Opinion
Record No. 1337-93-3
Decided: November 22, 1994
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY, George E. Honts, III, Judge
Affirmed.
Robert B. Armstrong (Kent S. Wilson, on briefs), for appellant.
Ellen M. Arthur (McClung Arthur, on briefs), for appellee.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Acting on petition of the Rockbridge Area Department of Social Services (DSS), the trial court terminated the residual parental rights of Robert L. Douglas (Douglas). Douglas appeals, complaining that the court erroneously (1) acted without jurisdiction, (2) declined to provide him with the assistance of an expert, (3) denied his right to confront and question adverse witnesses, and (4) found his children abused and neglected without sufficient evidence. Finding no error, we affirm the decision.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to a disposition of the issues on appeal.
As a threshold issue, Douglas argues that the trial court had no jurisdiction to adjudicate the petition because the "hearing on the merits" was not conducted "within ninety days of the perfecting of the appeal" in accordance with Code Sec. 16.1-296(D).
However, use of "shall" in Code Sec. 16.1-296 is "directory and not mandatory." See Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). Such provisions are "procedural in nature" and "precise compliance is not to be deemed essential to the validity of the proceedings," absent infringement of a substantive right with attendant prejudice. Id. (citations omitted). Here, the record suggests no prejudice to Douglas resulting from delay in the hearing, much of which was attributable to his continuance motions. The trial court, therefore, retained jurisdiction to adjudicate the matter beyond the period fixed by statute.
Douglas next challenges the denial of his motion for appointment of his designated "expert" to "assist in the presentation of his case," including an allowance for related compensation. Assuming, without deciding, that Code Sec. 14.1-183, relied upon by Douglas in support of his motion, empowered the trial court to grant the motion, Douglas correctly acknowledges that this decision rests with the discretion of the trial court. Before the issue has any constitutional implications, the record must show a need for expert assistance. Watkins v. Commonwealth, 229 Va. 469, 478, 331 S.E.2d 422, 430 (1985), cert. denied, 475 U.S. 1099 (1986) (quoting Ross v. Moffitt, 417 U.S. 600, 616 (1974)); see Tuggle v. Commonwealth, 230 Va. 99, 106-07, 334 S.E.2d 838, 843 (1985); Funk v. Commonwealth, 8 Va. App. 91, 94, 379 S.E.2d 371, 372 (1989).
When Douglas's written motion was argued before the trial judge, several days prior to trial, his counsel only expressed "concern" that an adequate contemplated defense of "out of court statements" alleging "sexual abuse" required an expert "to evaluate that . . . information." Clearly, this bare representation failed to establish a sufficient need for such assistance. Under such circumstances, the court's conclusions that the request "came too late" and suggested "nothing which would have altered the results" are supported by the record and constituted no abuse of discretion.
Douglas's contention that he was improperly denied the opportunity to confront and cross-examine his "accusers" because the trial court "wrongfully interpreted" Code Sec. 63.1-248.13:2 is also without merit. Code Sec. 63.1-248.13:2 expressly permits introduction into evidence of the otherwise inadmissible extra judicial statement of a child age twelve or under, in a "civil proceeding involving alleged abuse and neglect of [such] child," "describing any act of a sexual nature performed with or on the child by another," under specified circumstances. Code Sec. 63.1-248.13:2. Similarly, Code Sec. 63.1-248.13:3 renders "a recording of a statement of the alleged victim of the offense, made prior to the proceeding, . . . admissible as evidence," provided enumerated conditions are satisfied. Code Sec. 63.1-248.13:3. Both statutes require that the child be "subject to cross examination concerning" the statement unless "found by the court to be unavailable," based upon certain grounds. Code Sections 63.1-248.13:2 and 63.1-248.13:3.
Governed by these statutes, the admissibility of such evidence was an issue entrusted to the "broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) (citation omitted). Our review of the record, including the detailed findings and related conclusions of the trial judge set forth in his comprehensive opinion letter to counsel, discloses a thorough understanding by the court of both Code Sections 63.1-248.13:2 and 63.1-248.13:3 and abundant evidence to support admissibility of the disputed statements in accordance with these statutes.
Lastly, Douglas complains that DSS failed to sufficiently prove "sexual abuse and neglect" necessary "to support the findings and determination of the court."
Code Sec. 63.1-283(B) provides that the residual parental rights may be terminated if it is shown by clear and convincing evidence that (1) parental abuse or neglect suffered by the child presents a serious and substantial threat to life, health or development, (2) it is not reasonably likely that the conditions can be substantially corrected or eliminated to allow the child's safe return to his parents within a reasonable period of time, and (3) termination is in the best interest of the child.
Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 826, 433 S.E.2d 500, 503 (1993). The statute also specifically identifies circumstances which "shall constitute prima facie evidence of the conditions" requisite to termination. Code Sec. 16.1-283(B) (2).
In assessing the sufficiency of the evidence to justify the decision of the trial court, we review the record in the light most favorable to the prevailing party below, DSS in this instance. Where "credible evidence . . . support[s] . . . the findings . . ., we may not retry the facts or substitute our view of the facts . . . ." Ferguson v. Dep't of Social Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992). Considered in this perspective, the evidence clearly supports the findings and attendant conclusions of the trial court in terminating Douglas's residual parental rights pursuant to Code Sec. 16.1-283.
Accordingly, we affirm the decision of the trial court. Affirmed.
Although DSS urges dismissal of Douglas's appeal because no notice of appeal was filed with the clerk of the trial court in accordance with Rule 5A:6, the requisite notice was timely filed and is a part of the record. We find it unnecessary and decline to address other procedural bars argued by DSS.