COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Annunziata UNPUBLISHED
JORGE ALVARENGA, SR. MEMORANDUM OPINION * v. Record No. 1642-12-4 PER CURIAM MARCH 19, 2013 ALEXANDRIA DEPARTMENT OF COMMUNITY & HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge
(Douglas A. Steinberg, on brief), for appellant.
(James L. Banks, Jr.; Jill A. Schaub; Matthew W. Greene; Ellen M. Dague, Guardian ad litem for the minor child; Office of the City Attorney; Greene Law Group PLLC, on brief), for appellee.
Jorge Alvarenga, Sr. (father) appeals from an August 24, 2012 circuit court order
terminating his residual parental rights to his child pursuant to Code § 16.1-283(C)(1) and (2).
On appeal, father argues the trial court erred by terminating his parental rights 1) “after the
Department . . . failed to properly consider family placement with members of [his] family,”
2) after the Department “failed to properly consider placement with [him] after his term of
incarceration,” and 3) after finding father failed “to rectify the conditions that led to the child
being placed in foster care due to his incarceration and possible removal to El Salvador.”
Upon reviewing the record and briefs of the parties, we conclude this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
The Department obtained custody of father’s son on November 18, 2010, the day after
the child’s birth, after the child’s mother executed an entrustment agreement with an initial goal
of returning home. In late 2011, the child’s mother executed a permanent entrustment agreement
with the Department and consented to the termination of her parental rights. At that time, the
Department sought the involuntary termination of father’s residual parental rights. Father was
incarcerated at the time of his son’s birth and remains incarcerated. He has had no contact with
his child.
Father was convicted of felony participation in a street gang and has an anticipated
release date of July 2014. Father also faces likely deportation to El Salvador upon his release
from incarceration.
The Department presented evidence demonstrating they explored possible relative
placement for the child but found no suitable, willing relatives.
Analysis
‘“In matters of child welfare, trial courts are vested with broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.’” Id. at 128, 409 S.E.2d at 463
(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). 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.” Peple v. Peple, 5 Va. App. 414, 422, 364
S.E.2d 232, 237 (1988).
-2- I.
Father argues that the trial court erred in holding that the Department complied with its
duty to investigate possible relative placements.
Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to relatives of the child, including grandparents.” Code § 16.1-283(A). The
“Department has a duty to produce sufficient evidence so that the court may properly determine
whether there are relatives willing and suitable to take custody of the child, and to consider such
relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at
465.
The Department investigated father’s relatives as potential placement options. Father
initially provided only his mother’s contact information. Father’s mother would not permit the
Department to conduct a background check “because she was concerned . . . how that would
affect her current status in this country.” The Department explained father’s mother was not a
legal resident of the United States and neither father nor his mother had ever provided the
Department with any contact information for father’s father. The Department identified only one
relative, an aunt, in El Salvador and explained they were unable to determine what resources
father’s aunt would have to care for the child and that the aunt had never had any contact with
the child. Finally, the Department spoke with father’s cousin in California but she did not have
current housing suitable to accommodate another child. Father did not provide contact
information for any other relatives.
The Department presented sufficient evidence to the trial court regarding the relatives
offered by father as possible placements. The Department was not required to undergo “‘a vain
and useless undertaking’” by further investigating unsuitable options. Hawthorne v. Smyth
Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 139, 531 S.E.2d 639, 644 (2000) (quoting Virginia
-3- Passenger & Power Co. v. Fisher, 104 Va. 121, 129, 51 S.E. 198, 201 (1905) (citations omitted)).
The trial court did not err in concluding that the Department satisfactorily investigated possible
relative placements.
II. and III.
Father asserts the trial court erred by terminating his parental rights because the
Department “failed to properly consider placement with the father after his term of
incarceration” and erred by concluding father failed “to rectify the conditions that led the child
being placed in foster care due to [father’s] incarceration and possible removal to El Salvador.”
In support of his second and third assignments of error, father includes a number of
citations to case law, but little actual argument. He appears to argue the trial court based the
termination of his parental rights solely on the fact that he was incarcerated. He also suggests
“there is no testimony as to the father being offered any services.” Father made neither of these
arguments before the trial court.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
We “will not consider an argument on appeal which was not presented to the trial court.”
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of
Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its
attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Furthermore, we will not consider an argument on appeal that is different from the specific
argument presented to the trial court, even if it relates to the same issue. See Buck v.
Commonwealth, 247 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Annunziata UNPUBLISHED
JORGE ALVARENGA, SR. MEMORANDUM OPINION * v. Record No. 1642-12-4 PER CURIAM MARCH 19, 2013 ALEXANDRIA DEPARTMENT OF COMMUNITY & HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge
(Douglas A. Steinberg, on brief), for appellant.
(James L. Banks, Jr.; Jill A. Schaub; Matthew W. Greene; Ellen M. Dague, Guardian ad litem for the minor child; Office of the City Attorney; Greene Law Group PLLC, on brief), for appellee.
Jorge Alvarenga, Sr. (father) appeals from an August 24, 2012 circuit court order
terminating his residual parental rights to his child pursuant to Code § 16.1-283(C)(1) and (2).
