Benjamin Howard Ashby v. Wythe County Department of Social Services

• Court: Court of Appeals of Virginia
• Decided: March 17, 2026
• Docket: 1179253
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Lorish and Senior Judge Humphreys UNPUBLISHED

BENJAMIN HOWARD ASHBY MEMORANDUM OPINION* BY v. Record No. 1179-25-3 JUDGE MARY GRACE O’BRIEN MARCH 17, 2026 WYTHE COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF WYTHE COUNTY Josiah T. Showalter, Jr., Judge

(William R. Kilgore; Kilgore Law, PLLC, on brief), for appellant. Appellant submitting on brief.

(Katie M. DeCoster; Angi N. Simpkins, Guardian ad litem for the minor child; Sands Anderson, PC; Barbour & Simpkins, LLP, on brief), for appellee. Appellee submitting on brief.

The circuit court found that Benjamin Howard Ashby (appellant) abused or neglected two

children, M.A. and B.A.1 As a result, the court entered child protective orders and transferred

custody to Melissa Newberry, the children’s maternal grandmother. Seeking reversal, appellant

contends that evidence showing M.A. was behaving in a sexualized manner was inadmissible

hearsay. For the following reasons, we affirm.

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 We use initials, instead of names, to protect the privacy of minors. Williams v. Panter, 83 Va. App. 520, 528 n.1 (2025). Additionally, paternity testing revealed that appellant is not the biological father of B.A., and appellant subsequently withdrew his petition for custody of B.A. BACKGROUND2

“Under familiar principles, we view the evidence and all reasonable inferences in the

light most favorable to the prevailing party below, in this case the Department [of Social

Services].” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180 (1991). After a

juvenile and domestic relations district (JDR) court found that four-year-old M.A. and six-

month-old B.A. were abused or neglected by appellant and their mother, the court entered

dispositional and child protective orders. Appellant appealed all orders to the circuit court,

which held a trial de novo in June 2025.

During that trial, Family Service Specialist Holly Owens testified that the local

Department of Social Services (DSS) first received a referral concerning the children in June

2024, when M.A. and B.A. were living with appellant and his girlfriend, Kirsten Davis. Davis

had a history of substance abuse, and her contact with her own children was supervised by DSS.

As part of the investigation, Owens conducted a urine screen of appellant, who tested positive for

alcohol.

At the time, the children often stayed with Angela Ashby (Angela), appellant’s mother.

Owens conducted a home visit with Angela in July 2024 and observed unsafe conditions

including loose steps, trash bags “strewn about,” clutter that made it difficult to move through

the house, and clothing in the sink. Further, Angela tested positive for methamphetamines and

other controlled substances. Appellant reached an agreement with DSS that Angela would only

have supervised contact with the children. Owens also instructed appellant and Davis that “until

[Davis] could provide a clean drug screen[,] she was not allowed in the home.” Davis never

provided a drug screen.

2 The record in this case is sealed. “To the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts . . . .” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). The rest remains sealed. Id. -2- Owens attempted a home visit with appellant in September 2024, but nobody answered

the door. She did, however, observe “women’s undergarments in a laundry basket on the porch,”

even though Davis had not produced a clean drug screen. That same day, Owens conducted a

second home visit with Angela, who was unsupervised at her residence with the children. The

home’s conditions had deteriorated: a step had collapsed, trash was on the floors, clutter only left

a narrow path to move, and dirty food containers were “out in the kitchen with gnats.” Owens

noted that B.A. had been sleeping in a littered bedroom and “only had a twin mattress on the

floor,” and no crib, which she considered unsafe for the then-four-month-old baby.

As a result, the children stayed with their mother under the supervision of Newberry until

a September 2024 custody hearing. Following that hearing, the JDR court granted temporary

joint legal custody to their mother, appellant, and Newberry, and joint physical custody to

appellant and Newberry. The order specified that the children would be with appellant on the

weekends, could have no contact with Davis, and could not go to Angela’s home. The court also

ordered all involved parties to refrain from using illegal substances and alcohol during and 48

hours before their contact with the children.

