                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick


MARGIE RUSH HARDER
                                                                MEMORANDUM OPINION*
v.     Record No. 0863-06-3                                          PER CURIAM
                                                                  SEPTEMBER 19, 2006
CAMPBELL COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                          James Howe Brown, Jr., Judge Designate

                 (Grady W. Donaldson, Jr.; Schenkel & Donaldson, P.C., on brief),
                 for appellant.

                 (David W. Shreve, County Attorney; Dion F. Richardson, Guardian
                 ad litem for the minor child, on brief), for appellee.


       Margie Rush Harder appeals the trial court’s decision terminating her residual parental

rights to her minor child, C.H., born on April 23, 1999. Harder contends (1) the evidence was

insufficient to support the termination under Code § 16.1-283(B) and (C)(2); and (2) the

termination was not in the child’s best interests. Upon reviewing the record and the 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. 1

       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



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          The trial court ordered the termination pursuant to Code § 16.1-283(B) and (C), but did
not further set forth which part of subsection (C) it relied upon. The content of the court’s order
parallels the requirements set forth in Code § 16.1-283(C)(2). Thus, we presume that the
termination was ordered pursuant to Code § 16.1-283(C)(2).
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). “[T]ermination of residual

parental rights is a grave, drastic, and irreversible action.” Helen W. v. Fairfax County Dep’t of

Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991). When considering

termination of a parent’s residual parental rights to a child, “the paramount consideration of a

trial court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463. On

review, “[a] trial court is presumed to have thoroughly weighed all the evidence, considered the

statutory requirements, and made its determination based on the child’s best interests.” Farley v.

Farley, 9 Va. App. 326, 329, 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.’” Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation

omitted).

       Code § 16.1-283 provides for the termination of residual parental rights under carefully

defined circumstances. Here, the trial court concluded that the evidence warranted termination

of Harder’s residual parental rights to C.H. on alternative grounds, i.e., under subsections (B) and

(C).

       Where a trial court’s judgment is made on alternative grounds, we need only consider

whether any one of the alternatives is sufficient to sustain the judgment of the trial court and, if

we so find, need not address the other grounds. See Boone v. C. Arthur Weaver Co., 235 Va.

157, 161, 365 S.E.2d 764, 766 (1988).

       Code § 16.1-283 provides as follows, in relevant part:

                       C. The residual parental rights of a parent or parents of a
               child placed in foster care as a result of court commitment, an
               entrustment agreement entered into by the parent or parents or
               other voluntary relinquishment by the parent or parents may be
               terminated if the court finds, based upon clear and convincing
               evidence, that it is in the best interests of the child and that:

                                  *     *    *    *    *     *    *
                                                 -2-
                       2. 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. 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 trial court found that clear and convincing evidence supported the termination of

Harder’s parental rights to C.H. under Code § 16.1-283(C)(2), as being in the child’s best

interests. That finding was not plainly wrong or without evidence to support it.

       Credible evidence proved that on August 27, 2004, the Campbell County Department of

Social Services (CDSS) received a child protective services (CPS) complaint regarding C.H.,

alleging inadequate housing and lack of supervision by Harder. Upon meeting with a CPS

investigator in October 2004, Harder admitted she had used cocaine and marijuana a few weeks

earlier. At that meeting, Harder signed a plan indicating that she would cooperate with substance

abuse counseling, continue mental health counseling, take her prescribed medications, refrain

from using illegal drugs, and follow through with home therapy and ongoing services.

       In January 2005, Harder tested positive for drugs. Although she was referred for

substance abuse and mental health counseling prior to her incarceration in April 2005, Harder

did not attend her appointments. She did not complete intake with Alliance for Families and

Children, and once she was referred back to Campbell County Counseling Center after her

positive drug screen on January 27, 2005, she did not attend her appointments allegedly due to
                                                -3-
bad weather and lack of transportation. Although Harder attended one court-ordered six-hour

parenting class in October 2004, she made no further efforts to attend any other classes prior to

being incarcerated, including those recommended by CDSS. Between fall of 2004 and her

incarceration, Harder had problems managing C.H.’s behavior. Although CDSS provided

in-home counseling to Harder, the counselor reported in March 2005 that Harder was unable to

consistently follow through with appropriate recommended discipline, which negatively

impacted efforts to improve C.H.’s behavior.

