                        COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


KELLY WILSON
                                             MEMORANDUM OPINION *
v.   Record No. 0270-02-1                        PER CURIAM
                                             SEPTEMBER 10, 2002
JAMES CITY COUNTY
 DIVISION OF SOCIAL SERVICES


         FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                          COUNTY OF JAMES CITY
                    Samuel Taylor Powell III, Judge

             (Edward Janes Bell, III, on brief), for
             appellant.

             (Frank M. Morton, III, County Attorney;
             Greg H. Dohrman, Assistant County Attorney;
             Alice K. Twiford, Guardian ad litem for
             Idalia Wilson; Frances S. Taylor, Guardian ad
             litem for Marquise Wilson, on brief), for
             appellee.


     Kelly Wilson (appellant) appeals the decision of the trial

court terminating his parental rights to two of his minor

children, Marquise and Idalia.    Upon reviewing the record and

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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     "Upon appellate review, we must review the facts in the light

most favorable to the party prevailing below."    Richardson v.

Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726, 730 (1999).

     On January 15, 2002, the trial court conducted a hearing on

the matter.    Cherrye Cole, who was formerly employed with the

Gloucester County Division of Social Services (GC DSS), testified

that she worked with the family in 1998 after one of appellant's

children was placed in foster care.     That child is not the subject

of this appeal.   At that time, GC DSS developed a foster care

service plan that provided, among other things, that the entire

family should attend family counseling and establish a stable home

environment.   The plan also provided for visitation and required

that appellant attend parenting classes.    Cole testified that

appellant did not attend counseling or complete parenting class.

Cole stated that the family had a continuing problem with the

inability to maintain a stable home and sometimes lacked food and

electricity.

     In 1998, the family moved to James City County.     On March 3,

1999, the James City County Division of Social Services (JCC DSS)

filed a petition for an emergency removal order regarding Marquise

and Idalia.    The children were with appellant when he was arrested

and taken to jail on March 2, 1999.     The children's mother was

also in jail at that time for a felony child neglect offense.       In



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addition, appellant has been convicted for the assault and battery

of a child.

        The children have been in foster care since April 1999.

Melanie White of JCC DSS testified that the initial foster care

service plan for the children had a goal of return home.      Both

parents were in jail at the time, and appellant was scheduled to

be released from jail first.    Therefore, the plan primarily

addressed services for appellant upon his release from jail.

Appellant was required to secure housing for the family, maintain

steady employment, and participate in family counseling.      He was

also required to enroll in and complete a parenting education

program, anger management and domestic violence programs, and a

program on the needs of children with attention deficit

hyperactivity.    White testified that appellant did not complete

the services outlined in the plan.       White also stated that

appellant had two founded complaints with the county for lack of

supervision.

        While they were in foster care, appellant visited the

children sporadically and was often late for his visits.      In

September 2000, appellant returned to jail.      White testified it

was "emotionally traumatizing" for the children to visit him in

jail.    Appellant has telephoned Marquise about once every two

weeks at his current foster home, but his overall compliance with

the services has been "very minimal."



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        White testified that appellant's housing has been transient

and unstable.    Appellant did not complete family counseling

classes, parenting classes, anger management classes or children

with special needs classes.    Appellant attended several classes

for a nurturing family program while he was incarcerated.      He has

not maintained steady employment.

        White testified that when Marquise first came to foster care,

he had numerous behavior problems.       He has been diagnosed with

Bipolar disorder, Dysthymia, ADHD, and Oppositional Defiant

Disorder.    He has taken several types of medications to manage his

behavior.    Marquise was placed with his current foster mother,

Clara Brown, in 1999, and his behavior has improved since that

time.

        Brown testified Marquise is "better now" and has been seeing

therapists.    She stated he is a "totally different person" than he

was when he first arrived in her home, and he has exhibited more

"control" over his behavior.    Brown stated that Marquise is more

difficult to control after he visits with appellant or his mother.

