                               COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Alston and Senior Judge Coleman


JESSICA FORTUNA
                                                                 MEMORANDUM OPINION *
v.     Record No. 2829-08-3                                           PER CURIAM
                                                                   SEPTEMBER 22, 2009
HARRISONBURG/ROCKINGHAM
 SOCIAL SERVICES DISTRICT


                   FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                  James V. Lane, Judge

                 (William G. Wentz, on brief), for appellant. Appellant submitting on
                 brief.

                 (Rachel Errett Figura, Assistant County Attorney; Sherwin John
                 Jacobs, Guardian ad litem for the minor child, on brief), for
                 appellee. Appellee and Guardian ad litem submitting on brief.


       On October 24, 2008, the trial court entered an order terminating the residual parental rights

of Jessica Fortuna, appellant, to her son, T.W., pursuant to Code § 16.1-283(C)(1) and Code

§ 16.1-283(C)(2). 1 On appeal, appellant contends the evidence was insufficient to support the

termination. Finding no error, we affirm the trial court’s decision.

       A termination pursuant to Code § 16.1-283(C)(1) requires the trial court to find by clear and

convincing evidence that termination was in the child’s best interests and that the 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 or parents and to strengthen the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
        On the same date, the trial court terminated the parental rights of T.W.’s father, Tyrone
Williams.
               parent-child relationship. Proof that the parent . . . ha[s] failed
               without good cause to communicate on a continuing and planned
               basis with the child for a period of six months shall constitute
               prima facie evidence of this condition . . . .

Termination of residual parental rights pursuant to Code § 16.1-283(C)(2) requires proof that the

parent, “without good cause, ha[s] 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 reasonable and appropriate efforts of service agencies.

       On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in

the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible

therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767

(2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409

S.E.2d 460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the

circuit court “‘thoroughly weighed all the evidence, considered the statutory requirements, and

made its determination based on the child’s best interests.’” Id. at 265-66, 616 S.E.2d at 769

(quoting Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659

(2005)). “The 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.’” Id. at 266, 616

S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its

capacity as factfinder, therefore, the circuit court retains ‘broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,

9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

       T.W. was born to appellant on March 25, 2004. He was removed from appellant’s custody

on April 25, 2005. On that date, the Harrisonburg/Rockingham Social Services District (HRSSD)

discovered that appellant had left T.W. and his older sister with a person who was not equipped to
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care for an infant. Appellant’s prior contacts with social service agencies included the removal of

her two older sons from her custody in 2002.

       For T.W. to be returned to appellant’s custody, the foster care service plan required

appellant to obtain a place of her own to live, maintain stable employment, attend parenting classes,

and submit to a psychological evaluation. HRSSD referred appellant to a number of agencies to

assist her in obtaining her own residence. She maintained that she would get her own apartment

only if reunification with T.W. was imminent. Appellant had a series of part-time jobs, but did not

pursue an opportunity of full-time employment. Appellant told HRSSD she did not have enough

money to pay her bills, yet she purchased a Playstation game system and spent $98 on a treatment

for her hair. HRSSD arranged parenting classes for appellant and scheduled visitation for her with

T.W.

       Dr. Joann Grayson, a clinical psychologist, attempted to perform a psychological evaluation

upon appellant in 2006. However, after meeting with Grayson once, appellant failed to appear at

subsequent appointments to permit Grayson to complete the evaluation. Counseling services were

provided for appellant, but she did not consistently attend the scheduled sessions.

       T.W.’s paternal grandmother, who lived in Florida, expressed interest in obtaining custody

of the child, and a home study was performed. However, the grandmother withdrew her request for

custody due to health issues that arose. Appellant later indicated she and the grandmother had

agreed that once the grandmother obtained custody and T.W. arrived in Florida, the grandmother

would allow appellant to have him.

       Appellant tested positively for cocaine use in January and April 2006. After appellant had

another positive drug test in May 2006, the goal of the foster care service plan was changed to

adoption. Thereafter, appellant left the area and went to Florida, and she had no further contact with

HRSSD or T.W. Appellant was incarcerated in Virginia beginning in January 2008 for failing to

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pay child support for her other children. She remained in jail at the time of the termination hearing

in October 2008.

          The evidence proved T.W. had developed a close bond with the foster family with whom he

has lived since his removal from appellant’s custody in 2005. When T.W. began counseling with

Jenny Kuszyk in June 2007, he had aggressive tendencies and exhibited separation anxiety.

However, with the help of his foster family, T.W.’s behavior had improved. Kuszyk stated it was

“significantly important” for T.W. to remain in a stable and structured family environment, like his

foster home, to prevent regression in his behavior. The foster home is a potential adoptive home for

T.W.

          Appellant presented evidence that she lived with her friend Lisa Thomas for seven months

beginning in August 2005. Thomas testified that appellant and T.W. interacted in a positive manner

during their visits together. Appellant contributed money toward Thomas’ rent and food expenses.

Appellant testified she asked HRSSD for financial assistance so she could get her own apartment,

but the agency refused. Appellant explained that she left Virginia in 2006 so she could get her life

together and become capable of parenting T.W.

          At the time of the termination hearing, appellant had not been in contact with her

four-and-one-half-year-old son for more than two years. Appellant provided no legitimate

reason for abandoning T.W. and leaving the state in 2006.

          Moreover, T.W. is thriving in the care of a potential adoptive family with whom he has

lived since April 2005. In determining what is in the best interests of a child, this Court has

stated:

                 a court must evaluate and consider many factors, including the age
                 and physical and mental condition of the child or children; the age
                 and physical and mental condition of the parents; the relationship
                 existing between each parent and each child; the needs of the child
                 or children; the role which each parent has played, and will play in
                 the future, in the upbringing and care of the child or children; and
                                                 -4-
               such other factors as are necessary in determining the best interests
               of the child or children.

Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).

       Although appellant claims she will be able to provide a suitable home for T.W. once she

is released from incarceration, she provided the trial court with no evidence of permanent plans

with regard to his care. In this regard, appellant’s “‘past actions . . . over a meaningful period

serve as good indicators of what the future may be expected to hold.’” Winfield v. Urquhart, 25

Va. App. 688, 695-96, 492 S.E.2d 464, 467 (1997) (quoting Linkous v. Kingery, 10 Va. App. 45,

56, 390 S.E.2d 188, 194 (1990)).

       We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and

irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,

407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.

277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t 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).

       The record supports the trial court’s finding that clear and convincing evidence proved

the best interests of T.W. would be served by terminating appellant’s parental rights pursuant to

Code § 16.1-283(C)(1). 2 Accordingly, the trial court’s decision is affirmed.

                                                                                       Affirmed.




       2
         Because we find the evidence sufficient to support a termination under Code
§ 16.1-283(C)(1), we need not consider whether sufficient evidence supported termination of
appellant’s parental rights pursuant to Code § 16.1-283(C)(2). See Fields, 46 Va. App. at 8, 614
S.E.2d at 659 (termination of parental rights upheld under one subsection of Code § 16.1-283
forecloses need to consider termination under alternative subsections).
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