COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien and Russell Argued at Lexington, Virginia

LAUREL ANSELL MEMORANDUM OPINION  BY v. Record No . 0765-18-3 JUDGE W ILLIAM G. PETTY JANUARY 15, 2019 HARRISONBURG/ROCKINGHAM SOCIAL SERVI CES DISTRICT

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Thomas J. Wilson, IV, Judge Shelly R. James (John Elledge & Associates, on briefs), for appellant. (Kim Van Horn Gutterman, Assistan t County Attorney, on brief), for appellee. Appellee s ubmitting on brief. W. Andrew Harding (Convy & Hardi ng, PLC, on brief), Guardian ad litemfor the infant children.
In this appeal, Laurel Ansell challenges the termination of he r residual parental rights pursuant to Code § 16.1-283(C)(2). She argues that the circuit court “erred in admitting records from the Community Services Board as business records and, ther efore, admissible hearsay.” She also argues the circuit co urt erred in finding “clear and c onvincing evidence that proved [Ansell] had not remedied th[e] conditions that led to the chil dren being placed in foster care and that proved termination was in t he children’s best interest.”
B ACKGROUND Because the parties are fully c onversant with the record in thi s case and this memorandum opinion carries no preced ential value, we recite onl y those facts and incidents of

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - the proceedings as are necessar y to the parties’ understanding of the disposition of this appeal. We view the facts in the light most favorable to the prevailing party below, granting to it the benefit of any reasonable inferen ces; we review issues of law de novo . Hall v. Commonwealth, 55 Va. App. 451, 453 (2009). On March 23, 2017, Ansell was ta ken into custody pursuant to a n emergency commitment order and was admitted to a hospital for psychologic al evaluation. As part of the admission process, the Harrisonburg -Rockingham Community Servic es Board (the Board) completed a pre-admission screenin g report that included histor ical information and third-party statements from various sources. Ansell remained hospitalized until March 29, 2017, at which time a commitment hearing was he ld in Rockingham County General District Court. The district court refused to grant the Boar d’s requested involuntary inpati ent commitment and ordered that Ansell be released with a mandato ry outpatient treatment (MOT) order. The MOT order, issued for the maximum period of ninet y days, required Ansell to engag e in medication management services as needed, attend Support To Access Recovery Services (STARS) meetings as scheduled, and follow recommenda tions of Board providers. The STARS services focus on dealing with drug addiction. The c ourt renewed the MOT order w ithout modification through February 2018 when the trial for termination of Ansell’s parent al rights was held. Because there were no other adults present in the home on Marc h 23, 2017, when Ansell was taken involuntarily to the hos pital, the Harrisonburg/Rocki ngham Social Services District (HRSSD) placed Ansell’s two young da ughters in foster care. HR SSD requested a preliminary removal order and a finding of abuse and neglect, which the Har risonburg Rockingham Juvenile and Domestic Relations District Court granted. The district co urt found the children were “without parental care or guardia nship caused by the unreasonab le absence or the mental or physical incapacity of the ch ild[ren]’s parent . . . [based on the fact Ansell] was psychiatrically- 3 - hospitalized at [the hospita l] from 3/23/2017 to 3/29/2017.” I n January 2018, HRSSD petitioned to terminate Ansell’s residual parental rights pursuant to Code § 16.1-283(C)(2) on the basis that Ansell had failed to substantially remedy the conditions that c aused the children to be placed in foster care. The trial court te rminated Ansell’s residual pare ntal rights, and this appeal followed.
A

NALYSIS A. Admission of Hearsay Evidence Ansell argues that the trial court erred in admitting medical records created by the Board, which contained hearsay and did not fall within a recognized he arsay exception. HRSSD called the custodian of t he medical records to testify. The custodian agreed that she was the custodian of the rec ords, that the records generall y are made close in time to the interaction with the patient, and that there is limited access to the records. 1 On cross-examination, the custodian t estified that the records at issue were “the records we provided,” but “there could be” ot her records. The custodian c onfirmed that the records reflected screening only and did not reflectany treatment. When asked i f the documents “include[d] information that whoever typed them up would not necessarily ha ve known,” the custodian testified, “That’s not part of m y, my job.” She further testif ied that she did not know the content of the records that were provi ded. She knew only the title of each document. The following was then asked. [Counsel:] And so you don’t know if the people who put this information into the recor d, had any firsthand knowledge of the information that they put in the record? [Custodian:] Again that’ s not part of my, my job. [Counsel:] Okay. So, so the answer is you cannot say that? [Custodian:] Correct.

