                               COURT OF APPEALS OF VIRGINIA


Present:               Judges Bumgardner, Humphreys and Clements


FAIRFAX COUNTY DEPARTMENT OF
 FAMILY SERVICES
                                                           MEMORANDUM OPINION * BY      TPF   FPT




v.   Record No. 0821-00-4                              JUDGE RUDOLPH BUMGARDNER, III

USMAN IBRAHIM


                          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Jane Marum Roush, Judge

                       Stephanie J. Scott (David P. Bobzien; Robert
                       Lyndon Howell; Dennis R. Bates; Office of the
                       Fairfax County Attorney, on brief), for
                       appellant.

                       No brief or argument for appellee Usman
                       Ibrahim.


     The Fairfax County Department of Family Services appeals

the denial of its petition to terminate the parental rights of

Usman Ibrahim in his three children. 1           TPF   FPT   The trial court found the

evidence insufficient, but the department contends the evidence

mandated a termination under Code § 16.1-283(C)(2). 2                   TPF   FPT   Finding no

error, we affirm.


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




     1
       The three children are Adizza (b. 4/20/87), Ninat (b.
          TP   PT




4/14/89), and Farrizat (b. 6/2/93).
     2
     TP        PT   Code § 16.1-283 provides, in part:

                            C. The residual parental rights of a
                       parent or parents of a child placed in
     The father and mother were foreign nationals living in

Virginia with their three minor children.        The father and mother

were arrested for importing drugs into the United States when

they returned from a trip to their native country, Ghana.

Federal authorities convicted and incarcerated them in 1994, 3 and TPF   FPT




at that time, the parents placed the children with a friend,

Felicia Springs.

     The department did not become involved until October 1997,

when it removed the children from Springs's custody because she

physically abused them.      The department placed the children in a

foster care home in November 1997.         Two of them remain in the

same foster care home, but the third child requires residential

treatment.


               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:

                    2. 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.
     3
     TPThe mother was deported upon her release in 1997 to reside
          PT




in Ghana. Her parental rights were terminated based in part
upon her instability and she did not appeal that decision.


                                   - 2 -
     The department's initial service plan would have placed the

children with their maternal aunt.     The department did not

consider placing the children with the father because of his

incarceration and the expectation that he would be deported upon

release.   The department did consider returning the children to

the father if he remained in the United States but never acted

on that possibility.

     In January 1999, the department changed the goal to

adoption because "[t]here has not been significant progress on

the part of . . . [the father].   The goal of return home and

placement with relative cannot realistically be achieved."       It

filed termination petitions, and the juvenile and domestic

relations district court terminated the father's parental rights

June 2, 1999.   The father appealed to the circuit court which

denied the termination for lack of evidence.

     On appeal, the department contends it proved that

termination was proper under Code § 16.1-283(C)(2).    The

department argues the children entered foster care because the

parents were incarcerated and unavailable when the department

removed the children from Springs.     Twenty months after the

removal and placement in foster care, the father was unavailable

because of his deportation.   The department contends that

rendering little or no service to the father amounted to

rendering reasonable services because it could not offer

services during his incarceration in a federal prison.    After

                               - 3 -
deportation, the department maintains it had no way to provide

services in Ghana.   The department stresses the father had not

contacted the department during the two months following

deportation.

     The evidence in this case is not in dispute, though the

inferences arising from it and the interpretation of it are.       We

view the evidence in the light most favorable to the father, and

grant to it all reasonable inferences fairly deducible from it.

Ferguson v. Stafford County Dep't of Social Servs., 14 Va. App.
U                                                       U




333, 336, 417 S.E.2d 1, 2 (1992).   When the trial court's

judgment is based upon evidence heard ore tenus, it will not be
                                        U   U   U   U




disturbed on appeal unless plainly wrong or without evidence to

support it.    Logan v. Fairfax County Department of Human Dev.,
               U                                               U




13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).

     To terminate the parental rights under Code

§ 16.1-283(C)(2), the trial court must find by clear and

convincing evidence (1) that termination is in the best

interests of the child, (2) that the father failed to remedy

substantially the conditions leading to, or requiring

continuation of, foster care, and (3) that the father failed to

remedy the conditions despite receiving reasonable and

appropriate services.   The trial court's written opinion

primarily addressed termination under Code § 16.1-283(C)(1):

failure to maintain contact and plan for the future of a child.

The juvenile court had terminated the father's rights under that

                                - 4 -
subsection, and it best fit the facts presented to the trial

court.   However, the opinion addressed both bases for

termination under Code § 16.1-283(C).   The trial court's opinion

makes clear the department failed to meet its burden under Code

§ 16.1-283(C)(2) for three reasons:    (1) the conditions that led

to the placement had been remedied, (2) the only reason offered

for termination was the father's initial incarceration and

subsequent deportation, and (3) the department did not provide

reasonable and appropriate services to the father.   The evidence

supports the trial court's decision to deny termination.

