COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Fran k and Clements

TIMOTHY D. WILSON MEMORANDUM OPINION * v. Record No. 15 14-01-2 PER CURIAM JANUARY 8, 2002 PETERSBURG DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Pamela S. Bask ervill, Judge (William B. Bray; Pe rry & Bray, on brief), for appellant. (Joan M. O'Donnell, on brief), for appellee.

Timothy D. Wilson (father) appeals th e decision of the circuit court term inating his resi dual parental rights to his sons, Lord I. Jone s and Chaz A. Jone s. On appeal, father contends the trial court erred in finding (1) th e permanency planning orders of May 21, 2001 were in the best in terests of the children; (2) the evidence suffic ient to suppor t termination of his parental rights under Code § 16 .1-283(C)(1); (3 ) the evidence sufficient to support terminat ion of his parental rights under Code § 16.1-283(C)( 2); and (4) the te rmination of fath er's parental rights was in the best interests of the children. Upon reviewing the record and briefs of the parties, we conclude that this appeal

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.is without merit. Accordingly, we summarily affi rm the decision of the tria l court. See Rule 5A:27. On appeal, we view the evidence and all the re asonable inferences in th e light most favorable to appellee as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). Background On October 15, 1998 , the Petersbu rg Department of Social Services (the Depart ment) filed peti tions requesti ng emergency removal of Lord and Ch az from their parents' care, alleging the children had been ab andoned and negl ected. Trisha R. Jones (mother) left he r home at approx imately 11:00 p.m. on October 12, 1998 without providing information on her wher eabouts or when she would return. Father was incarcerated at the time. Father and mother are both infected with HIV, as is Chaz , their youn ger son. When mother left, she did not leave an y instructions concerning Chaz's medical care. In November 1998, the juve nile and domestic relations district court reviewed the initial fo ster care serv ice plans for the children. The init ial goal was to return the children home. The plans were review ed regularly in acco rdance with Code § 16.1-282, provid ing mother and father opportunity to present evidence of alternatives to fost er care for th eir children. However, the children have remained in fost er care si nce October 1998, and the pare nts have failed to demo nstrate they have made

- 2 -sufficient change in their lives to allow a safe return of the children to th eir care. In February 2000, the Department sought approval of a new plan with a change in goal from returning the children home to adoption. The juvenile court continue d the hearing fr om February 22, 2000 until August 22, 2000, to allow fath er the oppo rtunity to establish a safe environment for his children. After reviewing the evidence, the juvenile court approved the change in goal to adoption on August 22, 2000. In February 2001, th e juvenile court granted the Depart ment's separate petitions to terminat e mother's and father's pare ntal rights. The circuit court heard the evidence ore tenus on April 12, 2001. The court appr oved the permanency plan and terminated mother's and father's parental rights. Analysis

I. On April 12, 2001, pursuant to Code § 16.1-282, th e circuit court approved the Department's plan changing the foster care service plan goals for the children from "Return to Parent" to "Goal for Adoption." Father argues the circuit court erred by failing to require proof that he abused or neglected his children. "[P]arental fitness [is] not an issue in" proceedings under Code § 16.1-282. Padilla v. Norfolk Div. of Soc. Servs. , 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996). The evidence showed father had not

- 3 -maintained contact with the Department and had not provided information regarding his current financial, medical, housing or psychological situation. Father abruptly abandoned his visitation of the children after maintaining regular visitation for only several months. During the December 2000 extended visitation, father walked out on his family after only one night, leaving the children in mother's care despite orders not to leave them alone with her. The Department proved, by a preponderance of the evidence, that changing the goal from "Return to Parent" to "Goal for Adoption" was in the best interests of the children.

II. Father argues the Department failed to produce clear and convincing evidence to support termination of his parental rights under Code § 16.1-283(C)(1). In pertinent part, that section provides: The residual parental rights of a parent or parents of a child placed in foster care as a result of court commitment . . . may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that: 1. The parent or parents have, 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

- 4 -the parent or parents and to strengthen the parent-child relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition. Code § 16.1-283(C)(1). During the time his children have been in foster care, father has been incarcerated several times and did not have contact with his children for significant periods of time. Furthermore, father failed to provide any plan for his sons' future. In the two years prior to the hearing that Lord and Chaz spent in foster care, father had continuing contact with them between August 2000 and December 2000 only. Father's continued failure to maintain contact with his children constituted prima facie evidence to terminate his parental rights. Father failed to rebut the presumption created by statute. We conclude that this record contains sufficient evidence that father's parental rights were properly terminated under Code § 16.1-283(C)(1).

III. Under Code § 16.1-283(C)(2), the court can terminate a party's parental rights if the parent has "been unwilling or unable within a reasonable 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." Father's

- 5 -children spent thirty months in foster care, and father was incarcerated several times during that period. [W]hile long-term incarceration does not, per se, authorize termination of parental rights or negate the Department's obligation to provide services, 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 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). In addition to his repeated incarceration, father failed to complete many required programs, including anger management classes, family counseling, and individual counseling. He also failed to undergo a required substance abuse evaluation. Father's inability to remedy substantially the conditions that led to his sons' placement in foster care was without "good cause." We conclude that this record contains sufficient evidence that father's parental rights were properly terminated under Code § 16.1-283(C)(2).

IV. "In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On appeal, we presume that the trial court "thoroughly weighed all the evidence, considered the statutory requirements, and made its

- 6 -determination based on the child's best interests." Id

. at 329, 387 S.E.2d at 796. Furthermore, "[w]here, as here, the trial court heard the evidence ore tenus , its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Martin v. Pittsylvania County Dep't of Social Servs. , 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The trial court did not abuse its discretion by determining it was in the best interests of the children to terminate father's residual parental rights. Accordingly, we su mmarily affirm the decision of the tria l court.
See Rule 5A:27. Affirmed.

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