                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED



              JOSHUA SEXTON
                                                                                      MEMORANDUM OPINION*
              v.      Record No. 2115-13-3                                                PER CURIAM
                                                                                          APRIL 15, 2014
              DICKENSON COUNTY DEPARTMENT
               OF SOCIAL SERVICES


                                   FROM THE CIRCUIT COURT OF DICKENSON COUNTY
                                                Henry A. Vanover, Judge

                                (Charles H. Slemp, III; Slemp Law Office, PLLC, on brief), for
                                appellant.

                                (Laura Faye Robinson; Cynthia Short, Guardian ad litem for the
                                infant children; Short Law Firm, PC, on brief), for appellee.


                      Joshua Sexton appeals the trial court’s order terminating his parental rights to his four

              children pursuant to Code § 16.1-283(C)(2). Sexton argues that the evidence was insufficient to

              prove he was unable or unwilling to substantially remedy the conditions that led to the foster care,

              that the trial court erred in denying his request for an additional six months to rectify the situation,

              and that the trial court erred in determining that it was in the best interests of the children to

              terminate his parental rights. 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. See

              Rule 5A:27.

                      “On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,

              considered the statutory requirements, and made its determination based on the child’s best

              interests.’” Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
659 (2005) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). The

trial judge’s findings, “‘when based on evidence heard ore tenus, will not be disturbed on appeal

unless plainly wrong or without evidence to support it.’” Logan v. Fairfax Cnty. Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Peple v. Peple, 5

Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)).

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

it all reasonable inferences fairly deducible therefrom. Id.

       So viewed, the evidence proved that on June 28, 2012, Sexton’s four children were living

with Sarah Sexton, Sexton’s wife and the mother of the four children (mother), and the Dickenson

County Department of Social Services (DCDSS) removed the children due to physical neglect,

inadequate supervision, poor housekeeping, inadequate food, and the failure of mother to take her

medication.1 At the time of removal, Sexton had been incarcerated since December 3, 2011.

       The removal on June 28, 2012 was the second foster care removal for the children. On

August 23, 2011, the City of Norton Department of Social Services (NDSS) removed the children

due to domestic violence, drug abuse, lack of shelter, and mother’s mental health issues. In August

2011, Sexton, mother, and the children were residing with Kimberly Hamilton, Sexton’s sister.

While living with Hamilton, the police responded to Hamilton’s residence at least three times due to

domestic violence. One goal of the foster care plan was to provide a safe and stable home for the

children. NDSS immediately referred the children to the Children’s Advocacy Center for

counseling due to inappropriate sexual behaviors. NDSS provided Sexton and mother with

substance abuse counseling, domestic violence counseling, anger management, grief counseling,

marital counseling, drug screens, visitation, and transportation. The only service Sexton completed


       1
         Mother agreed to the termination of her parental rights to the four children, S.S. born on
October 14, 2004, R.S. - - born on June 25, 2009, J.S. - - born on September 8, 2010, and S.S. - -
born on July 25, 2011.
                                              -2-
prior to his incarceration was a six-hour Moral Recognition Therapy course and weekly visits with

the children. In November 2011, Sexton and mother obtained housing in Dickenson County.

       On December 3, 2011, Sexton was arrested for discharging a firearm in an occupied

building and possession of a firearm after having been convicted of a felony.2 The children were

returned to mother in May 2012 while Sexton remained incarcerated, but DCDSS removed the

children from mother the following month. Sexton was scheduled to be released from incarceration

in February 2014.

       On August 26, 2013, which was approximately fourteen months after DCDSS took custody

of the children, April Collins, a DCDSS Family Services Specialist, contacted Sexton and informed

him that DCDSS would be seeking termination of his parental rights. Collins testified Sexton was

angry during the phone conversation. Sexton admitted he was angry during the conversation, but

explained that the conversation began with the question whether he was ready to give up his

parental rights. DCDSS investigated and found no relatives that were willing and suitable to care

for Sexton’s children. DCDSS investigated Hamilton and determined that her residence was not

appropriate because she lived in a two-bedroom trailer with her husband and their four children.

Hamilton’s husband was an alcoholic, and their children frequently stayed with a grandmother due

to her husband’s behavior. Hamilton also had chronic health issues.

       At Sexton’s termination hearing, mother testified Sexton verbally and physically abused her

for twelve years, but Sexton denied being abusive towards mother. Although Sexton admitted he

and mother argued frequently, he testified the arguments were normal arguments between spouses.

Mother testified Sexton watched the Playboy Channel while the two older children were present.


       2
        Mother testified Sexton was attempting to commit suicide and she grabbed the firearm
from Sexton. Sexton testified he was not attempting to commit suicide, but he and mother
argued, mother pulled out the firearm, and it discharged while he tried to get the firearm away
from her. Sexton pled guilty to the charges.

                                                -3-
Sexton denied doing that, but agreed mother removed the Playboy Channel from their cable

subscription plan. Mother testified she witnessed Sexton “huffing” glue on numerous occasions

prior to his incarceration, but Sexton denied he “huffed” glue.

       Sexton testified he was planning on living with Hamilton upon his release from

incarceration. Hamilton testified Sexton and his children could live with her. Sexton admitted it

would take him at least three to six months to be able to provide for the children. Sexton testified a

friend was keeping a trailer for him while he was incarcerated. At some point while he was

incarcerated, Sexton completed parenting classes. In 2012, Sexton completed substance abuse

counseling and anger management counseling. In 2013, Sexton completed life skills classes.

