COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, D ecker and Senior Judge Felton

JENNIFER WISMAN MEMORANDUM OPINION * v. Record No. 0451-15-3 PER CURIAM NOVEMBER 10, 2015 HARRISONBURG ROCKINGHAM SOCIAL SERVICES DISTRICT

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY Bruce D. Albe rtson, Judge (Shelly R. James, on brief), for appellant. (Rachel Errett Figura, Assistant County Attorney; Lynn Svonavec, Guardian ad litem for the infant child, on brief), for appellee.
Jennifer Wisman, appellant, appeals the rulin g of the trial court fi nding that Harrisonburg Rockingham Social Services Distri ct, HRSSD herein, was not asking for a change in custody in the final child protective order an d that HRSSD proved physical 1 custody should be transferred to the child’s grandmother. Finding no error by the trial court, we su mmarily affirm th e trial court’s actions in issuing the child pr otective order. Rule 5A:27. Background Appellant has two children, I.D. and K.B., ag es nine and six respect ively, each born to different fathers. HRSSD first investigated the family in Marc h of 2011. Mary Lou Frowd, the social worker assigned to the case, determined the complaint was unfounded. Nevertheless, Frowd

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Although appellant’s assignmen t of error states “legal” custody, her argument in support of this error discusse s Code § 16.1-278.2(A)(4) and physic al custody; therefore, we consider the assignment of error in regard to physical custody.UNPUBLISHED- 2 - offered services to the family. Appellant indicat ed the family was going to move out of state, causing Frowd not to follow up wi th the offer of servic es. At that time, th e Community Services Board (CSB) was providing services to I.D. Th e CSB discontinued services, however, due to missed appointments. In 2013, HRSSD received a new complaint and opened a new investigation. In September 2013, the juvenile and domestic relations district court (JDR court) entered a protective order, regarding I.D. and K.B., based on domestic violence issues be tween I.D.’s father, Aaron Dennison, and Misty Wisman, appellant’s mo ther. Appellant and Dennison were also using marijuana, sometimes in the children’s pres ence. Appellant maintained lega l and physical custody of K.B. pursuant to the protective order, and the JDR court ordered her to comply with HRSSD. In May 2014, appellant, Dennison and K.B.’s father were convicted of burglary-related charges. Appellant reported to Fr owd that the three of them were addicted to synthetic marijuana, which led to the criminal behavior. Frowd attemp ted to provide services to appellant, but felt appellant was not appropriately following through with the offered programs. Appellant did, however, complete a parenting cl ass, arranged by the Therapeuti c Day Treatment (T DT) worker for I.D., and accepted in-home services. Frowd expressed her concern th at a new man, J.R. Morris, wa s staying at the one-bedroom, single-wide trailer with appellant, Misty, and K. B. Morris had a crimin al record and was also subject to a HRSSD in vestigation regarding his son and their drug use. Appellant reported that K.B. would sleep on the floor of the bedr oom where she and Morris slept. The record clearly establishes I.D. needed signi ficant services due to behavioral issues and developmental delays. I.D. exhi bited anger control problems and vi olent outbursts. Appellant was unable to manage and follow through with the necessary treatment plan for I.D. As I. D.’s behaviors- 3 - continued to escalate, HRSSD re moved him from the home and placed him in a residential treatment facility. Soon after I.D. was removed from appella nt’s home, HRSSD placed K.B. with Sandra Boyd, K.B.’s paternal grandmothe r. Boyd had a large home and a job. Boyd arranged for dental care for K.B.’s rotting tooth, and her health and appearance genera lly improved whil e living with Boyd. K.B.’s performance in school, academically and behaviorally, also improved. Appellant conceded the evidence supported a finding of abuse and neglect to support a protective order. Appellant argu ed, however, that while HRSSD claimed it was not asking for a change in custody, the effect of the order resulted in a change in legal custody by its requirements: transfer of physical custody and tendering control of medical and school decisions to Boyd. The trial court recognized that appellant had shown pr ogress and there was no evidence of relapse since the JDR court entered the contested protective order. However, due to appellant’s history of overt substance abuse and K.B.’s exposure to violence in the residence, the tria l court found it necessary to order that K.B. remain in Bo yd’s home. The trial court found that Boyd would be a good “gate keeper” in monitoring appellant’s progress and de termining the appropriate amount of visitation and involvement between K.B. and appellant. Analysis Appellant first contends that the trial cour t erred by finding HRSS D was not asking for a change in legal custody. In support of this contention, appellant asserts that the ef fect of the order giving Boyd physical cust ody and decision-making power over K.B.’s education and medical care resulted in a change in legal custody, thus requi ring a more stringent legal standard of proof that “no less drastic alternative” was availa ble. Code § 16.1-278.2(A)(5). “We are guided in our analysis by the familiar principle that ‘[ i]n construing a statute, we look first to its plain language.’” Jones v. Div. of Child Support Enforcem ent, 19 Va. App. 184,- 4 - 187, 450 S.E.2d 172, 174 (1994) (quoting Jennings v. Div. of Crime Victim s’ Comp., 5 Va. App. 536, 538, 365 S.E.2d 241, 243 (1988)). A plain reading of the relevant statut es in this case leads us to conclude that the trial court did not transfer legal custody to Boyd and appropriately gave Boyd physical custody of K.B., having applie d the correct standa rd in the case. Code § 16.1-278.2 directs that when a child has beenabused or neglected, as conceded in this case, the trial court has the ability to protect th e child by limiting contac t between the parent and child. Further, the trial court may allow HRSSD to place the child in an appropriate family home without taking legal custody away from the parent . Code § 16.1-278.2(A) (4). In addition, [t]he local board or publ ic agency and the parents or guardians shall enter into an agreement which shall specify the responsibilities of each for the care and cont rol of the child. Th e board or public agency that places the child shall have the final authority to determine the appropriate placement for the child. Any order allowing a local board or public agency to place a child where legal custody rema ins with the parents or guardians as provided in this sect ion shall be entered onl y upon a finding by the court that reasonable efforts have been made to prevent placement out of the home and that continued placement in the home would be contrary to the welfare of the child ; and the order shall so state. Id. If, however, the trial court or agency feels that there is “n o less drastic alte rnative,” it may “transfer legal custody.” Code § 16.1-278.2(A)(5). Code § 16.1-278.2 does not de fine “legal custody.” Nevert heless, Code § 16.1-228, which defines terms to be applied in Chapter 11, which includes Code § 16.1-27 8.2, states in pertinent part: “Legal custody” means (i) a legal status created by court order which vests in a custodian the right to have physical custody of the child, to determine and redetermine wh ere and with whom he shall live , the right and duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to any residual paren tal rights and responsibilities