In October 2024, DSS received another referral, alleging that appellant and Davis were

having sex while M.A. was sitting next to them and B.A. was nearby in his walker. As Owens

testified in circuit court, the referral reported that M.A. “had been observed making sexual

sounds” and sexual movements. Appellant objected to this testimony on hearsay grounds. The

court overruled the objection, stating that “it would not consider the allegations made to [DSS]

for their truth.”

Following the referral, Owens interviewed appellant, Davis, M.A., Newberry, and the

children’s maternal aunt, Miranda Newberry (the aunt). Owens testified that, while interviewing

M.A., “she observed [M.A.] . . . engage in sexualized behavior, including moaning sounds,

-3- licking her lips[,] and getting on the floor on her hands and knees and moving her bottom.”

Owens also testified that she “had not at any point during the interview asked [M.A.] to mimic

any reported sexualized behavior.” Appellant objected to Owens’s testimony as hearsay because

it described M.A.’s “nonverbal conduct intended as an assertion.” The court overruled the

objection, stating that witnesses could testify to what they observed.

Owens gave more details about her interview with M.A. in an affidavit3 she submitted to

the JDR court in support of the protective orders. In that affidavit, Owens explained that M.A.

told her that “her daddy and KK[4] like to play together . . . in the bedroom.” When asked how

they “played” together, M.A. made the above-mentioned sounds and movements.

During Owens’s investigation, appellant again tested positive for alcohol. As a result, the

JDR court entered preliminary child protective orders in October 2024, requiring appellant’s

contact with the children to be supervised by DSS. Appellant did not participate in any visitation

until April 2025.

At trial in the circuit court, the aunt testified that, since September 2024, she regularly

helped Newberry take care of the children. She explained that she had observed “sexual

behavior from [M.A.] in the form of moaning sounds, licking her lips[,] and spreading her legs.”

The aunt further testified that “on another occasion after a bath, she observed [M.A.] get on all

fours, turn around with legs spread[,] and wiggle her behind.” Again, appellant objected on

hearsay grounds, arguing the conduct was intended as an assertion. The court overruled

appellant’s hearsay objections to these statements.

3 As stated in the adjudicatory order entered by the circuit court, the court considered the petitions and affidavits submitted in this case in its determinations underlying the order. 4 The record reflects that M.A. called Davis “KK” or “Momma KK.” -4- According to the aunt, M.A.’s sexualized behavior was always “worse after returning

from [appellant]’s care” and M.A. would “exhibit these behaviors multiple times each day for

about two days after returning from his care.” Similarly, M.A. also behaved aggressively

following visits with appellant, like “hitting the other children in the home.” After appellant

discontinued contact with M.A., she “stopped exhibiting these behaviors.”

Newberry, whose custody of the children dated back to September 2024, testified that she

had observed M.A. engage in the same sexualized behavior. She further testified that she was

willing and qualified to care for the children and had already built a positive relationship with

them.

Finally, Larry Cline, the pastor at a local church, stated that he did not recall who

attended his church in October 2024, although he did remember that he previously testified that

Angela and Davis attended the church together with the children in October 2024, while Davis

was prohibited from having contact with the children.

Appellant denied all allegations but could offer no explanation for M.A.’s behavior.

At the conclusion of trial, the court found that the children were abused or neglected and

entered new adjudicatory, dispositional, and child protective orders with the same terms as the

JDR court orders, remanding the case to the JDR court for further proceedings.

ANALYSIS

I. Standard of Review

“In matters of a child’s welfare, trial courts are vested with broad discretion in making

the decisions necessary to guard and to foster a child’s best interests.” Logan v. Fairfax Cnty.

Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991) (quoting Farley v. Farley, 9 Va. App. 326, 328

(1990)). “[A]n abuse and neglect proceeding which may lead to temporary placement of the

child,” requires only a “preponderance of the evidence standard.” Wright v. Arlington Cnty.

