Ferguson v. Grubb

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia

DANIEL JOSEPH FERGUSON
OPINION
v. Record No. 1047-02-4 JUDGE ROBERT J. HUMPHREYS
JANUARY 14, 2003
CHRISTINE AYLOR GRUBB

FROM THE CIRCUIT COURT OF CULPEPER COUNTY
J. Howe Brown, Jr., Judge Designate

Michael Kevin Murphy (Law Office of Michael
Kevin Murphy & Associates, on briefs), for
appellant.

No brief or argument for appellee.

J. Michael Sharman (Commonwealth Law Offices,
P.C., on brief), Guardian ad litem for the
minor children.

Daniel Joseph Ferguson appeals from an order of the Culpeper

County Circuit Court, disposing of his appeal from the juvenile

and domestic relations district court ("J&DR court"). Ferguson

contends that the circuit court erred in incorporating the J&DR

court's order into its order disposing of Ferguson's appeal,

because the J&DR court's order contained inappropriate language

concerning the continued appointment of a guardian ad litem. For

the following reasons, we affirm the judgment of the circuit

court.
 I.

Ferguson and Christine Aylor Grubb were never married, but

produced two children during their relationship. On February 28,

2000, the circuit court entered an order granting Grubb sole

custody of the children, subject to certain specified visitation

periods reserved for Ferguson. During the proceedings upon which

the custody order was based, J. Michael Sharman represented the

children as their court-appointed guardian ad litem. The custody

order released Sharman as the guardian ad litem, but transferred

"all matters pertaining to the custody, visitation, [and] support"

of the children back to the J&DR court for purposes of "future

enforcement of the decree or for modification [of the] provisions

thereof as the circumstances may require."

In April of 2001, a complaint was filed with the Orange

County Department of Social Services, alleging that Ferguson had

failed to properly supervise the boys.

Because of the complaint, Grubb denied Ferguson visitation

with the boys on Easter weekend of that year, as well as for two

weekends in April 2001, two weekends in May 2001, and one weekend

in June 2001. 1 Accordingly, Ferguson commenced an enforcement

action in the J&DR court, obtaining three show cause summonses

against Grubb, directing her to show cause why she should not be

1
Apparently, on May 22, 2001, the J&DR court ordered no
further visitation until the matter was resolved.
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held in contempt of the February 28, 2000 custody and visitation

order.

A hearing on these matters was scheduled for June 14, 2001.

Prior to the hearing, Ferguson and Grubb informed the J&DR court

that they had reached an agreement concerning the visitation

issue. In response, the court re-appointed Sharman as guardian ad

litem for the children so that he could represent their interests

as they pertained to any such agreement.

On October 23, 2001, the matter remained unresolved and the

J&DR court entered an order addressing the matter of the rules to

show cause, as well as "two petitions to modify visitation filed

by plaintiff." The court stated, in relevant part, as follows:

Decree

* * * * * * *

The Circuit Court order of February 28, 2000
is modified only as stated herein, and

IT IS THEREFORE, ORDERED, ADJUDGED AND
DECREED that

1. This case is to be considered a foster
care prevention case.

2. Father is to receive, as compensation
for the visitation time lost, two (2)
consecutive weeks of visitation beginning
June 15, 2001 at 5:00 p.m., and continuing
to June 29th, 2001 at 5:00 p.m.

* * * * * * *

In addition to the those [sic] items above
that were agreed upon there were certain
issues that the parties disagreed upon when
the draft of the Order was presented. On

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 September 20, 2001, the Court heard argument
as to those issues with all parties present.

Whereupon it is further ordered by the Court
as follows:

10. The appointment of the guardian ad
litem is continued in this court, and the
guardian ad litem and his staff shall have
access to both parents' homes on an
announced or unannounced basis.

