COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
TIMOTHY D. WILSON
MEMORANDUM OPINION *
v. Record No. 1514-01-2 PER CURIAM
JANUARY 8, 2002
PETERSBURG DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
(William B. Bray; Perry & Bray, on brief),
for appellant.
(Joan M. O'Donnell, on brief), for appellee.
Timothy D. Wilson (father) appeals the decision of the
circuit court terminating his residual parental rights to his
sons, Lord I. Jones and Chaz A. Jones. On appeal, father contends
the trial court erred in finding (1) the permanency planning
orders of May 21, 2001 were in the best interests of the children;
(2) the evidence sufficient to support termination of his parental
rights under Code § 16.1-283(C)(1); (3) the evidence sufficient to
support termination of his parental rights under Code
§ 16.1-283(C)(2); and (4) the termination of father'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 affirm the decision
of the trial court. See Rule 5A:27.
On appeal, we view the evidence and all the reasonable
inferences in the 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 Petersburg Department of Social
Services (the Department) filed petitions requesting emergency
removal of Lord and Chaz from their parents' care, alleging the
children had been abandoned and neglected. Trisha R. Jones
(mother) left her home at approximately 11:00 p.m. on October 12,
1998 without providing information on her whereabouts or when she
would return. Father was incarcerated at the time. Father and
mother are both infected with HIV, as is Chaz, their younger son.
When mother left, she did not leave any instructions concerning
Chaz's medical care.
In November 1998, the juvenile and domestic relations
district court reviewed the initial foster care service plans for
the children. The initial goal was to return the children home.
The plans were reviewed regularly in accordance with Code
§ 16.1-282, providing mother and father opportunity to present
evidence of alternatives to foster care for their children.
However, the children have remained in foster care since October
1998, and the parents have failed to demonstrate they have made
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sufficient change in their lives to allow a safe return of the
children to their 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 continued the hearing from February
22, 2000 until August 22, 2000, to allow father the opportunity 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, the juvenile court
granted the Department's separate petitions to terminate mother's
and father's parental rights.
The circuit court heard the evidence ore tenus on April 12,
2001. The court approved the permanency plan and terminated
mother's and father's parental rights.
Analysis
I.
On April 12, 2001, pursuant to Code § 16.1-282, the 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
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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
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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
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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
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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 summarily affirm the decision of the trial court.
See Rule 5A:27.
Affirmed.
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