                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons ∗
Argued at Alexandria, Virginia


MARCUS STERGIOU
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0156-99-4               JUDGE ROSEMARIE ANNUNZIATA
                                               MARCH 21, 2000
FREDERICK COUNTY DEPARTMENT
 OF SOCIAL SERVICES


            FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                      John R. Prosser, Judge

          Mark A. Vann (Chasler and Bowman, P.L.C., on
          brief), for appellant.

          Beth M. Coyne (Fowler, Griffin, Coyne, Coyne
          & Patton, P.C., on brief), for appellee.


     Marcus Stergiou appeals the order of the Circuit Court of

Frederick County terminating his residual parental rights toward

his natural children, M.H. and J.P.   We find no error and affirm

the judgment of the lower court.

     On August 9, 1995, the Frederick County Department of

Social Services took custody of M.H. and J.P. after it was

contacted by their seventy-six-year-old maternal grandmother,

Bell Ann Parsons.   Parsons indicated that the children's mother,


     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Joeann Hawkins, had left the children with her on August 4, 1995

and that Hawkins had an alcohol and substance abuse problem.

Parsons also told Social Services that Stergiou was the father

of the children.    Social Services placed the children in

emergency foster care.   Stergiou was incarcerated in June, 1996

upon conviction for drug possession.    In July, 1998, the

juvenile and domestic relations district court terminated his

parental rights.    In a trial de novo, the Frederick County

Circuit Court on December 14, 1998, likewise ordered the

termination of Stergiou's residual parental rights.    Upon appeal

to this Court, Stergiou contends that the trial court's

termination of his residual parental rights is without evidence

to support it, noting, in particular, that long-term

incarceration, without more, is insufficient evidence to warrant

termination of parental rights.   We find Stergiou's appeal to be

without merit and affirm.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the

paramount consideration of a trial court is the child's best

interests."   Logan v. Fairfax Co. Dept. of Human Development, 13

Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Toombs v.

Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405,

407-08 (1982); Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d

794, 796 (1990)).   In making decisions concerning a child's


                                - 2 -
welfare, the court is vested with broad discretion to guard and

to foster a child's best interests.    See Logan, 13 Va. App. at

128, 409 S.E.2d at 463 (citing Farley, 9 Va. App. at 328, 387

S.E.2d at 795).   It follows that long-term incarceration does

not, per se, warrant the termination of parental rights.     But

incarceration is nevertheless a factor which may be considered

in deciding the question.   See Ferguson v. Stafford County Dept.

of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).

     In the instant case, the court found "by very clear and

convincing evidence" that the children had been neglected or

abused; that this neglect and abuse was a serious threat to

their lives, health, or development, and that it was not

reasonably likely that the conditions which resulted in the

neglect or abuse could be substantially corrected so as to allow

the children's safe return to the father within a reasonable

time; that the father, without good cause, did not respond to or

follow 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; that he, without

good cause, was unwilling or unable within a reasonable period

of time to remedy substantially the conditions that led to the

children's placement in foster care; and that he failed, without




                               - 3 -
good cause, to communicate with the children for a period of

twelve months. 1

     A trial court's decision, based upon an ore tenus hearing,

is entitled to great weight, and it will not be disturbed unless

it is plainly wrong or without evidence to support it.    See

Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719

(1996) (citing Venable v. Venable, 2 Va. App. 178, 186, 342

S.E.2d 646, 651 (1986)).   In reviewing the evidence on appeal,

the evidence and all reasonable inferences arising from it must

be cast in the light most favorable to the party prevailing

below, Social Services.    See Martin v. Pittsylvania County Dept.

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


     1
       The trial court's findings addressed the relevant
statutory factors which govern its decision in this case. Code
§ 16.1-283(B) provides that residual parental rights may be
terminated upon a showing by clear and convincing evidence that:

          It is not reasonably likely that the
          conditions which resulted in . . . neglect
          or abuse can be substantially corrected or
          eliminated so as to allow the child's return
          to his parent or parents within a reasonable
          period of time. . . . Proof of . . . the
          following shall constitute prima facie
          evidence of [such lack of reasonable
          likelihood]: The parent or parents have
          habitually abused or are addicted to
          intoxicating liquors, narcotics or other
          dangerous drugs to the extent that proper
          parental ability has been seriously impaired
          and the parent, without good cause, has not
          responded to or followed through with
          recommended and available treatment which
          could have improved the capacity for
          adequate parental functioning . . . .

