COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Willis
ERIC CHRISTOPHER LOGAN
v. Record Nos. 0341-06-1 and MEMORANDUM OPINION* 0363-06-1 PER CURIAM DECEMBER 5, 2006 CITY OF HAMPTON DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
(J. Robert Harris, III, on brief), for appellant. Appellant submitting on brief.
(Rachel Allen, Assistant City Attorney, on brief), for appellee. Appellee submitting on brief.
(Robert G. Saunders, Guardian ad litem; The Law Firm of Thomas L. Hunter, P.C., on brief), for the infant child. Guardian ad litem submitting on brief.
In a proceeding involving Eric C. Logan’s (“father”) minor child, T., father argues that
the trial court erred by changing the goal from return home to adoption. He also maintains the
trial court erred by terminating his parental rights. We disagree, and affirm the decision of the
trial court.
Background
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in
the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. (2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409
S.E.2d 460, 463 (1991)).
T., along with her two older half-brothers, was removed from her residence on March 16,
2004, when she was five months old. On March 11, 2004, T.’s mother had been arrested on
multiple outstanding felony warrants. The following day, father was arrested and charged with
six counts of felony child abuse of T.’s older half-brothers. The boys came under the care of the
Hampton Department of Social Services (“DSS”), and had severe belt marks, areas of scabbing,
and broken skin on their face, arms, and back.
Despite the arrests of T.’s parents, the initial goal established by DSS was to return T. to
her parents or to place her with her maternal grandmother. DSS established several goals in the
initial foster care service plan for father to accomplish T.’s return home. Father was required to
“complete a parenting capacity evaluation . . . and a substance abuse evaluation . . . and comply
with all recommendations . . . .” He was also required to “follow through with recommendations
of the Department,” and “demonstrate [his] commitment to work with the Department towards
the goal of reunification.” Furthermore, he was to visit T. at least once a month.
From the time T. was removed on March 16, 2004, until the goal was changed to
adoption on October 18, 2005, father was incarcerated on three separate occasions. The first
incarceration lasted for one week in March 2004; the second incarceration was from February to
April 2005; and three days after his release in April, father was incarcerated again in connection
with the attempted rape, abduction, and malicious wounding of T.’s mother on April 24, 2005.
Father was sentenced to six years for these offenses, with five years suspended, and was
incarcerated at the time of the hearing in circuit court on the petition to change the goal to
adoption and to terminate father’s parental rights.
-2- The circuit court hearing was held on January 4, 2006. In support of its petition to
change the goal to adoption and to terminate father’s parental rights, DSS relied on father’s
failure to accomplish several goals. Specifically, father failed to undergo psychiatric therapy for
possible bipolar disorder, as recommended by his parenting capacity evaluation, and did not
complete a substance abuse evaluation. Without explanation, he also stopped visiting T. in
December 2004. DSS cited father’s inability to meet T.’s needs as the result of his frequent
incarcerations, as well as his failure to demonstrate a commitment to reunify with T., as
evidenced by his assaulting and abducting T.’s mother.
T., born September 25, 2003, and her half-brothers have resided with the same foster
parents from the time of their removal through the termination hearing. Brenda Dixon, their
foster mother, testified T. and her siblings are doing well under her care. Social worker Shelley
Matthews stated she had observed the children in the foster home on a monthly basis, and they
had “very much” bonded with their foster parents. At the time of the termination hearing, T. was
two years old.
Following the hearing, the circuit court granted the petition to change the goal to
adoption pursuant to Code § 16.1-282, as well as the petition to terminate father’s parental rights
pursuant to Code § 16.1-283(C)(2). This appeal followed.
