COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, B eales and Senior Judge Willis

SHEILA DATTA MEMORANDUM OPINION * v. Record No. 0293-06-4 PER CURIAM AUGUST 22, 2006 FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Michael P. McWeeny, Judge (Gary M. Greenbaum, on briefs), for appellant. 1 (David P. Bobzien, County Atto rney; Peter D. Andreoli, Jr., Deputy County Attorney; Dennis R. Bate s, Senior Assistant County Attorney; May S. Kheder, Assistant County Attorney, on brief), for appellee. (Kathryn A. K. Untie dt, on brief), Guardian ad litem for the infant child.
Sheila Datta appeals a decisi on of the trial court finding her child, C.D., was neglected pursuant to Code § 16.1-228(5) and ordering that custody of C.D. remain with the Fairfax County Department of Family Services (D FS). On appeal, Datta contends the trial court erred by finding she had a “mental incapacity.” Da tta also argues the tr ial court erred by findi ng C.D. was “without parental care or guardianship.” Upon reviewing the record and briefs of the parties, 2 we conclude

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

1 Michael Scheu, father of the minor child, filed a brief in this case. However, he is not a party in the appeal and he has not comp lied with Rule 5A:23 to file a brief amicus curiae

. Therefore, we do not cons ider his brief.

2 The Court has considered appellee’s motion to dismiss this appeal and appellant’s response, and the motion to dismiss is denied.- 2 - this appeal is wi thout merit. Accordingly, we summarily affirm the decisi on of the trial court. See Rule 5A:27. Background C.D. came into foster care at the age of three months. Prio r to that time, he had lived with Datta in a single room she rented in a house. C.D.’s father, Michael Scheu, lived elsewhere, but he assisted Datta with living expenses. The reside nce was in disarray. Da tta, who was not employed at the time, informed Child Protect ive Services (CPS) employees that she did not have “the energy” to clean the room. On one occas ion, a CPS worker remo ved several bags of trash from the room, including dirty diapers, food, and empty food containers. Datta wa s guarded with th e CPS workers, and she often looked over her shoulder while th ey were present. Sh e was resistant to the involvement of DFS in her life, and she claimed she did not need their help. CPS arranged for a psychological evaluation, assisted her with orga nizing the room, and helped her with parenting skills. The case was transferred to the Family Interv ention Resource and Engagement Program (FIRE), an organization which could provide mo re intensive home-base d services to Datta. Katya Ceneceros, a FIRE social worker, test ified Datta’s room was so cluttered it was difficult to walk in the room. Clothes, shoes, diapers, em pty bowls, cans, and dishes containing food were scattered on the floor. The crib was full of items, and C.D., who was less than eight weeks old at the time, slept in a double bed with Datta . On several visits to Datta’s residence, social workers noted that C.D.’s diaper needed to be changed and they a dvised Datta to change the diaper. Ceneceros testified that Datta initially refused services from FIRE. She then agreed to accept transportation assistance for medical and psyc hiatric appointments. On two occasions, Ceneceros observed Datta be have as if she was talking to someone who was not present. Datta also told Ceneceros that she was not taking her pres cribed psychiatric medi cation because she was- 3 - nursing C.D. Ceneceros testified that Datta slept long hours and so metimes did not answer the door when Ceneceros arrived for an appointment. Ceneceros stated that FIRE is a voluntary program, but they have written contracts with clients which include specified goal s. Datta refused to sign a cont ract with FIRE containing the goals of complying with psychiatric medication and treatment and providing a clean environment for C.D. On June 2, 2005, an incident took place which precipitate d the removal of C.D. from Datta’s custody. At about midnight, Datt a took a taxicab to the home of Sc heu. She exited the cab in the driveway and yelled, “If you or your sister come anywhere near [C.D.] I’ll slit your fucking throats.” C.D. remained unattended in the cab during the incident. There were also allegations that Datta threw a beer bottle during the episode. Scheu testified that he met Da tta while they we re patients at a mental health institution. After they were released from th e institution, Datta told Scheu she believed people stalked her and she often contacted the police to report stalkers. Scheu testified he never noticed anyone following Datta. Scheu also st ated Datta left threatening and ra mbling phone messages for him. DFS removed C.D. from Datta’s custody on Ju ne 3, 2005. Wh en the social worker retrieved C.D., his diaper was soaked with urine and the room contained nu merous dirty diapers and opened, old food. Datta denied to DFS that she had threatened Scheu and his sister on June 2, 2005. Later in June 2005, Jennifer Roberts, a social worker with DFS, began to work with Datta. Datta was unable to tell Roberts the psycho-e ffective disorder with which she had been diagnosed or when she had last had a psychological evaluation. Between June 2005 and January 2006, Datta had seven visits with C.D. Roberts supervised these visits. Roberts stated that Datta was not “a ppropriate” with C.D. and she was unable to meet his needs during the visits. Robe rts testified Datta did not appear to know what to do when C.D.- 4 - became “fussy” and Datta would get “very frazzled.” On one visit, Datt a appeared to have a conversation with an imaginary person. Roberts stated that Datta was “very resistant” to talking with her, was “very uncooperative,” and told Roberts she woul d not follow “any of the court rules.” On one oc casion, Datta threatened to “hurt” Roberts if she did not stop talking and Datta “lunged” at Roberts. Datta left numerous “rambling” phone messages for Roberts, includi ng one in which she sa id she would not “do anything” Roberts asked her to do. Roberts was un able to establish a routine visitation schedule with Datta and C.D. Roberts coul d not locate Datta at times to sche dule visitation wi th C.D. Datta signed, but then revoked, a releas e for Roberts to speak with Datta’s psychiatrist. Roberts was unable to make a referral for Datta’s court-ordered psychologi cal evaluation and her parent/child assessment because Datta would not sign the appropri ate release documents. Datta did not appear for several evaluation appointments. In August 2005, Datta was evicted from her resi dence for failing to pay the rent. At the time of the trial court hearing, she was in detention aw aiting trial for an assau lt charge. Datta had not been employed since giving birth to C.D., and she testified she was exhausted from caring for C.D. during the twelve weeks she had cu stody of the child. She denied that she previously threatened Scheu or Roberts. She blamed ma ny of the circumstance s in her life on Scheu and others. Datta also stated that after her release fr om jail, she planned to receive help from a church, li ve in a motel, and move to New York with C.D., although she had no friends or rela tives there. Da tta testified she had been prescribed an anti-depr essant medication, but she was not receiving it while she was in detention. She also admitted she had a prior convic tion for assault. The evidence showed that C.D. was in good health while under Datta’ s care. He was also doing well in foster care. C.D.’s guardian ad litem (GAL) asserted that this was a neglect, rather than an abuse, case. The GAL argued that due to Datta’s me ntal incapacity, Datt a was unable to- 5 - have custody of C.D. The GAL c ited Datta’s pattern of past violence, her de nial of responsibility for her circumstances, her hallucinations, and th e family’s living condition s as the bases for her position. The trial judge found there was “clear evidence of a di fficulty with [Datta’s] mental incapacity” and evidence of negl ect pursuant to Code § 16.1-228(5) . He ordered that custody of C.D. remain with DFS. Analysis On appeal, we view the evid ence and all the reasonable inferences in the light most favorable to DFS as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). “In matters of a child’s welfar e, trial courts are vested with broad discretion in making the decisions necessary to guard an d to foster a child’s best interests.” Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On appellate review, “[a] trial court is pr esumed to have thoroughly weighed all the evidence, considered the statutory require ments, and made its determination based on the ch ild’s best interests.” Id. at 329, 387 S.E.2d at 796. The trial court’s judgment, “when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evid ence to support it.” Peple v. Peple , 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Code § 16.1-228(5) defines “abused or neglec ted child” as any child “[w]ho is without parental care or guardianship caused by the unr easonable absence or the mental or physical incapacity of the child’s pare nt, guardian, legal custodian or other person standing in loco parentis .” 3

