Anonymous C v. Anonymous B ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Powell
Argued at Richmond, Virginia
ANONYMOUS C
MEMORANDUM OPINION * BY
v. Record No. 2232-09-2 JUDGE CLEO E. POWELL
JANUARY 11, 2011
ANONYMOUS B
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Gregory F. Jacob (Winston & Strawn LLP, on briefs), for
appellant.
Thomas M. Wolf (LeClairRyan, A Professional Corporation, on
brief), for appellee.
C. James Summers (Summers & Anderson, on brief), Guardian ad
litem for the infant child.
Anonymous C (“mother”) and Anonymous B (“father”), the parents of a minor child,
Anonymous A (“the child”), appeal the rulings of the Albemarle County Circuit Court related to its
decision to dissolve and dismiss the preliminary protective order implemented following a finding
by the Albemarle County Juvenile and Domestic Relations District Court (“J&DR court”) that the
child had been abused and neglected. This Court previously remanded this case to the trial court “to
hear evidence and make findings on the issue of which parent or parents committed the abuse and
what type of abuse was involved in order to allow it to enter a protective order containing terms
designed to meet the best interests of the child while taking into consideration the rights of her
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
parents, as well.” Anonymous B v. Anonymous C, 51 Va. App. 657, 678, 660 S.E.2d 307, 317
(2008).
On appeal, mother contends that the trial court erred in (1) denying her motion for nonsuit;
(2) excluding the child’s disclosures of sexual abuse; (3) refusing to allow one of her experts to
testify about a medical test; (4) allowing one of father’s witnesses to testify on issues beyond the
scope of her expertise; (5) admitting the substance of prior administrative proceedings into
evidence; (6) limiting her expert testimony as cumulative; (7) refusing to allow her to introduce
out-of-court statements for the purpose of showing that her actions were reasonable; (8) refusing to
allow her to introduce numerous exhibits into evidence as a sanction for discovery violations;
(9) overruling her objections to father’s argumentative opening statement; and (10) failing to
conduct a “relative financial ability” analysis before requiring her to pay fees to the guardian ad
litem. Father cross-appeals, arguing the trial court erred by holding that the evidence was
insufficient to find mother abused the child and by excluding evidence of mother’s coaching of
the child. Finding that the trial court erred in several respects, we affirm in part, reverse in part,
and remand for further proceedings consistent with this opinion.
ANALYSIS1
I. Mother’s Motion to Nonsuit
Mother argues that the trial court erred in denying her motion to nonsuit, as she had an
absolute right to a first nonsuit under Code § 8.01-380. Mother contends that the trial court had
no choice but to grant her motion to nonsuit because the case had not been submitted to the trial
court for consideration, no previous motion for nonsuit had been filed, no motion to strike had
been sustained, and no adverse party had filed a counterclaim.
1
As the parties are familiar with the record below, we cite only those facts necessary to the
disposition of the appeal.
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Father argues that mother had no standing to unilaterally nonsuit the case, as she was
subject to the preliminary protective order at issue in this case. In the alternative, father contends
that any error on the part of the trial court was harmless, as the trial court had inherent
jurisdiction to dispose of the protective order. Meanwhile, the guardian ad litem argues that
whenever a petition alleging abuse has been filed, the plain language of Code § 16.1-253(F)
requires the trial court to conduct a hearing to determine whether the allegations set forth in the
petition have been proven. The guardian ad litem contends that Code § 8.01-380 is inapplicable
to actions filed under Code § 16.1-253. As we hold that allowing a party subject to a preliminary
protective order to nonsuit the case would subvert the purposes of Code § 16.1-253, we affirm the
decision of the trial court.
The unique posture of this case is important in understanding this Court’s ultimate
determination on the nonsuit issue. On February 9, 2005, Albemarle County Department of Social
Services (“ACDSS”) filed a petition pursuant to Code § 16.1-253 alleging father had sexually
abused the child. After hearing evidence on the matter, the J&DR court concluded the child had
been abused but that it was unable to identify the perpetrator of the abuse. 2 As a result, the J&DR
court entered a preliminary protective order naming both parents as persons subject to the order.
On March 15, 2005, the J&DR court held an adjudicatory hearing and again found that the
child was abused and named both parents as subject to the preliminary protective order. On April
29, 2005, following a dispositional hearing, the J&DR court issued a protective order naming both
parents. The J&DR court issued two more protective orders on November 1, 2005, and May 3,
2006, each naming both parents as subject to the order.
2
The J&DR court found that either father sexually abused the child or mother
emotionally abused the child by coaching her to make a false report about father.
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Following the issuance of the May 3, 2006 protective order, father noted a de novo appeal of
the dispositional hearing.3 While his appeal was pending, ACDSS reversed its administrative
finding that father had sexually abused the child. As a result, father moved the trial court to dissolve
the protective order. In response, mother filed a cross-claim against father, noting that “[t]he
administrative reversal does affect [ACDSS]’s ability to act effectively as Plaintiff in this civil
action.” In her cross-claim, mother requested the trial court construe the March 15, 2005
adjudicatory order to provide that father sexually abused the child and enter such orders as
necessary to protect the child from additional abuse, or, in the alternative, find that father abused the
child and enter such orders as necessary to protect the child from additional abuse. In his answer to
mother’s cross-claim, father moved the trial court to find that mother abused the child and to enter
such orders as necessary to protect the child from additional abuse.
At trial, the court ruled that it was bound by the J&DR court’s findings of fact as contained
in the J&DR court’s adjudicatory order and proceeded to hold a dispositional hearing based on the
J&DR court’s adjudicatory findings. In the subsequent appeal to this Court, we held the trial court
erred in making this ruling and remanded the case to the trial court with instructions that the trial
court hold a de novo adjudicatory hearing. Anonymous B, 51 Va. App. at 677, 660 S.E.2d at 316.
As a result, the case before the trial court was father’s de novo appeal of the J&DR court’s
adjudicatory finding that the child had been abused by either mother or father, both of whom were
subject to the resulting protective order. ACDSS was the petitioner, and, as mother and father were
each subject to the resulting protective order, they were both respondents.
Father subsequently moved to dismiss ACDSS from the case and strike its petition. ACDSS
offered no objection to father’s motion, as long as the trial court found the ruling to be in the best
3
This Court subsequently determined that an appeal of the dispositional hearing
necessarily includes an appeal of the corresponding adjudicatory hearing. Anonymous B, 51
Va. App. at 674-75, 660 S.E.2d at 315.
