COURT OF APPEALS OF VIRGINIA

Present: Judg es Annunziata, Agee and Senior Judge Coleman

KIMBERLEE ANN LEFLER v. Record Nos. 2706-00-3 and MEMORANDUM OPINION * 2707-00-3 PER CURIAM MAY 8, 2001 SMYTH COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT CO URT OF SMYTH COUNTY Charles H. Smit h, Jr., Judge (Danny R. Lowe; Lo we & Money, P.C., on brief), for appellant. Appellant submitting on brief. (Amelia L. Bland; Bl and & Associ ates, P.C., on brief), for appellee. Appellee submitting on brief.

Kimberlee Ann Le fler appeals the decisi on of the trial court terminating her re sidual parental rights to her tw o children pursuant to Code § 16 .1-283(C). Le fler contends the trial court erred in finding the ev idence sufficient to terminate he r rights. For the follow ing reasons, we affirm. Lefler and her husb and had two chil dren, a daught er born on December 26, 1992 and a son born on Au gust 31, 1994. The parental rights of Lefler's husband were terminated on July 7, 1998.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.- 2 - At a hearing held on August 26, 1999, Melanie Carp enter, a foster care worker for the Smyt h County Departme nt of Social Services (the Depart ment), testified that the Department had worked with the Lefler family si nce 1995, provid ing the family with "every service" that was available to them and furnishing some of the serv ices on more th an one occasion. The Department originally became in volved with the fami ly in response to complaints in 19 95 that the chil dren were being neglected and the parents were having numerous physical alterc ations. From December 1995 to June 1996, the Department provided se rvices for the Lefler family to assist them in maintaining a stable home environment at a cost of more than $3 ,400. The assistance included payments for rent and other in-home services. In addition, Lu theran Family Se rvices (LFS) wo rked with the family from November 1995 until February 1996. LFS provided crisis intervention, pa renting techniqu es, and assistan ce to both parents in finding em ployment. They assi sted the family in applying for Medicaid and food stamps. LFS also furnished housing and resource needs, including furn iture, food and money for utilities. LFS discharged the family fr om the prog ram because they failed to meet the goals of the program. At the time of the discharge, Lefler's hu sband no longer resi ded with the family, Lefler was in jail, an d the children had been placed in foster

care.- 3 - Family Preservation Services provided serv ices for the family from April 1, 1996 to July 30, 1996. They pr ovided transportation for Lefler to seek employment and to attend court hearings. They arranged for Lefler to attend substance abuse and domestic abuse support groups, an d they arranged for day ca re so she co uld attend these meetings. These services were terminated when the family moved to Florida. In April 1996, Le fler and her estran ged husband had a physical altercation in the presence of the children , resulting in their son receivin g scratches from broken glass. In May 1996, Lefler and her husban d had a physical alte rcation during which Lefler cut her husband wi th a knife. The chil dren were present in the home during that incident. In addition, Lefler had numerous misd emeanor an d felony convictions re lated to bad check charges. During one period of time, the Departme nt provided respite care for the childr en on the weekends that Lefl er spent in jail. In September 19 95, the court ente red a preliminary protective order agains t the children's father, orde ring him to stay away from the chil dren. On Febr uary 8, 1996, Lefler signed temporary entrustment agreem ents entrusting th e children to the Department to place them in a foster home while she was incarcerated for bad ch eck convictions. Carpenter te stified that the entrustment ag reements "lasted" unti l March 3, 1996. The- 4 - Department provided in -home services to assist Lefler when the children were retu rned to her care in March 1996 after her release from jail. The children were ba ck in foster care in September 1996. Prior to that pl acement, the Leflers had taken the ch ildren to Florida despite th e court order that Lefler's husb and was not to be in the presence of the children. While in Florida, the Leflers had a domestic dispute, and they were arrested. The children were placed in foster care in Florida, and the Florida Depa rtment of Health and Rehabilitati ve Services contacte d the Depart ment to take custody of the ch ildren. When Carpenter met th e children at the airport on their re turn from Florida, th e children attempted to bite and kick her. When Lefler return ed to Virginia from Florida, she was intermittently imprison ed for most of two ye ars for nume rous bad check charges. On September 3, 1996 , the court awarded the Department temporary custody of the childr en. The Department placed the children in a fo ster home whil e Lefler