ElizabethH.Willis,n/k/a M.E.Harris v. Rickie Willis ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued by teleconference
ELIZABETH HARRIS WILLIS, n/k/a
M. ELIZABETH HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2829-99-2 JUDGE RUDOLPH BUMGARDNER, III
JUNE 27, 2000
RICKIE O. WILLIS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Deanna D. Cook (Bremner, Janus, Cook &
Marcus, on brief), for appellant.
No brief or argument for appellee.
Elizabeth Harris Willis appeals the denial of her motion to
terminate Rickie Odell Willis' visitation with their minor
child. For the following reason, we affirm.
The parties, whose daughter was born January 1, 1994, were
divorced May 28, 1999. Between November 1997 and November 1998,
the father had no contact with the child. Finding "reasonable
suspicion that [the father] may have [sexually abused the
child]," the trial court ordered limited and strictly supervised
visitation.
Beginning November 29, 1998, the father visited at the home
of the child's aunt for two hours three weekends in a row. In
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
March 1999, the court granted supervised visitation for one and
a half hours every other weekend. Visitations were to be
videotaped, supervised, and reviewed within six months.
On June 24, 1999, the mother filed a motion to terminate
the father's visitation, asserting it was not in the child's
best interest. A hearing was held September 3, 1999, and two
weeks later, the trial court appointed a guardian ad litem to
investigate the effect limited visitation was having on the
child. The guardian ad litem reported November 12, 1999 and
recommended that visitation be suspended and the mother find a
female counselor for the child. The court determined that it
was in the child's best interests to maintain contact with the
father and denied the motion to terminate.
The mother contends the trial court abused its discretion
by putting the father's interests ahead of the child's. She
argues the evidence established that it was not in the child's
best interest to continue visitation.
In matters concerning visitation, we review the evidence,
and the propriety of the trial court's decision, with the
child's best interests as the primary, paramount, and
controlling consideration. See Code § 20-124.2; Mullen v.
Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948); Farley v.
Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).
"Absent clear evidence to the contrary . . ., the judgment of a
trial court comes to an appellate court with a presumption that
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the law was correctly applied to the facts," Bottoms v. Bottoms,
249 Va. 410, 414, 457 S.E.2d 102, 105 (1995) (citation omitted),
and it will be reversed only for an abuse of discretion. See
Farley, 9 Va. App. at 328, 387 S.E.2d at 795.
It is desirable for a child "to continue to receive the
non-custodial parent's affection and nurture through the
mechanism of visitation." M.E.D. v. J.P.M., 3 Va. App. 391,
397, 350 S.E.2d 215, 219 (1986) (citing Eichelberger v.
Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)).
While visitation by a parent who has sexually abused a child
"may not be in the child's best interest, . . . a court is not
foreclosed from ordering some form of controlled visitation in
order to rebuild a normal relationship if that is determined to
be in the best interest of the child." Id. (citations omitted).
The evidence established that prior to the fall of 1998,
the child was healthy, calm, loving, and gentle. However, once
she started visiting with her father, her conduct and physical
reaction to stress deteriorated. She became bossy to friends,
angry, irritable, and withdrawn. She alternated between clingy
and aggressive behavior with her mother and was both aggressive
and physical with her father. The child's physical
manifestations of stress included more prevalent constipation,
regression in toilet training uncommon for a five-year old,
headaches, stomachaches, vomiting, and nightmares. Her teacher
observed these new symptoms and behaviors and considered them
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severe because they affected the child's ability to learn and
her self-esteem.
Dr. George Thomas Rowe, the child's pediatrician,
recognized that the visitation schedule was "not a great deal of
time" for the child to spend with her father. However, because
the child associated those visits with anguish, he opined she
would be better off if they ceased, because the benefits of
visitation did not outweigh her reaction to them.
The child's therapist, Sanford C. Cassel, Ph.D.,
acknowledged that contact with the father might have some value
to the child's therapy. Despite the child's varied reactions to
the father, which ranged from anger to happiness, and concern
for her safety, she was excited to see him. Dr. Cassel was
concerned about some "sexualized play" between the father and
the child and believed her "fairly intense and disruptive
behavioral reaction" to the visits was consistent with that of a
child who had been sexually traumatized. He opined that the
visits should be terminated because re-traumatization would
affect the child's health, and he did not think she was
benefiting from them.
Paula Moody, the aunt who supervised the visits, observed
the child act aggressively by hitting both herself and her
father with toys, banging the toys on the ground, and calling
her father names. Moody also believed that some of the play
between them was sexual in nature: the child asked if the
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father wanted to see her Barbie doll naked; referred to his
penis as a snake; made moaning sounds; and claimed to be
"kissing" a balloon while sucking it. This behavior was not
normal behavior for the child.
The father started seeing a therapist, Dr. David A. Israel,
in October of 1998 to improve his interaction with the child.
Dr. Israel opined that even under normal circumstances,
re-introducing a parent into a child's life is traumatic and
most children become symptomatic. He believed the supervised
and videotaped visits were "highly unusual," "abnormal," and
"not a typical visitation arrangement." Thus, he believed the
child's behavioral reactions to the visits were normal. Dr.
Israel recommended the trial court lengthen the videotaped,
supervised visitation, include the father's family in those
visits, and that the father remain in counseling.
The guardian ad litem observed that although some of the
child's interactions with the father were aggressive or
seductive, she did not try to stay away from him, and he
responded to her with positive parenting techniques. While the
guardian advocated that visitation be suspended, a primary focus
of her recommendation was that a female counselor, with whom the
child would be more comfortable, be chosen for her. This
recommendation stemmed from the child's April 1999 comment that
she was "not going to talk to any man" about what happened to
her.
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Clearly, the child was reacting to the visits with the
father. It is not clear, however, that her negative reaction
was the result of any sexual abuse. On these facts, it was
reasonable to conclude that the child was responding to the
reaction of the adults around her, as well as to the unusual
manner in which she visited with her father. There was evidence
in the record that the child would benefit from having contact
with the father while she was in counseling. The history of
sexual abuse was insufficient to deny all contact between parent
and child. As a result, the trial court exercised its
discretion in crafting the best solution to the conundrum.
The trial court considered all the evidence and determined
that it was in the child's best interest to continue the
strictly limited and supervised visitation. This would still
permit the mother to follow the guardian ad litem's
recommendation of securing a new, female counselor. The court
appropriately considered the long-term goal of maintaining a
relationship between the child and the non-custodial parent. It
reasonably determined that cutting off all contact would be more
detrimental to the child than continuing supervised visitation
with the father because that relationship would ultimately need
to be resumed.
We conclude the trial court properly exercised its
discretion in denying the motion to terminate visitation. The
court protected the child's right to have the nurture and
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acceptance of the father, while protecting her from any
possibility of abuse. Accordingly, we affirm.
Affirmed.
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