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interests of the child. On March 3, 2009, the trial court granted father’s motion, dismissing ACDSS
as a party and dismissing its petition. At the same time, the trial court also determined that mother’s
cross-claim covered the allegations made in ACDSS’s petition and that the same remedies
necessary to protect the child from additional abuse were still available to the court. As a result, the
trial court effectively substituted mother for ACDSS as the advocate of the protective order. It is
important to note, however, that nothing in the trial court’s order indicated that mother was no
longer subject to the protective order. Indeed, in its order dismissing ACDSS, the trial court
specifically stated “[t]hat the Child Protective Order previously entered by this Court shall remain
in full force and effect pending the full hearing scheduled for this matter.” (Emphasis added). As a
result, mother was now in the position of advocating a protective order to which she was also
subject as a potential abuser.
Against this backdrop, we examine Code § 8.01-380(A), which provides in relevant part:
A party shall not be allowed to suffer a nonsuit as to any cause of
action or claim or any other party to the proceeding, unless he does
so before a motion to strike the evidence has been sustained or
before the jury retires from the bar or before the action has been
submitted to the court for decision.
The plain language of the statute establishes that a nonsuit may be taken only as to a cause
of action, claim, or other party. Our Supreme Court has defined a “cause of action” as “a set of
operative facts which, under the substantive law, may give rise to a right of action.” Roller v. Basic
Constr. Co., 238 Va. 321, 328, 384 S.E.2d 323, 326 (1989). “A right of action belongs to some
definite person; it is the remedial right accorded that person to enforce a cause of action. It arises
only when that person’s rights are infringed.” Id. (emphasis added). A claim, on the other hand, is
defined as “[t]he aggregate of operative facts giving rise to a right enforceable by a court.” Black’s
Law Dictionary 281 (9th ed. 2009); see also Stamie E. Lyttle Co. v. County of Hanover, 231 Va. 21,
26 n.4, 341 S.E.2d 174, 178 n.4 (1986) (defining a “claim” as “‘an authoritative or challenging
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request,’ ‘a demand of a right or supposed right,’ or ‘a calling on another for something due or
supposed to be due’” (quoting Webster’s Third New International Dictionary 414 (1981))).
Based upon these definitions, most actions brought under Code § 16.1-253 are neither
causes of action nor claims. The statute clearly states that a preliminary protective order may be
issued “[u]pon the motion of any person or upon the court’s own motion . . . if necessary to protect a
child’s life, health, safety or normal development.” Thus, under most circumstances, an action
under Code § 16.1-253 does not involve the infringement of a right personal to the movant; rather, it
involves the protection of a third party: the child. 4 Indeed, the fact that the court has authority to
seek a preliminary protective order sua sponte indicates that no personal right of the movant is
involved. 5
Recognizing that a number of actions are neither causes of action nor claims, the General
Assembly included in Code § 8.01-380 a third basis to nonsuit an action: taking a nonsuit as to
“any other party to the proceeding.” We note, however, that in the present case, both father and
mother are technically respondents. Thus, mother’s decision to nonsuit the action as to the only
“other party,” i.e., father, would have no bearing on her position as a respondent. As the trial court
would still be in a position to consider all of the evidence presented to determine whether any abuse
4
We recognize that, on rare occasions, the child may seek a protective order on his/her
own behalf. In such situations, the action under Code § 16.1-253 would obviously involve a
right personal to the movant, and therefore a right of action would exist.
5
Mother’s argument relies heavily on the fact that a nonsuit may be taken in other cases
where the child is the subject of the litigation, such as in custody actions. Her reliance, which at
first blush appears to have merit, is misplaced. Custody actions are readily distinguishable from
the present case, as a custody action is based on the movant’s rights as a parent; such a claim is
personal to the parent, not the child. Actions brought under Code § 16.1-253, on the other hand,
are based on protecting the child from abuse; such actions are not personal to the movant, but are
undertaken on behalf of the child. Indeed, it is clear that the movant need not have any personal
stake in the outcome of an action brought under Code § 16.1-253.
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occurred and, if so, who committed it, mother’s nonsuit as to the other party would have no
practical effect on the outcome of the proceeding.
Furthermore, it is well settled that the ability to take a nonsuit is “distinctly a weapon in the
arsenal of a plaintiff.” Trout v. Commonwealth Transp. Comm’r, 241 Va. 69, 73, 400 S.E.2d 172,
174 (1991). However, in the present case, it would be improper to label mother as the “plaintiff”
because the parties to an action under Code § 16.1-253 are not in the same positions as plaintiffs and
defendants in a traditional action. Code § 16.1-253(F) states that, “[i]f a petition alleging abuse or
neglect of a child has been filed . . . the court shall determine whether the allegations of abuse or
neglect have been proven by a preponderance of the evidence.” Notably, the statute is silent as to
who must prove the allegations of neglect and abuse. While at first it appears logical that the
movant or petitioner would be the one required to prove the allegations of neglect and abuse, such is
not always the case. There are situations in which the movant or petitioner is not in a position to
properly advocate for the preliminary protective order, such as where the trial court has moved for
the preliminary protective order or where, as in this case, the petitioner is subject to the preliminary
protective order. Similarly, there are situations in which the advocate of a preliminary protective
order may no longer wish to pursue the matter, such as where the evidence indicates that the
advocate may actually be the abuser.
In its final order, the trial court correctly recognized that “while the petition is brought in the
name of the mother, it is for the benefit of the child. Therefore, the right to advocate a protective
order on behalf of the child can be transferred to a party of interest.” This observation is consistent
with the stated intention of the Virginia Juvenile Code, Code §§ 16.1-226 to -334, that “in all
proceedings the welfare of the child and the family . . . and the protection of the rights of victims
are the paramount concerns of the Commonwealth.” Code § 16.1-227. Indeed, we have
previously recognized that
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the court’s paramount concern is always the best interests of the
child. This standard applies especially in a case of alleged child
sexual abuse . . . and in such cases the court may subordinate the
legal rights of the parents to the welfare of the child.
Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990) (emphasis added); see also
Forbes v. Haney, 204 Va. 712, 716, 133 S.E.2d 533, 536 (1963) (“[T]he welfare of the child is to
be regarded more highly than the technical legal rights of the parent. Where the interest of the
child demands it, the rights of the father and mother may be disregarded.”).
Similarly, Code § 16.1-253 is intended to provide for the protection of abused and neglected
children, and it would be highly illogical to allow a person who may, in fact, be responsible for the
abuse and neglect to be in a position to nonsuit the action against herself. Accordingly, in cases
such as this, where allegations of child sexual abuse have been presented to the trial court and a
preliminary protective order has been issued pursuant to those allegations, it is axiomatic that an
alleged abuser’s “right” to nonsuit must be subordinate to the welfare of the child.
