Anonymous B v. Anonymous C

660 S.E.2d 307

51 Va. App. 657

ANONYMOUS B v. ANONYMOUS C and Albemarle County Department of Social Services.

Anonymous C v. Anonymous B and Albemarle County Department of Social Services.

Record No. 1170-07-2.

Record No. 1198-07-2.

Court of Appeals of Virginia, Alexandria.

April 29, 2008.

William H. Hurd (Stephen C. Piepgrass; Troutman Sanders LLP, on briefs), Richmond, for Anonymous B.

Steven L. Raynor (Martin & Raynor, P.C., on brief), Charlottesville, for Anonymous C.

Andrew H. Herrick (Larry W. Davis; Edward H. Childress, Guardian ad litem for the minor child; Albemarle County Attorney's Office; Edward H. Childress, P.C., on brief), Charlottesville, for Albemarle County Department of Social Services.

Present: ELDER, FRANK and MILLETTE, JJ.

ELDER, Judge.

In these related appeals, Anonymous B and Anonymous C, the father and mother of a now seven-year-old daughter, challenge the rulings of the Albemarle County Circuit Court (the trial court) related to a protective order entered following a finding by the juvenile and domestic relations district court (J & DR court) that the child was abused and neglected. On appeal, father contends that, following an administrative reversal of a founded complaint of sexual abuse, the trial court erred in refusing to dismiss the abuse and neglect petition filed against him by the Albemarle County Department of Social Services (DSS) and to vacate the related protective order entered by the J & DR court. He also avers the trial court erred in refusing to allow a trial de novo or even to hear evidence on the issue of whether it was father or mother who abused the child to the extent "such clarification was necessary to determine what sort of protective order was appropriate." Further, he argues that, in the absence of a determination that he abused the child in any way, the trial court's limitation of his visitation to three hours of supervised contact per week was error. Finally, father contends the trial court erred in ordering him to pay a portion of mother's attorney's fees.

Mother, in her related appeal, contends the trial court erred in construing the J & DR court's adjudicatory order, the contents of which the parties attempted to stipulate to in their appeal to the circuit court, as finding only that one of the two parents had abused and neglected the child rather than as finding that father had abused the child sexually.

We hold the trial court did not err in the way mother alleges, did not commit reversible error in refusing to admit certain evidence regarding the administrative proceeding, and did not err in refusing to dismiss the protective order based on the result of that proceeding. Nevertheless, we conclude that, despite the parties' apparent stipulation to the J & DR court's nonspecific finding of abuse, the trial court was required 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 parents, as well. Thus, we vacate the trial court's order of April 18, 2007, and remand for further proceedings consistent with this opinion.¹ On remand, the protective order shall remain in effect until those additional proceedings have been completed.

I. BACKGROUND

Mother and father were engaged and lived together but never married. Daughter was born on December 8, 2000, and at some point thereafter, a dispute arose over custody. By order of August 10, 2004, the J & DR court awarded mother primary physical custody and granted father liberal visitation. That order also included findings that "[t]here is no evidence to support [the mother's] abuse allegations against the Father" and "no evidence that the child is experiencing any physical, mental or emotional problems at this time." The court directed that a particular therapist "conduct mental health wellness check-ups" of the child at a frequency to be determined by that therapist and that the child "shall have no mental health therapy unless it is approved by [that therapist] who can make that referral for another counselor." Finally, the order provided that "[i]f either parent believes it necessary to have a medical or psychological exam involving alleged abuse, that parent shall directly contact Albemarle County CPS before such appointment, so that Albemarle CPS can be present at such exam."

