COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

MONICA M. STARRS 

v. Record No. 1401-96-4 

 

JAMES E. STARRS 

AND 

BARBARA A. STARRS MEMORANDUM OPINION*

 BY JUDGE WILLIAM H. HODGES 

JAMES E. STARRS APRIL 8, 1997 

AND 

BARBARA A. STARRS 

v. Record No. 2354-96-4 

MONICA M. STARRS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 Mark Bodner, guardian ad litem, for Monica M. 

Starrs. 

 John J. Grimaldi, II (Rosenthal, Rich, 

Grimaldi & Guggenheim, on brief) for James E. 

Starrs and Barbara A. Starrs. 

 James E. Starrs ("James") and Barbara A. Starrs ("Barbara") 

filed a petition in the trial court seeking to adopt their 

grandson, Gabriel William Starrs ("Willie"), the biological son 

of James' and Barbara's daughter, Monica M. Starrs ("Monica"). 

The trial judge granted the petition, and Monica appeals this 

decision. In her appeal, Monica contends that the trial judge 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 -2- 

erred in (1) finding that the evidence was clear and convincing 

that a continued or expanded relationship with Monica would be 

detrimental to Willie; (2) finding that the evidence was clear 

and convincing that Monica unreasonably withheld her consent to 

the adoption contrary to the best interests of Willie; (3) 

admitting evidence that Monica's parental rights to her first 

child were terminated by the court; and (4) admitting hearsay 

testimony that Willie gestured to James his wish not to converse 

with Monica by telephone. 

 In a separate appeal, James and Barbara contend that the 

trial judge erred in awarding fees to Monica's guardian ad litem

more than twenty-one days after the order of adoption became 

final. 

 We affirm the trial judge's decisions to grant the adoption 

and to award the guardian ad litem fees. 

 I. 

 Willie was ten years old at the time of the hearing and has 

lived with James and Barbara since shortly after his birth. 

James and Barbara have had legal custody of Willie since 

approximately the time that he started living with them. Monica 

was a patient at Western State Hospital when Willie was born. 

She has been diagnosed with chronic, undifferentiated 

schizophrenia, a long term illness characterized by 

hallucinations, delusions, looseness of associations, and 

thoughts without coherence. She has been hospitalized for 
 -3- 

intermittent periods of time for about twenty years. 

 Peter Sterrett, a licensed clinical social worker and the 

Assistant Director of the Social Center for Psychiatric 

Rehabilitation, testified that he has seen no cure for Monica's 

condition and the prognosis for her recovery is "very poor" 

because she has not consistently adhered to treatment. She also 

does not consume her medications as prescribed, which, if taken 

as prescribed, would decrease her episodes of catatonic agitation 

and paranoia. Monica also suffers from tardive dyskinesia as a 

result of taking anti-psychotic medication. This condition is 

characterized by symptoms of tremors and loss of muscular 

control. 

 Jackie Brown, a licensed clinical social worker, testified 

that Monica is unable to establish relationships. Brown also 

said that Monica is able to take care of her own needs, but not 

the needs of another. 

 Judith D. Neary, a licensed clinical social worker, 

performed a home study for an adoption agency licensed by the 

Commonwealth of Virginia. She approved James and Barbara as the 

adoptive parents of Willie. She found their home to be loving 

and giving, and she found that Willie was "quite comfortable 

there." 

 Monica has visited Willie at the Starrs' home over the 

years, mostly on weekends. She has not been involved in Willie's 

school activities, but has attended some Boy Scout events. 
 -4- 

 James teaches law at George Washington University Law School 

and has taught there for over thirty-two years. According to 

James, Willie is gifted and talented, a voracious reader, and is 

"keen on math." Willie is involved in athletic activities and 

plays the accordion. James said that Monica would still be 

welcome in their home if James and Barbara adopted Willie. 

 James cited one incident in which Monica called the police 

to the Starrs' house and told the police that the Starrs abused 

Willie. James said that this event "traumatized" Willie. James 

also said that on a number of occasions when Monica has called 

the Starrs' home and asked to speak to Willie, Willie has 

gestured that he did not want to speak to Monica. 

 Monica testified that she refused to consent to the adoption 

because of her love for Willie, the effect the adoption would 

have on her visitation, and her desire to provide religious and 

educational guidance for Willie. 

 The trial judge ruled that Monica's consent was unreasonably 

withheld. He also found by clear and convincing evidence that 

"the continuing relationship of the mother-child" was detrimental 

to Willie. He stated that James and Barbara have been Willie's 

"de facto parents since birth" and that Willie has known no home 

other than that of James and Barbara. The trial judge found that 

Monica was not responsible for her actions and was "severely 

mentally ill." He stated that she exhibited "bizarre actions and 

appearance," and that this behavior had "to upset Willie to some 
 -5- 

extent." The trial judge further stated that Monica could not be 

"any sort of mother for Willie" and that she did not "even ha[ve] 

a concept of what being a mother is or what motherhood is." 

 II. 

