                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Powell and Senior Judge Clements


JAMES AMOS ANDREW GARDNER

v.      Record No. 2661-09-3                                    MEMORANDUM OPINION *
                                                                     PER CURIAM
WASHINGTON COUNTY DEPARTMENT                                         JUNE 22, 2010
 OF SOCIAL SERVICES


                     FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                                   C. Randall Lowe, Judge

                   (David L. Harmon, on briefs), for appellant. Appellant submitting
                   on briefs.

                   (Gregory M. Stewart; James H. Preas, III, Guardian ad litem for the
                   minor children; Stewart Law Office, P.C.; Haugh & Preas, PLC, on
                   brief), for appellee. Appellee and Guardian ad litem submitting on
                   brief.


        James Amos Andrew Gardner (father) appeals a decision terminating his parental rights to

his children. Father argues that the trial court erred in terminating his parental rights where (1) the

removal of the children from the home did not result from any of father’s acts and (2) the

Department of Social Services (the Department) failed to actively pursue relative placement with

father’s mother. Upon reviewing the record and briefs of the parties, we affirm the decision of

the trial court.

                                            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).

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Father and Kimberly Nelson, a/k/a Kimberly Fleming (mother), have four children - -

J.G., W.G., H.G., and A.G. 1 Beginning in December 2002, the family began receiving services

from the Department due to issues regarding neglect, unsanitary living conditions, personal

hygiene of the children, lack of cooperation by parents with service providers, and alleged drug

abuse of a relative who lived with them at the time. In 2005, both parents were charged with

physical neglect of the children. In 2007, father was again charged with physical abuse of the

children. In May 2007, father and mother separated. Mother had custody, and father had

supervised visitation. In May 2007, the Department offered numerous services to mother,

including ongoing social worker and homemaker services, in-home counseling, and case

management and mentoring from Highlands Community Services. Respite care was provided

for the children, and J.G. attended special education classes.

       On January 24, 2008, the Department removed the children from the home because of

mother’s lack of cooperation with service providers, unsanitary conditions of the home, poor

hygiene of the children, lack of supervision, inappropriate and inconsistent day-care providers,

failure to keep medical appointments, lack of discipline, and safety concerns.

       The Department did not place the children with father because of his prior abuse and

neglect charges. On February 6, 2008, father petitioned the court for custody of the children, and

the court requested a home study. Initially, the court had safety concerns about father’s house

because of ongoing repairs. Father later informed the court that the repairs were completed.

Another home study was conducted, and his home was deemed appropriate. However, after

learning that father was living with his girlfriend and her three children, the court ordered

another home study on April 21, 2009. Father’s home was not approved because his girlfriend

and her three children had moved in with him. The girlfriend had child protective services


       1
           We will refer to the children by their initials.
                                                  -2-
complaints against her. If father’s children were placed with him in the house with the girlfriend

and her three children, there would be too many people in the house. There also was concern

that father and his girlfriend would not be able to appropriately supervise and parent his four

children, who have special needs, and her three children. The court denied father’s petition for

custody.

        Father has a history of physically abusing the children. During his visits with the

children, he used inappropriate language in front of them, and he would often ignore them.

        After the court denied his petition for custody, father stopped visiting the children and

refused to participate in further services.

        On November 9, 2009, the trial court terminated father’s parental rights, and father timely

noted his appeal. 2

                                              ANALYSIS

        “Where, as here, the court hears 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 Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16

(1986) (citations omitted).

        When considering termination of parental rights, “the paramount consideration of a trial

court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463.

                              Issue 1 – Termination of Parental Rights

        Father argued that the trial court erred in terminating his parental rights because the

children’s removal from the home did not result from his actions.