Here, because mother was a respondent to the preliminary protective order, her right to
nonsuit the case against her was necessarily subordinate to the welfare of the child. Therefore, for
all the foregoing reasons, we hold that the trial court did not err in denying mother’s request for a
nonsuit, because the evidence supports a finding that it was in the best interests of the child for the
trial court to transfer the right to advocate for the protective order to father and the guardian ad
litem. 6
6
In its final order, the trial court specifically transferred the right to advocate for the
protective order to father and the guardian ad litem, stating
Whereas counsel for the father objected, and the guardian ad litem
for the child objected, the court finds that they are permitted to
continue the advocacy of this petition on behalf of the child and
further finds that it is in the best interest of the child to do so . . . .
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II. Exclusion of the Child’s Disclosures of Sexual Abuse
Mother next argues that the trial court erred in excluding the child’s disclosures of sexual
abuse. According to mother, the trial court erred by: (1) excluding the child’s disclosures of sexual
abuse that had been allowed into evidence in previous hearings; (2) excluding all of the child’s
disclosures of sexual abuse without making specific findings related to each disclosure;
(3) misapplying the trustworthiness and reliability factors enumerated in Code § 63.2-1522(D) in
excluding the child’s disclosures of sexual abuse to Dr. Viola Vaughan-Eden (“Dr. Vaughan-
Eden”) and Lori Green (“Green”); (4) refusing to allow the child’s disclosures of sexual abuse
into evidence to demonstrate the child’s state of mind; and (5) finding the child was unavailable
to testify. For the reasons set forth below, we agree that the trial court erred in excluding some of
the child’s disclosures of sexual abuse and remand the matter to the trial court to make the necessary
trustworthiness and reliability findings for all of the child’s disclosures of sexual abuse.
A. Disclosures of Sexual Abuse Admitted in Prior Proceedings
Mother argues that the trial court erred in excluding the child’s disclosures of sexual
abuse because the disclosures had previously been allowed into evidence during the adjudicatory
hearing held in the J&DR court. Mother contends that the law of the case doctrine required the
trial court to allow the disclosures into evidence.
Rule 5A:18 7 provides that “No ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
7
Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling . . . .” As the proceedings below were completed prior to this
revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See
Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of
Court in effect at the time of the proceedings below).
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justice.” “The purpose of Rule 5A:18 is to provide the trial court with the opportunity to remedy
any errors so that an appeal is not necessary.” Knight v. Commonwealth, 18 Va. App. 207, 216,
443 S.E.2d 165, 170 (1994).
At no point during the trial did mother argue that the child’s disclosures should be admitted
on the grounds that they had been admitted during a previous stage of the litigation.8 Accordingly,
Rule 5A:18 bars our consideration of this issue on appeal.
B. Exclusion of the Child’s Disclosures of Sexual Abuse in a Single Ruling
Mother next argues that the trial court erred in excluding the child’s disclosures of sexual
abuse in “a blanket ruling,” as opposed to addressing each disclosure individually. Mother notes
that, when the trial court applied the trustworthiness and reliability factors enumerated in Code
§ 63.2-1522(D), it used facts applicable to a few of the child’s disclosures of sexual abuse to
discredit all of the child’s disclosures of sexual abuse. Mother contends that the language of
Code § 63.2-1522 uses the word “statement” in the singular form, indicating “the legislature’s
intent that each disclosure be analyzed separately.” Father does not dispute mother’s
interpretation of the statute; rather, he argues that the trial court did not err in its application of
Code § 63.2-1522, as the record supports the findings of the trial court. Furthermore, father
contends that mother mischaracterizes the letter opinion as a “single, blanket ruling” under Code
§ 63.2-1522. According to father, the letter opinion merely represents the trial court’s ruling on
his motion in limine, which specifically targeted the disclosures of sexual abuse made to
Dr. Vaughan-Eden, Green, and Dr. Sheila Furey (“Dr. Furey”). To the extent that the trial court
8
Although mother made an argument based on the law of the case doctrine, the argument
was not regarding any disclosures of sexual abuse made by the child. Rather, mother argued that
the law of the case doctrine applied to the trial court’s previous finding that the child was abused
and, therefore, all that needed to be determined was the type of abuse and the identity of the
abuser. At no time did she reference the disclosures of sexual abuse made by the child.
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excluded the child’s disclosures of sexual abuse without making the required findings, we agree
with mother that the trial court erred.
Statutory interpretation presents a pure question of law, which we review de novo.
Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).
When interpreting statutes, courts “ascertain and give effect to the
intention of the legislature.” Chase v. DaimlerChrysler Corp., 266
Va. 544, 547, 587 S.E.2d 521, 522 (2003). That intent is usually
self-evident from the words used in the statute. Id. Consequently,
courts apply the plain language of a statute unless the terms are
ambiguous, Tiller v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d
441, 442 (1952), or applying the plain language would lead to an
absurd result. Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d
494, 496 (2001).
Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006).
Under Code § 63.2-1522(A), “an out-of-court statement 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 § 63.2-1522(B)] are met.” (Emphasis added). 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 shown to possess
particularized guarantees of trustworthiness and reliability,” Code § 63.2-1522(B)(2). In
determining whether the child’s statement possesses the necessary particularized guarantees of
trustworthiness and reliability, the trial court must consider the twelve factors listed in Code
§ 63.2-1522(D). 9 Furthermore, the trial court is required to “support with findings on the
9
The twelve factors are as follows:
1. The child’s personal knowledge of the event;
2. The age and maturity of the child;
3. Certainty that the statement was made, including the credibility
of the person testifying about the statement and any apparent
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record . . . any rulings pertaining to . . . the trustworthiness and reliability of the out-of-court
statement.” Code § 63.2-1522(E).
The consistent use of the term “statement” in the singular form clearly indicates the
General Assembly’s intent that each disclosure of sexual abuse must be analyzed individually.
Furthermore, a majority of the factors the trial court must consider in determining the
trustworthiness and reliability of a child’s statement are statement specific. 10 Indeed, only three
motive such person may have to falsify or distort the event
including bias, corruption or coercion;
4. Any apparent motive the child may have to falsify or distort the
event, including bias, corruption, or coercion;
5. The timing of the child’s statement;
6. Whether more than one person heard the statement;
7. Whether the child was suffering pain or distress when making
the statement;
8. Whether the child’s age makes it unlikely that the child
fabricated a statement that represents a graphic, detailed account
beyond the child’s knowledge and experience;
9. Whether the statement has internal consistency or coherence,
and uses terminology appropriate to the child’s age;
10. Whether the statement is spontaneous or directly responsive to
questions;
11. Whether the statement is responsive to suggestive or leading
questions; and
12. Whether extrinsic evidence exists to show the defendant’s
opportunity to commit the act complained of in the child’s
statement.
Code § 63.2-1522(D).
