                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Willis, Frank and Clements


RODNEY LUSHBAUGH
                                            MEMORANDUM OPINION *
v.   Record No. 0174-02-2                       PER CURIAM
                                               JUNE 11, 2002
RICHMOND DEPARTMENT OF SOCIAL SERVICES


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

           (Rodney D. Shrader, Jr.; Steingold and
           Shrader, on brief), for appellant.

           (Beverly A. Burton, Senior Assistant City
           Attorney; Evelyn B. Meese, Assistant City
           Attorney; H. Pratt Cook, Guardian ad litem
           for the infant child, on brief), for
           appellee.

     Rodney Lushbaugh appeals from a decision terminating his

parental rights in his daughter, M.L.    The trial 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 Lushbaugh's parental rights.    Lushbaugh argues

the trial court erred in finding that (1) RDSS proved by clear

and convincing evidence that Lushbaugh, without good cause,

failed to maintain contact with and to provide or substantially

plan for the future of M.L. for a period of six months after her


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
placement in foster care; and (2) RDSS proved by clear and

convincing evidence that Lushbaugh was unable or unwilling

within a reasonable period of time not to exceed twelve months

from the date M.L. was placed in foster care to remedy

substantially the conditions which led to or required

continuation of her foster care placement.   Upon reviewing the

record and parties' briefs, we conclude this appeal is without

merit.   Accordingly, we summarily affirm the decision of the

trial court.   Rule 5A:27.

     "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 Development,

13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).    "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).   "'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, 13

Va. App. at 128, 409 S.E.2d at 463 (citation omitted).    The

trial judge's findings, "'when based on evidence heard ore

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tenus, will not be disturbed on appeal unless plainly wrong or

without evidence to support it.'"     Id. (citation 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
          months shall constitute prima facie evidence
          of this condition.

     Code § 16.1-283(C)(2) provides, in pertinent part, that the

parent's 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 . . ., 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

                              - 3 -
          rehabilitative agencies to such end. Proof
          that the parent . . ., without good cause,
          [has] failed or been unable to make
          substantial progress towards elimination of
          the conditions which led to or required
          continuation of the child's foster care
          placement in accordance with their
          obligations under and within the time limits
          or goals set forth in a foster care plan
          filed with the court or any other plan
          jointly designed and agreed to by the parent
          . . . and a public or private social,
          medical, mental health or other
          rehabilitative agency shall constitute prima
          facie evidence of this condition. The court
          shall take into consideration the prior
          efforts of such agencies to rehabilitate the
          parent or parents prior to the placement of
          the child in foster care.

     Lushbaugh contends the trial court erred in finding, under

both subsections, that there was no good cause for his failure

to comply with the requirements imposed upon him.   Specifically,

he contends the process which led up to the termination left him

feeling demeaned and helpless, thus rendering him in a mental

state by which he was not able to act for the benefit of M.L.

The trial court specifically rejected this contention.

     The record supports the trial court's determination.      At

the age of three, M.L. complained of pain in her genital area.

Upon examination, it was discovered that M.L. had contracted

chlamydia trachomatis, a sexually transmitted disease.   She

stated that Lushbaugh had touched her sexually.   Lushbaugh

submitted to a swabbing test for chlamydia trachomatis, but the

test was negative.   By court order, Lushbaugh was directed to

submit to a more extensive test; he refused to do so.

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     RDSS removed M.L. from the home in October 1998.

Thereafter, Lushbaugh arranged only one visit, in April 1999,

with M.L.   He failed to attend four court hearings concerning

plans for M.L., he failed to attend available counseling

sessions or parenting classes, and he failed to make any plans

for M.L.'s future other than to express the hope that she would

give him a grandson.   Furthermore, Lushbaugh threatened a

caseworker, stating that he would "get a gun" and "take care of

the people" who were trying to take M.L. away from him.

     Lushbaugh was incarcerated in April 2001, and was

subsequently convicted of possession of marijuana, possession of

marijuana with intent to distribute, and failing to pay child

support for two children other than M.L.   He was sentenced to a

thirteen-month, ten-day term of incarceration.   While

incarcerated, Lushbaugh wrote a letter to "Whom It May Concern."

In the letter, he admitted that he had "abandoned" M.L.

     Based upon this evidence, the trial court found that RDSS

had proven by clear and convincing evidence that it had met the

requirements of Code § 16.l-283(C)(1) and (2).   This finding was

not plainly wrong and is supported by credible evidence.

Lushbaugh's failure to visit regularly with M.L., his failure to

comply with testing or attend counseling, his failure to plan

for her future, and his lengthy incarceration underscore his

admitted abandonment of M.L.   His claims that he had "good

cause" to support his inaction ring hollow.   "It is clearly not

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in the bests 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).   Accordingly, we summarily affirm the decision

of the trial court.

                                                         Affirmed.




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