COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner UNPUBLISHED
SHONTIA LEFTWICH MEMORANDUM OPINION * v. Record No. 1708-12-3 PER CURIAM MARCH 19, 2013 ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge
(A. Kristin Shandor, on briefs), for appellant. Appellant submitting on briefs.
(Daniel J. Callaghan, City Attorney; Heather P. Ferguson, Assistant City Attorney; L. Brad Braford, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Shontia Leftwich (mother) appeals from an August 21, 2012 circuit court order
terminating her residual parental rights to her child pursuant to Code § 16.1-283(C)(1). On
appeal, mother argues the trial court erred by terminating her parental rights because the
Roanoke City Department of Social Services (the Department) failed to prove 1) she failed to
maintain continuing contact with and to provide or substantially plan for the future of her child
for a period of six months after the child’s placement in foster care, or 2) that termination is in
the best interests of the child.
Upon reviewing the record and briefs of the parties, we conclude this appeal is without
merit. Accordingly, we affirm the decision of the trial court.
* 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 first removed mother’s child, T.T., from mother’s care on November 2,
2008, after T.T. exhibited unexplained injuries which included numerous broken bones. Mother
stated that he had fallen between the bed and the wall, an explanation that was not consistent
with the injuries T.T. sustained. Over the course of the following year, mother completed all of
the responsibilities required by the Department and the child was returned to mother’s care on
November 30, 2009.
On February 12, 2010, the Department received a complaint indicating T.T. had a severe
abdominal injury caused by non-accidental trauma. The treating emergency room physician
testified that this was a potentially life-threatening injury. The Department again received
custody of the child pursuant to an emergency removal order.
The initial foster care service plan required mother to obtain stable employment, obtain
stable housing, attend individual counseling, and attend regular visitation with T.T. The
Department provided mother with a referral for individual counseling, but mother did not
“follow through” with the sessions. Although mother initially visited T.T. weekly, those visits
ended in September 2011 due to mother’s incarceration. Since her incarceration and subsequent
transfer to a detention and diversion program, mother’s contact with the Department has been
inconsistent. She has had no direct contact or written contact with her child. The Department
encouraged mother to remain in contact with T.T. by sending letters or cards, but mother made
no attempt to contact her child. Appellant has not provided the Department with any plan for
-2- T.T. and has been unable to inform the Department when she would be in a position to care for
her child.
T.T. is doing extremely well in foster care. He has bonded well with his foster family,
with whom he has spent almost three years, which is most of his life. He is doing well in school
and is a happy, healthy, normal child.
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).
I.
Code § 16.1-283(C)(1) requires proof, by clear and convincing evidence that:
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.
Moreover,
subsection 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. -3- 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)).
The trial court concluded mother failed to maintain any contact with her child during her
incarceration. The trial court noted “[t]here has simply been no communication.” The court also
found mother had no plan for the future of the child and was “simply hoping” the child would
live with her upon her release. The record fully supports the trial court’s conclusion that mother,
without good cause, failed to maintain contact with her child or to provide or plan for her child’s
future for a period of over six months after the child’s placement in foster care.
In addition, whether services must be offered to an incarcerated parent was addressed by
this Court in Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575
(2004). There, we stated, “as long as he was incarcerated, the Department would have no avenue
available to offer [the father] services aimed at assisting him in regaining custody of the child.”
Id. at 163-64, 590 S.E.2d at 583. “‘Reasonable and appropriate’ efforts can only be judged with
reference to the circumstances of a particular case. Thus, a court must determine what
constitutes reasonable and appropriate efforts given the facts before the court.” Ferguson v.
Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992). In this
case, the record supports the trial court’s determination that the Department made reasonable and
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner UNPUBLISHED
SHONTIA LEFTWICH MEMORANDUM OPINION * v. Record No. 1708-12-3 PER CURIAM MARCH 19, 2013 ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge
(A. Kristin Shandor, on briefs), for appellant. Appellant submitting on briefs.
(Daniel J. Callaghan, City Attorney; Heather P. Ferguson, Assistant City Attorney; L. Brad Braford, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Shontia Leftwich (mother) appeals from an August 21, 2012 circuit court order
terminating her residual parental rights to her child pursuant to Code § 16.1-283(C)(1). On
appeal, mother argues the trial court erred by terminating her parental rights because the
Roanoke City Department of Social Services (the Department) failed to prove 1) she failed to
maintain continuing contact with and to provide or substantially plan for the future of her child
for a period of six months after the child’s placement in foster care, or 2) that termination is in
the best interests of the child.
