                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED



              JOHN JUNIOR MARTINEZ, SR.
                                                                                   MEMORANDUM OPINION*
              v.     Record No. 0739-13-1                                               PER CURIAM
                                                                                     SEPTEMBER 24, 2013
              CITY OF PORTSMOUTH
               DEPARTMENT OF SOCIAL SERVICES


                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                            Johnny E. Morrison, Judge1

                               (Barrett R. Richardson; Richardson and Rosenberg, LLC, on brief),
                               for appellant.

                               (George M. Willson, City Attorney; Shelia C. Riddick, Assistant
                               City Attorney; Alvin M. Whitley, Guardian ad litem for the minor
                               child, on brief), for appellee.


                     John Junior Martinez, Sr., father, appeals a circuit court order terminating his residual

              parental rights to his child pursuant to Code § 16.1-283(C)(1) and (2). On appeal, he argues the

              trial court erred by terminating his parental rights where the Portsmouth Department of Social

              Services (PDSS) failed to prove by clear and convincing evidence he was responsible for the

              conditions leading to the child’s placement in foster care and where he substantially complied

              with the services required of him. He also contends the trial court erred by approving a

              permanency plan of adoption where PDSS did not prove he failed to complete the services




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Judge Cales presided over the March 11, 2013 hearing and ruled that father’s parental
              rights were terminated and approved the permanency planning goal of adoption. The final orders
              in the case were signed by Judge Johnny E. Morrison.
recommended. Upon reviewing the record and briefs of the parties, we conclude this appeal is

without merit. Accordingly, we affirm the decision of the trial court. See Rule 5A:27.

                                             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 Cnty. Dep’t of Human

Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

        Felicia Brewer, a social worker for PDSS, testified that in April 2010, father’s six-year-old

child came into the custody and care of PDSS based on a complaint of physical abuse. At the time

of the removal, father stated he was “about to lose it at any time.” Brewer testified that as they

investigated the matter, father was “very irate.” At the time of the removal, the child was living

with father, father’s mother and her husband, and father’s girlfriend. In July 2010, the juvenile and

domestic relations district court adjudicated the child as abused or neglected within the meaning of

Code § 16.1-228.

        Michelle Sherrod, a senior social worker with PDSS, testified she became involved in the

case in September 2011. She stated PDSS recommended that father complete a parenting capacity

evaluation, parenting classes, domestic violence classes, anger management, and therapy with an

anger management component. PDSS provided father with a listing of housing information and job

referral services.

        Although the initial goal of the 2010 foster care plan was to return the child to father’s

custody, the goal was changed to relative placement in 2011 based on father’s need for additional,

“more intense therapy.” Sherrod stated that when PDSS offered father the additional therapy, he

became upset and he stated he had done everything that was asked of him. Father refused to

participate in the additional therapy. Father completed the parenting classes, the parenting capacity




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evaluation, and the domestic violence classes. However, Sherrod opined that father did not benefit

from the services he had engaged in.

        Sherrod also testified concerning the investigation of possible relative placement of the

child. Two of mother’s relatives did not follow through with the process, and another person was

not approved for placement by PDSS. The goal of the foster care plan was changed to adoption.

        Sherrod testified PDSS arranged for two visitations between father, the child, and their

therapists, but father failed to attend either visitation, stating he had work obligations. In addition,

in 2012 father was convicted of an offense involving domestic violence. Also during this time

period, father was convicted of possession with intent to distribute marijuana and driving while

under the influence. He has had at least five addresses and eight jobs since the child has been in

foster care. Father asked Sherrod about the welfare of the child on only one occasion.

        Sherrod testified that adoption would serve the child’s best interests because he had been in

foster care for almost three years, he had been with the same family since 2011, he would be free

from chaos, inconsistency, and abuse, and he is stable with the current foster care family where he is

flourishing and progressing. Sherrod stated the child has been diagnosed with attention and mood

disorders and he receives the appropriate medication for these conditions.

        Melvina Snead, the court-appointed special advocate, testified that her recommendations for

the custody of the child evolved over time from return to home to adoption based on the fact that

father had not benefitted from the services provided, “mainly anger management.” She also stated

father cursed at her, was “hostile all the time,” and blamed the agency for “everything that was

happening to him.” Father told Snead his therapist “did nothing.” Father also failed to maintain

stable housing and employment. Father was charged with trespassing at an apartment complex and

was barred from that complex for one year.




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         The child’s court-appointed special advocate testified the child has become more relaxed

over the years, is more focused, is flourishing in school, participates in sports, and is doing well with

the foster care family. She also testified father told her he was going to therapy “just to get it over

with.”

