                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia


BERNICE WILSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2606-02-4               JUDGE ROSEMARIE ANNUNZIATA
                                               JULY 15, 2003
FAIRFAX COUNTY DEPARTMENT
 OF FAMILY SERVICES


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Leslie M. Alden, Judge

           Francis C. McBride for appellant.

           Dennis R. Bates, Senior Assistant County
           Attorney (David P. Bobzien, County Attorney;
           Peter D. Andreoli, Jr., Deputy County
           Attorney; Jessica C. Friedman, Assistant
           County Attorney; Office of the County
           Attorney, on brief), for appellee.

           (Michael S. Arif; Martin, Arif, Petrovich &
           Walsh, on brief), Guardian ad litem for the
           minor children. Guardian ad litem
           submitting on brief.

           Glenn L. Clayton II, Guardian ad litem, for
           father, Justin Wilson, Sr.


     On September 4, 2002, the circuit court determined that

Bernice Wilson's minor son, A., was an abused and/or neglected

child and ordered him to be placed in approved foster care with

the goal of "return home."   Wilson appeals on the following

grounds:   1) the Fairfax County courts did not have subject


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
matter jurisdiction over the child because he was found in

Spotsylvania County and he and Wilson no longer resided in

Fairfax County; 2) the evidence failed to show by a

preponderance that the child was abused and/or neglected; and

3) the trial court erred in allowing Detective Tim Briner to

testify regarding computer-generated records because the

information was hearsay.   For the reasons that follow, we

affirm.

                                 Facts

     Bernice Wilson resided in Fairfax County with her son, A.,

from June 2000 until May 2001.    At the end of May 2001, Wilson

reportedly moved out of Fairfax County but did not set up

another permanent residence.   In June and July 2001, Wilson

stayed with her mother, Earlene Young, in Spotsylvania County,

and later in motels in Fredericksburg.   During that time, Wilson

maintained contacts in Fairfax County, including contact with

her Fairfax County probation officer and the Fairfax County

juvenile court ("the juvenile court"), because her two eldest

children, J. and K., were in the county's foster care system.

     On July 23, 2001, Wilson brought A. to Fairfax County for a

medical appointment.   A. had tubes surgically placed in his ears

that day and required prescribed medication as follow-up care.

Following the appointment, Wilson met with her probation

officer, Bonnie Parigian, in Fairfax City.   While Wilson met

with Parigian, A. stayed in the car in the parking lot with

                                 - 2 -
Wilson's companion, William Scott.       At the end of the probation

meeting, Wilson was met by Detective Timothy Haynes of the

Fairfax City Police Department, who brought her in for

questioning in connection with charges of robbery and

prostitution that had occurred at the Anchorage Motel in Fairfax

City.    Following her questioning, Wilson was arrested and

incarcerated at the Fairfax County Adult Detention Center.

Wilson left A. in the physical custody of Scott.      Wilson

testified that she had instructed Scott to take A. to Young's

home if anything happened to her.

        During her July 23, 2001 interview with Detective Haynes,

Wilson reported that she was concerned about leaving A. with

Scott because she did not know what Scott would do to A. and she

knew that Scott had a Desert Eagle handgun.      Wilson had been

involved in altercations with Scott in which she had felt the

need to call the police.

        On July 24, 2001, Wilson filed a police report with the

Fairfax City Police Department alleging that A. had been

abducted by Scott.    Detective Haynes was assigned to the

abduction case.    From his investigation, Detective Haynes

learned that Scott was a suspect in the robbery and prostitution

case in which Wilson had been arrested.      The detective further

determined that Scott had allegedly used force in the robbery.

Detective Haynes ran Scott's name through the National Crime



                                 - 3 -
Information Center and discovered that Scott had been involved

in other crimes of violence.

     On July 25, 2001, Detective Haynes found A. at the home of

his grandmother, Earlene Young, in Spotsylvania County.    The

abduction report was outstanding at that time.

