                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED



              ANITA SHANA-NICOLE SIMMS
                                                                               MEMORANDUM OPINION*
              v.      Record No. 1852-17-4                                         PER CURIAM
                                                                                   APRIL 24, 2018
              ALEXANDRIA DEPARTMENT OF COMMUNITY
               AND HUMAN SERVICES


                                FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                                James C. Clark, Judge

                                (Molly H. Newton; Newton Turner PLLC, on brief), for appellant.
                                Appellant submitting on brief.

                                (Matthew W. Greene; James L. Banks, Jr.; Jill A. Schaub; Kevin L.
                                Wiggs, Guardian ad litem for the minor children; Greene Law Group
                                PLLC; Office of the City Attorney, on brief), for appellee. Appellee
                                and Guardian ad litem submitting on brief.


                      Anita Shana-Nicole Simms (mother) appeals the orders terminating her parental rights to her

              two minor children, T.T. and T.S., and approving the goals of adoption. Mother argues that the

              circuit court erred by “admitting into evidence a hearsay document, [mother’s] Parental Capacity

              Assessment, by relying on Virginia Code § 16.1-245.1, a code section that only applies to

              proceedings in the juvenile court.” Upon reviewing the record and briefs of the parties, we affirm

              the decision of the circuit court.

                                                         BACKGROUND

                      “On appeal, ‘we view the evidence and all reasonable inferences in the light most

              favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.

Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).

        On May 1, 2003, the Alexandria Juvenile and Domestic Relations District Court (the JDR

court) awarded custody of mother’s eleven-month-old child, T.T., to the paternal grandmother and

maternal great-grandmother. The maternal great-grandmother had physical custody of T.T., and

mother had reasonable visitation.

        In 2005, mother gave birth to another child, T.S., and a few months later, the maternal

great-grandmother filed a petition for custody of T.S. On September 29, 2005, the JDR court

awarded temporary custody of T.S. to the maternal great-grandmother and the paternal

grandmother.1 The maternal great-grandmother had physical custody of T.S., and mother had

reasonable visitation.

        On May 22, 2015, the Alexandria Department of Community and Human Services (the

Department) received a complaint alleging physical neglect and inadequate shelter. The

Department developed a safety plan with the maternal great-grandmother and provided support to

the family in an attempt to prevent the children from being removed from the home.2 However,

because of the maternal great-grandmother’s health, age, and inability to care for the children, the

Department removed the children on August 11, 2015. The Department initially placed the children

with their maternal grandparents. In September 2015, the maternal grandparents moved to

Maryland before completing the requirements to be foster care parents, so a home study through the

Interstate Compact on the Placement of Children was requested. The Department placed the

children in a foster care home in Virginia, while the home study was conducted. The Department



        1
          On October 19, 2005, the JDR court entered an order stating, “At Petitioner’s request,
petitions for custody and visitation filed 08/25/05 is [sic] dismissed.”
        2
            Mother also resided in the home at the time.
                                                   -2-
determined that the maternal grandparents’ home was not a suitable placement for the children

because the grandfather had barrier crimes that prohibited placement, and the grandmother had

health issues. The Department also was concerned about the grandparents’ lack of follow through

with the necessary documentation for the home study.

         While the children were in foster care, mother was incarcerated for ten and a half months.

Mother participated in the Sober Living Unit at the Alexandria Adult Detention Center, and the

Department arranged for her to visit with the children at the detention center through May 2016.

Upon her release from incarceration, mother visited the children with the maternal

great-grandmother.

         On May 27, 2016, the circuit court entered adjudicatory orders finding that the children were

abused or neglected. The Department remained concerned about mother’s extensive history of

mental health, substance abuse, anger management, and aggression issues. In August 2016, the

Department filed petitions to terminate mother’s parental rights to the children and change the foster

care goals to adoption. On November 16, 2016, the JDR court entered orders terminating mother’s

parental rights to the children and approving the goals of adoption. Mother appealed to the circuit

court.