         Father testified he maintained employment, housing, and completed parenting classes and

domestic violence classes. He stated he participated in anger management classes and therapy.

Father testified he stopped attending therapy because of a lack of funding from PDSS. Father stated

he benefitted from the parenting capacity evaluation and learned effective techniques regarding

parenting. Father acknowledged that the last time he saw his son was in 2010. He also

acknowledged the child was removed from his custody due to allegations that he struck the child.

         Sherrod testified on rebuttal that PDSS notified father by letter that it would provide funding

for his continued therapy.

         The trial court terminated father’s parental rights and ruled PDSS “should proceed” with the

permanency plan. Father appealed the decisions to this Court.

                                                Analysis

         ‘“In matters of child welfare, trial courts are vested with broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Logan, 13 Va. App. at 128,

409 S.E.2d at 463 (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

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.” Peple v. Peple, 5 Va. App. 414,

422, 364 S.E.2d 232, 237 (1988).

         A court may terminate parental rights if it finds, based upon clear and convincing

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

                The parent or parents have, without good cause, failed to maintain
                continuing contact with and to provide or substantially plan for the
                                                  -4-
                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 or parents
                and to strengthen the parent-child relationship. Proof that the
                parent or parents have 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)(1).

        A court may also terminate parental rights if it finds, based upon clear and convincing

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

                The parent or parents, without good cause, have 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.

Code § 16.1-283(C)(2).

                [S]ubsection C termination decisions hinge not so much on the
                magnitude of the problem that created the original danger to the
                child, but on the demonstrated failure of the parent to make
                reasonable changes. Considerably more “retrospective in nature,”
                subsection C requires the court to determine whether the parent has
                been unwilling or unable to remedy the problems during the period
                in which he has been offered rehabilitation services.

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005)

(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580

S.E.2d 463, 466 (2003)).

        The trial court found that termination of father’s parental rights was in the best interests

of the child. The court further found that father “has made some attempts,” but is not capable of

“carrying through with these attempts.” The trial court noted that father did not participate in the

two opportunities he was given to have visitation with his son. Indeed, father had no contact

with the child since he was removed from father’s custody. Furthermore, father did not complete

                                                  -5-
the recommended therapy and he told a CASA worker that he attended therapy “just to get it

over with.” Father completed some of the services and programs recommended by PDSS, but he

failed to maintain continuing contact with and to provide or substantially plan for the future of

the child for more than six months after the child’s placement in foster care. See Code

§ 16.1-283(C)(1).

       “‘[P]ast actions and relationships over a meaningful period serve as good indicators of

what the future may be expected to hold.’” Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d

188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)).

       In addition, father did not demonstrate his ability “within a reasonable period of time . . . to

remedy substantially the conditions which led to or required continuation of the child’s foster

placement, notwithstanding the reasonable and appropriate efforts of [PDSS].” Code

§ 16.1-283(C)(2). Father did not maintain stable employment and housing. He still had

unresolved anger issues for which he stopped getting treatment, and he committed criminal

offenses while the child was in foster care.

               Virginia law recognizes the “maxim that, sometimes, the most
               reliable way to gauge a person’s future actions is to examine those
               of his past.” “As many courts have observed, one permissible
               ‘measure of a parent’s future potential is undoubtedly revealed in
               the parent’s past behavior with the child.’” “No one can divine
               with any assurance the future course of human events.
               Nevertheless, past actions and relationships over a meaningful
               period serve as good indicators of what the future may be expected
               to hold.”

Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770 (citations omitted).

       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).




                                                 -6-
       The child has been in foster care for almost three years and is thriving in school and with

the foster care family. The record fully supports the trial court’s finding that clear and

convincing evidence proved the best interests of the child would be served by terminating the

parental rights of father pursuant to Code § 16.1-283(C)(1) and 16.1-283(C)(2).

       Father also contends the trial court erred in approving the change in goal of the foster

care plan to adoption. “A preponderance-of-the-evidence standard governs judicial review of the

foster care plan recommendations, while the more stringent clear-and-convincing-evidence

standard applies to the ultimate termination decision.” Najera v. Chesapeake Div. of Soc. Servs.,

48 Va. App. 237, 240, 629 S.E.2d 721, 722 (2006). It logically follows, therefore, that our

conclusion that the trial court did not err in terminating father’s parental rights under the more

stringent clear-and-convincing-evidence standard set forth in Code § 16.1-283(C) “necessarily

subsumes” this aspect of father’s appeal. Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3.

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

                                                                                             Affirmed.




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