                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, O’Brien and Malveaux
UNPUBLISHED



              CLAYTON LANCASTER
                                                                               MEMORANDUM OPINION* BY
              v.      Record No. 0278-18-2                                     JUDGE RANDOLPH A. BEALES
                                                                                   DECEMBER 4, 2018
              PETERSBURG DEPARTMENT OF
               SOCIAL SERVICES


                                FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                                             Dennis M. Martin, Sr., Judge

                                (Katina C. Whitfield, on brief), for appellant. Appellant submitting
                                on brief.

                                (Joan M. O’Donnell; Christopher B. Ackerman, Guardian ad litem
                                for the infant child; Old Towne Lawyers, LLC, on brief), for
                                appellee. Appellee and Guardian ad litem submitting on brief.


                      On January 22, 2018, the Circuit Court of the City of Petersburg entered separate orders

              terminating the residual parental rights of Clayton Lancaster (“Lancaster”) and Meredith Horton

              (“Horton”)1 in regard to their son, R.H.2 In his appeal, Lancaster argues that the circuit court erred

              in terminating his residual parental rights and erred in finding it to be in R.H.’s best interests to

              approve the goal of adoption.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                      Horton also appealed to this Court the order terminating her residual parental rights.
              See Horton v. Petersburg Dep’t of Soc. Servs., No. 0275-18-2, this day decided.
                      2
                          We use initials, instead of the child’s name, in an attempt to better protect his privacy.
                                        I. BACKGROUND3

       On appeal, we are required to view the evidence “in the light most favorable to the

prevailing party below and its evidence is afforded all reasonable inferences fairly deducible

therefrom.” Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,

463 (1991). Therefore, in this appeal, we view the evidence in the light most favorable to the

Petersburg Department of Social Services (DSS), the prevailing party below.

       In March 2015, Child Protective Services received a complaint against Lancaster and

Horton in reference to their three-year-old son, R.H. The complaint alleged that there was

insufficient food in the home, that the parents were using drugs, and that a neighbor had to care

for R.H. Upon investigation, the Petersburg DSS found the home to be filthy and with

insufficient food for the child. The parents also tested positive for illegal substances while R.H.

was in their care. Lancaster tested positive for marijuana and benzodiazepines, and Horton

tested positive for benzodiazepines, marijuana, and cocaine. On March 13, 2015, R.H. was

physically removed from the home. On March 20, 2015, the Petersburg Juvenile and Domestic

Relations District (J&DR) Court placed R.H. in the legal custody of his maternal grandmother

(“grandmother”), under the supervision of the Petersburg DSS. On May 6, 2015, the J&DR

court issued an order requiring the parents to remain drug free, submit to drug screening,

maintain stable housing, participate in a substance abuse class, and work with DSS.

       In August 2015, DSS discovered that grandmother had traveled out of town, leaving R.H.

in the care of Lancaster. Doing so violated the safety plan that was in place and the specific


       3
          The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record for purposes of resolving the issues raised by appellant. Evidence
and factual findings below that are necessary in order to address the assignments of error are
included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in
the sealed record, we unseal only those specific facts, finding them relevant to the decision in
this case. The remainder of the previously sealed record remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775, 777 n.1 (2017).
                                                -2-
instructions given to grandmother. Consequently, R.H. was removed on August 20, 2015, and

on August 27, 2015, the J&DR court granted temporary legal custody to the Petersburg DSS. At

that time, the court found that “Father continues to use illegal substances and has not complied

with DSS’ recommendation for treatment.”

       On October 21, 2015, the J&DR court approved a foster care plan that placed R.H. with

foster parents. The foster care plan included a number of responsibilities and requirements with

which Lancaster was to comply, including, inter alia, requirements to maintain stable, adequate,

and independent housing with no interruption in utilities for at least six months; to obtain and

maintain steady employment; to participate in a substance abuse evaluation and any

recommended treatment; to undergo a psychological evaluation; to take parenting classes; and to

participate in supervised visitation with R.H.