     The trial court found the conditions that brought the

children into foster care had been substantially corrected

because Springs was no longer their caretaker and the father was

no longer incarcerated.   The trial court concluded the father's

deportation was the determining factor in the department's

decision to seek termination of rights.   It found the department

never developed a service plan for the father, though he had a

substantial relationship with his children before his

incarceration.   The trial court found the department had offered

no services to the father to assist in having the children

returned to him, and it had not considered returning the

children to him in Ghana.   The trial court ruled deportation

alone was an insufficient basis for terminating residual

parental rights.



                               - 5 -
      The children lived with their mother and father prior to

their incarceration.   Nothing suggested the father abused them,

and the trial court found he had never abused or neglected them.

The children were not removed from their father's care but from

the person with whom the parents entrusted them.                      The father

maintained regular contact with his children during his

incarceration.   He called them every Sunday morning until the

foster parents changed their telephone number.                    He wrote them

letters and they wrote to him.       In June 1998, the children's

caseworker took them to see their father.               In June 1999, he was

released from incarceration.

     The father was incarcerated when the children entered

foster care, but even long-term incarceration alone is an

insufficient basis upon which to terminate parental rights.

Ferguson, 14 Va. App. at 340, 417 S.E.2d at 5.
U       U                                                         The father's

sentence was not long-term or unknown.           The initial service plan

dated December 8, 1997 anticipated the father would be released

within a year.   The department would have considered returning

the children to the father if he remained in the United States.

While a parent's long-term incarceration is a factor for the

court to consider, along with "other evidence concerning the

parent/child relationship," it "does not, per se, authorize
                                                    U     U   U   U




termination of parental rights or negate the Department's
                                       U




obligation to provide services." U     Id.
                                       U     U   (emphasis added).



                                 - 6 -
         Code § 16.1-283(C)(2) requires the department to provide

reasonable and appropriate services to the father.                         Harris v.
                                                                           U




Lynchburg Div. of Social Servs., 223 Va. 235, 243, 288 S.E.2d
                                        U




410, 415 (1982) (the department must provide reasonable and

appropriate services to a delinquent parent prior to terminating

his rights); Cain v. Commonwealth, 12 Va. App. 42, 46, 402
                       U                    U




S.E.2d 682, 684 (1991) (evidence did not show that with the

services required by statute the mother would not have been able

to correct neglect which preceded her incarceration).                          The

services offered by the department must be reasonable and

appropriate given the circumstances of a particular case.                            See
                                                                                     U     U




Ferguson, 14 Va. App. at 338, 417 S.E.2d at 4; Cain, 12 Va. App.
U                  U                                               U   U




at 45, 402 S.E.2d at 684 (termination order reversed).                         When

there is undisputed evidence that the department has not offered

a parent reasonable and appropriate services, "reversal of a

termination order is required."             Harris, 223 Va. at 243, 288
                                            U     U




    S.E.2d at 415 (citation omitted).

              Despite the department's assertion that it provided

    services, the department failed to maintain contact with the

    father or to provide him with any services. 4     TPF   FPT   It did not keep the

father abreast of Adizza's condition or residence, nor did it

advise him of the children's new foster care caseworker in April


         4
       The department provided the children with extensive
         TP   PT




services, but that does not satisfy the requirement it provide
the parent with reasonable and appropriate services.


                                       - 7 -
1999.             The children's guardian ad litem did not send him an
                                          U               U   U       U




introductory letter, and the children's therapist never

addressed reunification with their father.                                The department knew

the father wanted to regain custody upon his release and the

mother supported that placement.                              Nonetheless, the department

never evaluated him, assisted in his transition from

incarceration, or investigated the possibility of coordinating

efforts with an agency in Africa.                                 The trial court found the

department's expectation that the father contact the department

unreasonable because he did not know who was working with the

children.            It also found the period of two months after

deportation an unreasonably short period in which he was to

establish contact.

        Finally, the department did not establish a prima facie                   U           U   U         U




case under Code § 16.1-283(C)(2) 5 because the father never failed
                                              TPF   FPT




to do what the department or the court required of him.                                               The

department never advised the father to seek parenting skills

training or mental health or substance abuse services despite




        5
       "Proof that the parent . . ., without good cause, [has]
        TP   PT




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
        U




set forth in a foster care plan filed with the court . . . and                        U




agreed to by the parent . . . shall constitute prima facie                    U       U   U           U




evidence of this condition." Code § 16.1-283(C)(2).



                                         - 8 -
its contact with the father's caseworker in June 1998.    No court

order required him to seek services.

