                    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



                                -2-
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.




                                 -3-
     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




                                 -4-
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


                                 -5-
           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



                                 -6-
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




                                  -7-
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.




                                -8-
                                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.




                                -9-
     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.




                               -10-