-5- Dep’t of Soc. Servs., 9 Va. App. 411, 414 (1990). “Where, as here, the court hears the evidence

ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly

wrong or without evidence to support it.” Simms v. Alexandria Dep’t of Cmty. & Hum. Servs.,

74 Va. App. 447, 470 (2022) (quoting Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59

Va. App. 185, 190 (2011)). “Additionally, ‘the admissibility of evidence “is within the broad

discretion of the trial court, and an [evidentiary] ruling will not be disturbed on appeal in the

absence of an abuse of discretion.”’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68

Va. App. 547, 558 (2018) (alteration in original) (quoting Surles v. Mayer, 48 Va. App. 146, 177

(2006)).

II. Assignment of Error

Appellant argues that all references to M.A.’s sexualized behavior were inadmissible

hearsay because, in each instance, the behavior was intended as an assertion.

DSS responds that the statements were not offered for the truth of the matter asserted and

were not nonverbal assertions. DSS also contends that the other evidence was sufficient to

support the abuse or neglect finding.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence for the truth of the matter asserted.” Va. R. Evid. 2:801(c).

“[H]earsay evidence is inadmissible unless it falls within one of the recognized exceptions to the

hearsay rule, and . . . the party attempting to introduce a hearsay statement has the burden of

showing the statement falls within one of the exceptions.” Campos v. Commonwealth, 67

Va. App. 690, 705 (2017) (alterations in original) (quoting Godoy v. Commonwealth, 62

Va. App. 113, 119 (2013)). “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal

conduct of a person, if it is intended as an assertion.” Va. R. Evid. 2:801(a).

-6- “Nonverbal conduct of a person intended by him as an assertion and offered in evidence

to prove the truth of the matter asserted falls within the ban on hearsay evidence.” Stevenson v.

Commonwealth, 218 Va. 462, 465 (1977). “[C]ommunicative behavior, such as shaking the head

or pointing a finger, will satisfy th[e] definition [of a nonverbal assertion], whereas walking

down the sidewalk and going into a store will not.” Bennett v. Commonwealth, 69 Va. App. 475,

487 (2018) (quoting Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia

§§ 15-1[a], 15-7, at 898, 942 (7th ed. 2012)).

In Stevenson, the Supreme Court found that when a murder suspect’s wife handed a

police officer a shirt after the officer requested the clothes worn by the suspect on the day of the

murder, “the conduct of [the wife] was intended as a nonverbal assertion for the purpose of

showing that the shirt not only belonged to [the suspect] but was in fact worn by him on the day

of the crime.” 218 Va. at 465. The officer’s testimony about the shirt was therefore inadmissible

hearsay. Id. at 466.

Here, appellant raised a hearsay objection in four instances: (1) Owens’s testimony

describing the October 2024 DSS referral; (2) Owens’s testimony about M.A.’s behavior during

her interview following that referral; (3) the aunt’s testimony about behavior she observed while

M.A. was in her care; and (4) Newberry’s testimony about M.A.’s behavior.

Appellant argues that M.A.’s behavior during her interview with Owens was an assertion

because it was “presumably made in response to some questions.” Similarly, he posits that all

other instances were assertions because the witnesses interpreted the behavior as “sexualized,”

meaning the “conduct was on each occasion intended as an assertion of a sexual nature.”

Finally, appellant argues that the court’s error was not harmless because it relied on M.A.’s

behavior in its determination of abuse or neglect.

-7- The first contested statement—Owens’s testimony about the October 2024 referral—was

not hearsay. Owens testified that appellant was referred to DSS because he had been observed

having sex in front of the children. The court specifically stated that “it would not consider the

allegations made to [DSS] for their truth.” Because a statement is only hearsay if it is admitted

for “the truth of the matter asserted” and this statement specifically was not considered for its

truth, the court did not err in overruling appellant’s hearsay objection. Va. R. Evid. 2:801(c); see

also Hamm v. Commonwealth, 16 Va. App. 150, 156 (1993) (explaining that “[i]f a statement is

offered for any purpose other than to prove the truth or falsity of the contents of the statement . . .

it is not objectionable as hearsay”).