3 In her opening brief, Datta argues that because Code § 16.1-228 does not define “mental incapacity,” the definition of th e term found in Code § 37.2-1000 a pplies to her case. Because Datta did not present this argument to the trial court, we will not address it. See Rule 5A:18.- 6 - From the record before us and in the abse nce of expert testimony, the trial court could have reasonably found that Datta suffered from a mental incapacity. While lay witnesses may testify to the attitude and demeanor of the defendant, “lay witnesses cannot express an opinion as to the existence of a particular mental disease or condition.” Mullis v. Commonwealth , 3 Va. App. 564, 573, 351 S.E.2d 919, 925 (1987) (citing Phillips v. Stewart , 207 Va. 214, 220, 148 S.E.2d 784, 789 (1966)). White v. Commonwealth , 46 Va. App. 123, 134, 616 S.E.2d 49, 54 (2005) ( en banc ). No witness opined that Datta was suffering from a particular mental disease. Rather, the witnesses described her attitude toward others and her uncommon behavior. Several witnesses reported that Datta believed she was being follo wed or she spoke to persons who were not present. She exhibited aggressive behavior, whic h included threatening C.D.’s family and social workers. Furthermore, Datta ha d a history of mental hospita lization and she took psychiatric medications periodically. She re fused to sign the appropriate re lease forms so a psychological evaluation could be performed, and she cooperated li ttle with agencies attempting to assist her. From this evidence, the trial court could conc lude Datta suffered from a mental incapacity. In addition, the trial court could find Datta ’s mental incapacity prevented her from rendering appropriate parental care to C.D. Datta maintained an unclean and disorderly residence despite efforts by the social agencies to clean her home and to teach her how to maintain the home. She told social workers she lacked the energy to clean the residence, although she was not employed outside the home. On more than one occasion, social workers arrived at scheduled appointments and found th at C.D.’s diaper was full and the room was cluttered with old food, dirty dishes, and soiled di apers. Datta often refused the assistance and services offered by social service agencies, a nd she was uncooperative with social workers. Even during supervised visits with C.D., Datta ex hibited inappropriate beha vior and appeared to be unable to comfort and care for the child. Mo reover, Datta admitted that caring for C.D. had- 7 - exhausted her, she had lost her lease on the fam ily’s residence, and she had no clear plan for living arrangements and caring for C.D. when she was released from detention. From this evidence, the trial court could conclude C.D. was without parent al care or guardianship within the meaning of Code § 16.1-228(5). Accordingly, we affirm the d ecision of the trial court. Affirmed.