COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Willis
LATOYLA COOPER
MEMORANDUM OPINION* BY
v. Record No. 0645-03-1 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 30, 2003
VIRGINIA BEACH DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
(Adrianne L. Bennett; Berry, Ermlich, Lomax &
Bennett, on brief), for appellant. Appellant
submitting on brief.
(Leslie L. Lilley, City Attorney; Nianza E.
Wallace II, Associate City Attorney, on
brief), for appellee. Appellee submitting on
brief.
(Lorraine Baysek, on brief), Guardian ad litem
for the infant child.
Latoyla Cooper (mother) appeals the circuit court's February
26, 2003 order finding that she neglected her infant daughter, M.
On appeal, mother contends the evidence is insufficient to support
the trial court's finding of neglect. We disagree and affirm the
trial court's decision.
BACKGROUND
On June 14, 2002, mother took her two-week-old daughter to
visit a friend in a second floor apartment. While there, mother
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
argued with her friend and was asked to leave the residence. As
mother left the apartment, M. slipped from her stroller and fell
down the stairs, fracturing her skull. On June 17, 2002, the
Department of Social Services (the Department) removed M. from
Cooper. M. remains in foster care.
ANALYSIS
Mother contends the evidence presented at trial failed to
establish by a preponderance of the evidence that she "abused or
neglected" the infant, as defined in Code § 16.1-228(1).
We are unable to review this claim because the evidence
included in the appendix filed in this case consists only of
mother's testimony. The appendix does not indicate what acts
the Department alleged constituted neglect or the evidence the
Department presented to support the allegations. We cannot
determine the sufficiency of the evidence without that
information.
The appendix must include "any
testimony and other incidents of the case
germane to the questions presented," Rule
5A:25(c)(3) . . . . "The appendix is a tool
vital to the function of the appellate
process in Virginia. . . . By requiring the
inclusion of all parts of the record germane
to the issues, the Rules promote the cause
of plenary justice." Thrasher v. Burlage,
219 Va. 1007, 1009-10, 254 S.E.2d 64, 66
(1979) (per curiam). Thus, the filing of an
appendix that complies with the Rules, is
"essential to an informed collegiate
decision." Id. Because the appendix filed
in this case does not contain parts of the
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record that are essential to the resolution
of the issue before us, we will not decide
the issue.
Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d
759, 764-65 (2003).
We do not presume on appeal that the trial court has erred.
In fact,
"[w]e have many times pointed out that on
appeal the judgment of the lower court is
presumed to be correct and the burden is on
the appellant to present to us a sufficient
record from which we can determine whether
the lower court has erred in the respect
complained of. If the appellant fails to do
this, the judgment will be affirmed."
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d
255, 256-57 (1961)).
Because the appendix is insufficient to decide the present
issue, we affirm the judgment of the trial court.
Affirmed.
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