                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED



              MICHAEL SEAN ESKRIDGE
                                                                                MEMORANDUM OPINION*
              v.     Record No. 1676-14-3                                           PER CURIAM
                                                                                    MARCH 3, 2015
              WASHINGTON COUNTY DEPARTMENT
               OF SOCIAL SERVICES


                                 FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                                               C. Randall Lowe, Judge

                               (Barry Lynn Proctor, on brief), for appellant.

                               (Edward G. Stout; Kimberly L. Mumpower, Guardian ad litem for
                               the infant child; Curcio & Stout, PC; HPS Legal Group, on brief), for
                               appellee.


                     Michael Sean Eskridge appeals the trial court’s order terminating his parental rights to his

              child pursuant to Code § 16.1-283(C)(1) and (2). Eskridge argues the trial court erred because the

              evidence did not prove that he was responsible for the conditions leading to his child being placed

              into foster care and that he was not provided any remedial services by the Washington County

              Department of Social Services (DSS) while he was incarcerated.1 Upon reviewing the record and

              briefs of the parties, we conclude 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
                       Eskridge also assigns error to the trial court’s approval of a permanency plan of adoption
              when DSS did not provide remedial services to him. “Our decision to affirm the termination order
              necessarily subsumes [the circuit court’s order approving adoption as the goal in the foster care
              plan] aspect of his appeal because a preponderance-of-the-evidence standard governs judicial
              modifications of foster care plans.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,
              265 n.3, 616 S.E.2d 765, 769 n.3 (2005).
        The trial judge’s findings, “‘when based on evidence heard ore tenus, will not be

disturbed on appeal unless plainly wrong or without evidence to support [them].’” Logan v.

Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting

Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). We view the evidence in the

light most favorable to the prevailing party below and grant to it all reasonable inferences fairly

deducible therefrom. Id.

        So viewed, the evidence proved that B.E. was born on September 9, 2011, and, when he was

six weeks old, DSS became involved with the family due to concerns about drug abuse and

domestic violence. B.E. lived with his mother, maternal grandmother, and a half-brother.2 On

September 18, 2011, Eskridge was arrested for drug manufacturing and distribution. In December

2011, Eskridge was released on bond, but within twelve days, his bond was revoked based on his

possession of illegal drugs. While Eskridge remained incarcerated, B.E.’s family continued to

experience turmoil and DSS took custody of B.E. on December 5, 2012. Eskridge remained

incarcerated in the regional jail until July 16, 2014. B.E.’s mother did not contest the termination of

her parental rights to either B.E. or B.E.’s half-brother.

        Ashley Tolliver, a family services specialist with DSS, testified that while Eskridge was

incarcerated, he had no contact with B.E. after B.E. came into the care of DSS. Tolliver informed

Eskridge how to make contact with her, and she sent a “relative form” to him. Eskridge returned

the form, which provided names of family members for possible placement of B.E. Tolliver sent

certified letters to the family members, but they did not respond. Tolliver testified that during the

time Eskridge was incarcerated, he did not send any messages or cards to B.E. or have any contact

with B.E.




        2
            Eskridge is not the father of B.E.’s half-brother.
                                                   -2-
       When B.E. came into the custody of DSS, he received early intervention services and made

some improvements, but he remains behind both physically and developmentally. B.E. is attached

to his foster family, who also has custody of B.E.’s half-brother. B.E.’s guardian ad litem testified

that B.E. and his half-brother are very fragile children and both boys would “absolutely crumble” if

they were separated.

       Eskridge testified that, while incarcerated, his father or stepmother brought B.E. to the jail

approximately seven times to visit and the last visit was in 2011, which was prior to DSS taking

custody of B.E. Eskridge testified he wrote letters to B.E., which he sent to B.E.’s mother, and he

wrote a letter to DSS regarding contact with B.E.3 Eskridge testified that he had not taken any

parenting or drug rehabilitation classes while incarcerated because they were not offered while the

jail was being renovated.

       At the time of the termination hearing, Eskridge recently had been released from

incarceration and testified that he was living in a house owned by his father and would work

part-time for his father.4 Eskridge acknowledged that he did not pay child support for his two other

older children.

       Eskridge further acknowledged that he had been incarcerated for most of B.E.’s life, that

B.E. would not recognize him, and that he agreed that it would be devastating to B.E. to separate

him from his half-brother. Eskridge also confirmed the nature of his prior felony convictions, which

included illegal drug distribution, weapon offenses, and misdemeanor convictions. Eskridge


       3
          At the termination hearing, B.E.’s guardian ad litem stated that she never heard about
the visits or letters until Eskridge’s testimony, that the visits were not arranged by DSS, and that
the letters to B.E. were not sent through DSS. According to DSS, Eskridge sent the letter to DSS
on May 19, 2013.
       4
          The termination hearing was held on July 9, 2014, while Eskridge remained
incarcerated. However, because his release date was set for July 16, 2014, the trial judge
continued the hearing to July 18, 2014, to provide Eskridge an opportunity to present evidence
“as to future events.”
                                               -3-
conceded he had a guardian ad litem for the termination proceeding due to his incarceration and that

he did not ask the guardian ad litem for help in setting up contact with B.E.

