered foster care, a pediatr ician examined him and determined that the child was underweight for his age and suffered from mu ltiple bug bites. The Department also had concerns abo ut the child’s development because, despit e being three years old, he was not very vocal and had difficulty c ommunicating. On October 13, 20 16, the Charlotte County Juvenile and Domestic Relations District Court (the JDR court) found tha t the child was abused and/or neglected. The Department provided numerous services to father. The Depa rtment referred father and mother for a substance abuse eva luation, but neither went for t he evaluation. 2 On October 20, 2016, father tested negative for drugs. The Department arranged for father to visit with the child, and he regularly visited with the child until he was incarcerated. In November 2016, father pleaded guilty to shoplifting, third offense, a nd based on that conviction, th e Stafford County Circuit Court found that he violated his probation. Father’s expected release date was April 27, 2018.

1 At that time, father lived with the paternal grandmother and m other.

2 Father told the social worker that he scheduled an appointment for the evaluation, but the social worker never receiv ed any confirmation of the appoin tment. Father testified that his appointment was scheduled for the week after he was incarcerate d on November 9, 2016.- 4 - On July 11, 2017, the JDR court approved the foster care goal of adoption. On August 11, 2017, the JDR court terminated father’s parental rights. 3 Father appealed to the circuit court. On October 16, 2017, the parties appeared before the circuit c ourt. The Department presented evidence that the child was in a potential adoption p lacement. The social worker testified that the child had been with the same family since he entered f oster care and was doing “really, really well.” The social worker testified that the child was s peaking more and was easier to understand. 4 The foster mother also testified about the progress that the child has made. She said that when the child first entered foster care, he only said two words, but as of the date of the hearing, he “talk[ed] all the time.” The foster mother said that he was learning quickly at school, attending speech therapy at school, and doi ng well socially with his peer s. Father expressed his desire to remain in the child’s life and testified about the programs in which he participated at the pris on. Father completed a substa nce abuse course and an anger management class, and at the time of the circuit court hearing, he was taking a nine-week parenting class and a life skills course. He also was taki ng GED classes and had signed up for a vocational class. Father explained that he applied to six halfway houses to go to after he was released from prison. He acknowledged that the program at the halfway house lasted three to six months and that the child could not live with him there. Father had not provid ed to the Department copies of the certificates showing his completion of classes or his plan for taking care of the child upon his release. After hearing all of the evidence and argument, the circuit co urt terminated father’s parental rights pursuant to Code § 16.1-28 3(C)(2) and approved the goals of termination and adoption. The

3 The JDR court also terminated m other’s parental rights. She a ppealed to the circuit court, and the circuit court te rminated her parental rights.

4 Father testified tha t the child used words to communicate withhim and mother and that the child played well with his peers.- 5 - circuit court held that the child needed “stable and consistent housing” and “t o be raised by non-substance abusers.” On Janua ry 10, 2018, the circuit court entered the orders terminating father’s parental rights and approving the foster care goals of termination and adoption. This appeal followed.
ANALYSIS 5 “Where, as here, the court hears the evidence ore tenus , its finding is en titled to great weight and will not be disturbe d on appeal unless plainly wrong or without evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. Ap p. 185, 190, 717 S.E.2d 811, 814 (2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs ., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). Best interests of the child Father argues that the eviden ce was insufficient to prove that the termination of his parental rights and adoption of the child were in the best inte rests of the child. He emphasizes that he had a strong relationshi p with the child and was an act ive caregiver. He asserts that the child was not aware of the fos ter care proceedings and would be in the same situation with the same foster care family upon fat her’s release from prison. “When considering termination of pa rental rights, ‘the paramou nt consideration of a trial court is the child’s best int erests.’” Id. (quoting Logan v. F airfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)).