. . . .- 5 - HRSSD specifically stated it did not reques t a change in legal cu stody. Thus, HRSSD sought to proceed under Code § 16.1-278.2(A)(4), allowing appellant to ma intain legal custody. Such process required an agreement speci fying the responsibilit ies of the guardian and parent in the care of the child. By stating that Boyd was “authorized to seek medical care fo r child and . . . make educational decisions for th e child” the trial court did not relieve appellant of her parental rights to do the same. It merely specified that Boyd also had the legal authority to make medical and educational decisions on K.B.’s behalf. Boyd was not allowed, however, to make determinations as to where and with whom K.B. could reside; that authority rema ined with HRSSD pursuant to Co de § 16.1-278.2(A)(4). If the order had stated that Boyd could determine or “r edetermine” where and with whom K.B. could live, as stated in the definition of legal custody in Code § 16.1-228, then it would appear that there was in effect a change in lega l custody. Howeve r, the order only expressed cer tain responsibilities Boyd was authorized to exercise while K.B. remained in her care. Thus , the child protective order did not in effect change legal custody to Boyd, as appellant contends. Appellant further argues the tr ial court erred by finding suffic ient evidence to give Boyd physical custody. The record refl ects that continued placement in the home would not benefit K.B.’s welfare. Appellant conced ed the evidence supported a finding of abuse and negl ect of K.B. Appellant admitted using drugs in front of the children and acknowl edged her addiction to synthetic marijuana, which led to a felony burglary convic tion. Appellant, due to her drug use, would be absent for days at a time. The children were expos ed to domestic violence be tween I.D.’s father and appellant’s mother. K.B. had a rotten tooth that needed, but was not getti ng, medical treatment. Appellant did not have stable employment and, therefore, was unable to maintain housing independent of her mother. Add itionally, appellant allowed Morris, also under investigation by HRSSD, to stay in the trailer and sleep in the same room as her an d K.B. Frowd reflected appellant- 6 - was unable to take resp onsibility for the conditi ons of the home and co uld not recognize that exposing the children to drug us e and violence would have an eff ect on them. She described the home as “chaotic.” Once K.B. began to reside with Boyd, however, K.B. showed signs of significant progress. Boyd arranged to have the tooth treated, and K.B.’s hygiene and appearance improved. K.B.’s social interactions and academic performance al so strengthened. Her TDT worker noted K.B. appeared “attentive” at schoo l and “happier to learn.” All this evidence supports the trial court’s conc lusion that it was cont rary to K.B.’s welfare to continue living in the home with appellant. Appellant had not demonstr ated sustained ability to manage the care and nurturing of the children. While appellant showed some progress, as acknowledged by the trial court, there was no indication the conditions of the home, even with I.D.’s removal, would stabilize. The trial court imposed appropriate conditions for the care of K.B. and preserved appellant’s parental rights until appe llant could demonstrate long-term change in her parenting and living circumstances. Therefore, the trial court did no t err in giving physical custody to Boyd. The trial court did not err by finding HRSSD did not request change in custody, and the ordered conditions did not in effect give Boyd legal custody. Furt her, HRSSD presented sufficient evidence to support transferring physical custod y to Boyd and the trial court applied the correct standard of proof. Accordingly, finding no error, we summarily affirm the trial court’s issuance of the final child protective order. Rule 5A:27. Affirmed.