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CALLOWAY v. BEDFORD COUNTY DEPARTMENT OF SOCIAL SERVICES



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CALLOWAY

v.

BEDFORD COUNTY
DEPARTMENT OF SOCIAL SERVICES


MARCH 21, 2000

Record No. 2687-99-3

JEROME P. CALLOWAY, SR.

v.

BEDFORD COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF BEDFORD COUNTY

James W. Updike, Jr., Judge

(William G. Wentz, on brief), for appellant.

(J. G. Overstreet, County Attorney, on brief),
for appellee.

(R. Louis Harrison, Jr.; R. Louis Harrison,
Jr., P.C., on brief), guardian ad litem for the
minor children.

Present: Judges Elder, Bumgardner and Lemons[1]


MEMORANDUM OPINION [2]
PER CURIAM

Jerome P. Calloway, Sr., appeals the decision
of the circuit court terminating his parental rights to his
children. On appeal, Calloway contends that the trial court erred
in terminating his parental rights because there was insufficient
evidence that Calloway abused alcohol. 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.

On appeal, under familiar principles, we view
the evidence and all reasonable inferences in the light most
favorable to the Bedford County Department of Social Services
(DSS), the party prevailing below. See Martin v.
Pittsylvania County Dep’t of Social Servs.
, 3 Va. App. 15,
20, 348 S.E.2d 13, 16 (1986). "Where, as here, the court
hears 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." Id.
"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 v. Fairfax
County Dep’t of Human Dev.
, 13 Va. App. 123, 128, 409 S.E.2d
460, 463 (1991) (citations omitted).

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."

Id.

The evidence presented that the mother placed
the children with DSS pursuant to an entrustment agreement in
1997. Based upon a pre-treatment screening, Calloway was
recommended for intensive outpatient services with ARISE, a
substance abuse program. Calloway attended the initial sessions.
However, he was dismissed in August 1998 following three
unexcused absences. He also tested positive for alcohol two times
in July 1998, although he denied drinking. At trial, Calloway
admitted that he had a problem drinking beer. He testified that
he quit drinking within the last two months and began attending
Alcoholics Anonymous and Narcotics Anonymous. He felt that they
were helping him. Calloway admitted that he tested positive for
cocaine but denied ever using drugs. He also admitted that he
knew he needed to attend counseling before he could see his
children, but that he did not get counseling for over two years.

DSS presented evidence that Calloway had a
history of violence towards the mother of his children and with
the children when he was intoxicated. A protective order was
entered against him in 1997. At the time of the trial, Calloway
was under house arrest on unspecified charges.

The trial court found that DSS presented clear
and convincing evidence sufficient to meet the statutory
requirements of Code ? 16.1-283(C)(2). That section
provides, in pertinent part, that parental rights may be
terminated when the trial 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 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. 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 or parents and
a public or private social, medical, mental health or other
rehabilitative agency shall constitute prima facie evidence of
this condition.

Id.

The record supports the trial court’s factual
determination. Calloway failed to meet his obligations under the
foster care plans. He failed to complete the necessary parenting
class. He did not complete his alcohol treatment program with
ARISE, nor did he seek alternative treatment until after his
parental rights were terminated in the juvenile and domestic
relations district court. Testimony in the mother’s parental
rights termination trial, transcripts of which were introduced
into evidence, documented incidents of Calloway’s drinking and
abusive behavior. The mother admitted that Calloway hit her
within the last year.

At trial, Calloway did not argue that he was in
a position to care for his children, as he was currently under
house arrest. He sought to continue the children’s foster care in
the hope that he would be in a position to care for them at some
point in the future. We find no merit in this contention.
"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).

The record supports the trial court’s
determination that DSS presented clear and convincing evidence
sufficient to meet the requirements of Code
? 16.1-283(C)(2). Accordingly, the decision of the circuit
court is summarily affirmed.

Affirmed.

 

FOOTNOTES:

[1] Justice Lemons participated in
the decision of this case prior to his investiture as a Justice
of the Supreme Court of Virginia.

[2] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

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