COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clemen ts and Senior Judge Annunziata

TRYSHA L. GRAVES MEMORANDUM OPINION * v. Record No. 1210-08-2 PER CURIAM OCTOBER 21, 2008 PETERSBURG DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Pamela S. Baskervill, Judge (Katina C. Whitfield, on brief), for appellant. Appellant submitting on brief. (Joan M. O’Do nnell; Sharon A. Baptiste, Guardian ad litem for the minor children, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Trysha L. Graves (mother) ap peals a decision of the circuit court terminating her residual parental rights to her three mino r children, T.G., T.M., and L.M. The sole question raised by mother on appeal is whether the circuit court erred in finding by cl ear and convincing evidence that it is in the best interests of T.G. , T.M., and L.M. to te rminate mother’s residual parental rights. Finding no error, we affirm. 1

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

1 The circuit court terminated mother’s re sidual parental right s relying upon Code § 16.1-283(B)(1), (B)(2), (B)(2)(b), (B)(2)(c), and (C)(2). In doing so, the circuit court specifically found, among other findings, with respect to each child that “it is in the best interests of the child to terminate mother’s residual parent al rights in order to pr ovide the child with a permanent and safe placement.” The code sections relied upon by the circuit court in terminating mother’s residual parental rights have specifi c separately delineated elements, which the Petersburg Department of Soci al Services (DSS) was required to prove in order to support termination of mother’s parental rights. Howe ver, on appeal, mother does not challenge any of the circuit court’s findings with respect to each of the specific el ements contained in those code sections, other than the “best interests” elem ent, which is a threshold test common to both- 2 - Background We view the evidence in the light most favor able to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of
Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). 2 So viewed, the evidence proved that at the time of the termination hear ing in the trial court, T.G. was seven and one-hal f years old, T.M. was four and one-ha lf years old, and L.M. was two and one-half years old. 3 In September 2005, at th e time of L.M.’s birth, he and moth er tested positive for cocaine and marijuana. As a result, mother was referred to Project Link , a substance abuse treatment program, through the District 19 Community Services Board (District 19). In March 2006, District 19 no tified DSS that mother had been non-compliant with treatment and continued to use coca ine and marijuana. As a result, DSS filed pe titions alleging abuse and neglect with respect to T.G., T.M. , and L.M. Mother tested pos itive for cocaine on March 13 and 22, 2006. On March 22, 2006, the J & DR court entered child protective orders for each child.

subsections (B) and (C) of Code § 16.1-283. Accordingly, mother’s sole argument on appeal is that DSS failed to prove by clear and convincing evidence that term ination of her parental rights is in the “best interests” of her minor childre n. Thus, the “best interests” finding made by the circuit court with respect to each child is the only finding we will address on appeal.

2 There is no transcript of the circuit court hearing in this case. Rather, the proceedings are reflected in the written statement of facts, which indicates that the parties agreed that the pleadings and orders from the Petersburg Juvenile and Domestic Relations District Court (“the J & DR court”) were an accurate reflection of th e proceedings in that court and were admissible as evidence in these proceedings. Accordingly, we have considered the written statement of facts, as well as the content of the pleadings a nd orders from the J & DR court, in reciting the facts of this case.

