                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


SHIRLEY MALAVE
                                         MEMORANDUM OPINION * BY
v.   Record No. 2708-98-4              JUDGE JAMES W. BENTON, JR.
                                            OCTOBER 19, 1999
FAIRFAX COUNTY DEPARTMENT
 OF FAMILY SERVICES


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Stanley P. Klein, Judge

          Elizabeth D. Teare (Surovell, Jackson,
          Colten & Dugan, P.C., on briefs), for
          appellant.

          Darrell D. Jackson, Assistant County Attorney
          (David P. Bobzien, County Attorney; Robert
          Lyndon Howell, Deputy County Attorney;
          Dennis R. Bates, Senior Assistant County
          Attorney, on brief), for appellee.

          Ronald C. Zabel, Guardian ad litem, for the
          minor child.


     Shirley Malave appeals from a decision terminating her

parental rights.   Malave contends the trial judge erred by

finding that the Fairfax County Department of Family Services

presented clear and convincing evidence (1) that she failed,

without good cause, to maintain contact with her child and plan

for his future for six months after his placement in foster

care; (2) that she failed, without good cause, to remedy


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
substantially within twelve months the problems leading to the

child's placement in foster care; (3) that it was not reasonably

likely the conditions which led to placing the child in foster

care could be substantially corrected to allow his safe return

within a reasonable period of time; and (4) that the Department

adequately investigated placing the child with relatives.   We

affirm the decision.

                              I.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the

paramount consideration of a trial [judge] is the child's best

interests."   Logan v. Fairfax County Dep't of Human Development,

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

following principles guide our review.

          "In matters of a child's welfare, trial
          [judges] are vested with broad discretion in
          making the decisions necessary to guard and
          to foster a child's best interests." The
          trial [judge'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).

     "Code § 16.1-283 embodies 'the statutory scheme for the

. . . termination of residual parental rights in this

Commonwealth' . . . [and] '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.


                               - 2 -
Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)

(citations omitted).   Applying the provisions of that statute,

the trial judge ruled that the Department presented clear and

convincing evidence sufficient to terminate Malave's parental

rights under Code § 16.1-283, subsections (B)(1), (B)(2), (C)(1)

and (C)(2).   Code § 16.1-283(B)(1) and (2) provide, in pertinent

part, that the parental rights of a parent of a child placed in

foster care, after a judicial finding of neglect or abuse, may

be terminated if the trial judge finds clear and convincing

evidence of the following:

          1. The neglect or abuse suffered by such
          child presented a serious and substantial
          threat to [the child's] life, health or
          development; and

          2. It is not reasonably likely that the
          conditions which resulted in such neglect or
          abuse can be substantially corrected or
          eliminated so as to allow the child's safe
          return to [the] parent or parents within a
          reasonable period of time. In making this
          determination, the court shall take into
          consideration the efforts made to
          rehabilitate the parent or parents by any
          public or private social, medical, mental
          health or other rehabilitative agencies
          prior to the child's initial placement in
          foster care.

Prima facie evidence of the conditions set out in Code

§ 16.1-283(B)(2) includes proof that the parent habitually

abused 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


                               - 3 -
available treatment which could have improved the capacity for

adequate parental functioning;" or that the parent, without good

cause, failed to "respon[d] to or follo[w] 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 of the child."

     Code § 16.1-283(C)(1) and (2) provide that the parental

rights of a parent whose child is in foster care may be

terminated if the trial judge finds by clear and convincing

evidence that the best interests of the child are so served and

that the following circumstances exist:

          1. The parent . . ., without good cause,
          [has] 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 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; or

          2. The parent . . ., without good cause,
          [has] been unwilling or unable within a
          reasonable period 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

                              - 4 -
             and appropriate efforts of social, medical,
             mental health or other rehabilitative
             agencies to such end. Proof that the parent
             or parents, without good cause, have 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 or parents 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.

     The evidence established that Malave's son was placed in

foster care in 1997, when he was ten years of age, after Child

Protective Services found him wandering the streets on a

Saturday morning.    The previous Friday, no one came for the

child at his school.    The child could not give his last name,

the name of his parent, or his address.    The evidence proved

that Malave resided in New York and that the child had lived

with two of his maternal aunts in Virginia for two periods of

time, most recently since the age of eight.    By an order entered

January 21, 1998, a judge determined that the child had been

neglected.    Malave failed to appear at that hearing.   The trial

judge entered the order terminating Malave's parental rights on

November 4, 1998.




