Record No. 2006-92-4
September 14, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. HOWE BROWN, JUDGE.
A. Joseph Bonifer, Sr. (Deborah A. Wilson, on brief), for appellant.
Kyle Elizabeth Skopic, Assistant County Attorney (David P. Bobzien, County Attorney; Robert Lyndon Howell, Deputy County Attorney, on brief), for appellee.
James E. Wilcox, Jr., guardian ad litem.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Deborah Morris (Morris) appeals from the September 8, 1992 order of the Circuit Court of Fairfax County terminating her residual parental rights under Code § 16.1-283 with respect to her children: Lathius (d.o.b. 9/26/85), Shamika (d.o.b 2/22/87), Tyree (d.o.b. 4/29/88), and Jeremiar (d.o.b. 3/17/86). On appeal, Morris contends that the trial court (1) lacked jurisdiction to order the termination of her residual parental rights; (2) erred in permitting testimony concerning Morris' attendance in a substance abuse program; (3) erred in finding that Morris failed, without good cause, to maintain contact with and to plan for the future of the children or to remedy substantially the conditions which led to the children's foster care placement, notwithstanding the reasonable and appropriate efforts of various agencies which assisted her. We disagree and affirm the trial court's judgment.
Because the parties are familiar with the facts of the case, we restate only those facts necessary to explain our holding. In December 1989, the Fairfax County Department of Human Development (Department) filed foster care plans documenting that adoption was in the best interests of Shamika, Lathius and Tyree. Petitions seeking the termination of Morris' residual parental rights in these children were filed in January 1990. In March 1990, the Department filed a foster care plan with the goal of adoption for Jeremiar and, the next month, filed a petition seeking termination of Morris' residual parental rights in Jeremiar. In January 1991, the Department filed foster care plans setting forth the goal of placing all four children with relatives. However, in April 1991, the Department withdrew these plans before they were approved by the court, leaving only the December 1989 and March 1990 plans pending. In June 1991, the Department filed an update to these plans with the goal of adoption.
Relying on Stanley v. Fairfax County Department of Social Services, 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd 242 Va. 60, 405 S.E.2d 621 (1991), Morris first contends that the trial court lacked jurisdiction to terminate her residual parental rights in her four children because the department filed, and approximately three months later withdrew, foster care plans documenting placement with relatives, rather than adoption, as being in the best interests of the children. In Stanley, the Department filed foster care plans in December 1987 documenting that termination of parental rights was in the best interests of all the children. In January 1988, a petition seeking termination of parental rights was filed. In September 1988, while the juvenile court proceedings were in progress, the Department filed a second foster care plan changing its recommended goal for one of the children, Donnie, to placement with relatives. Following the conclusion of the juvenile court proceedings and the court's decision ordering termination of parental rights with regard to all the children, the Department changed its position again and relied on the original plan with the goal of adoption of all the children. After a hearing de novo, the trial court terminated the parental rights in all of the children.
On appeal, we held that the trial court erred in proceeding on the termination petition with respect to Donnie because the most recent foster care plan filed with the court did not recommend termination of parental rights, but rather recommended placement with relatives.
We believe that in providing a foster care plan filing requirement in Code § 16.1-283, the legislature contemplated that the most recent plan of record would recommend termination of parental rights. If this were not so, any plan recommending termination which is in the record, regardless of how old or how much the circumstances of the family had changed, could be used to support a termination petition.
Id. at 605, 395 S.E.2d at 204. We stated that "Code § 16.1-283 implicitly requires that the petition seeking termination of parental rights be directly preceded or accompanied by a foster care plan documenting that termination of parental rights is in the best interests of the child." Id.
Here, in accordance with our holding in Stanley, the last foster care plan "of record" documented adoption as being in the best interest of the children. The foster care plans filed in January 1991 were withdrawn in April 1991 and were not approved by the court. Because the foster care plans recommending placement with relatives were withdrawn, they were not a part of the record at the termination hearings. The initial foster care plans, which were filed in December 1989 and March 1990, were at all times pending for trial. On March 9, 1992, the juvenile court terminated Morris' residual parental rights, relying on the foster care plans recommending adoption and the termination of parental rights. Therefore, the procedural requirements of Code § 16.1-283 were satisfied and the trial court did not err in proceeding on the termination petition.
