                        COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, McClanahan and Senior Judge Coleman


SANDRA PARKER
                                             MEMORANDUM OPINION *
v.   Record No. 0301-03-3                        PER CURIAM
                                               AUGUST 26, 2003
LYNCHBURG DIVISION OF SOCIAL SERVICES


            FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     J. Leyburn Mosby, Jr., Judge

            (Herbert E. Taylor, III; Herbert E. Taylor,
            III, P.C., on brief), for appellant.

            (Eleanor A. Putnam Dunn, Assistant City
            Attorney; Gary M. Coates, Guardian ad litem
            for the minor child; Fralin, Feinman,
            Coates & Kinnier, P.C., on brief), for
            appellee.


     Sandra Parker (mother) appeals the decision of the trial

court awarding custody of her child, Zefrin, to Phil Eyster,

Zefrin's biological father (father).    On appeal, mother contends:

(1) there was insufficient evidence to support a finding of

abuse and neglect; (2) the trial court erred in awarding custody

of Zefrin to father; and (3) the trial court erred in approving

the foster care plan.    Upon reviewing the record and briefs of

the parties, we conclude that 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.
                      Procedural Background

     On November 17, 2000, the juvenile and domestic relations

district court (juvenile court) entered an emergency order

removing Zefrin from mother's custody and awarding temporary

custody to LDSS pending a determination as to whether Zefrin is

an abused and/or neglected child.

     On November 28, 2000, father petitioned the juvenile court

for custody, alleging that Zefrin "is a child whose custody

requires determination between the parties pursuant to Code

§ 16.1-241(A)(3)."

     After several hearings, the juvenile court entered an order

on October 30, 2001, determining that Zefrin should be

classified as an abused and/or neglected child and ordering that

temporary custody shall remain with father. 1

     By order entered December 13, 2001, the juvenile court

found "it is in the best interests of the child that his custody

be awarded to his father, Phil L. Eyster."      The juvenile court

limited mother's visitation to written communications.

     Mother appealed the order to the circuit court, which

conducted a trial de novo on September 11-12, 2002.      By order

entered on January 7, 2003, the circuit court:     (1) dismissed a


     1
       Following a May 1, 2001 evaluation of father's home, the
juvenile court awarded him temporary custody of Zefrin by order
dated July 9, 2001. Father lives in eastern Tennessee with his
other son and current wife.



                              - 2 -
CHINS petition 2 ; (2) found that Zefrin was physically and

mentally abused by mother and his removal from mother's home was

appropriate; (3) approved the foster care plan filed by LDSS;

and (4) awarded custody to father.     The trial court awarded

mother monthly visitation "under the terms and conditions agreed

to between the parents and the child's and mother's counselors."

                September 2002 Evidentiary Hearings

     On appeal, this Court is required to view the evidence in

the light most favorable to the prevailing party below, here

LDSS, granting it all reasonable inferences fairly deducible

therefrom.   Logan v. Fairfax County Dept. of Human Development,

13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Farley

v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

     On October 17, 2000, Amy Witt, a Child Protective Services

(CPS) worker for LDSS, received a complaint regarding Zefrin

alleging lack of supervision, inadequate food, and physical and

mental abuse.   On three occasions, Witt hand-delivered letters

to mother's residence requesting that mother contact LDSS, but

mother never responded.   On November 17, 2000, Witt met with

Zefrin and his sister, Zondra, who confirmed the allegations of


     2
       On October 10, 2000, Winston Clark, Jr. filed a petition
on behalf of the Lynchburg School District alleging that Zefrin
was a child in need of supervision (CHINS) because he was
subject to compulsory attendance but was habitually absent from
school without justification.
     Both the juvenile court and the trial court dismissed the
CHINS petition.


                               - 3 -
physical abuse.   Witt petitioned for Zefrin's immediate removal

from mother's home.   Witt eventually met with mother, but mother

would not cooperate or discuss the underlying complaints.     After

his removal, Zefrin told Witt he was afraid of his mother and

did not wish to visit with her.    Within weeks of Zefrin's

removal, Witt noticed a dramatic and positive change in Zefrin's

physical appearance and mental attitude.

