                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


EARL FIELDS
                                           MEMORANDUM OPINION *
v.   Record No. 1936-99-2                      PER CURIAM
                                            FEBRUARY 8, 2000
HOPEWELL DEPARTMENT OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                    Robert G. O'Hara, Jr., Judge

           (Stefan Mitchell Calos, on brief), for
           appellant.

           (Edwin N. Wilmot, City Attorney, on brief),
           for appellee.


     Earl Fields appeals the decision of the circuit court

terminating his parental rights to his son.    Fields contends that

the trial court erred by (1) terminating his parental rights

despite the fact that the Hopewell Department of Social Services

(DSS) made no effort to communicate with him or to strengthen the

father-child relationship, or to assist in remedying the

conditions which led to the foster care placement; (2) relying

upon his incarceration to establish his inability to care for the

child; and (3) finding that there was sufficient evidence that

termination was in the child's best interests.    Upon reviewing the

record and briefs of the parties, we conclude that this appeal is


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without merit.    Accordingly, we summarily affirm the decision of

the trial court.       See Rule 5A:27.

     On appeal, under familiar principles, we view the evidence

and all reasonable inferences in the light most favorable to

DSS, the party prevailing below.         See Martin v. Pittsylvania

County Dep't of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16

(1986).   "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."     Id.    "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 v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,

409 S.E.2d 460, 463 (1991) (citations omitted).

                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. On review, "[a]
           trial court is presumed to have thoroughly
           weighed all the evidence, considered the
           statutory requirements, and made its
           determination based on the child's best
           interests."

Id. (citations omitted).

     DSS obtained custody of the child from the mother in 1988

when the child was seventeen months old.        The mother told DSS that

the whereabouts of the father were unknown.        The child was in the

custody of the maternal grandmother from 1988 until 1994, when DSS


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resumed custody.    In 1997, DSS obtained an order terminating the

parental rights of the mother and filed a petition to terminate

Fields' parental rights.

     Fields never contacted DSS or provided support for the child.

In 1988, when the child came into foster care, Fields was

incarcerated.    He was released in June 1992 and again incarcerated

in April 1993.    At the time of the hearing in 1999, Fields was

serving a thirty-eight year sentence for abduction, a seventeen

year sentence for robbery, and a twelve month sentence for

assault.   Fields testified that he knew the child was his and that

he provided money for diapers and clothing when he was not in

prison.    However, the evidence indicated that Fields did not

acknowledge the child until a December 1998 paternity test

established that he was the child's biological father.

     The trial court found that DSS presented clear and convincing

evidence meeting the statutory requirements set out in Code

§ 16.1-283(C)(1) and (C)(2) and establishing that termination was

in the child's best interests.    Fields appealed.

                     Failure to Provide Services

     Fields contends that DSS failed to provide any services to

him designed to address the reasons for the child's placement in

foster care or to strengthen the father-child relationship.      He

cites Cain v. Commonwealth, 12 Va. App. 42, 402 S.E.2d 682 (1991),

to support his contention that incarceration does not

automatically satisfy the evidentiary requirements of Code

                                 - 3 -
§ 16.1-283 and that the agency must make "[r]easonable and

appropriate efforts . . . to assist a delinquent parent in

remedying the conditions that lead to a parent's temporary

relinquishment of the children . . . ."     Id. at 45, 402 S.E.2d at

683.   However, whether DSS made "'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).     In Cain,

the agency had contact with the mother while she was incarcerated,

yet failed to offer her reasonable and appropriate services

designed to remedy the underlying causes of neglect.     In contrast,

DSS was unable to contact Fields because neither the mother nor

Fields made his whereabouts known.      Fields was absent from the

child's life.    He made no attempt to assert any parental interest

in the child.    He provided no support and made no attempt to

contact the child throughout the years that the child was in the

custody of DSS.    Fields has failed to demonstrate that, under the

circumstances in this case, DSS failed to meet its statutory

obligations to provide services.

                      Reliance on Incarceration

       Fields contends that the trial court erroneously found that

he was unable to care for the child presently and unlikely to be

able to provide care in a reasonable period of time due to his

incarceration.    Field noted that his convictions occurred prior to



                                - 4 -
the abolition of parole.   He presented evidence that he could be

paroled as early as 2001 or 2002.

       We find no error in the trial court's finding that Fields was

not presently able to care for the child and not likely to provide

care within a reasonable period of time.      At best, Fields

indicated he had another year of incarceration.     Other evidence

indicated that Fields faces years of incarceration.     The child,

who was age twelve at the time of the hearing, has been in foster

care continuously since 1994.   "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 Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495

(1990).

                     Best Interests of the Child

       Fields also contends that the trial court erred by finding

that DSS proved by clear and convincing evidence that it was in

the best interests of the child to terminate Fields' parental

rights.    He cites Smith v. Pond, 5 Va. App. 161, 360 S.E.2d 885

(1987), to support his contention that DSS failed to rebut the

presumption that the best interests of a child are served by

custody with the natural parents.    In Smith, this Court noted

that

            [t]his presumption is rebuttable, however,
            if the non-parent adduces clear and
            convincing evidence that (1) the parents are

                                - 5 -
          unfit; (2) a court previously has granted an
          order of divestiture; (3) the parents
          voluntarily relinquished custody; (4) the
          parents abandoned the child; or (5) special
          facts and circumstances constitute an
          extraordinary reason to take the child from
          the parents. Once the presumption favoring
          parental custody is rebutted, the natural
          parents who are seeking to regain custody
          must bear the burden of proving that custody
          with them is in the child's best interests.

Id. at 163, 360 S.E.2d at 886 (citations omitted).     Evidence

meeting the requirements of Code § 16.1-283 rebuts the

presumption favoring a natural parent.

     The trial court found that DSS presented clear and

convincing evidence sufficient to meet the statutory

requirements of Code § 16.1-283(C)(1) and (C)(2).    Under

§ 16.1-283(C)(1), parental rights may be terminated if the court

finds by clear and convincing evidence that it is in the best

interests of the child 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 or
          parents and to strengthen the parent-child
          relationship. Proof that the parent or
          parents have 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 . . . .




                              - 6 -
Id.    The record supports the trial court's finding that DSS

presented clear and convincing evidence satisfying this

statutory provision.   Fields had no contact with the child for

years, provided no support, and made no attempt to plan for the

child's future.   The child had no recollection of Fields.

       While Fields demonstrated at the hearing a desire to

rectify his past neglect, in part due to his own experiences as

a child, we find no error in the trial court's decision to rely

upon the uncontradicted evidence that Fields had failed to

participate in any meaningful way in the child's life.

       The trial court also found that DSS presented sufficient

evidence to satisfy the requirements of Code § 16.1-283(C)(2).

That section provides that a parent's rights to a child placed

in foster care may be terminated if the court finds by clear and

convincing evidence that it is in the child's best interests and

that the parent "without good cause, [has] 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" despite the

agencies' efforts to provide rehabilitative services.     Id.

Fields failed to provide for the child's needs in any meaningful

way.   He was absent from the child's life.   Therefore, the

record supports the finding of the trial court that DSS



                                - 7 -
presented clear and convincing evidence establishing the

conditions set out in Code § 16.1-283(C)(2).

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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