11. Between the hours of 10:00 p.m. and
6:30 a.m., no party shall allow a person
with whom he/she has a romantic relationship
or a person of the opposite sex, who is over
the age of 18 and is unrelated by blood or
marriage, to be in the residential unit
(including but not limited to tent, camper,
hotel room, condominium or house/apartment)
where any of the children are located. This
shall not apply to a person of the opposite
sex who is accompanied by his/her spouse.

12. Between the hours of 10 p.m. [sic] and
6:30 a.m., no party shall allow a person in
whom one of the children has a romantic
interest or a person that one of the
children is dating to be in the residential
unit where any of the children are located.

* * * * * * *

Nothing further having come before the
Court, This [sic] matter is ended.

Ferguson signed the order, but noted his objections to

"[p]rovisions 10, 11 & 12," "as being beyond the authority of the

Court." Ferguson subsequently noted his appeal to the circuit

court, and additionally requested compensatory custodial relief

and counsel fees.

On December 17, 2001, the circuit court held a conference and

scheduled the hearing on the appeal for February 25, 2002. The

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court also "reconfirmed" Sharman as guardian ad litem for the

children. Subsequently, Ferguson filed a motion to vacate the

appointment of Sharman as guardian ad litem.

On February 25, 2002, the circuit court first considered

Ferguson's motion to vacate Sharman's appointment. After hearing

evidence on the motion, the court denied the motion holding that

the evidence did not support Ferguson's claim that Sharman had

acted inappropriately in his role as guardian ad litem and that

Sharman's services were necessary in this particular case because

of his institutional knowledge of the parties and their various

court proceedings.

The court then considered Ferguson's appeal and request for

compensatory visitation. After hearing evidence and argument, the

court denied Ferguson's request for additional visitation, finding

that Grubb had not willfully disobeyed the custody order. The

court also found that a continued appointment of the guardian ad

litem in this matter was warranted under the circumstances of this

case and that such intervention was necessary because the

"children [were] in some jeopardy, and [as such,] foster care

prevention [was] appropriate." In addition, the court found that

there was no legal bar to the guardian ad litem's use of "staff to

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make investigations at the home," holding that such use of staff

was "an implied power that the [g]uardian [a]d [l]item has." 2

Accordingly, the circuit court issued its written order on March

27, 2002 declaring, in addition to the above, that "[a]ll of the

numbered and lettered portions that appear[ed] in the decretal

portion of the lower court's October 23, 2001 order, except for

Provision 11[] and 12[] on Page 5 thereof and except as are

otherwise provided for herein, are hereby incorporated into and

made a part of this order." The order further remanded "[t]his

matter and all future matters regarding enforcement . . . to the

Culpeper [JD&R] court."

II.

On appeal to this Court, Ferguson raises only two issues.

Ferguson first argues that the circuit court erred in

incorporating paragraph 10 of the J&DR court's order into its

decree, because he argues the court lacks the authority to order

the continued appointment of a guardian ad litem where no legal

proceedings remain before the court. Under the circumstances of

this case, we disagree.

"The trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed

unless plainly wrong or without evidence to support it."

2
However, the court struck paragraphs 11 and 12 of the J&DR
court's order.
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Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651

(1986). Indeed, "on review the 'decision of the trial judge is

peculiarly entitled to respect for he saw the parties, heard the

witnesses testify and was in closer touch with the situation than

the [appellate] Court, which is limited to a review of the written

record.'" Sutherland v. Sutherland, 14 Va. App. 42, 44, 414

S.E.2d 617, 618 (1992) (quoting Brown v. Brown, 218 Va. 196, 200,

237 S.E.2d 89, 92 (1977)). Matters of custody and determinations

pertaining to the best interests of the children at issue, "are

left largely to the discretion of the trial court whose judgments

will not be reversed in the absence of a showing that the

discretion given has been abused." Id.

