                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Annunziata, Agee and Senior Judge Coleman


KIMBERLEE ANN LEFLER

v.   Record Nos. 2706-00-3 and             MEMORANDUM OPINION *
                 2707-00-3                     PER CURIAM
                                               MAY 8, 2001
SMYTH COUNTY DEPARTMENT
 OF SOCIAL SERVICES


               FROM THE CIRCUIT COURT OF SMYTH COUNTY
                    Charles H. Smith, Jr., Judge

           (Danny R. Lowe; Lowe & Money, P.C., on
           brief), for appellant. Appellant submitting
           on brief.

           (Amelia L. Bland; Bland & Associates, P.C.,
           on brief), for appellee. Appellee submitting
           on brief.



     Kimberlee Ann Lefler appeals the decision of the trial court

terminating her residual parental rights to her two children

pursuant to Code § 16.1-283(C).   Lefler contends the trial court

erred in finding the evidence sufficient to terminate her rights.

For the following reasons, we affirm.

     Lefler and her husband had two children, a daughter born on

December 26, 1992 and a son born on August 31, 1994.    The parental

rights of Lefler's husband were terminated on July 7, 1998.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        At a hearing held on August 26, 1999, Melanie Carpenter, a

foster care worker for the Smyth County Department of Social

Services (the Department), testified that the Department had

worked with the Lefler family since 1995, providing the family

with "every service" that was available to them and furnishing

some of the services on more than one occasion.    The Department

originally became involved with the family in response to

complaints in 1995 that the children were being neglected and the

parents were having numerous physical altercations.    From December

1995 to June 1996, the Department provided services for the Lefler

family to assist them in maintaining a stable home environment at

a cost of more than $3,400.    The assistance included payments for

rent and other in-home services.

        In addition, Lutheran Family Services (LFS) worked with the

family from November 1995 until February 1996.    LFS provided

crisis intervention, parenting techniques, and assistance to both

parents in finding employment.    They assisted the family in

applying for Medicaid and food stamps.    LFS also furnished housing

and resource needs, including furniture, food and money for

utilities.    LFS discharged the family from the program because

they failed to meet the goals of the program.    At the time of the

discharge, Lefler's husband no longer resided with the family,

Lefler was in jail, and the children had been placed in foster

care.


                                 - 2 -
     Family Preservation Services provided services for the family

from April 1, 1996 to July 30, 1996.     They provided transportation

for Lefler to seek employment and to attend court hearings.    They

arranged for Lefler to attend substance abuse and domestic abuse

support groups, and they arranged for day care so she could attend

these meetings.   These services were terminated when the family

moved to Florida.

     In April 1996, Lefler and her estranged husband had a

physical altercation in the presence of the children, resulting in

their son receiving scratches from broken glass.    In May 1996,

Lefler and her husband had a physical altercation during which

Lefler cut her husband with a knife.     The children were present in

the home during that incident.

     In addition, Lefler had numerous misdemeanor and felony

convictions related to bad check charges.     During one period of

time, the Department provided respite care for the children on the

weekends that Lefler spent in jail.

      In September 1995, the court entered a preliminary

protective order against the children's father, ordering him to

stay away from the children.   On February 8, 1996, Lefler signed

temporary entrustment agreements entrusting the children to the

Department to place them in a foster home while she was

incarcerated for bad check convictions.    Carpenter testified that

the entrustment agreements "lasted" until March 3, 1996.    The


                                 - 3 -
Department provided in-home services to assist Lefler when the

children were returned to her care in March 1996 after her release

from jail.

     The children were back in foster care in September 1996.

Prior to that placement, the Leflers had taken the children to

Florida despite the court order that Lefler's husband was not to

be in the presence of the children.     While in Florida, the Leflers

had a domestic dispute, and they were arrested.    The children were

placed in foster care in Florida, and the Florida Department of

Health and Rehabilitative Services contacted the Department to

take custody of the children.   When Carpenter met the children at

the airport on their return from Florida, the children attempted

to bite and kick her.

