My Thi Nguyen v. Fairfax County Department of Family Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

MY THI NGUYEN
MEMORANDUM OPINION*
v. Record No. 0938-04-4 PER CURIAM
SEPTEMBER 28, 2004
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

(Matthew W. Greene; Smith & Greene, P.L.L.C., on briefs), for
appellant.

(David P. Bobzien, County Attorney; Peter D. Andreoli, Deputy
County Attorney; Dennis R. Bates, Senior Assistant County
Attorney; Donna R. Banks, Assistant County Attorney, on brief), for
appellee.

(Phong T. Nguyen, Guardian ad litem for the minor children, on
brief).

On March 19, 2004, the trial court entered orders terminating the parental rights of My

Thi Nguyen (appellant) to her minor sons, D.N. and C.N., pursuant to Code §§ 16.1-283(C)(1)

and 16.1-283(C)(2). On appeal, appellant contends the trial court should have limited its

consideration to whether the facts and circumstances supported a termination of parental rights

pursuant to Code § 16.1-283(B). 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.

-1-
 BACKGROUND

At an adjudicatory hearing on October 2, 2002, the Fairfax County Juvenile and

Domestic Relations District Court (juvenile court) found D.N. and C.N. were abused and

neglected as defined by Code § 16.1-228. Appellant did not appeal this finding to the circuit

court, nor did she appear at a subsequent dispositional hearing on the matter on December 10,

2002.

On December 10, 2003, acting upon petitions filed by the Fairfax County Department of

Family Services (the Department), the juvenile court terminated appellant’s residual parental

rights to D.N. and C.N. The juvenile court found clear and convincing evidence of the facts and

circumstances required for termination pursuant to Code § 16.1-283(C)(2). Appellant appealed

the juvenile court’s decision to the circuit court. Following a March 18, 2004 evidentiary

hearing, the trial court terminated appellant’s parental rights to D.N. and C.N., finding the

evidence sufficient to establish the standards and conditions found in both Code

§§ 16.1-283(C)(1) and 16.1-283(C)(2).

ANALYSIS

Appellant’s sole contention on appeal is that because the juvenile court previously had

found D.N. and C.N. were abused and neglected, the Department was limited to seeking

termination of appellant’s residual parental rights pursuant to Code § 16.1-283(B).1 In pertinent

part, Code § 16.1-283(B) provides that “[t]he residual parental rights of a parent . . . of a child

found by the court to be neglected or abused and placed in foster care . . . may be terminated if

1
The Department contends appellant failed to preserve this issue for appeal because she
did not note a specific objection to the trial court’s ruling. However, appellant raised the issue in
a motion to strike at the conclusion of the Department’s evidence, and renewed her motion at the
conclusion of all the evidence. Moreover, appellant’s attorney endorsed the orders terminating
appellant’s parental rights as “seen and objected to.” Because the record demonstrates the trial
court considered the same argument appellant advances on appeal, the issue was preserved for
consideration on appeal. See Rule 5A:18.
-2-
the court finds, based upon clear and convincing evidence, that it is in the best interests of the

child” and that other conditions exist. Pursuant to Code § 16.1-283(C), a parent’s residual

parental rights “of a child placed in foster care . . . may be terminated if the court finds, based

upon clear and convincing evidence, that it is in the best interests of the child” and either

1. The parent [has] . . . , 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 . . . and to
strengthen the parent-child relationship[,] . . . or

2. 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 the
reasonable and appropriate efforts of social, medical, mental health
or other rehabilitative agencies to such end. . . .

In Fairfax County Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 512 S.E.2d 830

(1999), a juvenile court entered an order finding a child “abused or neglected” within the

meaning of Code § 16.1-228(4).2 On appeal of this decision, the circuit court refused to admit

2
For a child to be “abused or neglected” for purposes of Code § 16.1-228(4), the child’s
parent, or person responsible for the child, must have committed, or allowed to have been
committed, an unlawful sexual act upon the child. See Code § 16.1-228(4). A child is “abused
or neglected” pursuant to Code § 16.1-228(1) where his

parents or other person responsible for his care creates or inflicts,
threatens to create or inflict, or allows to be created or inflicted
upon such child a physical or mental injury by other than
accidental means, or creates a substantial risk of death,
disfigurement or impairment of bodily or mental functions,
including, but not limited to, a child who is with his parent or other
person responsible for his care either (i) during the manufacture or
attempted manufacture of a Schedule I or II controlled substance,
or (ii) during the unlawful sale of such substance by that child's
parents or other person responsible for his care, where such
manufacture, or attempted manufacture or unlawful sale would
constitute a felony violation of § 18.2-248 . . . .

-3-
evidence proving the child was “abused or neglected” as defined by Code § 16.1-228(1). D.N.,

29 Va. App. at 404, 512 S.E.2d at 832. While noting that the circuit court’s jurisdiction was

derivative upon appeal from the juvenile court, this Court stated:

[A]n appeal from the juvenile court must be heard de novo by the
circuit court. “‘A de novo hearing means a trial anew, with the
burden of proof remaining upon the party with whom it rested in
the juvenile court.’” A trial de novo in the circuit court “annuls the
judgment of the [juvenile court] as completely as if there had been
no previous trial . . . and . . . grants to a litigant every advantage
which would have been [available to the litigant] had the case been
tried originally in [the circuit] court.” “‘A court which hears a case
de novo, which disregards the judgment of the court below, which
hears evidence anew and new evidence, and which makes final
disposition of the case, acts not as a court of appeals but as one
exercising original jurisdiction.’”

It follows from these principles that, at a trial de novo in the
circuit court, the parties are not restricted to the evidence presented
before the juvenile court. The circuit court must consider all
relevant evidence, even if such evidence had not been considered
by the juvenile court.

Id. at 406, 512 S.E.2d at 832-33 (citations omitted). This Court concluded the trial court erred in

refusing to admit evidence proving the child to be abused and neglected under a standard other

than the provision upon which the juvenile court had made its finding. Id. at 407, 512 S.E.2d at

833.

Here, the Department invoked the jurisdiction of the juvenile court by filing petitions

requesting the termination of appellant’s parental rights pursuant to Code § 16.1-283. Upon the

appeal from the juvenile court’s decision to circuit court, the Department was not limited to the

evidence and arguments presented in the juvenile court. In the appeal de novo, the Department

was entitled to every advantage it would have been due had the case originated in the circuit

court. See D.N., 29 Va. App. at 406, 512 S.E.2d at 832. Thus, the Department was entitled to

prove, and the circuit court had the authority to find, that appellant’s parental rights should be

terminated pursuant to Code § 16.1-283(C).

-4-
 Accordingly, we find appellant’s appeal is without merit, and we summarily affirm the

decision.3

Affirmed.

3
Appellant does not contend the evidence was insufficient to prove the facts and
conditions required by Code §§ 16.1-283(C)(1) or 16.1-283(C)(2), and we do not consider this
question.
-5-