                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED



              JONATHAN GABRIEL DANIELS
                                                                                     MEMORANDUM OPINION*
              v.     Record No. 1133-13-4                                                PER CURIAM
                                                                                       NOVEMBER 12, 2013
              CULPEPER COUNTY DEPARTMENT OF
               SOCIAL SERVICES


                                   FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                               Susan L. Whitlock, Judge

                               (V. R. Shackelford, III, on briefs), for appellant.

                               (Robert F. Beard; Beard Law, PC, on brief), for appellee.

                               (J. Michael Sharman; Commonwealth Law Offices, P.C., on brief),
                               Guardian ad litem for the minor children J.D., C.D., and K.D.

                               (David R. Danielli; Getty & Associates, P.C., on brief), Guardian
                               ad litem for the minor child A.K.


                     On May 20, 2013, the trial court entered orders terminating the residual parental rights of

              Jonathan Gabriel Daniels (appellant) to his children, J.D., C.D., K.D., and A.K., pursuant to

              Code § 16.1-283(C)(2). On appeal, appellant argues the trial court erred: 1) in not holding the

              termination hearing within ninety days of his notice of appeal as required by Code

              § 16.1-296(D), 2) in hearing the cases “after non-compliance with the applicable procedural

              and/or time requirements of Title 16.1 of the Virginia Code,” 3) in terminating appellant’s

              parental rights even though he did not receive the recommended psychological services, and

              4) in finding clear and convincing evidence to support the terminations pursuant to Code

              § 16.1-283(C)(2). Upon reviewing the record and briefs of the parties, we conclude this appeal

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule

5A:27.

                                                Facts

         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)). 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.’” Id. 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 Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In 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)).

         Appellant is the father of J.D., born on March 2, 2000, C.D., born on March 23, 2001,

K.D., born on October 7, 2004, and A.K., born on June 13, 2010. The residual parental rights of

the mother of J.D., C.D., and K.D., as well as the rights of the mother of A.K., have been

terminated voluntarily.

         J.D., C.D., and K.D. were removed from the home they shared with appellant and A.K.’s

mother on November 12, 2010. Prior to the removal, the family had been receiving assistance

and services from the Culpeper County Department of Social Services (CCDSS) and other

                                                 -2-
agencies since April of 2010. Despite this assistance, which included help paying rent and a

psychological evaluation for appellant, the family’s living situation had deteriorated. 1 On the

day of the removal, CCDSS representatives found the house filthy, animals and animal feces in

the house, and unsafe heating conditions. Appellant had been warned that the conditions in the

home were unsafe, and he had promised to correct them.

       On January 18, 2011, CCDSS was contacted because appellant and A.K.’s mother had

left the hospital against medical advice with A.K., who had a severe bronchial infection and a

compromised oxygen level. A.K. was removed from appellant’s home on January 18, 2011.

       CCDSS developed foster care service plans regarding all four children. The plans

required appellant to receive parenting classes and training. Initially, appellant had supervised

visitation with the children. However, this later arrangement was changed to therapeutic

visitation because appellant made inappropriate comments to the children regarding their

mother’s choice to live with a sex offender rather than remain with them. Appellant’s behavioral

therapist reported that appellant’s interaction with the children was not improving and he did not

accept correction or help regarding parenting issues. Appellant received extensive services,

including counseling, for more than two years, but he made no improvement in addressing his

mental health and parenting issues.

       As of October 2011 appellant was homeless. CCDSS had provided him with the services

of a “Building on Basics” worker to help him with budgeting and finding appropriate housing,

but he was unable to maintain suitable housing. At the time of the termination hearing on

February 16, 2013, appellant was serving a twelve-month sentence for failing to pay child

support.


       1
         On July 26, 2010, Dr. A.J. Anderson conducted a mental health evaluation upon
appellant. Anderson’s report recommended further mental health treatment and parenting
education for appellant.
                                             -3-
                                                  I.

       Appellant argues the trial court erred in conducting the termination hearing on February

16, 2013, which was more than ninety days after March 9, 2012, when he perfected his appeal

from the lower court’s termination rulings. Code § 16.1-296(D) provides in pertinent part:

“When an appeal is taken in a case involving termination of parental rights brought under

§ 16.1-283, the circuit court shall hold a hearing on the merits of the case within 90 days of the

perfecting of the appeal.” With regard to Code § 16.1-296(B), this Court stated:

               Where a statute contains “prohibitory or limiting language,” the
               statute is mandatory, and a court cannot exercise its subject matter
               jurisdiction if the requirements of the statute have not been met.
               See Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636,
               638-39 (1994); Harris v. Commonwealth, 52 Va. App. 735, 744,
               667 S.E.2d 809, 814 (2008). In contrast, where a statutory
               directive is merely directory and procedural, as opposed to
               mandatory and jurisdictional, failure to comply with the statutory
               requirement does not necessarily divest the court of the power to
               exercise its subject matter jurisdiction. See Jamborsky, 247 Va. at
               511, 442 S.E.2d at 638-39. Stated more directly, the failure to
               follow a procedural requirement will not prevent a court from
               exercising its subject matter jurisdiction unless a party can show
               “some harm or prejudice caused by the failure” to follow the
               procedural requirement. Carter v. Ancel, 28 Va. App. 76, 79, 502
               S.E.2d 149, 151 (1998).

Marrison v. Dep’t. of Family Servs., 59 Va. App. 61, 68-69, 717 S.E.2d 146, 149-50 (2011).