Analysis
Father argues the trial court erred by changing the goal from return to home to adoption,
and in terminating his parental rights. Because we affirm the trial court’s decision to terminate
father’s parental rights, we also affirm its decision approving the change in goal to adoption.1
1 “Our decision to affirm the termination order necessarily subsumes this aspect of [his] appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3 (citing Richmond Dep’t of Soc. Servs. v. Carter, 28 Va. App. 494, 497, 507 S.E.2d 87, 88 (1998); Padilla v. Norfolk Div. of Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996)). -3- When reviewing a decision to terminate parental rights, we presume the circuit court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms, 46 Va. App. at 265-66, 616 S.E.2d at
769 (quoting Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,
659 (2005)). “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. at 266, 616
S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its
capacity as factfinder, therefore, the circuit court retains ‘broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,
9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
The trial court terminated father’s parental rights under Code § 16.1-283(C)(2). Code
§ 16.1-283(C)(2) requires clear and convincing evidence that termination is in the best interests
of the child and that
the parent . . . without good cause, ha[s] 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.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Willis
ERIC CHRISTOPHER LOGAN
v. Record Nos. 0341-06-1 and MEMORANDUM OPINION* 0363-06-1 PER CURIAM DECEMBER 5, 2006 CITY OF HAMPTON DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
(J. Robert Harris, III, on brief), for appellant. Appellant submitting on brief.
(Rachel Allen, Assistant City Attorney, on brief), for appellee. Appellee submitting on brief.
(Robert G. Saunders, Guardian ad litem; The Law Firm of Thomas L. Hunter, P.C., on brief), for the infant child. Guardian ad litem submitting on brief.
In a proceeding involving Eric C. Logan’s (“father”) minor child, T., father argues that
the trial court erred by changing the goal from return home to adoption. He also maintains the
trial court erred by terminating his parental rights. We disagree, and affirm the decision of the
trial court.
Background
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in
the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. (2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409
S.E.2d 460, 463 (1991)).
T., along with her two older half-brothers, was removed from her residence on March 16,
2004, when she was five months old. On March 11, 2004, T.’s mother had been arrested on
multiple outstanding felony warrants. The following day, father was arrested and charged with
six counts of felony child abuse of T.’s older half-brothers. The boys came under the care of the
Hampton Department of Social Services (“DSS”), and had severe belt marks, areas of scabbing,
and broken skin on their face, arms, and back.
Despite the arrests of T.’s parents, the initial goal established by DSS was to return T. to
her parents or to place her with her maternal grandmother. DSS established several goals in the
initial foster care service plan for father to accomplish T.’s return home. Father was required to
“complete a parenting capacity evaluation . . . and a substance abuse evaluation . . . and comply
with all recommendations . . . .” He was also required to “follow through with recommendations
of the Department,” and “demonstrate [his] commitment to work with the Department towards
the goal of reunification.” Furthermore, he was to visit T. at least once a month.
From the time T. was removed on March 16, 2004, until the goal was changed to
adoption on October 18, 2005, father was incarcerated on three separate occasions. The first
incarceration lasted for one week in March 2004; the second incarceration was from February to
April 2005; and three days after his release in April, father was incarcerated again in connection
with the attempted rape, abduction, and malicious wounding of T.’s mother on April 24, 2005.
Father was sentenced to six years for these offenses, with five years suspended, and was
incarcerated at the time of the hearing in circuit court on the petition to change the goal to
adoption and to terminate father’s parental rights.
-2- The circuit court hearing was held on January 4, 2006. In support of its petition to
change the goal to adoption and to terminate father’s parental rights, DSS relied on father’s
failure to accomplish several goals. Specifically, father failed to undergo psychiatric therapy for
possible bipolar disorder, as recommended by his parenting capacity evaluation, and did not
complete a substance abuse evaluation. Without explanation, he also stopped visiting T. in
December 2004. DSS cited father’s inability to meet T.’s needs as the result of his frequent
incarcerations, as well as his failure to demonstrate a commitment to reunify with T., as
evidenced by his assaulting and abducting T.’s mother.