1 Of the custodian’s ten respons es on direct examination, the lo ngest was the four-word name of her employer. Seven of t he responses were either “yes” or “correct” in answering HRSSD’s questions.- 4 - HRSSD did not ask any additiona l questions on re-direct and di d not offer any other witness to lay a foundation for the records. Ansell objected to admission of t he records on the basis that the “records contain information that is not within the knowledge of the person putt ing the information into the record.” 2 The trial court ruled, I find that the evidence establish es that she is the custodian of these records. She’s laid the foundati on to indicate t hat these are accurate copies of the records that are in her custody. And th e record also reflects that anythi ng that is contained in those f iles, [Ansell’s counsel and Ansell] have had access to, giving them t he ability to cross examine on t he records or point out any inconsistencies. Overrule d. They’re in evidence. Ansell argues the trial court erred in admitting records from the Board as business records, and, therefore, as adm issible hearsay, because the cus todian of the records did not testify they were made contemporaneously by someone with knowledge. We agree. “The common law definition of hearsay evidence is ‘testimony i n court . . . of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus rest ing for its value upon the credi bility of the out-of-c ourt asserter.’” Campos v. Commonwealth, 67 V a. App. 690, 704 (2017) (quoting Co mmonwealth v. Swann, 290 Va. 194, 197 (2015)). “A hearsay obj ection lies against th e admission of written statements which were made out of court and are offered for the truth of w hat they say.” Id. at 705 (quoting Arnold v. Wallace, 283 Va. 709, 713 (2012 )). “[H]earsay eviden ce is inadmissible unless it falls within one of the recognized excep tions to the hearsay rule, an d . . . the party attempting to

2 Ansell also noted that the reco rds were not treatment records nor related to any physical injury, so they did not meet the medical records exception. HR SSD did not argue that the records were medical records, s o we consider here only the busi ness records ex ception to the hearsay rule.- 5 - introduce a hearsay statement ha s the burden of showing the sta tement falls within one of the exceptions.” Id. (alterations in original) (quoting Godoy v. C ommonwealth, 62 Va. App. 113, 119 (2013)). One exception is for records of a regularly c onducted activity , often called the business records exception. Under this e xception, a record containing h earsay is nevertheless admissible if the following elements are satisfied: (A) the record was made at or ne ar the time of the acts, event s, calculations, or conditions by--or from information transmitted by--someone with knowledge; (B) the record was made and kept in the course of a regularly conducted activity of a busine ss, organizati on, occupation, or calling, whether or not for profit; (C) making and keeping the recor d was a regular practice of th at activity; (D) all these conditions are shown by the testimony of the custodian or another qualified w itness, or by a cer tification t hat complies with Rule 2:902(6) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation i ndicate a lack of trustworthiness

