Deborah Patterson v. Nottoway Co. DSS ( 2000 )

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
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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
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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
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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
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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
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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
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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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