       In January 2016, in its foster care service plan review, which identified the goal of

returning R.H. home to be with his parents, DSS reported that Lancaster was making “minimal

progress” and missed two supervised visits. On February 9, 2016, Lancaster completed his

court-ordered psychological evaluation. In its June 2016 foster care service plan review, which

maintained the goal of returning R.H. to be home with his parents, DSS reported that Lancaster

obtained employment in February 2016, but was terminated in April 2016 and was working “odd

jobs.” He tested negative on drug screenings and participated in supervised visits with R.H. on a

sporadic basis. In November 2016, DSS noted “some progress,” including that Lancaster and

Horton had obtained appropriate housing and had completed parenting classes; however, there

“was still some inconsistencies with the employment” and Lancaster tested positive for using

marijuana.

       At the time of the March 2017 DSS foster care service plan review, DSS was in the

process of attempting to initiate overnight stays of R.H. with his parents. However, the

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overnight stays never took place because, according to the testimony of the foster care social

worker to whom R.H. was assigned, “the parents had just regressed.” Specifically, R.H.’s

parents no longer had independent housing, but were living with grandmother, Lancaster had not

completed substance abuse treatment, and Lancaster did not have verified employment.

Lancaster attended some supervised visitations with R.H. in January and February 2017. In its

March 2017 foster care service plan review, DSS continued to recommend the goal of returning

R.H. home to be with his parents, but the J&DR court disapproved the goal and directed DSS to

submit a new plan with the goal of adoption. In May 2017, DSS submitted a plan with the goal

of adoption, which the J&DR court approved in June 2017.

       On January 22, 2018, the City of Petersburg Circuit Court held an ore tenus hearing

concerning termination of the parents’ parental rights. Evidence was presented that, as of the

date of the hearing, DSS was not aware of Lancaster’s place of abode. Lancaster’s last visitation

with R.H. and last contact with DSS was in March 2017. Lancaster had not completed substance

abuse treatment, did not have his own housing (although he testified he was living in a friend’s

trailer), and did not have employment (although he testified he had applied for – and was

awaiting a decision regarding – disability benefits in December 2017).

       During the hearing, R.H.’s therapist, who was qualified by the circuit court as an expert

in child psychology, testified that he had been meeting with R.H. for several years and had

conducted approximately thirty sessions with R.H. He testified that, although at first R.H. was

consumed with “safety kind of issues and predictability kind of issues,” R.H. had “come a very,

very long way.” The therapist also opined that “as long as he’s in a predictable environment,

he’s getting the services he needs, there’s no reason to think he’s not going to have a good future

and going to continue to progress.” The therapist also stated that R.H. is aware that there may be

an adoption in the future or some change from his current foster home.

                                               -4-
       At the conclusion of the ore tenus hearing, the circuit court approved a foster care plan

with a final goal of adoption and terminated the parents’ residual parental rights pursuant to

Code § 16.1-283(C)(2).

                                          II. ANALYSIS

       When reviewing a circuit court’s decision to terminate residual parental rights,

               this Court presumes that the trial court “thoroughly weighed all the
               evidence, considered the statutory requirements, and made its
               determination based on the child’s best interests.” The circuit
               court has “broad discretion in making the decisions necessary to
               guard and to foster a child’s best interests.” Therefore, in a case
               involving termination of parental rights, “[t]he 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.’”

Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016)

(first quoting Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,

659 (2005); then quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990); and

then quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659).

                                A. Termination of Parental Rights

       The circuit court terminated Lancaster’s residual parental rights pursuant to Code

§ 16.1-283(C), which states, in pertinent part:

               The residual parental rights of a parent or parents of a child placed
               in foster care as a result of court commitment . . . 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 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.




                                                  -5-
       Lancaster’s first argument, on brief, is that “[t]here was no evidence presented to suggest

that Lancaster would be unwilling or unable to remedy substantially, the conditions (not

following the safety plan) that led to [R.H.] being placed in the custody of PDSS.” This

argument, however, ignores the language that immediately follows the language of Code

§ 16.1-283(C)(2) quoted above. The statute continues:

               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 in accordance with their obligations under
               and within the time limits or goals set forth in a foster care plan
               filed with the court . . . shall constitute prima facie evidence of this
               condition.

       The evidence presented at the ore tenus hearing showed that R.H. was removed from his

parents’ custody on March 20, 2015, and placed in grandmother’s custody. R.H. was

subsequently removed from grandmother’s custody and placed in DSS’s custody on August 27,

2015. In addition to the May 6, 2015 court order that Lancaster was to remain drug free, submit

to drug screening, maintain stable and independent housing, participate in a substance abuse

class, and generally participate and work with DSS, on October 21, 2015, the court approved a

foster care plan that required Lancaster, among other things, to maintain stable housing for at

least six months, to obtain and maintain steady employment, to participate in a substance abuse

evaluation and any recommended treatment, to participate in visitation with R.H., to refrain

from alcohol and drug use, and to notify DSS of any change in residence.