           In terminating Eskridge’s parental rights under Code § 16.1-283(C)(1) and (2), the trial

judge acknowledged that Eskridge sent a letter to DSS on May 19, 2013, inquiring about B.E., but

also noted that the letter did not request help from DSS or propose any plan for providing for B.E.

upon Eskridge’s release from incarceration in July 2014. The trial judge found that Eskridge

admitted that he had not bonded with B.E., that B.E. would not recognize him, and that it would be

devastating to B.E. and his half-brother to separate them. The trial judge also found that, shortly

after B.E.’s birth, Eskridge was unable to provide for B.E. because of his drug use and arrests for

felony offenses. The judge further found that, after Eskridge was released on bond, he continued to

use drugs, resulting in his bond being revoked within twelve days. The trial judge stated that, while

Eskridge was out on bond, he could have made arrangements for the care of B.E., but instead he

used drugs and violated the terms of his bond, thereby knowingly subjecting himself to a longer

period of incarceration. The trial judge did not find credible Eskridge’s testimony that no parenting

or drug rehabilitation classes were offered through the jail during the two-and-a-half years Eskridge

was incarcerated. The trial judge stated Eskridge had a “tremendous criminal history,” and he found

that, despite previously receiving treatment at a diversion center, Eskridge continued to use drugs

and commit criminal offenses. The trial judge concluded that Eskridge’s past history demonstrated

that he would not place the interests of B.E. above his own. The trial judge also found that B.E. was

in a stable loving environment and that separating B.E. from his half-brother would be devastating

to B.E..

           Eskridge argues his criminal conviction standing alone was insufficient to terminate his

rights and that DSS failed to provide appropriate services to him.




                                                   -4-
       Pursuant to Code § 16.1-283(C)(1), a trial court may terminate the rights of a parent to a

child upon clear and convincing evidence that the parent,

               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[.]

       When considering termination of parental rights, “the paramount consideration of a trial

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

       We agree that Eskridge’s incarceration, standing alone, is not sufficient to support the

trial court’s termination of his parental rights, but “it is a valid and proper circumstance which,

when combined with other evidence concerning the parent/child relationship, can support [the]

court’s finding that the best interests of the child will be served by termination.” Ferguson v.

Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). Moreover,

Code § 16.1-283(C)(1) contains no excuse for a parent’s failure to maintain continuing contact

and to substantially plan for the future of the child.

       This Court addressed whether services must be offered to an incarcerated parent in

Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575 (2004).

There, we stated, “as long as he was incarcerated, the Department would have had no avenue

available to offer [the father] services aimed at assisting him in regaining custody of the child.”

Id. at 164, 590 S.E.2d at 583. “‘Reasonable and appropriate’ efforts can only be judged with

reference to the circumstances of a particular case. Thus, a court must determine what

constitutes reasonable and appropriate efforts given the facts before the court.” Ferguson, 14

Va. App. at 338, 417 S.E.2d at 4.
                                                 -5-
        Notably, Eskridge was not incarcerated when B.E. was born. Instead of providing for his

newborn child, Eskridge chose to use drugs, commit felony offenses, and was arrested as a

result. While out on bond, instead of taking care of B.E. and making plans for B.E. in case of

incarceration, Eskridge chose to continue using drugs and committing criminal offenses, and his

bond was soon revoked. Although Eskridge returned a form to DSS providing the names of

possible family members to care for B.E., he made no further contact with DSS until sending a

letter in May 2013, which was more than six months after DSS took custody of B.E. In the

letter, Eskridge did not request help from DSS or propose any plan for providing for B.E. upon his

release from incarceration in July 2014. Eskridge also did not seek help from his guardian ad litem,

who was appointed to assist Eskridge due to his incarceration. Eskridge made no attempts to

contact B.E. through DSS or to write B.E. letters after DSS took custody of him. “‘[P]ast actions

and relationships over a meaningful period serve as good indicators of what the future may be

expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 695-96, 492 S.E.2d 464, 467 (1997)

(quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 194 (1990)). Furthermore, “[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).

        There was sufficient evidence supporting the trial judge’s decision that Eskridge failed to

maintain contact or substantially plan for the future of B.E. for a period of six months after B.E.

was placed in foster care and in terminating Eskridge’s parental rights under Code

§ 16.1-283(C)(1).

        Because we conclude the trial court’s termination of Eskridge’s parental rights was

warranted under Code § 16.1-283(C)(1), we need not decide if the termination also was

warranted under Code § 16.1-283(C)(2). When a trial court’s judgment is made on alternative

                                                  -6-
grounds, we need consider only whether any one of the alternatives is sufficient to sustain the

judgment of the trial court and, if we so find, need not address the other grounds. See Fields v.

Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005) (termination

of parental rights upheld under one subsection of Code § 16.1-283 forecloses need to consider

termination under alternative subsections). Thus, we need not address Eskridge’s contention that

no evidence proved that he was responsible for the conditions leading to the child’s removal, a

requirement only under Code § 16.1-283(C)(2).

       For the reasons stated above, we summarily affirm the decision terminating Eskridge’s

parental rights. See Rule 5A:27.

                                                                                         Affirmed.




                                               -7-
