                  COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


LARRY P. COOK
                                         MEMORANDUM OPINION * BY
v.   Record No. 2256-99-2                JUDGE WILLIAM H. HODGES
                                              JUNE 20, 2000
DEPARTMENT OF SOCIAL SERVICES OF
 MECKLENBURG COUNTY


           FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                    William L. Wellons, Judge

          Lucretia A. Carrico (Jonathan E. Green, on
          brief), for appellant.

          Nora J. Miller (Watson & Nelson, P.C., on
          brief), for appellee.


     Larry P. Cook ("appellant") appeals the decision terminating

his parental rights to his sons, Larreek and Larrell Garnes

("Larreek" and "Larrell").   Appellant contends the trial judge

erred in finding that:   (1) sufficient efforts had been made by

rehabilitative agencies to work with appellant to correct the

abuse and neglect of the children; (2) appellant habitually abused

alcohol or drugs to the extent that his parental ability was

seriously impaired; (3) appellant had received reasonable and

appropriate efforts from rehabilitative agencies to strengthen his

relationship with the children; and (4) appellant had received


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
reasonable and appropriate efforts from rehabilitative agencies to

enable him to substantially remedy the conditions leading to the

placement of the children in foster care.    We affirm the trial

judge's rulings.

                               FACTS

     At the May 26, 1999 termination of parental rights hearing,

the parties stipulated that Larreek and Larrell had been abused

and neglected pursuant to Code § 16.1-283(B)(1).    Candace Elliott,

a child protective service worker with the Mecklenburg County

Department of Social Services ("DSS"), testified DSS had been

involved with the Cook family since July 1990.    In 1990, DSS

received a complaint that Larreek and Larrell had been left alone

and locked in a trailer.   The boys are twins and were eleven

months old at the time of the incident.    This was not the first

instance in which the parents had left the boys alone.    The

parents were charged with criminal neglect, and a petition was

filed concerning the boys' custody.    Custody of the boys was

granted to the boys' maternal aunt, Delores Garnes.    Appellant and

the boys' mother were ordered to attend parenting classes and

mental health counseling sessions.     Garnes had custody of the boys

for about eighteen months.

     DSS continued to monitor the family.     Appellant completed

five of the six parenting classes, and, Elliott stated that, to

her knowledge, appellant did not attend any mental health

counseling sessions.

                               - 2 -
        Elliott received another complaint regarding the boys on

May 30, 1997.    The boys were residing with their mother at that

time.    Larreek had been admitted to a treatment center for severe

depression, homicidal ideations and self-mutilation.    Mrs. Cook

did not follow through with the recommended treatment or

medication.

        On June 18, 1997 DSS received another complaint concerning

lack of supervision of the children and leaving the children with

improper caregivers.    Larreek and Larrell stated they had been

given drugs and alcohol by their teenage babysitters.    A

prevention worker continually worked with Mrs. Cook.

        In September 1997 Mrs. Cook left Larreek in Poplar Springs

Hospital, did not visit him, and did not maintain contact with the

hospital.    The children were again placed in foster care.

        Joy Gupton, a social work supervisor at DSS, testified that

DSS developed a foster care service plan with the parents in 1992.

The goal of the plan was to place the boys with another relative

because the boys had been living apart from their parents for

eighteen months and the parents had not found housing at that

time.    The children were placed in the custody of their maternal

grandfather, James Brown, where they lived from April 1992 until

sometime in 1996, when their mother again obtained custody.

        DSS had submitted several foster care plans over the years.

Initially, the goal of the plans was to place the boys with

relatives because the parents were unable to maintain their own

                                 - 3 -
home.    Based on DSS' lengthy involvement with the family, the goal

of the latest versions of the plans had not been to place the boys

back with the parents.

        DSS continued to work a prevention case with appellant in

order to prevent the removal of other children from the family.

DSS provided support and guidance to monitor the children and to

encourage the parents to provide proper care and guidance for the

children.    Appellant sometimes requested funds, food, and

assistance with housing from DSS, which the agency provided him

when able to do so.

        In March 1994 DSS learned appellant had sold food stamps to

purchase crack cocaine.    Appellant also indicated a desire to

attend substance abuse counseling, but only attended one session,

stating he could handle his problems on his own.    Gupton testified

that during the years DSS had an open prevention case concerning

the boys, appellant was offered aid, food stamps, assistance with

heating and weatherizing of a mobile home, parenting classes, and

substance abuse counseling.