                                - 4 -
The evidence, thus viewed, fully supports the decision of the

trial court and makes manifest that it did not rely solely on

the fact of Stergiou's incarceration in reaching its

conclusions.

     Stergiou had lived with Hawkins and the children

intermittently from roughly 1990 through 1993, the approximate

time when he moved from the home permanently.    M.H. was

approximately four years old at the time; J.P. just two.    Thus,

Stergiou had only lived together with Hawkins and the children

for about half the time since J.P.'s birth in 1992.    In April,

1995, Hawkins left her children in Stergiou's custody at his

residence in Manassas, Virginia. 2   He subsequently contacted the

Prince William County Department of Social Services and reported

that he lacked the means to care for the children and requested

that the department assume custody of M.H. and J.P., who were

then five and three years old, respectively.    The Department

responded and placed the children in foster care.    At the time,

Stergiou reportedly had a severe substance abuse problem and was

evading law enforcement, and the Department had no current

address for him.




     2
       In addition to M.H. and J.P., Hawkins also left in
appellant's custody her two elder children, whom she bore by the
late Michael Carroll Hawkins. Parental rights for those
children are not at issue in this appeal.


                               - 5 -
     Stergiou made no attempt to seek custody of the children

after they came into the custody of the Department.   Instead, on

November 25, 1995, he asked that blood tests be conducted to

determine paternity.   He agreed that no visitation with the

children would occur until the paternity testing was complete

and paternity established.   The testing was performed on January

2, 1996, and the results established appellant's paternity.     He

gave the Department and the court a mailing address for him in

Bethesda, Maryland at that time.

     Three months later, in March, 1996, appellant provided

Prince William County Department of Social Services with a

mailing address and telephone number in Manassas, Virginia.

When social workers attempted to phone him later in the month,

they found the number disconnected, however.   In addition,

Stergiou failed to submit a completed and notarized information

sheet authorizing the Department to conduct a home study at his

residence.

     The Prince William Department had no further contact with

appellant until a year later when, in March, 1997, social worker

Julie Deiter located him at the Prince William County jail,

where he was incarcerated for drug possession.   Deiter spoke to

Stergiou by telephone while he was incarcerated and learned that

he had been in jail since June, 1996 and that he anticipated

being released in December, 1997.   He had made no attempt to


                               - 6 -
contact Prince William social services following his

incarceration in June, 1996 and he stated there was no sense in

writing to his children during that time.    Deiter arranged an

appointment with Stergiou in December, 1997 to discuss his plans

for the children following his release.    However, when she

called the jail in December, 1997 to confirm her appointment

with him, she found he was then incarcerated in federal prison

serving a term of seven to eight years for arson and use of a

firearm in the commission of a felony.    These convictions arose

from an arson committed in late 1993 or 1994, at approximately

the same time Stergiou was visiting and attempting to file for

custody of M.H. and J.P. from Hawkins.    He acknowledged that

M.H. would be 15 and J.P. would be nearly 12 at the time of his

possible release date, 2005.

        The evidence respecting the status and condition of the

children established that M.H. and J.P. each displayed emotional

and developmental difficulties upon their entry into foster

care.    As of November 23, 1998, the date the Frederick County

Department of Social Services filed for termination of parental

rights, the children had been in the same foster care placement

for over two years and had attended counseling for the same

period with Don Wilhelm, L.C.S.W., a therapist with United

Methodist Family Services.    When the children began therapy,

they manifested problems with trust, difficulty sleeping,


                                 - 7 -
aggressive behavior and, in J.P.'s case particularly,

oppositional behavior.    The children have demonstrated notable

improvement in their emotional and psychological development,

and Wilhelm has opined that their continued well-being requires

that they have no further contact with any member of their

biological family.

        In making decisions concerning a child's welfare, trial

courts are vested with broad discretion to guard and to foster

the child's best interests.     See Logan, 13 Va. App. at 128, 409

S.E.2d at 463 (citing Farley, 9 Va. App. at 328, 387 S.E.2d at

795).    The child's best interest is the paramount consideration

of a trial court in such a case.     See id.   The decision of the

trial judge is supported by the evidence required to meet the

statutory factors governing the termination of residual parental

rights, and the decision reflects and serves the best interests

of the children.    It is accordingly affirmed.

                                                           Affirmed.




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