                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Senior Judge Annunziata


ARTHUR M. JONES AND MARY JONES
                                                                MEMORANDUM OPINION *
v.     Record No. 1182-10-2                                         PER CURIAM
                                                                  FEBRUARY 22, 2011
HENRICO DEPARTMENT OF SOCIAL SERVICES


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                Catherine C. Hammond, Judge

                 (Stephen L. Hewlett, on brief), for appellants. Appellants
                 submitting on brief.

                 (Ellen R. Fulmer, Assistant County Attorney; Lauren A. Caudill,
                 Guardian ad litem for the minor child, on brief), for appellee.
                 Appellee and Guardian ad litem submitting on brief.


       Reverend Arthur M. Jones and Mary Jones appeal an order in which the trial court denied

them custody of their granddaughter, A.T. Appellants argue that the trial court erred in finding that

they were not suitable custodians and by not investigating other family members for alternative

placement. Upon reviewing the record and briefs of the parties, we conclude that the trial court

did not err. Accordingly, we affirm the decision of the trial court.

                                          BACKGROUND

       We view the evidence in the light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Henrico County Department of Social Services (the Department) first became involved

with the child and her family in the fall of 2005. 1 The mother physically abused A.T. The

Department provided services for the family and twice placed the children with appellants when

the mother was hospitalized for psychiatric care. 2

       The Department subsequently learned that A.J. had been exposing himself to A.T. The

mother was unable to follow the safety plan developed with the Department, so A.J. was

removed from the home.

       On April 11, 2008, the Department removed A.T. from the home after the mother was

unable to care for her due to the mother’s psychiatric problems. A.T. was placed in foster care.

       Appellants indicated to the Department that they would like custody of A.T. They

obtained psychological evaluations, but failed to follow through with reunification therapy.

       On February 11, 2010, the juvenile and domestic relations district court terminated

mother’s parental rights and held that appellants were not in a position nor were they qualified to

have custody of A.T. Appellants appealed. The trial court heard evidence on April 20, 2010,

and issued a letter opinion on April 28, 2010. The trial court held that appellants were

                not suitable or competent custodians for [A.T.] because of their
                age, their unwillingness to recognize [A.J.’s] sexual abuse of
                [A.T.], their negative influence in 2006, and their failure to
                participate in the reunification plans recommended by [a foster
                care worker]. In addition, they have not been in contact with
                [A.T.] since 2008 and the relationship has suffered from the
                separation.

The trial court entered a final order on June 16, 2010, and this appeal followed.




       1
          At the time, A.T. lived with her mother and her half-brother, A.J. The children will be
referred to by their initials.
       2
           Mother was diagnosed with schizophrenia and bipolar disorder.
                                              -2-
                                           ANALYSIS

       Appellants argue that the trial court erred in finding that they were not suitable custodians

and by not investigating other family members for alternative placement.

       “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great

weight and will not be disturbed on appeal unless plainly wrong or without evidence to support

it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16

(1986) (citations omitted).

       Before terminating a parent’s rights, “the court shall give a consideration to granting

custody to relatives of the child, including grandparents.” Code § 16.1-283(A). The

“Department has a duty to produce sufficient evidence so that the court may properly determine

whether there are relatives willing and suitable to take custody of the child, and to consider such

relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at

465.

       Appellants informed the Department shortly after A.T. was placed in foster care that they

were interested in having custody of her. The Department arranged for them to have

psychological evaluations, which they completed. The counselor expressed concern that both

appellants denied that any sexual abuse occurred between A.T. and A.J. The counselor

confronted each of them with the fact that A.J. admitted the abuse and took a lie detector test,

which showed that he was telling the truth. Appellants stated that they did not believe him and

thought he was “fantasizing.” A.T.’s counselor opined that it was important for A.T. to be able

to openly discuss her thoughts and feeling about the abuse, and it could negatively impact her

progress in therapy if her expressions were punished or negated. Despite their desire to have

custody of A.T., appellants failed to follow through with the reunification therapy that was




                                               -3-
recommended by the Department. At the time of the hearing, they had not seen A.T. for

approximately two years.

        The trial court did not err in concluding that appellants were “not suitable or competent

custodians” for A.T. There was sufficient evidence to prove that placement with appellants

would not be in A.T.’s best interests.

        Appellants also argue that the trial court should have considered other relatives as

possible placements for A.T. At trial, appellants presented Anna Williams as a possible relative

placement. 3 Williams was the niece of Reverend Jones. She testified about her home and her

willingness to take A.T. into her custody. However, on cross-examination, Williams admitted

that she was not fully aware of why A.T. was in foster care and that she had only seen A.T. twice

in the last five years.

        The trial court received sufficient evidence to evaluate Williams as a possible placement

for the child. See Hawthorne v. Smyth Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 139, 531

S.E.2d 639, 644 (2000) (although the Department did not investigate a relative, the relative

testified at trial, so “the trial court was presented with evidence for its consideration as to the

suitability” of placing the child with a relative before it ordered termination of the parent’s

rights). The trial court concluded that it was now “too late” for Williams to come forward as a

possible placement. In addition, the evidence proved that Williams did not know the extent of

the abuse suffered by A.T. or about her therapy, nor did she know A.T. very well. 4

        In their brief, appellants also mention Florine Burton as a possible placement. Burton

was present at trial, but after Williams testified, appellants’ counsel said that Burton was not


        3
       At no time since A.T. was placed in foster care did A.T.’s mother or appellants tell the
Department about other possible relatives who could have been considered for placement.
        4
            The trial court asked her if she knew A.T., and Williams responded, “Briefly.”

                                                 -4-
going to be called as a witness. During closing argument, appellants did not argue that the trial

court should have considered Burton as a possible placement. Appellants asked the trial court to

consider either themselves or Williams as placements. Therefore, appellants’ argument that

Burton should have been considered as a possible relative placement was not presented to the

trial court, and we will not consider it. See Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998); Rule 5A:18.

       Accordingly, the trial court did not err in finding that neither appellants nor Williams

were suitable custodians.

                                         CONCLUSION

       For the foregoing reasons, the trial court’s ruling is affirmed.

                                                                                         Affirmed.




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