Virginia Lawyers Weekly VA Lawyers Weekly
Any procedural errors in the circuit court’s proceedings to terminate a father’s parental rights were harmless, as ample evidence showed that termination would be in the children’s best interests.
Background
In 2013, the circuit court issued a protective order prohibiting Appellant Braulio Castillo from having contact with his wife, Michelle, except by agreement or as necessary to facilitate visitation exchanges with their children. They had been married for 17 years and were parents to four minor children. The basis of the protective order was Castillo’s repeated verbal, physical, and sexual abuse of Michelle, often in the presence of one or more of the children.
In 2014, law enforcement officers found Michelle deceased, hanging in the basement of her home. Castillo was considered a person of interest in her death, and Child Protective Services placed the children with David and Stephanie Meeker, friends of the Castillo family.
On June 16, 2016, a jury found Castillo guilty of the first-degree murder of Michelle. The next day, the Loudoun County Department of Family Services filed petitions to terminate his residual parental rights pursuant to Code §§ 16.1-283(B) and 16.1-283(C)(2). The Department amended these petitions to include Code §§ 16.1-283(E)(ii) and 16.1-283(E)(iv) as additional grounds for termination. The juvenile & domestic relations court granted the petitions, and after extensive trial proceedings, the circuit court entered an order terminating Castillo’s parental rights.
Former testimony
Michelle’s testimony during the 2013 protective-order hearing satisfies the requirements of Virginia Rule of Evidence 2:804(b)(1) and was therefore admissible.
The issue for which Michelle’s testimony was admitted at the protective hearing concerned whether Castillo’s abuse of her and the children justified entry of a protective order. One of the issues before the circuit court in the present case was whether Castillo had abused and neglected the children. The testimony at the protective-order hearing detailed not only instances of Castillo abusing Michelle around the children — actions constituting psychological abuse of the children — but also Castillo’s physical abuses of the children themselves, including pushing then-five-year-old Z. hard enough to knock him to the ground and grabbing then-two-year-old B. by the arm and twisting until he cried.
Castillo’s argument that the testimony is inadmissible because it took place before the Department ever became involved is similarly misguided. Former testimony simply must relate to a sufficiently similar issue to that in the present proceeding; there’s no requirement that the two proceedings be for the same purpose. Accordingly, the circuit court did not abuse its discretion in ruling that Michelle’s former testimony was admissible under Rule 2:804(b)(1) because it concerned substantially the same issue in both cases.
Attorney-client privilege
Even if, as Castillo contends, the circuit court erred in finding he waived attorney-client privilege with respect to certain notes on his smartphone, such error would be harmless.
The Department introduced the notes as evidence that Castillo violated the protective order. The circuit court didn’t mention the notes in its ruling, and ample other evidence supported the conclusion that Castillo had violated the protective order. Among that evidence was the protective order itself. Because the circuit court had sufficient other evidence from which to conclude appellant violated the protective order and did not rely on the notes in its ruling, any error in admitting the notes was harmless.
Expert testimony
Dr. Walker’s expert testimony for the Department was appropriately admitted under Virginia Rule of Evidence 2:703 for the limited purpose of demonstrating the basis of his opinion, and its admission was harmless even if it constituted error.
In admitting Walker’s testimony regarding the children’s hearsay statements, the circuit court ruled that it would only be accepted as to the basis for the opinion that he rendered about their bond with the Meekers. Because this ruling was consistent with accepted evidentiary principles, the circuit court did not abuse its discretion in admitting Walker’s testimony regarding the children’s statements for the sole purpose of demonstrating the basis of his expert opinion.
Further, any error in this regard would have been harmless in light of the extensive other evidence indicating that remaining with the Meekers was in the children’s best interests. This evidence included Walker’s observations of the children’s interactions with the Meekers, leading him to conclude that the children had a “very strong” bond with the Meekers and “it would be traumatic, without a doubt” for them to be removed from the Meekers’ home.
Relative placement
The circuit court had ample evidence with which to consider relative placements and appropriately determined that no possible relative placement would serve the children’s best interests.
The Department began researching the children’s relatives shortly after the initial removal. It prepared a genogram, then mailed letters to the relatives seeking those interested in potentially becoming placements for the children. The Department also supervised many relatives’ visitation with the children and interviewed the most likely placement candidates. This investigation determined that all of the relatives it considered would be inappropriate for various reasons, including inadequate housing, medical conditions, strained interactions with the children, or holding beliefs about Castillo inconsistent with what the Department believed to be the children’s best interests. The circuit court, which had the ultimate responsibility of assessing this information, carefully considered all the evidence from the Department’s investigation before concluding that no relatives would be suitable placements.
Holding evidence open
The circuit court’s decision to hold evidence open was within its discretion and not, as Castillo contends, influenced by a mistake of law.
When the Department moved to hold evidence open for admission of the final criminal order, the circuit court found admission of the order to be “central to the just outcome of this matter,” recognizing that, although the statutory structure for termination cases codifies the public policy of efficient resolution, the specific facts of this case did not justify “closing the case until all the evidence, offered in good faith and necessary to the ends of justice, have been heard.”
This court will not reverse a lower court’s discretionary decision unless reasonable jurists could not differ as to the proper decision. A criminal judgment in the Commonwealth’s favor would have been, and eventually proved to be, dispositive on the issue of terminating Castillo’s parental rights. The circuit court decided that a few months’ delay for evidence that would provide increased certainty was better for the children than going on to reach a decision it perceived would be more vulnerable to reversal on appeal, thus risking potential years of uncertainty for the children. The circuit court did not abuse its discretion in making this determination.
Sufficiency of evidence
The circuit court’s decision to hold a combined hearing on both the appeal of the dispositional orders and the appeal of the termination orders, if error, was nevertheless harmless, given that the evidence overwhelmingly supported a termination finding under Code § 16.1-283(E)(ii).
This court has held in an unpublished opinion that a circuit court errs by conducting a single trial on appeal of petitions alleging abuse and neglect alongside petitions seeking termination of parental rights. But even if the circuit court erred by not holding separate proceedings, this court need not necessarily reverse its termination decision.
Termination of Castillo’s parental rights pursuant to Code § 16.1-283(E)(ii) was appropriate without regard to the abuse and neglect inquiry that would have been the subject of any separate proceeding. The circuit court had before it a final criminal order convicting Castillo of murdering Michelle, the biological mother of three of the children and adoptive mother of the fourth, which it held was a conviction within the meaning of Code § 16.1-283(E)(ii). The circuit court further held that, in light of Castillo being in prison and the children’s need for stable parental figures, clear and convincing evidence supported termination as being in the children’s best interests. These findings, amply supported by the evidence in the record, justified termination pursuant to Code § 16.1-283(E)(ii). Because termination under that provision does not require a finding of abuse and neglect, the procedural requirements for separating termination proceedings from hearings on other issues are not significant in this case.
Accordingly, to the extent that the circuit court may have erred by not holding separate proceedings for the termination issues, such error was harmless because Castillo received a fair trial in which overwhelming evidence was presented supporting termination of his residual parental rights to the children under Code § 16.1-283(E)(ii).
Affirmed.
Castillo v. Loudoun Cnty. Dep’t of Family Servs., Record No. 1499-17-4, Apr. 3, 2018. CAV (Huff), from Loudoun Cir. Ct. (Sincavage). Kelly L. King for Appellant; Sandra A. Glenney for Appellee. VLW No. 018-7-078, 24 pp.
