                       COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Humphreys



GARY LEE FISHER, SR.
                                           MEMORANDUM OPINION *
v.   Record No. 2860-99-4                      PER CURIAM
                                              MAY 30, 2000
WARREN COUNTY DEPARTMENT
 OF SOCIAL SERVICES


              FROM THE CIRCUIT COURT OF WARREN COUNTY
                     John E. Wetsel, Jr., Judge

           (Alfred L. White, Jr.; Struckmann & White,
           P.C., on brief), for appellant. Appellant
           submitting on brief.

           (Douglas W. Napier, County Attorney, on
           brief), for appellee. Appellee submitting on
           brief.


     Gary Lee Fisher, Sr., appeals the decision of the circuit

court terminating his parental rights to his biological son.      On

appeal, Fisher contends that the trial court erred by (1) finding

that the Warren County Department of Social Services (DSS) made

reasonable and appropriate efforts to provide services to Fisher

so as to allow the child's return to Fisher within a reasonable

period of time; (2) finding that DSS proved by clear and

convincing evidence that it was not reasonably likely that the

conditions resulting in the child's placement in foster care could


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
be corrected to allow the child's return within a reasonable

period of time; (3) failing to require DSS to investigate the

possible placement of the child with his paternal grandmother; and

(4) failing to grant a continuance to determine the date of

Fisher's release from incarceration and the services available

upon his release.   Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we affirm the decision of the trial court.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

consideration of a trial court is the child's best interests."

Logan v. Fairfax County Dep't of Human Development, 13 Va. App.

123, 128, 409 S.E.2d 460, 463 (1991).   "Code § 16.1-283 embodies

'the statutory scheme for the . . . termination of residual

parental rights in this Commonwealth' [which] . . . 'provides

detailed procedures designed to protect the rights of the parents

and their child,' balancing their interests while seeking to

preserve the family."   Lecky v. Reed, 20 Va. App. 306, 311, 456

S.E.2d 538, 540 (1995) (citations omitted).   "'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

(citation omitted).   The trial judge's findings, "'when based on

evidence heard ore tenus, will not be disturbed on appeal unless



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plainly wrong or without evidence to support it.'"   Id. (citation

omitted).

      The trial court ruled that DSS presented sufficient evidence

to terminate Fisher's parental rights under Code § 16.1-283(B).

That section provides that

            [t]he residual parental rights of a parent
            or parents of a child found by the court to
            be neglected or abused and placed in foster
            care as a result of (i) court commitment,
            (ii) an entrustment agreement entered into
            by the parent or parents or (iii) other
            voluntary relinquishment by the parent or
            parents 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:

            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.

Id.

      The child was born in 1990.   He was placed in foster care

following an emergency removal from his mother's custody in 1997

when he had striation bruises consistent with a beating by a belt.



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In foster care, the child demonstrated improved behavior and

increased intellectual functioning.     A psychological evaluation

indicated that the child displayed traits consistent with trauma

and abuse arising from the neglect and beatings by his mother and

her lover.    He tested above average in intelligence, but

demonstrated evidence of internal turmoil, anger, and poor

self-esteem.   Pursuant to the goal of returning the child home,

DSS planned for the child to have weekend visits with his mother.

After the first weekend in August 1998, however, the child

returned with bruises and hand marks along his spine.    Upon the

child's return from visitation, his behavior rapidly deteriorated

and he was placed in an intermediate term psychiatric facility in

December 1998.    In the facility, he engaged in incidents of fire

setting and other serious and harmful behavioral problems.      The

child was released from the intermediate term psychiatric facility

in October 1999 into a therapeutic foster care family.    The

evidence indicated that it was essential to the child's well being

that he remain in a therapeutic setting.

     The child displayed no bond or relationship with Fisher, who

was incarcerated from 1991 through 1996.    Fisher remained out of

prison for eleven months.   The child lived with Fisher and his

second wife for approximately five months from December 1996 until

April 1997, when Fisher was again incarcerated, this time in West

Virginia.    Fisher was in prison in Virginia at the time of the



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hearing and was unsure how much time he had left to serve.    A

parole hearing was scheduled for November 1999.

               Reasonable Effort to Provide Services

     Fisher contends that the trial court erred by failing to

require DSS to offer services to him designed to remedy the

reasons for the child's removal.   "Reasonable and appropriate

efforts must be made to assist a delinquent parent in remedying

the conditions that lead to a parent's temporary relinquishment

of the children to the care of the department.    The offer of

such assistance is a prerequisite to termination of parental

rights."   Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E.2d

682, 683 (1991).    However, "'reasonable and appropriate' efforts

can only be judged with reference to the circumstances of a

particular case."    Ferguson v. Stafford County Dep't of Soc.

Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992).

     DSS offered services to the mother, who was the custodial

parent at the time the child was placed in foster care.      Laura

Kitchen, the social worker assigned to the child's case,

testified that DSS was unable to provide direct services to any

incarcerated parents and it was more difficult than usual in

this instance because Fisher was imprisoned outside Virginia.

     Through his repeated incarcerations, Fisher had already

relinquished care of the child to others.   He removed himself

from the child's life.   He made no provisions for the care of

the child for years at a time, and offered no relief to the

                                - 5 -
child from the underlying problems of trauma and abuse suffered

at the hands of the mother.   Based upon the testimony received

ore tenus, the trial court determined that DSS made "reasonable

and appropriate efforts to provide services to these parents,

given their respective situations."    We find sufficient evidence

in the record to support the trial court's conclusion.

                 Return within a Reasonable Period

     Fisher also contends that the trial court erred by

concluding that DSS proved the child could not be returned to

Fisher within a reasonable period of time.   We disagree.   The

evidence proved that Fisher had sporadic contact at best with

the child throughout the child's life.   The child had no bond

with Fisher and expressed negative feelings about Fisher and his

incarceration.   Fisher was in prison at the time of the hearing

and could not say when he might be released.   The trial court

found that clear and convincing evidence indicated that it would

not be in the child's best interest to place him with Fisher,

even if Fisher were in a position to immediately provide a home

for the child.   We find no error in the determination of the

trial court.

          Possible Placement with Paternal Grandmother

     Fisher also contends that the trial court erred when it

failed to require DSS to consider placement with the paternal

grandmother.   The record does not support Fisher's contention.

DSS explored the possibility of placement with the grandmother

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and discovered that she had a history of "losing control of her

children when they hit their teenage years" and that at least

three of her nine children served extensive time in jail.

     No family members expressed any interest in having custody

of the child.    Fisher testified that he was blocked from making

collect calls to his mother.   He presented no evidence but his

own testimony to indicate that the grandmother would be

interested in having custody of the child.   The evidence

indicated that the family situation was inappropriate for the

child and his need for stability.   We find no error.

                    Failure to Grant Continuance

     Finally, Fisher contends that the trial court erred by

failing to allow more time to determine his time left to serve.

We disagree.    As the party seeking a continuance, Fisher had the

burden to prove the merit of a delay.   "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 . . . responsibilities."    Kaywood v. Halifax County

Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,

495 (1990).

     The record supports the finding of the trial court that DSS

presented clear and convincing evidence sufficient to meet the

statutory requirements of Code § 16.1-283 that termination was




                                - 7 -
in the child's best interests.    Accordingly, the decision of the

circuit court is affirmed.

                                                         Affirmed.




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