COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Cha fin and Senior Judge Haley

CIARA M. VARGAS MEMORANDUM OPINION * v. Record No. 0530- 18-4 PER CURIAM NOVEMBER 13, 2018 ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newman, Jr., Judge (Isabel Kaldenbach, on brief), for appellant. Appellant subm itting on brief. (Jason L. McCandless, Assistant County At torney; G. Rex Flynn , Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
The Arlington County Juvenile a nd Domestic Rela tions District Court (the JDR court) entered orders terminating Ciara Vargas’ (mother) parental righ ts to her child and approving the goal of adoption. Mother appealed the JDR court’s orders to th e circuit court, which dismissed her appeals for her failure to appear at the circuit court hearing. This appeal followed. Mother argues that the circuit court erred because “[i]t considered the matte r without proper service to all parties.” Upon reviewing the record and briefs of the parties, we conclude that the circuit court did not err. Accordingly, we affirm the decision of the circuit co urt. BACKGROUND “On appeal, ‘we view the evidenc e and all reason able inferences in the light most favorable to the prevailing part y below, in this case the Depar tment.’” Farrell v. Warren Cty.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S. E.2d 16, 18 (1991)). Mother is the biological mother to the child, who was born in September 2013 and is the subject of this appeal. In Decem ber 2015, mother and the child were residents of California, but visiting Virginia. On December 16, 2015, the police arrested m other for prostitution. The police also observed marijuana and smel led marijuana in the hotel room where mother and the child were staying. The police requested the Department’s assistance beca use the child was with mother at the time of her arrest and there wer e no other appro priate caregive rs. The child came into the Department’s care on that day. The Department provid ed numerous services t o mother while the child was in foster care. After a social worker from the Interstate Compact on the Placem ent of Children (ICPC) found mother’s home in Calif ornia to be appropriat e, the Department a rranged for a trial home visit. Since that time, mother moved several times, without notifying the De partment of her moves or seeking approval of the homes for the ch ild. While the child was livin g with mother in California, mother’s probation officer reported that mother had completed substance abuse counseling, but then relapsed with positive drug screens on Mar ch 4, April 12, May 16, and Ju ne 19, 2017. After receiving information fro m mother’s probation officer th at mother had moved again and the child was living elsewher e with family, the Department sought an emergency hearing with the JDR court. On July 7, 2017, t he JDR court issued a prelimi nary protective order, which compelled mother to surrender the child to the appropriate auth orities. On July 1 0, 2017, mother surrendered the child, and on Jul y 11, 2017, the Department tra velled to California to bring the child back to Virginia. The Department subsequently sought a change in the foster care goal to adoption, and the JDR court scheduled a hearing for September 14, 2017. Mother’s counsel was present at the- 3 - hearing, but mother was not present, despite having been served with notice of the hearing date by certified mail, return receipt requested. The JDR court entere d an order approving the goal of adoption on September 1 8, 2017. Mother app ealed the JDR court’ s ruling. On Septe mber 28, 2017, the circuit court clerk’s office sent a letter to all of the pa rties, including mother and her attorney, that the case was set for docket call on October 16, 2017. On that date, the circuit court entered an order setting the matter for tria l on March 6, 20 18 at 10:00 a. m. Mother’s couns el endorsed the order. On October 11, 201 7, the Department file d a petition to termin ate mother’s parental rights, and the JDR court scheduled a h earing for December 13, 2017. M other’s counsel was present at the hearing, but mother was not present, despite having been served with notice of the hearing date by certified mail, return receipt requested. The JDR court entere d an order terminating mother’s parental rights on December 13, 2 017. Mother appealed the JDR court’s ruling. O n December 18, 2017, the circuit court clerk’s office sent a letter to all of the parties, including mother and her attorney, that the case was set f or docket call on January 8, 2 018. On December 29, 2017, the parties, including mother’s atto rney, filed a “Praecipe Setting Date