       At the time of the ore tenus hearing on January 22, 2018, the circuit court noted that

twenty-nine months had passed since R.H. had been placed in foster care – far beyond the

twelve months stated in the statute to substantially remedy the problems that placed R.H. there.

Although Lancaster had far more time in which to “remedy substantially the conditions” which

led to foster care placement than provided for in Code § 16.1-283(C)(2), he failed to comply

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with virtually any of the foster care plan requirements listed supra. He failed to maintain stable,

independent housing for six months. Before he applied for disability benefits in December

2017, he worked “odd jobs” and did not have verified employment since March 2017. There is

no evidence he completed substance abuse treatment. He continued, by his own admission, to

drink alcohol, and in 2016, he tested positive for use of marijuana. He had not contacted DSS

for months and failed to keep DSS informed of his current residence. Lastly, he had not

attended visitation or otherwise seen R.H. since March 2017.

       In view of all these facts, there was more than enough evidence for the circuit court to

conclude, based on Lancaster’s failure to comply with the foster care plan, that Lancaster –

without good cause – was unwilling or unable to remedy substantially the conditions that led to

R.H.’s foster care placement. In short, when considering the totality of the circumstances, it is

clear Lancaster did not substantially remedy the situation that placed R.H. in foster care.

Consequently, it is clear that the circuit court’s decision terminating Lancaster’s residual

parental rights was not plainly wrong or without evidence to support it.

                                       B. Goal of Adoption

       Lancaster’s second assignment of error, on brief, is that it was not in R.H.’s best

interests for the court to approve the goal of adoption. Lancaster argues that, because R.H.’s

therapist noted R.H. suffered from adjustment disorder and because placement in an adoptive

home would require R.H. to be moved again since the foster home in which he was living was

allegedly not an adoptive home, it was not in R.H.’s best interests to be moved simply in order

to be adopted.

       Even assuming that the court’s approval of the permanent goal of adoption would

require R.H. to move out of his current foster home, Lancaster’s argument fails. As noted

supra, the circuit court remarked that R.H. had been in foster care for twenty-nine months by

                                                -7-
the time of the January 22, 2018 ore tenus hearing. Since Lancaster clearly had not

substantially remedied the conditions which led to R.H.’s placement in foster care, his request to

the court, in essence, was to give him more time to do so. However, considering Lancaster’s

record, the circuit court also noted that whatever temporary improvements Lancaster made, he

repeatedly regressed. The circuit court concluded in referring to Lancaster and Horton, “There

may be periods of where they’re sober, and there may be periods where they’re doing okay, but

based upon the testimony I heard today, we’re going right back to where we was, and that’s not

beneficial to [R.H.].”

       This Court has stated, “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

responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394

S.E.2d 492, 495 (1990). In light of that principle, considering the totality of the evidence in this

case, the circuit court certainly could have reasonably concluded that it was clearly in R.H.’s

best interests to terminate Lancaster’s residual parental rights and then to approve the goal of

adoption.

                                        III. CONCLUSION

       In light of Lancaster’s failure to comply with many, if not most, of the requirements

imposed upon him by the foster care plan approved by the J&DR court on October 21, 2015

(namely, his failure to maintain stable housing for six months, to maintain stable employment,

to complete substance abuse treatment, to refrain from alcohol and drug use, to maintain contact

with DSS, and to participate in visitation with R.H.), there was prima facie evidence that

Lancaster was unwilling or unable to remedy substantially the conditions which led to R.H.’s

placement in foster care. Furthermore, in light of the fact that R.H. had been in foster care for

twenty-nine months, which is well beyond the twelve months provided in Code

                                                -8-
§ 16.1-283(C)(2), we cannot say that the circuit court’s conclusion – that it was in R.H.’s best

interests to terminate Lancaster’s parental rights and to approve the permanent goal of adoption

– was plainly wrong or without evidence to support it.

       For all of these reasons, we affirm the circuit court.

                                                                                        Affirmed.




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