COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

CHRISTOPHER FOREMAN

MEMORANDUM OPINION*

v. Record No. 1432-99-4 PER CURIAM

DECEMBER 14, 1999

FAIRFAX COUNTY DEPARTMENT

OF FAMILY SERVICES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Henry E. Hudson, Judge

(Mark Bodner, Guardian ad litem, on brief),

for appellant.

(David P. Bobzien, County Attorney; Robert

Lyndon Howell, Deputy County Attorney;

Dennis R. Bates, Senior Assistant County

Attorney; Darrell D. Jackson, Assistant

County Attorney, on brief), for appellee.

Christopher Foreman (Foreman) appeals the decision of the

circuit court terminating his parental rights to Roxanne Cierra

Sheppard. The circuit court found that the Fairfax County

Department of Family Services (DFS) presented clear and convincing

evidence establishing the statutory requirements set out in Code

16.1-283(C)(1) and (2) for termination of Foreman's parental

rights. On appeal, Foreman contends that the trial court erred in

finding DFS presented sufficient evidence to prove that (1) the

child suffered as a result of neglect and that the neglect

presented a serious and substantial threat to the child's

development; and (2) DFS made reasonable and appropriate efforts

to communicate with Foreman and to strengthen the parent-child

relationship. Foreman also raises a challenge under Code

16.1-283(A) to the circuit court's jurisdiction to hear the DFS

petition. 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.

According to the evidence, Foreman left Roxanne, who was four

years old at the time, with her mother while he went to a party.

When he returned at 2:00 a.m., the mother was gone. Foreman

allegedly asked a neighbor to watch the child while he searched

for the mother. However, on August 10, 1997, the police,

responding to a call of unattended children, found Roxanne and a

two-year-old boy wandering outside at 2:30 a.m. Foreman called

DFS on August 11, 1997, seeking custody of Roxanne. Foreman was

denied custody following a hearing in the juvenile and domestic

relations district court on August 15, 1997. By district court

order entered September 4, 1997, Roxanne was found to be "an

abused and/or neglected child as defined in Va. Code

16.1-228(5)." A foster care plan with the goal of returning

Roxanne home was developed, under which, among other items,

Foreman was required to participate in parenting classes; complete

an alcohol and drug abuse evaluation, follow any recommended

treatment, and submit to random drug and alcohol tests;

participate in family counseling; and undergo a psychosocial

assessment. Evidence also indicated that Foreman and the mother

had previous dealings with DFS and that their parental rights to

several other children had previously been terminated.

Foreman testified at trial that he saw his daughter every

week after she was taken into foster care. The DFS worker

testified that Foreman first saw the child on July 23, 1998 and

saw her six more times before September 2, 1998. Foreman was

incarcerated on September 9, 1998 on habitual offender charges,

with an anticipated release date in August 1999. Foreman

testified that he had completed a parenting class and had

partially completed a drug and alcohol class prior to his

incarceration. DFS presented evidence that Foreman was dismissed

from the drug and alcohol class for non-compliance and that

similar services were available while Foreman was in prison.

Foreman's mother testified that Roxanne and Foreman were

welcome to live in her home and that she would assist him. She

acknowledged that she works and that her husband is too ill to

care for the child. No additional childcare arrangements were

currently planned.

Standard of Review

"When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the

paramount 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).

"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." 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."

Id. (citations omitted).

The trial court found that DFS presented clear and

convincing evidence meeting the statutory requirements set out

in Code 16.1-283(C)(1) and (2) (Michie 1999). "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).

Code 16.1-283(C)(1) provides, in pertinent part, that the

residual parental rights of a parent of a child placed in foster

care may be terminated if the court finds by clear and

convincing evidence that it is in the best interests of the

child and that:

The parent . . . [has], without good cause,

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 . . .

[has] 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.

Alternatively, Code 16.1-283(C)(2) provides, in pertinent

part, that the parent's 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,

mental health or other rehabilitative

agencies to such end. Proof that the parent

. . . , without good cause, [has] 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 . . . 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.

Neglect

Foreman contends that the trial court erred by finding that

the child suffered as a result of neglect and that the neglect

she suffered presented a serious and substantial threat to the

child's development. Foreman's argument arises under Code

16.1-283(B)(1). The trial court made no finding under this

section and, therefore, this contention is without merit.