         On March 17, 2017, the parties appeared before the circuit court.3 The circuit court took the

case under advisement until September 22, 2017, and ordered the Department to provide additional

services to mother. As a result of the court’s order, the Department offered mother numerous

services. The Department worked with mother on housing and provided financial services. The

Department referred mother to individual therapy to address her substance abuse issues. Mother

attended the first two appointments, but then, did not appear for her other scheduled appointments.



         3
        The record does not include a transcript or written statement of facts from the March 17,
2017 hearing.
                                              -3-
The therapist closed mother’s file on July 25, 2017, because more than thirty days had passed with

no contact from mother. Beginning in April 2017, the Department attempted to test mother for

illegal drugs on six occasions. Mother refused all but one test in June 2017, when she tested

positive for PCP.

        The Department also provided supervised visits, every other week, with the children.

Between March 2017 and September 2017, mother missed five visits and was late to two visits.

The visitation supervisor noted that mother’s conduct during the visitation was “pretty good,” but

the supervisor had to intervene at times and redirect mother. The supervisor noted that during the

visits, mother “hardly ever” asked the children about school and did not ask the children about their

medications.

        From March through June 2017, the Department had weekly contact with mother; however,

after June 2017, mother did not maintain as regular contact. The social worker explained that

mother often became agitated. The social worker noted that most of her contact with mother was by

telephone, and mother “would escalate on the phone” and become “belligerent.”

        On June 22, 2017, the Department sent mother a letter explaining what was required of her

for the Department to recommend reunification. The Department expected mother to visit with the

children, complete the psychological evaluation/parental fitness evaluation and follow through on

all recommendations, cooperate with all drug screens, participate in substance abuse counseling, and

keep the Department informed of her housing plans.

        The Department referred mother for a psychological evaluation and a parental capacity

assessment. Mother complied and participated in the evaluation. The evaluator finalized his report

on September 7, 2017 (the September 7, 2017 evaluation). On September 8, 2017, the Department

filed a notice indicating that, pursuant to Code § 16.1-245.1, it intended to introduce at trial the

September 7, 2017 evaluation.

                                                  -4-
        On September 22, 2017, the parties appeared before the circuit court and presented

additional evidence and argument. After introducing testimony from the substance abuse therapist,

the Department sought to admit into evidence the September 7, 2017 evaluation. Mother objected

to the report because it was not part of the JDR court file and did not fall under Code § 16.1-245.1.

The circuit court overruled the objection and admitted the report.

        The Department also presented evidence from the social worker who had been working with

mother since the March 17, 2017 hearing. The social worker testified that she had not been able to

inspect mother’s home, but mother previously told her that the children could not live at that

residence. Consequently, the Department thought mother’s housing situation was a barrier to the

children being returned to her custody. However, the most significant problems remained mother’s

substance abuse and mental health issues. Mother had a “long history of drug abuse,” including use

of PCP. The social worker explained that mother had not complied with the Department’s

requirements regarding substance abuse treatment and mental health counseling.

        The social worker opined that mother did not have “a lot of insight into her own needs” or

the children’s needs. Both of the children have special needs. T.S. has “serious medical needs,”

and T.T. has “a lot of behavioral needs.” T.S. has a congenital kidney condition that requires

regular medication. While in foster care, T.T. was “unstable[,] . . . leaving school, . . . vandalizing,

. . . [and] getting into a lot of trouble.” For a period of time, T.T. was in shelter care and then moved

to a residential facility. By the September 22, 2017 hearing, T.T. had been returned to the foster

home with his brother. The Department expressed doubt about mother’s ability to meet the

children’s basic needs, such as taking them to their appointments.

        After hearing the evidence and argument, the circuit court held that it was in the children’s

best interests to terminate mother’s parental rights pursuant to Code § 16.1-283(C)(2). This appeal

followed.

                                                  -5-
                                              ANALYSIS

        “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great

weight and will not be disturbed on appeal unless plainly wrong or without evidence to support

it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190, 717 S.E.2d 811, 814

(2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d

13, 16 (1986)). “When considering termination of parental rights, ‘the paramount consideration

of a trial court is the child’s best interests.’” Id. (quoting Logan v. Fairfax Cty. Dep’t of Human

Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)).

