COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Decker and AtLee Argued at Chesapeake, Virginia

APRIL DILAURA MEMORANDUM OPINION * BY v. Record No. 0223-17-1 JUDGE RICHARD Y. ATLEE, JR. NOVEMBER 21, 2017 NORFOLK DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge Elizabeth M. Wood (Bush & Tay lor, P.C., on brief), for appellan t. Erikka M. Massie (Lauri e M. Nield, Guardian ad litem for the minor children; Office of the City Attorn ey of Norfolk, on brief), for appellee.

April Dilaura appeals a decisi on of the Circuit Court of the Ci ty of Norfolk terminating her parental right s to three of her children. We affirm.
I. B ACKGROUND In March 2016, the Juvenile and Dom estic Relations District Cou rt of the City of Norfolk (“the J&DR court”) terminated t he parental rights of April Dila ura (“mother”) to three of her children: “A.” (born in 2006), “ G.” (born in 2009), and “C.” ( born in 2012). Mother appealed those termination orders to the Circuit Court of the City of No rfolk (“the circuit court”). In February 2017, the circuit court terminated mother’s parental r ights to the three children. She now appeals that decision. As an appellate court, we review the circuit court’s decision i n the light most favorable to the party prevailing below, and draw all reasonable inferences from the evidence in that party’s

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - favor. Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App . 71, 76, 764 S.E.2d 724, 727 (2014). Here, the Norfolk Departm ent of Human Services (“NDHS” ) prevailed in the circuit court. The facts were as follows. NDHS first became involved with m other in the summer of 2014, w hen mother abandoned A. at the home of an e lderly relative, then disappear ed for several weeks. Eventually, NDHS located mother, who reporte d that she had been homeless fo r months, staying in hotels. NDHS removed all three childre n from mother in September 2014. The next month, at an adjudica tory hearing upon allegations of abuse and neglect, the J&DR court declared the child ren abused or neglected. The J&DR court also entered a preliminary protective order as t o each child, requiring mother to cooperate with NDHS and any recommended services. At the sa me hearing, the J&DR court retu rned the children to mother’s custody, following a report that m other and C.’s father had fou nd somewhere for the family to live. Unfortunately, this stability was fleeting; within days, the fa mily resumed their transitory march among hotels. By November, m other reported that the fami ly was living in a house, but had no lease. The house was in a s tate of significant disrepai r. That winter, the Court Appointed Special Advocate visited the house, and later testified that: the home was very cold, [and] tha t there was no glass in the ba ck door and the opening was covered in trash bags. The bedroom ha d cots but no sheets or blankets. T he children were not dressed warmly, and they seemed hungry. There was no food in the refrigerator or the freezer, w hich [mother] told her was not working. 1 The circuit court observed that “[t]he family ultimately had to leave that house as well due to foreclosure proceedings.”

