James E. & Barbara A. Starrs v. Monica M. Starrs ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
MONICA M. STARRS
v. Record No. 1401-96-4
JAMES E. STARRS
AND
BARBARA A. STARRS MEMORANDUM OPINION *
BY JUDGE WILLIAM H. HODGES
JAMES E. STARRS APRIL 8, 1997
AND
BARBARA A. STARRS
v. Record No. 2354-96-4
MONICA M. STARRS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Mark Bodner, guardian ad litem, for Monica M.
Starrs.
John J. Grimaldi, II (Rosenthal, Rich,
Grimaldi & Guggenheim, on brief) for James E.
Starrs and Barbara A. Starrs.
James E. Starrs ("James") and Barbara A. Starrs ("Barbara")
filed a petition in the trial court seeking to adopt their
grandson, Gabriel William Starrs ("Willie"), the biological son
of James' and Barbara's daughter, Monica M. Starrs ("Monica").
The trial judge granted the petition, and Monica appeals this
decision. In her appeal, Monica contends that the trial judge
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
erred in (1) finding that the evidence was clear and convincing
that a continued or expanded relationship with Monica would be
detrimental to Willie; (2) finding that the evidence was clear
and convincing that Monica unreasonably withheld her consent to
the adoption contrary to the best interests of Willie; (3)
admitting evidence that Monica's parental rights to her first
child were terminated by the court; and (4) admitting hearsay
testimony that Willie gestured to James his wish not to converse
with Monica by telephone.
In a separate appeal, James and Barbara contend that the
trial judge erred in awarding fees to Monica's guardian ad litem
more than twenty-one days after the order of adoption became
final.
We affirm the trial judge's decisions to grant the adoption
and to award the guardian ad litem fees.
I.
Willie was ten years old at the time of the hearing and has
lived with James and Barbara since shortly after his birth.
James and Barbara have had legal custody of Willie since
approximately the time that he started living with them. Monica
was a patient at Western State Hospital when Willie was born.
She has been diagnosed with chronic, undifferentiated
schizophrenia, a long term illness characterized by
hallucinations, delusions, looseness of associations, and
thoughts without coherence. She has been hospitalized for
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intermittent periods of time for about twenty years.
Peter Sterrett, a licensed clinical social worker and the
Assistant Director of the Social Center for Psychiatric
Rehabilitation, testified that he has seen no cure for Monica's
condition and the prognosis for her recovery is "very poor"
because she has not consistently adhered to treatment. She also
does not consume her medications as prescribed, which, if taken
as prescribed, would decrease her episodes of catatonic agitation
and paranoia. Monica also suffers from tardive dyskinesia as a
result of taking anti-psychotic medication. This condition is
characterized by symptoms of tremors and loss of muscular
control.
Jackie Brown, a licensed clinical social worker, testified
that Monica is unable to establish relationships. Brown also
said that Monica is able to take care of her own needs, but not
the needs of another.
Judith D. Neary, a licensed clinical social worker,
performed a home study for an adoption agency licensed by the
Commonwealth of Virginia. She approved James and Barbara as the
adoptive parents of Willie. She found their home to be loving
and giving, and she found that Willie was "quite comfortable
there."
Monica has visited Willie at the Starrs' home over the
years, mostly on weekends. She has not been involved in Willie's
school activities, but has attended some Boy Scout events.
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James teaches law at George Washington University Law School
and has taught there for over thirty-two years. According to
James, Willie is gifted and talented, a voracious reader, and is
"keen on math." Willie is involved in athletic activities and
plays the accordion. James said that Monica would still be
welcome in their home if James and Barbara adopted Willie.
James cited one incident in which Monica called the police
to the Starrs' house and told the police that the Starrs abused
Willie. James said that this event "traumatized" Willie. James
also said that on a number of occasions when Monica has called
the Starrs' home and asked to speak to Willie, Willie has
gestured that he did not want to speak to Monica.
Monica testified that she refused to consent to the adoption
because of her love for Willie, the effect the adoption would
have on her visitation, and her desire to provide religious and
educational guidance for Willie.
The trial judge ruled that Monica's consent was unreasonably
withheld. He also found by clear and convincing evidence that
"the continuing relationship of the mother-child" was detrimental
to Willie. He stated that James and Barbara have been Willie's
"de facto parents since birth" and that Willie has known no home
other than that of James and Barbara. The trial judge found that
Monica was not responsible for her actions and was "severely
mentally ill." He stated that she exhibited "bizarre actions and
appearance," and that this behavior had "to upset Willie to some
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extent." The trial judge further stated that Monica could not be
"any sort of mother for Willie" and that she did not "even ha[ve]
a concept of what being a mother is or what motherhood is."
II.
