                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


SHEBA BENILLE HOWARD
                                            MEMORANDUM OPINION * BY
v.   Record No. 1275-99-2               JUDGE RUDOLPH BUMGARDNER, III
                                                 MAY 16, 2000
CHARLOTTESVILLE DEPARTMENT
 OF SOCIAL SERVICES


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

             Llezelle Agustin Dugger (Carmel, Nelson &
             Dugger, PLC, on brief), for appellant.

             Lisa R. Kelley, Deputy City Attorney (Office
             of the Charlottesville City Attorney, on
             brief), for appellee.


     On May 4, 1999 the trial court terminated Sheba Benille

Howard's residual parental rights in her two-year-old daughter,

Rhalausia Nashe Howard, pursuant to Code § 16.1-283(C).       The

mother argues the trial court erred in finding the evidence

sufficient to terminate her rights.     For the following reason,

we affirm.

     The child was born September 25, 1996, when the mother was

nineteen years old.     In August 1997, the mother left the child

with her friend Brenda Shifflett.     At the time, the mother was

unemployed and receiving financial assistance (ADC).        The mother

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
told Shifflett she was going to Richmond for a hearing on

shoplifting charges against her.   The mother went into hiding.

She gave up her apartment without notifying her landlord and

moved her belongings to her father's house.   The mother did not

turn herself in and was a fugitive from the law.   The mother

never suggested a plan for retrieving the child.   Shifflett

notified DSS of the mother's failure to maintain contact with

the child and her failure to leave sufficient diapers, formula,

or money for her care.

      During August 1997, the mother's father also took care of

the child, but was either unable or unwilling to continue doing

so.   On August 26, 1997, he brought the mother to DSS and she

signed an entrustment agreement giving DSS custody of the child.

The juvenile and domestic relations district court approved the

agreement.   The child was treated at the emergency room for a

virus and malnutrition.   At eleven months old she had only been

given formula, which was not age appropriate.

      Under the entrustment agreement, the mother agreed to

resolve her legal status as a fugitive.   On September 26, 1997,

DSS filed a foster care plan with the goal of returning the

child to the mother.   Under this plan, the mother was to show an

ability to provide the child with appropriate and stable care,

accept responsibility for her prior legal acts, take parenting

and nutrition classes, maintain contact with the child once a

week, obtain a substance abuse assessment and follow through

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with recommended treatment, provide monthly child support, and

maintain close contact with DSS.   Between August 1997 and

January 1998, DSS made reasonable efforts to contact the mother.

     The mother did not resolve her fugitive status and did not

contact her child or DSS until January 1998.   At that time, she

informed DSS she was arrested in October 1997 for arson and had

been incarcerated since then.   The mother was convicted of

setting fire to her mother's porch while her mother was inside

the house.   DSS met with the mother, gave her a copy of the 1997

foster care service plan, and outlined her obligations under

that plan.   When DSS advised the mother of the substance abuse

assessment, the mother denied she needed this service.

     A foster care review plan was filed April 8, 1998.      This

plan also had the goal of returning the child to the mother.

Since January, the mother had sent two letters to the child.

The mother advised DSS that she was incarcerated for

Charlottesville offenses but noted that she had pending charges

in Albemarle and Chesterfield counties.   DSS did not know what

the pending charges were or how long the mother might be

incarcerated.   Under the review plan, the mother was to write to

the child every two weeks, maintain monthly contact with DSS to

advise her legal status and length of her incarceration, and to

document her attempts to obtain the services required by the

1997 foster care plan.



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     In May 1998, the mother was convicted of felony possession

of cocaine on November 17, 1997, while she was incarcerated.

The court sentenced her to ten years with all but six months

suspended.   She was to be on good behavior for ten years and

would be on supervised probation for a year upon her release.

     DSS filed a third plan in August 1998 with the goal of

adoption.    The mother failed to obtain substance abuse services,

or participate in parenting or nutrition classes during her

almost two-year incarceration.    Since January, the mother had

written only four letters to the child.   While she did maintain

fairly regular contact with DSS, the mother was unable to offer

a definite release date.   The juvenile and domestic relations

district court terminated the mother's residual parental rights

in the child on January 25, 1999.    The mother appealed.

     The trial court held a de novo trial on April 19, 1999.

The mother testified that since January 1999, she had taken one

anger management class.    Nonetheless, she was involved in an

altercation with another inmate in March 1999 and at the time of

the hearing was still in solitary confinement.   Despite her

convictions, the mother claimed that she was guilty of neither

the arson nor the possession offenses.    While incarcerated, the

mother had parenting and life skills management classes, and

narcotics anonymous, alcoholics anonymous, and substance abuse

and counseling services available to her.   While the mother

testified she put herself on the wait list for several classes

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in March 1999, she had not obtained the services DSS required

under the 1997 plan.   The mother anticipated a release date of

April 1999 and testified she was willing to follow up on

required services after that time.

     On May 5, 1999, the trial court found that termination of

the mother's residual parental rights was in the child's best

interest under Code § 16.1-283(C).     The trial court concluded

that the mother failed to provide or substantially plan for the

child's future "for a period exceeding six months" after her

placement in foster care; failed to remedy substantially within

a reasonable period of time the conditions which led to the

child's placement; and failed to make substantial progress

toward eliminating the conditions which led to that placement in

accordance with her obligations under DSS's plans.    The mother

argues the trial court erred in finding the evidence sufficient

to terminate her residual parental rights.

     Residual parental rights may be terminated if it is in the

child's best interest and the parent has not remedied

substantially the conditions that led to their foster care

placement within one year of their placement.     See Code

§ 16.1-283(C)(2).   The child's best interest is the paramount

concern.   "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.,

                               - 5 -
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citations

omitted).   Where the trial court hears the evidence ore tenus,

its decision is entitled to great weight and will not be

disturbed on appeal unless plainly wrong or without evidence to

support it.     See Lowe v. Dep't of Pub. Welfare, 231 Va. 277,

282, 343 S.E.2d 70, 73 (1986).

     The evidence established that the mother was not living

with the child in August 1997 when she gave DSS custody.     At

that time, she was unemployed, had never worked for more than a

few months at a time, received public assistance, abandoned her

housing, and was a fugitive from the police.    From August 1997

to January 1998, the mother failed to provide for the child and

failed to maintain contact with her or with DSS.    The mother's

failure to turn herself in violated the entrustment agreement.

     DSS directed the mother to obtain a substance abuse

evaluation and take parenting classes.    It also required her to

show that she could provide the child with an appropriate and

stable home.    The mother was apprised of these obligations in

January 1998.    Despite the availability of resources and

services, the mother had only completed one anger management

class by April 1999.    DSS was appropriately concerned with

returning the child to the mother since she was subject to a

ten-year suspended sentence conditioned upon good behavior.       The

mother did not accept responsibility for her actions while she

was incarcerated and had no plans for caring for herself, let

                                 - 6 -
alone the child, upon her release.       During her incarceration,

she was convicted of possession of cocaine and placed in

solitary confinement for fighting with another inmate.

Additionally, in April 1999 the child was almost three years old

and had lived with her mother for less than a year.

     We conclude that there is clear and convincing evidence to

support the trial court's finding that the mother has been

unwilling or unable to remedy the conditions that led to the

child's foster care placement.    Accordingly, we affirm the trial

court's judgment.

                                                             Affirmed.




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