was incarcerated. Carpenter testif ied that when the chil dren first came into foster care "they ha d a lot of behavioral problems." Both children were di agnosed with ADHD and speech pr oblems. Both children were pr escribed Ritalin. While Lefler was incarcerated, the daughter received speech and behavioral therapy. Carpenter- 5 - testified the daug hter's behavior "improve d greatly" while she was in foster care, and she appeared to be "more ca lm" and "very polite." Carp enter also testified th at the son' s behavior improved a "great deal" while he was in foster care. During Lefler's two- year period of inca rceration, Carpenter spoke with Lefler seve ral times concer ning the serv ice plan and the goals Lefler would need to meet within the first si x months after her release from prison in order fo r the childr en to be returned to her. Carpenter advise d Lefler that th e Department had offered services "for so long th at [they] felt li ke these children really needed to be in a stable home. They needed security." Lefler was released from prison in June 1998. The children were placed back with Lefler in August 1998. Lefler had obtained housing and employ ment, and she had made progress in stabilizing her life. However, Le fler's husband moved in with the family, resulting in Lefler lo sing her housing. Le fler then moved to South Carolina wi th her husband an d took the childr en with her in violation of a protec tive court order. At the time, the Department was the legal custod ian of the chil dren, and the protective order issu ed against Lefler's husband rema ined in effect. Lefler did not obtain the Department's permission to move the children out of state. The Department retrieved the ch ildren from Sout h Carolina in November 1998. At th at time, the children showed aggressive- 6 - behavior. Both ch ildren had severe cases of head lice, colds, and flea bites. They were dressed in dirty clot hing, and th e daughter had insect bites on he r arms and legs that she had scra tched until they bled. The son ha d an eye infection. Carpenter testified the children were "wil d" and appeared to be angry with everyone. They destroyed their to ys, made rude re marks, and the so n kicked other children. Lefler pled guilty to abductio n charges relate d to removing the children to South Carolina , for which she served several months in jail. The Department again plac ed the children in foster care, and the fo ster care service plan goal was changed from "return to parent " to "adoption." The Department maintained legal custody of the children. Carpen ter testifie d that the children visited Lefler while she was incarcerated, bu t they were "hard to control" afte r they visited her. Sometimes th e children did not want to visit Lefler. In total, the childr en were in foster ca re from February 8, 1996 until March 1996, from September 1996 un til August 1998, and from November 1998 unti l the hearing da te of August 26, 1999. The son had spent over one-half of hi s life in foster care, and the daughter had spent over one-thir d of her life in foster care. Carpenter opined th at the best interest s of the children would be promoted by terminating Le fler's residual parental rights. Carpenter stat ed that the ch ildren need a stable home- 7 - environment whic h Lefler cannot provide. She test ified that since 1995, the Departme nt had offered Le fler every availa ble service in order to keep the chil dren in her cu stody and that Lefler had not substantially benefited from the services. The foster care pl ans dated August 18, 1998 provided that within a six-month time period Lefler was ex pected to accomplish the goals establis hed in the servic e plan. The pr ogram goal was to return the children to Lefler upon her re lease from jail. In order to achieve that goal, Le fler was to secure housing, employment, st ay away from he r husband, and co ntinue substance abuse counseli ng, if necessary, within six months of her release from jail. The ev idence showed that Lefler failed to meet these goals. In March 1999, the Department again fi led a foster care service plan for each of the two childr en. This plan stated, "The goal of returnin g to parent was not sele cted for these children because placing th em back with mother wo uld place them at great risk for emotional and physical harm." This plan also indicated that the children had "special needs due to being hypera ctive and having speech problems " and that the foster parents ha d "worked diligently" on helpin g the children. The foster parents also provided "the love, care and support" th e children needed. Therefore, the Depart ment changed the goal of the plans from "return to parent" to "adoption" for the chil dren only after it- 8 - became apparent that , despite the De partment's rehabilitative efforts, Lefler was un able to achiev e the goals of the first plan. Lefler testified sh e intends to divorce her husband. While incarcerated, Le fler took