COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia
BENJAMIN H. RICE, SR. AND
KATHLEEN W. RICE
OPINION BY
v. Record No. 0226-06-2 JUDGE RANDOLPH A. BEALES
DECEMBER 28, 2006
BENJAMIN H. RICE, JR. AND
V. CAMEILLE CROMER
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Von L. Piersall, Jr., Judge Designate
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 for appellee V. Cameille Cromer.
No brief or argument for appellee Benjamin H. Rice, Jr.
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
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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
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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
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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.”
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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 that impressions of how
therapy has gone, completion of goals, treatment, over-all mental health, emotional needs or
observations of the child are not barred . . . because statements of that nature may not necessarily
enure to the benefit or detriment of either parent or his or her relatives.”
Code § 20-124.3:1(B) states in pertinent part:
In any case in which custody or visitation of a minor child is at
issue pursuant to § 20-124.2, whether in a circuit or district court, a
mental health care provider licensed in the Commonwealth may
not be required to testify on behalf of or against a parent or any of
the parent’s adult relatives, and may do so only with the advance
written consent of the parent.
In Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59 (2005), where the therapist was “a
mental health care provider for the children,” id. at 149, 616 S.E.2d at 61, we interpreted the
language and legislative history of Code § 20-124.3:1. There, we held:
The language in Code § 20-124.3:1 is plain. . . . Subsection (B)
provides that the mental health care provider “may not be required
to testify on behalf of or against a parent or any of the parent’s
adult relatives” without “the advance written consent of the
parent.” . . . In addition, Code § 20-124.3:1 provides no exception
permitting the trial court to order disclosure for the broad purpose
of determining the best interests of the child.
Id. at 156-58, 616 S.E.2d at 65-66 (quoting Code § 20-124.3:1) (emphasis in original). We also
noted that “[n]othing in the language of Code § 20-124.3:1 as enacted requires that the parent
must have been a patient in order to invoke the privilege.” Id. at 156, 616 S.E.2d at 65 (emphasis
added).
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While we recognize that the mother in Schwartz desired to specifically exclude
“testimony about her[self],” we hold that the rationale of that case and this Court’s interpretation
of the plain language in Code § 20-124.3:1 still apply to this matter. In this case, the mental
health therapist (Hall), who was hired by the mother and called to testify by the grandparents, is
necessarily testifying “on behalf of or against” one or both of the parents or an adult relative of
either parent (i.e., the grandparents), since they are all parties to this dispute. Moreover, a
portion of the guardian ad litem’s proffer – that the therapist would testify as to “impressions
about [the] child and statements that may have been made by the parent” – suggests that some of
Hall’s testimony would, in fact, directly relate to a parent.1
Here, the trial court did not err in its interpretation of the statute and its subsequent ruling
on the motion in limine. In fact, the trial judge, in articulating his decision, quoted verbatim the
language of the statute that compels his holding. The trial court noted that grandparents offered
Hall’s testimony, and that fact made it likely that the substance of the testimony would be
adverse to mother’s position in the case. Thus, we hold the trial court did not err in restricting
Hall’s testimony; both our decision in Schwartz and the plain meaning of Code § 20-124.3:1
compel this result.2
1
In his response to the motion in limine, the guardian ad litem argues, “Ms. Hall’s
opinions, impressions, statements regarding sessions and information relating to discussions with
the respondent, Ms. Cromer, address the subject matter that is before the Court . . . .” This
representation leads us to conclude that at least part of Hall’s testimony would recount
conversations that the mother had wished to remain confidential.
2
Code § 20-124.3:1(B) also provides that “the court may order a licensed mental health
care provider to testify on matters specifically related and limited to suspicion of an abused or
neglected child as defined in § 63.2-100 of the Code of Virginia.” Neither party argued, at trial
or on appeal, that this provision of the statute applies to the facts of this case.
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B.
Questions 2 and 3, as phrased by appellants, are: 2) did the trial court abuse its discretion
“in not ordering visitation [by the grandparents with their grandchild] to be in the best interest of the
child”; and 3) did the trial court err in its “application of the best interests [of the child] standard in
denying appellants’ petition for visitation.” Both questions present substantially the same issue.
Thus, we address the two together, noting specific arguments that appellants make within each.
i.
