                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Powell


WILLIE STEWART
                                                                 MEMORANDUM OPINION *
v.      Record No. 2182-08-1                                         PER CURIAM
                                                                    MARCH 24, 2009
NORFOLK DEPARTMENT OF
 HUMAN SERVICES


                    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                John C. Morrison, Jr., Judge

                  (Rodney D. Malouf; Thomas & Associates, on brief), for appellant.

                  (Bernard A. Pishko, City Attorney; Martha G. Rollins, Deputy City
                  Attorney; Shelly F. Wood, Guardian ad litem for the minor child,
                  on brief), for appellee.


        By order entered on August 19, 2008, the trial court terminated the residual parental rights

of Willie Stewart to his son, I.M., pursuant to Code § 16.1-283(B). On appeal of this decision,

Stewart challenges the sufficiency of the evidence to support the termination. Upon reviewing the

record and briefs of the parties, we conclude this appeal is without merit. Accordingly, we

summarily affirm the decision of the trial court. 1 See Rule 5A:27.

        Under Code § 16.1-283(B), the parental rights of a parent of a neglected or abused child

may be terminated if the court finds by clear and convincing evidence that termination is in the best

interests of the child and that:

                  1. The neglect or abuse suffered by such child presented a serious
                  and substantial threat to his life, health or development; and


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
       In Martin v. Norfolk Dep’t of Human Servs., Record No. 2464-08-1, released this day,
we summarily affirmed the trial court’s termination of the parental rights of I.M.’s mother.
               2. It is not reasonably likely that the conditions which resulted in
               such neglect or abuse can be substantially corrected or eliminated
               so as to allow the child’s safe return to his parent or parents within
               a reasonable period of time. In making this determination, the
               court shall take into consideration the efforts made to rehabilitate
               the parent or parents by any public or private social, medical,
               mental health or other rehabilitative agencies prior to the child’s
               initial placement in foster care.

       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)).

       I.M., the child of Stewart and Shelly Martin, was born on April 27, 1997. On December

17, 2005, when I.M. was eight years old, Martin was charged with contributing to the

delinquency of I.M. It was reported that for three hours at night I.M. was locked out of the room

of the boarding house where he lived with Martin. When the police responded, they knocked on

the door, but Martin did not answer. Eventually, Martin came to the door and stated she had

been asleep because she was sick. A neighbor reported that I.M. frequently was outside the
                                                 -2-
home alone at night. Finding Martin guilty of the charged offense, the juvenile and domestic

relations district court (juvenile court) noted that it was Martin’s third instance of child neglect.

At Martin’s sentencing hearing on February 16, 2006, the juvenile court removed I.M. from

Martin’s care due to chronic neglect and unsafe living conditions.

       I.M. entered foster care in March 2006. At that time, I.M. displayed persistent behavioral

and emotional disturbances both at home and at school. Most of I.M.’s social contact with peers

at school ended in conflict. He was diagnosed with Attention Deficit Hyperactivity Disorder

(ADHD). In the foster home, there were several instances of I.M. acting out in a sexual manner.

He also had a history of bed-wetting. I.M. reported that his mother had left him alone at night

for long periods of time, which frightened him. In an August 2006 evaluation, representatives of

the Tidewater Child Development Clinic recommended that I.M. receive therapy to address his

emotional distress disorder and family therapy to help him manage his disruptive behavior. I.M.

is living with a foster family that is interested in adopting him.

       When I.M. was removed from Martin’s home and placed in foster care, Stewart was

incarcerated upon a conviction of taking indecent liberties with a minor. Stewart was transported

from jail and attended a dispositional hearing regarding I.M. on April 26, 2006. At the hearing,

the juvenile court approved the initial foster care service plan with concurrent goals of “return to

own home” and “adoption.” During the period of his incarceration, Stewart had no contact of

any kind with I.M. Stewart was released from jail in October 2007.

       At the termination hearing on August 19, 2008, Stewart testified that he contacted the

Norfolk Department of Human Services (NDHS) in December 2007 to arrange visitation with

I.M. According to Stewart, the social worker advised that he had to complete certain

requirements before he would be granted visitation. Stewart stated that he did not hear from the

social worker again to arrange visitation. Stewart attended the same church as I.M.’s foster

                                                 -3-
family, so Stewart had seen and talked to I.M. several times at church. Stewart denied I.M. had

any problems and said the child was “fine.” Stewart had six children for whom he was paying

no child support. Stewart testified at the hearing that I.M. could not live with him, but he was

attempting to obtain another residence that would be suitable for a child.

       Stewart contends the evidence was insufficient to support termination pursuant to Code

§ 16.1-283(B). 2 He argues that NDHS did not provide him with “reasonable rehabilitative

efforts” to reduce or eliminate the neglect or abuse of I.M. and did not attempt to reunite him

with his son. However, “Code § 16.1-283(B) requires only that the circuit court consider

whether rehabilitation services, if any, have been provided to a parent. Nothing in Code

§ 16.1-283 or the larger statutory scheme requires that such services be provided in all cases as a

prerequisite to termination under subsection B.” Toms, 46 Va. App. at 268, 616 S.E.2d at 771.

           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).

       Stewart was incarcerated for committing a crime against a child at the time of the abuse

and neglect that resulted in I.M.’s placement in foster care. Stewart made no effort to contact

I.M. from that time until Stewart was released from jail nineteen months later. Thereafter,

Stewart’s efforts to engage in a relationship with his son were limited, at most, to one telephone


       2
         Stewart also contends the evidence did not prove the conditions required for termination
pursuant to Code § 16.1-283(C), (D), or (E). However, because the trial court did not terminate
Stewart’s parental rights pursuant to these subsections of Code § 16.1-283, we need not consider
these questions on appeal.
                                                -4-
call to NDHS. At the time of the termination hearing, nearly two and one-half years after the

foster care placement, Stewart was unable to provide a home for I.M. and refused to

acknowledge the challenges the child faced. Moreover, Stewart had five other children of whom

he did not have custody and he did not support. I.M. is living in a stable family environment

with a foster family interested in adopting him.

       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).

       Because sufficient evidence supports the trial court’s decision, we summarily affirm the

termination of Stewart’s parental rights pursuant to Code § 16.1-283(B).

                                                                                     Affirmed.




                                                -5-
