Braulio M. Castillo v. Loudoun County Department of Family Services
68 Va. App. 547
| Va. Ct. App. | 2018Background
- In March 2014 DFS removed four children after their mother, Michelle Castillo, was found dead and appellant Braulio M. Castillo became a person of interest; a protective order from 2013 had already limited his contact with the family.
- Appellant was later convicted by a jury of first-degree murder and related offenses; DFS amended petitions to terminate his parental rights under Va. Code § 16.1-283, including subsection (E)(ii) (murder of the other parent).
- The JDR dispositional and termination appeals were consolidated and tried in circuit court; the court admitted (1) Ms. Castillo’s prior protective-order testimony, (2) certain smartphone notes after finding waiver, and (3) an expert’s testimony that relied in part on children’s out-of-court statements (admitted to show the basis of the expert opinion).
- The circuit court held the record open to receive the final criminal sentencing order (entered after trial), then terminated appellant’s residual parental rights under § 16.1-283(B) and § 16.1-283(E)(ii).
- On appeal, appellant challenged several evidentiary rulings, the combined proceeding/holding-evidence-open decisions, and the sufficiency of evidence for abuse/neglect and termination; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Castillo) | Defendant's Argument (DFS) | Held |
|---|---|---|---|
| Admissibility of Ms. Castillo’s prior protective-order testimony (former testimony) | Testimony was about adult-directed abuse and not substantially the same issue as child abuse/neglect; inadmissible hearsay | Testimony was sworn, declarant unavailable, appellant had opportunity to cross-examine, and issues were substantially similar | Admitted under Va. R. Evid. 2:804(b)(1); court did not abuse discretion |
| Waiver of attorney-client privilege for smartphone notes | Notes were privileged; appellant did not waive privilege | Appellant gave passcode to detective, thereby waiving privilege; notes show protective-order violation | Even if waiver finding was erroneous, admission was harmless because ample other evidence supported violation |
| Expert’s use of children’s out-of-court statements (Va. R. Evid. 2:703) | Expert’s relay of hearsay statements improperly admitted as basis for opinion | Expert testimony may reference underlying statements to show basis of opinion (limited non‑hearsay use) | Admission for the limited purpose of showing basis of opinion was proper; any error was harmless given other evidence of bond and best interests |
| Holding evidence open / combining proceedings / reliance on criminal conviction (§ 16.1-283(E)(ii)) | Combining termination with abuse/neglect appeal and holding case open for criminal sentencing prejudiced appellant; separate proceeding required; conviction not final if appeals pending | Holding evidence open to admit final criminal order was within discretion; § 16.1-283(E)(ii) permits termination based on a final conviction order even if appealed | Court did not abuse discretion in holding record open; termination under § 16.1-283(E)(ii) sustained by clear and convincing evidence (conviction + best interests), making any procedural error harmless |
Key Cases Cited
- Gray v. Graham, 231 Va. 1 (Va. 1986) (former testimony admissible when issues in prior proceeding are substantially the same)
- Fisher v. Commonwealth, 217 Va. 808 (Va. 1977) (former testimony exception applied when trials grow out of same transaction)
- Commonwealth v. Wynn, 277 Va. 92 (Va. 2009) (limitations on using hearsay as direct evidence through expert testimony)
- Cartera v. Commonwealth, 219 Va. 516 (Va. 1978) (hearsay may be admitted to show basis of physician/expert opinion, not for truth)
- Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123 (Va. Ct. App. 1991) (trial court’s broad discretion in child-welfare decisions and deference to ore tenus findings)