     When Haynes found A., he contacted the Fairfax County

Department of Family Services ("the Department") and the

Spotsylvania Sheriff's Department contacted the Spotsylvania

County Department of Social Services ("the Spotsylvania

Department").   The Spotsylvania Department declined to become

involved in A.'s case because he had been abducted from Fairfax

County.   Accordingly, the Department accepted A.'s case and

determined that the child was without an appropriate caretaker. 1

     Detective Haynes brought A. to Fairfax County, where he was

placed in the custody of the Department.   When A. was removed

from Young's house, the Department was aware of the arguing,

assault, and domestic violence incidents occurring at Young's

home and the ongoing police involvement there.   In June 2001,

Young had been denied custody of A.'s twin siblings by the

Fairfax juvenile court.   The juvenile court's final order

regarding Young, introduced into evidence, expressly stated that

Young's custody petition was denied because of continuing



     1
       Fairfax County is responsible for providing child
protective services in Fairfax City pursuant to a city-county
agreement.

                               - 4 -
domestic violence and lack of stability in her home.    The

Department did not believe Young was an appropriate caretaker

and was not aware of any other suitable relative placements for

the child.   He was not returned to Wilson's care because she was

being held in jail on the robbery and prostitution charges.

A.'s father was also incarcerated and also was unable to take

custody of A.

     At trial, Tim Briner, a detective with the Spotsylvania

Sheriff's Department, testified over Wilson's objection,

regarding the sheriff's department's records of domestic calls

involving Young's residence.   He explained the computerized

system the sheriff's department uses to keep records of all

incoming calls and the manner in which additional reports become

part of the system.    For each call the sheriff's department

receives, dispatchers input the call into the computer system,

which then generates an incident number.   Based on the content

of the call, the dispatcher inputs additional information into

the computer as necessary, under the incident number.   Once the

initial information is taken, the dispatcher dispatches an

officer to the call.

     Officers responding to the calls generally transcribe any

additional information they gather, known as "attachments," and

submit them to the police records division of the sheriff's

department, who in turn input the attachments into the computer



                                - 5 -
under the appropriate incident number.    Each time the department

receives a call, the same process is followed.

     Detective Briner testified that he has access to the

reports and calls related to a particular incident or address.

Detective Briner testified that the sheriff's department

received a total of 33 calls for service to Young's residence in

2001, including several calls related to domestic violence and

child welfare.   Three of the calls in 2001 were reports of

violent domestic assault, to which he responded, and ten calls

were related to non-violent domestic incidents.   The detective

further testified that his department's records reflect a call

reporting an assault at Young's home involving Wilson and Scott

on June 6, 2001, to which he responded.

     Dr. Kari Moskowitz, a licensed clinical psychologist,

testified that in 1998, she assessed Wilson as having a history

of serious emotional disturbance characterized by aggressive and

emotional outbursts, poor impulse control, poor judgment, and

poor problem-solving skills and that those traits interfered

with her ability to provide a safe and secure environment for a

child.   At the time she saw Wilson, Dr. Moskowitz recommended

that Wilson participate fully in individual therapy because her

mental health problems required treatment.   Dr. Moskowitz

further testified that, in the absence of successful treatment,

the best predictor of future behavior is past behavior.    There



                               - 6 -
was no evidence presented at trial showing that Wilson had

successfully completed any course of mental health treatment.

     The Department offered a number of diagnostic and

therapeutic services to Wilson, beginning in 1998.   Marlene

Freedman, a foster care supervisor with the Department,

testified that the Department had made numerous attempts in 1998

to offer Wilson services directed toward her mental health,

substance abuse, parenting skills, housing, and her ongoing

involvement in domestic violence and criminal activity.

Freedman testified that during her involvement with Wilson

through October 1999, Wilson never followed through with any of

the services offered.   Kelly Traver, a foster care social worker

with the Department, testified that Wilson had declined all

mental health, substance abuse, and housing services offered to

her in Fairfax County and failed to establish a permanent

residence since her release from jail in September 2001.

     Wilson testified that she had a plan in place for the

return of A. to her custody.   At the time of trial, however, she

was temporarily staying at Young's home.   Furthermore, she

testified that she was employed, but not yet working, and that

she was not in therapy as recommended.

