                                COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Kelsey and Senior Judge Coleman


JOHNNIE KEITH FOSTER, JR.
                                                                   MEMORANDUM OPINION*
v.      Record No. 1336-04-3                                           PER CURIAM
                                                                     DECEMBER 14, 2004
ROANOKE CITY DEPARTMENT
 OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                                Clifford R. Weckstein, Judge

                  (Melvin L. Hill; Ware, Cargill & Hill, P.C., on brief), for appellant.
                  Appellant submitting on brief.

                  (William M. Hackworth, City Attorney; Heather P. Ferguson,
                  Assistant City Attorney, on brief), for appellee. Appellee
                  submitting on brief.

                  (Joseph F. Vannoy, Guardian ad litem for the minor children, on
                  brief). Guardian ad litem submitting on brief.


        Johnnie Keith Foster, Jr. appeals the decision of the trial court terminating his residual

parental rights to his three sons pursuant to Code § 16.1-283(C)(2). Foster contends the evidence

was insufficient to support the trial court’s decision to terminate his residual parental rights. Upon

review of the record and briefs of the parties, we affirm the trial court’s decision.

                                            BACKGROUND

        We view the evidence in the light most favorable to the prevailing party below and grant to

it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So viewed, the evidence

established that the Roanoke Department of Social Services (DSS) investigated a complaint of child

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
neglect in 1999 which resulted in a felony conviction against Foster. The children were removed

from the home and later returned. In March 2002, DSS received another complaint of child neglect.

Katie Hale, a child protective services worker, investigated the complaint and discovered a home

filled with trash, cat feces, and dirty clothes. The children’s room smelled of urine, no sheets were

on the beds, and the boys had no clean clothes available. Family Preservation Services was sent

into the home to assist with parenting skills, crisis management, counseling, and addressing

behavioral problems. They provided 125 hours of services to the family. In May 2002, Hale

investigated another complaint when Foster fell asleep and the boys climbed onto the roof and were

locked out of the house. Foster was again convicted of felony child neglect.

       DSS developed a foster care services plan, approved by the juvenile and domestic relations

district court, which required Foster to attend parenting education classes, undergo a psychological

evaluation, participate in individual and marital counseling, maintain full time employment for an

extended period of time, maintain regular visitation with the children, improve the physical

conditions of the home, and cooperate with DSS and its recommendations. Foster underwent two

psychological evaluations; he was diagnosed as suffering from alcoholism and depression, having a

personality disorder with significant anti-social traits, and being of above-average intelligence: “not

a good combination to have.” Foster attended individual counseling but was twice discharged for

missing appointments and discontinuing his psychological medication after two months. Foster

held nine jobs in eighteen months. The home remained dirty and the utilities were cut off several

times, including the gas for over a year. Foster and his wife attended three sessions of marital

counseling but then stopped going to the sessions.

       Dr. Lanahan, the psychologist who evaluated Foster, testified that he did not advise

returning the children to Foster. Lanahan stated that,

               there is no treatment that exists that is going to be able to rectify this
               situation with Mr. Foster and that it would be . . . the best thing to do
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                 for his children would be to have them cared for by somebody who
                 could actually provide for their needs, and that is not going to be
                 Mr. Foster.

Lanahan also stated that if the trial court desired to try to return the children to Foster that

                 this [would] be an undaunted process and it was going to take a
                 substantial amount of time. I am talking years for even a glimpse of
                 hope to be embraced, and it would require a great deal of effort on
                 behalf of Mr. Foster. It would require that he be in treatment. He is
                 going to have to address his alcoholism. He is going to have to be
                 able to address severe characterological flaws with his personality
                 disorder, and that is just to stand a glimpse of a possibility that he is
                 going to be able to recover.

                                               ANALYSIS

        Code § 16.1-283(C) provides in pertinent part the following:

                 [t]he residual parental rights of a parent or parents of a child placed
                 in foster care . . . 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 . . . [t]he parent or parents, without good cause, have
                 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
                 the reasonable and appropriate efforts of social, medical, mental
                 health or other rehabilitative agencies to such end. . . . The court
                 shall take into consideration the prior efforts of such agencies to
                 rehabilitate the parent or parents prior to the placement of the child
                 in foster care.

“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.” Logan, 13 Va. App. at 128, 409

S.E.2d at 463.

        Foster contends he complied with the foster care service plan and did what was required of

him. Thus, he argues that he remedied the conditions that led to foster care placement. However,

while the record shows that Foster met some of the conditions imposed by the service plan, he failed

to meaningfully improve the conditions that resulted in foster care placement. Foster attended

parenting classes and received intensive services from Family Preservation Services. However,
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Foster failed to implement the skills and proved to be unable to apply what they taught him. Foster

failed to follow through with counseling, missing appointments, not cooperating, and discontinuing

his medications, such that he was twice terminated from individual counseling. Foster discontinued

marital counseling and only attended three sessions. Foster floated from job to job, having nine

employers in eighteen months’ time. Despite having adequate income, Foster failed to pay utility

bills, resulting in the electricity and gas being cut off for extended periods of time.

        Foster submitted to psychological evaluations but failed to respond to recommendations for

rectifying his circumstances. Further, the evaluator opined that there was no course of therapy that

could change Foster such that he could care for his children in a healthy, safe way. “It 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 [or her] responsibilities.” Kaywood v. Halifax County

Dep’t of Soc. Srvs, 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Finally, the evidence

established that the children’s special needs were being met and they were thriving in foster care.

Clear and convincing evidence proved that it was in the best interests of the children to terminate

Foster’s residual parental rights due to his failure to substantially remedy the conditions that resulted

in foster care placement.

        Accordingly, for the above stated reasons, the evidence supported the trial court’s decision

to terminate Foster’s residual parental rights to his three boys, pursuant to Code

§ 16.1-283(C)(2). The judgment of the trial court is affirmed.

                                                                                              Affirmed.




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