Code § 16.1-266, pertaining to the appointment of guardians

ad litem in matters involving children, provides as follows, in

relevant part:

A. Prior to the hearing by the court of any
case involving a child who is alleged to be
abused or neglected or who is the subject of
an entrustment agreement or a petition
seeking termination of residual parental
rights or who is otherwise before the court
pursuant to subdivision A 4 of § 16.1-241 or
§ 63.1-219.37, the court shall appoint a
discreet and competent attorney-at-law as
guardian ad litem to represent the child
pursuant to § 16.1-266.1.

* * * * * * *

D. In all other cases which in the
discretion of the court require counsel or a
guardian ad litem to represent the interests
of the child or children or the parent or
guardian, a discreet and competent
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 attorney-at-law may be appointed by the
court. However, in cases where the custody
of a child or children is the subject of
controversy or requires determination and
each of the parents or other persons
claiming a right to custody is represented
by counsel, the court shall not appoint
counsel or a guardian ad litem to represent
the interests of the child or children
unless the court finds, at any stage in the
proceedings in a specific case, that the
interests of the child or children are not
otherwise adequately represented.

Ferguson contends that, subsequent to the disposition of his

appeal to the circuit court, there was no "case" before the court

to warrant the court's continued appointment of the guardian ad

litem. Therefore, he contends the court's order directing the

continued appointment was erroneous as the court lacked the

statutory authority to order such an appointment.

We first, and most importantly, note that "'[i]n Virginia, we

have established the rule that the welfare of the infant is the

primary, paramount, and controlling consideration of the court in

all controversies between parents over the custody of their minor

children. All other matters are subordinate.'" Verrocchio v.

Verrocchio, 16 Va. App. 314, 318, 429 S.E.2d 482, 484 (1993)

(quoting Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354

(1948)). Accordingly, "[i]n matters of a child's welfare, trial

courts are vested with broad discretion in making the decisions

necessary to guard and to foster a child's best interests."

Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990).

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 An example of this broad authority granted to courts in such

matters appears in Code § 20-124.2, concerning court-ordered

custody and visitation arrangements. That section provides that

once a court enters an order concerning matters of custody and

visitation, "[the] court shall have the continuing authority and

jurisdiction to make any additional orders necessary to effectuate

and enforce [that] order . . . ." Code § 20-124.2. Thus,

[o]nce a court has ruled on matters relating
to the custody and care of minor children,
and visitation rights of the non-custodial
parent, the court retains jurisdiction
throughout the minority status of the child
involved. The court, in the exercise of its
sound discretion, may alter or change
custody or the terms of visitation when
subsequent events render such action
appropriate for the child's welfare.

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d

10, 11 (1986) (citations omitted).

Therefore, because relief under the child custody statute

remains within the court's jurisdiction throughout the infancy of

the child involved, it is clear that both the J&DR court and the

circuit court here retained jurisdiction over the custody matters

of the children, sufficient to empower them with the authority to

order the continued appointment of the guardian ad litem, until

the children reached the age of majority.3

3
This fact remains true, despite the J&DR court's, perhaps,
inartful wording in the October 23, 2001 order stating, "This
matter is ended."
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 Moreover, we have held that "'the rules and statutes that

presently express the [circuit] court's authority to appoint

guardians ad litem are not exclusive sources of that power.

Rather they are non-exclusive codifications of an equitable power

and responsibility dating back to chancery days.'" Verrocchio, 16

Va. App. at 318-19, 429 S.E.2d at 485 (quoting Stewart v. Superior

Court, 787 P.2d 126, 129 (Ariz. 1989)). The Court based this

determination upon the common law doctrine of parens patriae,

which is "defined as that power of the Commonwealth to watch over

the interests of those who are incapable of protecting

themselves." Id.

In Verrocchio, we recognized that "[i]n child custody cases,

the equitable nature of this doctrine focuses the power of the

court on the best interests of the child," id., noting that

"[t]his protective power, which is unique to those cases dealing

with the rights and interests of children, includes the long

established practice of appointing a guardian ad litem to protect

the best interests of a child upon the chancellor's determination

that such appointment is necessary." Id. at 319, 429 S.E.2d at

485.

