                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Petty and Senior Judge Coleman
Argued by teleconference


ASIA GREEN
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2692-05-2                                   JUDGE SAM W. COLEMAN III
                                                                   OCTOBER 10, 2006
GREENE COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                       FROM THE CIRCUIT COURT OF GREENE COUNTY
                             Richard J. Jamborsky, Judge Designate

                  S. Braxton Puryear for appellant.

                  Andrew Wilder, Deputy County Attorney, for appellee.


        Asia Green’s (appellant) parental rights to her four-year-old daughter were terminated

pursuant to Code § 16.1-283(C). On appeal, she contends the trial court erred because the evidence

failed to prove that she ever abused the child, or threatened the child’s life, health or development.

We find no error and affirm the trial court’s judgment.1

        When considering termination of a parent’s residual rights to a child, “the paramount

consideration of a trial court is 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). On review, “[a] trial court is

presumed to have thoroughly weighed all the evidence, considered the statutory requirements,


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
          The record reflects that the guardians ad litem for the child and the mother were
provided notice of this appeal pursuant to Rule 5A:6. However, the guardians ad litem did not
file appellate briefs. According to Standard J of the “Standards to Govern the Performance of
Guardians Ad Litem for Children,” effective September 1, 2003, a guardian ad litem is required
to “[f]ile appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and
ensure the child is represented by a [guardian ad litem] in any appeal involving the case.”
and made its determination based on the child’s best interests.” Farley v. Farley, 9 Va. App. 326,

329, 387 S.E.2d 794, 795 (1990). “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.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463.

          Code § 16.1-283(C)(2) requires proof, by clear and convincing evidence, that (1) the

termination is in the best interests of the child, (2) “reasonable and appropriate” services have

been offered to help the parent “substantially remedy the conditions which led to or required

continuation of the child’s foster care placement,” and (3) despite these services, the parent has

failed, “without good cause,” to remedy those conditions “within a reasonable amount of time

not to exceed twelve months from the date the child was placed in foster care.”

          We view the evidence in the “light most favorable” to the prevailing party in the trial

court and grant to that party the benefit of “all reasonable inferences fairly deducible therefrom.”

Logan, 13 Va. App. at 128, 409 S.E.2d at 463. “[T]he trial judge’s ‘determination is considered

to have settled all conflicts in the evidence in favor of the prevailing party.’” Richmond Dep’t of

Soc. Servs. v. Crawley, 47 Va. App. 572, 580, 625 S.E.2d 670, 674 (2006) (quoting Farley, 9

Va. App. at 328, 387 S.E.2d at 796). “Where the record contains credible evidence in support of

the findings made by [the trial] court, we may not retry the facts or substitute our view of the

facts.” Ferguson v. Stafford County Dep’t of Soc. Serv., 14 Va. App. 333, 336, 417 S.E.2d 1, 4

(1992).

          Here, DSS proved by clear and convincing evidence that termination of Green’s parental

rights was in her child’s best interests. M.G. was born premature on August 6, 2001, weighing

one pound, eight ounces. She was admitted to the hospital’s neonatal care ward and remained

there for seven weeks. While in her mother’s care, M.G. remained underweight, was

developmentally delayed, and was diagnosed with “failure to thrive.” A diagnosis of “failure to

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thrive” includes inadequate growth and weight gain that presumes inadequate nutrition. In

October of 2003 DSS took emergency custody of M.G. While in foster care, the child began to

gain weight and to develop properly.

       The evidence proved that mother suffers from Crohn’s disease, depression, and bi-polar

disorder. The initial foster care plan prepared by DSS provided for stabilization of mother’s

physical and mental health by requiring that she comply with her doctors’ recommendations

regarding appointments and medications. Although her physical and mental disorders are

treatable, mother did not follow through with her therapy and medical appointments, nor did she

take her prescribed medications. While M.G. was in her care, mother was hospitalized numerous

times due, in large part, to her non-compliance with prescribed medication and appointments

with her doctors. DSS also provided mother with counseling, parenting classes, and other

services; however, mother never completed any of the programs offered her. In December 2004

DSS determined that mother’s compliance with the services that were being offered was

insufficient to justify continuing to work towards the initial goal of return to parent. Instead DSS

determined that services to achieve the goal of adoption were in M.G.’s best interest.

       The evidence further proved that while M.G. was in foster care she grew and began to

develop normally. As visitation with her mother increased to four days a week, M.G.’s weight

decreased, thus visits with mother were curtailed. Since being placed in her current foster home,

M.G.’s height and weight have increased, and she appears to be playful, active, and talkative

when with her foster parents.

       DSS presented clear and convincing evidence that mother had not substantially remedied

the conditions that brought her child into foster care. Mother has never provided a stable home

environment nor has she had a strong relationship with father. At the time of the trial court’s

termination hearing, the child had been in foster care for twenty-one months. Mother never

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became medically or emotionally healthy. Nothing in the record suggests a reasonable

likelihood that mother’s medical or emotional conditions would be remedied, or that mother

would ever be able to assume responsibility for the child’s care. “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 [her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc.

Serv., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). The record supports the trial court’s

finding that clear and convincing evidence proved the statutory requirements of Code

§ 16.1-283(C)(2) and that termination of appellant’s residual parental rights was in the child’s

best interest.

                                           CONCLUSION

        For the reasons stated, we find the trial court did not err by terminating appellant’s

parental rights. Accordingly, we affirm.

                                                                                      Affirmed.




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