     Zefrin described conditions in his mother's home before his

removal.   He recalled a lack of heat and hot water at times and

told the trial court that he and his sister were required to do

most of the household chores.    Mother home-schooled Zefrin for

four and one-half years;, however, Zefrin revealed he did not

spend much time on schoolwork.    At times, mother said she hated

Zefrin and expressed her wish that he and his sister would "pack

[thei]r bags and leave" and live with someone else.    Zefrin

related how mother, depending on her mood, would hit him with

her hand, with a spoon, and with a "weed whacker."

     LDSS records confirmed that CPS workers telephoned mother,

made home visits and offered parenting classes, counseling,

transportation, and psychological assessments.   Mother did not

return telephone calls, follow up on approved services, or

execute releases so LDSS could obtain information.    In contrast,

Zefrin's father and stepmother have been cooperative with LDSS.

     Pamela Lygon, Zefrin's counselor, described Zefrin as

"[h]esitant" and "withdrawn."    She attempted to:   (1) assess

                                 - 4 -
Zefrin's level of depression and possible anger; (2) determine

the extent of his neglect; (3) address his social isolation and

its impact on peer interaction; and (4) determine if he could

perform in a public school setting since he had not attended

public school for several years.   Lygon found that Zefrin

suffered from depression and had "suicide ideology."   The

neglect and isolation under mother's care caused him to be

distrustful and unable to express his feelings, so Lygon

attempted to bond with him and gain his trust.   Zefrin related

how he and his sister did most of the household chores and "were

pretty much on their own."   Mother did not provide needed

comfort and support.   After six months of counseling, Zefrin's

suicidal ideations subsided.    Lygon opined that Zefrin does not

desire to visit with his mother because he has accumulated a

great deal of anger and negative feelings that he has yet to

process and resolve.   Lygon further opined that it would be

detrimental to Zefrin if he were to be forced to visit his

mother before he is better prepared emotionally.   Zefrin enjoys

living with his father.   Father has been cooperative and

supportive.

     Dr. James Anderson, a clinical psychologist, evaluated

mother and Zefrin.   Mother scored in the low average range on

cognitive/intellectual tests.   Emotionally, she is suspicious,

mistrustful, has difficulty dealing with anger, and externalizes

blame.   Dr. Anderson opined that mother is emotionally unstable

                                - 5 -
and "shows limited understanding of child development and

principles of parenting, very limited insight and ability to

appreciate her children's feelings, and decision-making that is

so ineffective and inappropriate at times that [it] may endanger

the health and well-being of her children."    Dr. Anderson did

not feel that mother could "improve her level of personality

functioning substantially" or her parenting abilities.

     Zefrin tested average in intelligence, but suffered from

"clinically significant depression" and "a possible learning or

information processing problem."   Zefrin "verbalize[d]" to

Dr. Anderson "a desire not to return to live with his mother."

Dr. Anderson recommended "a nurturing home environment where

[Zefrin] feels safe, where expectations are realistic, explicit,

and consistently reinforced, and there is always someone

supportive to whom he can turn for guidance and reassurance."

     Father has maintained continuous contact with his son since

his birth.   He visited him on Christmas and birthdays, which was

the only visitation mother allowed. 3   He described his

interaction with Zefrin since obtaining temporary custody, his

plans for working with his son and his desire to obtain


     3
       Although father regularly paid $350 per month in child
support for Zefrin, he acquiesced in mother's limitations on
visitation. He indicated that he did not push harder to extend
visitation because of the distance between Tennessee and
Lynchburg and because he "was under the assumption that [mother]
was doing a pretty good job."



                               - 6 -
permanent custody and provide Zefrin with a secure and stable

home.

        Gary Coates, Zefrin's guardian ad litem, found Zefrin to be

credible and recommended that Zefrin remain with his father.

        The Department of Children's Services (DCS) for Carter

County, Tennessee performed a home evaluation of father.

Father's home is large and easily accommodates Zefrin.     DCS felt

that father and his wife could provide a "stable and loving home

for Zefrin" and recommended "that Zefrin be placed with his

father, Mr. Phil Eyster in Tennessee."

