Anonymous C v. Anonymous B
| Decision Date | 11 January 2011 |
| Docket Number | Record No. 2232-09-2 |
| Court | Court of Appeals of Virginia |
| Parties | ANONYMOUS C v. ANONYMOUS B |
Present: Judges Elder, Frank and Powell
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
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 herparents, 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.
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.
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.
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 bestinterests 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). 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) ().
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...
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