     When Lefler returned to Virginia from Florida, she was

intermittently imprisoned for most of two years for numerous bad

check charges.   On September 3, 1996, the court awarded the

Department temporary custody of the children.    The Department

placed the children in a foster home while Lefler was

incarcerated.

     Carpenter testified that when the children first came into

foster care "they had a lot of behavioral problems."    Both

children were diagnosed with ADHD and speech problems.    Both

children were prescribed Ritalin.   While Lefler was incarcerated,

the daughter received speech and behavioral therapy.    Carpenter


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testified the daughter's behavior "improved greatly" while she was

in foster care, and she appeared to be "more calm" and "very

polite."    Carpenter also testified that the son's behavior

improved a "great deal" while he was in foster care.

     During Lefler's two-year period of incarceration, Carpenter

spoke with Lefler several times concerning the service plan and

the goals Lefler would need to meet within the first six months

after her release from prison in order for the children to be

returned to her.    Carpenter advised Lefler that the Department had

offered services "for so long that [they] felt like these children

really needed to be in a stable home.    They needed security."

     Lefler was released from prison in June 1998.     The children

were placed back with Lefler in August 1998.   Lefler had obtained

housing and employment, and she had made progress in stabilizing

her life.    However, Lefler's husband moved in with the family,

resulting in Lefler losing her housing.    Lefler then moved to

South Carolina with her husband and took the children with her in

violation of a protective court order.    At the time, the

Department was the legal custodian of the children, and the

protective order issued against Lefler's husband remained in

effect.    Lefler did not obtain the Department's permission to move

the children out of state.

     The Department retrieved the children from South Carolina in

November 1998.    At that time, the children showed aggressive


                                - 5 -
behavior.    Both children had severe cases of head lice, colds, and

flea bites.    They were dressed in dirty clothing, and the daughter

had insect bites on her arms and legs that she had scratched until

they bled.    The son had an eye infection.   Carpenter testified the

children were "wild" and appeared to be angry with everyone.     They

destroyed their toys, made rude remarks, and the son kicked other

children.

     Lefler pled guilty to abduction charges related to removing

the children to South Carolina, for which she served several

months in jail.    The Department again placed the children in

foster care, and the foster care service plan goal was changed

from "return to parent" to "adoption."   The Department maintained

legal custody of the children.    Carpenter testified that the

children visited Lefler while she was incarcerated, but they were

"hard to control" after they visited her.     Sometimes the children

did not want to visit Lefler.

     In total, the children were in foster care from February 8,

1996 until March 1996, from September 1996 until August 1998, and

from November 1998 until the hearing date of August 26, 1999.     The

son had spent over one-half of his life in foster care, and the

daughter had spent over one-third of her life in foster care.

     Carpenter opined that the best interests of the children

would be promoted by terminating Lefler's residual parental

rights.   Carpenter stated that the children need a stable home


                                 - 6 -
environment which Lefler cannot provide.   She testified that since

1995, the Department had offered Lefler every available service in

order to keep the children in her custody and that Lefler had not

substantially benefited from the services.

     The foster care plans dated August 18, 1998 provided that

within a six-month time period Lefler was expected to accomplish

the goals established in the service plan.   The program goal was

to return the children to Lefler upon her release from jail.     In

order to achieve that goal, Lefler was to secure housing,

employment, stay away from her husband, and continue substance

abuse counseling, if necessary, within six months of her release

from jail.   The evidence showed that Lefler failed to meet these

goals.

     In March 1999, the Department again filed a foster care

service plan for each of the two children.   This plan stated, "The

goal of returning to parent was not selected for these children

because placing them back with mother would place them at great

risk for emotional and physical harm."   This plan also indicated

that the children had "special needs due to being hyperactive and

having speech problems" and that the foster parents had "worked

diligently" on helping the children.   The foster parents also

provided "the love, care and support" the children needed.

Therefore, the Department changed the goal of the plans from

"return to parent" to "adoption" for the children only after it


                               - 7 -
became apparent that, despite the Department's rehabilitative

efforts, Lefler was unable to achieve the goals of the first plan.