       In the past, Harder exposed C.H. to ongoing violence and abuse by his father. Dr.

Deborah Maxey, Ph.D, a licensed professional counselor, who testified as an expert witness,

began working with C.H. on January 12, 2006. Dr. Maxey diagnosed C.H. as suffering from

post-traumatic stress disorder. C.H.’s symptoms include nightmares, flashbacks of witnessing

abuse and being abused, hypervigilance, and somatic complaints such as stomachaches and

headaches. Dr. Maxey testified that C.H. viewed Harder as a frightened or frightening caregiver.

Dr. Maxey noted that during some of his flashbacks, C.H. stated, “she hurt me” or “he hurt me,”

and, when asked who hurt him, he says his mom. Dr. Maxey stated that, based on her evaluation

of C.H., she believed that, when C.H. was with Harder, she was dismissive of his “tender needs,”

which meant that C.H. did not believe there was anyone he could go to when he was afraid or

needed help. Dr. Maxey opined that it would take up to two years once Harder was released

from incarceration, assuming she cooperated and there were no other mental health or substance

abuse issues, for her to be in a position to appropriately parent C.H. and for him to be reunited

with her.

       Harder’s criminal record as of November 28, 2005 was admitted into evidence. It

reflected that she has fifty-six felony convictions. She is currently incarcerated on welfare fraud

and forgery and uttering convictions, with an anticipated release date of June 26, 2008.

                                                -4-
        The evidence established that C.H. is thriving in his pre-adoptive home. His behavior has

improved dramatically, he is doing better in school, and has been placed in advanced math and

reading classes for the first time.2

        Based upon Harder’s unwillingness or inability to follow through with services provided

to her prior to her incarceration, as agreed upon in the October 2004 plan, her incarceration until

June 2008, Dr. Maxey’s expert opinions, and C.H.’s current status in his pre-adoptive home, we

cannot say that the trial court was plainly wrong in terminating Harder’s parental rights pursuant

to Code § 16.1-283(C)(2) and finding that such termination was in C.H.’s best interests. “The

[termination] statute clearly contemplates that efforts to resolve the ‘conditions’ relevant to

termination are constrained by time.” Lecky v. Reed, 20 Va. App. 306, 312, 456 S.E.2d 538,

540 (1995) (citation omitted). “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 v. Halifax County Dep’t of Soc. Serv., 10 Va. App. 535, 540, 394

S.E.2d 492, 495 (1990). In light of Harder’s incarceration and Dr. Maxey’s opinion that it would

take two years after Harder’s release to successfully reunite her with C.H., it would be at least

four years before Harder could resume her parental responsibilities, at which time C.H. would be

eleven years old. While Harder’s incarceration, standing alone, is not sufficient to support the

trial court’s termination of her parental rights, see Ferguson v. Stafford County Dep’t of Soc.

Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992), “it is a valid and proper circumstance




        2
          C.H.’s father signed an Entrustment Agreement for Permanent Surrender of Child on
November 3, 2005. At that time, C.H. was removed from his father’s home to the custody of
CDSS pursuant to an emergency removal order. C.H.’s father voluntarily agreed to the
termination of his parental rights with respect to C.H. On or about January 3, 2006, CDSS filed
a petition to terminate Harder’s residual parental rights and for approval of the entrustment
agreement and termination of C.H.’s father’s parental rights.
                                                 -5-
which, when combined with other evidence concerning the parent/child relationship, can support

[the] court’s finding that the best interests of the child will be served by termination.” Id.

       The record supports the trial court’s finding that CDSS presented clear and convincing

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

termination of Harder’s residual parental rights was in C.H.’s best interest. Thus, we need not

address the trial court’s findings with respect to Code § 16.1-283(B).

       Accordingly, we summarily affirm the trial court’s decision.

                                                                                            Affirmed.




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