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NELSON v. PETERSBURG DEPARTMENT OF SOCIAL SERVICES




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NELSON

v.

PETERSBURG DEPARTMENT OF SOCIAL SERVICES


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

Record No. 0683-03-2

JACK MICHAEL NELSON

v.

PETERSBURG DEPARTMENT OF

SOCIAL SERVICES

 

MEMORANDUM OPINION[1]PER
CURIAM

OCTOBER 28, 2003

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG

Pamela S. Baskervill, Judge

(Edie T. Conley, on brief), for appellant.

(Joan M. O’Donnell, on brief), for appellee.

(George F. Marable, III, on brief), Guardian ad litem for
the infant children.

Jack Michael Nelson appeals the decisions of the trial court
terminating his residual parental

rights to his four children. 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

Procedural Background

A written statement of facts in lieu of a transcript establishes
that Jack Michael Nelson is

the father of four children who were born June 16, 1997,
November 3, 1998, January 30, 2000,

and June 20, 2001.

On September 26, 2001, the Petersburg Department of Social
Services filed petitions in

the juvenile and domestic relations district court pursuant to
Code ? 16.1-228, alleging the

children were abused and neglected. The juvenile court entered
emergency orders removing the

children from the home and awarding temporary custody to the
Department. The juvenile court

later found that the neglect and abuse suffered by the children
presented a serious and substantial

threat to their life, health or development. Upon the
Department’s application, the juvenile court

approved foster care service plans for the children with the
goal of returning the children to the

home. Ten months later, the Department petitioned the juvenile
court to terminate father’s

residual parental rights. The juvenile court granted the
petitions.

Father appealed the orders to the circuit court. Following a
trial de novo, the trial court

entered orders terminating father’s residual parental rights to
each child. In each order, the trial

court recited evidence it considered pertinent to that
specifically named child, including

recommendations from the children’s guardian ad litem and
Court-Appointed Special Advocate

in support of termination. The trial court made the following
findings and rulings in each of the

four orders:

9. The neglect or abuse suffered by this child presented a
serious

and substantial threat to his life, health or development. This

Court specifically finds that 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 father within a reasonable period of time.

11. This Court specifically finds that the father, without good

cause, has been unwilling or unable within a reasonable period
of

time to remedy substantially the conditions which led to or

required continuation of the child’s placement in foster care.

The trial court also found that father subjected the children to
aggravated circumstances.

In paragraph 12 of the orders involving two of the children, the
trial court stated:

The Court specifically finds that the father has subjected

the child to aggravated circumstances. The conditions in the
home

evinced a wanton or depraved indifference to human life. In

addition, this child was living in the home when two other
children

of the father also living in the home were subjected to chronic

abuse by starvation, placing their health, safety and welfare at
risk

and resulting in serious bodily injury.

In paragraph 12 of the orders for the other two children, the
trial court stated:

The Court specifically finds that the father has subjected the
child

to aggravated circumstances. The conditions in the home evinced

a wanton or depraved indifference to human life. In addition,
this

child and a sibling were subjected to chronic abuse by
starvation,

placing their health, safety and welfare at risk and resulting
in

serious bodily injury.

The trial court found "it is in the best interests of the
child to terminate the father’s

residual parental rights in order to provide the child with a
safe and permanent placement."

Father’s attorney signed each order "SEEN AND OBJECTED
TO."

Issues Preserved and Issues Raised on Appeal

In his opening brief, father presented two questions: (1)
whether the trial court

committed reversible error by finding that the Department
"produced clear and convincing

evidence, pursuant to Code ? 16.1-283, to support termination
as to his four children"; and (2)

whether the trial court committed reversible error by finding
that father "without good cause, had

been unwilling or unable within a reasonable period of time to
remedy substantially the

conditions which led to or required continuation of the
children’s placement in foster care."

In the argument portion of his brief, father contends that
"due to [his] lengthy period of

incarceration at Riverside Regional Jail, he did not have
adequate opportunity to substantially

remedy the conditions that led to or required continuation of
his four children’s placement in

foster care." He further asserts that the "trial court
erred in finding that the Department met [its]

evidentiary burden" to support termination under Code ?
16.1-283. Specifically, he contends he

"followed through with available rehabilitative efforts
both during his incarceration and upon his

release, prior to his hearing in February 2003."

Discussion

Code ? 16.1-283 provides multiple bases upon which a trial
court may terminate a

parent’s residual parental rights. A close reading of the trial
court’s orders reflects that it found

sufficient evidence to terminate father’s residual parental
rights under subsections (B), (C) and

(E) of Code ? 16.1-283.

Code ? 16.1-283(B) provides that a parent’s residual parental
rights "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.

Code ? 16.1-283(C)(2) provides that a parent’s residual
parental rights "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:"

The 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.

Code ? 16.1-283(E) provides that the residual parental rights
of a parent of a child in

foster care "may be terminated by the court if the court
finds, based upon clear and convincing

evidence, that it is in the best interests of the child and that
. . . (iv) the parent has subjected any

child to aggravated circumstances."

In his brief, father argued that he "made substantial
progress towards fulfilling all the

requirements of the Foster Care Plans," and he
substantially complied with the Department’s

recommendations. Referring specifically to Code ? 16.1-283(B),
father contended the

Commonwealth failed to present sufficient evidence to justify
termination under that subsection.

The record, however, contains a written statement of facts that
does not specify objections or

grounds for objections. When the record is so deficient,
"we cannot assume that appellant’s

objection and reasons were proffered." Lee v. Lee, 12 Va.
App. 512, 516, 404 S.E.2d 736, 738

(1991) (en banc).

"No ruling of the trial court . . . will be considered as a
basis for reversal unless the

objection was stated together with the grounds therefor at the
time of the ruling . . . ." Rule

5A:18. The Court of Appeals will not consider an argument on
appeal which was not presented

to the trial court. Jacques v. Commonwealth, 12 Va. App. 591,
593, 405 S.E.2d 630, 631 (1991).

Ordinarily, endorsement of an order "Seen and objected
to"

is not specific enough to meet the requirements of Rule 5A:18

because it does not sufficiently alert the trial court to the
claimed

error. Such an endorsement is sufficient to satisfy Rule 5A:18
only

if "the ruling made by the trial court was narrow enough to
make

obvious the basis of appellant’s objection."

Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 926
(2000) (quoting Mackie v. Hill,

16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)). Therefore, Rule
5A:18 bars our consideration

of father’s arguments on appeal.

Moreover, the trial court found alternative grounds upon which
to terminate father’s

parental rights. See paragraph 12 in orders containing findings
using language from Code

? 16.1-283(E). Father did not contest these findings. In
addition, testimony from Theaster Smith

of the Department and Lisa Smith from the Riverside Regional
Jail demonstrated that father did

not timely cooperate with or participate in recommended programs
and classes available to him.

Thus, the record does not reflect any reason to invoke the good
cause or ends of justice

exceptions to Rule 5A:18.

Accordingly, we affirm the decisions of the trial court.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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