10
Nine of the twelve factors (2, 3, 5, 6, 7, 8, 9, 10, and 11) relate either to the content of
the specific statement made by the child, the context in which that statement was made, or the
credibility of the person testifying about the statement.
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factors are not statement specific. 11 In its August 6, 2009 letter opinion, the trial court identified
each of the twelve factors of trustworthiness and reliability enumerated in Code § 63.2-1522(D),
and explained how it considered each factor. Throughout its explanation, the trial court referred
only to the disclosures made to Dr. Vaughan-Eden and Green. At no point did the trial court
reference disclosures of sexual abuse made by the child to Dr. Furey or anyone else. 12 Absent
the requisite findings on the record, the trial court’s exclusion of all of the child’s out-of-court
statements describing sexual abuse was error.13
C. Exclusion of the Disclosures Made to Dr. Vaughan-Eden and Green
As previously noted, the trial court’s August 6, 2009 letter opinion specifically referenced
the disclosures of sexual abuse the child made to Dr. Vaughan-Eden and Green. As such, unlike
the disclosures of sexual abuse made to Dr. Furey and others, the trial court’s rulings on these
statements are supported with findings on the record, as required by Code § 63.2-1522(E).
11
Factors 1 and 4 focus on the basis of the child’s knowledge about the event and any
potential motive the child may have to lie. Meanwhile, factor 12 involves evidence independent
of the child’s statement.
12
We recognize that a finding that the child lacks the proper basis of knowledge
(factor 1) or has a motive to lie (factor 4) could affect all of the disclosures made by a child and
therefore serve as a non-statement-specific basis for excluding all of the child’s statements.
Nevertheless, the trial court would still be required to make a finding that the child’s statements
lacked the necessary trustworthiness and reliability as a result. Code § 63.2-1522(E). Here, the
record clearly demonstrates that the trial court was concerned that the child’s statements were
tainted by the fact that she had “no memory of a time when there has not been a focus on
whether she has been sexually abused.” Indeed, the trial court specifically found that such
experiences “would have some influence on the statements of the child.” However, rather than
finding that the taint was so pervasive as to render all of the child’s statements untrustworthy, the
trial court determined that it would simply “mak[e] it more difficult to find the particularized
guarantees of trustworthiness and reliability.”
13
Mother’s question presented was limited specifically to the trial court’s exclusion of
the child’s disclosures of sexual abuse under Code § 63.2-1522. As such, our holding is limited
to only those statements made by the child “describing any act of a sexual nature performed with
or on the child by another.” Code § 63.2-1522(A). The issue of the trial court’s exclusion of
hearsay statements made by the child that do not relate to sexual abuse is raised in father’s
cross-appeal and is therefore discussed below.
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Mother, however, argues that the trial court misapplied the trustworthiness and reliability factors
enumerated in Code § 63.2-1522(D). Specifically, mother contends that the trial court erred in
finding that the disclosures were the product of leading questions as opposed to spontaneous
statements by the child.
“In determining whether a statement possesses particularized guarantees of
trustworthiness and reliability . . . the court shall consider” the twelve enumerated factors and
“make findings on the record.” Code § 63.2-1522(D), (E). As we have repeatedly recognized in
interpreting similar statutes that require the trial court to consider certain enumerated factors, the
trial court “‘is not required to quantify or elaborate exactly what weight or consideration it has
given to each of the statutory factors.’” Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d
596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986)). “If the circuit court considers all the factors and bases its findings on credible evidence,
we will not disturb its decision on appeal.” Fadness v. Fadness, 52 Va. App. 833, 842, 667
S.E.2d 857, 862 (2008). As such, the decision of the trial court will be reversed only when its
decision is plainly wrong or without evidence to support it. Code § 8.01-680; see Gamble v.
Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992) (“When the record discloses that the
trial court considered all of the statutory factors, the court’s ruling will not be disturbed on
appeal unless there has been a clear abuse of discretion.”).
Upon familiar principles, “we consider the evidence in the light most favorable to the
party prevailing in the trial court.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383
S.E.2d 28, 30 (1989). Mother’s specific argument focuses on the trial court’s findings regarding
factors 6, 10, and 11. With regard to those factors, the trial court made these specific findings in
its August 6, 2009 letter opinion:
[Regarding factor 6], [w]hile more than one person heard the
statement, the court does not find that it indicates a particularized
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guarantee of trustworthiness or reliability. The statement was
heard by Lori Green and Terry Walls, but the statement was
repeated after prompting by Dr. Vaughan-Eden through leading
questions such as “who hurt your butt.”
* * * * * * *
The court next examines the tenth and eleventh factors. . . . It is
difficult for the court to assess these factors because Dr. Vaughan-
Eden’s sessions with the child were not recorded and her notes do
not indicate with any degree of specificity what questions were
asked of the child. The questions that are pointed out in the notes,
such as “who hurt your butt,” seem to be leading in nature.
Nothing in either of these statements is plainly wrong or lacking evidence to support it.
Indeed, Dr. Vaughan-Eden’s notes make it clear that the child’s statement in front of Green and
Terry Walls was prompted by specific questioning on the part of Dr. Vaughan-Eden.
Furthermore, we note, as a general matter, that the trial court found that Dr. Vaughan-
Eden violated the protocol of the forensic model she purported to follow and that her evaluation
of the child was tainted by mother’s inflammatory description of father’s alleged actions. These
findings alone would be sufficient to support the trial court’s ruling. Accordingly, we cannot say
that the ruling of the trial court is “plainly wrong or without evidence to support it.”
D. Disclosures as Evidence of the Child’s State of Mind
Mother argues that the trial court erred in refusing to allow the disclosures of sexual
abuse as evidence of the child’s state of mind. Mother contends that the disclosures of sexual
abuse demonstrated that the child had been exposed to some kind of sexualized contact not
normal for a child her age or that the child had been exposed to a traumatic experience that
caused her to feel pain or to be afraid. However, as previously noted, we “will not consider an
argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see also Rule 5A:18.
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Mother’s brief does not direct us to the place in the record where she preserved this
specific issue for appeal, see Rule 5A:20(c) (stating that “[t]he opening brief of appellant shall
contain . . . [a] statement of the questions presented with a clear and exact reference to the
page(s) of the transcript, written statement, record, or appendix where each assignment of error
was preserved in the trial court (emphasis added)), and we have found no evidence in the record
indicating that mother informed the trial court of the error she now presents to us. 14 “We will
not search the record for errors in order to interpret the appellant’s contention and correct
deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992). As it does not appear that this objection was ever presented to the trial court, Rule 5A:18
bars our consideration of this question presented on appeal. 15
14
In her brief, mother indicates this issue was preserved in two different places in the
record. She first cites to an objection she made regarding the redaction of alleged hearsay in
plaintiff’s exhibit 6. The material redacted from plaintiff’s exhibit 6 consisted of statements
made by mother to the University of Virginia medical staff relating to the symptoms mother
observed in the child prior to bringing the child to the hospital. None of the redacted material
involved any disclosures of sexual abuse made by the child.