For purposes of this section, we assume without deciding that the trial court applied the
proper legal standard, the best interests of the child. Code § 20-124.3 lists ten factors that a trial
court “shall consider” when “determining best interests of a child for purposes of determining
custody or visitation arrangements.” “Although the trial court must examine all factors set out in
Code § 20-124.3, ‘it is not required to quantify or elaborate exactly what weight or consideration
it has given to each of the statutory factors.’” Brown v. Brown, 30 Va. App. 532, 538, 518
S.E.2d 336, 338 (1999) (quoting Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599
(1995)) (additional citation omitted). “As long as evidence in the record supports the trial court’s
ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” Id.
“Where, as here, a court hears evidence ore tenus, its findings are entitled to the weight
of a jury verdict, and they will not be disturbed on appeal unless plainly wrong or without
evidence to support them.” Gray v. Gray, 228 Va. 696, 699, 324 S.E.2d 677, 678 (1985). See
also Denise v. Tencer, 46 Va. App. 372, 397, 617 S.E.2d 413, 426 (2005). Moreover, it is well
established that “[o]n appeal, we view the evidence in the light most favorable to the prevailing
party, granting that party the benefit of any reasonable inferences.” Id.
In reaching a decision in this matter, the trial court specifically discussed his evaluation
of the experts’ testimony. For example, the judge found Dr. Hagan “helpful,” while noting that
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Mr. Wilhelm “seemed not to know a lot.” Such an evaluation rests solely with the trial judge, as
“the credibility of witnesses and the weight to be accorded their testimony is a matter exclusively
within the province of the trier of fact.” Yopp v. Hodges, 43 Va. App. 427, 439, 598 S.E.2d 760,
766 (2004).
Here, the trial court properly considered the Code § 20-124.3 factors and the evidence
presented in the case. Taken in the light most favorable to mother (the party who prevailed in
the trial court), and as the trial court found, there exists “some evidence that, after . . . visitation,
there is some exacerbation in the child’s problem behavior.”3 Consequently, the trial court
determined that giving “the mother . . . the right to make the decision about how things are
handled with this child” was in the best interests of the child because “everybody, including the
guardian [ad litem], says the child is suffering at this time and has problems and difficulties.”
We cannot say this ruling by the trial court was plainly wrong or without evidentiary
support. Accordingly, and given our standard of review on this issue, we hold that the trial court
did not abuse its discretion, and we, therefore, affirm its denial of appellants’ petition for
visitation.
ii.
On brief, grandparents also argue that the trial court “place[d] too much weight in
consideration of Dr. Hagan’s opinions and findings” and moreover, that Hagan’s “testimony
should have been excluded.”
3
We note that the record certainly does not establish that the grandparents were the cause
of the child’s masturbation. Indeed, the trial judge favorably commented upon the grandparents’
child-rearing abilities and noted that the grandparents have cooperated in the mother’s efforts to
seek counseling for the child.
We further note that the trial judge’s decision in this case was made in the light of a
finding in an administrative proceeding that the father, who had lived in the grandparents’
residence, had sexually abused the child. That finding is the subject of an appeal to this Court in
a separate proceeding.
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After a lengthy discussion on brief about the admissibility of expert testimony, appellants
clarify that argument as follows: “Dr. Hagan’s testimony should have been excluded by the
court because his opinions were founded on assumptions that have an insufficient factual basis
and because he failed to consider all the variables that could influence his opinion.” In
addressing that claim, we again note “‘that the trier of fact ascertains [an expert] witness’
credibility, determines the weight to be given to their testimony, and has the discretion to accept
or reject any of the witness’ testimony.’” Piatt v. Piatt, 27 Va. App. 426, 435, 499 S.E.2d 567,
571 (1998) (quoting Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc)
(additional citation omitted)). Thus, to the extent that appellants argue the trial court improperly
weighed Dr. Hagan’s testimony, we hold that the trial court did not abuse its discretion in that
regard.
C.
Mother maintains on cross-appeal that the trial court erred by applying the best interests
of the child standard rather than the actual harm standard articulated in Williams and Griffin.
However, our holding above renders a decision on that issue unnecessary because the trial court
denied appellants’ petition under the more lenient of the two standards. Thus, even if this Court
were to determine the trial court erred by not first finding actual harm, the result in this case
would not be different.
