                    COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


SUSAN DESKIN
                                      MEMORANDUM OPINION** BY
v.   Record No. 0623-97-4       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        NOVEMBER 25, 1997
CLARKE COUNTY DEPARTMENT OF
 SOCIAL SERVICES AND
 DANIEL R. DESKIN


               FROM THE CIRCUIT COURT OF CLARKE COUNTY
                        James L. Berry, Judge

           Gregory W. Bowman (Chasler & Bowman, P.L.C.,
           on brief), for appellant.

           Russell A. Fowler (Fowler, Griffin, Coyne &
           Coyne, P.C., on brief), for Clarke County
           Department of Social Services.

           John Michael Hobert (Hobert & Kerr, P.C., on
           brief), Guardian ad litem for the subject
           child, an infant.

           No brief or argument for Daniel R. Deskin.



     The sole issue raised by Susan Deskin (appellant) is whether

the evidence was sufficient to support the trial court's

determination that her eight-month-old child was neglected while

in her care and custody.    Finding no error, we affirm.

     On appeal, we must view the evidence and all reasonable

inferences therefrom in the light most favorable to the

prevailing party below, Clarke County Department of Social
     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Services (DSS).   When the record contains credible evidence in

support of the findings made by the trial court, the appellate

court may not retry the facts or substitute its view of the facts

for those of the trial court.    Ferguson v. Stafford County Dep't

of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992).

"The trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed

unless plainly wrong or without evidence to support it."     Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).

     Viewed in this fashion, the evidence established that on

August 14, 1995, appellant's eight-month-old child was removed

from her home by Child Protective Services after police responded

to a domestic dispute.    The child showed no signs of physical

abuse at that time. 1   Appellant was found to be in an agitated

state with track marks on her arms and dilated pupils.    A search

of the home revealed fresh needles and syringes in the trash.

While initially denying any drug usage, she later admitted to

using heroin.   This was confirmed by a drug test administered

     1
      "Abused or neglected child" means any child:

          1. Whose 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.

Code § 16.1-228 (emphasis added).     See also Code § 63.1-248.2.




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later that day.   Appellant, who has been diagnosed as "opinoid

dependent, sedative dependant, alcohol abusive and cocaine

dependent" has a twenty-year history of drug abuse and criminal

activity.   She has participated in several treatment programs,

but has relapsed after completion each time.   On January 23,

1996, she was sentenced to confinement for twenty-three years

with all time suspended except two years.   She was due to be

released on July 31, 1997.
     After the ore tenus hearing the trial judge found that:
          Based upon the evidence presented, including
          the ore tenus testimony of the
          representatives of the Department of Social
          Services of Clarke County, Virginia, Officer
          Chambers of the Berryville Police Department
          and one John Harris, and based upon the
          natural mother's history of convictions for
          illegal drug use, statutory burglary, grand
          larceny, unauthorized use of a motor vehicle
          and numerous instances of forgery and
          uttering checks, and based upon the natural
          mother's history of drug addiction and based
          upon the natural mother's resulting physical
          incarceration, rendering her completely
          unable at this time to care for the minor
          child, the Court does find that the minor
          child was neglected while in the care and
          custody of the natural mother. The Court
          specifically notes that the abuse and/or
          neglect of the minor child is passive rather
          than active abuse or neglect. However, the
          child was neglected and endangered by the
          natural mother's chronic substance abuse
          which from time to time has rendered her
          unable to care for the minor child.


     Custody of the child was continued with DSS while appellant

was incarcerated.

     Appellant contends that because there was no visible



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evidence of active abuse and the trial court found "passive"

abuse, that the requirements of Code § 16.1-228 were unmet.         This

position is without merit.   "[T]he statutory definitions of an

abused or neglected child do not require proof of actual harm or

impairment having been experienced by the child.       The term

'substantial risk' speaks in futuro."   Jenkins v. Winchester

Dep't of Soc. Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19

(1991).   "The Commonwealth's policy is to protect abused children

and to prevent further abuse of those children.       This policy

would be meaningless if the child must suffer an actual injury

from the behavior of his or her parent . . . . [T]he statute

[does not] impose such trauma upon a child."        Jackson v. W., 14

Va. App. 391, 402, 419 S.E.2d 385, 391 (1992).

     The fact that the child suffered no injury while her parent

was under the influence of self-induced drugs is not a mitigating

circumstance.   Rather, it attests to the parties' good fortune.

The evidence clearly supports the trial court's finding of
                                                2
neglect and the temporary placement with DSS.
     For the foregoing reasons, we affirm.

                                                             Affirmed.



     2
      Appellant also contends that her incarceration alone may
not be determinative of a finding of neglect. Cain v.
Commonwealth, 12 Va. App. 42, 402 S.E.2d 682 (1991). The trial
court did not base its finding of neglect solely on appellant's
later unavailability, but rather considered it as one aspect of
her neglect.



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