                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Senior Judge Annunziata


BRIANCA THOMAS
                                                                        MEMORANDUM OPINION *
v.       Record No. 0009-12-2                                               PER CURIAM
                                                                            JUNE 12, 2012
RICHMOND DEPARTMENT OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                 Margaret P. Spencer, Judge

                   (Rhonda L. Earhart, on briefs), for appellant.

                   (Kate D. O’Leary; Office of the City Attorney, on brief), for
                   appellee.

                   (Richard H. Lippson), Guardian ad litem for the minor child. 1


         Brianca Thomas (mother) appeals from an order terminating her parental rights to her son,

B.A.S. Mother argues that the trial court erred by finding that (1) clear and convincing evidence

existed to terminate mother’s parental rights under Code § 16.1-283(C) and approving a foster care

plan with the goal of adoption, and (2) permanent foster care was not in the best interests of the

child. Upon reviewing the record and briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule

5A:27.




         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
         1
         The guardian ad litem (GAL) supports appellant’s brief “but only insofar as Appellant
requests permanent foster care as the dispositional outcome of this case.”
                                          BACKGROUND

        We view the evidence in the light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

        B.A.S. was born on June 9, 2009 with renal dysplasia, which is a congenital kidney

abnormality. He also has end-stage kidney disease. His medical condition requires that he be on

home dialysis for ten to twelve hours per day, for seven days a week. According to his doctor,

Dr. Timothy Bunchman, B.A.S. also undergoes a “very aggressive nutrition therapy” via a

gastric feeding tube. B.A.S.’s caregiver has to monitor B.A.S. carefully because he is at risk of

infection and elevated blood pressure. The caregiver monitors B.A.S.’s blood pressure, weight,

temperature, fluid status, and overall appearance. B.A.S. takes seven to nine medications per

day, which must be given to him consistently each day at the same time. He is on the deceased

donor kidney transplant list. 2

        Consistent care is critical before, during, and after the transplant. According to

Dr. Bunchman, consistent care is defined as “meds on time, nutrition on time, showing up to

clinic visits, lab work being done in a timely manner, attention to blood pressure, [and] attention

to weight.” If B.A.S. had an infection at the time of the transplant, he would not be eligible for

the transplant. In addition, it is important that B.A.S. receive consistent care after the transplant

so that his body does not reject the new kidney. He will be on medication for the rest of his life.

        The Richmond Department of Social Services (the Department) initially became involved

with the family in November 2009 because mother was unable to provide B.A.S. with a clean




        2
         According to Dr. Bunchman, there are approximately 120,000 people on the list for
organ transplants, and 80,000 people are waiting for a kidney.

                                                 -2-
and stable environment. The Department filed for the removal of B.A.S. in February 2010

because mother had moved three times between November 2009 and February 2010.

       In May 2010, B.A.S. was returned home. Prior to B.A.S. returning home, the

Department referred mother to the Renal Advantage Clinic, so she could learn about his

disability and care, including dialysis. She also was referred to CHIPS to deal with caring for

small children. She received bus tickets. She was referred to the Flagler program for assistance

with housing and to Goodwill for employment training.

       While in mother’s care, B.A.S. needed to have tubes placed in his ears because he was

having frequent ear infections. At the time of the surgery, mother did not have proper

identification, so the surgery could not occur. She failed to reschedule the surgery when she

obtained the proper identification.

       Between May and August 2010, B.A.S. had to be hospitalized because he had an

infection around his central line. His central line had to be replaced.

       In July 2010, the Renal Advantage Clinic checked on B.A.S. and found feces in his crib.

B.A.S. was immediately hospitalized. The Renal Advantage Clinic also asked mother to keep a

record of B.A.S.’s weight, blood pressure, temperature, and the cloudiness of the fluid being

exchanged, but mother did not do so.

       In addition to the other services provided, the Department arranged for in-home nursing

services. Originally, the in-home services would be for eight to ten hours per day for five days

per week. Mother did not feel that she needed that much assistance, so the in-home services

were shortened to two to four hours per day. However, mother was not home when the nurse

came for the second visit.




