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COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Willis 

MY THI NGUYEN 

 MEMORANDUM OPINION*

v. Record No. 0938-04-4 PER CURIAM 

 SEPTEMBER 28, 2004 

FAIRFAX COUNTY DEPARTMENT 

 OF FAMILY SERVICES 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 (Matthew W. Greene; Smith & Greene, P.L.L.C., on briefs), for 

appellant. 

 (David P. Bobzien, County Attorney; Peter D. Andreoli, Deputy 

County Attorney; Dennis R. Bates, Senior Assistant County 

Attorney; Donna R. Banks, Assistant County Attorney, on brief), for 

appellee. 

 (Phong T. Nguyen, Guardian ad litem for the minor children, on 

brief). 

 On March 19, 2004, the trial court entered orders terminating the parental rights of My 

Thi Nguyen (appellant) to her minor sons, D.N. and C.N., pursuant to Code §§ 16.1-283(C)(1) 

and 16.1-283(C)(2). On appeal, appellant contends the trial court should have limited its 

consideration to whether the facts and circumstances supported a termination of parental rights 

pursuant to Code § 16.1-283(B). Upon reviewing the record and briefs of the parties, we 

conclude this appeal is without merit. Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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BACKGROUND

 At an adjudicatory hearing on October 2, 2002, the Fairfax County Juvenile and 

Domestic Relations District Court (juvenile court) found D.N. and C.N. were abused and 

neglected as defined by Code § 16.1-228. Appellant did not appeal this finding to the circuit 

court, nor did she appear at a subsequent dispositional hearing on the matter on December 10, 

2002. 

 On December 10, 2003, acting upon petitions filed by the Fairfax County Department of 

Family Services (the Department), the juvenile court terminated appellant’s residual parental 

rights to D.N. and C.N. The juvenile court found clear and convincing evidence of the facts and 

circumstances required for termination pursuant to Code § 16.1-283(C)(2). Appellant appealed 

the juvenile court’s decision to the circuit court. Following a March 18, 2004 evidentiary 

hearing, the trial court terminated appellant’s parental rights to D.N. and C.N., finding the 

evidence sufficient to establish the standards and conditions found in both Code 

§§ 16.1-283(C)(1) and 16.1-283(C)(2). 

ANALYSIS

 Appellant’s sole contention on appeal is that because the juvenile court previously had 

found D.N. and C.N. were abused and neglected, the Department was limited to seeking 

termination of appellant’s residual parental rights pursuant to Code § 16.1-283(B).1

 In pertinent 

part, Code § 16.1-283(B) provides that “[t]he residual parental rights of a parent . . . of a child 

found by the court to be neglected or abused and placed in foster care . . . may be terminated if 

 1

 The Department contends appellant failed to preserve this issue for appeal because she 

did not note a specific objection to the trial court’s ruling. However, appellant raised the issue in 

a motion to strike at the conclusion of the Department’s evidence, and renewed her motion at the 

conclusion of all the evidence. Moreover, appellant’s attorney endorsed the orders terminating 

appellant’s parental rights as “seen and objected to.” Because the record demonstrates the trial 

court considered the same argument appellant advances on appeal, the issue was preserved for 

consideration on appeal. See Rule 5A:18. 
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the court finds, based upon clear and convincing evidence, that it is in the best interests of the 

child” and that other conditions exist. Pursuant to Code § 16.1-283(C), a parent’s residual 

parental rights “of a child placed in foster care . . . may be terminated if the court finds, based 

upon clear and convincing evidence, that it is in the best interests of the child” and either 

 1. The parent [has] . . . , without good cause, failed to maintain 

continuing contact with and to provide or substantially plan for the 

future of the child for a period of six months after the child’s 

placement in foster care notwithstanding the reasonable and 

appropriate efforts of social, medical, mental health or other 

rehabilitative agencies to communicate with the parent . . . and to 

strengthen the parent-child relationship[,] . . . or 

 2. The parent . . . , without good cause, ha[s] been unwilling or 

unable within a reasonable period of time not to exceed twelve 

months from the date the child was placed in foster care to remedy 

substantially the conditions which led to or required continuation 

of the child’s foster care placement, notwithstanding the 

reasonable and appropriate efforts of social, medical, mental health 

or other rehabilitative agencies to such end. . . . 

