Opinion
Record No. 1271-94-1
Decided: March 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, A. Bonwill Shockley, Judge
(A. Robinson Winn; Winn Jankell, on brief), for appellant.
(Leslie L. Lilley, City Attorney; Nianza E. Wallace II, Assistant City Attorney, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Linda Midgette appeals the decision of the circuit court terminating her parental rights to her six children. Midgette raises two issues on appeal: (1) the trial court erred by admitting prejudicial hearsay; and (2) the evidence presented by the Virginia Beach Department of Social Services (DSS) did not support terminating Midgette's parental rights under Code Sec. 16.1-283(C) (2). Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
"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." Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
A trial court's judgment of a child's best interests, "when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Id.
The trial court found by clear and convincing evidence that termination of Midgette's parental rights was in the best interests of the children. The trial court also found that the elements of Code Sec. 16.1-283(C) (2) and (C) (3) (b) were satisfied by clear and convincing evidence.
Hearsay
The evidentiary bar against the admission of hearsay prevents the use of a child's out-of-court statement alleging abuse as proof the abuse actually occurred. See Kauffman v. Commonwealth, 8 Va. App. 400, 407, 382 S.E.2d 279, 283 (1989). However, where the child's state of mind is the relevant inquiry, the child's out-of-court statements may be admissible to demonstrate the child's state of mind. M.E.D. v. J.P.M., 3 Va. App. 391, 401, 350 S.E.2d 215, 222 (1986).
The trial court allowed testimony concerning statements made by the children, not as evidence that the children were abused by Midgette, but as evidence of the children's state of mind. In several instances, the foster mothers related strange behavior by the children and the children's explanations of that behavior. The children's behavior and their contemporaneous statements regarding their mother demonstrated the children's fear and anxiety when faced with the possibility of visiting or reuniting with Midgette.
The evidence was relevant to the court's inquiry into whether termination of Midgette's parental rights was in the best interests of the children. Therefore, we find no error in the trial court's admission of the foster mothers' testimony.
Sufficiency of the Evidence
The original placement of the children into foster care did not arise from allegations of abuse. Cf. Code Sec. 16.1-283(B). Instead, Midgette's children were placed in foster care by their maternal uncle after Midgette sought hospitalization for herself. Only after their placement in foster care, did DSS workers become concerned that the children had been victims of, or were witnesses to, sexual and physical abuse.
DSS provided Midgette and her children with reasonable and appropriate services in its attempt to remedy the conditions which led to the children's foster care placement. DSS provided Midgette with, among other things, transportation, counseling and employment referrals, and financial assistance. Even with the assistance of DSS, Midgette was unable to find appropriate housing for her children, and failed to complete a single parenting class. Moreover, Midgette's testimony disclosed that, even after participating in parenting classes, therapy, and counseling, Midgette refused or was unable to accept responsibility for the trauma suffered by her children while in her care.
We find no error in the trial court's determination that Midgette "failed or [was] unable to make reasonable progress towards the elimination of the conditions which led to [her children's] foster care placement in accordance with their obligations under and within the time limits or goals set forth in a foster care plan." Code Sec. 16.1-283(C) (3) (b). The fact that the evidence might also have been sufficient under Code Sec. 16.1-283(B) is irrelevant, ultimately, to whether DSS met its evidentiary burden under Code Sec. 16.1-283(C).
During these years, Midgette's children have remained in foster homes, subject to the uncertainty inherent in such arrangements. These children have a variety of special needs which Midgette has been unable or unwilling to address. "It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming [her] responsibilities." Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Accordingly, the decision of the circuit court is summarily affirmed.
Affirmed.