                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


TORRENCE JENKINS, SOMETIMES KNOWN AS
 TORRANCE JENKINS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1224-01-2                   JUDGE G. STEVEN AGEE
                                               JANUARY 29, 2002
RICHMOND DEPARTMENT OF
 SOCIAL SERVICES


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Randall G. Johnson, Judge

          Robert P. Dickinson (Clarke, Prince &
          Dickinson, on brief), for appellant.

          Kate D. O'Leary, Assistant City Attorney
          (Robert Carl, Guardian ad litem for the minor
          child, on brief), for appellee.


     Torrance Jenkins (Jenkins) appeals from a decision

terminating his parental rights to his infant son.     The circuit

court found that the Richmond Department of Social Services

(RDSS) presented clear and convincing evidence establishing the

statutory requirements set out in Code § 16.1-283(C)(1) and (2)

for termination of Jenkins' parental rights.    Jenkins contends

the circuit court erred (1) in finding that the statutory

requirements were met and (2) in allowing hearsay testimony.     We



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reverse the decision of the circuit court to terminate Jenkins'

residual parental rights for the following reason.

                           BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     On September 30, 1999, RDSS assumed emergency custody of

Jenkins' son when the child's mother was arrested.   At that

time, Jenkins' whereabouts were unknown.   He learned of his

son's placement in late 1999.

     On November 29, 1999, RDSS filed an initial foster care

plan with the goal of returning the child to his mother's home.

The plan was approved by the Richmond Juvenile and Domestic

Relations (J&DR) District Court on March 3, 2000.    The child was

returned to his mother, on a trial basis, on March 28, 2000.

Subsequently, Jenkins resumed a relationship with his son and

the mother.

     On April 21, 2000, RDSS visited the mother's home and was

witness to an argument between Jenkins and the child's mother.

Jenkins was asked to leave the home.    At that time, the

hysterical mother insisted she did not want custody of her son.

The mother was subsequently hospitalized, and Jenkins was, at




                                - 2 -
that time, not in the position to take custody of his son.    He

was unemployed and did not have a place to live.

     Jenkins, however, contacted RDSS and asked for assistance

in obtaining custody of his son.   RDSS then began to plan for

Jenkins' eventual custody of his son.   On June 17, 2000, RDSS

submitted a foster care plan with the goal of placing the child

with Jenkins.    In order to obtain custody of the child, Jenkins

was to maintain contact with RDSS, participate in visitation and

cooperate in the child's transition to his home.   Jenkins was

incarcerated in June 2000, and the J&DR court did not approve of

the submitted plan.

     In August 2000, RDSS submitted a third foster care plan,

this time with the goal of terminating parental rights and

placing the child for adoption.    On September 19, 2000, RDSS

sent Jenkins a letter requesting his incarceration status,

informing him of the need to keep in contact with the agency and

of the adoption plan which provided for services, referrals,

counseling and ongoing visitation rights.   This letter was sent

because RDSS recognized the interest Jenkins stated in April

2000 for his son was "a barrier to goal achievement

[(adoption)]."   Jenkins responded to the letter on October 13,

2000, and provided what he believed to be his incarceration

status.




                                - 3 -
     On December 11, 2000, the parties appeared before the J&DR

court in regards to the petition to terminate parental rights to

the child.    The J&DR court proceeded to terminate Jenkins'

residual rights to his son.    Afterwards, in anticipation of an

appeal to the circuit court, RDSS arranged to speak with Jenkins

after the hearing.    He was instructed to maintain contact.

     On appeal de novo to the circuit court, Jenkins' residual

parental rights were terminated in April 2001.    The circuit

court's letter opinion found RDSS made "reasonable" efforts to

assist Jenkins, but "less than in other cases."    Neither the

circuit court's letter opinion nor its order terminating

parental rights referenced any specific evidence to support a

finding of reasonable and appropriate efforts of social,

medical, mental health or other rehabilitative agencies.

                  STATUTORY REQUIREMENTS WERE NOT MET

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the

paramount consideration of a [circuit] 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." The
             [circuit] court's judgment, "when based on
             evidence heard ore tenus, will not be




                                 - 4 -
          disturbed on appeal unless plainly wrong or
          without evidence to support it."

Id. (internal citations omitted).

     The circuit court found that RDSS presented clear and

convincing evidence meeting the statutory requirements set out

in Code § 16.1-283(C)(1) and (2).   "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).

     Code § 16.1-283(C)(1) 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 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 . . .
          [has] failed without good cause to
          communicate on a continuing and planned
          basis with the child for a period of six



                              - 5 -
          months shall constitute prima facie evidence
          of this condition.

(Emphasis added).

     Code § 16.1-283(C)(2) provides in pertinent part:

          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,
          notwithstanding the reasonable and
          appropriate efforts of social, medical,
          mental health or other rehabilitative
          agencies to such end.

(Emphasis added).

     The evidence is clear that Jenkins did not have continuing

contact with his son or participate in planning for his child

for at least six months prior to the termination of his residual

parental rights.    However, despite Jenkins' non-involvement with

his son, there is no evidence in the record before us that RDSS

offered any services to Jenkins, much less services equating to

reasonable and appropriate efforts.     There is no indication in

the record that Jenkins was offered any services from any

social, medical, mental health or other rehabilitative agency.

While the social worker, Ms. Brice, testified that she "offered

services," she never identified any.    Instead she simply "let

him know what needed to be done in order for him to gain custody

of [his son]."   Nothing in the record indicates that RDSS ever




                                - 6 -
offered assistance to Jenkins, a condition precedent to the

termination of parental rights pursuant to either subsection of

Code § 16.1-283(C).

     The Supreme Court of Virginia has held that the failure of

the petitioning agency to satisfy this condition precedent

prohibits the termination of parental rights.   See Weaver v.

Roanoke Dep't of Human Resources, 220 Va. 921, 265 S.E.2d 692

(1980).

          In the absence of evidence indicating that
          "reasonable and appropriate efforts" were
          taken by social agencies to remedy the
          conditions leading to foster care, residual
          parental rights cannot be terminated under
          Code § 16.1-283(C)[]. Although the circuit
          court made a finding that the failure to
          remedy the conditions leading to the
          children's foster case placement occurred
          "notwithstanding the reasonable and
          appropriate efforts of social, medical,
          mental health or other rehabilitation
          agencies to such end," nothing in the record
          supports the court's conclusions. Since
          "conclusions unsupported by facts are
          insufficient to sever for all time the legal
          connection between parent and child," Ward
          v. Faw, 219 Va. 1120, 1125, 253 S.E.2d 658,
          662 (1979), and the record contains no
          evidence indicating what measures, if any,
          the Department or any other social agency
          took to provide [the father] with assistance
          in remedying his financial difficulties, the
          circuit court's orders terminating [the
          father's] residual parental rights are
          reversed.

Id. at 928-29, 265 S.E.2d at 697.




                              - 7 -
     For the foregoing reason we reverse the decision of the

circuit court. 1

                                                        Reversed.




     1
       As we reverse for failure to prove compliance with the
statutory condition precedent, we do not address Jenkins' second
assignment of error.



                              - 8 -