Sometime in late 2004, mother contacted Dr. Viola Vaughan-Eden, a licensed clinical social worker specializing in child sexual abuse, and asked about having the child evaluated. Mother also contacted DSS social worker Lori Green, who approved the evaluation. On December 29, 2004, Dr. Vaughan-Eden met with Green, mother, and the child. She then met with the child alone on four different occasions. During those sessions, the child reported her father had "a purple thing" called a "peanut," "that the peanut had been put in her butt," and "that it had really hurt." When Dr. Vaughan-Eden asked the child to identify her body parts on a drawing she had made of herself, "she identified her genitalia as being a vagina," and when Dr. Vaughan-Eden asked, "what does daddy have?" the child responded, "daddy has a peanut." The child also said "the purple thing is like a crown" or "crayon" and that "grown-ups have to help it get hard." The child said her father "had also been touching her vagina ... with his hand" on several occasions and "had put the peanut on her forehead."

Dr. Vaughan-Eden contacted DSS's Lori Green to report the suspected abuse. After the child repeated to Ms. Green and a police detective some of her allegations that her father had sexually abused her, DSS filed a petition for a preliminary protective order pursuant to Code § 16.1-253 alleging the child had been sexually abused, and the J & DR court entered an ex parte preliminary protective order.

The J & DR court held an adversarial hearing on the petition on February 16, 2005, at which Dr. Vaughan-Eden testified that, based on the child's age, what the child said and how she said it, Dr. Vaughan-Eden thought it "improbable and not likely" that the child had been coached by mother to accuse father. The court ruled as follows:

Well I think clearly the evidence shows that this child is the subject [of] abuse and neglect.... [A]t this point I really can't identify a perpetrator because the problem with the evidence [is that] ... it's either clearly coming from the mother or from the father. And the problem ... with this whole case[ ] is that you never can get to the bottom of the matter because there is always interference. And [mother] certainly did not violate the Court's order, ... but she certainly did skirt it and that creates the problem because Dr. Vaughan-Eden certainly appears to be credible and she certainly has the credentials. But there is always the matter of is this tainted evidence, because there was not open disclosure and the rules were not clearly defined.... [S]o therefore I'm not in a position today to state who the perpetrator is. But we can't allow this situation to continue. So I do find the child has been abused and neglected ... with the perpetrator unidentified at this particular point. I'm going to request Dr. Vaughan-Eden to continue to complete her ... evaluation and in doing so we will make available to her all ... reports that the Court has considered [in] the past....

On February 18, 2005, the J & DR court entered a second preliminary protective order finding the child abused and neglected but stating that, "Due to history and the failure of the mother to comply strictly with a court order the abuser of the child is not identifiable at present." The court ordered no unsupervised contact with the father. Based on father's objection "to the [J & DR court's] entering a finding with respect to the allegation of abuse or neglect," the court scheduled an adjudication hearing with a dispositional hearing to follow.

On March 15, 2005, the J & DR court conducted the adjudicatory hearing, finding again that the child was abused and neglected based on "[t]he facts alleged in the affidavit and the testimony of Dr. Viola Vaughan-Eden," again naming both parents, and restating the requirement that all contact between father and the child would continue to be supervised. The J & DR court's contemporaneous notes, signed by the presiding judge, indicated "finding remains — no party named."

Subsequently, Dr. Vaughan-Eden completed a detailed report in which she (1) recounted the child's statements about father's sexual abuse in detail, (2) indicated the child "denied anyone other than her father hurt[ ] her, and denied anyone t[old] her to make these allegations, including her mother," and (3) opined that the child's statements "appeared to be spontaneous and not coerced." Dr. Vaughan-Eden also made recommendations that each parent and the child receive therapy and that father have only supervised contact with the child.

In a dispositional hearing on April 22, 2005, the J & DR court said it was "not going to be retrying this case" but considered the recommendations of Dr. Vaughan-Eden and a second expert witness. The court ordered appointment of a therapist for the child and directed that both parents "engage in counseling regarding sexually abused children." It also ordered, "For the child's protection and for the father's protection, ... there be only supervised visitation ... so that everyone knows exactly what the contact between the father and the child would be...." On April 29, 2005, the J & DR court then issued a child protective order naming both parents and incorporating most of Dr. Vaughan-Eden's recommendations, including supervised visitation for father, counseling for the child, and participation by both parents in sexual abuse counseling and support groups for parents of sexually abused...