. Va. R. Evid. 2:803(6). Here, it is undisputed that re cords HRSSD sought to admit cons tituted hearsay. Moreover, the records were offere d at trial for their truth; HR SSD sought to establish Ansell’s mental health condition at the time the children were removed. Accordingly, in order for the pre-admission screening report t o be admissible under the busin ess records exception, “the custodian or another qualified w itness” had to te stify that “al l the[] conditions” of Rule 2:803(6) were met. Va. R. Evid. 2:803(6)(D) . Here, the custodian testi fied that she was not able to state that the record was made “by—or from information transmitted by —someone with knowledge”- 6 - as required by Rule 2:803(6)(A) . HRSSD therefore failed to mee t the requirements of business records exception to hearsay. 3 Nevertheless, HRSSD argues th at the presence of an employee’s name on the documents along with the notation “face-to-face” contact is sufficient to meet the requirement that the documents be made by someone with actual knowledge of the event . HRSSD suggests that this Court’s recent decision in M elick v. Commonwealth, 69 Va. App. 122 (2018), supports its position. In Melick, a pawn shop owne r testified that records were created when transactions occurred. Id. at 139. “The tes timony regarding the store’s pr ocedures made clear that, regardless of which of the [empl oyees] uploaded the collected i nformation to [the computer], the information came from the cle rk who conducted the transaction.” Id. “By definition, the person who conducts a transaction has know ledge of that transaction.” In contrast, the custodian he re did not testify regarding the Board’s procedures. She did not testify that the name on the document was the employee who conducted the interview or the person who entered the informa tion. Thus, unlike in Melick, th e witness here di d not testify that the person who “uploaded the colle cted information to [the comp uter]” was someone with knowledge of the collected inf ormation. Id. The rule of evide nce is clear that the testimony of the custodian or other witness mu st establish the required elem ents; the proponent cannot rely on the document to bolster itself . Here, the custodian did not te stify as to the knowledge of the person creating the document, and H RSSD did not call any other witness for this purpose. The circuit court therefore erred in admitting the records.