       As we observed with regard to Code § 16.1-296(B), Code § 16.1-296(D) “is not

prohibitive or limiting, and does not contain any manifestation of a contrary intent . . . .” Id. at

70, 717 S.E.2d at 150. Thus, we find that Code § 16.1-296(D) is procedural and directory, rather

than mandatory and jurisdictional. Moreover, appellant merely alleges that he was prejudiced

because the services provided him and reports of those services were untimely. Appellant’s

allegation is speculative and does not demonstrate he sustained harm or prejudice. 2


       2
        Indeed, as opposed to resulting in harm to him, the delay in the proceedings flowed
from appellant’s own actions, as he concedes. The record demonstrates that the delay was due,
                                              -4-
Accordingly, we find the trial court did not err in holding the termination hearing beyond the

time constraint found in Code § 16.1-296(D).

                                                 II.

       Supplying timelines relating to the removal and termination proceedings involving the

four children, appellant alleges the trial court erred in hearing the matters because the statutory

time limits governing the matters were “repeatedly violated in the Culpeper Juvenile and

Domestic Relations District Court in the cases for all children.” Without advising this Court

what violations he alleges occurred, appellant contends the violations were so numerous as to

deny him due process. Appellant’s assignment of error claims, in a general fashion, that the trial

court erred in hearing the cases “after non-compliance with the applicable procedural and/or time

requirements of Title 16.1 of the Virginia Code.”

       “‘The purpose of assignments of error is to point out the errors with reasonable certainty

in order to direct [the] court and opposing counsel to the points on which appellant intends to ask

a reversal of the judgment, and to limit discussion to these points.’” Yeatts v. Murray, 249 Va.

285, 290, 455 S.E.2d 18, 21 (1995) (quoting Harlow v. Commonwealth, 195 Va. 269, 271, 77

S.E.2d 851, 853 (1953)). Consequently, it is the duty of an appellant’s counsel “to ‘lay his finger

on the error’ in his [assignment of error.]’” Carroll v. Commonwealth, 280 Va. 641, 649, 701

S.E.2d 414, 418 (2010 (quoting First Nat’l Bank of Richmond v. William R. Trigg, Co., 106 Va.

327, 342, 56 S.E. 158, 163 (1907)).




at least in part, to appellant’s motions for continuance, requests for time to retain alternate
counsel, and failure to appear at a scheduled court hearing. He should not be heard to complain
on appeal about alleged harm that resulted from his own requests for delay.

                                                -5-
       Appellant’s assignment of error and accompanying argument are insufficient to “lay his

finger” upon the trial court ruling challenged.3 Appellant asks this Court to compare the time

line with the statutory time limits and to discern for itself the violations that occurred. This we

decline to do because it is not the function of appellate courts to search the record for an error

that an appellant has failed to point out. Accordingly, we consider appellant’s assignment of

error waived, and we do not consider it.

                                                 III.

       Appellant alleges the trial court erred in terminating his parental rights because, in 2010,

Dr. Anderson recommended “interventions that would potentially improve [appellant’s]

functioning as a parent,” but that CCDSS did not provide appellant with those recommended

services. Rule 5A:20(e) requires an opening brief to contain “the argument (including principles

of law and authorities) relating to each assignment of error.” Appellant’s argument in support of

this assignment of error does not contain principles of law and authorities applicable to his

contention. In Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), the

       3
          Moreover, we find no indication in the record that appellant asserted in the trial court
that the noncompliance with “procedural and/or time requirements” resulted in a denial of
appellant’s constitutional right to due process. “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. Rule 5A:18 applies to bar
even constitutional claims. See Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897,
900 (1992). Accordingly, Rule 5A:18 bars our consideration of this aspect of the assignment of
error 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
               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).
                                                -6-
Supreme Court announced that when a party’s “failure to strictly adhere to the requirements of

Rule 5A:20(e)” is significant, “the Court of Appeals may . . . treat a question presented as

waived.” In this case, we find appellant’s failure to comply with Rule 5A:20(e) is significant.

Accordingly, this issue is waived, and we do not consider it on appeal.

                                                 IV.

       A termination of parental rights under Code § 16.1-283(C)(2) requires clear and

convincing evidence that termination is in the best interests of the child and 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 the
               reasonable and appropriate efforts of social, medical, mental health
               or other rehabilitative agencies to such end.

In addition,

               Proof that the parent . . . , without good cause, ha[s] failed or been
               unable to make substantial progress towards elimination of the
               conditions which led to or required continuation of the child’s
               foster care placement in accordance with their obligations under
               and within the time limits or goals set forth in a foster care plan . . .
               shall constitute prima facie evidence of this condition.

Id.

       In his argument that the evidence was insufficient to sustain termination of his parental

rights pursuant to Code § 16.1-283(C)(2), appellant argues only that CCDSS did not make

“reasonable and appropriate efforts” to provide appellant with services prior to the termination

hearing. We thus confine our consideration of the sufficiency of the evidence to this issue.

       “‘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).

                                                 -7-
        The record proves that CCDSS provided appellant with a wide range of services with the

goal of reunifying appellant with the children. Appellant was supplied with services to help him

obtain and maintain appropriate housing. However, one year after the first three children were

removed, appellant was actually homeless. In addition, he was later serving a twelve-month jail

sentence at the time of the 2013 termination hearing. Despite the assistance provided through

therapeutic visitation and counseling for a significant period of time, appellant made no progress

toward appropriate interaction with his children and in behavior with regard to his children.

        In this case, there was sufficient evidence to prove that the Department made reasonable

and appropriate efforts to assist appellant. The trial court did not err in terminating appellant’s

parental rights.

                                            Conclusion

        For the foregoing reasons, we find no error on the part of the trial court. We summarily

affirm the decision of the trial court.

                                                                                           Affirmed.




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