        Idalia entered foster care when she was three years old.      She

was "highly sexualized," was attending counseling sessions, and

was taking medications for behavior management.      She has been

diagnosed with Oppositional Defiant Disorder and appears to have

suffered sexual abuse.    White stated that Idalia is intelligent,

but she has high emotional needs.    She needs "continual

modification interventions."    Idalia has been in therapy

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concerning sexualized behavior issues.    A psychological evaluation

of Idalia dated December 5, 2000 recommended that, due to

allegations of appellant striking Idalia, appellant should have

only supervised visitation with Idalia until a parenting capacity

evaluation is performed.

        Amy Burks, Idalia's foster parent for about five months,

testified that she has had to retrieve Idalia from school when she

has exhibited behavioral problems, which usually occurs just after

she visits with her parents.    She stated that Idalia exhibits the

behavior by jumping up and down and hitting her head against the

wall.    Burks stated that Idalia "does great at home," and Burks

participates in Idalia's counseling sessions.    Burks testified

that Idalia's behavior has improved while she has lived with Burks

and that she is interested in adopting Idalia.

        White opined that it was in the best interests of the

children to terminate appellant's parental rights.    The children

have been in foster care for about three years.    White stated they

needed stability, security, safety and nurturing.    The current

foster homes are meeting those needs for the children, and the

foster parents are interested in adopting the children.    White

stated that appellant has not completed the services necessary to

meet the children's needs.    The guardians ad litem for the

children also recommended termination of appellant's parental

rights.



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     Appellant, who has seven felony convictions, testified that

he attended a parenting class.    However, he has not taken classes

concerning the special needs of the children because of his work

schedule.   Appellant was living with his parents at the time of

the hearing and has not maintained his own residence since 1998.

Appellant acknowledged that he is currently not in a position to

take care of the children.    He has been incarcerated about

seventeen months of the approximately three years the children

have been in foster care.    Appellant has not talked with the

children's counselors or teachers and only learns about Idalia's

progress when he attends a court hearing.   Appellant testified

that JCC DSS has not given him information on the children.

     The trial court found that, pursuant to Code

§ 16.1-283(C)(2), it is in the best interests of the children to

terminate appellant's parental rights and that the requirements of

the statute have been met.   The trial court further found that

appellant has not had consistent housing and has not completed the

special programs needed to take care of the children.

                               ANALYSIS

     Under Code § 16.1-283(C)(2), the trial court can terminate a

party's parental rights if the parent 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."

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        Marquise and Idalia have spent almost three years in foster

care.    For seventeen months of that time period, appellant was

incarcerated.

             [W]hile long-term incarceration does not,
             per se, authorize termination of parental
             rights or negate the Department's obligation
             to provide services, it is a valid and
             proper circumstance which, when combined
             with other evidence concerning the
             parent/child relationship, can support a
             court's finding by clear and convincing
             evidence that the best interests of the
             child will be served by termination.

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,

340, 417 S.E.2d 1, 5 (1992).

        Furthermore, during the three years the children have been in

foster care, appellant has failed to participate in most of the

recommended programs that would teach him how to meet the special

needs of the children and to rectify the conditions that

perpetuate the children in foster care.    In addition, appellant

admitted that he is not currently in a position to take care of

the children.    Moreover, the children are improving while in

foster care.

        "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."    Farley v. Farley, 9

Va. App. 326, 328, 387 S.E.2d 794, 795 (1990).    On appeal, we

presume that the trial court "thoroughly weighed all the evidence,

considered the statutory requirements, and made its determination


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based on the child's best interests."     Id. at 329, 387 S.E.2d at

796.   Furthermore, "[w]here, as here, the trial court heard the

evidence ore tenus, its finding is entitled to great weight and

will not be disturbed on appeal unless plainly wrong or without

evidence to support it."   Martin v. Pittsylvania County Dep't of

Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

       The evidence in this case supports the trial court's

findings.   It is apparent that appellant is unable to care for the

children and is unable to remedy within a reasonable time the

conditions which led to his children's placement in foster care.

Thus, we cannot say that the trial court's finding by clear and

convincing evidence that the conditions of Code § 16.1-283(C)(2)

have been established was plainly wrong or without evidence to

support it.    Accordingly, we summarily affirm the decision of the

trial court.    See Rule 5A:27.

                                                      Affirmed.




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