COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, D ecker and Senior Judge Felton

ANDRE MORMAN, SR. MEMORANDUM OPINION * v. Record No. 0545-15-2 PER CURIAM SEPTEMBER 8, 2015 RICHMOND DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenk ins, Jr., Judge (James M. Nachman, on brief), for appellant. (Kate O’Leary, Deputy City Atto rney; Stephen M. Ha ll, Deputy City Attorney; Paul Kellinger, Guardian ad litem for the mino r children, on brief), for appellee.
Andre Morman, Sr. (father) appeals the order terminating his parent al rights to his six children. Father argues that th e circuit court erred by (1) denyi ng his motion to c ontinue and his “motion objecting to the admission of statement(s) and/or vide o-taped statement(s) into evidence pursuant to Virginia C ode §§ 63.2-1522 and 1523; ” (2) overruling his obje ctions and considering evidence from the proceedings in Richmond Juvenile an d Domestic Relations District Court (the JDR court); (3) allowing A.M.’s 1 statements to come into evid ence through Am y Beddo Thomas; (4) allowing A.M.’s videotaped statement to come into evidence; and (5) concluding that the Richmond Department of Social Services (the Department) proved by clear and convincing evidence that father’s parental rights should be terminated. Upon reviewing the record and briefs

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The Court will refer to the mi nor children by their initials.UNPUBLISHED- 2 - of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule 5A:27.
BACKGROUND We view the evidence in the light most favor able to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). Father and Jennifer Morman (mother) have six children who are the subject of this appeal. Between 2008 and 2013, child protective serv ices received nine complaints regarding the children. On June 6, 2013, the children came into the Department’s custody based on allegations of sexual abuse. The JDR court su stained abuse and neglec t petitions filed by the Department. The goal of the initial foster care plan was for the children to return home. The Department started to provide se rvices to the parents. Father refused any treatment offered by the Department and never acknowledged any inappr opriate behavior with the children. The goal of the foster care plan was changed to adoption once the Department lear ned of the children’s statements regarding abuse in the home. On May 2, 2014, the JDR court terminated fath er’s parental rights to his six children. 2 He appealed to the circuit court. The ci rcuit court heard evidence on December 10, 2014 and March 3, 2015. Father objected to the admissi on of videotaped testimony from one of his children, but the circuit court ad mitted the tape pursuant to Code § 63.2-1523. Father also objected to some out-of-court statements made by the child. The circu it court excluded the