3 Mother’s three children each had a different fa ther. Mother was not married to or living with any of those men at the time of the proceedings in this case. A separate termination petition had been filed with respect to T.G.’s father, and the J & DR court had granted a separate termination petition with respect to T.M.’s father.- 3 - Thereafter, on April 13, April 28 , May 10, May 17, and May 18, 20 06, mother tested positive for cocaine. On or about May 19, 2006, th e J & DR court entered preliminary removal orders placing T.G., T.M., and L.M. in the tempor ary custody of DSS. DSS placed T.G. in the home of a paternal aunt. T.M. was permitted to remain in the home of his paternal grandmot her, with wh om he had been living. DSS placed L.M. in a foster care home. At that time, DSS was concerned about mother’s housing; she was living in motel rooms. On or about May 31, 2006, th e J & DR court found that mother’s contin ued use of illegal substances seriously impaired he r parental ability and placed her three minor children at risk of imminent harm. On or about July 26, 2006, the J & DR court approv ed the initial foster care service plan for T.M. with the goal of returning him to mother. 4 On that same date, the J & DR court granted a petition for custody of L. M. filed by mother’s friend. On or about October 18, 2006, the J & DR court granted the petiti on for custody of T.G. f iled by the pa ternal aunt. Nora Vassar, a DSS social work er, testified that during the si x-month period after July 2006, after the J & DR court tran sferred legal custody of T. G. to a relative, L.M. to mother’s friend, and approved the initial foster care service plan for T.M, mother did little to comply with the foster care service plan. She contin ued to use illegal substanc es, did not comply with treatment, and failed to maintain stable hous ing or employment. However, beginning in January 2007, mother te sted negative for ille gal substances and participated in substanc e abuse treatment on a regular basis. She obtained em ployment, and DSS assisted her with housing. In January and June 2007, the J & DR court reviewed the initial foster care service plan with respect to T.M. Beginning in June 2007, mo ther began overnight visits with

4 For reasons unrelated to mother, the J & DR court denied the cu stody petition filed by the paternal grandmother, and removed T.M. from grandmother’s home in November 2006. At that time, DSS placed T.M. in a foster care home.- 4 - T.M. In August 2007 , DSS placed T.M. in mother ’s home on a trial basis. According to Vassar, sometime during the summer of 20 07, T.G. and L.M. were also retu rned to mother’s care. Mother filed motions to amend the orders transferring custody, and, without DSS’s participation or knowledge, the J & DR court grante d such motions. The J & DR cour t ordered mother to continue with substance abuse trea tment and abstain from th e use of illegal drugs. In October 2007, District 19 reported to DS S that mother had miss ed several substance abuse treatment sessions and had tested positive for mari juana since Augus t 2007. DSS investigated, and found moth er tested positive for ma rijuana with all three children in her care. DSS removed the children from mo ther’s care. At that point, DSS still had lega l custody of T.M. On or about October 24, 20 07, DSS filed petitions alle ging abuse and neglect of T.G. and L.M. DSS returned T.G. to the paternal au nt and placed L.M. in a foster ca re home with T.M. On or about October 31, 2007, the J & DR court again found T.G. and L.M. were abused and/or neglected while in mother’s care and entered preliminary removal orrders with respect to those two children. In November 2007, DSS filed a petition for perman ency planning hearing with respect to T.M., recommending the goal of adop tion, along with a new foster ca re service plan. DSS noted in that foster care service plan review, that mother had been une mployed since mid-August 2007, due to being hit by a car, but that hospital records s howed she did not sustain major injuries from the incident and was released a few hours after it occu rred. DSS noted that mother maintained she was unable to work due to her injuri es, and she had not s ecured employment as of November 2007. DSS noted in its foster care serv ice plan for T.M. filed November 14, 2007, that mother continued to test positive for mari juana since the removal of her children from her care in October 2007. The J & DR court approved the new plan for T.M. on or about January 9, 2008. With respect to T.G. and L.M., DSS filed new fo ster care service plans with the go al of adoption or placement with relatives, and the J & DR co urt approved those plans on or about January 9, 2008.- 5 - Mother appealed the dispositiona l orders with respect to T.G. and L.M. and the permanency planning order with respect to T.M. to the circuit cour t. After a trial de novo with respect to all three children, the circuit cour t sustained DSS’s petitions and approved the foster care serv ice plans with the goal of adoption for all thr ee children. Thereafter, DSS fi led petitions for the involuntary termination of mother’s parental rights as to each child. On or about March 5, 20 08, the J & DR court granted all three petitions. Mother timely appealed to the circuit court, and after a trial de