        Christy Mills, a DSS social worker, testified she had been

the case manager for the family since October 21, 1997.    She

stated the boys had "severe emotional problems" when they entered

foster care.    The boys were withdrawn and "shutdown" most of the

time.    Larrell was diagnosed with ADHD and had the language

development of a five year old, although he was eight years old.

Larreek had twice been hospitalized for depression and was

                                 - 4 -
diagnosed with reactive attachment disorder.   He had suicidal

ideations and needed "very, very managed care."   Mills stated the

boys needed a stable environment, nurturing and good health.     DSS

provided mental health counseling to both boys.

     Since being placed in foster care, the boys are doing well in

school and are "very expressive."   Mills testified they are

"excelling," "thriving" and starting to enjoy sports.   She stated

they are "really, really doing well."   Mills also stated that in

December 1997, appellant indicated he wanted to have visitation

with the boys.    In January 1998, Mills wrote appellant a letter

suggesting they meet to discuss visitation.    Appellant never

responded to the letter.

     Appellant's criminal record was also admitted into evidence.

Since 1990, he has had fifteen convictions, including assaulting

his wife and mother, three counts of cocaine distribution, driving

under the influence, and food stamp fraud.    Michael Jones of

Piedmont Court Services Community Corrections testified the agency

has supervised appellant on six occasions.    On several occasions,

appellant failed to complete the court-ordered community service.

He was also a "difficult probationer," who kept appointments only

periodically.    Appellant asserted that he was disabled and could

not perform community service; however, he failed to produce

requested medical records to Jones indicating his disabilities.

     Charles Parrish, Chief Correctional Officer for the

Mecklenburg County Jail, testified appellant "didn't adjust at all

                                - 5 -
to jail.   He was very uncooperative, very hard to please."   He was

verbally abusive, aggressive and threatening.   Parrish stated

appellant's adjustment was one of the worst he had ever seen.

     Delores Garnes testified she has had custody of another one

of appellant's children for eight years, since the child was two

months old.    Garnes stated appellant has only occasionally visited

the child.    Garnes also testified appellant sometimes drinks

alcohol excessively and in 1997 once told her he could not eat

because he was "coming down off a high."   She did not feel

appellant was a fit and proper person to have custody of Larreek

and Larrell.    Garnes had custody of the boys from August 1990 to

January 1992 when she entrusted the children to DSS because she

was having problems with the parents.

     Appellant testified he and his wife lived with his mother

until the children were removed from their custody in 1991.      He

also stated he and his wife separated at about the end of 1997.

Prior to 1997, appellant saw Larreek and Larrell only when the

boys' grandfather brought them to visit him.    After he separated

from his wife, appellant saw the boys about once or twice a week.

He stated he provided for the boys with his disability check.     He

testified he did not know the boys were supposed to be attending

mental health treatment.   Appellant also did not know the boys had

been removed from the custody of their mother until about one

month after their removal.



                                - 6 -
     Appellant stated that DSS had offered him no services since

his incarceration, nor had DSS discussed with him any services it

could provide him after he was to be released from incarceration

in about one month.   Appellant testified he planned to obtain

employment upon his release, get housing and get custody of his

children.

     On cross-examination, appellant testified that DSS worked

only with his wife from 1991 through 1995.      He did not believe he

needed any help, stating that he had only asked for food stamps.

Appellant admitted he did not attend the court-ordered mental

health counseling sessions in 1990.      Appellant testified he did

not trade food stamps for crack cocaine, but pled guilty to the

charge upon his lawyer's advice.    He admitted he subsequently

asked DSS for substance abuse counseling, but later indicated he

could take care of himself.     Appellant also admitted he smokes

marijuana and has sold cocaine in the past.

     Appellant had not seen Larreek or Larrell since August 1997.

He stated that he sold drugs in order to earn money to rent an

apartment.   Although he stated he earned enough money to get an

apartment, appellant did not do so.      Appellant also admitted that

he does not know the medical condition of his children.

