                        COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


WAKI LEWIS, SR.
                                               MEMORANDUM OPINION *
v.   Record No. 2832-02-2                          PER CURIAM
                                                 AUGUST 12, 2003
FREDERICKSBURG DEPARTMENT OF
 SOCIAL SERVICES


         FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                      John W. Scott, Jr., Judge

             (Timothy W. Barbrow, on brief), for appellant.

             (Joseph A. Vance, IV, on brief), for appellee.

             (Thomas Y. Savage, on brief), Guardian ad litem
             for the minor children.


     Waki Lewis, Sr. contends the evidence was insufficient to

support the trial judge's finding that his children were neglected

pursuant to Code § 16.1-228.       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.

                               Background

     At trial, on Lewis's appeal to the circuit court from an

order of the juvenile court finding that Lewis's children were

neglected, the evidence proved one parent remained in the van with


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the children while the other parent entered the bank "and uttered

a forged instrument."   The "parties stipulated that [Lewis's]

criminal act . . . took place while the children were in a van in

the parking lot."   The police arrested Lewis and children's mother

at the bank.   Upon the parents' arrest, the Fredericksburg

Department of Social Services assumed custody of the children.

Lewis later pled guilty to uttering in violation of Code

§ 18.2-172.    The trial judge found "that the children were without

parental consent caused by the unreasonable absence of [Lewis]."

                               Analysis

     "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 defines an "[a]bused or neglected child" to

include any child "5.    Who is without parental care or

guardianship caused by the unreasonable absence or the mental or

physical incapacity of the child's parent."    Lewis contends,

however, that Cain v. Commonwealth, 12 Va. App. 42, 402 S.E.2d

682 (1991), supports the proposition that his arrest and



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subsequent incarceration alone may not be determinative of a

finding of neglect.    We disagree.

     Our holding in Cain addressed the termination of Cain's

residual parental rights pursuant to Code § 16.1-283, following

her arrest and conviction for robbery.   12 Va. App. at 46, 402

S.E.2d at 684.   We explained that "[i]ncarceration alone does

not meet th[e] evidentiary requirements" to terminate residual

parental rights, id. at 44, 402 S.E.2d at 683, and we emphasized

that Code § 16.1-283(C) also "requires that 'reasonable and

appropriate'" rehabilitative assistance be offered so that in a

reasonable amount of time the parent can substantially remedy

the conditions that led to the placement of the child.      Id.

at 45-46, 402 S.E.2d at 684.   Unlike in Cain, this proceeding

does not implicate termination of parental rights.    The

Commonwealth did not attempt to alter father's parental rights

under Code § 16.1-283.

     This was a proceeding brought to obtain an emergency

removal order pursuant to Code § 16.1-251.   Thus, the issue

Lewis presents is "whether [his] absence constituted neglect when

his unavailability was due to the actions of the police in taking

[him] into custody."   Accordingly, we need only decide whether

sufficient credible evidence supports the trial judge's finding

that the children were neglected as defined in Code § 16.1-228.

The evidence proves Lewis drove his family to a location where

he and his wife intended to and did commit a felony.    Police

                                - 3 -
arrested both parents at the bank and took them to jail.     The

Department took custody of the children.   The trial judge

refused to accept the assertion that the police, rather than

father, caused his "unreasonable absence" and caused the

children to be "without parental care."    The trial judge's

findings are not plainly wrong.

     Accordingly, we summarily affirm the judgment.

                                                           Affirmed.




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