                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


ANTONIO MILLER, SR.
                                            MEMORANDUM OPINION *
v.   Record No. 0320-00-2                       PER CURIAM
                                               JULY 25, 2000
RICHMOND DEPARTMENT OF SOCIAL SERVICES


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Randall G. Johnson, Judge

            (Robert D. Jacobs; Morrissey, Hershner &
            Jacobs, on brief), for appellant.

            (Kate O'Leary, Assistant City Attorney;
            Michael R. Talbert, Guardian ad litem for
            the minor children, on brief), for appellee.


     Antonio Miller, Sr. appeals from a decision terminating his

parental rights of his two sons, Antonio Miller, Jr. and Andre L.

Miller.    The trial court found that the Richmond Department of

Social Services (RDSS) presented clear and convincing evidence

establishing the statutory requirements set out in Code

§ 16.1-283(C)(1) and (2) for termination of Miller's parental

rights.    Miller argues the trial court erred in explicitly or

implicitly finding that:    (1) RDSS proved by clear and convincing

evidence that Miller, without good cause, failed to maintain

contact with and to provide or substantially plan for the future

of the children for a period of six months after the children's


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
placement in foster care; (2) RDSS proved by clear and convincing

evidence that Miller was unable or unwilling within a reasonable

period of time not to exceed twelve months from the date his

children were placed in foster care to remedy substantially the

conditions which led to or required continuation of the children's

foster care placement; (3) it is in the best interests of the

children that Miller's parental rights be terminated; (4) RDSS

proved by clear and convincing evidence that RDSS used reasonable

and appropriate efforts to communicate with Miller and to

strengthen the parent-child relationships; and (5) RDSS proved by

clear and convincing evidence that RDSS used reasonable and

appropriate efforts to assist Miller to remedy substantially the

conditions which led to or required continuation of the children's

foster care placement.   We conclude the appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

                             BACKGROUND

     Antonio Miller, Jr. was born on August 15, 1990, and Andre

Miller was born on September 19, 1992.    RDSS received numerous

complaints from Miller's neighbors that the boys were often

hungry, dirty, and unsupervised.   Custody of the children was

granted to RDSS on November 14, 1994, and the boys were residing

in Miller's home when they were removed.    At that time, Miller was

ordered to take parenting classes, enter substance abuse



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treatment, obtain adequate housing, obtain employment and take a

CPR class.

       Miller attended one session of a parenting class in 1996.    He

entered at least three drug treatment programs but he did not

complete any of the programs in the past five years.   Over the

years, RDSS referred Miller to certain parenting classes, numerous

drug treatment programs, and counseling opportunities.   RDSS

offered visitation with the children, transportation

reimbursement, and mediation services.   Over recent years, RDSS

had made twenty-six appointments with Miller, and he only kept

one.

       Miller also failed to obtain adequate housing, and, for the

past two to three years, he has lived with his girlfriend and her

two teen-aged daughters in a two-bedroom apartment.    Miller had no

visitation with the boys in 1994.   In 1995 and 1996 he visited the

children three times each year.   He had two visits with the boys

from July 1997 through April 13, 1999.   Miller visited the boys

twice from May 1999 through December 14, 1999.

       The children have been with the foster parent since November

30, 1994, and the foster parent is a prospective adoptive parent.

The social care worker testified the boys are doing "very well" in

the foster home, and although Andre has "special needs," the needs

are "being addressed."   Andre has attention deficit disorder, has

been diagnosed as emotionally disturbed, and attends special



                                - 3 -
education classes.    The boys have a close bond with their foster

mother, consider her as their mother, and they call her "Mom."

     Miller testified he is planning to buy a house, but he could

not identify the location of the house or the name of a realtor

with whom he was working to purchase the house.   Miller has also

been employed as a mover for about fifteen years.    He stated his

job often requires him to travel out of town, making regular

visitation with the children difficult.   Miller disputed that he

had missed twenty-six appointments with RDSS.   He also disputed

the number of times the social workers stated he has visited the

boys in recent years.   He testified he has visited the children

about fifty times over the past five years.   He also stated he

sees his other three children often, although none of them live

with him.

     Miller testified that he had left messages at RDSS, and no

one has returned his calls.   Miller stated he attended an

inpatient drug-counseling program for four months.   He then

completed another forty-five day program, but did not complete the

after-care program.   He stated he no longer uses illegal drugs and

has not used drugs for two years.   Miller admitted he had never

contacted the children's guardian ad litem when he experienced

difficulty in arranging visitation with the boys.

                               ANALYSIS

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

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consideration of a trial court is the child's best interests."

Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,

409 S.E.2d 460, 463 (1991).

           "In matters of a child's welfare, trial
           courts are vested with broad discretion in
           making the decisions necessary to guard and
           to foster a child's best interests." 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. (citations omitted).