5 Contrary to the Department’s a rguments, father did not waive h is objection to the approval of the foster care goa ls of termination and adoption. Father argued against termination and adoption in his closing argum ent and noted his objections t o the permanency planning order. In a bench trial, an appellant can preserve his issues for appe al in a motion to strike, in closing argument, in a motion to set asi de the verdict, or in a motion to reconsider. Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) ( en banc ). Therefore, we find that father preserved his arguments for appeal.- 6 - After hearing all of the eviden ce and argument, the circuit co urt held that it was in the child’s best interests “to b e in . . . stable consistent housin g, to be raised by parents who do not engage in substance abuse a nd to be raised by parents who seek and receive substance abuse counseling as needed.” The circ uit court found that as of the date of the hearing, “neither parent [was] in a position to offer st able consistent housing.” Housi ng remained a constant problem throughout the years that the Department was involved with the family. In addition, substance abuse wa s an ongoing issue. The circui t court found that the Department recommended father get substance abuse treatment in 2015 and at the family partnership meeting in April 2016. However, father had numerou s excuses, such as working nights, for not seeking substance abuse treatment at the time. Father testified that in September 2016, he tried to schedule an appoint ment for a substance abuse evaluation, but the date of his appointment was after he was in carcerated. The c ircuit court h eld that father’s delay in seeking treatment for his substance a buse problem “is a huge issue.” Furthermore, the Department pr esented evidence that when the c hild entered foster care, the child had speech and communication problems, as well as dev elopmental delays. However, once the child was placed with hi s foster family, he obtained s peech therapy and started talking more. The circuit court stated t hat it is in a child’s best in terest to live in an environment “where one’s language is developed and e ncouraged, where one is encour aged to interact socially with others, where one is properly f ed, [and] where one is properly cleaned . . . .” At the time of the circuit court hearing, father was still inc arcerated and did not expect to be released until April 2018. Then, he hoped to go to a halfwa y house for three to six months. He was not able to meet the chi ld’s needs. “It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or eve n if, a parent will be capable of resuming his [or her] responsibil ities.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62- 7 - Va. App. 296, 322, 746 S.E.2d 509, 522 (2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)). Considering the entire recor d, the circuit court did not err i n finding that the evidence was sufficient to prove that the te rmination of father’s parental r ights and adoption wer e in the child’s best interests. Code § 16.1-283(C)(2) Father argues that the evidence was insufficient to prove that he failed to remedy substantially the conditions tha t led to the child ’s removal an d that he did not ha ve good cause for his failure to remedy. The circuit court terminated father’s parental rights pursuant to Code § 16.1-283(C)(2), which authorizes a court to terminate a parent’s parental right s if: [t]he parent or parents, w ithout good cause, have been unwillin g or unable within a reasonable pe riod 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. “[S]ubsection C termination deci sions hinge not so much on the magnitude of the problem that created the original danger t o the child, but on the demonstrat ed failure of the parent to make reasonable changes.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005). “Considerably more ‘retrospective in nature,’ subsection C requires the court to determine whether the pare nt has been unwill ing or unable to remedy the problems during the period in which he has been offe red rehabilitation services.” Id. (quoting City of Newport News Dep’t of Soc. Servs. v. Wi nslow, 40 Va. App. 556, 562-63, 580 S .E.2d 463, 466 (2003)). While long-term incarceration doe s not, per se, authorize termination of parental ri ghts . . . it is a valid and proper circumstance which, when combined with other evidence concerning the parent / child relationship, ca n support a court’s- 8 - finding by clear and convincing evide nce that the best interest s of the children will be served by termination. Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333 , 340, 417 S.E.2d 1, 5 (1992). Father contends that he had “g ood cause” for not remedying the problems that led to the child’s placement into foster care because he was incarcerated for the majority of the time that the child was in foster care. He emphasizes that after the child’s removal but before his incarceration, he tested negative for drugs, had a home, and worked odd jobs. Then, during his incarceration, he completed substance abuse and anger management classes and was participating in parenting and life skills classes. He also asse rts that he had a plan for ho using and employment after his release. However, the circuit court found that fath er’s post-release pl an had “a lot of contingencies” and was not reasonable, especially considering that “the child will have spent one-third of his life in foster care” by the time that fa ther was released from prison. The circuit court recognized that father’s “timeline was cut short, but it was really cut short b y his own making, because of the criminal conviction and becau se of the probation violation.” “The twelve-month time limit e stablished by C ode § 16.1-283(C) (2) was designed to prevent an indeterminate state of foster care ‘drift’ and to en courage timeliness by the courts and social services in addressing the circumstances that resulted i n the foster care placement.” L.G. v. Amherst Cty. Dep’t of Soc. Servs. , 41 Va. App. 51, 56, 581 S.E. 2d 886, 889 (2003). Contrary to father’s arguments , the circuit court did not err in finding that the evidence was sufficient to terminate his parental rights pursuant to Code § 16.1-283(C)(2) and approving the goals of termination and adoption.
CONCLUSION For the foregoing reasons, the circuit court’s ruling is summar ily affirmed. Rule 5A:27. Affirmed.