Rice v. Rice

• Decision Date: 28 December 2006
• Docket Number: Record No. 0226-06-2.
• Citation: Rice v. Rice, 638 S.E.2d 702, 49 Va. App. 192 (Va. App. 2006)
• Parties: Benjamin H. RICE, Sr. and Kathleen W. Rice v. Benjamin H. RICE, Jr. and V. Cameille Cromer.
• Court: Virginia Court of Appeals

638 S.E.2d 702

49 Va. App. 192

Benjamin H. RICE, Sr. and Kathleen W. Rice v. Benjamin H. RICE, Jr. and V. Cameille Cromer.

Record No. 0226-06-2.

Court of Appeals of Virginia, Richmond.

December 28, 2006.

Adrienne George-Eliades; Scott D. Landry, Guardian ad litem for the minor child (The Eliades Law Firm, P.L.L.C.; Duty, Duty & Landry, on briefs), for appellants.

Lawrence D. Diehl, Hopewell, for appellee V. Cameille Cromer.

No brief or argument for appellee Benjamin H. Rice, Jr.

Present: BENTON, CLEMENTS and BEALES, JJ.

BEALES, Judge.

Benjamin H. Rice, Sr. and Kathleen W. Rice, paternal grandparents, appeal the denial of their petition for visitation with their granddaughter. The grandparents present the following issues: 1) they argue that the trial court erred in its "application of [Code] § 20-124.3:1 [by] not allowing the testimony of Wendy Hall, LCSW"; 2) they claim that the trial court abused its discretion "in not ordering visitation [by the grandparents with their grandchild] to be in the best interest of the child"; and 3) they argue that the trial court erred in its "application of the best interests [of the child] standard in denying appellants' petition for visitation." Cameille Cromer, mother, cross-appeals the trial court's use of "the best interests of the child standard rather than the actual harm to the child test." Each party asks this Court for attorneys' fees associated with the appeal. For the following reasons, we affirm the trial court's ruling and, consequently, decline to rule on mother's cross-appeal issue. We deny each party's request for attorneys' fees.

I. BACKGROUND

The child is the daughter of V. Cameille Cromer and Benjamin H. Rice, Jr. Mother and father had been previously granted a final divorce. A portion of the divorce proceedings involved the cessation of father's visitation and overall contact with the child due to allegations of sexual abuse of the child by her father. In an administrative hearing, father was found to have committed a level 1 sexual abuse act against the child in the grandparents' home. That finding was subsequently affirmed in two administrative appeals, and the matter was pending in circuit court when this appeal was filed.

On February 9, 2004, grandparents filed a petition for visitation with the child. They were granted supervised visitation by a Consent Order on October 29, 2004. Thereafter, the juvenile court granted the grandparents visitation every other weekend for a period of eight hours. Mother appealed the decision to the Prince George Circuit Court, which held a de novo visitation hearing on October 25, 2005.

As a preliminary matter, the trial court heard argument on whether or not to grant mother's motion in limine, which moved to exclude the testimony of the child's former therapist, Wendy Hall. Mother argued that Code § 20-124.3:1 barred testimony by a therapist on behalf of or against a parent without written consent of the parent, which neither mother nor father here had given. The guardian ad litem argued against granting the motion in limine, proffering that Hall's testimony would consist of "impressions about [the] child and statements that may have been made by the parent." The trial court sustained the motion, noting that Hall was brought in to testify by and for a party to the suit (grandparents) and thus could "not testify on behalf or against a parent or any of the parent's adult relatives, if she is called as a mental health provider." The trial court also restricted the testimony of another therapist, Cara Campanella, who was called to testify by the mother.

Next, the parties presented argument on which legal standard the trial court should employ in its analysis of the visitation petition: the best interests of the child standard found in Code § 20-124.3 or the actual harm standard articulated in Williams v. Williams, 256 Va. 19, 501 S.E.2d 417 (1998), and Griffin v. Griffin, 41 Va.App. 77, 581 S.E.2d 899 (2003). The trial court held the best interests of the child standard applied under the facts of this case.

Testimony from paternal grandmother, from mother, and from experts dealt with the child's tendency to twitch and "self-masturbate," which was also termed "self-stimulating behavior." This behavior intensified and resulted in distraction at school and the inability to complete homework.