                        Procedural Background

     On July 26, 2001, the Fairfax County Department of Family

Services filed a petition in the juvenile and domestic relations

district court of Fairfax County, alleging that twenty-one

                                - 7 -
month-old A. was an abused and/or neglected child within the

meaning of Code § 16.1-241(A)(1).   On that same date, the

juvenile court issued an emergency removal order ("ERO")

pursuant to Code § 16.1-251 at the request of the Department.

The juvenile court set the matter for a preliminary removal

hearing on August 2, 2001, pursuant to Code § 16.1-252.    On

August 2, 2001, Wilson objected to the jurisdiction of the

juvenile court over the subject matter of the Department's

petition.   The juvenile court set a hearing for August 27, 2001

to address the issue of subject matter jurisdiction.   At the

hearing, the juvenile court found that it had jurisdiction over

the subject matter and that venue was appropriate under the

applicable statutory provisions.    The juvenile court set an

adjudicatory hearing for September 17, 2001, to determine

whether A. was an abused and/or neglected child.

     Prior to September 17, 2001, Wilson noted an appeal to the

circuit court of Fairfax County of the August 27, 2001 order.

On September 17, 2001, the juvenile court stayed the proceedings

on the Department's petition pending resolution of the

jurisdictional issue in the circuit court, and continued the ERO

in effect, pending further proceedings.   On February 26, 2002,

the circuit court dismissed Wilson's appeal on the ground that

there was no final judgment on the merits and the matter was

remanded to the juvenile court for further proceedings.



                               - 8 -
        On March 14, 2002, the juvenile court conducted a

preliminary removal hearing pursuant to Code § 16.1-252 and an

adjudicatory hearing on the merits of the Department's petition

alleging that the child was abused and/or neglected.    The

juvenile court found that A. was a Child in Need of Services

("CHINS") within the meaning of Code § 16.1-228.    The juvenile

court continued legal custody of the child with the Department

and set the matter for a dispositional hearing on April 30,

2002.    On April 30, 2002, the juvenile court entered a final

dispositional order finding that A. was a child in need of

services, continuing legal custody of the child with the

Department, and approving the foster care service plan with the

goal of a return home.

        On May 9, 2002, Wilson noted her appeal to the circuit

court of the April 30, 2002 final order.    On September 4, 2002,

the circuit court heard the Department's petition de novo.       By

order dated September 5, 2002, the circuit court found that the

juvenile court and the circuit court had jurisdiction over the

child for the purposes of adjudicating all issues related to the

Department's petition.    The circuit court further found by a

preponderance of the evidence that the child was a neglected

child within the meaning of Code § 16.1-228(1).    Legal custody

of the child was continued with the Department, and the foster

care service plan was approved.



                                 - 9 -
                               Analysis

                    I.     Jurisdictional Issue

     On appeal, Wilson contends the Fairfax County courts did

not have subject matter jurisdiction over this case because A.

was found in Spotsylvania County after Wilson's arrest.    We

disagree with this contention.

     Code § 16.1-241 governs the resolution of this issue and

states, in part:

          [E]ach juvenile and domestic relations
          district court shall have, within the limits
          of the territory for which it is created,
          exclusive original jurisdiction . . . over
          all cases, matters and proceedings
          involving: A. The custody, visitation,
          support, control or disposition of a child:
          1. Who is alleged to be abused, [or]
          neglected . . . except where the
          jurisdiction of the juvenile court has been
          terminated or divested . . . .

Code § 16.1-241(A)(1).

     "Subject matter jurisdiction is the authority granted to a

court by constitution or by statute to adjudicate a class of

cases or controversies."    Earley v. Landsidle, 257 Va. 365, 371,

514 S.E.2d 153, 156 (1999).    In the case at bar, the child, A.,

is alleged to have been abused and neglected.     The statute, by

its plain language, does not predicate subject matter

jurisdiction on the residence of the child at issue.    The

statute grants exclusive jurisdiction to juvenile and domestic

relations district courts over all "cases, matters and

proceedings involving . . . the custody . . . of a child . . .

                                - 10 -
who is alleged to be abused, [or] neglected . . . . "   Code

§ 16.1-241.

