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COOPER v. VIRGINIA BEACH DEPARTMENT OF SOCIAL SERVICES




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COOPER

v.

VIRGINIA BEACH DEPARTMENT OF SOCIAL SERVICES


COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Clements and Senior Judge Willis

Record No. 0645-03-1

LATOYLA COOPER

v.

VIRGINIA BEACH DEPARTMENT OF

SOCIAL SERVICES

 

MEMORANDUM OPINION[1]
BY JUDGE JEAN HARRISON CLEMENTS

SEPTEMBER 30, 2003

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Edward W. Hanson, Jr., Judge

(Adrianne L. Bennett; Berry, Ermlich, Lomax &

Bennett, on brief), for appellant. Appellant

submitting on brief.

(Leslie L. Lilley, City Attorney; Nianza E.

Wallace II, Associate City Attorney, on

brief), for appellee. Appellee submitting on

brief.

(Lorraine Baysek, on brief), Guardian ad litem

for the infant child.

Latoyla Cooper (mother) appeals the circuit court’s February

26, 2003 order finding that she neglected her infant daughter,
M.

On appeal, mother contends the evidence is insufficient to
support

the trial court’s finding of neglect. We disagree and affirm the

trial court’s decision.

BACKGROUND

On June 14, 2002, mother took her two-week-old daughter to

visit a friend in a second floor apartment. While there, mother

argued with her friend and was asked to leave the residence. As

mother left the apartment, M. slipped from her stroller and fell

down the stairs, fracturing her skull. On June 17, 2002, the

Department of Social Services (the Department) removed M. from

Cooper. M. remains in foster care.

ANALYSIS

Mother contends the evidence presented at trial failed to

establish by a preponderance of the evidence that she
"abused or

neglected" the infant, as defined in Code ? 16.1-228(1).

We are unable to review this claim because the evidence

included in the appendix filed in this case consists only of

mother’s testimony. The appendix does not indicate what acts

the Department alleged constituted neglect or the evidence the

Department presented to support the allegations. We cannot

determine the sufficiency of the evidence without that

information.

The appendix must include "any

testimony and other incidents of the case

germane to the questions presented," Rule

5A:25(c)(3) . . . . "The appendix is a tool

vital to the function of the appellate

process in Virginia. . . . By requiring the

inclusion of all parts of the record germane

to the issues, the Rules promote the cause

of plenary justice." Thrasher v. Burlage,

219 Va. 1007, 1009-10, 254 S.E.2d 64, 66

(1979) (per curiam). Thus, the filing of an

appendix that complies with the Rules, is

"essential to an informed collegiate

decision." Id. Because the appendix filed

in this case does not contain parts of the

record that are essential to the resolution

of the issue before us, we will not decide

the issue.

Patterson v. City of Richmond, 39 Va. App. 706, 717, 576
S.E.2d

759, 764-65 (2003).

We do not presume on appeal that the trial court has erred.

In fact,

"[w]e have many times pointed out that on

appeal the judgment of the lower court is

presumed to be correct and the burden is on

the appellant to present to us a sufficient

record from which we can determine whether

the lower court has erred in the respect

complained of. If the appellant fails to do

this, the judgment will be affirmed."

Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d

255, 256-57 (1961)).

Because the appendix is insufficient to decide the present

issue, we affirm the judgment of the trial court.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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