 In Fairfax County Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 512 S.E.2d 830 

(1999), a juvenile court entered an order finding a child “abused or neglected” within the 

meaning of Code § 16.1-228(4).2

 On appeal of this decision, the circuit court refused to admit 

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 For a child to be “abused or neglected” for purposes of Code § 16.1-228(4), the child’s 

parent, or person responsible for the child, must have committed, or allowed to have been 

committed, an unlawful sexual act upon the child. See Code § 16.1-228(4). A child is “abused 

or neglected” pursuant to Code § 16.1-228(1) where his 

parents or other person responsible for his care creates or inflicts, 

threatens to create or inflict, or allows to be created or inflicted 

upon such child a physical or mental injury by other than 

accidental means, or creates a substantial risk of death, 

disfigurement or impairment of bodily or mental functions, 

including, but not limited to, a child who is with his parent or other 

person responsible for his care either (i) during the manufacture or 

attempted manufacture of a Schedule I or II controlled substance, 

or (ii) during the unlawful sale of such substance by that child's 

parents or other person responsible for his care, where such 

manufacture, or attempted manufacture or unlawful sale would 

constitute a felony violation of § 18.2-248 . . . . 
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evidence proving the child was “abused or neglected” as defined by Code § 16.1-228(1). D.N., 

29 Va. App. at 404, 512 S.E.2d at 832. While noting that the circuit court’s jurisdiction was 

derivative upon appeal from the juvenile court, this Court stated: 

[A]n appeal from the juvenile court must be heard de novo by the 

circuit court. “‘A de novo hearing means a trial anew, with the 

burden of proof remaining upon the party with whom it rested in 

the juvenile court.’” A trial de novo in the circuit court “annuls the 

judgment of the [juvenile court] as completely as if there had been 

no previous trial . . . and . . . grants to a litigant every advantage 

which would have been [available to the litigant] had the case been 

tried originally in [the circuit] court.” “‘A court which hears a case 

de novo, which disregards the judgment of the court below, which 

hears evidence anew and new evidence, and which makes final 

disposition of the case, acts not as a court of appeals but as one 

exercising original jurisdiction.’” 

 It follows from these principles that, at a trial de novo in the 

circuit court, the parties are not restricted to the evidence presented 

before the juvenile court. The circuit court must consider all 

relevant evidence, even if such evidence had not been considered 

by the juvenile court. 

Id. at 406, 512 S.E.2d at 832-33 (citations omitted). This Court concluded the trial court erred in 

refusing to admit evidence proving the child to be abused and neglected under a standard other 

than the provision upon which the juvenile court had made its finding. Id. at 407, 512 S.E.2d at 

833. 

 Here, the Department invoked the jurisdiction of the juvenile court by filing petitions 

requesting the termination of appellant’s parental rights pursuant to Code § 16.1-283. Upon the 

appeal from the juvenile court’s decision to circuit court, the Department was not limited to the 

evidence and arguments presented in the juvenile court. In the appeal de novo, the Department 

was entitled to every advantage it would have been due had the case originated in the circuit 

court. See D.N., 29 Va. App. at 406, 512 S.E.2d at 832. Thus, the Department was entitled to 

prove, and the circuit court had the authority to find, that appellant’s parental rights should be 

terminated pursuant to Code § 16.1-283(C). 
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 Accordingly, we find appellant’s appeal is without merit, and we summarily affirm the 

decision.3

 Affirmed.

 3

 Appellant does not contend the evidence was insufficient to prove the facts and 

conditions required by Code §§ 16.1-283(C)(1) or 16.1-283(C)(2), and we do not consider this 

question.