     Lefler testified she intends to divorce her husband.      While

incarcerated, Lefler took parenting and anger management classes.

She also received counseling for substance abuse.    She stated she

had not consumed alcohol for thirty-seven months, and she had

obtained steady employment.   At the time of the hearing, she had

adequate housing.

     In the opinion of the guardian ad litem for the children, the

best interests of the children would be served by terminating

Lefler's parental rights.

     "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 Dev., 13 Va. App. 123, 128,

409 S.E.2d 460, 463 (1991).   "'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.'"   Id. (citation omitted).   The trial court's findings,

"'when based on evidence heard ore tenus, will not be disturbed on

appeal unless plainly wrong or without evidence to support it.'"

Id. (citation omitted).

     The trial court terminated Lefler's residual parental rights

pursuant to Code § 16.1-283(C)(1).     Code § 16.1-283(C)(1)


                               - 8 -
provides, in pertinent part, that the residual parental rights of

a parent of a child placed in foster care may be terminated if the

court finds by clear and convincing evidence that termination is

in the child's best interests and that

          [t]he parent . . . [has], without good
          cause, failed to maintain continuing contact
          with and to provide or substantially plan
          for the future of the child for a period of
          six months after the child's placement in
          foster care notwithstanding the reasonable
          and appropriate efforts of social, medical,
          mental health or other rehabilitative
          agencies to communicate with the parent
          . . . and to strengthen the parent-child
          relationship.

     The evidence showed that the Lefler family had been "in the

system" since 1995.   The Department and several other family

service organizations offered Lefler "every service available" to

her from 1995 until 1999, attempting to assist Lefler in

stabilizing her marriage and working to provide a healthy and

secure environment for her two children.   Despite this extensive

assistance, Lefler made little substantive improvement in her

ability to maintain a stable lifestyle.    In addition, she failed

to maintain continuing contact with the children when she

repeatedly spent periods of time incarcerated, once for a

continuous period of almost two years.

     At one point, Lefler signed temporary entrustment agreements

granting the Department the responsibility for the care and

custody of her children while she was in jail.   These recurring


                               - 9 -
periods of incarceration, leaving the children in the care of the

Department, are a factor to consider when determining whether

termination of Lefler's residual parental rights is in the

children's best interests.

          [W]hile long-term incarceration does not,
          per se, authorize termination of parental
          rights . . . it is a valid and proper
          circumstance which, when combined with other
          evidence concerning the parent/child
          relationship, can support a court's finding
          by clear and convincing evidence that the
          best interests of the child[ren] will be
          served by termination.

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,

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

     Twice Lefler violated court orders by moving the children out

of state with her husband and without advising the Department

prior to the move.   Lefler allowed her husband to live in her home

despite the court's issuance of a protective order against him and

despite the goal established by the Department that she stay away

from her husband.    Furthermore, the children have emotional and

learning difficulties that are being addressed while they are in

foster care.   The children's behavior and speech problems improved

while they were in foster care.   The son had spent over one-half

of his life in foster care, and the daughter had spent over

one-third of her life 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


                                - 10 -
resuming his [or her] responsibilities."   Kaywood v. Halifax

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

495 (1990).

     While the evidence shows that Lefler loves her children, the

evidence shows that she has substantially failed to maintain

continuing contact with the children and to provide or

substantially plan for the future of the children for a period of

six months after their placement in foster care, notwithstanding

the efforts of the Department and other rehabilitative agencies.

Although Lefler attended parenting and anger management classes

while incarcerated, and she was employed at the time of the

hearing, Lefler's past history shows that she has not made the

necessary and substantial changes in her life to provide for the

children if they were returned to her.

     Therefore, the record supports the trial court's finding

that the Department presented clear and convincing evidence

satisfying the statutory requirements of Code § 16.1-283(C)(1)

and establishing that termination of Lefler's residual parental

rights is in the children's best interests.   Accordingly, the

decision of the trial court is affirmed.

                                                    Affirmed.




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