        2
        The trial court also terminated mother’s parental rights. She appealed the decision. See
Nelson v. Washington Co. Dep’t of Soc. Servs., Record No. 2662-09-3 (Va. Ct. App. June 22,
2010).
                                              -3-
       The trial court terminated father’s parental rights based on Code § 16.1-283(B) 3 and

§ 16.1-283(C)(2). 4 Although the children were not living with father at the time of the removal,

his actions prevented them from coming into his care. The Department had been involved with

the family since 2002, prior to mother and father’s separation. Father had two previous charges

of abuse and neglect. There was evidence that in 2007, father became upset with J.G. when he

did not clean the dog’s area. Father put the dog’s collar around J.G. and chained him to the

doghouse, so J.G. knew what it would be like to live in those conditions.

       Despite going to parenting and anger management classes, father’s behavior around the

children did not change. Once the children were placed in foster care, father visited the children

regularly at the Department. Father yelled and cursed at the children. He did not interact with

them much during the visits. He showed no physical affection toward them. He refused to



       3
           Code § 16.1-283(B) states a parent’s parental rights may be terminated if:

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

                 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.
       4
           A person’s parental rights may be terminated if:

                 The 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.

Code § 16.1-283(C)(2).
                                                  -4-
change the youngest children’s diapers, saying that it was the Department’s job. Father was

offered an opportunity to have unsupervised visits, but he came to the Department with a pickup

truck that would not seat all four children. The Department offered to take the children to a

location to visit with father, but he refused. On a subsequent visit, he came with a van which did

not have seatbelts. He refused the Department’s offers to take the children to a location for a

visit and/or to supply a van with seatbelts.

          Father was uncooperative and argumentative with the Department. He did not believe

that his actions and how he treated the children were harmful to the children. He did not follow

the Department’s recommendations. He stopped visiting the children when his petition for

custody was denied due to his choice of allowing his girlfriend, who had child protective services

complaints against her, and her three children to move in with him.

          Despite the services offered to father, his attitudes and demeanor did not change. The

children all have special needs, which father was not able to meet. His housing was deemed

inappropriate. At the time of the hearing, the children had been in foster care for almost

twenty-two months.

          “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. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495

(1990).

          The trial court did not err in terminating father’s parental rights.

                                      Issue 2 – Relative Placement

          Father argues that the trial court erred in terminating his parental rights because the

Department failed to actively pursue relative placement with the paternal grandmother. Father




                                                   -5-
contends the Department did not investigate the paternal grandmother as a possible placement,

even though she presented herself as an alternative placement.

        Before terminating a parent’s rights, “the court shall give a consideration to granting

custody to relatives of the child, including grandparents.” Code § 16.1-283(A). The

“Department has a duty to produce sufficient evidence so that the court may properly determine

whether there are relatives willing and suitable to take custody of the child, and to consider such

relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at

465.

        Unlike the grandmother in Sauer v. Franklin Co. Dep’t of Soc. Servs., 18 Va. App. 769,

771, 446 S.E.2d 640, 641 (1994), neither parent was living with the paternal grandmother. 5 The

Department tried to contact the paternal grandmother on three separate occasions, but never

spoke with her. The paternal grandmother presented herself to the Department and told the

Department that her trailer could not accommodate the children. She contacted the Department

about filing a petition for custody, but did not do so. She testified at the termination of parental

rights hearing. She stated that her son-in-law and his oldest daughter were living with her. She

also testified that she knew the children “were out of control.”

        The trial court received sufficient evidence to evaluate the paternal grandmother as a

possible placement for the children. See Hawthorne v. Smyth Co. Dep’t of Soc. Servs., 33

Va. App. 130, 139, 531 S.E.2d 639, 644 (2000) (although the Department did not investigate a

relative, the relative testified at trial, so “the trial court was presented with evidence for its

consideration as to the suitability” of placing the child with a relative before it ordered




        5
        The paternal grandmother testified that mother had stayed with her “for a couple of
weeks” and then moved to a different residence. Mother was not living with the paternal
grandmother at the time of the hearing.
                                             -6-
termination of the parent’s rights). The trial court did not err in terminating father’s parental

rights before investigating a relative placement.

                                          CONCLUSION

       For the foregoing reasons, the trial court’s ruling is affirmed.

                                                                                           Affirmed.




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