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STARRS v. STARRS


STARRS v. STARRS (unpublished)


APRIL 8, 1997
Record No. 1401-96-4
Record No. 2354-96-4

MONICA M. STARRS

v.

JAMES E. STARRS AND BARBARA A. STARRS

___________________________

JAMES E. STARRS AND BARBARA A. STARRS

v.

MONICA M. STARRS

 

F. Bruce Bach, Judge
Present: Judges Willis, Bray and Senior Judge Hodges

Argued at Alexandria, Virginia

MEMORANDUM OPINION [1] BY JUDGE WILLIAM H. HODGES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

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 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 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.

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
haveon 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 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 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 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

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.

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.

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.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.

 

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