Mother, nonetheless, asks this Court to address the issue and hold any error, if found,
harmless. We decline the invitation to do so, in accordance with this Court’s long-standing
reluctance to issue an advisory opinion. See Logan v. Commonwealth, 47 Va. App. 168, 171
n.3, 622 S.E.2d 771, 773 n.3 (2005) (en banc) (noting “our reluctance to issue what amounts to
an ‘advisory opinion’ on an inessential subject” (quoting Craddock v. Commonwealth, 40
Va. App. 539, 551 n.1, 580 S.E.2d 454, 461 n.1 (2003))).
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III.
ATTORNEYS’ FEES
Both parties request an award of attorneys’ fees. As we held in O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996):
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
Here, we find no reason to award either party attorneys’ fees under this standard and accordingly
deny each party’s request for the same.
IV.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Each party remains
responsible for its attorneys’ fees.
Affirmed.
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Clements, J., concurring, in part, and dissenting, in part.
I concur with sections II(B), II(C), and III of the majority opinion. I disagree, however, with
the majority’s conclusion in section II(A) that “our decision in Schwartz [v. Schwartz, 46
Va. App. 145, 616 S.E.2d 59 (2005),] and the plain meaning of Code § 20-124.3:1 compel” us to
affirm the trial court’s decision not to permit the paternal grandparents and the guardian ad litem
for the child to elicit testimony from Wendy Hall, the child’s former therapist, regarding her
observations and impressions of the child during therapy. Indeed, for the reasons that follow, I
would hold that the trial court misconstrued Code § 20-124.3:1 and Schwartz and improperly
limited Hall’s testimony as a result. Accordingly, I respectfully dissent from section II(A) of the
majority’s opinion.
Code § 20-124.3:1 provides as follows:
A. Notwithstanding any other provision of law, in any case
in which custody or visitation of a minor child is at issue pursuant
to § 20-124.2, whether in a circuit or district court, the records
concerning a parent, kept by any licensed mental health care
provider and any information obtained during or from therapy shall
be privileged and confidential.
B. In any case in which custody or visitation of a minor
child is at issue pursuant to § 20-124.2, whether in a circuit or
district court, a mental health care provider licensed in the
Commonwealth may not be required to testify on behalf of or
against a parent or any of the parent’s adult relatives, and may do
so only with the advance written consent of the parent. If the
mental health care provider testifies, such testimony shall be
limited to the custody or visitation case in question, and the
provider’s records and notes regarding that parent shall be
admissible in the court proceeding. However, the court may order
a licensed mental health care provider to testify on matters
specifically related and limited to suspicion of an abused or
neglected child as defined in § 63.2-100 of the Code of Virginia.
C. Nothing in this section shall supercede the provisions of
§ 63.2-1509 of the Code of Virginia related to the required
reporting of suspicion of an abused or neglected child.
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D. This section shall not apply to mental health care
providers who have conducted or are conducting an independent
mental health evaluation pursuant to a court order.
The parties agree that, because neither parent consented to Hall’s testimony, Code
§ 20-124.3:1(B) applies to limit the admission of Hall’s testimony in this case. They disagree,
however, as to the extent of that limitation.
Mother contends Code § 20-124.3:1(B) precludes the admission of all of Hall’s
testimony. Hall’s testimony, mother asserts, was offered by the grandparents and was thus
“intended to be favorable to [their] position.” As such, mother argues, it was necessarily “in
derogation or against” her “and her opposition to grandparent visitation.” Mother concludes that,
because the entirety of the testimony was “against” her, the statute completely bars its admission.
This interpretation, mother asserts, is required by this Court’s decision in Schwartz.
Joined by the child’s guardian ad litem, the grandparents contend Code § 20-124.3:1(B)
was not intended to completely prohibit all of Hall’s testimony, but only that testimony that was
specifically about mother or father or their adult relatives. They argue that “nothing in the
language of . . . Code § 20-124.3:1 or this Court’s holding in Schwartz bars” Hall’s testimony
about the child herself. Thus, they conclude, “the trial court should have heard . . . Hall’s
testimony regarding her impressions and observations of [the child].”
“The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.” James v.
Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904 (1994). “By definition, when the
trial court makes an error of law, an abuse of discretion occurs.” Bass v. Commonwealth, 31
Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). The issue as to what extent Code
§ 20-124.3:1(B) precludes the admission of Hall’s testimony in this case presents a question of
law, which is to be reviewed de novo. See Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d
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922, 925 (2006) (holding that, “[b]ecause statutory interpretation presents a pure question of law,
it is subject to de novo review” on appeal).