     The record establishes that the juvenile and circuit courts

had subject matter jurisdiction in this case.   After Wilson was

arrested on charges of robbery and prostitution, the initial

allegation of abuse and neglect was reported to the Department.

Social worker Renee Berry stated in a sworn affidavit, that "on

July 25, 2001, Child Protective Services in Fairfax County

received a referral regarding physical neglect, abandonment

[sic] of A[.] . . . age 21 months, by his mother Bernice

Wilson."   Berry was informed that Wilson reported A. as an

abducted child after her arrest.   Additionally, Berry noted in

her affidavit that A. had tubes surgically placed in his ears on

July 23, 2001.   A.'s surgery required follow-up care, including

prescribed medication.   Berry stated, "It is believed [Wilson]

has the medication with her in jail."

     Thus, the allegations of A.'s abuse and neglect in Berry's

affidavit, including Wilson's arrest, thus leaving A. without an

appropriate caretaker, and leaving the child without his

prescribed medication, brought the matter within the subject

matter jurisdiction of both the juvenile and circuit courts.

     To the extent Wilson challenges venue on appeal, arguing

that she and A. reside in Spotsylvania County and Detective

Haynes ultimately located the child in Spotsylvania County, the

issue is procedurally defaulted because Wilson did not preserve

                              - 11 -
it for appeal, and we decline to address it.      See Rule 5A:18;

see also Gordon v. Commonwealth, 38 Va. App. 818, 822 n.3, 568

S.E.2d 452, 453 n.3 (2002) ("One consequence of the non-waivable

nature of the requirement of subject matter jurisdiction is that

attempts are sometimes made to mischaracterize other serious

procedural errors as defects in subject matter jurisdiction to

gain an opportunity for review of matters not otherwise

preserved.").

                II.    Sufficiency of the Evidence

                      A.   Removal of the Child

     Wilson contends A.'s summary removal from Young's home by

Detective Haynes was improper under Code § 16.1-248.9, on the

grounds that 1) the detective was not investigating a claim of

abuse or neglect, and 2) the child was not in imminent danger.

We find Wilson's argument to be without merit.

     The removal of a child from parental custody pursuant to

Code § 16.1-251 is not a final determination of the child's

custody and, therefore, is not appealable.    Within five days of

taking a child into custody without the court's approval, the

Department of Family Services must file a petition alleging

abuse or neglect and must obtain an emergency removal order

pursuant to Code § 16.1-251.    It is not until the court finds by

a preponderance of the evidence that the child is abused or

neglected within the meaning of the statute and issues a final

disposition order pursuant to Code § 16.1-278.2 that an appeal

                                - 12 -
may be taken.    See Code § 16.1-278.2(D).   A.'s emergency removal

was not a final disposition and, thus, cannot be appealed.

     B.   Determination that the Child was Abused/Neglected

     Wilson next argues that the evidence was insufficient to

prove by a preponderance that A. was abused or neglected, as

defined by Code § 16.1-228(1).   We find this argument to be

without merit.

     The circuit court's judgment, "when based on evidence heard

ore tenus, will not be disturbed on appeal unless plainly wrong

or without evidence to support it."     Peple v. Peple, 5 Va. App.

414, 422, 364 S.E.2d 233, 237 (1988).    On appellate review, "[a]

trial court is presumed to have thoroughly weighed all the

evidence, considered the statutory requirements, and made its

determination based on the child's best interests."      Farley v.

Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1977).      Code

§ 16.1-228(1) defines a neglected child as any child:

           Whose parents or other person responsible
           for his care creates or inflicts, threatens
           to create or inflict, or allows to be
           created or inflicted upon such child a
           physical or mental injury by other than
           accidental means, or creates a substantial
           risk of death, disfigurement or impairment
           of bodily or mental functions . . . .

Under the statute, and the case law interpreting it, the child

need not suffer actual harm or impairment.     See Jenkins v.

Winchester Dep't of Social Servs., 12 Va. App. 1178, 1183, 409

S.E.2d 16, 19 (1991) (holding that the "statutory definitions of


                               - 13 -
an abused or neglected child do not require proof of actual harm

or impairment having been experienced by the child").

Accordingly, the term "substantial risk" speaks in futuro.      See

id.