T., born September 25, 2003, and her half-brothers have resided with the same foster
parents from the time of their removal through the termination hearing. Brenda Dixon, their
foster mother, testified T. and her siblings are doing well under her care. Social worker Shelley
Matthews stated she had observed the children in the foster home on a monthly basis, and they
had “very much” bonded with their foster parents. At the time of the termination hearing, T. was
two years old.
Following the hearing, the circuit court granted the petition to change the goal to
adoption pursuant to Code § 16.1-282, as well as the petition to terminate father’s parental rights
pursuant to Code § 16.1-283(C)(2). This appeal followed.
Analysis
Father argues the trial court erred by changing the goal from return to home to adoption,
and in terminating his parental rights. Because we affirm the trial court’s decision to terminate
father’s parental rights, we also affirm its decision approving the change in goal to adoption.1
1 “Our decision to affirm the termination order necessarily subsumes this aspect of [his] appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3 (citing Richmond Dep’t of Soc. Servs. v. Carter, 28 Va. App. 494, 497, 507 S.E.2d 87, 88 (1998); Padilla v. Norfolk Div. of Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996)). -3- When reviewing a decision to terminate parental rights, we presume the circuit court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms, 46 Va. App. at 265-66, 616 S.E.2d at
769 (quoting Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,
659 (2005)). “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. at 266, 616
S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its
capacity as factfinder, therefore, the circuit court retains ‘broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,
9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
The trial court terminated father’s parental rights under Code § 16.1-283(C)(2). Code
§ 16.1-283(C)(2) requires clear and convincing evidence that termination is in the best interests
of the child and that
the parent . . . without good cause, ha[s] 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.
Father argues the trial court’s decision to terminate his parental rights was erroneously
based solely upon his incarceration. He notes that he had not abused T., he was “opposed” to the
termination of his parental rights, and he “wished for his relatives to be considered as a possible
placement.”2
2 To the extent father argues that termination was inappropriate because DSS failed to investigate placement with his relatives, we note that he lodged no objection to the circuit’s ruling on this basis and, therefore, we decline to address this issue for the first time on appeal. See Rule 5A:18. -4- While father’s incarceration, standing alone, is not sufficient to support the trial court’s
termination of his parental rights, “it is a valid and proper circumstance 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.” Ferguson v. Stafford County
Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). By the same token, Code
§ 16.1-283(C)(2) contains no excuse for a parent’s failure to remedy the conditions leading to
foster care because he has been incarcerated for over twelve months subsequent to the child’s
placement in foster care.
The evidence showed not only that father had been repeatedly incarcerated during T.’s
placement in foster care, but that he had physically abused T.’s older half-brothers and assaulted
and abducted her mother. Futhermore, father failed to undergo psychiatric counseling and to
complete a substance abuse evaluation, as required by DSS to facilitate T.’s return to him. By
his actions and inactions, father failed to meet the requirements established in the foster care plan
for T.’s return.
“When addressing matters concerning 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. “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. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Even prior to his
incarceration, father failed to maintain visitation with T. and to complete the substance abuse
evaluation required by DSS. Furthermore, father failed to undergo psychiatric counseling for
bipolar disorder as recommended by his parenting capacity evaluation. Upon release from
incarceration in April 2005, father demonstrated his lack of commitment to T.’s return by
assaulting and abducting T.’s mother. Notably, father had been incarcerated on three separate
-5- occasions between March 2004 and the time of the termination hearing. “‘[P]ast actions and
relationships over a meaningful period serve as good indicators of what the future may be
expected to hold.’” Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990)
(quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)).
DSS proved by clear and convincing evidence that father, “without good cause, [was]
unwilling or unable within a reasonable period of time not to exceed twelve months . . . to
remedy substantially the conditions which led to or required continuation of” T.’s placement in
foster care. Furthermore, because T. had a strong bond with her foster parents and had limited
contact with father since infancy, the trial court did not err in finding that termination was in her
best interests.
Based upon the foregoing, the evidence was sufficient to support the trial court’s
termination of father’s parental rights and its decision to change the goal in the permanent foster
care service plan to adoption.
Affirmed.
-6-