COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
WENDY KAY SWEARENGIN
MEMORANDUM OPINION * BY
v. Record No. 1798-00-3 SAM W. COLEMAN III
JUNE 26, 2001
DEPARTMENT OF SOCIAL SERVICES OF THE
CITY OF STAUNTON
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Humes J. Franklin, Jr., Judge
John W. Appleford (Law Offices of John W.
Appleford, on briefs), for appellant.
(James Glick; Vellines, Cobbs, Goodwin &
Glass, P.L.C., on brief), for appellee.
Wendy Kay Swearengin appeals the decision of the circuit
court terminating her parental rights to her sons, Joshua and
Jacob. She contends on appeal that the circuit court erred in
terminating her parental rights because it was bound by the
juvenile and domestic relations district court consent decree
which had as its agreed goal the return of her two sons to her
home. She argues that the juvenile and domestic relations
district court decree was based upon a contractual entrustment
agreement which was binding upon the parties and that agreement,
when approved by the juvenile court, became the law of the case
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and was binding on the circuit court. Swearengin asserts that
the Department of Social Services (DSS) was bound by the
agreement which precluded it from seeking termination of her
residual parental rights and for DSS to do so would be a breach
of the contract which the juvenile and domestic relations
district court approved. Because these issues were not raised
in the de novo circuit court hearing, they were not properly
preserved for appeal and we cannot consider them here for the
first time. Rule 5A:18. Accordingly, we affirm the trial
court.
ISSUES ON APPEAL
Swearegin presents the following questions on appeal in her
opening brief:
I. Did the Agreement of the parties on
October 15, 1998 providing for foster care
for the Swearengin children while appellant
was in prison followed by return to the
mother of their custody upon her release,
and the subsequent Order of the Juvenile and
Domestic Relations District Court entered on
January 14, 1999 approving that Agreement
and foster care plan, become the law of the
case so as to preclude the subsequent entry
by the Juvenile and Domestic Relations
District Court and Circuit Courts of orders
terminating appellant's parental rights?
II. Did the circuit court err in ordering
the termination of appellant's parental
rights after the Juvenile and Domestic
Relations District Court had erred in
directing appellee to file for such
termination because of "the parents'
extensive history with the court system,"
and the fact "both parents are
incarcerated," when (a) all parties to the
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dispute had agreed that the mutual plan was
foster care for the children followed by
return home upon appellant's release from
prison; and (b) that plan had in fact been
approved by the Juvenile and Domestic
Relations District Court?
Swearengin contends that she preserved the foregoing
questions for appeal based upon the following circuit court
proceeding:
The objection was made and the questions
thereby preserved by the filing by appellant
of the Agreed Order (App. 7), as Defendant's
Exhibit A in defense of the parental rights
termination petition, and by appellant's
unsuccessful request of the court to enforce
the Agreed Order as written and to deny the
petition. No transcript of the hearing was
made so as to memorialize the specific time
this request was made.
"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. The record fails to show that Swearengin raised
or argued in the trial court the issues she now raises on
appeal. The trial court's letter opinion and final order do not
reflect that appellant raised those issues before it, the final
order was signed without comment or objection by Swearengin's
attorney, and the letter opinion indicates that the only issue
raised and argued by Swearengin in the trial court was whether
DSS bore its burden to prove by clear and convincing evidence
"the necessary elements under Section 16.1-283." Because
Swearegin argues issues on appeal other than the sufficiency of
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the evidence to support the order of termination, Rule 5A:18
bars our consideration of these questions on appeal.
The filing of the "Agreed Order" from the juvenile and
domestic relations district court and merely requesting that the
court enforce that order in the de novo proceeding was
insufficient to place the circuit court on notice of
Swearengin's contentions that the return-to-home provision of
the entrustment agreement was contractually binding on the
parties and had become the controlling law of the case.
Without a pleading or argument presented in the circuit court
expressly presenting those issues to the circuit court,
Swearengin did not raise these questions in the circuit court
and has not preserved the issues for appeal.
Furthermore, the "Agreed Order" contains no statements
indicating that Swearengin argued in the juvenile court that the
"return-to-home" provision of the entrustment agreement was
contractually binding on DSS and on the courts. Moreover,
because we review appeals from courts of record, Code
§ 16.1-405, the "Agreed Order" from the juvenile court does not
preserve an issue being appealed to this Court from the circuit
court. See Code § 16.1-136 (an appeal to a circuit court from a
court not of record is tried de novo).
Thus, because Swearengin's claims of breach of contract and
application of the law of the case doctrine were not raised in
the de novo hearing in the circuit court, see Commonwealth v.
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Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876 (2000); American
Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 S.E.2d 511,
514 (1993), and because trial courts are vested with broad
discretion in making decisions regarding a child's best
interests, Logan v. Fairfax County Dep't of Human Development,
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991), the record
reflects no reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18. Accordingly, the judgment of the
trial court is affirmed.
Affirmed.
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