COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED
EDEBIRI TEMITOPE AIHEVBA
MEMORANDUM OPINION*
v. Record No. 1004-13-4 PER CURIAM
OCTOBER 29, 2013
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Charles J. Maxfield, Judge
(Karen A. Hainer; Hainer Porras LLC, on brief), for appellant.
(David P. Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy
County Attorney; Matthew J. Marcialis, Assistant County Attorney,
on brief), for appellee.
(Margaret R. Vaughn, Guardian ad litem for the minor children,
on brief).
Edebiri Temitope Aihevba (father) appeals from March 8, 2013 circuit court orders
terminating his residual parental rights to his two children pursuant to Code § 16.1-283(C)(1)
and (2). On appeal, father argues the trial court erred (1) by finding the Fairfax County
Department of Family Services (the Department) “met its burden to prove by clear and
convincing evidence that [his] rights should be terminated,” and (2) “when it determined that the
[Department] made sufficient efforts to consider relative placement of [his] children as an
alternative to adoption.”
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
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in
the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
(2005) (quoting Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d
460, 463 (1991)).
Father’s children were born on July 9, 2004 and June 12, 2005. In December 2006,
father began serving a term of incarceration following his convictions for rape of a minor, grand
larceny, and burglary. Immediately upon his release, he was apprehended by federal authorities
and deported to his native Nigeria in March 2012. He has not seen his children since his initial
incarceration.
While father was incarcerated, the Department received allegations that the children’s
mother was physically abusing the children. The Department removed the two boys from
mother’s care in June 2011.
Foster care social worker Kimberly Cobb testified she explored the option of placing the
children with relatives. Mother’s sister and mother and the children’s paternal grandfather were
identified as potential caretakers. Cobb made a request for a relative home study for both the
children’s maternal aunt and paternal grandfather under the Interstate Compact for the Placement
of Children. Both relatives lived in Montgomery County, Maryland. Neither relative fully
cooperated with the Montgomery Department of Health and Human Services with regards to the
home study process, and both relatives were therefore eliminated as potential caretakers.
Additionally, the maternal aunt specifically indicated to Cobb that she was no longer interested
in being a placement option for the children. The maternal grandmother initially visited with the
children on a regular basis but stopped attending in September 2011. She never expressed
-2-
interest in being a placement option. Cobb also explained that due to the grandmother’s
advanced age and health problems she was not considered capable of caring for the children,
both of whom had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
Analysis
I.
Pursuant to Code § 16.1-283(C)(1), a trial court may terminate the rights of a parent to a
child upon clear and convincing evidence that the parent,
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. Proof that the parent . . . ha[s] 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[.]
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 service agencies.
When reviewing a decision to terminate parental rights, we presume the circuit court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms, 46 Va. App. at 265-66, 616 S.E.2d at
769 (quoting Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,
659 (2005)). “‘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.”’” Id. at 266, 616
S.E.2d at 769 (quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659 (other citation omitted)). “In
-3-
its capacity as factfinder, therefore, the circuit court retains ‘broad discretion in making the
decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,
9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
To support his argument, father contends the Department failed to provide him with
reasonable and appropriate services. However, the record demonstrates that father was
incarcerated or detained the entire time his children were in foster care.
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 Cnty. 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 father and to strengthen the parent-child relationship.
Although father sought to visit with the children, he was incarcerated at the time and the children
had not seen father in many years. The Department denied the visitation request, but encouraged
father to contact his children. Father failed to do so.
Father also argues the “trial court should not have entered an order allowing [his] rights
to be terminated but instead should have required [the Department] to begin providing
reunification services to him for at least a reasonable time after his release from incarceration.”
He also suggests “the statutory criterion for termination of parental rights has not been met . . . .”
-4-
However, the record demonstrates that father “failed to maintain continuing contact with
and to provide or substantially plan for the future of the child[ren] for a period of six months
after the child[ren]’s placement in foster care,” thus providing the trial court with “prima facie
evidence” to support the termination of father’s parental rights. Code § 16.1-283(C)(1).
While long-term incarceration does not, per se, authorize
termination of parental rights . . . it is a valid and proper
circumstance which, when combined with other evidence
concerning the parent/child relationship, can support a court’s
finding by clear and convincing evidence that the best interests of
the children will be served by termination.
Ferguson, 14 Va. App. at 340, 417 S.E.2d at 5. “‘[P]ast actions and relationships over a
meaningful period serve as good indicators of what the future may be expected to hold.’”
Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte, 4
Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)).
The trial court did not err in finding that the evidence was sufficient to terminate father’s
parental rights under Code § 16.1-283(C)(1).
Because we conclude the trial court’s decision terminating father’s parental rights was
warranted under Code § 16.1-283(C)(1), we need not decide if the termination of father’s
parental rights was also warranted under Code § 16.1-283(C)(2). When a trial court’s judgment
is made on alternative grounds, we need only consider whether any one of the alternatives is
sufficient to sustain the judgment of the trial court and, if we so find, need not address the other
grounds. See Fields, 46 Va. App. at 8, 614 S.E.2d at 659 (termination of parental rights upheld
under one subsection of Code § 16.1-283 forecloses need to consider termination under
alternative subsections).
II.
Father argues the trial court erred by concluding the Department “made sufficient efforts
to consider relative placement of [his] children as an alternative to adoption.”
-5-
However, at trial, father argued only that he “should have received services.” Likewise,
in his written objection on the trial court’s final order, father objected only on the basis that “no
services [were] afforded” to him. At no time did he present to the trial court the issue he now
raises on appeal.
“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”).
Father did not make this argument before the trial court and is therefore barred from
presenting it 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
-6-
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).
For the reasons stated above, we summarily affirm the decision terminating father’s
parental rights. See Rule 5A:27.
Affirmed.
-7-