for Trial,” which stated that the parties agreed for the case to b e heard on March 6, 2018 at 10: 00 a.m. On January 8, 2018, the circuit court entered a consent order, endorsed by counsel, sta ting that the case was scheduled for a hearing on March 6, 2018 at 10:00 a.m. At approximately 11:00 a.m. on M arch 6, 2018, th e circuit cour t called the case, and mother was not present. The Department made a mo tion to dismiss mothe r’s appeal pursuant to Code § 16.1-106.1(D), which states: If a party who has appealed a judg ment or order of a district c ourt fails to appear in circuit court either at the time for setting the appeal for trial or on the tri al date, the circuit court may, u pon the motion of any party, enter an orde r treating the appeal as withdrawn and disposing of the case in accordance with this section. If no party appears for t rial, the court may deem the- 4 - appeal to be withdrawn without a motion and enter an order disposing of the case in accordance with this section. The Department argued that mother had actual notice of the hear ing. Mother’s counsel was present at the hearing and admits that it was mother’s appeal; however, counsel questioned whether sufficient notice of the hearing was provided to her client. The Department presented eviden ce from the social worker who t estified that she had spoken to mother on the telephone “[t]his past Friday.” The so cial worker continued, “And during that conversation I asked if she was aware of the upcoming cour t hearing for today’s date, and she had said that she was informed of the hearing by her attorney a nd that she was making arrangements – trying to make arrangements to come to the hearing.” The soc ial worker said that mother never told her that she was not going t o be able to come to the heari ng. The social worker further testified that she was certain that she wa s speaking with mother because mother has “a very distinctive voice.” After hearing the arguments, the circuit court agreed with the Department that mother had actual notice of the hearing. Since mother was not present at the hearing, her appeals were considered withdrawn. The circuit court entered an order dismi ssing the appeals and remanding the case to the JDR court on March 2 8, 2018. This appeal followed.
ANALYSIS Mother argues that the circuit court erred in dismissing her a ppeals. She contends that her due process rights were violated and that “the Department was u nable to demonstrate that [she] had been served with notice of the date of the appeal.” Mother ack nowledges that the Department presented evidence from the social worker that mother was aware of the court date. However, she contends that the social worker’s testimony was not sufficient to prove service. We disagree. The circuit court found that mother had actual notice of the h earing. “We give ‘great deference’ to the trial court’s factual findings a nd view the f acts in the light mos t favorable to the- 5 - prevailing party below.” Andre ws v. Creacey, 56 Va. App. 606, 619, 696 S.E.2d 218, 224 (2010) (quoting Blackson v. Bl ackson, 40 Va. App. 507, 517, 579 S.E.2d 704, 709 (2003)). “On appeal, we will not reverse fi ndings of fact ‘unless plainly wrong.’” Budnick v. Budnick, 4 2 Va. App. 823, 834, 595 S.E.2d 5 0, 55 (2004) (quo ting Gilman v. Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768-69 (2000)). The circuit court explained that it did not “take this lightly ” when it granted the Department’s motion to dismiss mother’s appeals; however, it he ld that there was sufficient evidence to support the Departme nt’s motion. The circuit court found credible the social worker’s testimony that “she was certain that the voice she was speaking to as of this past Friday was, in fact, Ms. Vargas and that Ms. Vargas to ld her that she was aware of t he hearing, had been in touch with her counsel about the hearing, a nd said that she intended to be ” at the hearing. “It is well established that the trier of f act ascertains a witness’ credib ility, determines the weight to be given to their testimony, and has discretion to accept or rejec t any of the witness’ testimony.” Layman v. Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (20 13) (quoting Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) ( en banc )). Therefore, contrary to mother’s arguments, the circuit court d id not err in dismissing mother’s appeals pursuant to Code 16.1-106.1(D) because the evi dence supported the circuit court’s factual findings that mo ther had actual notice of the h earing and she was not present at the hearing.
CONCLUSION For the foregoing reasons, the circuit court’s ruling is affirm ed. Affirmed.