                                                -3-
          The Department filed for a protective order in August 2010 because a nurse could not

reach mother in order to give B.A.S. his required medication, which he needed at a specific time

for three days. Also, mother’s phone number had changed.

          In August 2010, the Department had a team decision-making meeting with mother, the

social workers, and the nurses. The plan included that mother provide the Department and the

renal clinic with any changes in mother’s address and phone number. In addition, mother was

required to keep the log of B.A.S.’s vital signs as required by the clinic.

          Subsequently, the Department removed B.A.S. from mother’s care because mother

moved to a hotel and changed her phone number without contacting the Department or the renal

clinic.

          The goal of the initial foster care plan was to return home. The Department told mother

that she needed to maintain stable housing for six months and notify the Department of any

change in address or phone number. She had to participate in the CHIPS program, attend all of

B.A.S.’s medical appointments, and attend all of B.A.S.’s visitations. She was required to

participate in Goodwill’s employment training and job interviews. She had to complete criminal

and CPS background checks. She also needed to stay in contact with the foster parent.

          Mother failed to meet the Department’s requirements. Between August 2010 and

October 2011, mother lived in five different residences, including a homeless shelter and the

Salvation Army, and had several different phone numbers. Mother did not participate in the

CHIPS program. Although mother was invited to all of B.A.S.’s medical appointments, she did

not attend all of them. She did not participate in the Goodwill employment training. The

Department scheduled visitation for every other week. Mother regularly visited B.A.S. and

notified the Department when she had to miss a visit. She missed two visits because she




                                                -4-
(a) delivered a new baby and (b) had an appointment with the housing authority. Initially, she

contacted the foster care mother once a week, but contact decreased over time.

       In April 2011, the Department filed a petition to terminate mother’s parental rights

because mother had not met the Department’s requirements. In June 2011, the Richmond

Juvenile and Domestic Relations District Court terminated mother’s parental rights. Mother

appealed. After all of the parties presented their evidence, the guardian ad litem argued that

permanent foster care would be appropriate for this child. Mother agreed. The trial court

determined that no facts were presented to show that the Department made diligent efforts to

place the child for adoption and such efforts were unsuccessful or that adoption was not a

reasonable alternative, as required by Code § 63.2-908. The trial court entered orders

terminating mother’s parental rights and approving the goal of adoption. 3 This appeal followed.

                                             ANALYSIS

                                   Termination of parental rights

       Mother argues that the trial court erred in terminating her parental rights and approving the

goal of adoption.

       In reviewing a trial court’s decision terminating parental rights, we presume the trial court

“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its

determination based on the child’s best interests.’” Logan, 13 Va. App. at 128, 409 S.E.2d at 463

(quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). The trial court has

“broad discretion in making the decisions necessary to guard and to foster a child’s best interests.”

Farley, 9 Va. App. at 328, 387 S.E.2d at 795. “When based on evidence heard ore tenus,” the trial




       3
         The trial court also terminated father’s parental rights, but the termination of his
parental rights is not the subject of this appeal.

                                                 -5-
court’s judgment “will not be disturbed on appeal unless plainly wrong or without evidence to

support it.” Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).

       Mother’s parental rights were terminated based on Code § 16.1-283(C)(1)4 and (C)(2).5

                 [S]ubsection C termination decisions hinge not so much on the
                 magnitude of the problem that created the original danger to the
                 child, but on the demonstrated failure of the parent to make
                 reasonable changes. Considerably more “retrospective in nature,”
                 subsection C requires the court to determine whether the parent has
                 been unwilling or unable to remedy the problems during the period
                 in which he has been offered rehabilitation services.

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005)

(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580

S.E.2d 463, 466 (2003)).




       4
           Code § 16.1-283(C)(1) states a parent’s parental rights may be terminated if:

                 [t]he parent or parents have, 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.
       5
           A court may terminate parental rights if:

                 The parent or parents, without good cause, have 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.

Code § 16.1-283(C)(2).