                                 - 5 -
                    I.   Failure to Maintain Contact

        Proof that a parent, without good cause, failed to

communicate on a continuing basis with a child in foster care

for a period of six months is prima facie evidence of the

grounds for termination under Code § 16.1-283(C)(1).       Malave

admitted that she did not communicate by letter or telephone or

visit with her son after he was placed in foster care in June

1997.    In an effort to explain her failure to visit her son,

Malave testified that the social workers would not schedule

visits for her.     Dawn Harvey, a social worker, testified,

however, that although Malave requested visitation several

times, Malave only requested those visits after a court hearing

commenced and indicated that she was returning to New York

shortly after the hearings.     Harvey testified that the visits

could not be scheduled at such short notice.       Although Harvey

offered to forward any cards or letters to the child, Malave

never sent anything for the child.        The record supports the

trial judge's finding that the Department presented clear and

convincing evidence under Code § 16.1-283(C)(1) that Malave

failed to maintain contact with the child for a period exceeding

six months.

        II.   Failure to Remedy Problems Leading to Foster Care

        Under the initial foster care plan, Malave was ordered to

complete a parenting class and to undergo evaluations for mental

health, drug, and alcohol use.     In February 1998, eight months

                                  - 6 -
after entry of that order, Malave began a counseling program in

New York.   Malave was dismissed from the program because she

failed to attend regularly and could not pay.      The record

indicates that Malave refused to work in a thrift shop as a

means to cover the cost of the program.      Malave presented

evidence that she submitted an application to enter another

program.    She submitted that application, however, only one week

before the October 1998 hearing.    She admitted that she failed

to attend parenting classes.

     When questioned at trial, Malave admitted that she did not

know what interests her child had.       She said that "kids change"

and that she only knew what interested him when he last lived

with her in 1995.

     Despite the passage of at least seventeen months, Malave

failed to complete any of the requirements ordered by the trial

judge or to demonstrate meaningfully a desire to reestablish a

relationship with the child.   Malave failed to complete any drug

treatment program.   Malave's explanation that she could not

complete the program because one of her children contracted

poison ivy and another sprained an ankle was found to be

inadequate by the trial judge.    The trial judge specifically

noted that, until February 1998, Malave had taken "no action at

all to try to do anything to rectify the situation, . . . that

caused the initial placement, or caused the continuation of the

placement."

                                 - 7 -
     The trial judge believed the testimony of the guardian ad

litem and the social worker that Malave did not intend to comply

with the requirements of the foster care plan because she did

not wish to pursue custody.   "It is clearly not in the best

interest 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. Dep't of Soc. Servs., 10 Va.

App. 535, 540, 394 S.E.2d 492, 495 (1990).

     We hold, therefore, that the record supports the trial

judge's ruling that the Department established by clear and

convincing evidence under Code § 16.1-283(C)(2) that Malave,

without good cause, failed to remedy the conditions leading to

the child's foster care placement.

            III.   Substantial Correction of Conditions

     Malave admitted that she used cocaine at the time the child

was born and that she used cocaine on July 23, 1998.      She also

admitted that allegations of drug use resulted in the removal of

three other children from her custody by New York protective

services.   While she denied that she continued to use drugs, the

trial judge did not find her testimony to be credible.

     The Department proved that Malave failed to follow through

with appropriate, available, and reasonable rehabilitative

efforts to prevent or eliminate the neglect.   Therefore, we find

no error in the trial judge's ruling that the Department proved

by clear and convincing evidence under Code § 16.1-283(B)(2)

                               - 8 -
that the conditions which caused the neglect could not be

substantially corrected within a reasonable period of time so as

to allow the child's safe return to Malave.

                   IV.    Placement with Relatives

     "Before termination of parental rights by the court, the

agency seeking termination has an affirmative duty to

investigate all reasonable options for placement with immediate

relatives."   Sauer v. Franklin County Dep't of Soc. Servs., 18

Va. App. 769, 771, 446 S.E.2d 640, 641 (1994).       However, the

Department is not required "in every case to investigate the

home of every relative . . . as a potential placement."       Id. at

771, 446 S.E.2d at 642.

     According to Malave's testimony, the child lived with two

of her sisters during the time he was in Virginia.      The record

establishes that he was placed in foster care while in the

custody of at least one of these aunts.    The trial judge noted

that these aunts "were the same people who had allowed the child

to be on his own . . . in a position where any ten-year-old or

eleven-year-old child potentially could have been in grave

danger."   The Department did not find either of those aunts to

be suitable, and neither sought custody.

     The Department investigated the possibility of placing the

child with a third aunt.    Although that aunt initially sought

custody, she later indicated she could not accept the placement

because she already had other relatives in her care.      The social

                                 - 9 -
workers testified that they also determined that this aunt could

not meet the child's needs due to the number of other children

in her care.   Therefore, the evidence supports the trial judge's

conclusion that the Department adequately considered placement

with relatives.

     The trial judge found that termination of Malave's parental

rights was in the child's best interests and that the Department

presented clear and convincing evidence sufficient to meet the

statutory requirements of Code § 16.1-283.   The record supports

those findings.   Accordingly, we affirm the decision.

                                                         Affirmed.




                              - 10 -
