Deborah Patterson v. Nottoway Co. DSS

• Court: Court of Appeals of Virginia
• Decided: March 28, 2000
• Docket: 2528992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

DEBORAH PATTERSON MEMORANDUM OPINION * v. Record No. 2528-99-2 PER CURIAM MARCH 28, 2000 NOTTOWAY COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge

(Paul W. Cella, on briefs), for appellant.

(Carol B. Gravitt; Gravitt & Gravitt, P.C., on brief), for appellee.

Deborah Patterson appeals the decision terminating her

parental rights to four of her children. On appeal, Patterson

contends that the trial judge erred by (1) allowing an expert

witness to present hearsay information on which she based her

opinion; (2) allowing into evidence hearsay concerning the

children's school attendance; and (3) finding that the Nottoway

County Department of Social Services provided sufficient evidence

that neglect or abuse suffered by the children presented a

substantial threat to their lives, health, or development and that

the conditions could not be substantially corrected or eliminated

within a reasonable time. Upon reviewing the record and briefs of

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

Hearsay

Patterson contends that the trial judge erred by allowing

Michele Killough Nelson, a licensed clinical psychologist, to

testify that the children were alleged to have engaged in

panhandling while with Patterson. Patterson argues that the

reports of panhandling were inadmissible hearsay. We find no

error.

In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.

Code § 8.01-401.1.

Nelson testified that she reviewed the records provided to

her by the Department, spoke with Patterson and each of the

children, and interviewed certain family members and other

individuals. One area of concern which Nelson identified was

"whether [Patterson] told blatant mistruths or whether her

perception of things is so radically different" from that of

others. As an example, Nelson noted that, although Patterson

- 2 - denied any incidents of panhandling, each of the children

confirmed at least one instance of panhandling.

Over Patterson's objection, the trial court ruled "it is

something that she, as a licensed clinically [sic] psychologist

considers and I consider the fact . . . that she did not see the

pan handling first hand but do consider this a [legitimate]

source of information as a basis for her opinion." Citing

McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989), Patterson

contends that ruling was error. We disagree.

In McMunn, the Supreme Court ruled that "Code § 8.01-401.1

does not authorize the admission in evidence, upon the direct

examination of an expert witness, of hearsay matters of opinion

upon which the expert relied in reaching his own opinion." 237

Va. at 566, 379 S.E.2d at 912. The focus of Nelson's testimony

was her evaluation of Patterson's ability to accurately assess

her own parenting abilities. Nelson's opinion was based on

events amply documented by other sources, but which Patterson

denied. Indeed, Nelson's opinion was based upon facts, not

hearsay opinions, and falls within the scope of Code

§ 8.01-401.1. See also Cox v. Oakwood Mining, Inc., 16 Va. App.

965, 968-69, 434 S.E.2d 904, 906-07 (1993). The trial judge did

not err in allowing its admission into evidence.

In addition, Patterson contends the trial judge erred by

allowing into evidence hearsay concerning the number of school

days missed by the children. Theresa Keller testified, without

- 3 - objection, that when the children came into foster care, they

"had missed so much school that they were behind." Patterson's

mother-in-law testified, without objection, that in the past she

told Patterson the children "should be in school." Nelson

testified, without objection, as follows:

I questioned [Patterson] about why her children did not attend school regularly. And she said that they did. That they did not miss excessive amounts of school. I showed documentation to her suggesting otherwise and she continued to deny that this was accurate.

Over objection, Keller testified that a teacher in the

Lexington County school system told her that the two older

children missed twenty-four days out of the thirty-nine days

they were enrolled. This evidence, while more specific, was

cumulative of previous evidence concerning the children's poor

school attendance which was admitted without objection. Even

assuming that the testimony by Keller was hearsay and not

admissible under Code § 8.01-401.1, any error in its admission

was harmless in light of the previous testimony.

Sufficiency of the Evidence

"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." Martin v. Pittsylvania County Dep't of Social

Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). "In matters

of a child's welfare, trial courts are vested with broad

- 4 - discretion in making the decisions necessary to guard and to

foster a child's best interests." Logan v. Fairfax County Dep't

of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)

(citations omitted).

When addressing matters concerning a child, including the termination of a parent's residual parental rights, the paramount consideration of a trial court is the child's best interests. 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."

Id. "Code § 16.1-283 embodies '[t]he statutory scheme for the

. . . termination of residual parental rights in this

Commonwealth . . . [, which] provides detailed procedures

designed to protect the rights of the parents and their child,

balancing their interests while seeking to preserve the

family.'" Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538,

540 (1995) (citations omitted).

In pertinent part, Code § 16.1-283(B)(1) and (2), as

amended, provides that if a child is placed in foster care after

being found by a court to be neglected or abused, the trial

judge may terminate residual parental rights upon a finding by

clear and convincing evidence that termination is in the child's

best interests and that:

1. The neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development; and

- 5 - 2. It is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his parent . . . within a reasonable period of time. In making this determination, the court shall take into consideration the efforts made to rehabilitate the parent . . . by any public or private social, medical, mental health or other rehabilitative agencies prior to the child's initial placement in foster care.

Code § 16.1-283(B).

On appeal, under familiar principles, we view the evidence

in the light most favorable to the party prevailing below. See

Martin, 3 Va. App. at 20, 348 S.E.2d at 16. So viewed, the

evidence proved that the Department had contact with Patterson

and her family for at least nine years. In June 1997, Patterson

hitchhiked with the children to Crewe, Virginia. The driver, an

unknown man, paid for one night's lodging in a hotel. The next

day, the family was without food, money or a place to stay. The

children were placed in foster care.

Under the foster care plan, Patterson was to receive

individual counseling, attend a parenting class, and maintain

adequate housing. Patterson attended individual counseling for

a year. She made so little progress that her therapist did not

encourage her to take the parenting class. Nelson testified

that Patterson functioned at a borderline mild retardation

intelligence level. Her poor parenting skills, however, were

not attributable to her intelligence level. Patterson was

- 6 - unwilling or unable to admit unfavorable facts or to identify

any way in which her parenting methods could improve. She

denied making repeated housing moves, denied that her children

had poor school attendance, and refused to acknowledge that her

repeated housing changes had a negative impact on her children.

She lacked insight into why her past decisions were contrary to

the children's best interests. Although Patterson testified

that she received about $1,500 a month in social security

payments for herself and her two older children, she was unable

to maintain any financial stability.

The evidence supports the trial judge's finding that

termination of Patterson's parental rights was in the best

interests of the children. When the children entered foster

care, they were underweight and under height for their ages. In

their foster home, the four children each grew physically and

socially. They progressed notably in their schoolwork.

Although the two children who were fourteen years old or older

were entitled to object to termination in their individual

cases, see Code § 16.1-283(G), they indicated to the trial judge

in camera that they wished to remain together, even if it

required termination.

The Department presented clear and convincing evidence that

the children suffered from neglect, that the neglect presented a

serious and substantial threat to their health and development,

and that, notwithstanding the services provided to Patterson, it

- 7 - was not reasonably likely that the conditions could be

substantially corrected to allow their safe return to

Patterson's care within a reasonable time. Accordingly, we

summarily affirm the decision.

Affirmed.

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