                                                  -6-
        Since B.A.S. has serious medical needs, it is imperative that he receive consistent and

quality care. Dr. Bunchman testified, “So having him in pristine care prior to the transplant

would directly impact upon his quality of care at the time of transplant, his recovery from

transplant, and his hospitalization stay.” He later explained, “Consistent care will be the most

important thing . . . . [I]f one loses their first kidney, the chance of being re-transplanted is

diminished by about 40 percent and the death rate goes up.”

        Mother has not been able to provide the consistent care that B.A.S. needs. When B.A.S.

was returned to her care from May 2010 to August 2010, mother did not maintain the necessary

record of B.A.S.’s vital signs. When the child stayed with her, she did not maintain a sterile

environment for him because the nurse found feces in his crib. B.A.S. was hospitalized twice

while in her care because of an infection and risk of infection. Mother missed scheduled

appointments with the nurse who was trying to give B.A.S. his necessary medication.

        One of mother’s greatest challenges was obtaining and maintaining adequate housing.

Despite all of the services provided to mother, she lived in five different residences between

August 2010 and October 2011. She lived in a home with her father, a home with her sister, a

hotel, CARITAS, and Salvation Army. At the trial, there was evidence that she signed a

year-long lease for a two-bedroom apartment, but she had done so at the end of September 2011

and moved in approximately one week before the hearing. Mother was living in the apartment

with her husband and two other children. Although there were beds in the bedrooms and food in

the refrigerator, the social worker testified that there was no living room or kitchen furniture, nor

was there any food in the cabinets.

        Furthermore, mother did not comply with other requirements from the Department. She

did not go to job training at Goodwill, she did not participate in the CHIPS program, and she did




                                                  -7-
not attend all of B.A.S.’s medical appointments. Although she visited B.A.S. consistently, she

did not maintain contact with his foster mother.

        The child had been in foster care for approximately fourteen months at the time of the

final hearing. “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 his [or her]

responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394

S.E.2d 492, 495 (1990).

        The trial court did not err in terminating mother’s parental rights and approving the goal

of adoption.

                                        Permanent foster care

        Mother argues that the trial court erred in finding that permanent foster care was not in the

child’s best interests.

                        A court shall not order that a child be placed in permanent
                foster care unless it finds that (i) diligent efforts have been made
                by the local department to place the child with his natural parents
                and such efforts have been unsuccessful, and (ii) diligent efforts
                have been made by the local department to place the child for
                adoption and such efforts have been unsuccessful or adoption is
                not a reasonable alternative for a long-term placement for the child
                under the circumstances.

Code § 63.2-908(B).

        In closing arguments, the guardian ad litem and mother argued that the trial court should

consider permanent foster care for B.A.S. as an alternative to termination of parental rights. The

trial court held that there was no evidence that “diligent efforts have been made by the local

department to place the child for adoption and such efforts have been unsuccessful or adoption is

not a reasonable alternative for a long-term placement for the child under the circumstances.” Code

§ 63.2-908(B)(ii).



                                                 -8-
       However, as mother acknowledged, there was no petition for permanent foster care filed

with the trial court. “A petition for termination of parental rights pursuant to Code § 16.1-283

does not encompass a petition for permanent foster care. The latter is not a less drastic form of

the former, but rather is a different and distinct alternative.” Martin v. Pittsylvania Cnty. Dep’t of

Soc. Servs., 3 Va. App. 15, 23, 248 S.E.2d 13, 17 (1986) (emphasis in original). “Pursuant to Code

§§ 63.1-206.1(A) [now Code § 63.2-908] and 16.1-281(B), the court can only consider

permanent foster care after it has determined that adoption, upon termination of residual parental

rights, is not an alternative in a given case.” Stanley v. Fairfax Cnty. Dep’t of Soc. Servs., 10

Va. App. 596, 605-06, 395 S.E.2d 199, 204 (1990). Therefore, the trial court could not order

permanent foster care. See Norfolk Div. of Soc. Servs. v. Hardy, 42 Va. App. 546, 556, 593 S.E.2d

528, 533 (2004).

                                           CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                            Affirmed.




                                                 -9-
