Child’s Statements to Social Worker Admissible

Child’s Statements to Social Worker Admissible

By Deborah Elkins
Published: February 17, 2012

Tags: , Divorce Attorney, ,

In a proceeding for termination of mother’s parental rights to three of her four children, the Court of Appeals affirms the trial court’s admission of one child’s statements to a social worker about sexual abuse by mother and men living with her; this testimony is admissible in this civil proceeding under § 63.2-1522, and ample evidence supports termination for failure to substantially remedy the conditions requiring foster care.

Mother has four children, three in foster care.  In 2005, the local department of community and health services (CHS) removed mother’s oldest child because of lack of housing and resources.  After a second child was born, the oldest child was returned home in March 2007.  In November 2009, both children were removed due to mother’s inability to care for them; mother admitted domestic violence incidents with the father of her unborn child and tested positive for marijuana.  A third child was born and removed after mother told CHS she would continue using marijuana and refused to participate in substance abuse treatment.  CHS provided services, including a home-based worker, substance abuse and psychological evaluations and a drug court referral in which she participated for a year. 

In August 2010, the three children were returned on condition that neither father was permitted in the home.  The two older children received therapy for sexualized behavior.  In the fall of 2010, a teacher and CASA worker said the older child reported beatings with a belt; mother was not adequately supervising or cleaning the children and failed to follow up with a doctor on the youngest child’s growth concerns.  In early 2011, all three children were removed after Child Protective Services (CPS) received complaints of sexual abuse.  The oldest daughter told a social worker she was sexually and physically abused by her mother and two men staying in the home.  The JDR court granted CHS petitions to terminate mother’s rights as did the circuit court on appeal.

On appeal, mother challenges the admission of the social worker testimony about her oldest daughter’s statements about sexual abuse.  We affirm and note that the trial court’s statement that the testimony in question was not the basis for its ruling. This testimony was admissible under § 63.2-1522:  The daughter was unavailable to testify due to fear of her mother; the 12 statutory factors the trial must consider assure a particularized guarantees trustworthiness and reliability.  The social worker supported the consistency of daughter’s allegations.  Contrary to mother’s contention, Crawford v. Washington, 541 U.S. 36 (2004), provides a standard for criminal cases not applicable here. 

The evidence supports termination under § 16.1-283(C)(2); CHS has been involved with the family since 2005.  Mother’s progress is insufficient: she stopped participating in therapy and taking her medications; she did not follow up on medical attention for the younger child’s small size.  It is never in a child’s best interests to wait a long time to find out if a parent can resume parental responsibilities.  The younger child has gained significant weight in foster care. Sufficient record evidence supports termination of mother’s rights.

Ferrell v. Alexandria Dep’t of Community and Human Servs. (Per Curiam) No. 1705-11-4, Feb. 14, 2012;  Alexandria Cir. Ct. (Kemler) Douglas A. Steinberg for appellant; James Banks for appellee; Ellen Dagues, GAL. VLW 012-7-043(UP), 10 pp.

Please contact us if you have questions.

Tucker Griffin Barnes P.C.
Charlottesville, VA

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