                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Huff and Senior Judge Clements


DAVID ANTHONY BROWN
                                                                 MEMORANDUM OPINION *
v.     Record No. 0843-11-2                                          PER CURIAM
                                                                    AUGUST 23, 2011
CHARLOTTESVILLE DEPARTMENT
 OF SOCIAL SERVICES


             FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                              Edward L. Hogshire, Judge

                 (William M. Marshall; Marshall & Marshall, P.C., on brief), for
                 appellant. Appellant submitting on brief.

                 (Allyson Manson-Davies, Deputy City Attorney; Samantha Freed,
                 Guardian ad litem for the minor child; Snook & Haughey, P.C., on
                 brief), for appellee. Appellee and Guardian ad litem submitting on
                 brief.


       On March 30, 2011, the trial court terminated the residual parental rights of David Anthony

Brown to his son, J.J., pursuant to Code § 16.1-283(B) and 16.1-283(C). On appeal of this decision,

Brown contends the trial court erred in terminating his parental rights when the result of a paternity

test was not submitted to the court. Moreover, Brown challenges the sufficiency of the evidence to

support the termination. Finding no error, we affirm the trial court’s decision.

                                             Background

       On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in

the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible

therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767

(2005) (quoting Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the circuit

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

determination based on the child’s best interests.’” Id. at 265-66, 616 S.E.2d at 769 (quoting

Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)).

“The trial court’s judgment, ‘when based on evidence heard ore tenus, will not be disturbed on

appeal unless plainly wrong or without evidence to support it.’” Id. at 266, 616 S.E.2d at 769

(quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its capacity as

factfinder, therefore, the circuit court retains ‘broad discretion in making the decisions necessary

to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326,

328, 387 S.E.2d 794, 795 (1990)).

       J.J. was born to Renee Jones (the mother) on February 1, 2005. The Charlottesville

Department of Social Services (CDSS) took custody of J.J. and placed him in foster care on

February 24, 2009. At the time, J.J. was living with his mother under unsafe conditions. CDSS

also had concerns about substance abuse on the part of the mother. When he entered foster care,

J.J. was developmentally delayed in several areas.

       Initially, no father was identified for J.J. in the legal proceedings related to his placement

in foster care. However, Brown was named as the father in March 2009, and a paternity test was

ordered for him. Brown then was incarcerated at the Powhatan Correctional Facility with

projected release in 2010. The foster care service plan required that if Brown was released early

and paternity was established, he was to provide a safe home environment for J.J. and maintain

employment. Brown also was to maintain consistent contact with CDSS to plan for J.J.’s future.

Brown subsequently was transferred to Red Onion State Prison and was to remain incarcerated

until 2011.




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       Beginning in May 2009, CDSS sent Brown letters asking about potential relative

placements for J.J. Brown responded with the name of Domeeka Jones, who was Brown’s

fiancée. CDSS provided Jones paperwork required to pursue the placement, but she did not

return it. Brown named no other relatives with whom J.J. could be placed, and did not respond

to letters from CDSS.

       At the termination hearing in juvenile and domestic relations district court on June 14,

2010, Brown’s mother, Tanya Raglan, expressed an interest in caring for J.J. However, she did

not follow up with CDSS and did not respond to CDSS’s written inquiries.

       At the time of the termination hearing in the trial court on October 15, 2010, J.J. had

adjusted well to his foster care placement. He had made progress with his developmental delays,

and was entering kindergarten. J.J.’s foster mother had developed a strong bond with him and

indicated interest in adopting him.

       Brown testified he had not seen J.J. since he was incarcerated in October 2008. Brown

did not deny that he was J.J.’s father. Brown claimed that before he went to jail he cared for J.J.

for periods of time when the mother was absent.

       Raglan testified that she had served as a foster parent before in the state of New York,

and she wanted to obtain custody of J.J. Brown acknowledged to her that J.J. was his son.

