COURT OF APPEALS OF VIRGINIA

Present: Judges Haley, Millette and Se nior Judge Coleman

KAREN STAPLES MEMORANDUM OPINION * v. Record No. 2147-07-1 PER CURIAM MARCH 11, 2008 CHESAPEAKE DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Walter J. Ford, Judge (Elizabeth R. Gold, on briefs), for appellant. Appellant submitting on briefs. (John Oliver, Deputy City Attorney; Cheryl Footman-Banks, Guardian ad litemfor the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Karen Staples, mother, appeals the trial court’s deci sion, dated August 23 , 2007, terminating her parental rights to her child pursuant to Code § 16.1-283. On appeal, sh e contends (1) the trial court erred by considering the pe tition for termination filed by the Chesapeake Department of Human Services (DHS) because the petition did not designate the spec ific subsection of the statute under which termination was sought, and (2) th e evidence was insuffi cient to support the termination of her parental rights. Upon reviewing the record and briefs of the parties, we affirm

the trial cour t’s decision. Background

We review the evidence in th e light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). So viewed, the evidence proved that Staples’s child was born on July 20, 2001. DHS became involved with Staples and her child after receiving a report in March 2003 that the chil d was being neglected by Staples due to Staples’s drug use. A child protective services worker we nt to the home and found the home in total disarray

and with the curtains clos ed and the house dark although it was mid-day. Staples denied drug use and made multiple excuse s for why she could not take a drug test. Af ter the worker made arrangements for Staples to take a drug test, the worker found that Staples ha d taken her child and gone to North Carolina. The work er requested and received an emergency removal order awarding DHS temporary custody of the ch ild on April 21, 2003. At a hearing on May 28, 2003, the Chesapeake Juvenile and Domestic Relations Distri ct Court found that the child was neglected and awarded custody of the child to DHS. During the summer of 2003, Staples participated in substance abuse counseling, individual therapy, and in-home services. Staples regularl y visited her child and co operated in regular drug

screens. The child was transiti oned back to Staple s’s home and, in Sept ember 2003, legal and physical custody was re turned to Staples. Within six months, DHS received a new report of Staples’s drug use and her neglect of her child. In response to this report , a child protective services worker went to the home in February

2004 and found the home in a state of disarray with clothing , furniture, and junk randomly scattered throughout the home and di rty dishes stacked in th e sink. The curtains were closed, and the house was dark. Staples and her child were sleeping in the den because their bedrooms were full of clothes and they could not sleep there. Staples denied using drug s. The worker ad vised Staples that the living conditions were unaccep table. Staples cleaned the bedr ooms so she and her child could sleep in their own bedrooms. Th ereafter, on March 30, 2004, DHS received a report that Staples was passed out in her home and th e neighbors had been unable to ar ouse her. The child was at the- 3 - home in Staples’s care at the time. Paramedics were called and when Staples was awakened, her behavior was consistent with drug use as eviden ced by her stumbling and incoherent speech. A child protective services worker responded to th e home and asked Staples to take a drug test. Staples complied, and the te st result was negative. On April 29, 2004, the worker returned to Staples’s home an d found that the conditions had deteriorated again in terms of cleanliness and orga nization. The house was dark, and clothes were scattered throughout the house. The worker sent Staples for a drug scre en at a facility that provided more scrutiny and supervision of clients providing urine samples. The facility workers found that Staples tried to fill her urine sp ecimen bottle with urine she brou ght with her to the facility, and noted that Staples gave them a “cold sample” that clearly did not just come from her body. Staples was unable to provide a sample for valid testing. The wo rker informed Staples that, considering the home’s condition, DHS was treating the unsuccessful urine test as a positive drug sc reen. Staples agreed to return to substance abuse treatment an d agreed to have her ch ild evaluated for special

