A father cannot appeal a termination of his parental rights based on the trial court's denial or his continuance request, the Virginia Court of Appeals says, because (1) later in the trial the Department of Social Services asked for a continuance and the father opposed it, and thus "waived his argument" about denial of his earlier continuance request, and also, (2) the trial court later continued the case for other reasons, so the father had plenty of time to question witnesses and present evidence and argument.
A videotape of the child's statements was properly admitted into evidence because the father got adequate notice and him lawyer saw it before trial and was able to prepare for it, the Court says, citing Va. Code Sec. 63.2-1523.
The father also said the Circuit Court erred by admitting the child's statements to her therapist into evidence. That court had excluded them, finding them inadmissible under Va. Code Sec. 63.2-1522, but then admitted some of them on redirect examination of the therapist. Assuming, not deciding, that they were inadmissible, the Court says it was harmless error because the statements were repeated by the same declarant in evidence that was properly admitted, the video tape.
The Court quotes the relevant parts of these Code Sections:
Under Code § 63.2-1522(A), “an out-of-court statement made by a child . . . describing any act of a sexual nature performed with or on the child by another . . . may be admissible in evidence if the requirements of [Code § 63.2-1522(B)] are met.” Code § 63.2-1522(B) provides that the out-of-court statement may be admitted if the child is unavailable to testify, Code § 63.2-1522(B)(1), and the “statement is shown to possess particularized guarantees of trustworthiness and reliability,” Code § 63.2-1522(B)(2).
A statement may not be admitted under [Code § 63.2-1522] unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.
Code § 63.2-1522(C).
Similarly, Code § 63.2-1523 applies to videotaped statements made by a child alleging abuse or neglect. As with Code § 63.2-1522, Code § 63.2-1523(C) provides:
A recorded statement may not be admitted under this section unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.
Morman v. Richmond DSS, unpublished, 9-8-15.