Raglan had not seen J.J. since he was eight months old.

       The trial court terminated appellant’s parental rights, affirmed the foster care plan with a

goal of adoption, and denied Raglan’s request to be considered as a potential placement for J.J.

                                             Discussion

                                                  I.

       Brown argues the trial court erred in terminating his parental rights in the absence of test

results establishing his paternity. In his brief, Brown provides no citation to legal authority to

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support a contention that a paternity test was a prerequisite to termination of his parental rights,

and we are aware of none. Rule 5A:20(e) mandates that an appellant’s brief include “principles

of law and authorities” with respect to each assignment of error. Appellant has the burden of

showing that reversible error was committed. See Lutes v. Alexander, 14 Va. App. 1075, 1077,

421 S.E.2d 857, 859 (1992). Mere unsupported assertions of error “do not merit appellate

consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

Accordingly, we do not consider this claim on appeal.

        Moreover, contrary to Brown’s contention, the identity of J.J.’s father was not at issue in

the proceedings. One month after J.J. entered foster care, Brown was named as the father.

CDSS communicated in writing with Brown as J.J.’s father, and he provided Jones’ name as a

potential relative placement. Brown acknowledged in court and to Raglan that J.J. was his son.

                                                    II.

        Appellant argues the evidence was insufficient to support the termination of his parental

rights. Pursuant to Code § 16.1-283(C)(1), a parent’s residual parental rights “of a child placed

in foster care . . . 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

                [t]he parent . . . ha[s], 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 . . . and to
                strengthen the parent-child relationship. Proof that the parent . . .
                ha[s] 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[.]

        J.J. was removed from the mother’s home because of dangerous living conditions.

Brown was then incarcerated, and remained in prison through the termination proceedings. At

the time of the termination hearing in the trial court, J.J. was five years old and had been in foster
                                                   -4-
care for twenty months. Brown had not seen J.J. for two years. Despite the efforts of CDSS to

involve Brown from prison, he did not communicate with CDSS regarding J.J. or help to plan for

the child’s future, other than provide Jones’ name as a potential relative placement. There was

no indication Brown had any type of bond with the child. On the other hand, J.J. had bonded

with his foster mother, who was interested in adopting him, and he was thriving in his foster

home.

        In determining what is in the best interests of a child, this Court has stated:

               a court must evaluate and consider many factors, including the age
               and physical and mental condition of the child or children; the age
               and physical and mental condition of the parents; the relationship
               existing between each parent and each child; the needs of the child
               or children; the role which each parent has played, and will play in
               the future, in the upbringing and care of the child or children; and
               such other factors as are necessary in determining the best interests
               of the child or children.

Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).

        Clear and convincing evidence proved that termination of Brown’s parental rights was in

J.J.’s best interests. We recognize that “‘[t]he termination of [residual] parental rights is a grave,

drastic and irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App.

877, 883, 407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare of Richmond,

231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t 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 responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10

Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). 1



        1
         Brown maintains that terminating his parental rights absent a paternity test does not
promote stability and permanency in J.J.’s life because such a test could establish he is not J.J.’s
father. However, Brown would have no standing to challenge the trial court’s ruling on behalf of
an alleged father whose identity is not known. See generally Pearsall v. Virginia Racing
Comm’n, 26 Va. App. 376, 379, 494 S.E.2d 881, 879 (1998).
                                                -5-
       We find the evidence sufficient to support the trial court’s decision to terminate Brown’s

parental rights to J.J. pursuant to Code § 16.1-283(C)(1). Therefore, we need not consider any

challenge to the sufficiency of the evidence for a termination under Code § 16.1-283(B) and

§ 16.1-283(C)(2). See Fields, 46 Va. App. at 8, 614 S.E.2d at 659.

                                           Conclusion

       For the foregoing reasons, we affirm the termination of Brown’s parental rights.

                                                                                          Affirmed.




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