education due to the chil d’s unintelligi ble speech. DHS requested a protective order based on St aples’s “history of avoiding compliance with services and supervision” and her continued denial of a drug abus e problem. At the May 12, 2004 hearing, Staples did not ad mit to any of DHS’s alle gations, but agreed to the terms of the protective order that she stop illega l drug use, participate in substance abuse treatm ent, obtain educational testing for her child, coope rate with in-home servic es and supervision, and that she not travel or move without DHS’s prior approv al. At a June 10, 2004 hear ing, Staples noted she was in treatment and was drug free, she ha d cleaned her home, and had taken her child in for testing. DHS acknowledged that Staples had b een compliant with se rvices, but still had c oncerns because of Staples’s history of allowing the conditions in her home to deteriorate when supervision ended and of her use of sophisticated measures to avoid detection of drug use. DHS asked that supervision be- 4 - provided for an extended period of time, to whic h Staples agreed. The court entered a final order directing Staples to comply with the previous protective provisions and ordered an additional eight months of supervision. On August 3, 2004, DHS recei ved a report that Staples had te sted positive for cocaine. When the worker confronted Stap les, Staples admitted us ing “one line” of cocai ne with friends. Because the conditions of Staples’ s home were acceptable , DHS did not try to remove the child but did file a contempt motion against Stap les for violation of the court order. On September 7, 2004, Staples again tested positive for cocaine , the same day that she told her drug counselor that she was not using drugs. Staples had been missing her scheduled drug counseling sessions during this time. The worker went to Staples’s home late on the morning of September 20, 2004, and fo und Staples and her child still in thei r pajamas. The wo rker confronted Staples about this positiv e drug test. Staples claimed she ru bbed cocaine on her sore gums. DHS

reviewed the matter but did not decide whether to remove the child from St aples’s custody. Staples

continued with individual treatment and attended Narcotics Anonymous meetings. On October 26, 2004, Staples ag ain tested positive for cocain e use. On October 28, 2004, Staples told the worker th at she remained drug fr ee. DHS filed a petition alleging Staples’s child was neglected and asked the court to enter anemergency removal order giving DHS temporary custody of the child. The court ag reed and entered this order on November 3, 20 04. At the hearing on November 9, 2004 , Staples acknowledg ed using dr ugs, but clai med the last positive drug screen was “caused” by a drug dealer se eking revenge against he r. Staples also ackno wledged that she was unemployed, had no health insurance, and was pregnant. DHS noted the continuous relapses and stated that when Staples is under the influence of drugs, she is unable to at tend to her own needs or

her child’s needs. DHS also stated the concern that Staples and her child were vu lnerable to harm from people associated with her prior drug use activitie s. The court adjudg ed the child to be- 5 - neglected, continued temporary le gal custody of the ch ild with DHS, and ordered Staples into services and supervision. The initial foster care plan had a goal of return home . The plan identifi ed Staples’s ongoing drug use and resulting neglect of he r child and home and he r lack of employment as key issues. On January 28, 2005, Staples acknow ledged that she was unable to regain custody and noted that medical complications from her terminated pregna ncy had prevented her from actively participating in services. Staples requested expanded visita tion, which the court allo wed by order entered on May 6, 2005. During the spring of 2005, Staples complied with services and supervision, and continued substance abuse counseling, participated in an intensive outpatient treatment program, and had a psychiatric evaluation and review of her medication. Staples’s drug tests were negative, she completed her outpatient treatment program , cleaned her home, an d found employment. Thereafter, the worker learne d that Staples’s home phone ha d been disconne cted and that

the stove did not work. DHS continued working with Staples. She paid he r utility bills before the court review in July 2005, maintained employment, and her visitatio ns with her child went well. Despite Staples missing some subs tance abuse counseling sessions in July and Au gust 2005, DHS

found the situation suff iciently stable to pl ace the child back in to Staples’s custody. The child returned to Staples’s custody in October 2005. In-home servic es were provided to assist Staples with budg eting and parenting issues. Staples missed more appoin tments with her