                                ANALYSIS

                   I. and II.    Code § 16.1-283(B)

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

                                 - 7 -
consideration of a trial 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).   Where the trial judge hears the

evidence ore tenus, his decision is entitled to great weight and

will not be disturbed on appeal unless plainly wrong or without

evidence to support it.   See Lowe v. Dep't of Pub. Welfare, 231

Va. 277, 282, 343 S.E.2d 70, 73 (1986).    "'[T]he rights of parents

may not be lightly severed but are to be respected if at all

consonant with the best interests of the child.'"   Ward v. Faw,

219 Va. 1120, 1124, 253 S.E.2d 658, 661 (1979) (citation omitted).

The termination of parental rights is a grave, drastic and

irreversible action.   "When a court orders termination of parental

rights, the ties between the parent and child are severed forever

and the parent becomes 'a legal stranger to the child.'"   Lowe,

231 Va. at 280, 343 S.E.2d at 72 (citation omitted).

     Appellant argues the trial judge erred in finding sufficient

efforts had been made by rehabilitative agencies to work with

appellant to correct the abuse and neglect of Larreek and Larrell

pursuant to Code § 16.1-283(B).   Under Code § 16.1-283(B), the

parental rights of parents of abused children may be terminated if

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

best interests of the children and that:

          1. The neglect or abuse suffered by such
          [children] presented a serious and
          substantial threat to [their] life, health
          or development; and


                               - 8 -
            2. It is not reasonably likely that the
            conditions which resulted in such neglect or
            abuse can be substantially corrected or
            eliminated so as to allow the [children's]
            safe return to [their] parent or parents
            within a reasonable period of time. In
            making this determination, the court shall
            take into consideration the efforts made to
            rehabilitate the parent or parents by any
            public or private social, medical, mental
            health or other rehabilitative agencies
            prior to the [children's] initial placement
            in foster care.

Code § 16.1-283(B)(1) and (2).    Proof that "[t]he parent or

parents, without good cause, have not responded to or followed

through with appropriate, available and reasonable rehabilitative

efforts on the part of social, medical, mental health or other

rehabilitative agencies designed to reduce, eliminate or prevent

the neglect or abuse" is prima facie evidence of the conditions

set out in Code § 16.1-283(B)(2).

     The parties stipulated that the children were abused.      The

trial judge found appellant had "been frequently before agencies

for assistance," including receiving the services of Piedmont

Court Services.   Appellant had been convicted of fifteen offenses,

and he had received several sentences involving probation and

community service.   However, the trial judge found, and the

evidence showed, appellant was a "difficult probationer" and "was

not responsive to efforts" to assist him.   He also failed to

perform community service until required by the court to do so.

Appellant did not complete the VASAP program despite being ordered

to do so.

                                 - 9 -
     Although appellant argues the rehabilitative agencies worked

only with his wife, appellant had been ordered to participate in

mental health counseling, and he refused to do so.   He also failed

to complete parenting classes offered by these agencies.    In

addition, appellant testified he did not need any "help."

Furthermore, evidence was presented that DSS provided appellant

food stamps, food, and heating assistance upon his request.

During this time period, appellant was convicted of trading food

stamps for crack cocaine.   DSS also offered substance abuse

counseling services, which, again, appellant refused to attend,

stating he could handle his own problems.

     Therefore, the evidence supports the trial judge's finding

that sufficient efforts had been made by rehabilitative agencies

to work with appellant to correct the abuse and neglect of the

children.   See Code § 16.1-283(B).   The evidence further showed

that such efforts were made both prior to and after the children

were placed in foster care.   However, appellant failed to respond

to or follow through with the rehabilitative efforts of the

agencies.

     Appellant also argues the trial judge erred in finding

appellant habitually abused alcohol or drugs to the extent his

proper parental ability was seriously impaired pursuant to Code

§ 16.1-283(B)(2)(b).   Appellant admitted he smokes marijuana and

has sold cocaine to earn money.   He had three convictions for the

distribution of cocaine.    As stated above, he was convicted of

                                - 10 -
trading food stamps for crack cocaine, and he failed to complete

substance abuse counseling.   He was convicted of driving under the

influence, and he failed to complete the VASAP program.   Appellant

also had a suspended driver's license due to his alcohol abuse.

Garnes testified she had seen appellant when he claimed to be

"high."

     This evidence clearly supports the trial judge's finding by

clear and convincing evidence that appellant habitually abused

drugs and alcohol to the extent his proper parental ability was

seriously impaired, pursuant to Code § 16.1-283(B)(2)(b).

                    III.   Code § 16.1-283(C)(1)

     Appellant argues the trial judge erred in ruling appellant

had received reasonable and appropriate efforts of rehabilitative

agencies to communicate with appellant and to strengthen his

relationship with Larreek and Larrell pursuant to Code

§ 16.1-283(C)(1).

     The trial judge found Larreek and Larrell are children with a

"myriad of problems" who had received a "great deal of care and

assistance" from DSS over the years.    The judge also found that

appellant "has had very limited contact" with the boys, has shown

"little interest in them," and has not made "good efforts."