In interpreting a statute, we endeavor “‘to search out and follow the true intent of the
legislature, and to adopt that sense of the words which harmonizes best with the context, and
promotes in the fullest manner the apparent policy and objects of the legislature.’” Colbert v.
Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d 108, 110 (2006) (quoting Jones v. Rhea, 130
Va. 345, 372, 107 S.E. 814, 823 (1921)). Additionally, “we have a duty, whenever possible, ‘to
interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate
the legislative goal.’” Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005) (quoting
Virginia Elec. & Power Co. v. Bd. of County Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308,
311 (1983)). In doing so, we “‘look to the whole body of [a statute] to determine the true
intention of each part.’” Id. (alteration in original) (quoting McDaniel v. Commonwealth, 199
Va. 287, 292, 99 S.E.2d 623, 627 (1957)).
Moreover, “while legislative intent ‘must be gathered from the words used, . . .
unreasonable or absurd results must not be reached by too strict adherence to literal
interpretation.’” Colbert, 47 Va. App. at 395, 624 S.E.2d at 110 (quoting Buzzard v.
Commonwealth, 134 Va. 641, 653, 114 S.E. 664, 667 (1922)). Thus, “[a] provision of a section
of a statute ought not to receive a mere literal interpretation, when it would contravene the
intention of the [l]egislature apparent from the other sections and provisions thereof, but the
words are to be expanded or qualified to effectuate the intention.” Tabb v. Commonwealth, 98
Va. 47, 56, 34 S.E. 946, 949 (1900), cited with approval in Pound v. Dep’t of Game and Inland
Fisheries, 40 Va. App. 59, 68, 577 S.E.2d 533, 537 (2003).
Here, mother essentially asks this Court to assign a literal interpretation to the term “on
behalf of or against” in Code § 20-124.3:1(B) and, in so doing, set out a per se rule prohibiting
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the admission in a custody or visitation proceeding of all testimony by a mental health care
provider engaged to counsel a child, unless the child’s parents give their advance written consent
to such testimony. She argues that such testimony, by virtue of the fact that it is being offered at
such a proceeding, necessarily has to be either “on behalf of or against a parent or any of the
parent’s adult relatives” and is thus specifically prohibited under Code § 20-124.3:1(B). I am of
the opinion that, when the statute’s subsections and provisions are read together, Code
§ 20-124.3:1(B) prohibits a mental health care provider who has been engaged to counsel a child
from testifying about the child’s parents and their adult relatives, but not from testifying about
the child him- or herself.
Although not a model of legislative clarity, Code § 20-124.3:1 was clearly intended, in
the context of cases like this, to protect and promote the rights and interests of Virginia’s
children by making sure those children who need mental health therapy are not deprived by their
parents of the benefits of such therapy out of fear that information about the parents revealed
during therapy could be used against them in a custody or visitation proceeding.4 To that end,
Code § 20-124.3:1(A) provides that the therapist’s “records concerning a parent” are “privileged
and confidential.” Code § 20-124.3:1(B) provides that, if the therapist is allowed to testify, his
or her “records and notes regarding that parent” may be admitted into evidence. Neither section
of the statute makes any reference to the therapist’s notes, records, or information regarding the
child. Moreover, Code § 20-124.3:1(B) creates a specific exception to the statute’s prohibition
against evidence from the mental health therapist regarding the parents when that evidence is
“related . . . to suspicion of an abused or neglected child.” This statutory language illustrates the
4
Plainly, the statute was also enacted to allow parents with mental health concerns to
obtain therapy from a mental health care provider without fear that the information learned about
them during therapy would be used against them in a custody or visitation proceeding. The
statute also protects parents in visitation or custody proceedings from having to defend
themselves against claims made about them during therapy by their children.
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legislature’s intent that the statute apply to bar testimony by the child’s therapist about the
child’s parents and the parents’ adult relatives, but not about the child. Clearly, testimony by the
child’s therapist about the child would not have the same potential chilling effect on the parents’
willingness to obtain and participate in therapy for the child as such testimony about the parents
would.
