                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Willis


DIANNA ROWAN FEATHERSTONE
                                                                  MEMORANDUM OPINION*
v.     Record No. 2151-03-3                                           PER CURIAM
                                                                      MAY 25, 2004
DIVISION OF SOCIAL SERVICES OF
THE CITY OF DANVILLE


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 Charles J. Strauss, Judge

                 (Larry Gott, on brief), for appellant.

                 (W. Clarke Whitfield, Jr., Interim City Attorney, on brief), for
                 appellee.

                 No brief for the Guardian ad litem for the infant child.


       Dianna Rowan Featherstone appeals a decision of the trial court terminating her parental

rights to her son (the child) pursuant to Code § 16.1-283(C)(2). Appellant contends the evidence

failed to clearly and convincingly establish that she was unable or unwilling to remedy the

conditions which caused placement of the child with the Danville Division of Social Services

(DSS). Appellant also contends that DSS failed to offer reasonable and appropriate efforts to assist

her in ending the conditions. Upon reviewing the record and briefs of the parties, we conclude that

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.
                                         BACKGROUND

       We view the evidence in the light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).

       So viewed, the evidence established that in 2000, DSS received a complaint alleging that

appellant left her two daughters home alone and had intercourse in front of them. The two girls

were removed from the home while appellant was pregnant with the child. Pursuant to a March

2000 protective order, appellant was ordered to take substance abuse classes. In April 2000,

appellant was having problems with the Housing Authority, and Kelly Bailey, a social worker,

transported appellant to the Housing Authority to obtain a new apartment. DSS also purchased

food for appellant in April 2000. The child was born on May 23, 2000, and Bailey took diapers

and clothing to the hospital for him. In June 2000, DSS provided money for appellant’s two

older daughters to attend the Salvation Army summer camp. Appellant was also having a

problem paying her utilities, and DSS set up a payment arrangement with the utility department.

In July 2000, DSS requested help from the Salvation Army and Goodwill for a baby bed, baby

clothes and other household items. In October 2000, appellant completed the parenting classes

as required by the protective order of March 2000. In December 2000, DSS purchased items for

appellant’s two older daughters, and in January 2001, DSS purchased diapers, Pedialyte and

medications for the child.

       From March 2000 through April 2001, eight substance abuse tests were offered to

appellant. Appellant refused three tests, but took five tests. Appellant tested positive for cocaine

on two of the tests, she tested negative on one test and the results were inconclusive on two tests.

The first positive test result was on January 3, 2001, and the second positive test occurred on

March 2, 2001. The positive drug tests violated the protective order of March 2000.

                                                -2-
       On April 5, 2001, DSS received a complaint from an apartment manager that the child

was left alone in an apartment. DSS investigated the complaint and classified it as a level one

physical neglect/high risk. On May 3, 2001, DSS received a complaint that the child was being

left unsupervised and had burned his arm. It was also reported that the child had gotten outside

his residence on several occasions and gotten his head stuck in the porch railings. It was also

reported that appellant had been seen physically dragging the child across the yard and cursing

him. DSS investigated these complaints and classified them as level two physical neglect/high

risk. As a result of these complaints, a social worker helped appellant obtain a reissued Social

Security card, file for disability, and enroll with WIC. The social worker also transported

appellant to the Health Department and helped her enroll in substance abuse classes, which were

again ordered by the court.

       DSS began the process for a preliminary removal of the child, but on September 4, 2001,

he was removed on an emergency basis due to appellant’s arrest for criminal charges. The only

person left to care for the child was appellant’s husband, a convicted sex offender. When asked

by the social worker why she would allow her husband to be alone with the child, appellant

stated she “just didn’t think anything of it.” Appellant knew her husband for one month prior to

marrying him in August 2001.

       The child was seventeen months old when he came into foster care. He had severe

temper tantrums, would bite himself, and kick and attempt to bite other persons trying to control

him. After several evaluations, the child was diagnosed with autism, spectrum disorder and

delays of speech and language development. Since being in foster care, the child has made

improvements in his speech and language. At the start of the child’s speech and language

therapy, he could only speak two words together. At the time of the termination hearing on June




                                               -3-
10, 2003, the child could speak in four to five word sentences and could carry on a conversation.

The child’s behavior had also improved.

       Appellant was incarcerated in a diversion center and was scheduled for release in January

2003. On September 22, 2002, the court held a foster care hearing in which DSS asked the court

to approve the goal of returning the child to home. The court did not approve the plan and soon

after the hearing, appellant absconded from the diversion center, which resulted in a revocation

of a previously suspended sentence.

       Deborah Fitzgerald, a foster care worker, testified she had concerns with appellant’s ability

to take care of the child due to her past impulsiveness and lack of good judgment. Fitzgerald

testified she had exhausted all options of placing the child with a relative. Appellant told Fitzgerald

that her mother lives “somewhere in Texas,” and appellant never provided Fitzgerald with names of

other relatives. DSS has never been able to identify the child’s father.

                                             ANALYSIS

       Code § 16.1-283(C)(2) requires proof, by clear and convincing evidence that (a) the

termination is in the best interests of the child, (b) “reasonable and appropriate” services have

been offered to help the parent “remedy substantially the conditions which led to or required

continuation of the child’s foster care placement,” and, (c) despite those services, the parent has

failed, “without good cause,” to remedy those conditions “within a reasonable amount of time

not to exceed twelve months from the date the child was placed in foster care.” Because

“‘[r]easonable and appropriate’ efforts can only be judged with reference to the circumstances of

a particular case,” Ferguson v. Stafford Dep’t of Soc. 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 (citation

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

                                                 -4-
disturbed on appeal, unless plainly wrong or without evidence to support it.’” Logan, 13

Va. App. at 128, 409 S.E.2d at 463 (citation omitted).

       Appellant argues that DSS failed to provide reasonable and appropriate services to assist

her. The record reveals, however, that DSS offered her extensive opportunities and services with

housing, utilities, medical supplies, social services, substance abuse counseling, parenting

classes, clothing and other household items.

       At the conclusion of the hearing, the trial judge found:

               [T]he State has had to assist you, they’ve offered you programs,
               they’ve offered you money, they’ve offered you clothes, they’ve
               offered you baby supplies, they’ve taken care of your utilities for
               you, they’ve done all these things to try to get you to the point
               where you can do what you need to do as a parent, and you haven’t
               done it. And the child has suffered as a result of it.

Based upon the circumstances of this case, the trial judge did not err in determining that DSS

provided reasonable and appropriate services to appellant.

       Appellant also argues the evidence was not clear and convincing that she was unwilling

or unable to remedy the conditions leading to the placement of the child in foster care. Again,

we do not agree. Despite the efforts of DSS, appellant neglected the children, tested positive for

cocaine, was arrested, and absconded from the diversion center. Appellant was still incarcerated

at the time of the termination hearing.

       Upon entry into foster care, the child was diagnosed with autism, spectrum disorder and

delays of speech and language development. The child also had severe temper tantrums. Since

being in foster care, the child has made improvements in his speech and language and his

behavior has also improved. “It 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 [or

her] responsibilities.” Kaywood v. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,

495 (1990).
                                                -5-
       The record supports the trial court’s finding that DSS presented clear and convincing

evidence satisfying the statutory requirements of Code § 16.1-283(C)(2) and establishing that the

termination of appellant’s residual parental rights was in the child’s best interest.

       Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

                                                                                        Affirmed.




                                                 -6-
