                   COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judges Elder and Bumgardner


LAWRENCE PENNYBACKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2599-99-2                        PER CURIAM
                                                APRIL 11, 2000
SPOTSYLVANIA COUNTY
 DEPARTMENT OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                     Ann Hunter Simpson, Judge

           (Owaiian M. Jones; Law Office of Owaiian M.
           Jones, on brief), for appellant.

           (Timothy W. Barbrow; Joseph A. Vance, IV;
           Joseph A. Vance, IV & Associates, on brief),
           for appellee.


     Lawrence Pennybacker appeals the decision of the circuit

court terminating his parental rights to Krystal Leigh Marshall.

Pennybacker contends that the trial court erred by terminating his

parental rights based solely on his conviction on charges of rape,

sodomy, and taking indecent liberties with a minor.    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.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
consideration of a trial court 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).   "Code § 16.1-283 embodies

'the statutory scheme for the . . . termination of residual

parental rights in this Commonwealth' [which] . . . '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. Reed, 20 Va. App. 306, 311, 456

S.E.2d 538, 540 (1995) (citations omitted).   "'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.'"   Logan, 13 Va. App. at 128, 409 S.E.2d at 463

(citation omitted).   The trial judge's findings, "'when based on

evidence heard ore tenus, will not be disturbed on appeal unless

plainly wrong or without evidence to support it.'"   Id. (citation

omitted).

     Pennybacker's parental rights were terminated pursuant to

Code § 16.1-283(E), which provides, in pertinent part:

            The residual parental rights of a parent
            . . . of a child who is in the custody of a
            local board or licensed child-placing agency
            may be terminated by the court if the court
            finds, based upon clear and convincing
            evidence, that it is in the best interests
            of the child and that . . . (iii) the parent
            has been convicted of an offense under the
            laws of this Commonwealth . . . which
            constitutes . . . felony sexual assault, if
            the victim of the offense was a child of the
            parent or a child with whom the parent
            resided at the time of such offense. . . .

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          The local board or other child welfare
          agency having custody of the child shall not
          be required by the court to make reasonable
          efforts to reunite the child with a parent
          who has been convicted of one of the
          felonies specified in this subsection.

The parties stipulated that Pennybacker was convicted on charges

constituting felony sexual assault of his stepdaughter, Dana

Marshall, the biological mother of Krystal, at a time when Dana

resided in the same home with Pennybacker.    Pennybacker was

married to Dana's mother.   Pennybacker was sentenced to

twenty-nine years in prison, with five years suspended.

     Pennybacker contends that the Spotsylvania County Department

of Social Services (DSS) failed to meet its statutory burden to

prove that it was in the best interests of Krystal to terminate

Pennybacker's parental rights.    He argues that DSS impermissibly

relied solely on the fact of his conviction.   The record does not

support this contention.

     Under Code § 16.1-283(E), after DSS proved that Pennybacker

was convicted of felony sexual assault upon a child with whom he

lived, the trial court was authorized to terminate Pennybacker's

parental rights if it found by clear and convincing evidence that

termination was in Krystal's best interest.    Contrary to

Pennybacker's assertion, Code § 16.1-283(E) does not require a

finding that Krystal was abused or neglected by Pennybacker in

order to support a finding that it was in Krystal's best interests

to terminate his parental rights.


                                 - 3 -
     The trial court found that clear and convincing evidence

proved that termination was in Krystal's best interests.   The

record supports that conclusion.    Under Pennybacker's sentencing

and conviction order, he was to have no contact, direct or

indirect, with Krystal and Dana.    Both Dana and Krystal had been

in the custody of DSS since 1997.   Dana was making good progress

in her foster home and improving in her ability to parent Krystal.

DSS worker Troy Jackson indicated that the current goal was to

strengthen Dana's parenting skills and to keep Krystal with her.

DSS sought to terminate Pennybacker's parental rights so that both

Dana and Krystal could get on with their lives.   Jackson testified

"the fact that [Dana] is a teenage child raising a child . . .

there could be the opportunity for [Krystal] to have a father

figure in her life."

     While Pennybacker cites previous decisions holding that

incarceration may not be relied upon as the sole basis for

terminating parental rights, see, e.g., Cain v. Commonwealth, 12

Va. App. 42, 402 S.E.2d 682 (1991), those cases are inapposite.

Under the statute as amended, a conviction for felony sexual

assault upon a child with whom the parent was living warrants

termination of parental rights if it is otherwise in the child's

best interests.   It is the nature of the conviction, not the fact

of incarceration, upon which Code § 16.1-283(E) focuses.

     The trial court found that DSS presented clear and convincing

evidence sufficient under the requirements of Code § 16.1-283(E)

                               - 4 -
that termination of Pennybacker's parental rights was in the best

interest of Krystal.   Evidence supports that determination.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                         Affirmed.




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