                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED



              KENNETH STURGILL
                                                                                        MEMORANDUM OPINION*
              v.      Record No. 0336-14-3                                                  PER CURIAM
                                                                                             JULY 8, 2014
              WISE COUNTY DEPARTMENT
               OF SOCIAL SERVICES


                                       FROM THE CIRCUIT COURT OF WISE COUNTY
                                                Tammy S. McElyea, Judge

                                (Charles Herbert Slemp, III; Slemp Law Office, PLLC, on brief), for
                                appellant.

                                (Karen T. Mullins; J. Brent Fleming, Guardian ad litem for the minor
                                child; Wise County Attorney’s Office; Fleming & Collins, on brief),
                                for appellee.


                      Kenneth Sturgill (father) appeals an order terminating his parental rights to his child, H.S.

              Father argues that the circuit court erred by (1) terminating his parental rights “when the child was

              placed with a relative and a goal of relative placement is achievable and a less restrictive

              alternative;” (2) terminating his parental rights and approving a permanency planning order because

              father “was not involved in the preparation of a foster care plan that changed the goal from relative

              placement to adoption of the child;” and (3) terminating his parental rights even though res judicata

              applies because in the first trial, the circuit court “found that termination of parental rights is

              impermissible if the child is placed with a relative,” but in the second trial, the circuit court held

              otherwise, despite the fact that the case involved the same parties and the same remedy was sought

              in both cases. Upon reviewing the record and briefs of the parties, we conclude that this appeal is


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule

5A:27.

                                         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 Cnty. Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

         Father has three children, M.S., D.S., and H.S. The Department of Social Services (the

Department) removed the children from their parents’ home in 2006. H.S. was two years old at

the time of the removal. Initially, the Department’s goal was relative placement, but it was later

changed to termination of parental rights. The Department changed the goal again in order to

give the parents additional time to complete services. The goal was to return the children home,

which was done in May 2008 on a trial basis. The Department provided numerous services, but

problems developed. The Department removed the children from the home and again filed

petitions to terminate parental rights for all three children. The Wise County Juvenile and

Domestic Relations District Court (the JDR court) approved the petitions. M.S. was in a

non-relative foster home, whereas D.S. and H.S. were together in a relative placement. The

parents appealed to the circuit court, which ultimately approved the plan to terminate father’s

parental rights to M.S. The circuit court denied the petitions to terminate father’s parental rights

to D.S. and H.S. because they were placed with a relative. Father appealed the termination

ruling, as to M.S., to this Court, which summarily affirmed the circuit court’s ruling. See Sturgill

v. Wise Cnty. Dep’t of Soc. Servs., Record. No. 1293-10-3 (Va. Ct. App. Mar. 21, 2011).

         D.S. and H.S. continued in foster care in a relative placement until June 2010, when they

moved into a therapeutic foster home. Father was incarcerated in 2010 and received an active




                                                -2-
sentence of five and one-half years. Once he went to prison, the Department did not offer him

any services.

       The maternal grandparents petitioned for custody of D.S. The JDR court granted them

custody, and D.S. was placed with them. Subsequently, the maternal grandparents petitioned for

custody of H.S., who remained in their home for approximately six months. Due to behavioral

problems, H.S. left their home in June 2012.

       In October 2012, a family partnership meeting was held to discuss moving the child to

other relatives. Father did not participate in the meeting because he was in prison. In November

2012, Tim and Brenda Anderson resumed custody of H.S.1 In December 2012, the Department

prepared a foster care plan with a goal of relative placement.

       In March 2013, a social worker wrote appellant and asked him if he would agree to sign

an entrustment agreement for H.S. The social worker explained that the Andersons wanted to

adopt H.S. If father did not agree to sign the entrustment agreement, then the Department would

file a petition to terminate his parental rights. Father’s attorney communicated with the

Department and told them that father would not sign the entrustment agreement.

       In June 2013, the foster care plan was changed to adoption. In July 2013, the Department

filed a petition to terminate father’s parental rights. On August 20, 2013, the JDR court

terminated father’s parental rights to H.S. and approved the foster care plan with the goal of

adoption. Father appealed to the circuit court.

       On January 10, 2014, the circuit court heard evidence and argument. At the conclusion

of the Department’s evidence, father made a motion to strike, which was denied. Father testified

and discussed the numerous programs he completed while in prison. He also notified the circuit

court that his expected release date was January 2015. He admitted that he could not take


       1
           H.S. had previously been placed in the Andersons’ home.
                                                -3-
custody of H.S. immediately upon his release from prison and asked for some time. After

presenting his evidence, he renewed his motion to strike, which was denied. The circuit court

terminated father’s parental rights pursuant to Code § 16.1-283(E)(i)2 and approved the foster

care plan with the goal of adoption. This appeal followed.

                                              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 Cnty. 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.

                                         Assignment of error #1

          Father argues that the circuit court erred by terminating his parental rights because the

child was placed with relatives and relative placement is an alternative to termination of parental

rights.

          Prior to 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


          2
                 The residual parental rights of a parent or parents of a child who is
                 in the custody of a local board . . . may be terminated by the court
                 if the court finds, based upon clear and convincing evidence, that it
                 is in the best interests of the child and that (i) the residual parental
                 rights of the parent regarding a sibling of the child have previously
                 been involuntarily terminated . . . .

