Rosa G. Harris v. Katherine A. Boxler ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
ROSA G. HARRIS AND
DARRYL S. HARRIS
MEMORANDUM OPINION *
v. Record No. 0604-03-3 PER CURIAM
SEPTEMBER 2, 2003
KATHERINE A. BOXLER
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Thomas H. Wood, Judge
(Rosa G. Harris; Darryl S. Harris, on brief,
pro se).
(John C. Wirth; Nelson, McPherson, Summers &
Santos, L.C., on brief), for appellee.
On appeal, Rosa G. Harris (Rosa) and Darryl S. Harris
(Darryl) raise several questions regarding the outcome of Rosa's
petition for visitation with her granddaughter. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27. 1
PROCEDURAL BACKGROUND
On September 13, 2001, Rosa, the paternal grandmother of
Ashley Lynne Boxler (the child), filed a petition for visitation
with the child.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The child's guardian ad litem did not file a brief.
By order dated August 28, 2002, the juvenile and domestic
relations district court (juvenile court) denied the petition
for visitation. On August 30, 2002, Rosa's attorney, Susan
Read, noted an appeal "on behalf of Rosa Harris."
On November 27, 2002, the trial court heard Rosa's de novo
appeal of the juvenile court's decision. By opinion letter
dated December 18, 2002, the trial court denied the petition.
On February 12, 2002, the trial court entered a final order.
BACKGROUND FACTS
On appeal, we consider the evidence in the light most
favorable to the party prevailing below. Wilson v. Wilson, 12
Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). So viewed, the
evidence proved that appellee Katherine A. Boxler Hodge
(Katherine) and Darryl are the natural parents of the child. 2
Katherine married Darryl in June 2000. A few weeks later, a
rift developed, and on June 22, 2000, Darryl sexually assaulted
and abducted Katherine. Darryl was convicted and sentenced on
those charges in April 2001. He is presently incarcerated on
those charges. Katherine and Darryl "have had no relationship
of any kind since" the assault and abduction, prior to the birth
of the child.
2
No transcript, or a written statement of facts in lieu
thereof, was filed under Rule 5A:8. Accordingly, the only
available facts are those found in the trial court's detailed
opinion letter.
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Katherine subsequently divorced Darryl. She married Kevin
Hodge in April 2002. Neither Rosa nor Darryl "have ever seen
[the child] and have not had any type of contact or
communication with her." Rosa testified that she was "not
willing to initiate visitation with [the child] at Katherine's
house," and she stated that "she intends to take the child to
visit Darryl" in prison, unless the trial court forbids such
visits. "Katherine adamantly oppose[d] visitation and stated
that" her future goal was for her present husband to adopt the
child.
On February 12, 2003, the trial court entered a final order
denying "the Petition for Visitation filed by Rosa Harris." The
trial court considered "all of the factors set forth in Va. Code
(1950) § 20-124.3" and found there was "virtually no evidence"
that visitation by Rosa would be in the child's best interest.
APPELLEE'S MOTION TO DISMISS
Katherine moved to dismiss this appeal because appellants
failed to timely file a transcript or statement of facts
pursuant to Rule 5A:8. This rule, however, does not require a
dismissal of the appeal if the record is sufficient otherwise to
determine the merits of issues on appeal without the
transcripts. See Goodpasture v. Goodpasture, 7 Va. App. 55, 58,
371 S.E.2d 845, 846-47 (1988); Turner v. Commonwealth, 2
Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).
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After reviewing the record in this case and the issues in
question, we conclude that the transcript is not indispensable
to our resolution of appellants' argument that the trial court
erred in finding Rosa failed to present sufficient evidence to
obtain the requested visitation. Therefore, we deny the motion
to dismiss and address the merits of appellants' sufficiency
argument.
ISSUES PRESERVED
Appellants filed no transcript or statement of facts, see
supra note 2, therefore, we are limited to the information
contained in that portion of the trial court record that was
timely filed.
Through counsel, Rosa included written objections on the
final order contesting the "finding that [she] failed to carry
her burden of proof." She argued that the trial court erred
in light of evidence presented at trial of
the familial relationship between Ashley
Boxler and Rosa Harris, Rosa Harris'
custodianship of two young half-siblings of
Ashley Boxler, Rosa Harris' qualities as a
caretaker of children and Rosa Harris'
intent to support a relationship between
Ashley Boxler and her father.
Darryl, through his guardian ad litem, included the
following written objections:
The trial court erred in finding there was
virtually no evidence that visitation
between Rosa Harris and the minor child
would be beneficial to the child, as
evidence was presented at the trial that
Rosa Harris is the legal custodian of Ashley
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Boxler's half-siblings, that she is a fit
and proper caregiver for those children,
that Darryl S. Harris, Ashley's father, who
is set to be released from incarceration in
August 2006, desired to establish a
relationship with Ashley while she is still
young, and that Ms. Harris would support and
encourage the relationship between Mr.
