COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
DWAYNE A. MILLER, JR.
MEMORANDUM OPINION *
v. Record No. 2331-08-3 PER CURIAM
MARCH 24, 2009
HARRISONBURG-ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
James V. Lane, Judge
(Tracy J. Evans, II; Eldridge, Elledge & Harding, PLC, on brief), for
appellant. Appellant submitting on brief.
(Rachel Errett Figura, Assistant County Attorney; Warren A.
Picciolo, Guardian ad litem for the minor child, on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
On August 22, 2008, the trial court terminated the residual parental rights of Dwayne
Miller, Jr., to his daughter, S.D. 1 The trial court found clear and convincing evidence proved the
circumstances required for termination pursuant to Code § 16.1-283(C)(1) and (2). On appeal,
Miller contends the evidence was insufficient to support the trial court’s decision. Finding no
error, we affirm.
Pursuant to Code § 16.1-283(C)(1), a trial court may terminate the rights of a parent to a
child upon clear and convincing evidence that the parent,
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
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The trial court also terminated the residual parental rights of S.D.’s mother. We
affirmed that decision in Doyle v. Harrisonburg-Rockingham Soc. Servs. Dist., Record No.
2109-08-3 (Va. Ct. App. Mar. 6, 2009).
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. Proof that the parent . . . ha[s] 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[.]
Termination pursuant to Code § 16.1-283(C)(2) requires proof that the parent, “without good
cause, ha[s] 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,” notwithstanding
reasonable and appropriate efforts of service agencies.
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in
the circuit court and grant to that party the benefit of ‘all reasonable 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
S.E.2d 460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the
circuit court “‘thoroughly weighed all the evidence, considered the statutory requirements, and
made its determination based on the child’s best 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 plainly 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 discretion 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)).
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S.D., the biological child of Miller and Audra Doyle, was born on November 9, 2006.
Doyle had been diagnosed with mental conditions requiring medication and treatment, and she had
no permanent home. After S.D.’s birth, the child lived with Doyle at a Salvation Army shelter.
Social workers for Harrisonburg-Rockingham Social Services District (HRSSD) intervened with
Doyle following reports of her engaging in behavior that put S.D.’s welfare at risk.
On February 16, 2007, HRSSD advised Doyle she needed to find a relative to care for S.D.
or the child would be placed in foster care. Doyle took the child to Miller, who was then living with
his girlfriend’s parents. S.D. remained in Miller’s care for less than a week. During that time the
child lost weight. Miller later indicated he had not known how to feed or care for the child properly.
On February 21, 2007, Miller and Doyle met with HRSSD social workers and discussed
placing S.D. with relatives. None of the relatives identified by Miller or Doyle was capable or
willing to take S.D. Therefore, S.D. was placed in foster care.
Cheryl Dickensheets was the foster care social worker assigned to S.D. The foster care
service plan required Miller to receive individual counseling, complete a psychological evaluation,
maintain employment, and consistently participate in visitation with S.D. The service plan also
required Miller, who had not maintained independent housing as an adult, to obtain a suitable
residence for himself and S.D.
Miller left Dickensheets telephone messages on March 12 and 14, 2007. When Miller
called Dickensheets on March 21, 2007, they discussed the requirements of the service plan,
including that Miller obtain consistent employment and remain in contact with HRSSD. During a
telephone conversation on April 16, 2007, Dickensheets gave Miller an update regarding S.D.’s
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welfare. Miller said he was looking for work and was moving in with his grandparents.2 Miller
stated that he agreed with the requirements of the foster care service plan.
In May 2007, Dr. Joanne Grayson, a clinical psychologist, completed an evaluation of
Miller with regard to his general functioning and parenting. Dr. Grayson concluded Miller lacked
the knowledge and insight required for appropriate parenting. Dr. Grayson recommended Miller
obtain individual instruction in parenting and take a parenting class.
In the course of Dr. Grayson’s evaluation, Miller had one visit with S.D. on May 8, 2007.
Dickensheets advised Miller to contact her to schedule visitation with S.D. after he completed the
evaluation with Dr. Grayson, but he did not do so. Miller initiated no further contact with
Dickensheets other than leaving telephone messages for her on May 22, 2007 and July 13, 2007. 3
Although he subsequently attended court hearings regarding S.D., he did not approach Dickensheets
to discuss S.D. or the plans for her future. Miller completed none of the programs and services
required by the foster care service plan or recommended by Dr. Grayson.
Beginning in February 2008, Miller was incarcerated upon charges of carnal knowledge of a
minor and contributing to the delinquency of a minor. He was convicted of the offenses on June 11,
2008. Miller was sentenced to seven years with five years and ten months suspended for the carnal
knowledge offense, and received a twelve-month suspended sentence for contributing to the
delinquency of a minor.
At the time of the termination hearing on August 22, 2008, S.D. was living with the same
foster family with whom she was placed in February 2007. S.D. was thriving in her foster home.
2
Miller’s grandfather had been convicted of a “barrier” crime that prevented the
placement of a child in his household.
3
Miller claimed to have called Dickensheets a number of times when either he did not
leave a message or her voicemail did not respond.
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Miller remained incarcerated but expected to be released in February 2009. Miller claimed he
would be able to provide a home for S.D. within a few months of his release.
Miller contends the evidence did not support a termination of his parental rights pursuant to
Code § 16.1-283(C)(1). However, the evidence proved Miller knew S.D. was placed in foster care
in February 2007. Miller had initial telephone contacts with Dickensheets and was aware of the
requirement that he participate in the service plan. During the course of his psychological
evaluation, Miller visited with S.D. in May 2007. Yet, he did not contact Dickensheets to arrange
visitation thereafter. At the time of the termination hearing, Miller had had no contact with S.D. for
fifteen months. Miller’s claim that he became frustrated in attempting to reach Dickensheets by
telephone did not constitute good cause for his lack of contact with S.D. or failure to plan for her
future.
In determining what is in the best interests of a child, this Court has stated:
a court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
and physical and mental condition of the parents; the relationship
existing between each parent and each child; the needs of the child
or children; the role which each parent has played, and will play in
the future, in the upbringing and care of the child or children; and
such other factors as are necessary in determining the best interests
of the child or children.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
S.D. is thriving in the foster home where she has lived since she was three months old.
Although Miller claims he will be capable of providing a suitable home for S.D. within a few
months of his release from incarceration, he has demonstrated no ability to live independently.
In this regard, Miller’s “‘past actions . . . over a meaningful period serve as good indicators of
what the future may be expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 696-97, 492
S.E.2d 464, 467 (1997) (quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 194
(1990)).
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We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,
407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.
277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t 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 responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App.
535, 540, 394 S.E.2d 492, 495 (1990). The record supports the trial court’s finding that the best
interests of S.D. would be served by terminating Miller’s parental rights pursuant to Code
§ 16.1-283(C)(1).
Miller also contends the trial court erred in terminating his residual parental rights
pursuant to Code § 16.1-283(C)(2). Because we conclude the trial court’s decision terminating
Miller’s parental rights was warranted under Code § 16.1-283(C)(1), we need not reach this
issue. When a trial court’s judgment is made on alternative grounds, we need only consider
whether any one of the alternatives is sufficient to sustain the judgment of the trial court and, if
we so find, need not address the other grounds. See Fields, 46 Va. App. at 8, 614 S.E.2d at 659
(termination of parental rights upheld under one subsection of Code § 16.1-283 forecloses need
to consider termination under alternative subsections).
Accordingly, the trial court’s decision is affirmed.
Affirmed.
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