       On July 23, 2001, Wilson created a situation in which A.,

21 months old at the time and unable to care for himself, was

subjected to a substantial risk of death or impairment of bodily

or mental function.    After her arrest and subsequent

incarceration for prostitution and robbery, she left A. in the

care of an individual with a history of violent behavior, whom

she knew was armed with a handgun, and about whom she expressed

concern as a proper caretaker for A., stating he might harm the

child.    She later filed a police report alleging Scott abducted

A.    Detective Haynes, of the Fairfax County police, discovered

that Scott was Wilson's accomplice in the robbery and that he

used force in committing the crime.      He ran Scott's name through

the National Crime Information Center database and discovered

that Scott had been involved in other crimes of violence.

         There existed no other suitable caretaker for A. in

Wilson's absence.    The child's father was incarcerated at the

time in Spotsylvania County.    Mr. Wilson's parents told

Detective Haynes they did not want to be involved.     A. was found

with his grandmother, Earlene Young.     Young was not an

appropriate caretaker.    Detective Briner responded to three

calls of violent domestic assault at Young's home in 2001; Young

                                - 14 -
was arrested for assault on one of the occasions.     Police

responded to 33 calls from Young's home in 2001.     Indeed, as a

result of the "continuing domestic violence" and "lack of

stability" at Young's home, the juvenile court in Fairfax County

denied her petition for custody of A.'s twin siblings in June

2001.

        Finally, Wilson herself was not an appropriate caretaker.

She has a history of serious emotional disturbance characterized

by aggressive and emotional outbursts, poor impulse control,

poor judgment, and poor problem-solving skills; those traits

interfered with her ability to provide a safe and secure

environment for A., as Dr. Kari Moskowitz testified.     In 1998,

Dr. Moskowitz recommended that Wilson participate fully in

individual therapy because her mental health problems required

treatment.      No evidence was presented at trial showing that

Wilson had successfully completed any course of mental health

treatment.

        Based on this evidence, we cannot say that the circuit

court's finding by a preponderance of the evidence that A. was a

neglected child was plainly wrong.

         III.   Business Records Exception to the Hearsay Rule

        Wilson finally contends that the circuit court erred in

admitting Detective Briner's testimony regarding calls made from

Young's residence to the Spotsylvania County Sheriff's

Department, on the ground that mere access to the records is

                                 - 15 -
insufficient to establish their reliability and, furthermore,

that Briner was neither the custodian of the records nor had

access to the original documents that were the basis for the

computer records.   We find these arguments to be without merit.

     The issue is governed by settled principles regarding the

exceptions to Virginia's hearsay rules.    "Hearsay evidence is

defined as a spoken or written out-of-court declaration or

nonverbal assertion offered in court to prove the truth of the

matter asserted therein."   Arnold v. Commonwealth, 4 Va. App.

275, 279-80, 356 S.E.2d 847, 850 (1987).   "[H]earsay evidence is

inadmissible unless it falls within one of the recognized

exceptions to the hearsay rule and the party attempting to

introduce a hearsay statement has the burden of showing the

statement falls within one of the exceptions."    Robinson v.

Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77 (1999)

(citations omitted).   Virginia has formulated its modern

Shopbook Rule to determine the admissibility of computer

records.

                In determining the admissibility of
           computer records, when the argument has been
           advanced that they are inadmissible hearsay,
           we have employed the traditional business
           records exception to the hearsay rule.

                "Under the modern Shopbook Rule,
           adopted in Virginia, verified regular
           entries may be admitted into evidence
           without requiring proof from the regular
           observers or record keepers," generally
           limiting admission of such evidence to
           "facts or events within the personal

                              - 16 -
           knowledge of the recorder." However, this
           principle does not necessarily exclude all
           entries made by persons without personal
           knowledge of the facts recorded; in many
           cases, practical necessity requires the
           admission of written factual evidence that
           has a circumstantial guarantee of
           trustworthiness.

                "The trustworthiness or reliability of
           the records is guaranteed by the regularity
           of their preparation and the fact that the
           records are relied upon in the transaction
           of business by the person or entities for
           which they are kept." "Admission of such
           evidence is conditioned, therefore, on proof
           that the document comes from the proper
           custodian and that it is a record kept in
           the ordinary course of business made
           contemporaneously with the event by persons
           having the duty to keep a true record."