On appeal, father argues the trial court erred by terminating his parental rights 1) “after the
Department . . . failed to properly consider family placement with members of [his] family,”
2) after the Department “failed to properly consider placement with [him] after his term of
incarceration,” and 3) after finding father failed “to rectify the conditions that led to the child
being placed in foster care due to his incarceration and possible removal to El Salvador.”
Upon reviewing the record and briefs of the parties, we conclude this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
The Department obtained custody of father’s son on November 18, 2010, the day after
the child’s birth, after the child’s mother executed an entrustment agreement with an initial goal
of returning home. In late 2011, the child’s mother executed a permanent entrustment agreement
with the Department and consented to the termination of her parental rights. At that time, the
Department sought the involuntary termination of father’s residual parental rights. Father was
incarcerated at the time of his son’s birth and remains incarcerated. He has had no contact with
his child.
Father was convicted of felony participation in a street gang and has an anticipated
release date of July 2014. Father also faces likely deportation to El Salvador upon his release
from incarceration.
The Department presented evidence demonstrating they explored possible relative
placement for the child but found no suitable, willing relatives.
Analysis
‘“In matters of child welfare, trial courts are vested with broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.’” Id. at 128, 409 S.E.2d at 463
(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). 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.” Peple v. Peple, 5 Va. App. 414, 422, 364
S.E.2d 232, 237 (1988).
-2- I.
Father argues that the trial court erred in holding that the Department complied with its
duty to investigate possible relative placements.
Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to relatives of the child, including grandparents.” Code § 16.1-283(A). The
“Department has a duty to produce sufficient evidence so that the court may properly determine
whether there are relatives willing and suitable to take custody of the child, and to consider such
relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at
465.
The Department investigated father’s relatives as potential placement options. Father
initially provided only his mother’s contact information. Father’s mother would not permit the
Department to conduct a background check “because she was concerned . . . how that would
affect her current status in this country.” The Department explained father’s mother was not a
legal resident of the United States and neither father nor his mother had ever provided the
Department with any contact information for father’s father. The Department identified only one
relative, an aunt, in El Salvador and explained they were unable to determine what resources
father’s aunt would have to care for the child and that the aunt had never had any contact with
the child. Finally, the Department spoke with father’s cousin in California but she did not have
current housing suitable to accommodate another child. Father did not provide contact
information for any other relatives.
The Department presented sufficient evidence to the trial court regarding the relatives
offered by father as possible placements. The Department was not required to undergo “‘a vain
and useless undertaking’” by further investigating unsuitable options. Hawthorne v. Smyth
Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 139, 531 S.E.2d 639, 644 (2000) (quoting Virginia
-3- Passenger & Power Co. v. Fisher, 104 Va. 121, 129, 51 S.E. 198, 201 (1905) (citations omitted)).
The trial court did not err in concluding that the Department satisfactorily investigated possible
relative placements.
II. and III.
Father asserts the trial court erred by terminating his parental rights because the
Department “failed to properly consider placement with the father after his term of
incarceration” and erred by concluding father failed “to rectify the conditions that led the child
being placed in foster care due to [father’s] incarceration and possible removal to El Salvador.”
In support of his second and third assignments of error, father includes a number of
citations to case law, but little actual argument. He appears to argue the trial court based the
termination of his parental rights solely on the fact that he was incarcerated. He also suggests
“there is no testimony as to the father being offered any services.” Father made neither of these
arguments before the trial court.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
We “will not consider an argument on appeal which was not presented to the trial court.”
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of
Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its
attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Furthermore, we will not consider an argument on appeal that is different from the specific
argument presented to the trial court, even if it relates to the same issue. See Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that appellant’s
-4- failure to raise the same specific arguments “before the trial court precludes him from raising
them for the first time on appeal”).
Father did not make these arguments before the trial court and is therefore barred from
presenting them for the first time on appeal. A trial court must be alerted to the precise issue to
which a party objects. Neal v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525
(1992).
Accordingly, Rule 5A:18 bars our consideration of these issues on appeal.
Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke these exceptions. See e.g., Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“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.” (emphasis added)). We will not consider, sua sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
To the extent father challenges the sufficiency of the evidence supporting the termination
of his parental rights under Code § 16.1-283(C)(1) 1 and (C)(2), 2 we note:
1 A court may terminate parental rights if:
The parent or parents have, 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 or parents and to strengthen the parent-child relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition. Code § 16.1-283(C)(1). 2 A court may terminate parental rights if:
The parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve
-5- [S]ubsection C termination decisions hinge not so much on the magnitude of the problem that created the original danger to the child, but on the demonstrated failure of the parent to make reasonable changes. Considerably more “retrospective in nature,” subsection C requires the court to determine whether the parent has been unwilling or unable to remedy the problems during the period in which he has been offered rehabilitation services.
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005)
(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580
S.E.2d 463, 466 (2003)).
Father has been incarcerated since before his child’s birth. Father has had no contact
with his son and provided no evidence regarding how the conditions that led to the foster
placement of his child had been remedied. At the time of the termination hearing, the child had
already been in foster care for more than twelve months and would be nearly four years old
before father’s release from incarceration. “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). The trial court did not err in terminating
father’s parental rights under Code § 16.1-283(C)(1) and (C)(2).
For the reasons stated above, we summarily affirm the decision terminating father’s
parental rights. See Rule 5A:27.
Affirmed.
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(C)(2).
-6-