1 This quotation, and the quotations that follow, are from the c ircuit court’s January 20, 2017 letter opinion, which begi ns on page 942 of the appendix.- 3 - Even more concerning than the uns table housing was mother’s ina bility to comply with the recommendations of NDHS or t o avail herself of the services NDHS offered. In February 2015, the J&DR court “ordered tha t the children be removed agai n based on the failures of [mother] and [C.’s father] to com plete, or in some cases even s tart, many of the services that were ordered.” NDHS’s recommendations to mothe r included obtaining a parenting capacity evaluation, obtaining a substance abuse a ssessment and complying with any r esultant service recommendations, maintaining employment, and attending mental h ealth treatment appointments. But even with t he children in the custody of NDH S, a circumstance that presumably would have provided mot her with more time to address these issues, her “failure to comply with services persisted. ” She failed to complete a pare nting capacity e valuation. She “participated in a substance abus e assessment, but the results of her urine screen were diluted—a circumstance that neither confir med nor ruled out illegal subst ances and can be considered suspicious.” She never provided proof of employment. Although she “admitted the need for mental health treatment,” she ne ver addressed this need. “[T]h ese many issues were still extant as of September 2015, at which tim e the children had been in fo ster care for more than six months . . . .” Other circumstances presented a dditional challenges. Two of th e three children were grappling with mental health issu es. An NDHS employee testifie d that A. was “diagnosed with a high level of anxiety and some t rauma. Her doctor has recommen ded medication to manage her anxiety.” Meanwhile, G. “had e xtreme behavior problems requiri ng four hospitaliz ations for aggressive and self-harming behavi ors. He has a number of psyc hiatric diagnoses and has been unable to remain with foster pare nts. He has lived at [two dif ferent] residential treatment facilities for youths with emoti onal and behavioral problems.” Finally, while the children were- 4 - in the custody of NDHS, mothe r pleaded guilty to possession of methamphetamine, and was placed on first-offender probation.
II. A NALYSIS A. Standard of Review We assume that the circuit co urt “thoroughly weighed all the ev idence, considered the statutory requirements, and ma de its determination based on the child’s best interests.” Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). That assumption is rooted in a circuit court’s “broad discretion in mak ing the decisions necessary to guard and to foster a child’s best interests.” Eaton v. Wash. Ct y. Dep’t of Soc. Servs., 66 Va. A pp. 317, 324, 785 S.E.2d 231, 235 (2016) (quoting Farley, 9 V a. App. at 328, 387 S.E.2d at 795). When a circuit court’s decision is “based on evidence heard ore tenus , [it] will not be disturbed on a ppeal unless plainly wrong or without evidence to support it .” Peple v. Peple, 5 Va. App. 41 4, 422, 364 S.E.2d 232, 237 (1988). B. Analysis Mother’s assignment of e rror reads as follows: The [circuit] court committed r eversible error because it was not in the best interests of the children to be taken away from [mother], nor had [mother] committed any acts that arose to the statutory definition of abuse or ne glect elucidated in Va. Code Ann. [§] 16.1-228, namely, she had c onditions that were created by her poverty but not by her motherin g skills, she now is employe d, has a place to live and is willing to submit to drug testing an d a parenting capacity evaluation a nd any recommended treatment. This assignment of error does not address termination of mother ’s parental rights, instead focusing on the J&DR court’s in itial finding of abuse and negle ct. Even if mother had clearly assigned error to the circuit co urt’s decision to terminate her parental rights, her brief inadequately supports such an assignment. Finally, even if mot her had both clearly assigned- 5 - error to the termination deci sion, and fully discussed the issu e in her brief, the record supports the circuit court’s termination decision. 1. Inadequate Assignment of Error As a threshold matter, this as signment of error does not addres s termination of mother’s parental rights. Instead, it f ocuses on the J&DR court’s findi ng of abuse and neglect and the resulting removal of the child ren. Mother’s brief argues that neither abuse nor neglect caused the removal of the children. Rathe r, she alleges, “most of [mother ’s] issues, including the reason that the children were taken i nto custody in the first place, s temmed from poverty.” By adjudicatory orders entered O ctober 2, 2014, the J&DR court dec lared the children abused or neglected. Subsequently, in dispos itional orders entered Febru ary 20, 2015, the J&DR court transferred custody of the child ren to NDHS. Mother did not ex ercise her right to appeal those dispositional orders. See C ode § 16.1-278.2(D) (“A disposition al order entered pursuant to this section is a final order from which an appeal may be taken . . . .”). Mother’s opportunity to contest the finding of abuse or ne glect has long since passed. The propriety of the abuse and neglect finding was not before the circuit court, thus it is no t before this Court. We are not procedurally empowered to correct the error mother alleges in h er assignment of error (a wrongful finding of abuse or neglect ). And mother’s failure to assign error to the issue we could have addressed (termination) pre vents us from answering that un asked question. 2. Inadequate Argument Even if mother had clearly assi gned error to the circuit court’ s decision to terminate her parental rights, her brief fails to support such an assignment. The inadequacy of her brief violates Rule 5A:20(e). That Rul e states, in part, that “[t]he opening brief of appellant shall contain . . . [t]he standard of review and the argument (includ ing principles of law and authorities) relating to each assignment of e rror.” Mother’s b rief contains the standard of review,- 6 - but fails to present an argum ent supported by principles of law or authorities. Mother’s support for her assignment of error cons ists of citations to five cases , all addressing the standard of review. Her argument is three paragraphs long. The only other authority she cites to support her argument is Code § 16.1-228, which defines “[a]bused or neglect ed child.” In neither her brief nor her oral argument did mother make any reference to the code section under which termination occurred, Code § 16.1- 283(C). We applaud succinct advocacy, but mother’s thirteen-sentence argument sacrifices coherence on the altar of brevity. In its order terminating mothe r’s parental rights to each of he r three children, the circuit court checked two boxes on the for m order, indicating that base d upon “clear and convincing evidence” and pursuant to C ode § 16.1-283(C), it found that mot her: without good cause, has failed to m aintain continuing contact w ith and to provide or substantially pla n for the future of the chil d for a period of six months after the child’s placement in foster care notwithstanding the reasonable a nd appropriate efforts of socia l, medical, mental health or other rehabilitative agencies to communicate with the parent and t o strengthen the parent-child relationship and that she: without good cause, has been unw illing or unable within a reasonable period of time not to e xceed twelve months from the date the child was placed in fos ter care to remedy substantiall y the conditions which led to or requi red continuation of the child’s foster care placement, notwithstanding the reasonable and appropriate efforts of social , medical, mental health or rehabilitative agencies to such end. Those two paragraphs correspond to subsections (C)(1) and (C)(2 ), respectively, of Code § 16.1-283. 2 Mother’s brief does not addre ss her failure to maintain conta ct with the children for six months after they entered f oster care, her failure to provi de for their futur e, or her failure to