 Monica argues that the trial judge erred in finding by clear 

and convincing evidence that (1) a continued relationship with 

Monica would be detrimental to Willie, and (2) Monica 

unreasonably withheld her consent to the adoption contrary to the 

best interests of Willie. "The trial [judge]'s decision, when 

based upon an ore tenus hearing, is entitled to great weight and 

will not be disturbed on appeal unless plainly wrong or without 

evidence to support it." Frye v. Spotte, 4 Va. App. 530, 537, 

359 S.E.2d 315, 319-20 (1987). 

 Assuming, without deciding, that the parental consent 

statutes effective July, 1995 apply to this case, Code 

§§ 63.1-225(F) and 63.1-225.1 provide that a trial judge shall 

consider whether the failure to grant the petition for adoption 

would be detrimental to the child in determining whether the 

valid consent of a person, whose consent is required, is withheld 

contrary to the best interests of the child. Code § 63.1-225.1 

further provides: 

 In determining whether the failure to 

grant the petition would be detrimental to 

the child, the court shall consider all 

relevant factors, including the birth 

parent(s)' efforts to obtain or maintain 

legal and physical custody of the child, 

whether the birth parent(s)' efforts to 

assert parental rights were thwarted by other 

people, the birth parent(s)' ability to care 
 -6- 

for the child, the age of the child, the 

quality of any previous relationship between 

the birth parent(s) and the child and between 

the birth parent(s) and any other minor 

children, the duration and suitability of the 

child's present custodial environment and the 

effect of a change of physical custody on the 

child. 

 Addressing Monica's ability to care for Willie, two licensed 

clinical social workers testified that Monica suffered from 

chronic, undifferentiated schizophrenia, including episodes of 

hallucinations and delusional thoughts. Monica does not take her 

medication as prescribed and the prognosis for her recovery is 

"very poor." The evidence showed that Monica lacks the ability 

to establish relationships, would be unable to take care of the 

needs of another person, and that Willie had been "traumatized" 

by an episode incited by Monica. 

 Monica testified that she did not want physical custody of 

Willie because she lives in a one bedroom apartment, and she 

expressed concern for her financial ability to care for Willie. 

Her relationship with Willie consisted of weekend visits at the 

home of James and Barbara. Monica has not been involved in 

Willie's educational pursuits. Further, Monica's parental rights 

to her first born child were terminated by court order. 

 James and Barbara are financially able to provide for 

Willie. James has a longstanding faculty position at a major 

university. A licensed clinical social worker recommended James 

and Barbara as adoptive parents, finding that they had a loving 

and giving home and that Willie was comfortable there. Willie 
 -7- 

has lived with James and Barbara since shortly after his birth 

and has known no other home. The evidence established that 

Willie has thrived in this environment, participating in sports, 

Boy Scouts, and music lessons, in addition to performing well 

academically. 

 The clear and cogent facts of this case support the trial 

judge's finding that a continuation of the relationship between 

Monica and Willie would be detrimental to Willie's welfare and 

that Monica unreasonably withheld her consent to the adoption 

contrary to the best interests of Willie. We are unable to say 

that the trial judge's decision to permit the adoption over 

Monica's objection was plainly wrong or without evidence to 

support it. Code § 8.01-680. 

 III. 

 Monica contends that the trial judge erred in admitting 

evidence that her parental rights to her first born child were 

terminated by court order. As stated above, a factor for the 

trial judge to consider when determining whether parental consent 

is withheld contrary to the best interest of the child is "the 

quality of any previous relationship . . . between the birth 

parent(s) and any other minor children." Code § 63.1-225.1. 

Therefore, the evidence related to this factor and tended to 

establish a proposition for which it was offered--that Monica's 

parental rights to another child had been terminated. Thus, the 

evidence was relevant and material to the proceeding. See 
 -8- 

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 

441 (1987). Accordingly, the trial judge did not err in 

admitting the evidence. 
 -9- 

 IV. 

 Monica contends that the trial judge erred in admitting 

hearsay testimony that Willie gestured to James that he did not 

wish to speak to Monica on the telephone. 

 Assuming, arguendo, that the evidence was hearsay, "[o]ut of 

court statements offered to show the state of mind of the 

declarant are admissible in Virginia when relevant and material." 

 Johnson v. Commonwealth, 2 Va. App. 598, 602, 347 S.E.2d 163, 

165 (1986). Willie's gesture that he did not wish to speak to 

his mother on the telephone related to a matter properly at 

issue--the quality of the relationship between Monica and Willie. 

 This evidence also tended to establish the proposition for which 

it was offered--that their relationship was somewhat estranged. 

 Therefore, because the evidence was material and relevant, the 

trial judge did not err in admitting the evidence. See 

Evans-Smith, 5 Va. App at 196, 361 S.E.2d at 441. 

 V. 

 James and Barbara contend that the trial judge erred in 

awarding the guardian ad litem fees more than twenty-one days 

after the order of adoption became final. 

 Code § 8.01-428(B) provides: 

 Clerical mistakes in all judgments or other 

parts of the record and errors therein 

arising from oversight or from an inadvertent 

omission may be corrected by the court at any 

time on its own initiative or upon the motion 

of any party and after such notice, as the 

court may order. 
 -10- 

 At the conclusion of the May 9, 1996 hearing, the trial 

judge agreed to the award of the guardian ad litem fees by 

separate order. At that time, counsel for James and Barbara 

indicated their expectation that they would pay these fees and 

that the law provided for such payment. By oversight or 

inadvertent omission, the court did not enter the order awarding 

the fees within twenty-one days of the entry of the order of 

final adoption. However, pursuant to Code § 8.01-428(B), the 

trial judge had the authority to correct this oversight or 

omission. Therefore, the trial judge did not err in entering the 

August 23, 1996 order awarding the guardian ad litem fees. 

 For the above-stated reasons, we affirm the judgments of the 

trial judge. 

 Affirmed.