                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


LAVICIE N. SAWYERS, SOMETIMES KNOWN AS
 LAVICIE ANN SAWAYERS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1605-99-3        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                MAY 9, 2000
TAZEWELL COUNTY DEPARTMENT
 OF SOCIAL SERVICES


            FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                    Donald R. Mullins, Judge

          H. Shannon Cooke for appellant.

          Stephen E. Arey for appellee.

          Felicia H. de Courcy (Henderson & de Courcy,
          on brief), Guardian ad litem for the minor
          children.


     Lavicie Ann Sawyers (Sawyers) appeals from a decision

terminating her parental rights on petition by the Tazewell County

Department of Social Services (DSS).   She contends the trial court

erred in terminating her parental rights because:   (1) she did not

receive a copy of the foster care plan in the de novo trial in

circuit court; (2) the trial court did not require DSS to elect

which subsection of Code § 16.1-283 was the basis of the petition;

and (3) the evidence was insufficient to terminate her parental

rights as a matter of law.   For the following reasons, we affirm.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     As a preliminary matter, Sawyers contends that, although she

received a copy of the foster care plan filed in the juvenile

court, the plan was not refiled in the circuit court when the

initial decision was appealed.    Thus, she argues, the trial court

failed to follow the procedural requirements of Code §§ 16.1-281

and -283.    This argument is controlled by Todaro v. Alexandria

Dep't of Soc. Serv., 226 Va. 307, 309 S.E.2d 303 (1983) (per

curiam).    In Todaro, the Supreme Court held that "[a]lthough the

appeal to the circuit court requires a trial de novo, a refiling

of the plan in the circuit court, while perhaps advisable, is not

required."    Id. at 308-09, 309 S.E.2d at 304 (emphasis added).

Because the foster care plan was timely filed in the juvenile

court proceedings and made available to all interested parties, we

find no error.

     Next, Sawyers contends the trial court erred in failing to

require DSS to elect which subsection of Code § 16.1-283 was the

basis for the petition for termination of parental rights.   She

argues that the trial court's decision to proceed under both

subsection (B) and subsection (C) of Code § 16.1-283 was

prejudicial and placed an undue burden on her ability to defend

the petition.    We disagree.

     Code § 16.1-283 establishes the procedures and grounds under

which a court may order the termination of residual parental

rights.    Pursuant to Code § 16.1-283(B), the court may terminate

the residual parental rights of a parent of a child who has been

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neglected and placed in foster care based upon clear and

convincing evidence that it is in the child's best interest and

that

            1. The neglect or abuse suffered by such
            child presented a serious and substantial
            threat to his 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 his parent or parents within a
            reasonable period of time. . . .

Code § 16.1-283(B) (emphasis added).    Prima facie evidence of the

conditions set forth in subsection (B)(2) exists when there is

proof that the parent, "without good cause, [has] not responded to

or followed through with appropriate, available and reasonable

rehabilitative efforts on the part of social, medical, mental

health or other rehabilitative agencies designed to . . . prevent

the neglect . . . of the child."   Code § 16.1-283(B)(2)(c).

       Alternatively, Code § 16.1-283(C)(2) provides that 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 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,

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          mental health or other rehabilitative
          agencies to such end.

Code § 16.1-283(C)(2) (emphasis added).   Proof that the parent

has failed or been unable to make substantial progress towards

elimination of the conditions leading to the placement in foster

care shall constitute prima facie evidence of grounds for

termination.   "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."    Id.

     Both subsection (B) and subsection (C) of Code § 16.1-283

address substantially similar grounds for the termination of

parental rights.   While Code § 16.1-283(B) places a "reasonable

time" limitation to remedy the conditions causing foster care

placement, Code § 16.1-283(C)(2) requires that the conditions be

remedied within "a reasonable time not to exceed twelve months."

Despite this minor distinction, we have previously upheld the

termination of parental rights in a case under both subsections of

Code § 16.1-283.   See Fergusson v. Stafford County Dep't of Soc.

Serv., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).    DSS is not

barred from proceeding under more than one applicable subsection

of Code § 16.1-283 and, thus, the trial court did not err.

     Finally, Sawyers contends that the evidence was insufficient

to terminate her parental rights.   "When addressing matters

concerning a child, including the termination of a parent's

residual parental rights, the paramount consideration of a trial


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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).   When reviewing the trial court's termination of parental

rights on appeal, we view the evidence in the light most favorable

to the prevailing party below.    See id.   Where the trial court

hears the evidence ore tenus, its decision is entitled to great

weight and will not be disturbed on appeal unless plainly wrong or

without evidence to support it.    See Hawks v. Dinwiddie Dep't of

Soc. Serv., 25 Va. App. 247, 253, 487 S.E.2d 285, 288 (1997).

     The trial court found that DSS presented clear and convincing

evidence meeting the statutory requirements of both Code

§ 16.1-283(B) and (C)(2).   The trial court noted that DSS has

provided social services since March 1996 and, based on Sawyers'

failure to comply with DSS recommendations, the minor children

were removed from her home on July 10, 1997.    Significantly, the

trial court found that throughout the proceedings Sawyers "has

continued to place other matters above the welfare of her

children" and that "she has placed her affection for her paramour

above the welfare of the children."

      Despite the social services provided, Sawyers did not

remedy the conditions leading to the foster care placement of

her minor children.   Sawyers violated an order of the juvenile

court by allowing Bobby Sawyers, her previous husband, to return

to the marital home, although he had been charged with sexual

abuse of his own daughter, who is also Lavicie Sawyers'

                                 - 5 -
stepdaughter.   Thereafter, Sawyers placed her stepchildren in

the custody of a relative of Bobby Sawyers, an additional

violation of court orders.   At the time of the hearing in this

matter, Sawyers had established a residence with her boyfriend,

Roy Asbury, and continued to live with him despite DSS

recommendations.   The trial court ordered Sawyers and Asbury to

attend counseling, to undergo psychological evaluation, and to

obtain and maintain regular employment.   Asbury discontinued

visitation sessions with the children and refused to undergo the

psychological evaluation.    Sawyers supported Asbury's decision

and, according to psychologist Steve Farris, she would "give in"

to what Asbury wanted.

     Put simply, Sawyers has demonstrated a two-year history of

failing to follow through with recommendations and treatment

plans provided by DSS, a period far in excess of twelve months.

"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 [her] responsibilities."

Kaywood v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535,

540, 394 S.E.2d 492, 495 (1990).   The trial court's finding that

the termination of Sawyers' residual parental rights was in the

children's best interest and that DSS presented clear and

convincing evidence to meet the requirement of Code

§ 16.1-283(C)(2) was supported by the record.



                                - 6 -
     For the foregoing reasons, we affirm the judgment of the

trial court.

                                                       Affirmed.




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