Clifton Lewis Flora, III v. Shenandoah County Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Decker and Senior Judge Annunziata
CLIFTON LEWIS FLORA, III
MEMORANDUM OPINION*
v. 	Record No. 2217-14-4 	PER CURIAM
MARCH 3, 2015
SHENANDOAH COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
(Nancie S. Williams; Pond, Pond & Williams, P.C., on brief), for
appellant.
(Rachel Errett Figura, Assistant County Attorney; Brandon Keller,
Guardian ad litem for the infant child; Allen & Allen, P.C., on brief),
for appellee.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Clifton Lewis Flora, III (“father”) appeals the termination of his residual parental rights to
his child, H.F., pursuant to Code § 16.1-283(C)(2). He maintains the “[t]he evidence at trial was
insufficient to show that [he] was unable to remedy substantially the conditions which led to or
required continuation of the child’s foster care placement.” 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. Rule 5A:27.
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 v. Hanover Dep’t of Soc. Servs., 46
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Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie Cnty. 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 Fields, 46 Va. App. at 7, 614 S.E.2d at 659) (other 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)).
Pursuant to Code § 16.1-283(C)(2),
[t]he residual parental rights of a parent or parents of a child placed
in foster care . . . may be terminated if the court finds, based upon
clear and convincing evidence, that it is in the best interests of the
child and that:
* 	* 	* 	* 	* 	* 	*
[t]he parent or parents, without good cause, have 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
or parents, without good cause, have 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. The court shall take into consideration the prior
efforts of such agencies to rehabilitate the parent or parents prior to
the placement of the child in foster care.
At the time H.F. was placed in foster care in October 2012, she was five years old, and
father was incarcerated. Father has an extensive criminal record dating back to the 1980s, and

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had been incarcerated numerous times prior to H.F.’s removal. At the time of the termination
hearing in October 2014, he was serving a five-year, seven-month sentence in connection with
thirteen felonies committed in 2012. He also had felony charges pending in West Virginia. He
was not scheduled to be released from prison until March 2017.
Despite his incarceration, father asserts the evidence proved he was able to “remedy
substantially the conditions which led to or required continuation of the child’s foster care
placement.” Code § 16.1-283(C)(2). He maintains his incarceration does not justify termination
of his parental rights. He points out he has “a good and close relationship with his child,”
corresponded with her regularly, and followed the advice of Shenandoah County Department of
Social Services in his correspondence. He also notes he attended counseling and parenting
classes and was taking his medications on a regular basis. Finally, father asserts he had an
“established plan for the child upon his release from incarceration,” including a home for the
child and employment.
While long-term incarceration does not, per se, authorize
termination of parental rights . . . 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 children will be served by termination.
Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).
Father was incarcerated during the entire time H.F. was in foster care. While he contends
he had a strong bond with her, foster care worker Jennifer Allen testified that H.F. was “very
resistant to talk [to father] on the phone and became rather upset.” Allen noted that H.F. was not
very talkative and had to be “prompt[ed] . . . a lot.” After a few phone calls, Allen decided to
stop the calls after H.F. became “very tearful and kind of shut down.” H.F., who was aware her
father was incarcerated, explained “she was scared of jail and . . . she didn’t want to call
anymore.” Allen described H.F. as “adamant” in her resistance. Allen suggested sending letters

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as an alternative to the phone calls, but after the child sent a couple of letters, she rejected
Allen’s suggestion to send additional correspondence to her father.
Allen noted H.F. had a “loving relationship” with her foster parents, and referred to them
as “momma” and “daddy.” She was affectionate toward them and asked when they could adopt
her and her half-sister.
At the time of the termination hearing in circuit court, H.F. had been in foster care over
two years, and father faced a lengthy prison sentence and pending felony charges. While he
testified he had arranged housing and employment upon his release, he provided no evidence
corroborating or detailing this general plan.
“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 [or her] responsibilities.”
Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
Virginia law recognizes the “maxim that, sometimes, the most
reliable way to gauge a person’s future actions is to examine those
of his past.” Petry v. Petry, 41 Va. App. 782, 793, 489 S.E.2d 458,
463 (2003). “As many courts have observed, one permissible
‘measure of a parent’s future potential is undoubtedly revealed in
the parent’s past behavior with the child.” Id. (citation omitted).
“No one can divine with any assurance the future course of human
events. Nevertheless, past actions and relationships over a
meaningful period serve as good indicators of what the future may
be expected to hold.” Winfield v. Urquhart, 25 Va. App. 688,
696-97, 492 S.E.2d 464, 467 (1997) (citations omitted).
Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770.
Here, father’s extensive criminal record, his lengthy incarceration, and his potential
incarceration on pending charges, coupled with his inability to provide a specific plan for H.F.’s
care in the near future, provided the trial court with sufficient evidence to conclude he was

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unable to provide H.F. with the stable home and care necessary to meet her needs. Furthermore,
H.F. had spent little time with father and had developed a strong bond with her foster parents.
Accordingly, clear and convincing evidence proved that father was unable to remedy
substantially the conditions that led to or required continuation of H.F.’s foster care placement,
within a reasonable period of time, and that termination of father’s parental rights was in her best
interests.
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.