        Mother argues that the circuit court erred in relying on Code § 16.1-245.1 to admit into

evidence the September 7, 2017 evaluation. Code § 16.1-245.1 establishes the procedure for the

admission of medical evidence in abuse and neglect cases in juvenile and domestic relations district

courts. Mother acknowledges that the circuit court could have considered the September 7, 2017

evaluation if it had been part of the JDR court record because it was a de novo appeal. However,

the Department sought to admit the September 7, 2017 evaluation for the first time in the circuit

court. Mother contends that Code § 16.1-245.1 does not apply to child abuse proceedings in the

circuit court.

        Assuming without deciding that the circuit court erred in admitting the September 7, 2017

evaluation, the error was harmless. An appellate court “will not reverse a trial court for evidentiary

errors that were harmless to the ultimate result.” Carter v. Commonwealth, 293 Va. 537, 544, 800

S.E.2d 498, 502 (2017) (quoting Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908

(2015)). “In Virginia, non-constitutional error is harmless ‘[w]hen it plainly appears from the

record and the evidence given at the trial that the parties have had a fair trial on the merits and

substantial justice has been reached.’” Andrews v. Creacey, 56 Va. App. 606, 625, 696 S.E.2d 218,

227 (2010) (quoting Code § 8.01-678). “If, when all is said and done, [it is clear] that the error did

                                                  -6-
not influence the [fact finder], or had but slight effect, . . . the judgment should stand . . . .” Id.

(quoting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001)). An error may

be found harmless when “overwhelming expert and other evidence support[s] the court’s ultimate

holding.” Jenkins, 12 Va. App. at 1185-86, 409 S.E.2d at 21.

        The Department presented sufficient evidence to terminate mother’s parental rights to the

children without the admission of the September 7, 2017 evaluation. The circuit court terminated

mother’s parental rights pursuant to Code § 16.1-283(C)(2), which states that a court may terminate

parental rights if

                [t]he parent or parents, without good cause, have been unwilling or
                unable within a reasonable period of time not to exceed 12 months
                from the date the child was placed in foster care to remedy
                substantially the conditions which led to or required continuation
                of the child’s foster care placement, notwithstanding the
                reasonable and appropriate efforts of social, medical, mental health
                or other rehabilitative agencies to such end.

        The circuit court did not mention the September 7, 2017 evaluation when it issued its ruling.

Instead, the circuit court explained that it had given mother an additional six months from the March

17, 2017 hearing, to “take full advantage of the services that are offered to her [and] to get herself

straight . . . .” The circuit court noted that despite mother’s desire to have custody of her children,

“there’s simply an inability to do that, whether it’s emotional problems, mental health problems,

certainly substance abuse problems.” The circuit court heard evidence that mother had not

complied with the Department’s requests in obtaining mental health counseling and substance abuse

treatment. In May 2017, mother attended the first two appointments for substance abuse treatment,

but did not appear for any additional appointments. The therapist testified that two visits were

“[a]bsolutely not” enough time to provide substance abuse treatment. Then, mother tested positive

for PCP in June 2017.




                                                    -7-
        In addition to ongoing substance abuse concerns, mother had mental health issues that had

not been remedied by the September 22, 2017 hearing. The social worker described mother as

“belligerent” and “agitated” as they discussed the case on the telephone. In addition, the social

worker testified that mother lacked the insight to meet her own needs, much less her children’s

needs. Mother lacked the ability to provide basic care, such as taking the children to medical

appointments.

        Lastly, the Department presented evidence that mother did not have approved housing for

the children. Mother told the social worker that the children could not live at the house where she

was residing. The social worker had attempted on several occasions to inspect the home, but never

had an opportunity to go inside. On June 19, 2017, mother told the social worker that she could not

come in the home. On another occasion, the social worker went to the house unannounced, but

mother was not home.

        Regardless of whether the September 7, 2017 evaluation was admitted, there was sufficient

evidence to support the circuit court’s decision to terminate mother’s parental rights to the children.

                                           CONCLUSION

        For the foregoing reasons, the circuit court’s ruling is affirmed.

                                                                                             Affirmed.




                                                 -8-