Kettler & Scott, Inc. v. Earth Tech. Cos., Inc., 248 Va. 450,

457, 449 S.E.2d 782, 785-86 (1994) (citations omitted); see also

"Automatic" Sprinkler Corp. of America v. Coley & Petersen,

Inc., 219 Va. 781, 792-93, 250 S.E.2d 765, 773 (1979).    We find

that a proper foundation for admission of Briner's testimony

regarding the computer records was established. 2

     Briner had worked in the sheriff's department for two

years.   He testified that the sheriff's department's computer

records are maintained regularly.   For every incoming call, the


     2
       The computer records themselves were not entered into
evidence. Because Wilson limits her appeal to whether Detective
Briner was the proper custodian of the records and whether mere
access to the records is a sufficient basis to establish their
reliability for purposes of the business records exception to
the hearsay rule, we do not address whether the Commonwealth was
required to admit the records as a foundation for the subsequent
testimony by Briner.

                              - 17 -
dispatcher enters the information into the computer system,

which generates an incident number.      Any subsequent reports,

paperwork or notes relating to the call and filed by officers or

detectives are also entered into the system, by the officer,

detective or another individual in the police records division.

Detective Briner testified that the computer system serves as a

catalog of incoming calls and officers' responses and that the

officers use the database to cross-reference cases.     Detective

Briner has access to the system, which allows him to keep track

of the details and status of each case.     He can retrieve and

enter data as necessary.

     Detective Briner demonstrated that he has knowledge of the

computer recordkeeping system, and has access to and relies on

the records contained in the system.     Coupled with his

assertions that records are kept on a regular basis, the

evidence was sufficient to establish the trustworthiness and

reliability of the records.    Detective Briner's testimony was,

therefore, admissible as a business records exception to the

hearsay rule.

     Even assuming the admission of Briner's testimony about the

computer records was in error, the error was harmless.      Where it

affirmatively appears that an error of the trial court could not

affect the merits of the case, nor prejudice the party

appealing, the appellate court will not reverse the judgment on

the ground of such error.     Speller v. Commonwealth, 2 Va. App.

                                - 18 -
437, 443-44, 345 S.E.2d 542, 546-47 (1986); see also Scafetta v.

Arlington County, 13 Va. App. 646, 649, 414 S.E.2d 438, 440

(1992) (finding that nonconstitutional error is harmless when

"'it plainly appears from the record and evidence . . . that the

parties have had a fair trial on the merits and substantial

justice has been reached'" (quoting Code § 8.01-678)).

     In the case at bar, even excluding the computer records

information, the evidence was sufficient to prove by a

preponderance that A. was a neglected child within the meaning

of the statute.   First, Wilson left A., 21 months old at the

time and unable to care for himself, with Scott, a man with a

violent history and whom she knew was armed and involved with

the robbery and prostitution charges for which Wilson was

arrested, and had a violent history.   Scott also had been

involved in other crimes of violence, as Detective Haynes

discovered via the National Crime Information Center database.

Wilson admitted to the police that she was concerned Scott might

harm A.   In addition, the trial court heard testimony regarding

Wilson's history of serious emotional disturbance, its effect on

her ability to provide a safe and secure home for A., and her

failure to seek treatment for her problems.

     Second, there existed no other suitable caretaker for A. in

Wilson's absence.   The child's father was incarcerated in

Spotsylvania County at the time.   Mr. Wilson's parents told

Detective Haynes they did not want to be involved with the

                              - 19 -
situation.   Finally, Young, the person with whom A. was found,

was not found to be an appropriate caretaker by the Fairfax

juvenile court because the court denied her petition for custody

of A.'s twin siblings in June 2001 due to the continuing

domestic violence and lack of stability at her home.

     The evidence was sufficient, excluding the computer records

from consideration, to establish that A. was a neglected child

within the meaning of the statute.      Accordingly, we affirm the

decision of the trial court.

                                                           Affirmed.




                               - 20 -