Code § 16.1-283(E)(i).

                                                  -4-
relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at

465. “Before termination of parental rights by the court, the agency seeking termination has an

affirmative duty to investigate all reasonable options for placement with immediate relatives.”

Sauer v. Franklin Cnty. Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994)

(citations omitted).

          Here, the Department had been working with the family for years. H.S. had been in

foster care for almost eight years by the time the circuit court heard this termination case. Over

the years, the Department had placed H.S. with various relatives and foster homes. It tried to

place H.S. in the same home as D.S. with their maternal grandparents; however, due to

behavioral problems, H.S. had to be removed from the home. The Andersons, who previously

had custody of H.S., agreed to take H.S. back into their home, but sought a permanent solution

for H.S.

          Contrary to appellant’s argument, the Department sought many alternative placements for

H.S. In 2013, the Department found a permanent placement for H.S. with the Andersons, who

wanted to adopt him. Father’s incarceration prevents him from being able to assume custody of

H.S. now or in the near future. The circuit court held that it was in the child’s best interests to

have a permanent placement with the Andersons, especially considering the length of time that

the child has been in foster care.

          “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 Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495

(1990).

          The circuit court did not err in terminating father’s parental rights and approving the

foster care plan of adoption.

                                                   -5-
                                      Assignment of error #2

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

Department did not involve father in the foster care plan as required by Code § 16.1-281(A),

which states:

                The representatives of such department or agency shall involve the
                child’s parent(s) in the development of the plan, except when
                parental rights have been terminated or the local department of
                social services or child welfare agency has made diligent efforts to
                locate the parent(s) and such parent(s) cannot be located, and any
                other person or persons standing in loco parentis at the time the
                board or child welfare agency obtained custody or the board placed
                the child.

       Although the Department did not offer father any services while he was in prison and did

not meet with him to discuss the foster care plan, he was involved in the process. Father

received notice of all of the Department’s plans regarding H.S., and he participated in the JDR

court’s proceedings and the circuit court’s proceedings when the plans were discussed. His

attorney advised him of developments with the case. A social worker contacted father in March

2013 to ask him to sign an entrustment agreement. The social worker also advised father that if

he did not sign the entrustment agreement, then the Department was seeking to terminate his

parental rights. Father’s counsel met with father to review the Department’s letter. Father’s

counsel advised the Department that father refused to sign the entrustment agreement, so the

Department filed a petition to terminate his parental rights in July 2013. The circuit court noted

that the Department “made an effort to involve the parent” and wrote him about the plan for

adoption. The circuit court explained that “[o]n its face, the plan indicates the parent was

involved.” Father “was aware of the change in goal” and “had the ability through his counsel if

he wished to have input with regard to the contents of this letter to do so.” The circuit court also

acknowledged that father’s involvement was “limited” due to his incarceration. Father’s rights

were not violated pursuant to Code § 16.1-281. Based on the record, the circuit court did not err
                                                -6-
in determining that the Department complied with its statutory obligation to involve father in the

foster care plan.

                                      Assignment of error #3

       Father argues that the circuit court erred in terminating his parental rights to H.S. because

“the issue presented herein is precluded from relitigation based upon the doctrine of res

judicata.”

       Father contends the Department previously sought to terminate father’s parental rights,

but the circuit court denied the petition in 2010 because the child was in a relative placement.

Father asserts that the same facts apply to this situation because it is the same parties, the same

cause of action, and the same remedies sought.

               In actions commenced after July 1, 2006, Rule 1:6 governs claims
               of res judicata, stating in pertinent part:

               “A party whose claim for relief arising from identified conduct, a
               transaction, or an occurrence, is decided on the merits by a final
               judgment, shall be forever barred from prosecuting any second or
               subsequent civil action against the same opposing party or parties
               on any claim or cause of action that arises from that same conduct,
               transaction or occurrence . . . .”

Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 428, 719 S.E.2d 329, 355 (2012)

(emphasis added in original).

       In 2010, the Department sought to terminate father’s parental rights to his children

pursuant to Code § 16.1-283(B) and (C). In 2014, the Department sought to terminate father’s

parental rights to H.S. pursuant to Code § 16.1-283(E)(i). Although the ultimate remedy of

termination of parental rights is the same, the reason for seeking the termination has changed.

Therefore, the two matters are different.

       Furthermore, the circumstances have changed since 2010. Unlike the previous situation

in 2010 when H.S. was living with relatives, H.S. is now in a placement with the Andersons,


                                                -7-
who “happen to be relatives, but they are not willing to be a permanent placement other than

through adoption.” The Andersons told the Department that they were only willing to care for

H.S. by adopting him because they previously tried a custodial situation, but it did not work. As

the circuit court noted, H.S. “deserves permanency and security.” Since 2010, H.S. has been in

several homes and has had behavioral issues. The circuit court explained, “To leave [H.S.] in

foster care even if the Anderson’s [sic] were willing to accept that type of a situation does not

solve a lot of the issues that [H.S. has] encountered over the years that have led to deteriorating

behavior, [sic] that have led to him having difficulties.”

       Accordingly, the doctrine of res judicata does not apply. The evidence proved that

termination of father’s parental rights to H.S. was in the child’s best interests, and the circuit

court did not err by approving the Department’s petition and foster care plan.

                                           CONCLUSION

       For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                            Affirmed.




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