Upon reviewing the record and briefs of the parties, we conclude this appeal is without
merit. Accordingly, we affirm the decision of the trial court.
* 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 first removed mother’s child, T.T., from mother’s care on November 2,
2008, after T.T. exhibited unexplained injuries which included numerous broken bones. Mother
stated that he had fallen between the bed and the wall, an explanation that was not consistent
with the injuries T.T. sustained. Over the course of the following year, mother completed all of
the responsibilities required by the Department and the child was returned to mother’s care on
November 30, 2009.
On February 12, 2010, the Department received a complaint indicating T.T. had a severe
abdominal injury caused by non-accidental trauma. The treating emergency room physician
testified that this was a potentially life-threatening injury. The Department again received
custody of the child pursuant to an emergency removal order.
The initial foster care service plan required mother to obtain stable employment, obtain
stable housing, attend individual counseling, and attend regular visitation with T.T. The
Department provided mother with a referral for individual counseling, but mother did not
“follow through” with the sessions. Although mother initially visited T.T. weekly, those visits
ended in September 2011 due to mother’s incarceration. Since her incarceration and subsequent
transfer to a detention and diversion program, mother’s contact with the Department has been
inconsistent. She has had no direct contact or written contact with her child. The Department
encouraged mother to remain in contact with T.T. by sending letters or cards, but mother made
no attempt to contact her child. Appellant has not provided the Department with any plan for
-2- T.T. and has been unable to inform the Department when she would be in a position to care for
her child.
T.T. is doing extremely well in foster care. He has bonded well with his foster family,
with whom he has spent almost three years, which is most of his life. He is doing well in school
and is a happy, healthy, normal child.
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).
I.
Code § 16.1-283(C)(1) requires proof, by clear and convincing evidence that:
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.
Moreover,
subsection 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. -3- 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)).
The trial court concluded mother failed to maintain any contact with her child during her
incarceration. The trial court noted “[t]here has simply been no communication.” The court also
found mother had no plan for the future of the child and was “simply hoping” the child would
live with her upon her release. The record fully supports the trial court’s conclusion that mother,
without good cause, failed to maintain contact with her child or to provide or plan for her child’s
future for a period of over six months after the child’s placement in foster care.
In addition, whether services must be offered to an incarcerated parent was addressed by
this Court in Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575
(2004). There, we stated, “as long as he was incarcerated, the Department would have no avenue
available to offer [the father] services aimed at assisting him in regaining custody of the child.”
Id. at 163-64, 590 S.E.2d at 583. “‘Reasonable and appropriate’ efforts can only be judged with
reference to the circumstances of a particular case. Thus, a court must determine what
constitutes reasonable and appropriate efforts given the facts before the court.” Ferguson v.
Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992). In this
case, the record supports the trial court’s determination that the Department made reasonable and
appropriate efforts to communicate with mother and to strengthen the parent-child relationship.
II.
Mother also argues the trial court erred by finding the Department proved by clear and
convincing evidence that the termination of her residual parental rights was in the best interests
of the child.
-4- Mother failed to present this issue to 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
failure to raise the same specific arguments “before the trial court precludes him from raising
them for the first time on appeal”).
In her challenge to the sufficiency of the evidence supporting termination, mother never
argued termination was not in the child’s best interests. 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).
In her reply brief, mother asserts that this Court should review this assignment of error
under the “ends of justice” exception to Rule 5A:18. “In order to avail oneself of the exception,
a [party] 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) (emphasis added). The ends of justice exception should be used
sparingly. Its purpose is to allow this Court to avoid upholding a “miscarriage of justice.”
Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The Supreme
-5- Court of Virginia has stated that to apply the ends of justice exception “requires a determination
not only that there was error . . . but also that application of the exception is necessary to avoid a
grave injustice.” Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 434 (2005). This
occurs only in “rare instances.” Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793
(1981). Here, mother has given us no specific reason to invoke the exception to Rule 5A:18, and
we decline to do so sua sponte.
Accordingly, we affirm the decision terminating mother’s parental rights.
Affirmed.
-6-