novo , the circuit court sustai ned the petitions and term inated mother’s residu al parental rights to T.G., T.M., and L.M. During the circuit court hearin g, Vassar testified that T.G. was aware of mother’s use of marijuana. Vassar, who testified as an expert witness, opined that mother’s use of illegal drugs placed her children at risk of developmental delays and created insecurity due to instability in their daily care. Vassar opined that pa rents who use illegal substances provide poor superv ision for their children. Vassar acknowle dged that mother voluntarily returned to substance abuse treatment after the children were removed from her care the seco nd time and that her dr ug screens were negative for illegal substances beginning in January 2007 through August 2007. Va ssar stated that DSS allowed mother to visit with the children following their removal from her care in Octo ber 2007. Mother had a negative drug screen in January 2008, and had one visit. She then test ed positive for marijuana and had no additional visits. Vassar had observed mother during her visits with T.M., while he wa s in DSS custody, and found that mother treate d T.M. in a loving and appropriate manner. Vassar could not comment on mother’s relationship with the other two children whil e they were not in her custody, as she had not observed mother with them. Vassar stated that T.G. is very bright and is doing well in school, that T.M. has speech delay requiring therapy, and that L.M. has signific ant development delays requiring play therapy, speech th erapy, and occupational therapy.- 6 - Larry Turner, a therapist empl oyed by District 19, testifie d on behalf of mother. He acknowledged he wrote a letter dated February 21, 2008 to DSS, which i ndicated that mother’s “case” with District 19 was closed. However, Turner stated that moth er was reinstated within thirty days after February 21, 2008, an d had attended two sessions and missed two sessions between that date and the date of the circuit co urt hearing, April 16, 20 08. Turner testified that mother had good participation in the first session, was ill for the se cond session, admitted her use of illegal substances during the third session, and did not attend the fourth session due to personal matters. Turner stated that mother became more talkativ e during the three individual sess ions she had with him, and he believed that mother was developing insight into the consequences of her illegal substance abuse. Upon cross-examination, Turner testified that use of illegal substances has a negative impact on one’s ability to parent. Tu rner admitted moth er had not been tested for illegal substances since her re-entry into the program in February 2008. Mother testified that she wa s unemployed and looking for empl oyment at the time of the circuit court hearing. She last worked at Family Dollar, but was laid off after a criminal background check. She had also worked at a supermarket, but stated that sh e was injured when a car crashed through the store’s window. She stated she had been in her curr ent apartment since May 31, 2007, but admitted that she face d the possibility of evicti on because her rent was tw o and one-ha lf months in arrears. Mother acknowledged that she has a substance abuse pr oblem, but did not realize it was serious. She stated she is trying to do what is right, but on direct examinatio n, she admitted she is not willing to participate in inpati ent treatment because there would be no one to pa y her bills and take care of her apartmen t. Upon cross-examin ation by the guardian ad litem , mother stated she was willing to think about inpatient treatment. Mo ther admitted she has not paid child support for any of her children. With respect to her plans for her three children, moth er stated she planned to register T.M. for school, place L. M. on a waiting list fo r school, and enroll T.G. in after school- 7 - programs. Mother claimed she would be more pos itive with the ch ildren, enroll them in activities, and talk with them more. The circuit court granted D SS’s petitions, and terminated mother’s residual parental rights to T.G., T.M, and L.M. Analysis When reviewing a decision to terminate parental rights, we presume the circuit court “thorough ly weighed all the evidence, considered the statutory requireme nts, and made its determination based on the child’s best interests. ” “The trial court’s judgment, ‘when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evidence to support it.’” In its capacity as factfinder, therefor e, the circuit court retains “broad discretion in making the decisions ne cessary to guard and to foster a child’s best interests.” * * * * * * * Because “the rights of parents may not be lightly severed,” clear and convincing evidence must establish the statutory grounds for termination. In the end, the “ch ild’s best interests” remain the “paramount consideration” of the court. Even on this issue, however, we cannot “substitute our judgment” for the circuit court’s, but rather review the reco rd only to determ ine if sufficient evidence supports it. Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 265-66, 616 S.E.2d 765, 769-70 (2005) (citations omitted). When deciding what is in a child’s best intere sts, the circuit court considers many factors, including: the age and physical and mental condition of the . . . children, the age and physical and mental c ondition of the parents; the relationship existing between each pa rent and each child; the needs of the . . . children; the role which each parent has played, and will play in the future, in the upbri nging and care of th e . . . children, and such other [necessary] factors . . . . Richmond Dep’t of Soc. Servs. v. Crawley , 47 Va. App. 572, 579-80, 625 S.E.2d 670, 673-74 (2006). “The best interests of the child are to be determined at the time of the termination- 8 - hearing.” Akers v. Fauquier County Dep’t of Soc. Servs. , 44 Va. App. 247, 259, 604 S.E.2d 737, 742 (2004). On appeal, mother argues that notwithstandi ng the opinions of Vassar and Turner that use of illegal substances has an impact on a person’s ability to parent, no evidence showed that her children were ever physically or mentally harmed while in her care or that T.M.’s and L.M.’s developmental delays were the result of her subs tance abuse. Thus, she argues that even viewing the evidence in the light most favorable to D SS, it failed to prove unde r a clear and convincing standard that it is in the best interests of T.G ., T.M., and L.M. to terminate mother’s parental rights. She asserts that her parental rights should not be te rminated based upon a setback she suffered due to a string of unfortunate events, after eight months of progress and sobriety. The evidence showed that since September 2005, substance abuse treatment, individual therapy, childcare, and assistan ce with housing had been available to mother. Yet, her three children were removed from her care in May 2006, due to her continuing use of illegal substances and her failure to comply with substance abuse treatment. Between May and December 2006, mother continued to use illegal substances and faile d to comply with treatment. It was not until January 2 007, after her children ha d been out of her care for approxima tely eight months, that mother began to abst ain from the use of illegal substanc es, maintain stable housing and employment, and regularly visit her children. Although mother remedied the situation for a period of approximately eight months, s hortly after her children were returned to her in the summer of 2007, she relapsed and began using illegal substan ces and failing to attend treatment sessions, despite receiving ongoing services. Mother’s ch ildren were again removed from her care in October 2007. She tested positive for illegal drugs on more than one occasion after the children were removed from her care in October 2007, and she failed to participat e in substance abuse treatment. District 19 closed mothe r’s “case” on or about February 21, 2008.- 9 - At the time of the circuit cour t hearing, mother denied the se verity of her substance abuse problem. In addition, while the record showed that mother had been unable to maintain long-term sobriety through outpa tient substance abuse treatment, she expressed little to no interest in attending in-patient treatment to address her substan ce abuse problems. In addition, she was unemployed and two months in arrears on her rent, facing the possibility of eviction. While there was evidence she tested negative fo r illegal substances on one occasion in January 2008, she tested positive thereafter and had no furthe r visits with her children. In addition, the evidence showed that be tween re-entry into the treatment program in February 2008 and April 2008, mother had missed two out of four treatmen t meetings, and she admitted her use of illegal substances on the date of one of those meetings. She had not been tested for illegal substances since re-entry into the treatment program in February 2008. Expert testimony established that illegal drug use has a ne gative impact on a pers on’s ability to parent. Due to mother’s illegal drug use and failure to comply with services of fered to her, her three children had been in her care for only a couple of months between May 2006 and the time of the circuit court hearing in April 2008, a period of almost two years. “The [termination] statute clearly contemplates that efforts to resolve the ‘conditions’ relevant to termination are constrained by time.” Lecky v. Reed , 20 Va. App. 306, 312, 456 S.E.2d 538, 540 (1995). “It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Thus, we conclude that this record contai ns sufficient evidence to support the circuit court’s finding that DSS proved under a clear an d convincing standard that termination of- 10 - mother’s parental rights to T.G ., T.M., and L.M. was in their be st interests. Accordingly, we cannot say the circuit court’s d ecision was plainly wrong or w ithout evidence to support it. For these reasons, we affirm the circuit court’s decision. Affirmed.