parentin g and anger manage ment classes. She also received coun seling for substance ab use. She stated she had not consumed alcohol for th irty-seven months, and she had obtained steady employ ment. At the time of the he aring, she had adequate housing. In the opinion of the guardian ad litem for the ch ildren, the best interests of the children would be se rved by te rminating Lefler's parent al rights. "When addressing ma tters concerni ng a child, including the termination of a parent 's residual parental rights, the paramount consideration of a trial court is the child's best interests." Logan v. Fairfax County Dep't of Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). "'In matters of a child's welfare, trial courts are vest ed with broad discre tion in making the decisions necess ary to guard and to fo ster a child's best interests.'" Id. (citation omitte d). The trial co urt's findings, "'when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without eviden ce to supp ort it.'" Id. (citation omitted). The trial court terminated Lefler's resi dual parental rights pursuant to Code § 16.1-283(C )(1). Code § 16.1-283(C)(1)- 9 - provides, in pertinent part, that the residual parental rights of a parent of a chil d placed in foster care may be te rminated if the court finds by clear an d convincing evidence that termination is in the child's best interests and that [t]he parent . . . [has], without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child's placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent . . . and to strengthen the parent-child relationship. The evidence showed that the Lefler fami ly had been "in the system" since 19 95. The Department an d several ot her family service organizations offere d Lefler "every serv ice available" to her from 1995 until 1999, attempti ng to assist Lefler in stabilizing her marriage and working to provide a healthy and secure environment for her two children . Despite this extensive assistance, Le fler made little substa ntive improvem ent in her ability to maintain a stable lifestyle. In addition, she failed to maintain continuing contac t with the chil dren when she repeatedly spent peri ods of time incarc erated, once for a continuous period of almost two years. At one point, Lefler signed temporary en trustment ag reements granting the Department the re sponsibility for the care and custody of her children while she was in ja il. These recurring- 10 - periods of incarceratio n, leaving the children in th e care of the Department, are a factor to consider when dete rmining whether termination of Lefler 's residual parental rights is in the children's be st interests. [W]hile long-term incarceration does not, per se, authorize termination of parental rights . . . it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court's finding by clear and convincing evidence that the best interests of the child[ren] will be served by termination. Ferguson v. Stafford County Dep' t of Soc. Servs. , 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). Twice Lefler violated court orders by moving the children out of state with her hu sband and withou t advising the Department prior to the move. Lefl er allowed her husband to live in her home despite the court' s issuance of a protective order against him and despite the goal establ ished by the Department that she stay away from her husband. Fu rthermore, the children have emotional and learning difficulties that are being addresse d while they are in foster care. The children's behavi or and speech pr oblems improved while they were in fo ster care. The son ha d spent over one-half of his life in fost er care, and the daug hter had spent over one-third of her life in foster care. "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- 11 - resuming his [or her] responsibili ties." Kaywood v. Halifax County Dep't of Soc. Servs. , 10 Va. App. 535, 54 0, 394 S.E.2d 492, 495 (1990). While the eviden ce shows that Lefler loves her ch ildren, the evidence shows that she has substant ially failed to maintain continuing contact with the children and to provide or substantially pl an for the future of the children for a period of six months after their placement in foster care, notwit hstanding the efforts of the Depa rtment and other rehabi litative agencies. Although Lefler attend ed parenting and ange r management classes while incarcerat ed, and she was employed at th e time of the hearing, Lefler's past history shows that she has not made the necessary and substantial changes in her life to provide for the children if they we re returned to her. Therefore, the record supports the trial court's finding that the Department presented clear and convincing evidence satisfying the statutory requirements of Code § 16.1-283(C)(1) and establishing that termination of Lefler's residual parental rights is in the children's best interests. Accordingly, the decision of the trial court is affirmed. Affirmed.