                Issue I:   Sufficient Evidence of Abuse

        "In matters of a child's welfare, trial courts are vested

with broad discretion in making the decisions necessary to guard

and to foster a child's best interests."     Farley v. Farley, 9

Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).     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."     Peple v. Peple, 5 Va. App. 414, 422,

364 S.E.2d 232, 237 (1988).

        Code § 16.1-228(1) and (2) defines an "abused or neglected

child" as any child:

             Whose parent . . . 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


                                 - 7 -
          death, disfigurement or impairment of bodily
          or mental functions;

          Whose parents or other person responsible
          for his care neglects or refuses to provide
          care necessary for his health.

     The record contains credible evidence that mother inflicted

physical and mental abuse on Zefrin.       She refused to allow

Zefrin to attend a public school, requiring him instead to stay

at home and essentially home-school himself.      Mother failed to

provide a safe, comfortable environment in which Zefrin could

thrive mentally or physically.      Heat and hot water were

sometimes unavailable.       Moreover, mother provided Zefrin with no

social activities.    Those deprivations, in conjunction with

mother's physical and mental abuse, greatly contributed to

Zefrin's depression, alienation, hostility, confusion and

inability to socialize.      Accordingly, the trial court's finding

of abuse and neglect was not plainly wrong or without evidence

to support it.

                 Issue II:    Awarding Custody to Father

          Mother framed the issue as:       "Whether the trial court

erred in granting custody of Zefrin to his father, Phil Eyster." 4


     4
       In her argument on brief, mother contends the trial court
"did not consider each of the factors enumerated in Section
20-124.3 of the Code." She cites pages 474 through 476 of the
appendix as the place in the record she preserved this issue for
appeal.
     "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. Mother never challenged whether the trial court

                                   - 8 -
     As to mother's argument that the trial court erred in

awarding custody to father, mother's attorney made the following

statement in his closing argument:

          With respect to custody, I think, just from
          listening to the Court's questions and just
          the posture of this case, I think – and my
          client may not like to hear me say it, but I
          think that, after two years, it would be
          difficult at this point to return custody of
          a child.

     Later, the attorney added:

          So, in summary, what we're asking the Court
          to do is to look at the evidence with
          respect to the abuse and neglect, and
          dismiss it, because I don't think they've
          met their burden and I don't know why we're
          here on it anyway.

               With respect to custody of Zefrin, the
          Court has heard the evidence. We,
          obviously, will abide by any court order
          with regard to the custody and visitation.

     A party should not be permitted to "approbate and

reprobate, by ascribing error to an act by the trial court that

comported with [that party's] representations."   Asgari v.

Asgari, 33 Va. App. 393, 403, 533 S.E.2d 643, 648 (2000).     See

also Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54

(1988) (no litigant will be permitted to approbate and




considered all the Code § 20-124.3 factors at the September 2002
hearing, nor did she include such an objection when, on January
7, 2003, she signed the final order "Seen & Objected to."
     Accordingly, Rule 5A:18 bars our consideration of this
question on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.

                              - 9 -
reprobate, that is, to invite error and then take advantage of

the situation created by his own wrong).

     Mother conceded through counsel that it would be difficult

to place Zefrin in her custody after he had spent two years in

the custody of his father, and she said she would abide by

whatever decision the trial court made as to custody and

visitation.   In conceding that she likely would not prevail as

to custody, mother led the trial court to believe that custody

was not an issue.   As such, mother cannot contest that decision

on appeal.    See id.

               Issue III:   Approving Foster Care Plan

     On October 17, 2001, LDSS submitted a foster care service

plan review with a program goal of "Return Home (Change of

Custody)."    LDSS noted that it "is unable to report whether

[mother] has completed parenting or . . . psychological

evaluation because she has declined to sign a[ny] release[s]."

LDSS described father as "caring" and "genuinely interested in

providing a nurturing home for his son."    In contrast, father

"has handled Zefrin's inappropriate behaviors appropriately and

has shown a strong desire to help his son succeed."      The LDSS

worker recommended that Zefrin remain in father's custody.

     Mother abused and neglected Zefrin, whereas father has

demonstrated a strong desire to support and care for his son,

whom he loves very much.    Mother did not cooperate with LDSS,

refused to acknowledge any parenting problems and failed to take

                                - 10 -
advantage of services provided.   A home study showed that father

had the means and desire to care for Zefrin, and it recommended

custody of Zefrin be placed with father.   Because the record

supports the trial court's decision, we cannot say the trial

court erred in approving the foster care plan.

     Accordingly, the decision of the trial court is affirmed.

                                                         Affirmed.




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