Next, we must determine whether the trial court erred in allowing Norman Ward (Ward), an employee of Alcohol and Drug Services (ADS), to testify regarding Morris' attendance in a substance abuse program. The court admitted the testimony under the business records exception to the hearsay rule. Morris contends that because Ward did not have personal knowledge of the facts in the business records to which he testified, the testimony did not meet the requirements for admissibility under the business records exception. We disagree.
In determining the admissibility of evidence under the business records exception, the proper inquiry focuses on whether the facts were related to the entrant by one with personal knowledge of the facts, not whether the witness has personal knowledge of the facts recorded in the business record.
The most recent Virginia cases have firmly endorsed the view that an entry made by one who lacks personal knowledge of the facts is admissible under the [business records] exception if the facts were related to the entrant by some person who (1) did have personal knowledge of the matters related, and (2) was himself or herself acting in the ordinary course of business.
Charles E. Friend, The Law of Evidence in Virginia § 235 (3d ed. 1988). Consequently, Ward did not have to have personal knowledge of the facts recorded in the business records from ADS.
Moreover, any error in the admission of this testimony was harmless. The record shows that the Department introduced uncontroverted testimony from other witnesses that Morris did not complete a drug treatment program. See West v. Commonwealth, 12 Va. App. 906, 911, 407 S.E.2d 22, 25 (1991) (holding that error in admitting hearsay evidence is harmless where the content of that testimony is established by other competent evidence). For this reason, the substance of Ward's testimony was established by other admissible evidence. Accordingly, we find no reversible error in the trial court's ruling permitting Ward to testify to the facts contained in the ADS business records.
The trial court correctly terminated Morris' residual parental rights in the four children under Code § 16.1-283(C)(1) or (2).
Pursuant to Code § 16.1-283(C), the court may terminate the residual parental rights of a parent of a child placed in foster care as a result of court commitment, based upon clear and convincing evidence that it is in the child's best interest and that (1) the parent has, "without good cause, failed to maintain contact with [and to provide or substantially plan for the future of] the child for a period of twelve 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 strengthen the parent-child relationship," Code § 16.1-283(C)(1), or (2) the parent, "without good cause, [has] been unwilling or unable within a reasonable period not to exceed twelve months to remedy substantially the conditions which led to the child's foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end." Code § 16.1-283(C)(2).
The trial court's judgment, "when based on evidence heardore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). On review, "[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests." Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990).
Pursuant to Code § 16.1-283(C)(1), the trial court found that despite the efforts of the Department and other agencies, "Morris maintained only sporadic contact" with the children. The record clearly supports this finding. Morris failed to make weekly visits with the children as ordered by the court, failed to keep scheduled visits, and only occasionally contacted the children by telephone. Additionally, although efforts were made during Morris' incarceration at Goochland to help her plan for the return of her children, such efforts proved unsuccessful. After her release from Goochland, Morris failed to request the services available to her from the Department and did not arrange regular visits or attend scheduled visits with the children. Thus, the evidence shows that Morris failed, without good cause, to maintain regular contact with the children and to substantially plan for their future.
Furthermore, under Code § 16.1-283(C)(2), the trial court found that "Morris is a drug addict, and that addiction in part led to the children being placed in foster care. Extraordinary efforts were made to get her into drug treatment. She was unable [or] unwilling to follow through with any program, the most recent of which was offered this year." Although the court ordered Morris to complete a drug treatment program, Morris failed to keep scheduled appointments at ADS, failed to complete the substance abuse program at Goochland, and has not consistently attended appointments at ADS since January 1992. Morris has not shown good cause for her failure to complete a drug treatment program. Thus, the record amply supports the trial court's finding that Morris has not remedied substantially the condition which led to the children's placement in foster care.
For these reasons, the judgment of the trial court is affirmed.