3 We note that the trial court’s rationale that Ansell and her a ttorney had access to the records plays no role in determi ning whether the records were a dmissible under this hearsay exception.- 7 - B. Harmless Error Analysis “Code § 8.01-678 requires harmless error review before any jud gment is reversed.” Hillman v. Commonwealth, 68 Va. App. 585, 601 (2018). “We ‘wil l not reverse a trial court for evidentiary errors that were harmless to the ultimate result.’” Id. (quoting Shifflett v. Commonwealth, 289 Va. 10, 12 (2015)). Here, our harmless error analys is must focus on whether, witho ut the erroneously admitted evidence, the trial court would have come to the same result. The trial court was considering whether Ansell “w ithout good cause, [had] been unwi lling or unable . . . to remedy substantially the condi tions which led to or required continuat ion of the child’s foster care placement.” See Code § 16.1-283(C)(2). To determine if Ansell had remedied substantially these conditions, the trial cour t was required to look at evide nce created after the children were placed in foster care. The erroneously admitted evidence was a pre-admission screening purportedly created on the day the children were placed in fost er care and Ansell was involuntarily admitted to the hospital. Although the pre-admis sion screening report contributed details regarding Ansell’s c ondition at the time the children w ere removed, it was of minimal value in determining whether Ans ell had substantially remedied those conditions. Ansell did not object to admission of the medial records from her hospitalizat ion or to the other places in the record that referenced informa tion in the pre-admission screeni ng. We therefore conclude that the erroneous admission of the pr e-admission screening was harm less. C. Sufficiency Ansell argues that the evidence was not sufficient to terminat e her residual parental rights because HRSSD did not show by clear and convincing evidence tha t Ansell had not remedied substantially the conditions tha t led to the children being pla ced in foster care and that proved termination was in the ch ildren’s best interests.- 8 - “When reviewing a decision to ter minate parental rights, we pr esume the circuit court ‘thoroughly weighed all the evidenc e, considered the statutory requirements, and made its determination based on the child’s best interests.’” Toms v. H anover Dept. of Soc. Servs., 46 Va. App. 257, 265-66 (2005) (quoting F ields v. Dinwiddie Cty. D ep’t of Soc. Servs., 46 Va. App. 1, 7 (2005)). “The trial co urt’s judgment, ‘when base d on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or withoutevidence to support it.’” Id. at
266. The trial court terminated Anse ll’s residual parental rights p ursuant to Code § 16.1-283(C)(2). This code sec tion provides that the residual parental rights of aparent . . . may be terminated if the court finds, based upon clear and c onvincing evidence, that it is in the best interests of the ch ild and that . . . [t]he parent or parents, without good cause, have been unw illing or unable within a reasonable period of time not t o exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or requi red continuationof the child’s foster care placement, notwithstanding the reasonable and appropriate efforts of social, m edical, mental health or other rehabilitative agencies to such end. Code § 16.1-283(C)(2). Accordi ngly, HRSSD had to show both tha t Ansell had been unable or unwilling to remedy substantially the conditions that required continued foster care placement and that termination of Ansell’s rights was in t he best interes ts of her children. 1. Remediation of the Conditions Ansell acknowledges that the conditions she needed to remedy w ere her illegal drug use and her mental illness, both of which are well documented in th e record. The trial court agreed, but found she had been unwilling or unable to do so. The trial court explained, Clearly one of the things tha t Ms. Ansell needed to do in order to attempt to regain the c ustody of her chil dren was to h ave both substance abuse and mental health evaluations and to compl y with the recommendations of the providers, and on the four corn ers of the evidence I do find that s he has been fighting medication- 9 - management, has insisted on usi ng STARS instead of [Board] mental health counseling as recomm ended as it’s been all the wa y through this situation. It’s going to be her way or no way at all . . . . I note also that although the mother was going to the STARS program, she was only partiall y compliant with the STARS program and the mother doesn’t s eem to make the connection between how she acts and how it a ffects the children. The reco rd is filled with instan ces of her blaming others instead of her o wn mental health and substance abus e issues, and I note the consta nt failure to keep appointments [with Dr.] Grayson is illustrative of this. The trial court’s findings w ere supported by the record. Ansel l refused many drug screenings, from which the trial court coul d infer continued drug usage. A nsell refused many services which could have helped her identify and m anage the causes and trigge rs of her mental illness. Dr. Grayson, a clinical psychologi st who had evaluated Ansell, noted that many individuals with a similar diagnosis as Ansell “r equire consistent attention to manage symptoms . . . and [such a person] needs to actively work i ndefinitely with her providers at [the Board] to manage the symptoms. If her historical diagnosis is accurate, one would e xpect periods of adequate functioning interspersed with e pisodes of illogical thinking an d poor emotional control.” Here, Ansell was unwilling or unable to cooperate with providers like Dr. Grayson, as demonstrated by Ansell’s compromising several t esting sessions, cancelling nume rous appointments, and being guarded rather than truthful w ith her answers. Ansell’s five-m onth delay in completing the evaluation with Dr. Grayson and her refusal to take advantage o f other counseling services provided by the Board prevented Ans ell from substantially manag ing her mental illness. Ansell’s unwillingness or inability to build a network of suppo rt for potential episodes of illogical thinking and poor emotional control, as Dr. Grayson c autioned, leave the children in a potentially vulnerable position. Ansell argues she “addresse d” her mental health and drug abuse issues. Code § 16.1-283(C)(2), however, requires more than that. It require s that Ansell “remedy substantially- 10 - the conditions.” The trial court expressly found, based on its observations of Ansell while she testified, that the mental health conditions that existed at th e time the children were placed in foster care still existed at the time of trial. The trial cour t expressly found that based on the record, Ansell had not substant ially remedied her need to succe ssfully manage her mental illness by making use of available mental health services. 2. Best interests of the child After reviewing the reports from the CASA representative, repo rts from the guardian ad
litem , and the rest of the record, th e trial court found that termin ation of Ansell’s parental rights was in the best interests of t he children. The trial court not ed that at the time of removal at least one of the children had developmen tal delays and dental issues which had been tended to in foster care. The trial cour t found the children were doing wel l in foster care. Movement toward permanency and safety was in the children’s best interests and that meant termination of parental rights to facilit ate adoption. Finding sufficient evidence in t he record to support the trial court’s findings, we will not disturb the ruling. See Toms, 46 Va. App. at 265.
C ONCLUSION The trial erred in admitting the hearsay evidence, but the err or was harmless. The evidence was sufficient to support the trial court’s finding th at Ansell had not remedied substantially the conditions tha t caused the children to be tak en into foster care. We therefore affirm. Affirmed.