                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


THOMAS ECKLEY
                                            MEMORANDUM OPINION *
v.   Record No. 1863-99-1                       PER CURIAM
                                             FEBRUARY 8, 2000
CITY OF VIRGINIA BEACH
 DEPARTMENT OF SOCIAL SERVICES


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Thomas S. Shadrick, Judge

           (Curtis T. Brown; Law Offices of Curtis T.
           Brown, on brief), for appellant.

           (Leslie L. Lilley, City Attorney; Nianza E.
           Wallace II, Assistant City Attorney, on
           brief), for appellee.


     Thomas Eckley appeals from the decision terminating his

parental rights to his daughter.   He contends that his parental

rights could not be terminated because (1) his daughter was not in

his legal or physical custody at the time she was taken into the

custody of the Department of Social Services, (2) the trial judge

relied on evidence of the mother's unfitness to terminate his

parental rights, and (3) the Department failed to provide services

to him as required by Code § 16.1-283(B).   Upon reviewing the

record and briefs of the parties, we conclude that this appeal is




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without merit.   Accordingly, we summarily affirm the decision of

the trial court.    See Rule 5A:27.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

consideration of a trial [judge] is the child's best interests."

Logan v. Fairfax County Dep't of Human Development, 13 Va. App.

123, 128, 409 S.E.2d 460, 463 (1991).     "Code § 16.1-283 embodies

'the statutory scheme for the . . . termination of residual

parental rights in this Commonwealth' [which] . . . 'provides

detailed procedures designed to protect the rights of the parents

and their child,' balancing their interests while seeking to

preserve the family."   Lecky v. Reed, 20 Va. App. 306, 311, 456

S.E.2d 538, 540 (1995) (citations omitted).     "'In matters of a

child's welfare, trial [judges] are vested with broad discretion

in making the decisions necessary to guard and to foster a child's

best interests.'"   Logan, 13 Va. App. at 128, 409 S.E.2d at 463

(citation omitted).   The trial judge's findings, "'when based on

evidence heard ore tenus, will not be disturbed on appeal unless

plainly wrong or without evidence to support it.'"     Id. (citation

omitted).

     The trial judge ruled that the City of Virginia Beach

presented sufficient evidence to terminate Eckley's parental

rights under Code § 16.1-283(B).      That section provides as

follows:



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          The residual parental rights of a parent or
          parents of a child found by the court to be
          neglected or abused and placed in foster
          care as a result of (i) court commitment,
          (ii) an entrustment agreement entered into
          by the parent or parents or (iii) other
          voluntary relinquishment by the parent or
          parents may be terminated if the court
          finds, based upon clear and convincing
          evidence, that it is in the best interests
          of the child and that:

          1. The neglect or abuse suffered by such
          child presented a serious and substantial
          threat to his life, health or development;
          and

          2. It is not reasonably likely that the
          conditions which resulted in such neglect or
          abuse can be substantially corrected or
          eliminated so as to allow the child's safe
          return to his parent or parents within a
          reasonable period of time. In making this
          determination, the court shall take into
          consideration the efforts made to
          rehabilitate the parent or parents by any
          public or private social, medical, mental
          health or other rehabilitative agencies
          prior to the child's initial placement in
          foster care.

Prima facie evidence of the conditions set out in subsection

(B)(2) include proof that

          b. The parent or parents have habitually
          abused or are addicted to intoxicating
          liquors, narcotics or other dangerous drugs
          to the extent that proper parental ability
          has been seriously impaired and the parent,
          without good cause, has not responded to or
          followed through with recommended and
          available treatment which could have
          improved the capacity for adequate parental
          functioning; or

          c. The parent or parents, without good
          cause, have not responded to or followed
          through with appropriate, available and


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           reasonable rehabilitative efforts on the
           part of social, medical, mental health or
           other rehabilitative agencies designed to
           reduce, eliminate or prevent the neglect or
           abuse of the child.