Harris and his daughter.
ISSUES ON APPEAL
On appeal, appellants 3 raised the following issues:
(1) Did the circuit court satisfy the
constitutional requirement that a denial of
visitation would be harmful or detrimental
to the welfare of the child?
(2) Did the circuit court properly consider
the guardian ad litem's recommendation or
opinion?
(3) May the Juvenile & Domestic Relations
District [Court] not provide a prompt
adjudication of the original petition for
visitation irregardless of any petitions
filed thereafter? Was due process denied?
ISSUE I
In their first issue, appellants contend the trial court
applied an incorrect standard in denying visitation by Rosa, a
non-parent. They also argue that the trial court erred in
refusing to abide by the recommendation of the child's guardian
ad litem.
3
The record shows that, on March 7, 2003, Darryl filed a
Notice of Appeal listing "Rosa G. Harris" and "Darryl S. Harris"
as petitioners and "Katherine A. (Boxler) Hodge" as respondent.
Rosa and Darryl signed the notice. Darryl indicated under his
signature that he is proceeding pro se.
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A. Standard for Visitation
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the 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 justice." Rule 5A:18. "The burden is upon the appellant to
provide us with a record which substantiates the claim of
error." Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App.
1178, 1185, 409 S.E.2d 16, 20 (1991) (citation omitted).
The record fails to show that appellants raised or
preserved an objection to the standard applied by the trial
court. Accordingly, Rule 5A:18 bars our consideration of this
question on appeal. Moreover, because the trial court correctly
applied the standard expressed in Dotson v. Hylton, 29 Va. App.
635, 638–40, 513 S.E.2d 901, 903 (1999), 4 the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
4
The detriment or harms test that appellant and Darryl
contend in their brief should have been applied is actually a
more stringent test. See Williams v. Williams, 256 Va. 19, 20,
501 S.E.2d 417, 417 (1998) (when both parents of intact family
object to grandparent visitation, the state must have compelling
interest before interfering with parental rights; thus, the
trial court had to first find that withholding visitation would
be detrimental to the child before it applied the best interests
standard).
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B. Sufficiency
In their additional argument, appellants challenge the
trial court's decision, arguing that it ruled contrary to the
weight of the evidence.
"Code § 20-124.2(B) requires a showing of 'clear and
convincing evidence' before visitation may be awarded to a
non-parent. This erects a 'more stringent standard' than a mere
'preponderance of the evidence.'" Griffin v. Griffin, 41
Va. App. 77, 85, 581 S.E.2d 899, 903 (2003) (quoting Congdon v.
Congdon, 40 Va. App. 255, 263, 578 S.E.2d 833, 837 (2003)).
"Because the trial court heard the evidence at an ore tenus
hearing, its decision 'is entitled to great weight and will not
be disturbed unless plainly wrong or without evidence to support
it.'" Piatt v. Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570
(1998) (citation omitted). "Absent clear evidence to the
contrary in the record, the judgment of a trial court comes to
an appellate court with a presumption that the law was correctly
applied to the facts." Bottoms v. Bottoms, 249 Va. 410, 414,
457 S.E.2d 102, 105 (1995).
In determining the best interests of the child, the trial
court considered the factors in Code § 20-124.3. Relevant
statutory factors applicable in this case include the
"relationship existing between each parent and each child," the
role each parent played and will play in the future in rearing
the child, "[a]ny history of family abuse," and "[s]uch other
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factors as the court deems necessary and proper to the
determination." Id.
Six weeks after her marriage to Darryl, Katherine decided
to separate. She gave birth to the child after they separated
and has since remarried. The child was almost two years old at
the time of the hearing and had no relationship with Rosa or
Darryl. Appellants are virtual strangers to the child.
Moreover, Rosa refused to accept Katherine's invitation to visit
the child in the mother's home, where she could have begun a
relationship with the child. Instead, she chose to press for
independent visitation, so that she could take the child to
visit Darryl, who is incarcerated for abusing the child's
mother.
The record supports the trial court's determination that
appellants failed to carry their burden of proving by clear and
convincing evidence that visitation was in the child's best
interest. Accordingly, we cannot say that the trial court's
decision was plainly wrong or without evidence to support it.
