COURT OF APPEALS OF VIRGINIA

Present: Judges McCullough, D ecker and Senior Judge Felton

GRETCHEN McDORMAN BURKETT

v. Record No. 0360-15-3

HARRISONBURG ROCKINGHAM SOCIAL SERVICES DISTRICT MEMORANDUM OPINION * PER CURIAM GRETCHEN McDORMAN BURKETT JULY 28, 2015

v. Record No. 0361-15-3

HARRISONBURG ROCKINGHAM SOCIAL SERVICES DISTRICT

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY Thomas J. Wils on, IV, Judge (Lynn C. Svonavec, on brief), for appellant. Appellant submitting on brief. (Kim Van Horn Gutterman, Assi stant County Attorney; Sherwin John Jacobs, Guardian ad litem for the minor childr en, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Gretchen McDorman Burkett (mot her) appeals the orders terminating her parental rights to her children, C.B. and S.B. Mo ther argues that the trial court erred in finding that (1) the Harrisonburg Rockingham Social Services Dist rict (the Department) proved by clear and convincing evidence that termination of mother’s parental rights was appropriate and in the

children’s best interests because “there was insufficient evidence to show that the mother had willingly lost contact with her children for more than six months;” and (2 ) “mother’s conduct was so egregious as to warrant the termination of her parental righ ts when there was insufficient

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - evidence to show that the childre n were endangered while they were in her care.” Upon reviewing the record and briefs of the partie s, we conclude that the trial court did not err. Accordingly, we

affirm the decisions of the trial court. On February 6, 2015, the circuit court heard this matter. Mother did not appear for the hearing; however, her counsel was present. The Department proffered it s evidence and submitted

several exhibits into evid ence. Mother’s counsel did not object to the proffer or th e exhibits, nor did she offer any evidence or make any motions. Then, the guardian ad litem gave his recommendation. Based on the proffer and the exhib its presented, the trial court found that there

was sufficient evidence to termin ate mother’s parental rights to C.B. and S.B. pursuant to Code § 16.1-283(C)(1) and that the term ination was in the chil dren’s best interests. Mother’s counsel endorsed the order. Mother did not file any post-t rial objections, but she di d file a notice of appeal. On appeal, mother contends she was “never out of touch with [the Department] for more than five months at a time,” so the evidence was insufficient to terminate her parental rights pursuant to Code § 16.1-283(C)(1). 1 Furthermore, she argues that the Department did not prove that the termination of parental rights wa s in the children’s best interests. Mother acknowledges that she di d not object to the Department’s proffered evidence at trial and raises her arguments for the first time on appeal. Rule 5A:18 states, “No ruling of the trial

1 Code § 16.1-283(C)(1) states a parent’s pa rental rights may be terminated if: [t]he parent or parents have, w ithout good cause, failed to maintain continuing contact with and to prov ide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care notw ithstanding the reasonable and appropriate efforts of social, me dical, mental health or other rehabilitative agencies to communi cate with the parent or parents and to strengthen the parent-chi ld relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition.- 3 - court . . . will be considered as a basis for reve rsal unless an objection wa s stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” This Court “w ill not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). Mother asks this Court to consider her argume nts based on the ends of justice exception to Rule 5A:18 because the termination of parental rights is a “serious, traumatic, and permanent loss.” The Supreme Court of Virginia previously has stated , “The terminatio n of parental rights is a grave, drastic, and irreversible action. When a court orders termination of parental rights, the ties between the parent and child are severed fo rever, and the parent becomes ‘a legal stranger to the child.’” Lowe v. Dep’t of Pub. Welfare of City of Richmond, 231 Va. 277 , 280, 343 S.E.2d 70, 72 (1986) (quoting Shank v. Dep’t of Soc. Servs., 217 Va. 506, 509, 23 0 S.E.2d 454, 457 (1976)). However, “[i]n order to avail oneself of the [ends of justice] exception, a defendant must affirmatively show that a miscarriage of justice has occu rred, not that a miscarriage might have

occurred.” Redman v. Commonwealt h, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (emphasis added). As our Supreme Court has state d, application of the ends of justice exception “requires a determination not only that there was error . . . but also that application of the exception is necessary to avoid a grave injus tice.” Charles v. Co mmonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 434 (2005). This occurs only in “rare instances.” Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981). Lacey v. Commonwealth, 54 Va. App. 32 , 46, 675 S.E.2d 846, 853 (2009). Mother had the opportunity to present evidence and argument at trial, bu t did not do so. The evidence proved that the childre n came into the Department’s cu stody on September 6, 2013. Mother had supervised visitation wi th the children until sh e left in December 20 13. As of the trial- 4 - date in February 2015, mother had had no contact with her chil dren since she left in December 2013. The Department did not know mother’s wh ereabouts from January through December 2014, except that she was su pposedly in Florida. The ends of justice exception does not apply in these matters. A “miscarriage of justice” has not occurred. Redman, 25 Va. App. at 221, 487 S.E.2d at 272. The evidence was sufficient to terminate mother’s parent al rights pursuant to Code § 16.1-283(C)(1). For the foregoing reasons, the tr ial court’s rulings are affirmed.

Affirmed.