Here, the child’s guardian ad litem proffered the testimony that he and the grandparents
would have elicited from Hall, the child’s former therapist, had she been permitted to testify. In
relevant part, Hall would have testified regarding her observation of the child’s behavioral
problem and the therapeutic process employed to treat that problem. Hall would have further
testified that, “over the term of therapy[, the child] had stabilized quite a bit,” having achieved
“75% progress on all [therapeutic] goals.” In addition, Hall would have testified that, “at the
time of the last [session,] no clinical criteria evidenced any severe difficulty” and that “progress
was made” on the child’s ability to identify and express her feelings regarding the past abuse she
had suffered and its effect on her life. This testimony relating to the child’s diagnosis and
treatment and the therapist’s impressions and observations of the child’s therapy was strictly
about the child and would not have included statements about the parents or their adult relatives.5
Conversely, the testimony at issue in Schwartz was strictly about a parent. In that case,
the children’s court-appointed mental health therapist testified at the contempt proceeding that
the children reported in their sessions that the children’s mother denigrated the children’s father
in their presence at home. Schwartz, 46 Va. App. at 149-50, 616 S.E.2d at 62. The therapist
further testified that the mother denigrated the father in the presence of the children during joint
therapy sessions with the children and the mother. Id. at 150, 616 S.E.2d at 62. Relying on that
5
Mother concedes in her brief that “the intended proffered evidence related to the core
issue of visitation and the child’s current mental health status.”
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testimony, the trial court found the mother had violated the parties’ consent order prohibiting
such behavior. Id. at 150-51, 616 S.E.2d at 62.
On appeal in Schwartz, the mother claimed the trial court erred under Code
§ 20-124.3:1(B) by permitting the father to offer the therapist’s “testimony about her.” Id. at
155, 616 S.E.2d at 64 (emphasis added). The father contended the statute applied “only when
the parent is the patient.” Id. Rejecting the father’s claim that “the parent must have been a
patient in order to invoke the privilege,” we held that the contempt proceeding was part of a
“larger suit . . . [that] included custody and visitation” and that “the trial court’s admission of [the
therapist’s] testimony about mother, given without her written consent and over her express
objection, was error.” Id. at 155 n.3, 158, 616 S.E.2d at 64 n.3, 66 (emphasis added).
It is clear, therefore, notwithstanding mother’s assertion to the contrary, that our decision
in Schwartz is not inconsistent with the conclusion that Code § 20-124.3:1(B) prohibits the
admission of testimony by a mental health therapist that is specifically about the parents or their
adult relatives, but not testimony that is about the child. Accordingly, because the testimony at
issue in this case, unlike in Schwartz, is about the child, and not the child’s parents or their adult
relatives, I would hold that its admission was not prohibited by Code § 20-124.3:1(B).
To hold otherwise would result in the unreasonable and absurd situation that occurred in
this case. As noted by the majority, the grandparents and the child’s guardian ad litem called as
witnesses at the visitation proceeding on October 25, 2005, two mental health care providers who
had evaluated the child. One was Hall, the child’s former therapist who counseled the child from
December 2003 until July 2005. All but a small portion of her testimony was excluded under
Code § 20-124.3:1.6 The other mental health care provider was Don Wilhelm, a licensed clinical
6
Hall was permitted to testify that she was engaged by mother to counsel the child and
that she served as the child’s therapist from December 2003 until July 2005.
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social worker who performed a one-time assessment of the child pursuant to a court order in
September 2004. As mother points out in her brief, that assessment consisted of Wilhelm
observing the child with the grandparents for approximately twenty minutes. Wilhelm testified
that the child did not exhibit “excessive anxiety” or “attempt[] to present a false sense of self”
during that period of observation. In denying the grandparents’ petition for visitation with the
child, the trial judge commented that he “was not impressed with Mr. Wilhelm.” Such a
situation—where the court-appointed evaluator was permitted to testify about the child under
Code § 20-124.3:1 but the child’s long-time therapist was not—reflects an interpretation of the
statute that, in my view, does not comport with the statute’s overall remedial objective of
protecting and promoting the rights and interests of children. Likewise it has the undesirable
effect of hampering the court’s ability, in matters of child custody and visitation, to determine
and further the child’s best interests. See generally Kogon v. Ulerick, 12 Va. App. 595, 596, 405
S.E.2d 441, 442 (1991) (“In matters concerning custody and visitation, the welfare and best
interests of the child are the ‘primary, paramount, and controlling consideration[s].’” (quoting
Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948))); Commonwealth ex rel. Gray
v. Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989) (“The strong public policy of
this Commonwealth posits that the paramount concern where children are concerned are their
best interests.”).
For these reasons, I would reverse the trial court’s decision excluding Hall’s testimony
about the child and remand for reconsideration.
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