2 The JDR court also terminated mother’s pare ntal rights. She appealed to the circuit court, and the circuit court denied the Department’s request to te rminate mother’s parental rights pursuant to Code § 16.1-283(B) and (E)(iv).- 3 - child’s statements; however, some of the statem ents were later admitted on redirect after cross-examination of the child’s sexual therapist. On March 5, 2015, the circuit court entered a fi nal order that terminated father’s parental rights to his six children pursuant to C ode § 16.1-283(E)(iv). This appeal followed.
ANALYSIS Where the trial court heard the evidence ore tenus , “its finding is enti tled to great weight and will not be disturbed on appeal unless plainl y wrong or without evidence to support it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citations omitted). When considering termin ation of parental rights, “the paramount consideration of a trial court is the child’s best interest s.” Logan, 13 Va. App. at 128, 409 S.E.2d
at 463. Assignments of error #1, 2, 3, and 4 Father argues that the circuit court erre d by denying his motion to continue and his motion objecting to the admission of evidence pu rsuant to Code §§ 63.2-1522 and -1523. Father further contends the circuit court erred in al lowing the child’s videotaped statements into evidence and the child’s statements to her therapist into evidence. On November 21, 2014, the Department filed a notice pursuant to Code § 63.2-1522 that it intended to offer into evidence “statements of one or more of the . . . children” and that the “substance of the statements regard allegations of sexual abuse by father, Andre Morman, Sr.” On the same date, the Department also file d a notice pursuant to Code § 63.2-1523 that it intended to offer into evidence “a videotaped stat ement of one or more of the . . . children” and that the “substance of the statement regards al legations of sexual abuse and neglect.” The Department further represented th at appellant’s counsel had view ed the videotaped statements.- 4 - On December 5, 2014, father filed a “Motion Objecting to the Admi ssion of Statement(s) and/or Videotaped Statement(s) into Eviden ce pursuant to Virginia Code §§ 63.2-1522 and 1523.” Father argued that the Department failed to provide adequate notice because it did not specify which child’s statement(s) were going to be offered and why the child was not available to testify. Father asked the circuit court to c ontinue the hearing and order the Department to provide “a notice with the proper specificity.” Under Code § 63.2-1522(A), “an out-of-court st atement 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 § 63.2-152 2(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 show n to possess particularized guarantees of trustworthiness and reliabili ty,” 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 a nd the substance of the statement sufficiently in advance of the pr oceedings to provide the adverse party with a reasonable opportuni ty to prepare to meet the statement, including the opportuni ty to subpoena witnesses. Code § 63.2-1522(C). Similarly, Code § 63.2-1523 applies to videot aped 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 statemen t 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 oppo rtunity to prepare to meet the statement, including the opportuni ty to subpoena witnesses. At the hearing on December 10, 2014, the circuit court denied father’s motion for a continuance. It held that the Department gave adequate notice under subsection C of Code- 5 - § 63.2-1523, but did not give adequate notice und er subsection C of Code § 63.2-1522. For the videotaped statement, the circuit court held that the notice was adequate because it stated that it was a videotape statement and that counsel had pr eviously viewed it. However, for the child’s statements, the circuit court held that the notice did not specify which child made the statements and to whom the statements were made, and it did not indicate whether counsel had previously heard the statements. First, father argues that the circuit court erred in denying his moti on for a continuance. The decision to grant a motion for a continuance is within the sound discretion of the circuit cour t and must be considered in view of the circumstances unique to each case. The circuit court’s ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice to the movant. Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). When father first requested a continuance, th e circuit court denied his request. However, once the circuit court ruled that the child’s statements were not admissible under Code § 63.2-1522, the Department requested a continuance a nd father objected to the continuance. As a result, he waived his argument that the ci rcuit court erred in de nying a continuance. Furthermore, a continuance was eventually nece ssary due to time constraints, and the circuit court heard evidence on a second day several months later. Father had the opportunity to question witnesses and present evidence and argu ment. The circuit court did not abuse its discretion by denying father’s initial request for a continuance, and he was not prejudiced at trial. Next, father argues that the circuit court should have treated the videotaped statement and the child’s statements the same and excluded all of them. However, the circuit court did not err in allowing the videotaped statements because the notice was sufficient. Father’s counsel previously had seen the videotap e and was able to prepare for its introduction at trial. Code § 63.2-1523(C). Father’s counsel knew the conten ts of the videotaped statements. It was- 6 - irrelevant that father’s counsel viewed the vide otaped statements during the proceedings in the JDR court because once counsel saw the videotape, the Department complied with the statute. During the Department’s direct examination of the child’s therapist, the circuit court did not allow the Department to ask about the child’s statements made to the therapist because the Department’s notice under Code § 63.2-1522 was in adequate. On cross-examination, mother’s counsel asked the therapist whether she was in fa vor of returning the child ren to mother, and the therapist responded negatively. Counsel followe d up with additional questions regarding the therapist’s opinion. On redirect examination, the Department asked th e therapist whether the therapist’s concerns were based on the child’s statements, and the therapist confirmed that they were. Then, over father’s objections, the circuit court allowed the therapist to testify about the child’s statements, since the door was opened during cross-examination. Assuming without deciding that the circuit court erred in al lowing the child’s statements, the error was harmless. The standard for non- constitutional error is established in Code § 8.01-678, which provides, in pertinent part: When 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 reach ed, no judgment shall be arrested or reversed . . . [f]or any . . . de fect, imperfection, or omission in the record, or for any error committed on the trial. In this case, any error in allo wing the therapist to testify a bout the child’s statements was harmless because the circuit court heard the same evidence through the videotaped statements of the child. Accordingly, the circuit court did not e rr in its rulings regarding the videotaped statements and the child’s st atements to the therapist.- 7 - Assignment of error #5 Father argues that the circuit court erred in concluding that the Department proved by clear and convincing evidence that his parental rights should be term inated. In his opening brief, father reiterates his previous arguments that the circuit court erred in admitting the videotape and the child’s statements. Father also contends th at the videotape shows the child was coerced and that her statements were not trustworthy. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Comm onwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted). In light of all the evidence pres ented, the trial court’s judgment was not plainly wrong or w ithout evidence to support it.
CONCLUSION For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27. Affirmed.