Mother next cites to her “Objections to Order Excluding Hearsay Statements,” where she
stated:
The trial court should address each hearsay statement individually
with the parties and counsel, and [mother] should be allowed the
opportunity to argue each statement individually and to seek the
introduction of each statement on alternative grounds, e.g. state of
mind, recent complaint exception, excited utterance, spontaneous
response to an event of which the child had first-hand knowledge,
and/or Code of Virginia § 8.01-401.1.
On this occasion, mother did not argue that the disclosures should come in under any
specific exception to the hearsay rule, such as state of mind. Rather, she sought the opportunity
to argue for the admission of each disclosure on an individual basis.
15
To the extent that mother’s objections arguably served to put the trial court on notice of
her argument that the disclosures should be admitted based on an exception to the hearsay rule,
we note that mother failed to specify which exception is applicable to the child’s disclosures of
sexual abuse; rather, she merely listed a number of exceptions to the hearsay rule that she would
like to argue.
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E. Refusal to Allow the Child to Testify
In her final argument relating to the child’s disclosures, mother argues that the trial court
erred in refusing to allow her to call the child to testify once the disclosures of sexual abuse had
been excluded. Mother contends her stipulation that the child was unavailable to testify was void
ab initio, as it lacked the necessary expert opinion testimony required under Code
§ 63.2-1522(B)(1)(g), and, therefore, she should have been allowed to call the child to testify.
We disagree.
A stipulation is “an agreement between counsel respecting business before a court.”
Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951).
A stipulation of counsel, particularly when relied upon by a court,
cannot later be unilaterally withdrawn. Trial judges must be able
to rely on counsel to make tactical concessions during trial,
especially those “designed to narrow the issues and expedite the
trial or settlement of litigation,” McLaughlin v. Gholson, 210 Va.
498, 500, 171 S.E.2d 816, 817 (1970), without the risk of such
reliance being undermined later.
Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448, 455 (2006).
“When an objection identifies the rule of evidence on which
admission or exclusion depends, the proponent ordinarily need not
do more to preserve error than offer the evidence. But when the
objection, hearsay in this case, does not focus on the specific issue
presented on review, here the applicability of [a specific]
exception, error is not preserved [when the evidence is excluded]
unless the proponent [of the evidence] alerts the trial court to that
issue. This is in accord with the general principle that to preserve
error in a ruling on evidence a party must notify the trial court of
his position and the specific rule of evidence on which [the party]
relies.”
Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 524-25 (1992) (quoting Huff v.
White Motor Corp., 609 F.2d 286, 290 n.2 (7th Cir. 1979)) (substitutions in original).
Furthermore, mother failed to obtain a ruling on this matter from the trial court, therefore,
“there is no ruling for us to review on appeal.” Ohree, 26 Va. App. at 308, 494 S.E.2d at 489.
- 17 -
We have recognized that the efficacy of stipulations is not unlimited. Indeed, stipulations
like the one at issue here “are subject to several restrictions, including the requirement that the
court ‘review the provisions of the [stipulations] for their consistency with the best interests of
the child or children whose welfare the [stipulation] addresses.’” Anonymous B, 51 Va. App. at
676, 660 S.E.2d at 316 (quoting Shoup v. Shoup, 37 Va. App. 240, 250, 556 S.E.2d 783, 788
(2001)). However, once a valid stipulation has been agreed to, “there can be no objection to it.”
Burke, 193 Va. at 137, 67 S.E.2d at 920.
Here, in accepting the stipulation that the child was unavailable, the trial court
specifically addressed the issue of whether the stipulation was in the child’s best interests,
stating:
[I]t appears to the Court that even if a therapist evaluated the child
and said, “no, the child is just fine and could testify,” that both
parties would still agree that the therapist was wrong.
And in looking at the history of this case and the allegations that
have been made, and the evaluations the child has already been
through, and the relationship between the parties, the Court finds
that based upon those factors, as well as the recognition of the
parties, that there is a substantial likelihood the child would suffer
severe emotional trauma from testifying at the proceeding or by
means of a videotaped deposition or a closed-circuit television.
And further finding that the child is already going to be seeing a
therapist, and then to add another evaluation on top of having a
therapist does not appear would be in the best interests of this
child, the Court is going to find . . . that the child is not available,
pursuant to 63.2-1522, and not require the expert evaluation at the
time.
It is important to note that mother made no objection to the trial court’s findings. As our
Supreme Court explained decades ago,
In Virginia, we have also approved the general rule that a party is
forbidden to assume successive positions in the course of a suit, or
series of suits, in reference to the same fact or state of facts, which
are inconsistent with each other, or mutually contradictory. A
litigant is estopped from taking a position which is inconsistent
with one previously assumed, either in the course of litigation for
- 18 -
the same cause of action, or in dealings in pais. This wise and
salutary policy has been repeatedly followed.
Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937). “Or, as some cases
put it, ‘A man shall not be allowed to approbate and reprobate at the same time.’” Leech v.
Beasley, 203 Va. 955, 962, 128 S.E.2d 293, 298 (1962).
Considering that the parties agreed to the stipulation and the trial court found the
stipulation was in the best interests of the child, for all intents and purposes the child was no
longer available to testify. The trial court, therefore, did not err in refusing to allow mother to
call the child to testify.
III. Qualification of Dr. Benton to Testify About the ABEL Assessment
Mother argues that the trial court erred in refusing to allow Dr. Benton to testify
concerning the reliability of the ABEL Assessment of Sexual Interest (“ABEL Assessment”). 16
According to mother, Dr. Benton was qualified to testify as an expert on the ABEL Assessment
due to his years of experience in evaluating sexually abused children coupled with the fact that
he had read “extensively” about the ABEL Assessment. As such, mother contends the trial court
abused its discretion in not qualifying Dr. Benton as an expert in that area. We disagree.
In civil cases, expert testimony generally is admissible if it will
assist the trier of fact in understanding the evidence. However, the
admission of expert testimony is subject to certain basic
requirements, including the requirement that the evidence be based
on an adequate foundation. The decision whether to admit such
testimony is a matter committed to the trial judge’s sound
discretion, and we will reverse a trial court’s determination in this
regard only when the court has abused its discretion.
John v. Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696 (2002) (citations omitted).
16
The ABEL Assessment of Sexual Interest purports to identify sexual disorders and
measure deviant sexual interest.
- 19 -
At trial, Dr. Benton admitted that, although he was familiar with the ABEL Assessment,
he had never received any training on administering the exam. Indeed, he testified that Dr. Abel,
the creator of the ABEL Assessment, had not publicly released all of the parameters of the exam.
