COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley

JAMES GANTHIER MEMORANDUM OPINION * v. Record No. 0338-13-4 PER CURIAM JULY 23, 2013 FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COUR T OF FREDERICK COUNTY Clifford L. Athey, Jr., Judge (David L. Hensley; Gunter Hensle y, P.C., on briefs), for appellant. (Beth M. Coyne; Courtney H. Warner, Guardian ad litem for the minor children; Winchester Law Group, P.C.; Georgia Rossiter, on brief), for appellee.
On February 5, 2013, the trial court entered an order terminating th e parental rights of James Ganthier to his two daughters pursuant to Code § 16.1-283(B) and (C)(2). On appeal, appellant contends the trial court erred in refusing to grant his motion to continue the termination hearing. He also challenges the sufficiency of the evidence to support the terminations. Upon reviewing the record and briefs of the parties, we conclude th is appeal is without merit. Accordingly, we summarily affi rm the decision of the trial court. See Rule 5A:27. Background On appeal, we view the evidence in the “‘li ght most favorable’ to the prevailing party in the circuit court and grant to that party the benefit of ‘all reasona ble inferences fairly deducible therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - S.E.2d 460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the circuit court “‘thoroughly we ighed all the evidence, consider ed the statutory requirements, and made its determination based on the child’s be st interests.’” Id. at 265-66, 616 S.E.2d at 769 (quoting Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “The trial court’s judgment, ‘when based on evidence heard ore tenus , will not be disturbed on appeal unless plai nly wrong or without evidence to support it.’” Id. at 266, 616 S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its capacity as factfinder, therefore, the circuit court retains ‘broad di scretion in making the decisions necessary to guard and to foster a child’s best interests. ’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). The Frederick County Department of Social Services (DSS) took emergency custody of appellant’s daughters on March 4, 2011 at the mote l room where they were staying with their mother. The children were adjudged to have been abused or neglected, and were placed in foster

care. Initially, the goal of the foster care service plans for the children was to return them to the custody of appellant and the children’s mother . However, the goal of the plans later was changed to adoption, and DSS petitioned to termin ate the parental rights of both appellant and the children’s mother. 1 The juvenile and domestic relations district court (JDR court) terminated appellant’s parental rights to the children on September 5, 2012, and he appealed. On September 9, 2012, appellant was sentenced to five years of incar ceration, with all but twelve months suspended, upon a conviction of posse ssing cocaine with the inte nt to distribute.

1 The children’s mother signed an order volunta rily terminating her parental rights to the girls.- 3 - On October 18, 2012, the trial court entered a pretrial order setting the termination hearing for January 14, 2013. The date of the hearing was chosen in coordination with the available dates of appellant’s court-appointed a ttorney. On January 2, 2013 , appellant’s attorney filed a list of potential witnesses for the h earing. The list included several of appellant’s relatives. The record contains no indication that appell ant or his attorney attempted to subpoena any of the listed witnesses for the termination hearing. Having served his sentence, appellant was released from jail on January 7, 2013. Before the termination hearing began on January 14, 201 3, appellant moved for a continuance of the proceeding. Appellant’s attorney stated that a ppellant wished to have some of his relatives testify regarding the availability of placement of the children with family members. Counsel stated appellant had not had the opportunity, since his release from jail, to bring the relatives together and have them present for the hearing. The trial court denied appellant’s motion, and the hearing proceeded as scheduled. At the conclusion of the hearing, the tria l court found that DSS had proven by clear and convincing evidence the circumstances required for termination under Code § 16.1-283(B) and Code § 16.1-283(C)(2). Denial of a Continuance Appellant contends the tria l court erred in denying his motion for a continuance on the day of the scheduled termination hearing. He ar gues that he had been unable to obtain the presence of witnesses in the brie f period of time between his releas e from jail and the hearing. In the context of proceedings to terminate re sidual parental rights, the Supreme Court of Virginia has held: The decision to grant a motion for a continuance is within the sound discretion of the circuit cour t and must be considered in view of the circumstances unique to each case. The circuit court’s ruling on a motion for a continuance will be rejected on appeal- 4 - only upon a showing of abuse of discretion and resulting prejudice to the movant. Additionally, in the application of these principles, we will be guided by our holding over a century ago in Myers v. Trice, 86 Va. 835, 842, 11 S.E. 428, 430 (1890), that when a circuit court’s refusal to grant a continuance “seriously imperil[s] the just determination of the cause,” the judgment must be reversed. Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). Considering the circumstances of the case, we find no abuse of discretion in the trial court’s denial of appellant’s request for a contin uance. As evidenced by his appeal from the JDR court’s decision, appellant was we ll aware at the time of his se ntencing in September 2012 that the termination proceedings were continuing in th e trial court. The date for the termination hearing was set three months in advance in coordination with appell ant’s attorney, although appellant was incarcerated at the time. Appellant was present at the termination hearing and was able to participate in the proceedings. Two w eeks before the hearing, appellant filed a list of witnesses that included several family members. There was no indication th at, either before or after his release from jail, appellant or his attorn ey made any effort to have specific members of his family, even those identified in the witness list, present at the heari ng. Appellant did not proffer the expected contents of the testimony of any witness he wanted to have present at the hearing. Nor did he make any representations rega rding the availability of his witnesses if the trial court was to continue the hearing to a later date. Thus, we conclude the trial court did not abuse its discretion in refusing to continue the matter, and we do not disturb that decision. Termination Decision Termination of parental right s under Code § 16.1-283(B) requir es proof that “the neglect or abuse suffered by such child presented a seriou s and substantial threat to his life, health or development” and that “[i]t is not reasonably likely that the c onditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child’s safe return- 5 - to his parent . . . within a reasonable peri od of time.” Code § 16.1-283(B)(1) and (2). Termination of residual parental rights pursuan t to Code § 16.1-283(C)(2) requires proof that the parent, “without good cause, ha[s] been unwilling or unable within a reas onable period of time not to exceed twelve 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,” notwithstanding reasonable and appr opriate efforts of service agencies. In its February 5, 2013 order terminating appe llant’s parental right s to the children, the trial court found clear and convi ncing evidence established the conditions for termination under both Code § 16.1-283(B) and Code § 16.1-283(C)(2). On appeal, however, appellant challenges only the sufficiency of the evidence to sustain the terminations under Code § 16.1-283(B). Thus, appellant has waived any appellate claim rega rding the terminations pursuant to Code § 16.1-283(C)(2). In Fields, 46 Va. App. at 8, 614 S.E.2d at 659, this Court found that termination of parental rights upheld under one subsection of Code § 16.1-283 for ecloses the need to consider termination under alternative s ubsections. Because the termin ation under Code § 16.1-283(C)(2) is unchallenged on appeal, we need not consider appellant’s argument regarding the termination under Code § 16.1-283(B). Conclusion Accordingly, the trial court’s decision is affirmed. Affirmed.