"We are mindful, however, that despite the great need for a

circuit court to have the power to appoint a guardian ad litem in

an appropriate case, '[a] trial court must have a cognizable basis

for granting equitable relief.'" Id. at 317-18, 429 S.E.2d at 484

(quoting Tiller v. Owen, 243 Va. 176, 179, 413 S.E.2d 51, 53
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(1992)). Furthermore, it must be remembered that a guardian's

duties are judicial, rather than caretaking.

Thus, "[t]he obligation to comply with the statutory scheme

that has been designed by the legislature to protect parents and

children cannot be abandoned by a judge under the guise of seeking

'to promote the best interests of a child.'" Willis v. Gamez, 20

Va. App. 75, 82, 455 S.E.2d 274, 278 (1995). Instead, "the

established practice is that a guardian ad litem may be appointed

after a trial judge makes a preliminary finding that the best

interests of the child require such appointment." Verrocchio, 16

Va. App. at 317, 429 S.E.2d at 484. Such interests may require

affirmative judicial action on the part of the guardian ad litem

in properly fulfilling his or her duties. See Stanley v. Fairfax

County Dep't of Soc. Serv., 242 Va. 60, 62, 405 S.E.2d 621, 622

(1991) ("[A] guardian ad litem may file affirmative pleadings

necessary to protect the ward's interest.").

Here, the court made the appropriate factual determination.

Indeed, both the J&DR and circuit courts specifically found that

this was a "foster care prevention case," requiring the continued

intervention of the court, through the guardian ad litem, to

protect the best interests of the children at issue. Under these

circumstances, we find no error in the court's order directing the

continued appointment of the guardian ad litem.

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 III.

Ferguson next contends that the court lacked the authority

to allow the guardian ad litem, by way of its order, to utilize

staff members to carry out his duties. Once again, we disagree.

Code § 16.1-266.1 states the minimum criteria for attorneys

appointed as guardians ad litem as "(i) [a] license or

permission to practice law in Virginia, (ii) current training in

the roles, responsibilities and duties of guardian ad litem

representation, (iii) familiarity with the court system and

general background in juvenile law, and (iv) demonstrated

proficiency in this area of the law." Furthermore,

[t]he nature of the duties of a guardian ad
litem was addressed by this Court in Norfolk
Division of Social Services v. Unknown
Father, 2 Va. App. 420, 345 S.E.2d 533
(1986), where we emphasized that [a]
guardian ad litem is required to represent
vigorously the infant or other person under
a disability, fully protecting that
individual's interests and welfare.

Stanley v. Dep't of Social Services, 10 Va. App. 596, 603, 395

S.E.2d 199, 202-03 (1990), aff'd by Stanley v. Fairfax County

Dept. of Social Services, 242 Va. 60, 405 S.E.2d 621 (1991); see

also Rule 8:6. "To discharge this responsibility properly, a

guardian is expected to 'investigate thoroughly' and 'carefully

examine [] the facts surrounding the case.'" Doe v. Doe, 15

Va. App. 242, 245, 421 S.E.2d 913, 915 (1992) (quoting Ruffin v.

Commonwealth, 10 Va. App. 488, 495, 393 S.E.2d 425, 429 (1990))

(omission in original).
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 Ferguson has offered no authority, nor can we find any,

standing for the proposition that a guardian ad litem is barred,

in an appropriate case, from utilizing court-approved or

designated staff, in assisting with fulfilling his or her

obligations in that role. It is the guardian ad litem who retains

the ultimate responsibility and accountability to the court in

carrying out his or her role in the manner required by the court,

as well as the applicable statutory and judicial mandates.

Accordingly, on the facts presented in this case where the staff

member at issue possessed special expertise, we find no error in

the court's order directing Ferguson and Grubb to permit the

guardian ad litem and a member of his staff to visit their homes

on an unannounced or announced basis, for the purposes stated in

the court's order.

For the reasons stated above, we affirm the judgment of the

circuit court.

Affirmed.

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