ISSUE II
Appellants question whether the trial court "properly
consider[ed] the guardian ad litem's recommendation." In the
final order, the child's guardian ad litem objected "because in
[her] opinion . . . it is in the child's best interest to learn
about and know her father now rather [than] be shocked by his
sudden appearance when he is released from incarceration." The
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trial court, sitting as fact finder, disagreed with the guardian
ad litem and found that appellants failed to prove by clear and
convincing evidence that it was in the child's best interests to
award Rosa visitation. As discussed in I (B), supra, the
evidence supports that finding. Moreover, the guardian ad
litem's recommendation focused on visitation with Darryl in
prison and did not address the benefits that would result from
visitation with Rosa.
ISSUE III
Appellants contend the juvenile court failed to provide a
prompt adjudication of the petition for visitation, thus denying
her due process.
"The burden is upon the appellant to provide us with a
record which substantiates the claim of error." Jenkins, 12
Va. App. at 1185, 409 S.E.2d at 20. Appellants did not file a
transcript or a written statement of facts, nor did they include
on the final order a due process objection relating to the
juvenile court proceedings.
"The Court of Appeals 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 Rule 5A:18. Absent anything in the record showing that this
issue was raised and preserved in the trial court, we are unable
to determine if they raised this issue at trial. Accordingly,
Rule 5A:18 bars our consideration of this question on appeal.
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Moreover, because an appeal from a decision by the juvenile
court involves a trial de novo annulling the juvenile court's
decision, see Fairfax County Dep't of Family Servs. v. D.N., 29
Va. App. 400, 406, 512 S.E.2d 830, 832 (1999), the record does
not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
DARRYL'S MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM
On October 21, 2002, the trial court appointed Paul Dryer
as guardian ad litem "to defend and protect the interests of
Darryl S. Harris." In its order, the trial court stated that it
made the appointment because
[i]t appear[ed] that these proceedings
involve matters of custody and visitation
concerning the above minor child, and it
further appear[ed] that the defendant,
Darryl S. Harris, is currently under a
disability due to his incarceration and is
therefore, entitled to the appointment of a
guardian ad litem pursuant to § 16.1-266(D)
of the Code of Virginia.
Code § 8.01-9 requires the appointment of a guardian ad
litem for, inter alia, persons incarcerated on a felony whenever
that person "is a party defendant" in a suit. "Every guardian
ad litem shall faithfully represent the estate or other interest
of the person under a disability for whom he is appointed, and
it shall be the duty of the court to see that the interest of
the defendant is so represented and protected." Id.
Code § 16.1-266(D), upon which the trial court relied in
appointing Dryer as Darryl's guardian ad litem and upon which
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Darryl relies in requesting that this Court appoint him a
guardian ad litem, provides:
In those cases described in subsections A, B
and C which in the discretion of the court
require counsel or a guardian ad litem to
represent the child or children or the
parent or guardian or other adult party in
addition to the representation provided in
those subsections, a discreet and competent
attorney-at-law may be appointed by the
court as counsel or a guardian ad litem.
Subsections A, B and C allow the trial court to appoint a
guardian ad litem in situations where the rights of parents or
juveniles are seriously affected, for example, cases involving a
detention or transfer hearing, a petition to terminate parental
rights, situations where a child is the subject of an
entrustment agreement, allegations of abuse or neglect or a
petition for a child in need of services. Subsections A and B
only pertain to the appointment of a guardian ad litem to
represent a child. Code § 16.1-266(C) provides that the trial
court
shall inform the parent or guardian of his
right to counsel prior to the adjudicatory
hearing of a petition in which a child is
alleged to be abused or neglected or at risk
of abuse or neglect . . . and prior to a
hearing at which a parent could be subjected
to the loss of residual parental rights.
Although Darryl is a person under a disability, see Code
§ 8.01-2(6)(a), he is not "a party defendant" in this appeal.
Darryl joined suit with his mother, who petitioned for
visitation. Like Rosa's retained attorney, Darryl's guardian ad
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litem objected to the denial of Rosa's petition for visitation.
Darryl co-signed Rosa's Notice of Appeal, pro se. On appeal,
Darryl co-signed Rosa's opening brief, and he was the sole
signatory of the certification required under Rule 5A:21(g).
Neither Code §§ 8.01-9 nor 16.1-266(D) require this Court to
appoint a guardian ad litem under these circumstances, viz., to
prosecute Rosa's appeal denying her petition for visitation.
This case did not involve an entrustment agreement, a custody
dispute, a case involving termination of Darryl's parental
rights or any of the actions described in Code § 16.1-266.
Moreover, Darryl is not and was not "a party defendant" in this
suit such that his rights or interests are affected. See Code
§ 8.01-9.
In an overabundance of caution, the trial court appointed a
guardian ad litem in case custody might be an issue. However,
Darryl was not a party defendant, nor were his rights or
interests affected. Accordingly, we deny Darryl's motion for
the appointment of a guardian ad litem.
For the reasons stated herein, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Affirmed.
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