     The evidence showed that when the boys were in the custody of

Brown, appellant only saw the children when Brown brought them to

visit him.   The evidence further showed appellant failed to

maintain contact with the children even before he was incarcerated

                               - 11 -
in 1997.   At one time he told a DSS worker he would like

visitation with the children, but he never responded to her letter

requesting a meeting to discuss the matter.    Appellant did not

even know the boys were in foster care until one month after DSS

had removed them from the custody of their mother.    He further

testified he was unaware of their medical condition and was

unaware they attended mental health counseling.     Therefore, the

evidence supports the trial judge's finding.

                     IV.    Code § 16.1-283(C)(2)

     Appellant argues the trial judge erred in ruling appellant

received reasonable and appropriate efforts from rehabilitative

agencies to enable appellant to substantially remedy the

conditions which led to the boys' foster care placement pursuant

to Code § 16.1-283(C)(2).

     While appellant contends that DSS failed to provide him with

sufficient services to allow the children to return to him, the

record supports the trial judge's finding that appellant failed to

substantially correct the conditions which led to the children's

foster care placement despite DSS' reasonable rehabilitative

efforts.   It is true appellant attended most of his parenting

classes; however, the evidence indicated that he failed to

implement what he had learned into his dealings with the children.

Moreover, appellant refused to attend mental health counseling or

substance abuse counseling and continually violated the law,

resulting in incarceration.

                                - 12 -
           [W]hile . . . incarceration does not,
           per se, authorize termination of parental
           rights or negate the Department's obligation
           to provide services, it is a valid and
           proper circumstance which, when combined
           with other evidence concerning the
           parent/child relationship, can support a
           court's finding by clear and convincing
           evidence that the best interests of the
           child will be served by termination.

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,

340, 417 S.E.2d 1, 5 (1992).

     Prior to his incarceration, appellant made no efforts to

obtain housing for the boys, despite the fact that he testified he

had earned enough money to rent an apartment by selling drugs.    He

was unaware of the medical condition of the boys and did not even

know their mother had lost custody of the boys until one month

after this occurred.   Although appellant's wife had sole custody

of the children during part of the applicable time period, and DSS

received numerous complaints while the children were in her sole

custody, the evidence showed that DSS attempted to work with the

entire family, including appellant, in an effort to remedy the

conditions which led to the foster care placement of Larreek and

Larrell.   In addition, Larreek and Larrell were left alone and

unsupervised while in the custody of both appellant and his wife.

     Furthermore, the trial judge stated that, although appellant

was soon to be released from jail for the drug distribution

charges, he would have a significant suspended sentence which

could result in a lengthy incarceration period if appellant did


                               - 13 -
not "adjust" his conduct.   The trial judge also stated, "Services

have been offered [to appellant], not only by Piedmont Court

Services, but by the social services agency . . . ."    In summary,

the trial judge found, "The agency has been very much involved in

helping, and yet, [appellant] has either not responded to those

services or those services have failed to bring him around."

Therefore, the trial judge found by clear and convincing evidence

that it was in the best interests of Larreek and Larrell that

appellant's parental rights be terminated.

     The trial judge further found the evidence proved the neglect

and abuse suffered by the children presented a serious and

substantial threat to their lives, health and development.    In

addition, the trial judge found appellant has not responded to the

efforts that have been made to rehabilitate him and encourage his

parenting skills, and he has shown "no good cause" as to why he

has not responded to these efforts.     The trial judge found by

clear and convincing evidence that appellant has failed to

maintain continuous contact with the children and failed to

provide a substantial plan for the children's future.    Thus, the

judge concluded appellant "has been unwilling or unable within a

reasonable period of time to remedy substantially the conditions

which led to these children being placed in foster care."    As

discussed above, the evidence clearly supports these findings.

     Moreover, Larreek and Larrell have been in and out of foster

care since 1990.   "It is clearly not in the best interests of a

                               - 14 -
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).

Although appellant testified he would get "established" after his

release from incarceration, the trial judge was not required to

place more credibility in appellant's proposed plans for the

future than warranted by his actions in the past.   Furthermore,

Larreek and Larrell are performing "exceptionally well" while in

foster care and are now "thriving."

     Therefore, evidence in the record fully supports the findings

of the trial court that DSS presented clear and convincing

evidence sufficient under Code §§ 16.1-283(B) and (C) to terminate

appellant's parental rights to Larreek and Larrell.

     Accordingly, the decision of the trial judge is affirmed.

                                                      Affirmed.




                               - 15 -