     This is not a case involving an absentee father with no

relationship with his children.   The department contends the

home and the services that the father could provide in Ghana

justify severing the relationship between the children and their

father.   However, the trial court would have to speculate about

the children's future because the department offered no

information about the situation in Ghana and made no efforts to

determine the conditions there.   While it may well be best for

the children to remain in the United States, the decision must

be based on fact not supposition.

     "The termination of parental rights is a grave, drastic,

and irreversible action."   Lowe v. Dept. of Public Welfare, 231
                            U                                U




Va. 277, 280, 343 S.E.2d 70, 72 (1986).   The statutory framework

for terminating parental rights, primarily set forth in Code

§ 16.1-283, "provides detailed procedures designed to protect

the rights of the parents and their child[ren].   These

procedures must be strictly followed before the courts are

permitted to sever the natural and legal bond between parent and

child."   Rader v. Montgomery County Dep't of Social Servs., 5
          U                                                  U




Va. App. 523, 526, 365 S.E.2d 234, 235 (1988).    The trial court

did not err in denying the petition because the evidence was




                                - 9 -
insufficient to sever this bond between the father and his

children.   Accordingly, we affirm.

                                                        Affirmed.
                                                        U




                              - 10 -
Clements, J., concurring.

        I join the majority because I am compelled to accept as

correct its interpretation of Code § 16.1-283(C)(2) and, thus,

I, too, cannot say that the trial court erred as a matter of

law.    I write separately, however, to address an issue

heretofore not addressed.

        To grant the department's prayer for termination pursuant

to Code § 16.1-283(C)(2) the trial court was required to find by

clear and convincing evidence (1) that termination was in the

best interests of the children, and (2) that the father failed

to remedy substantially the conditions leading to, or requiring

continuation of, foster care, and (3) that the father failed to

remedy the conditions despite receiving reasonable and

appropriate services.

        While I agree that a failure of proof on any prong of the

three-prong test defeats termination, nowhere in its opinion or

order did the trial court address or make findings concerning

the best interests of the children.      The trial court focused

solely on the father and the department.

        While the father and mother were foreign nationals, the

children are citizens of the United States and speak English

only.    The children first came to the department's attention in

1995 when it was alleged that Springs was abusive to and

neglectful of these children and their sibling Fatima, now an

adult.    That petition was dismissed as to these children.

                                - 11 -
     Mr. Ibrahim completed his federal penitentiary sentence and

was deported in approximately June 1999, and he is prohibited

from returning to the United States.    He is reported to be

working at a family business in Ghana.

     Each of the children has special needs.     Adizza, the

oldest, has suffered from serious psychological disturbance and

has been hospitalized multiple times.    By age eleven she was on

three significant medications for depression, mood

stabilization, and hallucinations.     She has a low frustration

tolerance and can be aggressive, explosive, and hostile.

Several times she has attempted to harm herself and commit

suicide.   Dr. James Steg, her psychiatrist, testified to her

need for required residential treatment.

     Ninat, who has been provided with individual and family

therapy, is on Ritalin.   Her therapists believe that she, too,

is at risk for suffering psychological problems without

continued intervention.

     The youngest child, Farrizat, also known as Fifi, has no

recollection of her father and no attachment or bond to him.

When placed in her foster home she suffered from significant

separation anxiety.   She would become hysterical for up to an

hour if separated from her foster parents.    Individual and

family therapy has also been provided to her.

     Tawanda Turner-Brown, licensed clinical social worker and

therapist for the children, testified that they were fearful of

                              - 12 -
their father and that he would come and take them to Africa, as

he told them in a phone call from prison that he would.         That

call by the father resulted in two weeks of "chaos" in the home

with Ninat and Fifi crying and screaming.      Ms. Turner-Brown was

met with resistance from the children when she attempted to

guide them to the possibility of resuming a relationship with

their father.   Dr. Steg testified that the children would need

to have a gradual transition to the father's home to overcome

their fear, made difficult by the father's inability to

participate in such a process.      Ms. Turner-Brown recommended

that the children stay with their current foster parents, with

whom they had a bonded, loving relationship.

     The record in this case reveals that the Guardian ad litem
                                                            U   U   U   U




for the children argued to the trial court that termination was

in "these children's best interest."

     To me, the evidence before us is clear and convincing that

it is in the best interests of these children that the father's

parental rights be terminated.      However, in this case we have

been required by statute to elevate the "technical legal rights

of the parent" over the paramount consideration--the best

interests of the children.    Forbes v. Haney, 204 Va. 712, 716,
                              U                 U




133 S.E.2d 533, 536 (1963).       I can only reflect upon the sadness

and turmoil in the lives of these children that the uncertainty

of continued foster care will bring.



                                  - 13 -
