COURT OF APPEALS OF VIRGINIA
Present: Judges Humphrey s, Alston and Decker Argued in Richmo nd, Virginia

MARK DWAYNE BISHOP MEMORANDUM OPINION  BY v. Record No . 1635-17-2 JUDGE ROBERT J. HUMPHREYS AUGUST 28, 2018 ALBEMARLE COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge Christopher C. Graham (Eustis & Graham, PC, on brief), for appellant. Amanda E. B. Farley, Senior Assistant County Attorney (B. Stephanie Commander, Guardian ad litem for the minor child; Albemarle County Attorney’s Off ice, on brief), for appellee.
Mark Dwayne Bishop (“Bishop”) app eals an order terminating his parental rights of his child, H.N. 1 Bishop argues that the Circuit Court of Albemarle County (“ci rcuit court”) erred by abusing its discretion in tw o ways. First, by denying his moti on to reject the Albemarle County Department of Social Services’ (“DSS”) petition to change H.N.’ s foster care permanency plan from “return home” and “relative placement” to “adoption.” Sec ond, by denying his motion to reject DSS’s petition to terminat e his parental rights. For th e following reasons, we affirm. “When reviewing a [circuit] cour t’s decision on appeal, we view the evidence in the light most favorable to the prevai ling party, granting it the benefit of any reasonable inferences.”

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 See Willoughby v. Albemarle Dep’t of Soc. Servs., No. 1619-17- 2, decided this day, affirming the termination of parent al rights of H.N.’s biologic al mother.UNPUBLISHED- 2 - Boatright v. Wise Cty. Dep ’t of Soc. Servs., 64 Va. App. 71, 76 , 764 S.E.2d 724, 727 (2014) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 8 33, 835 (2003)). So viewed, the evidence is as follows. In 2009, Bishop was convicted by a ju ry of the rape and aggrava ted sexual battery of his biological child, K.G.K. He was sentenced to twenty-seven year s in prison. In early 2016, another of Bishop’s biological c hildren, H.N., entered the fost er care system via emergency removal order. H.N. was placed in two foster homes before a ki nship placement was available with Mike and Jessica Farmer, c ousins of H.N.’s biological moth er. H.N. “describes with joy and pride the relationships and r ituals she has established wit h her cousins.” Additionally, the circuit court heard testimony fro m Mr. Farmer demonstrating his commitment to providing a permanent home for H.N. The Court Appointed Special Advo cates for Children Court Report (“CASA report”) prepared by H.N.’s case workers and admitted into evidence note d that H.N. was “elated by the news” that she was placed with t he Farmers. H.N. referred to M rs. Farmer as “mom” and told her case worker that she enjoye d living with her cousins. Furt hermore, the CASA report indicates that the Farmers “dem onstrated their ability to provi de a safe, stable and loving home for H.N.” Ellen Bishop (“Ms. Bishop”), Bisho p’s mother, testified at the termination of parental rights hearing that were her s on to win his appeal regarding hi s rape conviction and be released from prison, he would return to her home and she would allow hi m to be around his children. Ms. Bishop testified that she ha d no contact with H.N. for the first five or six years of H.N.’s life because paternity was at issue . But, during the five or six ye ars before H.N. was placed in foster care, Ms. Bishop saw H.N. “often.” Ms. Bishop said that she di d not file for custody because she believed the foster care case would determine custody and that between the time H.N. started- 3 - having contact with her and the tim e H.N. was removed there wer e only occasional weekend visits with H.N. at Ms. Bishop’s home. Ms. Morris, a social ca re worker, however, testified that she had contact with Ms. B ishop only three times in 2016. The circuit court terminated B ishop’s parental rights and appro ved the plan goal of adoption. Regarding the possibili ty of Bishop returning to Ms. Bishop’s house, the circuit court stated, “Not only do I find that w ould not be in H[.N.]’s best interest, but I find that would be damning to H[.N.].” The fact tha t H.N. is “happy where she is and doing as well as she is is extremely important to the Cour t.” The circuit court noted tha t “it is too great a risk if Mr. Bishop was to come home or e ven the fact psychologically to H[.N.] that she’s living with his mother and having to make yet another adjustment, I find wo uld be too much and not in her best interest.” Bishop first argues that the cir cuit court abused its discretio n “in denying [his] motion to reject Appellee’s petition to change the foster care permanency plan from ‘return home’ and ‘relative placement’ to ‘adoptio