Sexton wrote a total of sixteen letters to his four children while incarcerated. Sexton has not seen

the children since his incarceration in December 2011.

       The oldest child was placed in a foster home, has bonded with the family, and wants to be

adopted by the family. The second oldest child was placed in another foster home, has bonded with

the family, and there have not been any problems with the child acting out sexually. The two

youngest children were placed in the same foster home, the children have bonded with the family,

and they do not know any other caregivers. Collins has grave concerns about placing the children

together because the two older children sexually assaulted each other and sexually assaulted the two

younger children.

       Code § 16.1-283(C)(2) requires proof, by clear and convincing evidence that:

               The parent or parents, without good cause, have been unwilling or
               unable within a reasonable period of time not to exceed 12 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. Proof that the parent
               or parents, without good cause, have failed or been unable to make
               substantial progress towards elimination of the conditions which
               led to or required continuation of the child’s foster care placement
                                                 -4-
               in accordance with their obligations under and within the time
               limits or goals set forth in a foster care plan filed with the court or
               any other plan jointly designed and agreed to by the parent or
               parents and a public or private social, medical, mental health or
               other rehabilitative agency shall constitute prima facie evidence of
               this condition. 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.

       Decisions to terminate parental rights under Code § 16.1-283(C) “hinge not so much on the

magnitude of the problem that created the original danger to the child, but on the demonstrated

failure of the parent to make reasonable changes.” Toms v. Hanover Dep’t of Soc. Servs., 46

Va. App. 257, 271, 616 S.E.2d 765, 772 (2005).

               In determining what is in the best interests of the child, 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).

       “‘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.’” Logan, 13 Va. App. at 128, 409

S.E.2d at 463 (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795).

       While Sexton’s incarceration, standing alone, is not sufficient to support the trial court’s

termination of his parental rights, “it is a valid and proper circumstance which, when combined

with other evidence concerning the parent/child relationship, can support [the] court’s finding

that the best interests of the child will be served by termination.” Ferguson v. Stafford Cnty.

Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). By the same token, Code

§ 16.1-283(C)(2) contains no excuse for a parent’s failure to remedy the conditions leading to



                                                 -5-
foster care because he has been incarcerated for over twelve months subsequent to the child’s

placement in foster care.

       While incarcerated, Sexton did take additional classes on substance abuse, anger

management, and life skills, but it was only after DCDSS took custody of the children for a second

time. Since his incarceration in December 2011, Sexton wrote a total of only sixteen letters to his

four children. There was no evidence that Sexton attempted to schedule in-person or telephonic

visitation with the children while he was incarcerated. The children have bonded with their foster

families, and the two younger children have not known any other caregivers.3 DCDSS has concerns

of the four children living together due to the history of the two older children sexually abusing each

other and the two younger children.

       There was no evidence that Sexton will ever be able to care for his children. When he was

not incarcerated and NDSS had custody of his children, Sexton completed only one requirement of

the NDSS care plan, which was a six-hour course on Moral Recognition Therapy. Prior to his

incarceration, Sexton failed to enroll or complete substance abuse counseling, domestic violence

counseling, anger management, grief counseling, or marital counseling. There was also no record

of Sexton participating in drug screens as required by the NDSS care plan. Prior to NDSS removing

the children, Sexton exposed the two older children to sexually explicit television programs. When

taken into custody by NDSS, the children were immediately referred to the Children’s Advocacy

Center for counseling due to inappropriate sexual behaviors. The December 2013 incident involved

a firearm, and Sexton subsequently pled guilty to two felony charges. The December 2013 firearm

incident occurred after NDSS took custody of the children when Sexton was supposed to be

working on regaining custody of his children. “‘[P]ast actions and relationships over a meaningful


       3
         When Sexton was incarcerated in December 2011, his third child was approximately
fifteen months old and his fourth child was approximately five months old.

                                                 -6-
period serve as good indicators of what the future may be expected to hold.’” Linkous v.

Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App.

530, 536, 359 S.E.2d 315, 319 (1987)).

        Sexton’s plan was to live with Hamilton after release from incarceration, but Hamilton lives

in a two-bedroom trailer with her alcoholic husband and four children. Hamilton’s four children

frequently stay at a grandmother’s residence due to the behavior of Hamilton’s husband. DCDSS

found that Hamilton’s residence was not a suitable living situation for the children. According to

Sexton, a friend was holding a trailer for him while he was incarcerated, but there was no evidence

of the trailer’s location, its size, or its condition to determine if it would be suitable housing for the

children. There was no evidence of Sexton’s plan regarding employment and a plan to financially

support the children. There was no evidence of Sexton’s plan concerning his relationship with

mother. At the time of Sexton’s termination hearing, mother’s parental rights had been voluntarily

terminated and Sexton and mother were still married. There was no evidence that an additional six

months would change Sexton’s ability to provide suitable and stable housing for the children and to

meet his children’s needs. “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 Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540,

394 S.E.2d 492, 495 (1990).

        We cannot say that the trial court erred in finding that the evidence was clear and convincing

that Sexton has been unable or unwilling to substantially remedy the conditions that led to the

placement of the children in foster care, that an additional six months would change the situation,

and that it was in the best interests of the children to terminate Sexton’s parental rights.




                                                   -7-
Accordingly, the trial court did not err in terminating Sexton’s parental rights under Code

§ 16.1-283(C)(2).

                                                                                              Affirmed.




                                                -8-
