                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


DANTE SHAW
                                             MEMORANDUM OPINION * BY
v.   Record No. 2670-00-1                  JUDGE JAMES W. BENTON, JR.
                                                  JULY 31, 2001
CITY OF NEWPORT NEWS DEPARTMENT
 OF SOCIAL SERVICES


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                  H. Vincent Conway, Jr., Judge

             (Kevin M. Diamonstein, on brief), for
             appellant. Appellant submitting on brief.

             Christina A. Walsh, Assistant City Attorney
             (Allen L. Jackson, Chief Deputy City
             Attorney, on brief), for appellee.

             Argument but no brief by Richard H. Lewis,
             Jr., Guardian ad litem for the child.


     Dante Shaw contends that the record does not contain clear

and convincing evidence supporting the judgment terminating his

parental rights.    We disagree and affirm the judgment.

                                  I.

     The evidence proved that a child was born to Lawanda

Worthington on September 6, 1992.      Worthington, who was in the

custody of the City of Newport News Department of Social Services,

later was hospitalized for a mental illness.     After the Department


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
obtained custody of her child in 1993, Worthington gave to the

Department a name of a man she identified as the child's father.

When paternity tests excluded that man as the father, Worthington

identified Shaw as the child's father.   In 1997, paternity tests

confirmed that Shaw, who was then incarcerated in prison, was the

father.

     The Department notified Shaw that he was the child's father

and obtained from him names and addresses of relatives who might

care for the child during Shaw's incarceration.    Letters, which

were sent from the Department to relatives of Shaw, were produced

at trial but not offered as exhibits.    When the contacts with

relatives were not productive, the Department contracted with

Family Methodist Services "to continue to work with . . . Shaw to

identify more potential relatives and to try to link the agency to

those relatives."

     A case worker employee of the Department testified that the

Department sent copies of the service plans to Shaw but that the

child was not taken to the prison to visit Shaw.   She testified

that prison visits are not necessarily provided when a parent is

in prison and that the decision whether to do so is "done on a

case-by-case basis."   The case worker also testified that the

child is in a foster home and adjusting well to the foster home.

She further testified that the child has been "diagnosed with

ADHD, reactive attachment disorder, and developmental coordination

disorder."

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     A family therapist testified about the variety of services

she has rendered the child from 1995 through 2000, the child's

psychological difficulties, and the medication the child receives.

She also testified that she has had discussions with the child

about her father without divulging "specifics about him."    She

reports that the child has vacillated between "lik[ing] to know

who [her father] is . . . to expressing real terror that he would

. . . take her away from her foster mother, and [having] . . .

tremendous anxiety associated with that and along with the anxiety

was another fantasy image of her father as a very negative

figure."   The therapist also testified as follows:

           Q: Contacts with the father, would that
           have strengthened a parent/child
           relationship?

           A: It would only have introduced [the
           child] to her father as an acquaintance who
           had the nominal title of being her father.
           It would not have been a parent/child
           relationship in the sense that a parent is a
           caretaker for a child.

           Q: And what effect would contact with her
           father have on [the child]?

           A: At this point, I believe it would
           produce tremendous anxiety, again
           re-arousing fears of being separated from
           her foster mother.

           Q: Are there any counseling services that
           you could offer that would lessen that
           effect on the child?

           A: The only counseling service that could
           be offered that would have any real benefit
           would be contingent on Mr. Shaw being a free
           man and being available for intensive work.


                               - 3 -
            Q: And what effect if permanency was not
            -- if the agency did not achieve permanency
            for [the child] at this time and waited the
            four years remaining for Mr. Shaw to
            complete his time, what effect would that
            have on [the child]?

            A: You mean if in four years she were
            placed in his care?

            Q: Yes. What effect would it have for [the
            child] to wait four more years for her
            father to be free from incarceration?

            A: [The child] feels very much that she is
            in limbo right now. She wants closure. She
            wants a family because she knows that her
            only family right now is her foster mother
            and she wants to proceed with that
            relationship.