n’ when Appellant provided suff icient evidence to support a finding that at least one close r elative with w hom H.N. had a p rior relationship was willing and qualified to be considered for placement.” In a challenge to the circuit co urt’s decision to terminate res idual parental rights, [T]his Court presumes that the trial court thoroughly weighed a ll the evidence, considered the sta tutory requirements, and made i ts determination based on the child’s best interests. The circuitcourt has broad discretion in making t he decisions necessary to guard and to foster a child’s best inter ests. Therefore, in a case i nvolving termination of parental rights , [t]he trial court’s judgment, w hen based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evidence to support it. Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 324 , 785 S.E.2d 231, 235 (2016) (internal quotations and citations omitted ) (second alteration in original). Code § 16.1-283(A) “requires that the court ‘give a consideration to granting cust ody to relatives of the child’ prior to- 4 - terminating parental rights a nd placing the child in the custod y of social services.” Hawthorne v. Smyth Cnty. Dep’t of Soc . Servs., 33 Va. App. 130, 139, 531 S.E .2d 639, 644 (2000) (quoting Code § 16.1-283(A)). “[T]he Departme nt [of Social Services] ha s a duty to produce sufficient evidence so that the court may pr operly determine whether there are relatives willing and suitable to take custody of the child, and to consider such rel atives in comparison to other placement options.” Logan v. Fai rfax County Dep’t of Human Dev ., 13 Va. App. 123, 131, 409 S.E.2d 460, 465 (1991). However, C ode § 16.1-283 provides that a trial court may transfer custody of a child to the child’s relative if that relative: (i) is found by the court to be w illing and qualified to receiv e and care for the child; (ii) is w illing to have a positive, continu ous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect . . . . Code § 16.1-283(A1). Here, the record indicates that the circuit court thoughtfully considered relative placement for H.N. and found that placement with Ms. Bishop was not in H. N.’s best interests. The circuit court heard the testimony of Mr. F armer, also a relative of H.N .’s, who testified that H.N. was doing very well at his home. Mr. F armer testified that he was willing and qualifie d to care for and provide a suitable home for H .N. The circuit court also he ard Ms. Bishop’s testimony, noted above, that she would allow Bis hop to live with her and to cont act his children if he were released from prison, a nd, as also noted, the circuit court con sidered this possibility a great risk and that yet another living adj ustment would be damaging in its elf and “not in [H.N.’s] best interest” considering that H.N . is “happy where she is and doin g as well as she is.” Accordingly, we do not have to presume that the circuit cour t thoroughly weighed the evidence and considered the child’s best interests—the record i ndicates that the circuit court did- 5 - exactly that. Accordingly, we fi nd no miscarriage of justice t hat would require reversal of the circuit court’s decision. Second, Bishop argues that the cir cuit court abused its discre tion “in denying [his] motion to reject Appellee’s petition to terminate his parental rights when Appellant presen ted substantial evidence that it was in the child’s best interest to be placed with relatives, and when there is a statutory preference under the C ode of Virginia for placing chi ldren with relatives as opposed to terminating parental rights.” T he existence of this preference Bishop evidences with a cite to the Code: “the court shall give a consideration to g ranting custod y to relatives of the child, including grandparents.” Code § 16.1-283. Though Bishop immed iately admits that “nothing in the statute or case law establ ishes a specific hierarchy of pla cement preferences when a child is in foster care,” he claims an implicit presumption that placeme nt with close relatives is preferable. Regardless, because the circuit court did not err in finding t hat placement with H.N.’s grandmother was not in H.N.’s be st interests, we need not addre ss the sufficiency of the evidence to demonstrate whether it was in the child’s best interests to be placed with relatives. As noted above, the circuit court properl y considered all relative place ment options for H.N. and did not abuse its discretion in granti ng DSS’s petition to change the f oster care permanency plan from “relative placement” to “adoption.” For the foregoing reasons, the j udgment of the circuit court i s affirmed. Affirmed.