In light of Dr. Benton’s candid admissions, we cannot say that the trial court abused its discretion
in refusing to allow Dr. Benton to testify as an expert on a subject which he was, admittedly, not
an expert. 17
IV. Qualification of Wendy Carroll to Testify About Child Sexual Abuse
Mother also argues that the trial court erred in allowing Wendy Carroll (“Carroll”) to
offer opinion testimony concerning child sexual abuse. Mother contends that Carroll was not
qualified as an expert in child sexual abuse and, therefore, her testimony allowed father to cast
doubts on mother’s case through unqualified expert testimony. We disagree.
Carroll, a licensed professional counselor and family therapist, provided testimony about
the ten months that she evaluated the child as part of a separate custody/visitation case between
mother and father. Carroll testified as a fact witness and never qualified as an expert of any sort.
Indeed, mother offered into evidence a letter written by Carroll in which Carroll admitted that the
accusations of child sexual abuse “involve[d] issues that are beyond [her] scope of expertise and
practice.” The testimony at issue occurred when counsel for father asked Carroll: “In the ten
months that you observed [the child], did you see anything that gave you any concern about [the
child] being sexually abused?” Mother objected on the grounds that Carroll had not qualified as
an expert in the field of child sexual abuse. The trial court overruled mother’s objection, stating
that:
the Court does not put this on the same level as a forensic sexual
evaluation, but finds that [Carroll] is a licensed therapist and
17
It is of further note that mother failed to establish any prejudice, as, on rebuttal, she
called Dr. Stephen Granderson, an expert qualified to testify about the ABEL Assessment and its
applicability in cases such as this one.
- 20 -
therefore can observe behavior and have concern without it being
classified as part of a forensic sexual evaluation.
The trial court explained further that the question “as asked” was no different from other
questions asked of lay witnesses with regard to their observations of the child’s behavior.
Under the “opinion rule,” “opinion testimony of lay witnesses is incompetent because the
jury is in as good a position as a witness to form opinions from the facts.” Lafon v.
Commonwealth, 17 Va. App. 411, 420, 438 S.E.2d 279, 285 (1993). There are, however,
numerous exceptions to the “opinion rule.”
The principal exception to the “opinion rule” is the common sense
understanding that the terms “fact” and “opinion” are relative.
Some statements are not mere opinions but are impressions drawn
from collected, observed facts, and are admitted under the
“collective facts rule.” Thus, an “opinion” formed by a witness at
a given time, may be a “fact” that explains why the witness acted
in a particular way. Making this distinction is a question best left
to the discretion of the trial judge.
Id. at 420-21, 438 S.E.2d at 285 (citations omitted).
Here, it is clear that Carroll’s testimony fell within the collective facts exception to the
opinion rule. Carroll did not testify as an expert; she testified as a fact witness. The question, as
posed, merely asked Carroll about her observations and her reaction to those observations, and
the trial court’s comments indicate it did not consider Carroll’s response as anything other than
fact-based testimony. Accordingly, we affirm the decision of the trial court.
V. Admission of Prior Administrative Proceedings Into Evidence
Mother argues that the trial court erred in allowing testimony regarding ACDSS’s
administrative opinion reversing its initial Level 1 finding of child sexual abuse. Specifically,
mother contends that this Court had previously upheld the trial court’s exclusion of the evidence
and therefore the trial court clearly abused its discretion. Mother also argues that the trial court’s
rationale for allowing the findings into evidence was flawed. The trial court allowed father to
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use the administrative hearing to show Green was biased against him, which mother contends
was irrelevant to the issues before the trial court.
“There is no rule of evidence which provides that testimony admissible for one purpose
and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the
case.” United States v. Abel, 469 U.S. 45, 56 (1984). “Frequently, evidence that is inadmissible
under a general rule of evidence is admissible under an exception to the general rule or under
another rule.” Satterfield v. Commonwealth, 14 Va. App. 630, 635, 420 S.E.2d 228, 231 (1992).
In the previous trial on this matter, father sought to enter the findings of the
administrative hearing as admissions of a party opponent, namely ACDSS. The trial court
rejected the evidence on the basis that it was cumulative, as the trial court was already aware of
the findings. On that basis, we upheld the trial court’s decision to exclude the evidence. Here,
the findings of the administrative hearing officer were offered for an entirely separate purpose:
to demonstrate Green’s bias toward father.
The bias of a witness, like prejudice and relationship, is not a
collateral matter. The bias of a witness is always a relevant subject
of inquiry when confined to ascertaining previous relationship,
feeling and conduct of the witness . . . . [O]n cross-examination
great latitude is allowed and . . . the general rule is that anything
tending to show the bias on the part of a witness may be drawn out.
Henson v. Commonwealth, 165 Va. 821, 825-26, 183 S.E. 435, 437 (1936).
Green was one of the primary witnesses against father. In addition to hearing one of the
child’s disclosures of sexual abuse, Green played a significant role in supervising father’s
visitation with the child. As a key witness against father, Green’s credibility, as well as any bias
she may have had toward him, was necessarily at issue. As such, we find no error in the trial
court’s decision to allow testimony regarding the findings of the administrative hearing officer to
ascertain what bias, if any, Green may have had toward father.
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VI. Cumulative Expert Testimony
Mother next argues that the trial court erred in limiting her use of expert testimony.
Mother contends that, because Dr. Vaughan-Eden was an expert witness and a fact witness and
the credibility of the disclosures of sexual abuse the child made to Dr. Vaughan-Eden were the
central issue of the trial, mother should have been allowed to put on experts who would testify
that the disclosures were credible. Mother specifically notes that this ruling prevented her from
calling one of her expert witnesses and severely limited the scope of the testimony of another.
In the very nature of things there can be no limitation placed on the
number of witnesses who are called upon to testify as to facts, but
there is a wide discretion vested in the trial court as to the number
of opinion witnesses it will hear on a given subject.
Maupin v. Maupin, 158 Va. 663, 673, 164 S.E. 557, 560 (1932).
“Cumulative testimony is repetitive testimony that restates what has been said already
and adds nothing to it. It is testimony of the same kind and character as that already given.”
Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985). “[W]here evidence is
merely cumulative its introduction may be limited by the court.” Id. Furthermore, “the
exclusion of evidence favorable to a party in a civil action on the ground that it is repetitious and
cumulative is a matter within the sound discretion of the trial court[,] and . . . its ruling is entitled
on review to a presumption of correctness.” Harrison v. Commonwealth, 244 Va. 576, 585, 423
S.E.2d 160, 165 (1992).