            Q: What would your recommendation be then
            for [the child] at this time?

            A: My recommendation would be that she be
            allowed to remain with her foster mother and
            that exploration of her foster mother as an
            adoptive parent proceed.

     Shaw testified that when he last saw Worthington in 1992

she was pregnant and he was twelve years old.   He did not become

aware he was the child's father until the Department contacted

him in 1997.   Shaw testified that his release date from prison

is 2004 and that he has the possibility of early release in

September 2002 with his "good time."    He also testified that

after he gave the Department names of relatives who might assist

him in this matter, the Department did not provide him any other

services.   He testified, however, that when he received a foster

care plan that detailed the child's difficulties, he believed



                                - 4 -
the Department "was lying or just trying to get [him] to give

[his] rights away."    Although he was told he could write to the

child by sending correspondence to the Department, he only sent

a birthday card in 1998.    Shaw testified he did not wish to have

his parental rights terminated.

        In his ruling from the bench, the trial judge cited Shaw's

incarceration, Shaw's lack of contact with the child, and, most

significantly, the child's need for stability in her life.

Commenting on Shaw's argument that more could have been done to

help with the parenting, the judge said:     "Well, I'm not sure

what.    The man is incarcerated.    Meanwhile, this child is

aging."    This appeal followed the judge's order terminating

Shaw's residual parental rights.

                                    II.

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

"[t]he residual parental rights of a parent . . . of a child

placed in foster care as a result of court commitment . . . may

be terminated if the court finds, based upon clear and

convincing evidence, that it is in the best interests of the

child" and that the following conditions exist:

                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

                                 - 5 -
           social, medical, mental health or other
           rehabilitative agencies to such end. Proof
           that the parent or parents, without good
           cause, have 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
           or parents 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.

Because "'[r]easonable and appropriate' efforts can only be

judged with reference to the circumstances of a particular

case," Ferguson v. Dep't of Social Servs., 14 Va. App. 333, 338,

417 S.E.2d 1, 4 (1992), we have held that the trial judge "must

determine what constitutes reasonable and appropriate efforts

given the facts before the court."     Id. at 338-39, 417 S.E.2d at

4.

     Shaw argues that the Department made only "minimal efforts"

to assist him.   The trial judge found, however, that, under the

circumstances, the Department's actions were reasonable and that

Shaw's incarceration limited the agency's capacity to remedy

Shaw's deficiencies as a parent.   In Ferguson, we held as

follows:

           [W]hile long-term incarceration does not,
           per se, authorize termination of parental

                               - 6 -
           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.

Id. at 340, 417 S.E.2d at 5.

     The evidence in this record proved that beyond the

biological fact of parentage, no relational history existed

between the child and Shaw.    Shaw was not aware he was the

child's father until the Department contacted him in 1997, and

he had never developed any type of relationship with the child.

When given the opportunity to contact the child, he only sent a

birthday card.   In addition, the evidence is undisputed that the

Department was unsuccessful in its efforts to place the child

with Shaw's relatives during his incarceration.

     The record contains expert testimony that these conditions

when combined with Shaw's current incarceration would require

intensive resources and would not lead to the establishment of a

parent/child relationship while Shaw was incarcerated.     That

testimony further indicated that the child needed stability to

ensure improved development and that direct contact with Shaw

would be detrimental to the child.      As in Ferguson, the trial

judge "placed emphasis upon this expert testimony," id., and

found that the agency had fulfilled its duties under the

statute.   We will not disturb this finding because the record


                                - 7 -
indicates that it was not plainly wrong or without evidence to

support it.   Martin v. Pittsylvania County Dep't of Social

Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

     We hold that this record supports by clear and convincing

evidence the trial judge's finding that the best interests of

the child would be served by terminating Shaw's parental rights

pursuant to Code § 16.1-283(C)(2).     Accordingly, we affirm the

judgment.

                                                          Affirmed.




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