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the Virginia Court of Appeals.
CHESTERFIELD COUNTY DEPARTMENT OF SOCIAL
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
Record No. 1152-03-2
DEPARTMENT OF SOCIAL SERVICES
OCTOBER 14, 2003
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
(Edwin F. Brooks, on brief), for appellant.
(Michael S. J. Chernau, Senior Assistant County Attorney, on
Sonia Williams appeals a decision terminating her parental
rights to her son. She
contends (1) the evidence was insufficient to support the
termination and (2) that the trial judge
erred by permitting "the prior social worker’s notes to be
admitted pursuant to the business
records exception and used as substantive evidence against
[her]." 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. See Rule
We view the evidence in the light most favorable to the
prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See
Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So
viewed, the evidence
established the child was born on March 15, 1990. By the time
the child was three years old,
Williams had been imprisoned for multiple felony charges. When
Williams was imprisoned, she
left the child in the care of his maternal grandmother. After
his grandmother died in 1996, the
child resided with his maternal aunt and uncle until they
petitioned to be relieved of custody
because they were unable to manage his behavior. On October 25,
2000, the Chesterfield
County Department of Social Services obtained custody of the
child. The Department
implemented an initial foster care plan of "return
home," upon the expectation that Williams
would be paroled from prison in July 2001.
The Department contacted Williams and advised her to avail
herself of the rehabilitative
programs available to her in prison. The foster care plan called
for the slow reintroduction of
Williams to her son "in a manner that is therapeutic to
[him]." The plan included initial
telephone contact and letter writing, to be followed by visits.
The initial steps of reinitiating
contact, however, were unsuccessful. After the initial contact,
the child’s behavior deteriorated.
Williams wrote only sporadically and sometimes inappropriately.
She falsely represented her
release time and her continued incarceration prevented her from
achieving any of her
responsibilities under the initial foster care plan.
The child was placed in a therapeutic foster home in November
2000 because he was
severely emotionally disturbed. Despite extensive counseling and
psychiatric services, he
continued to exhibit verbal and physical aggression. He was
hospitalized three times in an effort
to stabilize his behavior, and he was treated at the Virginia
Treatment Center for Children for
eight months in 2001. He has thrived since his return to a
therapeutic foster home. His foster
parents are prepared to adopt him.
Williams’s scheduled release was postponed due to her misconduct
in prison. At the time
of trial in March 2003, her release date still had not been
determined. In his ruling, the trial
judge cited Williams’s incarceration, her lack of contact with
the child, and the child’s need for
structure and stability.
In pertinent part, Code ? 16.1-283(C)(2) provides that
"[t]he residual parental rights of a
parent . . . of a child placed in foster care as a result of
court commitment . . . may be terminated
if the court finds, based upon clear and convincing evidence,
that it is in the best interests of the
child" and that the following conditions exist:
The parent or parents, without good cause, have been
unwilling or unable within a reasonable period of time not to
exceed twelve months from the date the child was placed in
care to remedy substantially the conditions which led to or
continuation of the child’s foster care placement,
the reasonable and appropriate efforts of social, medical,
health or other rehabilitative agencies to such end. Proof that
parent or parents, without good cause, have failed or been
to make substantial progress towards elimination of the
which led to or required continuation of the child’s foster care
placement in accordance with their obligations under and within
the time limits or goals set forth in a foster care plan filed
court or any other plan jointly designed and agreed to by the
or parents and a public or private social, medical, mental
other rehabilitative agency shall constitute prima facie
this condition. The court shall take into consideration the
efforts of such agencies to rehabilitate the parent or parents
the placement of the child in foster care.
Because "'[r]easonable and appropriate’ efforts can only be
judged with reference to the
circumstances of a particular case," Ferguson v. Dep’t of
Soc. Servs., 14 Va. App. 333, 338, 417
S.E.2d 1, 4 (1992), we have held that the trial judge "must
determine what constitutes reasonable
and appropriate efforts given the facts before the court."
Id. at 338-39, 417 S.E.2d at 4.
Williams contends that the Department failed to provide
reasonable and appropriate
services to assist her. The trial judge found, however, that the
Department’s actions were
reasonable, under the circumstances, and that Williams’s
incarceration limited the agency’s
capacity to remedy her deficiencies as a parent.
In Ferguson, we held as follows:
[W]hile long-term incarceration does not, per se, authorize
termination of parental rights or negate the Department’s
to provide services, it is a valid and proper circumstance
when combined with other evidence concerning the parent/child
relationship, can support a court’s finding by clear and
evidence that the best interests of the child will be served by
Id. at 340, 417 S.E.2d at 5. The evidence proved that Williams
was incarcerated from the time
the child was three years old. She had only minimal contact with
him during the period of
incarceration and failed to maintain appropriate contact when
offered the opportunity to
reestablish her relationship with her child. In addition, the
record contains expert testimony that
the child needed stability to ensure improved development and
that direct contact with mother
would be disruptive.
The trial judge found that the Department had fulfilled its
duties under the statute. We
will not disturb this finding because the record indicates that
it was not plainly wrong or without
evidence to support it. Martin v. Pittsylvania County Dep’t of
Soc. Servs., 3 Va. App. 15, 20,
348 S.E.2d 13, 16 (1986). Thus, the record supports the trial
judge’s finding that the Department
proved by clear and convincing evidence that the best interests
of the child would be served by
terminating mother’s parental rights pursuant to Code ?
Social worker Kiva Best testified about entries made in the
child’s file by a prior social
worker. Williams contends that the Department "made no
effort to have the Court rule that the
persons who made the entries or submitted the reports were
unavailable or that it would be
inconvenient to summons those persons to Court." She also
contends that "there is nothing in the
trial Court record to indicate that the record entries . . .
were made contemporaneous with the
event described." She further contends "it is unclear
what records were made by [the
Department’s] agents . . . and which records were received from
third party contractors."
Williams failed to raise any of these specific objections in the
trial court. This Court will
not consider an argument on appeal that was not presented to the
trial court. Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
Rule 5A:18 requires that
objections to a trial court’s action or ruling be made with
specificity in order to preserve an issue
for appeal. Campbell v. Commonwealth, 12 Va. App. 476, 480, 405
S.E.2d 1, 2 (1991) (en
banc). A trial court must be alerted to the precise
"issue" to which a party objects. Neal v.
Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525
(1992). Accordingly, Rule
5A:18 bars our consideration of these specific issues on appeal.
Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Williams did object that Best’s testimony concerned records she
had not prepared. She
argued that Best was not the "custodian" of the
records and did not have personal knowledge of
the contents of the records. In determining the admissibility of
evidence under the business
records exception, however, the proper inquiry is as follows:
The more recent Virginia cases have firmly endorsed the view
an entry made by one who lacks personal knowledge of the facts
admissible under the [business records] exception if the facts
related to the entrant by some person who (1) did have personal
knowledge of the matters related, and (2) was himself or herself
acting in the ordinary course of business.
Charles E. Friend, The Law of Evidence in Virginia ? 18-15 (6th
Best did not need personal knowledge of the facts recorded in
the business records at
issue. The trial judge, therefore, did not err by allowing
Accordingly, we summarily affirm the decision. See Rule 5A:27.
Code ? 17.1-413, this opinion is not designated for publication.