Tiffany N. Hobson v. Petersburg Department of Social Services ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alston and Senior Judge Coleman
TIFFANY N. HOBSON
MEMORANDUM OPINION *
v. Record No. 1560-10-2 PER CURIAM
DECEMBER 7, 2010
PETERSBURG DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
(Del M. Mauhrine Brown, on brief), for appellant.
(Joan M. O’Donnell; J. Wicker Traylor, Guardian ad litem for the
minor children, on brief), for appellee.
On April 19, 2010, the trial court entered orders terminating the residual parental rights of
Tiffany N. Hobson (mother) to her two children pursuant to Code § 16.1-283(B), 16.1-283(C)(1)
and (2), and 16.1-283(E)(i). On appeal, mother argues that the trial court erred by (1) approving a
goal of adoption and terminating mother’s parental rights where there was no evidence that the
mother was beyond reasonable rehabilitative efforts and where the Petersburg Department of Social
Services (the Department) made no effort to rehabilitate mother before or after the children’s
removal from the home, and (2) violating mother’s due process rights by terminating her parental
rights without providing her an opportunity to rehabilitate herself when there was no indication that
she was beyond reasonable rehabilitative efforts. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the
decisions of the trial court. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“Clear and convincing evidence that the termination [of residual parental rights] is in the
child’s best interests is a requirement in common to termination of parental rights under Code
§ 16.1-283(B), (C), . . . or (E).” Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1,
8 n.5, 614 S.E.2d 656, 659 n.5 (2005). While the best interests of the child is “the paramount
consideration of a trial court” in a termination proceeding, Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991), terminations under Code
§ 16.1-283(B), (C), and (E) provide distinct, “individual bases upon which a petitioner may seek
to terminate residual parental rights,” City of Newport News v. Winslow, 40 Va. App. 556, 563,
580 S.E.2d 463, 466 (2003).
A termination under Code § 16.1-283(B) requires a finding that:
1. The neglect or abuse suffered by such child presented a
serious and substantial threat to his life, health or development;
and
2. It is not reasonably likely that the conditions which
resulted in such neglect or abuse can be substantially corrected or
eliminated so as to allow the child’s safe return to his parent or
parents within a reasonable period of time. In making this
determination, the court shall take into consideration the efforts
made to rehabilitate the parent or parents by any public or private
social, medical, mental health or other rehabilitative agencies prior
to the child’s initial placement in foster care.
Pursuant to Code § 16.1-283(C)(1), a parent’s residual parental rights to a child placed in
foster care may be terminated if the court finds that
the parent [has] . . . , without good cause, failed to maintain
continuing contact with and to provide or substantially plan for the
future of the child for a period of six months after the child’s
placement in foster care notwithstanding the reasonable and
appropriate efforts of social, medical, mental health or other
rehabilitative agencies to communicate with the parent . . . and to
strengthen the parent-child relationship.
Termination pursuant to Code § 16.1-283(C)(2) requires proof that the parent, “without
good cause, has been unwilling or unable within a reasonable period of time not to exceed twelve
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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
reasonable and appropriate efforts of services agencies.
Under Code § 16.1-283(E)(i), a trial court may terminate a parent’s rights if it finds that
“the residual parental rights of the parent regarding a sibling of the child have previously been
involuntarily terminated.”
In Fields, 46 Va. App. at 3, 614 S.E.2d at 657, a parent appealed to this Court from the
trial court’s decision to terminate her parental rights pursuant to Code § 16.1-283(C)(2) and
(E)(i). On appeal, she contended the evidence did not support the termination under Code
§ 16.1-283(C)(2), but she did not challenge the sufficiency of the evidence to sustain the
termination pursuant to Code § 16.1-283(E)(i). We found that, in light of the unchallenged
termination pursuant to Code § 16.1-283(E)(i), we were not required to consider the sufficiency
of the evidence to support the termination under Code § 16.1-283(C)(2). Fields, 46 Va. App. at
8, 614 S.E.2d at 659.
Likewise, mother contends the evidence was insufficient to support the terminations
pursuant to Code § 16.1-283(B). She argues that the Department failed to provide any services
to her. However, mother does not challenge the terminations pursuant to Code § 16.1-283(C)(1),
(C)(2), or (E)(i). Mother’s failure to challenge the terminations under Code § 16.1-283(C) and
(E) renders moot her claims regarding the terminations under Code § 16.1-283(B), and we need
not consider those claims.
Furthermore, with respect to mother’s second assignment of error and her related
argument, mother acknowledges that this issue of an alleged violation of her due process rights
was not raised at the trial court. “The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
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S.E.2d 484, 488 (1998). See Rule 5A:18. Mother asks that the Court consider this issue under
the ends of justice exception. “In order to avail oneself of the exception, a defendant must
affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have
occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)
(citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). Mother
did not prove that a miscarriage of justice occurred; therefore, we will not consider this issue.
For the foregoing reasons, the trial court’s rulings are summarily affirmed. Rule 5A:27.
Affirmed.
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