substance abuse counselor. In December 2005, a wo rker went to Staples’s home, and found that her gas had been cut off and that Staples had a balanc e of $706.18 on her elect ric bill and an unpaid water bill of over $150. Staples’s bills accu mulated despite having no mortgage or car payments, and despite having two part-time jo bs and receiving child support payments. Staples denied having financial problems. That same m onth, the worker returned to Staples’s home an d found no heat in the home. Staples appear ed disheveled and had dark circles under her eyes . The worker asked her- 6 - to submit to a drug test but Staples refused. The child was removed fr om Staples’s home. DHS requested to change the fo ster care plan goal to adoption. Beca use some of Staples’s relatives asked to be considered as placement for the child, the court asked DHS to submit a new plan and noted that it was premature to determ ine the most appropriate perman ent goal for the child. DHS continued offering se rvices to Staples. DHS submitted a new foster care plan with the goal of adoption inFebruary 2006. On March 17, 2006, the court reviewed and approved this plan. Staple s’s relatives appeared and said they could not offer placement to the child. DHS continued providing Staples visitation with her child and monitoring Stap les’s participation in su bstance abuse treatment. On April 14, 2006, Staples again tested positi ve for cocaine. Staple s submitted to another drug test on May 1, 2006 and act ed “weird” when told the test would be monitored. Initially, Staples denied drug use but then admitted she had re lapsed and used cocaine. On May 23, 2006, the foster care worker filed a petition se eking terminatio n of Staples’s residual parental rights, and the court terminated St aples’s parental rights onAugust 18, 2006. The court allowed Staples to continue having visitati on, and during the next nine months Staples had five negative drug screens. Meanwhile, Staple s appealed to the Circu it Court of the City of Chesapeake and that court ordered that Staples’s pa rental rights be terminated on August 23, 2007. Since March 2005, the child has been living with a family who is willing to adop t the child. The child is thriving and excelling in school, and ha s bonded with the family. Analysis

I. At trial, appellant never raised her claim th at the court erred by considering the petition for termination because the petition did not specify under which subsection of Code § 16.1-283 DHS was proceeding. “The Court of Appeals w ill not consider an argument on appeal which- 7 - was not presented to the trial court.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.

II. When considering term ination of a parent’s residual rights to a child, “the paramount

consideration of a trial court is the child’s best interests.” Logan , 13 Va. App. at 12 8, 409 S.E.2d at 463. On review, “[a] trial cour t is presumed to have thorou ghly weighed al l the evidence, considered the statutory require ments, and made its determinat ion based on the child’s best

interests.” Farley v. Farley , 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). “The trial court’s judgment, when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without eviden ce to support it.” Logan , 13 Va. App. at 128, 409 S.E.2d at 463. The trial court quoted Code § 16.1-283(C)(2) in its order te rminating Staples’s parental rights. Code § 16 .1-283(C)(2) requires proof, by clear and convincing evidence, that (1) the

termination is in the best interests of the child, (2 ) “reasonable and appropriate” services have been offered to help the parent “substantially remedy th e conditions which led to or required continuation of the child’s foster care placement ,” and (3) despite these services , the parent has failed, “without good cause,” to re medy those conditions “withi n a reasonable amou nt of time not to exceed twelve

months from the date the ch ild was placed in foster care.” “[T]ermination of residual parental rights is a grave, drastic, an d irreversible action,” Helen W. v. Fairfax Co unty Dep’t of Human Dev. , 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991) , and we “‘presume[] [the trial court has] thoroughly weighed all the evidence [and] co nsidered the statutory requirements,’” Logan , 13 Va. App. at 128, 409 S. E.2d at 463 (quoting Farley , 9 Va. App. at 329, 387 S.E.2d at 796).- 8 - DHS proved by clear and convincing evidence that termination of Staples’s parental rights was in her child’s best interests. Staples’s continuous use of cocaine led to her in ability to maintain

a stable and safe home for her ch ild. Although Staples remedied the situation several times, she was

unable to continue these remedied conditions for more than a few mo nths before rela psing, despite receiving a variety of ongoing serv ices. In addition, Staples was un truthful about he r problems and routinely denied the problems, at l east initially, to her work er. “It is clearly not in the best interests of a child to spend a leng thy period of time waiting to find out when, or even if, a parent will be capable of resuming his responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S. E.2d 492, 495 (1990). The record supports the trial court’s finding that DHS proved by clear and convincing evidence that Staples’s parental rights should be terminated pursuant to Co de § 16.1-283(C)(2) and that the termination of Staples’s parental rights was in her child’s best interest. Accordingly, we affirm the trial court’s judgment.

Affirmed.