Monica argues that the trial judge erred in finding by clear
and convincing evidence that (1) a continued relationship with
Monica would be detrimental to Willie, and (2) Monica
unreasonably withheld her consent to the adoption contrary to the
best interests of Willie. "The trial [judge]'s decision, when
based upon an ore tenus hearing, is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it." Frye v. Spotte, 4 Va. App. 530, 537,
359 S.E.2d 315, 319-20 (1987).
Assuming, without deciding, that the parental consent
statutes effective July, 1995 apply to this case, Code
§§ 63.1-225(F) and 63.1-225.1 provide that a trial judge shall
consider whether the failure to grant the petition for adoption
would be detrimental to the child in determining whether the
valid consent of a person, whose consent is required, is withheld
contrary to the best interests of the child. Code § 63.1-225.1
further provides:
In determining whether the failure to
grant the petition would be detrimental to
the child, the court shall consider all
relevant factors, including the birth
parent(s)' efforts to obtain or maintain
legal and physical custody of the child,
whether the birth parent(s)' efforts to
assert parental rights were thwarted by other
people, the birth parent(s)' ability to care
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for the child, the age of the child, the
quality of any previous relationship between
the birth parent(s) and the child and between
the birth parent(s) and any other minor
children, the duration and suitability of the
child's present custodial environment and the
effect of a change of physical custody on the
child.
Addressing Monica's ability to care for Willie, two licensed
clinical social workers testified that Monica suffered from
chronic, undifferentiated schizophrenia, including episodes of
hallucinations and delusional thoughts. Monica does not take her
medication as prescribed and the prognosis for her recovery is
"very poor." The evidence showed that Monica lacks the ability
to establish relationships, would be unable to take care of the
needs of another person, and that Willie had been "traumatized"
by an episode incited by Monica.
Monica testified that she did not want physical custody of
Willie because she lives in a one bedroom apartment, and she
expressed concern for her financial ability to care for Willie.
Her relationship with Willie consisted of weekend visits at the
home of James and Barbara. Monica has not been involved in
Willie's educational pursuits. Further, Monica's parental rights
to her first born child were terminated by court order.
James and Barbara are financially able to provide for
Willie. James has a longstanding faculty position at a major
university. A licensed clinical social worker recommended James
and Barbara as adoptive parents, finding that they had a loving
and giving home and that Willie was comfortable there. Willie
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has lived with James and Barbara since shortly after his birth
and has known no other home. The evidence established that
Willie has thrived in this environment, participating in sports,
Boy Scouts, and music lessons, in addition to performing well
academically.
The clear and cogent facts of this case support the trial
judge's finding that a continuation of the relationship between
Monica and Willie would be detrimental to Willie's welfare and
that Monica unreasonably withheld her consent to the adoption
contrary to the best interests of Willie. We are unable to say
that the trial judge's decision to permit the adoption over
Monica's objection was plainly wrong or without evidence to
support it. Code § 8.01-680.
III.
Monica contends that the trial judge erred in admitting
evidence that her parental rights to her first born child were
terminated by court order. As stated above, a factor for the
trial judge to consider when determining whether parental consent
is withheld contrary to the best interest of the child is "the
quality of any previous relationship . . . between the birth
parent(s) and any other minor children." Code § 63.1-225.1.
Therefore, the evidence related to this factor and tended to
establish a proposition for which it was offered--that Monica's
parental rights to another child had been terminated. Thus, the
evidence was relevant and material to the proceeding. See
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Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,
441 (1987). Accordingly, the trial judge did not err in
admitting the evidence.
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IV.
Monica contends that the trial judge erred in admitting
hearsay testimony that Willie gestured to James that he did not
wish to speak to Monica on the telephone.
Assuming, arguendo, that the evidence was hearsay, "[o]ut of
court statements offered to show the state of mind of the
declarant are admissible in Virginia when relevant and material."
Johnson v. Commonwealth, 2 Va. App. 598, 602, 347 S.E.2d 163,
165 (1986). Willie's gesture that he did not wish to speak to
his mother on the telephone related to a matter properly at
issue--the quality of the relationship between Monica and Willie.
This evidence also tended to establish the proposition for which
it was offered--that their relationship was somewhat estranged.
Therefore, because the evidence was material and relevant, the
trial judge did not err in admitting the evidence. See
Evans-Smith, 5 Va. App at 196, 361 S.E.2d at 441.
V.
James and Barbara contend that the trial judge erred in
awarding the guardian ad litem fees more than twenty-one days
after the order of adoption became final.
Code § 8.01-428(B) provides:
Clerical mistakes in all judgments or other
parts of the record and errors therein
arising from oversight or from an inadvertent
omission may be corrected by the court at any
time on its own initiative or upon the motion
of any party and after such notice, as the
court may order.
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At the conclusion of the May 9, 1996 hearing, the trial
judge agreed to the award of the guardian ad litem fees by
separate order. At that time, counsel for James and Barbara
indicated their expectation that they would pay these fees and
that the law provided for such payment. By oversight or
inadvertent omission, the court did not enter the order awarding
the fees within twenty-one days of the entry of the order of
final adoption. However, pursuant to Code § 8.01-428(B), the
trial judge had the authority to correct this oversight or
omission. Therefore, the trial judge did not err in entering the
August 23, 1996 order awarding the guardian ad litem fees.
For the above-stated reasons, we affirm the judgments of the
trial judge.
Affirmed.
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