COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Willis
JAMES SPENCER CARR
MEMORANDUM OPINION *
v. Record No. 0153-08-3 PER CURIAM
JULY 22, 2008
PULASKI COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge Designate
(Michael J. Sobey, on brief), for appellant.
(Clifford L. Harrison; Suzanne Bowen, Guardian ad litem for the
minor child; Harrison & Turk, P.C., on brief), for appellee.
On December 21, 2007, the trial court entered an order terminating the residual parental
rights of James Spencer Carr (father) to his minor son, J.C. The trial court found clear and
convincing evidence proved the circumstances required for termination pursuant to Code
§ 16.1-283(B) and § 16.1-283(C)(2). On appeal, father’s first question presented challenges the
proof of conditions necessary for termination pursuant to Code § 16.1-283(C)(2). In his second
question presented, father contends the trial court violated his constitutional rights, specifically his
due process rights, “based on the proposition that he did not complete any requirements of a
foster care plan when it is undisputed that no requirements were placed on him and no goals
were set for him under any foster care plan.” For the following reasons, we summarily affirm the
trial court’s decision. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“[C]lear and convincing evidence that the termination [of residual parental rights] is in
the child’s best interests is a requirement in common to termination of parental rights under Code
§ 16.1-283(B) [or] (C) . . . .” Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 8
n.5, 614 S.E.2d 656, 659 n.5 (2005). While the best interests of the child is “the paramount
consideration of a trial court” in a termination proceeding, Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991), terminations under Code
§ 16.1-283(B) and the subsections of Code § 16.1-283(C) provide distinct, “individual bases
upon which a petitioner may seek to terminate residual parental rights.” City of Newport News
Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466 (2003).
A termination under Code § 16.1-283(B) requires a finding 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. . . .
Termination pursuant to Code § 16.1-283(C)(2) requires proof that the parent, “without
good cause, ha[s] 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 reasonable and appropriate efforts” of services agencies.
In Fields, 46 Va. App. at 3, 614 S.E.2d at 657, a parent appealed to this Court from the
trial court’s decision to terminate her parental rights pursuant to Code § 16.1-283(C)(2) and
Code § 16.1-283(E)(i). On appeal, she contended the evidence did not support the termination
under Code § 16.1-283(C)(2), but she did not challenge the sufficiency of the evidence to sustain
the termination pursuant to Code § 16.1-283(E)(i). This Court found that, in light of the
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unchallenged termination pursuant to Code § 16.1-283(E)(i), it was not required to consider the
sufficiency of the evidence to support the termination under Code § 16.1-283(C)(2). Fields, 46
Va. App. at 8, 614 S.E.2d at 659.
Likewise, father contends the evidence was insufficient to support the termination
pursuant to Code § 16.1-283(C)(2), but does not challenge the termination pursuant to Code
§ 16.1-283(B). Father’s failure to challenge the termination under Code § 16.1-283(B) renders
moot his claim regarding the termination under Code § 16.1-283(C)(2), and we need not consider
it.
Furthermore, with respect to father’s Question Presented 2 and his related argument, we
find nothing in the record or the written statement of facts filed in lieu of a transcript to indicate
that father alleged a violation of his due process rights before the circuit court, as he now raises
on appeal. “The Court of Appeals 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). See Rule 5A:18.
Accordingly, Rule 5A:18 bars our consideration of this question 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).
Accordingly, we summarily affirm the trial court’s decision.
Affirmed.
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