In the present case, the trial court did not, as mother contends, prevent her from calling
one of her expert witnesses or limit the scope of the testimony of other expert witnesses. Rather,
the trial court ruled that mother could not bolster Dr. Vaughan-Eden’s testimony during her
case-in-chief. Indeed, the trial court specifically noted that “it would be appropriate to have the
defense actually present evidence” before allowing mother to bolster Dr. Vaughan-Eden’s
testimony. Moreover, the trial court permitted mother, in her case-in-chief, to elicit extensive
- 23 -
testimony from Dr. Benton, ruling that his testimony was not cumulative of Dr. Vaughan-Eden’s.
Dr. Benton testified that the child’s statements were clear and detailed and that the medical
records were “consistent with sexual abuse.” Dr. Benton also gave detailed testimony about the
sexualized behaviors the child allegedly exhibited in front of others and his opinion regarding the
significance of those behaviors to the assessment of whether the child had been sexually abused.
Finally, the trial court specifically stated that mother could call additional experts as rebuttal
witnesses. 18 The fact that mother chose not to call the expert witness in question on rebuttal
cannot be found to be error on the part of the trial court.
VII. Evidence Showing the Reasonableness of Mother’s Actions
Mother also argues that the trial court erred in not allowing her to present evidence that
demonstrated her actions were reasonable. Specifically, mother contends the trial court
misapplied the hearsay rule in a way that prevented her from demonstrating that her actions were
reasonable reactions to what other people told her. We agree.
“Hearsay evidence is defined as a spoken or written out-of-court declaration or nonverbal
assertion offered in court to prove the truth of the matter asserted therein.” Arnold v.
Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). “The primary
justification for the exclusion of hearsay is the lack of any opportunity for the adversary to
cross-examine the absent declarant whose out-of-court statement is introduced into evidence.”
Anderson v. United States, 417 U.S. 211, 220 (1974). Thus, “the basis for excluding hearsay is
that it is not subject to the tests which ordinarily exist to ascertain the testimony’s truth.” Penny
v. Commonwealth, 6 Va. App. 494, 498, 370 S.E.2d 314, 317 (1988). However, “[t]he hearsay
rule does not operate to exclude evidence of a statement, request, or message offered for the
18
Indeed, as previously noted, on rebuttal mother did call at least one expert witness,
Dr. Ganderson.
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mere purpose of explaining or throwing light on the conduct of the person to whom it was
made.” Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960).
In the present case, mother sought to explain a number of her actions by offering the
statement of a third party that prompted her actions. The statements were not offered for the
truth of the matter asserted but, rather, as an explanation as to what caused mother to act in the
way she did. The trial court refused to allow such statements into evidence, ruling that they were
hearsay. In one such instance, the trial court offered the following example to explain its
application of the hearsay rule:
So here is the Court’s analysis. If the statement was going to be,
and I’m going to use something absurd, that Dr. Davidson told
[mother] to start participating in arson, and [mother] terminated
[Dr. Davidson’s] services, the Court would have to find that it was
true, that that’s the statement that Dr. Davidson made. So
therefore, even though it’s being said that it’s not offered for the
truth of the matter, the Court would have to believe the truth to
find that it served as a basis for [mother] terminating
[Dr. Davidson’s] services.
It is clear that mother was not offering Dr. Davidson’s statement for the truth of the
matter asserted by Dr. Davidson; rather, she was offering the statement as evidence that
Dr. Davidson made a statement that prompted mother’s actions, i.e., to explain why mother did
what she did. Thus, Dr. Davidson’s statement was not hearsay and should have been allowed
into evidence.
Furthermore, the trial court’s misapplication of the hearsay rule with regard to mother’s
testimony was not isolated to the statements by Dr. Davidson. As the trial court specifically
faulted mother for failing to offer evidence to explain her actions, when in fact the trial court’s
misapplication of the hearsay rule prevented mother from offering that evidence, we cannot say
the error was harmless and therefore must reverse the decision of the trial court.
- 25 -
VIII. Mother’s Discovery Violations
Mother further argues that the trial court abused its discretion by not allowing her to
introduce into evidence the “exhibits” 19 referenced in the March 2006 letter as a sanction for
failing to disclose them in discovery. Mother contends that the exhibits served to demonstrate
her state of mind (which was the reason that father introduced the letter in the first place),
completed the record, and were in accord with the pretrial order allowing exhibits not listed to be
entered as rebuttal evidence.
“Rule 4:12 gives the trial court broad discretion in determining what sanctions, if any,
will be imposed upon a litigant who fails to respond timely to discovery.” Woodbury v.
Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990). “Consequently, we accord deference
to the decision of the trial court in this case and will reverse that decision only if the court abused
its discretion.” Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000).
The record demonstrates that, during discovery, father was provided with a copy of the
March 2006 letter, but the exhibits that were enclosed with the letter were not included. There is
evidence in the record that father had access to some of the referenced exhibits through other
discovery. However, the fact remains that father was not provided with the exhibits in the form
that they were in when they were attached to the letter. Indeed, the record indicates that at least
one of the referenced exhibits was not actually included with the letter when it was originally
sent. Father, however, would have no way of knowing this based on what he received in
discovery. In providing the letter in an incomplete form, mother failed to comply fully with the
19
Throughout the March 2006 letter, mother refers to twenty “exhibits,” labeled “A” thru
“T,” that allegedly supported her allegations of sexual abuse against father. Although the letter
refers to the various exhibits, there is no indication as to the exact form and content of each
exhibit.
- 26 -
discovery order in this case. As such, it cannot be said that the trial court abused its discretion in
sanctioning mother.
IX. Father’s Argumentative Opening Statement
Mother argues that the trial court erred in allowing father to make argumentative
comments during his opening statement. Mother contends that this “stripped [her] of her right as
the plaintiff to be the first to present her case and tainted the trial court’s view of Mother’s
evidence from the very outset.”
Assuming, arguendo, that mother is correct and the trial court allowed father to make
argumentative statements during opening argument, such error was harmless. “[I]n a bench trial,
the trial judge is presumed to disregard prejudicial or inadmissible evidence, and this
presumption will control in the absence of clear evidence to the contrary.” Hall v.
Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992). Mother has presented no
evidence demonstrating that the trial court failed to disregard any prejudicial or inadmissible
evidence that father allegedly presented during opening argument, thus we must assume that any
such evidence was disregarded. Furthermore, even if the trial court erred in allowing father to
make argumentative statements during his opening statement, we hold that the error did not
“injuriously affect” the mother’s interest and is therefore harmless. See Jenkins v. Dep’t of Soc.
Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991) (“[E]rror which does not injuriously
affect the interest of the party complaining is not reversible.”).
