Thomas Eckley v. City of Virginia Beach DSS ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
THOMAS ECKLEY
MEMORANDUM OPINION *
v. Record No. 1863-99-1 PER CURIAM
FEBRUARY 8, 2000
CITY OF VIRGINIA BEACH
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
(Curtis T. Brown; Law Offices of Curtis T.
Brown, on brief), for appellant.
(Leslie L. Lilley, City Attorney; Nianza E.
Wallace II, Assistant City Attorney, on
brief), for appellee.
Thomas Eckley appeals from the decision terminating his
parental rights to his daughter. He contends that his parental
rights could not be terminated because (1) his daughter was not in
his legal or physical custody at the time she was taken into the
custody of the Department of Social Services, (2) the trial judge
relied on evidence of the mother's unfitness to terminate his
parental rights, and (3) the Department failed to provide services
to him as required by Code § 16.1-283(B). Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
consideration of a trial [judge] is the child's best interests."
Logan v. Fairfax County Dep't of Human Development, 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991). "Code § 16.1-283 embodies
'the statutory scheme for the . . . termination of residual
parental rights in this Commonwealth' [which] . . . 'provides
detailed procedures designed to protect the rights of the parents
and their child,' balancing their interests while seeking to
preserve the family." Lecky v. Reed, 20 Va. App. 306, 311, 456
S.E.2d 538, 540 (1995) (citations omitted). "'In matters of a
child's welfare, trial [judges] are vested with broad discretion
in making the decisions necessary to guard and to foster a child's
best interests.'" Logan, 13 Va. App. at 128, 409 S.E.2d at 463(citation omitted). The trial judge's findings, "'when based on
evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.'" Id. (citation
omitted).
The trial judge ruled that the City of Virginia Beach
presented sufficient evidence to terminate Eckley's parental
rights under Code § 16.1-283(B). That section provides as
follows:
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The residual parental rights of a parent or
parents of a child found by the court to be
neglected or abused and placed in foster
care as a result of (i) court commitment,
(ii) an entrustment agreement entered into
by the parent or parents or (iii) other
voluntary relinquishment by the parent or
parents 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:
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.
Prima facie evidence of the conditions set out in subsection
(B)(2) include proof that
b. The parent or parents have habitually
abused or are addicted to intoxicating
liquors, narcotics or other dangerous drugs
to the extent that proper parental ability
has been seriously impaired and the parent,
without good cause, has not responded to or
followed through with recommended and
available treatment which could have
improved the capacity for adequate parental
functioning; or
c. The parent or parents, without good
cause, have not responded to or followed
through with appropriate, available and
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reasonable rehabilitative efforts on the
part of social, medical, mental health or
other rehabilitative agencies designed to
reduce, eliminate or prevent the neglect or
abuse of the child.
Code § 16.1-283(B)(2).
Father Did Not Have Custody
Eckley contends that his parental rights could not be
terminated by the trial judge because he did not have either
physical or legal custody of his daughter when the Department
obtained her custody. This contention is without merit. Code
§ 16.1-283(B) did not expressly impose any jurisdictional or
evidentiary requirement that Eckley have custody of the child when
foster care began. The statute required the City to present
evidence concerning the problems which led to the child's
placement in foster care, whether those problems were remedied,
and whether the child could be returned safely to the custody of
either parent. Therefore, Eckley's argument that his parental
rights could not be terminated because he did not have custody
when his daughter was placed into foster care is without merit.
Mother's Failure to Regain Custody
Eckley contends that the trial judge improperly imputed to
him the mother's failure to prove her fitness as a parent.
Although Eckley's brief includes citations to the record where
this issue purportedly was raised and preserved, we find no
indication in the record that he raised this issue in the trial
court. "The Court of Appeals will not consider an argument on
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appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18. Therefore, we will not consider this argument.
Failure to Provide Services
Eckley also contends that the City failed to prove that the
Department provided him with appropriate services to address his
underlying problem of alcohol, as required by Code
§ 16.1-283(B). We disagree.
Sharon Rosenbaum testified that she was involved with the
Eckley family for a year beginning in March 1995 and that the
family did not cooperate with her efforts. The Department was
involved again with Eckley, his wife, and daughter in February
1997 because of incidents of Eckley's domestic violence and the
parents' alcohol abuse. In March 1997, a judge of the juvenile
and domestic relations district court ordered Eckley to attend the
Comprehensive Substance Abuse Program, participate in any
treatment recommended by Alcoholics Anonymous, attend a parenting
class, and cooperate with the Department and the Court Appointed
Special Advocate. The judge later ordered Eckley to attend an
anger management class, and to undergo psychological, psychosocial
and psychosexual evaluations. When the Department obtained
custody of the daughter in October 1997, Eckley was barred from
contact with his wife and daughter by a protective order because
he had assaulted his wife.
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Nina Musselman testified that Eckley minimally complied with
some of the requirements of the court order. He completed only
one of two psychological evaluation sessions and failed to
complete the other ordered evaluations. Musselman testified that
the Department did not provide Eckley with other evaluations and
services because "[w]e were trying to get through the first
treatment program and evaluations to see what exactly . . . Eckley
needed." Although Eckley attended visitation with his daughter
when he was not working or incarcerated, he left several
visitations early because he was angry. The City also introduced
evidence that Eckley was convicted in June 1999 on another charge
of assault arising from an incident in February 1999.
At the hearing, Eckley admitted that he was an alcoholic. He
testified that he completed the substance abuse program and an
anger management class but did not get certificates because he did
not pay all the fees. He testified that he did not complete the
psychological testing because he had to work and could never
arrange another appointment. He also testified that the most
recent assault charge arose when he and his girlfriend were
drinking, his girlfriend said something about his daughter, and he
"just snapped." Although Eckley failed to cooperate with the
Department, he testified that in the future he would "get . . .
straight" and "get everything [he] needed to do" once he was
released from prison. On cross-examination, Eckley admitted that
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he would continue to allow his daughter to see his wife even if
his wife's parental rights were terminated.
This evidence supports the trial judge's findings that the
City presented clear and convincing evidence that it was in the
daughter's best interests to terminate Eckley's parental rights
and that it was not reasonably likely the conditions which led to
her foster care placement could be substantially corrected or
eliminated to allow her return within a reasonable time. The
evidence also supports the trial judge's finding that Eckley
habitually abused alcohol to the extent that proper parenting was
seriously impaired and that he failed to follow through with
recommended treatment.
Accordingly, we summarily affirm the decision of the circuit
court.
Affirmed.
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