Mother explained that the level of masturbation would "get[] better" in the period between the visits with grandparents, "but usually the Sunday or Monday afterwards, she becomes completely dysfunctional again. . . . You can't even . . . get her to sit still and do her homework." The child stopped the behavior completely during a four-week period when the grandparents were out of town, but, according to mother, she immediately resumed the behavior when the visitation resumed. Grandmother stated that she initially noticed the behavior in spring 2003, but she did not advise mother of it.

Dr. Leigh Hagan, an expert in forensic psychology, observed and tested the child, noting that the psychological testing used "measures that are well-recognized, they're accepted in the field and they have been subject to peer review." Hagan opined that the child "is a psychologically healthy child, with the exception being the encapsulated area of family pathology, family maladjustment, which . . . derives from the original trauma which gave rise to the founded complaint." Hagan further stated that, as a result of the father's alleged abuse, certain stimuli associated with the grandparents' visits caused the child to resume the self-stimulating behavior, and "the stimuli . . . associated with that original trauma will more likely than not be reawakened for her if there is Court-ordered visitation." Hagan concluded that any loss or separation the child might feel from not visiting the grandparents would be counter-balanced by "protection or insulation from situations that are the same or similar to that resembling those factors surrounding the original trauma."

Don Wilhelm, a clinical social worker, had been previously ordered by the court to perform an assessment on the child and was accordingly admitted "as an expert in the area of attachment." The assessment was performed at Wilhelm's home, with the child and both maternal and paternal grandparents present. Wilhelm did not observe "any excessive anxiety [n]or [did] the child attempt[] to present a false sense of self," leading him to conclude that no "red flags" were present.

Willie Cromer, Jr., the maternal grandfather, recounted that the child's meeting with Mr. Wilhelm "was supposed to be an hour." He explained that Wilhelm only spent between twenty to twenty-five minutes with the child, that Wilhelm twice excused himself to eat during the session, and that Wilhelm spent ten minutes in the front yard conversing with his wife while waiting for a child to arrive on the school bus. He estimated the entire session lasted less than one hour.

The parties stipulated that the father supports the grandparents' petition for visitation.

The trial court denied grandparents' petition, noting its decision was based on the statutory best interest "factors and all the evidence and all the comments." In support of its ruling, the trial court made extensive findings, including the following:

In this case, we have one parent, who definitely says I don't want to be ordered to let my child visit the grandparents, I fully intend for them to have a relationship with the paternal grandparents, but I want to be able to do it when I think it is appropriate and proper, as opposed to the grandparents who say the child gets along well with us, there is no problem when the child is with us, and I have no question about that. I feel certain the child does get along well. I am very impressed with the grandmother, she makes a very good witness, she is very brief in her answers and very straight and direct, she comes right to the point, and I think in probably dealing with problems, child rearing problems, she is very competent and capable of responding appropriately, as one of the witnesses pointed out, to problems of dealing with child's behavior.

But does that mean that they should be allowed to demand from the mother, who is the custodian of this child at this time, the sole custodian, I mean insofar as the father has no visitation or contact, should they be allowed to demand that the mother, over her objection and against her best judgment, to have this child come and visit them. That's what is before me.

The trial judge also found "some evidence that, after th[e] visitation, there is some exacerbation in the child's problem behavior," which was an increased level of masturbation. Therefore, and noting the fact that "this child is suffering at this time and has problems and difficulties," the court held that "the mother has the right to make the decision about how things are handled with this child." Also, the judge stated that he "thought Dr. Hagan's testimony was helpful . . . very well spoken and a man with impressive credentials," but continued, "I was not impressed with Mr. Wilhelm . . . not so much with the description that Reverend Cromer . . . gave, but with Mr. Wilhelm's own testimony, he seemed not to know a lot, which are things we would like for him to be able to give answers to."

The trial judge also held that he was not denying all contact between the grandparents and the child. The judge specifically stated that he would enter an order, if necessary, which would allow cards, letters, and phone calls between the child and her grandparents. Mother was also required to give information and notice to the grandparents so that they could attend the child's "events, soccer games, school plays or whatever might come about."

II. ANALYSIS

A.

Grandparents assert the trial court erred in interpreting Code § 20-124.3:1 and in not allowing therapist Wendy Hall to testify. On brief, they "contend...