2 The circuit court made both f indings, although a finding as to either subsection alone would have justified termination.- 7 - remedy within 12 months the conditi ons which led to foster care placement. Instead, she is content to label the proceed ings a misguided attack on a povert y-stricken parent. Thus even if mother had clearly a ssigned error to the circuit c ourt’s termination decision, her claim is wholly unsupporte d by her brief, in violation of R ule 5A:20(e). We find further that mother’s non-compliance with Rul e 5A:20(e) is significant, and “when a party’s ‘failure to strictly adhere to the requiremen ts of Rule 5A:20(e)’ is signif icant, ‘the Court of Appeals may . . . treat a question presented [ now assignment of error] as w aived.’” Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008) (first alteration in original) (quoting Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008)); se e also Budnick v. Budnick, 42 Va. App. 823, 834, 595 S.E.2d 50, 55 (2004) (“Having present ed no citations or authority in his brief in support of these questions, husband has waived the se questions on appeal and we need not address them.”); see gene rally Rule 5A:1A(a) (“This Co urt may dismiss an appeal or impose such other penalty as it deems appropriate for non-compl iance with these Rules.”); Rule 5A:26 (“If an appellant fails to f ile a brief in compliance wit h these Rules, the Court of Appeals may dismiss the appeal.”). 3 It is not this Court’s “func tion to comb through the record . . . to ferret-out for ourselves the valid ity of” mother’s assertions. Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988) ( en banc ); see also Buchanan v. Buchanan, 14 Va. App.

3 Mother’s brief also fails to c omply with Rule 5A:20(c). That subpart of Rule 5A:20 requires that an opening brief c ontain a “a clear and exact ref erence to the page(s) of the transcript, written statement, record, or appendix where each a ssignment of error was preserved in the trial court.” Mother cites page 53 of the appendix as t he location of the preservation of the alleged error. Page 53 of the appe ndix is an affidavit of an e mployee of NDHS that was filed in support of the petition to termina te the parental rights of the father of two of the children. In fact, mother’s objections in the circuit court are found over e ight-hundred pages later. Notwithstanding mother’s failure to make a “clear and exact ref erence” to the location of her preservation of the errors she alleges, we do not use this shor tcoming as the basis for our decision in this case.- 8 - 53, 56, 415 S.E.2d 237, 239 (1992) (“We will not search the rec ord for errors in o rder to interpret the appellant’s contention and c orrect deficiencies in a brief. ”). 3. Clear and Convincing Evidence in Support of Termination Finally, even if mother had both c learly assigned error to the termination decision, and fully discussed that assignment in her brief, termination was w arranted under subsections (C)(1) and (C)(2) of Code § 16.1-283. In i ts February 2017 orders, th e circuit court found that termination was in the best in terest of each child and that by clear and convincing evidence, termination was justified under both subsections (1) and (2) of Code § 16.1-283(C). 4 Under subsection (C)(1), mother faile d to maintain contact with the c hildren for six months after they entered foster care. She also f ailed to provide for their futu re, a particularly problematic omission given the serious menta l health needs of two of her ch ildren. Under subsection (C)(2), she failed to remedy within 12 mont hs the conditions which led to foster care placement, by failing to address her admitted mental health problems, failing to provide proof of employment, failing to maintain stable housing, and failing to give an undi luted drug screen after admitting to drug use following the removal of the children. For these reas ons, the circuit court’s decision to terminate was supported by clear and convincing evidence, was i n the best interests of the children, and was notplainly wrong.
III. C ONCLUSION Mother does not assign error to the circuit court’s decision t o terminate her parental rights. Even if she had done so, the argument she offers on br ief violates Rule 5A:20 in its inadequacy. Finally, even if her assignment of error had been clearly crafted and the argument in

4 Although the appendix contains the c ircuit court’s termination orders for C. and G., it contains no such order for A. The circuit court’s termination order for A. is part of the record transmitted to this Court, howev er. Per Rule 5A:25(h), we may consider documents included in the record but left out of the appendix. Accord Cabral v. Cabr al, 62 Va. App. 600, 604 n.1, 751 S.E.2d 4, 7 n.1 (2013).- 9 - support of that assignment of e rror had been fully explicated i n her brief, the circuit court’s decision to terminate was supporte d by clear and convincing evi dence, was in the best interests of the children, and was not plainly wrong. Affirmed.