Code § 16.1-283(B)(2).

                     Father Did Not Have Custody

     Eckley contends that his parental rights could not be

terminated by the trial judge because he did not have either

physical or legal custody of his daughter when the Department

obtained her custody.    This contention is without merit.   Code

§ 16.1-283(B) did not expressly impose any jurisdictional or

evidentiary requirement that Eckley have custody of the child when

foster care began.   The statute required the City to present

evidence concerning the problems which led to the child's

placement in foster care, whether those problems were remedied,

and whether the child could be returned safely to the custody of

either parent.   Therefore, Eckley's argument that his parental

rights could not be terminated because he did not have custody

when his daughter was placed into foster care is without merit.

                 Mother's Failure to Regain Custody

     Eckley contends that the trial judge improperly imputed to

him the mother's failure to prove her fitness as a parent.

Although Eckley's brief includes citations to the record where

this issue purportedly was raised and preserved, we find no

indication in the record that he raised this issue in the trial

court.   "The Court of Appeals will not consider an argument on

                                - 4 -
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.     Therefore, we will not consider this argument.

                      Failure to Provide Services

     Eckley also contends that the City failed to prove that the

Department provided him with appropriate services to address his

underlying problem of alcohol, as required by Code

§ 16.1-283(B).    We disagree.

     Sharon Rosenbaum testified that she was involved with the

Eckley family for a year beginning in March 1995 and that the

family did not cooperate with her efforts.    The Department was

involved again with Eckley, his wife, and daughter in February

1997 because of incidents of Eckley's domestic violence and the

parents' alcohol abuse.    In March 1997, a judge of the juvenile

and domestic relations district court ordered Eckley to attend the

Comprehensive Substance Abuse Program, participate in any

treatment recommended by Alcoholics Anonymous, attend a parenting

class, and cooperate with the Department and the Court Appointed

Special Advocate.    The judge later ordered Eckley to attend an

anger management class, and to undergo psychological, psychosocial

and psychosexual evaluations.    When the Department obtained

custody of the daughter in October 1997, Eckley was barred from

contact with his wife and daughter by a protective order because

he had assaulted his wife.



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     Nina Musselman testified that Eckley minimally complied with

some of the requirements of the court order.   He completed only

one of two psychological evaluation sessions and failed to

complete the other ordered evaluations.   Musselman testified that

the Department did not provide Eckley with other evaluations and

services because "[w]e were trying to get through the first

treatment program and evaluations to see what exactly . . . Eckley

needed."   Although Eckley attended visitation with his daughter

when he was not working or incarcerated, he left several

visitations early because he was angry.   The City also introduced

evidence that Eckley was convicted in June 1999 on another charge

of assault arising from an incident in February 1999.

     At the hearing, Eckley admitted that he was an alcoholic.      He

testified that he completed the substance abuse program and an

anger management class but did not get certificates because he did

not pay all the fees.   He testified that he did not complete the

psychological testing because he had to work and could never

arrange another appointment.   He also testified that the most

recent assault charge arose when he and his girlfriend were

drinking, his girlfriend said something about his daughter, and he

"just snapped."   Although Eckley failed to cooperate with the

Department, he testified that in the future he would "get . . .

straight" and "get everything [he] needed to do" once he was

released from prison.   On cross-examination, Eckley admitted that



                               - 6 -
he would continue to allow his daughter to see his wife even if

his wife's parental rights were terminated.

     This evidence supports the trial judge's findings that the

City presented clear and convincing evidence that it was in the

daughter's best interests to terminate Eckley's parental rights

and that it was not reasonably likely the conditions which led to

her foster care placement could be substantially corrected or

eliminated to allow her return within a reasonable time.    The

evidence also supports the trial judge's finding that Eckley

habitually abused alcohol to the extent that proper parenting was

seriously impaired and that he failed to follow through with

recommended treatment.

     Accordingly, we summarily affirm the decision of the circuit

court.

                                                           Affirmed.




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