                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED



              LARRY DARNELL BORDEN, SOMETIMES KNOWN AS
               LARRY DONELL BORDEN, SOMETIMES KNOWN AS
               LARRY DORNELL BORDEN
                                                                              MEMORANDUM OPINION*
              v.     Record No. 1548-15-3                                         PER CURIAM
                                                                                FEBRUARY 23, 2016
              ROANOKE COUNTY DEPARTMENT
               OF SOCIAL SERVICES


                                   FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                                               James R. Swanson, Judge

                               (A. Kristin Shandor, on brief), for appellant. Appellant submitting
                               on brief.

                               (Rachel L. Whiting, Assistant County Attorney; Kristen Konrad
                               Johnstone, Guardian ad litem for the minor children; Osterhoudt,
                               Prillaman, Natt, Helscher, Yost, Maxwell & Ferguson, PLC, on
                               brief), for appellee. Appellee and Guardian ad litem submitting on
                               brief.


                     Larry D. Borden (father) appeals from an August 27, 2015 circuit court order terminating

              his residual parental rights to his two children pursuant to Code § 16.1-283(C)(2). On appeal,

              father argues that the trial court erred by terminating his parental rights because the Roanoke

              County Department of Social Services (the Department) failed to meet its burden “of proof by

              clear and convincing evidence that the termination is in the best interests of the children.”

                     Upon reviewing the record and briefs of the parties, we conclude that the trial court did

              not err. Accordingly, we affirm the decision of the trial court.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          BACKGROUND

       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 Cty. 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 Cty. 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)).

       Father, the sole custodial parent of twin boys, was arrested on February 27, 2014. The

boys, then ten years old, came into foster care at that time. Father later pled guilty to a number

of drug-related offenses and was sentenced to an active term of incarceration of five years. The

Department unsuccessfully attempted to locate suitable relative placements. Upon their

placement in foster care, both boys exhibited severe behavioral issues, including destruction of

property and physical violence. Father explained that the children had previously been in foster

care when they had been in their mother’s custody. During a prior period when father was

incarcerated, the boys had been placed with others. The boys, currently in separate foster homes,

have improved. In finding that the termination of father’s parental rights was in the best interests

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of the children, the trial court emphasized the boys’ need for permanency and father’s inability to

provide for them.

                                             ANALYSIS

       A termination of parental rights under Code § 16.1-283(C)(2) requires clear and

convincing evidence that termination is in the best interests of the child and that the parent,

               without good cause, ha[s] 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 or required continuation of the child’s foster
               care placement, notwithstanding the reasonable and appropriate
               efforts of . . . rehabilitative agencies to such end.

In addition,

               [p]roof that the parent . . . , without good cause, ha[s] 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 in accordance with their obligations under
               and within the time limits or goals set forth in a foster care plan . . .
               shall constitute prima facie evidence of this condition.

Id.

       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).

       Father maintains that his incarceration at the time of the termination hearing did not

provide a basis for termination of his parental rights. However, father’s incarceration was “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

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be served by termination.” Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333,

340, 417 S.E.2d 1, 5 (1992).

        The trial court concluded that clear and convincing evidence proved the factors required

for termination under Code § 16.1-283(C)(2), including that termination was in the best interests

of the children. Father’s involvement in the distribution of drugs ultimately led to the boys’

removal from his care in February 2014. Father was subsequently convicted and faced years of

incarceration. He has no ability to provide a home for his children for the foreseeable future.

Father’s admitted drug use and addiction, combined with the boys’ special needs, provided the

trial court with further evidence that the termination of father’s parental rights was in the best

interests of the children.

        We recognize that “[t]he termination of [residual] parental rights is a grave, drastic and

irreversible action.” Helen W. v. Fairfax Cty. 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 Cty. Dep’t of Soc. Servs., 10 Va. App. 535,

540, 394 S.E.2d 492, 495 (1990).

        Considering all the facts and circumstances, the trial court did not err in concluding that

there was clear and convincing evidence to prove the factors required for termination of father’s

parental rights pursuant to Code § 16.1-283(C)(2) and to demonstrate that termination was in the

children’s best interests. Thus, we affirm.

                                                                                           Affirmed.




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