     The trial court found that RDSS presented clear and

convincing evidence meeting the statutory requirements set out in

Code § 16.1-283(C)(1) and (2).    "Code § 16.1-283 embodies 'the

statutory scheme for the . . . termination of residual parental

rights in this Commonwealth' [which] . . . 'provides detailed

procedures designed to protect the rights of the parents and their

child,' balancing their interests while seeking to preserve the

family."   Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540

(1995) (citations omitted).

     Code § 16.1-283(C)(1) provides, in pertinent part, that the

residual parental rights of a parent of a child placed in foster

care may be terminated if the court finds by clear and convincing

evidence that it is in the best interests of the child and that

           [t]he parent . . . [has], 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

                                 - 5 -
          and appropriate efforts of social, medical,
          mental health or other rehabilitative
          agencies to communicate with the parent or
          parents and to strengthen the parent-child
          relationship. Proof that the parent . . .
          [has] 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.

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

parent's parental rights may be terminated if the court finds by

clear and convincing evidence that it is in the best interests of

the child and that

          [t]he parent . . ., without good cause,
          [has] 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
          social, medical, mental health or other
          rehabilitative agencies to such end. Proof
          that the parent . . ., without good cause,
          [has] 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
          . . . 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.


                              - 6 -
        Miller contends the trial court erred in finding RDSS proved

by clear and convincing evidence that Miller, without good cause,

failed to maintain contact with and to provide or substantially

plan for the future of his children for a period of six months

after their placement in foster care.    He argues he has maintained

contact with the boys for the five years they have been in the

custody of RDSS.    Miller also contends he has good cause for not

visiting the children more often because his job requires him to

travel.    He asserts he has remedied substantially the conditions

which led to the foster care placement.

        We find substantial evidence in the record supporting the

trial court's finding that Miller has made "some contact" with the

children, but he has not made sufficient contact to comply with

the statute, and he has failed to remedy substantially the

conditions which led to their foster care placement.    The trial

court did not accept Miller's testimony that he had visited the

boys fifty times over the past five years.    The trial court

accepted as true the evidence presented by RDSS that Miller only

sporadically visited the boys in the past five years.    The boys

were two and four years old when placed in foster care, and Miller

had not maintained a relationship with them for the past five

years.

        The trial court was also concerned that Miller indicated at

the December 1999 hearing that he had not visited the boys since

June.    The trial court also questioned Miller's testimony that he

                                 - 7 -
was in the process of buying a house, but he could provide no

details concerning the purchase.    Evidence was also presented that

Miller failed to attend twenty-six scheduled mediation meetings

with RDSS concerning the boys.

     Miller also argues RDSS failed to use reasonable and

appropriate efforts to assist him to remedy the conditions which

led to the foster care placement.    RDSS instructed Miller to

attend parenting classes and substance abuse counseling.    The

evidence proved he failed to complete either program.     In 1994,

RDSS advised Miller to obtain adequate housing for the boys and he

has not yet moved to a larger residence.    These facts support the

trial court's finding that Miller has failed to remedy

substantially the conditions which led to the foster care

placement.

     Furthermore, the evidence proved RDSS had made reasonable and

appropriate efforts to communicate with Miller and strengthen his

relationship with the boys.   RDSS referred Miller to numerous

parenting and substance abuse programs.    RDSS offered

transportation reimbursement for visitation and mediation services

to explore long term solutions to the situation.   Yet Miller

attended only one of the twenty-six scheduled mediation meetings.

     Therefore, the record demonstrates that appropriate services

were offered by RDSS but Miller made little or no effort to

respond to those offers.   "The law does not require the [RDSS] to

force its services upon an unwilling or disinterested parent."

                                 - 8 -
Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192

(1986).    Thus, the evidence established that, despite the passage

of time, Miller had not yet resolved the problems that initially

led to the children's foster care placement.

        Miller argues the evidence failed to support a finding that

terminating his parental rights is in the best interests of the

children.    The children have been in the same foster home since

November 1994, and the foster parent is the prospective adoptive

parent.    The boys consider their foster mother as their own

mother, and the evidence indicated they had a good relationship

with her.    The foster mother is also addressing the special needs

of Andre.    The foster mother testified that when Miller has had

visitation with the boys, he has on occasion returned the boys

late, dirty and sometimes without clothing she had packed for

them.

        The children have been in foster care for five years, over

half of their lives, while Miller has been unable or unwilling to

cooperate with the agencies seeking to assist him.    He has not

demonstrated that he is willing or able to remedy within twelve

months the conditions that led to the boys being placed in foster

care or shown good cause for his failure or inability to do so.

"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 responsibilities."    Kaywood



                                 - 9 -
v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535, 540, 394

S.E.2d 492, 495 (1990).

     The record supports the trial court's finding that RDSS

presented clear and convincing evidence satisfying the statutory

requirements of Code § 16.1-283 and establishing that termination

of Miller's parental rights was in the children's best interests.

Accordingly, we summarily affirm the decision.

                                                        Affirmed.




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