Nonetheless, we note that the initial determination that the

child was an abused and/or neglected child was based upon the

circumstances under which the child was taken into custody. The

child, then four, and a two-year-old boy were allegedly left in

the care of a ten-year-old boy for a number of hours by the

child's mother while Foreman attended a party until 2:00 a.m.

The child was found wandering the streets, unattended, at

2:30 a.m. According to the testimony of Amy Yeates, the DFS

worker who removed the child, Foreman admitted that he did not

live in the home with the child or her mother; that he saw them

about once a month; that he and the mother had bouts of domestic

violence; and that he drank. The proposed foster care plan

contained specific steps through which Foreman could address

both his parental responsibilities and his abuse of alcohol. We

find sufficient evidence in the record supporting a finding that

the child was neglected and that the neglect posed a serious and

substantial threat to the child's development.

Reasonable and Appropriate Efforts on the Part of DFS

Appellant also contends that the trial court erred in

finding that DFS presented clear and convincing evidence that it

made appropriate efforts to assist him to alleviate the

conditions resulting in the child's foster care placement. We

find no error.

The foster care plan initially prepared in 1997 included

specific steps that were aimed at improving Foreman's parenting

skills and addressing his ongoing problems with alcohol. While

Foreman contended that he completed a parenting skills class,

the evidence indicated that this was a four class "Introduction

to Parenting" course, rather than the required twenty-six week

parenting class. In the nearly two years since the child's

placement in foster care, Foreman failed to complete a

recommended drug and alcohol abuse class. At trial, he argued

that he would be able to complete one in just a few more months.

We find substantial evidence in the record supporting the

trial court's finding that DFS made appropriate and reasonable

efforts to help Foreman regain custody of his daughter. DFS had

attempted to provide services to Foreman and the mother in the

past, with little result. In this instance, DFS provided

Foreman with an initial referral packet to complete, which he

never returned. Foreman began drug and alcohol services through

the county in an intensive outpatient group, but failed to

contact his counselor when he was incarcerated, despite the

requirement that participants notify the counselor if they are

unable to attend. Alcohol and drug services were available to

him while he was incarcerated. Therefore, the record

demonstrates that appropriate services were offered by DFS but

Foreman made little or no effort to respond to those offers.

"The law does not require the [DFS] to force its services upon

an unwilling or disinterested parent." Barkey v. Commonwealth,

2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986).

Jurisdiction of the Circuit Court

Foreman also contends that the trial court lacked

jurisdiction because DFS failed to file with the juvenile and

domestic relations district court the necessary foster care plan

documenting termination of his parental rights as in the child's

best interests prior to filing its petition seeking termination,

in violation of the requirements of Code 16.1-283(A). Foreman

admits that this issue is raised for the first time on appeal.

However, challenges to subject matter jurisdiction may be raised

at any time, even for the first time on appeal. See generally

Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756

(1990).

The record demonstrates that the revised foster care plan

with the changed goal of adoption was filed in the juvenile and

domestic relations district court on March 18, 1998. The

petition seeking termination of parental rights was filed on

March 30, 1998. Therefore, this issue is without merit.

The evidence presented below demonstrated that the child

was in a stable foster home where she was loved and cared for.

The foster parents expressed an interest in adopting the child

if that option were available. The child had emotional and

learning difficulties arising from the lack of stability in her

earlier years that the foster parents were addressing. She had

seen Foreman only sporadically since coming into foster care.

She had seen her grandmother only three times since 1997.

Foreman admitted that he had little or no contact with his

other six children; he was unsure whether his parental rights

had been terminated. He indicated to the trial court that he

had discussed with his mother having Roxanne come to live with

her only a month or two before the trial. His prospective plans

were unclear and his past history unpersuasive that he would

make the necessary changes in his life to provide for the child

if she were returned to him. "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 . . . responsibilities." Kaywood v. Halifax County

Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,

495 (1990).

Evidence in the record supports the trial court's decision

that DFS presented clear and convincing evidence proving that

termination of Foreman's parental rights was in the best

interest of the child and meeting the requirements of Code

16.1-283(C)(1) and (2). Accordingly, the decision of the

circuit court is summarily affirmed.

Affirmed.

* Pursuant to Code 17.1-413, recodifying Code

17-116.010, this opinion is not designated for publication.

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