We also do not agree with appellant that Newberry’s and the aunt’s testimony was

inadmissible hearsay. Nothing in the record suggests that the behaviors described by Newberry

and the aunt were assertions. Newberry and the aunt both testified to different instances in

which M.A. engaged in sexualized behavior. On one occasion, the aunt observed M.A. “get on

all fours” after a bath and “turn around with legs spread and wiggle her behind.” Similarly,

Newberry observed M.A. “spreading her legs and showing her private parts.”

No evidence suggests that these behaviors were assertions made in response to a question

or prompting. Nor is there any evidence of a statement or behavior by M.A. that could indicate

that she intended the sexualized movement and noises to be an assertion. Thus, we cannot say

that the evidence was “communicative behavior” intended as an assertion, and the law is clear

that witnesses can testify to what they observed. Bennett, 69 Va. App. at 487.

That leaves Owens’s testimony concerning M.A.’s behavior during the interview.

Appellant contends the behavior was an assertion because it was “presumably made in response

to some questions.” Owens’s affidavit submitted in support of the protective orders shows that

M.A.’s behavior did occur in response to her questions. When asked how appellant and Davis

-8- played together, M.A. responded by making sexual sounds and movements. Over appellant’s

objection, Owens testified to this behavior during the circuit court trial. Because “the doctrine of

judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available,’”

Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (quoting Commonwealth v. White, 293 Va.

411, 419 (2017)), we assume, without deciding, that Owens’s testimony concerning M.A.’s

behavior during the interview was inadmissible hearsay.

But that assumed error was harmless. “Code § 8.01-678 makes ‘harmless-error review

required in all cases.’” White, 293 Va. at 420 (quoting Commonwealth v. Swann, 290 Va. 194,

200 (2015)). “This Court may uphold a decision on the ground that any evidentiary error

involved is harmless if it can conclude ‘that the error did not influence the [fact finder] or had but

slight effect.’” Salahuddin v. Commonwealth, 67 Va. App. 190, 212 (2017) (quoting Clay v.

Commonwealth, 262 Va. 253, 260 (2001)). “An error is harmless . . . ‘if the evidence admitted

in error was merely cumulative of other, undisputed evidence.’” McLean v. Commonwealth, 32

Va. App. 200, 211 (2000) (quoting Ferguson v. Commonwealth, 16 Va. App. 9, 12 (1993)).

“Cumulative testimony is repetitive testimony that restates what has been said already and adds

nothing to it. It is testimony of the same kind and character as that already given.”

Commonwealth v. Proffitt, 292 Va. 626, 640-41 (2016) (quoting Massey v. Commonwealth, 230

Va. 436, 442 (1985)).

Here, Owens’s testimony was of the same kind and character as testimony from

Newberry and the aunt. The aunt and Newberry testified that they observed M.A. making

“moaning sounds, licking her lips[,] . . . spreading her legs,” and “get[ting] on all fours, turn[ing]

around with legs spread and wiggl[ing] her behind.” Owens testified to that exact behavior:

“moaning sounds, licking her lips[,] and getting on the floor on her hands and knees and moving

her bottom.” Owens did not describe any behavior that was not also observed and testified to by

-9- either the aunt or Newberry. Thus, Owens’s testimony was cumulative. Proffitt, 292 Va. at

640-41.

Other evidence supported the court’s finding of abuse or neglect. Appellant allowed the

children to have contact with Angela and Davis—both of whom have a history of illegal

substance use—after the JDR court prohibited such contact. The aunt testified that M.A.’s

sexualized and aggressive behaviors were always worse after visitation with appellant and then

tapered off over time. Additionally, even after appellant agreed with DSS that Angela’s contact

with the children must be supervised, the children were left unsupervised with her, and Owens

testified to the unsafe and unsanitary conditions in Angela’s house. Because Owens’s challenged

testimony was cumulative and other evidence supported the court’s decision, any error was

harmless.

CONCLUSION

For these reasons, we affirm the circuit court’s judgment.

Affirmed.

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