Opinion
Record No. 2453-92-4
October 19, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ALFRED D. SWERSKY, JUDGE.
(Gary H. Smith, on briefs), for appellant.
(John E. Kloch, Commonwealth's Attorney; Molly S. Dietrich, Assistant Commonwealth's Attorney, on brief), for appellee.
(Dorathea Peters, Guardian ad litem; Peters Mullins, on brief), for Carlauntae Ward.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Carl Gray (appellant) appeals the termination of his residual parental rights to his son, Carlauntae Ward (Ward). Appellant raises two questions on appeal: (1) whether the evidence presented by the Alexandria Department of Social Services (DSS) was sufficient under Code § 16.1-283 to terminate his parental rights; and (2) whether the trial court erred in denying appellant's motion to transport him to the hearing from the Federal Correctional Institution in El Reno, Oklahoma.
I.
"On appeal, we review the evidence in the light most favorable to the . . . prevailing party. Our function is not to substitute our judgment for that of the trial judge, but to determine if the record contains sufficient credible evidence in support of the judgment from which the appeal is taken." Ward v. Commonwealth, Dep't of Social Servs., 13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991) (citation omitted).
Appellant asserts that the basis for terminating his parental rights was Code § 16.1-283(C)(1) and the evidence failed to meet the statutory requirements. However, the court's order recited both subsections (B) and (C), and the court made findings regarding the evidence under both grounds. Accordingly, the termination of appellant's rights must stand if sufficient evidence was presented under either subsection.
Ward has been in the custody of DSS since January 25, 1989, as a result of abuse and neglect by his mother. On September 19, 1991 the mother's residual parental rights were terminated through a DSS petition alleging abuse and neglect.
Based upon the evidence before it, the court found Ward to be an abused or neglected child and the abuse or neglect presented a serious and substantial threat to his life. The court also determined it was not reasonably likely that the conditions of abuse or neglect could be substantially corrected or eliminated to allow Ward's "safe return to his parent within a reasonable period of time." Code § 16.1-283(B). Ward was born on March 31, 1986 and appellant has never had custody. In fact, appellant was incarcerated prior to Ward's birth and has had little, if any, contact with Ward due to appellant's subsequent prison sentences. Moreover, appellant's release date from incarceration was uncertain because he had been involved in several prison disturbances that added time to his sentence. Thus, it could not be ascertained when Ward could be united with appellant.
The court also found that appellant, "without good cause," had failed to maintain contact with and to provide or substantially plan for Ward's future for a period of twelve months after foster care placement, despite the reasonable and appropriate efforts of DSS. Code § 16.1-284(C). There was sufficient evidence that DSS provided specific guidance and assistance to appellant to help him establish and maintain contact with Ward. Visits were arranged, although there was evidence that DSS did not encourage many visits to the prison where appellant was incarcerated as Ward seemed upset after the visits. Only one letter was sent by appellant to Ward between November 1990 and the time of the trial, a period of two years, despite repeated encouragement by DSS for appellant to write every two weeks. DSS had unsuccessfully encouraged appellant to take steps while in prison to prepare himself to care for and support Ward upon his release. While appellant indicated that Ward might be placed by DSS with one of appellant's sisters, neither appellant nor his relatives followed through on this possibility.
"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. 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.'" Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quotingFarley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990) (other citations omitted).
While appellant's incarceration did not disqualify him per se, "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 Social Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). Appellant failed to sufficiently comply with DSS's rehabilitative plan to strengthen his relationship with Ward. Appellant's prison release date remained uncertain and Ward's need for stability and continuity was immediate. "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 Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Based on the evidence presented to the circuit court, we cannot say that the court's decision to terminate appellant's parental rights is without credible evidence to support it.
II.
Appellant also challenges the court's denial of his motion under Code § 8.01-410 seeking an order transporting him from a federal penitentiary in Oklahoma to Virginia to attend the termination hearing. Assuming, without deciding, that Code § 8.01-410 authorized the circuit court to issue an order to a federal correctional institution in another state to deliver appellant to the Virginia hearing, the exercise of that authority is expressly left to the court's discretion and its consideration of the importance of appellant's "personal appearance" and the nature of the offense for which he was imprisoned. See Code § 8.01-410.
As a result of appellant's disruptive conduct in prison, he had a classification status of "maximum custody," was "Federalized" and transferred to a maximum security facility. On the basis of the security interest alone, the court would not have abused its discretion in denying the motion.
Moreover, the court took steps to safeguard appellant's rights. He was represented by an appointed guardian ad litem, as he is considered a person under a disability. Appellant was granted the opportunity to submit any evidence or testimony he wished, including answers to written questions asked by his guardianad litem, Ward's guardian ad litem and the DSS. However, appellant provided only cursory answers to the questions submitted by his guardian ad litem and Ward's guardian ad litem and chose not to answer the questions submitted by DSS.
We cannot say that the circuit court abused its discretion in refusing to order appellant's presence at the hearing.
For the reasons stated, we affirm the decision of the circuit court.
Affirmed.