X. Parties’ Relative Financial Abilities
Mother’s final argument is that the trial court erred in dividing the guardian ad litem’s
fees equally between the parties without considering the “relative financial abilities of the
parties.” According to mother, any award of guardian ad litem fees must be based on Code
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§ 16.1-278.19, which requires the court to assess the relative financial abilities of the parties in
awarding attorney’s fees. We disagree.
As an initial matter, we note that Code § 16.1-278.19 merely allows the court to shift the
burden of attorney’s fees and costs from one party to another. Code § 16.1-278.19 states that
“[i]n any matter properly before the court, the court may award attorneys’ fees and costs on
behalf of any party as the court deems appropriate based on the relative financial ability of the
parties.” (Emphasis added). The legislature’s use of the word “may” indicates that Code
§ 16.1-278.19 is non-compulsory, as the trial court may award attorney’s fees and costs.
Similarly, the phrase “on behalf of any party” clearly indicates that fees and costs must first be
incurred by the party before the trial court may make the award. Thus, Code § 16.1-278.19 is
clearly designed to give the trial court authority to shift the burden of attorney’s fees and costs
from one party to another and does not set out a requirement that a guardian ad litem’s fees must
be divided among the parties based on their relative financial abilities.
Code § 16.1-267(A), 20 on the other hand, clearly governs guardian ad litem fees. Under
Code § 16.1-267(A), the court is required to assess the total costs of the guardian ad litem’s
representation of the child against both parents. 21 Notably, however, the statute is silent as to
20
Code § 16.1-267(A) states:
When the court appoints counsel to represent a child pursuant to
subsection A of § 16.1-266 and, after an investigation by the court
services unit, finds that the parents are financially able to pay for
the attorney and refuse to do so, the court shall assess costs
against the parents for such legal services in the maximum amount
of that awarded the attorney by the court under the circumstances
of the case, considering such factors as the ability of the parents to
pay and the nature and extent of the counsel’s duties in the case.
(Emphasis added).
21
As mother’s argument is based solely on the applicability of Code § 16.1-278.19, we
do not examine the trial court’s application of Code § 16.1-267(A). See Rule 5A:18.
- 28 -
how the court may apportion those costs between the parents. We have recognized that the
power to apportion the fees and expenses of the guardian ad litem is indivisible from the power
to appoint the guardian ad litem. Verrocchio v. Verrocchio, 16 Va. App. 314, 322, 429 S.E.2d
482, 487 (1993). Our Supreme Court has recognized that the trial court may allocate the costs of
the guardian ad litem’s services “based upon the final result.” Infant C. v. Boy Scouts of
America, 239 Va. 572, 584, 391 S.E.2d 322, 329 (1990). As such, “[t]he decision to apportion
guardian fees between both parties . . . involves a matter within the [trial court’s] discretion.”
Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003). As nothing in our
jurisprudence indicates that allocating guardian ad litem costs equally amongst the parties is
error, we hold that the trial court did not abuse its discretion.
XI. Evidence of Abuse and Neglect
In his cross-appeal, father argues that the trial court erred in finding that mother did not
abuse the child. Father contends that, contrary to the trial court’s ruling, Code § 63.2-100 does
not require proof of actual mental or physical injury; rather, the evidence need only show “an
identifiable pattern of harmful behavior by the parent that threatens to inflict injury to the mental
functioning of the child.” Jackson v. W., 14 Va. App. 391, 397, 419 S.E.2d 385, 388 (1992).
As previously stated, statutory interpretation presents a pure question of law, which we
review de novo. Ainslie, 265 Va. at 352, 577 S.E.2d at 248. “When the language of a statute is
unambiguous, we are bound by the plain meaning of that language.” Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).
In its September 1, 2009 letter opinion, the trial court stated that
[Code § 63.2-100] requires that the Court find that [mother’s]
actions created or inflicted upon the child a physical or mental
injury . . . . While the mother’s actions at time[s] were extreme, I
cannot find that she inflicted mental injury. The court find[s] there
is a legal difference in intentional[ly] interfering with the father’s
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access and relationship with the daughter and what would be
required to show a mental injury to the child.
(Emphasis added).
An “abused or neglected child” is defined as any child under the age of eighteen,
“[w]hose parents or other person responsible for his care creates or inflicts, threatens to create or
inflict, or allows to be created or inflicted upon such child a physical or mental injury by other
than accidental means . . . .” Code § 63.2-100 (emphasis added). In interpreting Code
§ 63.2-100, we have held that “the statutory definitions of an abused or neglected child do not
require proof of actual harm or impairment having been experienced by the child.” Jenkins, 12
Va. App. at 1183, 409 S.E.2d at 19.
Furthermore,
[t]he Commonwealth’s policy is to protect abused children and to
prevent further abuse of those children. This policy would be
meaningless if a child must suffer an actual injury from the
behavior of his or her parent before receiving the Commonwealth’s
protection.
Jackson, 14 Va. App. at 402, 419 S.E.2d at 391.
It is readily apparent that the trial court interpreted Code § 63.2-100 to require that the
child suffer an actual mental injury. In actuality, all that is required under the statute is the
creation of an environment that threatens to inflict physical or mental injury to the child. See id.
at 397, 419 S.E.2d at 388. Accordingly, we must reverse the judgment of the trial court.
XII. Exclusion of the Remainder of the Child’s Statements
Father next argues that the trial court erred in excluding one specific hearsay statement
made by the child that did not relate to the allegations of sexual abuse. According to father, the
statement was an excited utterance and therefore should have been allowed into evidence as an
exception to the hearsay rule.
- 30 -
In excluding the statement, the trial relied on its previous ruling that the child’s
statements were unreliable under Code § 63.2-1522. We note, however, that Code § 63.2-1522
applies only to statements made by a child “describing any act of a sexual nature performed with
or on the child by another.” The child’s statement in this instance did not describe an act of a
sexual nature; therefore Code § 63.2-1522 was inapplicable. As there was no objection to the
admission of the child’s statement into evidence, the trial court erred in subsequently excluding
the statement based on its application of Code § 63.2-1522.
CONCLUSION
The trial court erred in (1) failing to support “with findings on the record” its rulings
pertaining to the child’s disclosures of sexual abuse under Code § 63.2-1522; (2) misapplying the
hearsay rule with regard to mother’s state of mind; (3) misinterpreting Code § 63.2-100; and
(4) excluding the child’s hearsay statements not describing an act of a sexual nature under Code
§ 63.2-1522.
It would serve no useful purpose for us to examine the evidence bit
by bit to determine what was relevant and what was not. Suffice it
to say that we are convinced from the record that the most
appropriate action is for the trial court to reexamine all the
evidence in light of this opinion.
Keel v. Keel, 225 Va. 606, 613, 303 S.E.2d 917, 922 (1983).
Accordingly, we affirm in part, reverse in part, and remand the matter to the trial court
for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part
and remanded.
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