Thomas L. Switzer v. Samuel Smith, Jody Botkin, etc

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Agee and Senior Judge Coleman

THOMAS L. SWITZER

v. Record No. 0779-00-3

SAMUEL SMITH, JODY BOTKIN,
WILLIAM SWITZER AND CARLEEN SWITZER MEMORANDUM OPINION * BY
JUDGE ROBERT P. FRANK
WILLIAM SWITZER AND CARLEEN SWITZER JULY 31, 2001

v. Record No. 1159-00-3

THOMAS SWITZER, PAULA SWITZER,
SAMUEL SMITH AND JODY BOTKIN

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge

Thomas L. Switzer, pro se.

Charles E. Garner; Jeffrey A. Link;
Deborah A. Gartzke, Guardian ad litem for the
minor child (Blue Ridge Legal Services, Inc.,
on brief), for appellees Samuel Smith, Jody
Botkin and Paula Switzer.

Roland S. Carlton, Jr. (Carlton & Titus,
P.L.C., on brief), for William Switzer and
Carleen Switzer.

In Record Number 0779-00-3, Thomas L. Switzer (father)

appeals the decision of the trial court granting custody of his

minor child, Daniel Wayne Switzer (Daniel), to Samuel Smith

(Smith) and Jody Botkin (Botkin). Proceeding pro se, father

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
raises the following issues in his brief: 1) Smith and Botkin are

not the most appropriate people to raise his child; 2) Code

§§ 16.1-241(A) and 20-124.1 are unconstitutional; 3) the trial

court did not have jurisdiction to award custody of the child to

unrelated third parties absent initial intervention by the

Department of Social Services; 4) the trial court's award was void

ab initio; 5) Smith and Botkin did not have a valid custody

petition; 6) the non-parent parties failed to overcome the natural

parent presumption and failed to present sufficient evidence of

actual harm; 7) he was denied due process; 8) he was denied equal

protection under the law regarding visitation; and 9) he was

denied his "fundamental right" to have counsel appointed by the

trial court.

In Record Number 1159-00-3, William and Carleen Switzer

(grandparents), father's parents and the paternal grandparents of

the minor child, contend the trial court erred in: 1) finding

that Smith and Botkin have standing to file petitions for custody

"as persons with a legitimate interest"; 2) holding that Smith and

Botkin had a valid petition for custody pending before the court;

3) holding that grandparents come before the court equally with

nonrelatives in determining child custody; 4) determining that a

parent is unfit for custody when no party has made such an

allegation; and 5) finding that Code §§ 16.1-241, 16.1-278.15 and

20-124.1 are constitutional.

- 2 -
 Upon reviewing the record and briefs of the parties, we

conclude that these appeals are without merit. Accordingly, we

affirm the trial court.

I. BACKGROUND

This case has an extensive procedural history that culminated

in the trial court awarding custody of Daniel to Smith and Botkin.

In June 1999, the grandparents filed pretrial motions to vacate

and dismiss the juvenile court's order, alleging lack of

jurisdiction and lack of standing. Father joined in their

motions. By letter opinion dated October 26, 1999, the trial

court overruled the pretrial motions.

On November 29, 1999, the trial court heard de novo the

petitions and cross-petitions filed by the parties. The record on

appeal does not contain a transcript of the hearing, but it does

include a written statement of facts signed by the trial judge.

Father testified he attended anger management classes and that he

and Paula Switzer, Daniel's mother, had committed acts of violence

against each other. Father admitted he violated a juvenile court

order by visiting Daniel at the grandparents' house before he

finished anger management classes. Father indicated the

grandparents had twice served him with "'no trespass papers.'"

Bonnie Shumaker, the Court Appointed Special Advocate (CASA)

volunteer "responsible for this case since January of 1999,"

conducted twenty visits at the residence shared by Smith and

Botkin. She also visited the grandparents' residence and father's

- 3 -
apartment. Shumaker opined that Daniel "has been doing very well

with" Smith and Botkin. The trial court admitted into evidence

CASA reports dated March 8, 1999 and August 4, 1999. After the

juvenile court hearing, grandmother "advised [Shumaker] not to

visit [the grandparents'] mobile home any more and advised her,

that, on the advice of counsel, she would not talk to [Shumaker]

any more."

Penny Critzer, a licensed clinical social worker at the James

Madison University Shenandoah Valley Child Development Clinic,

interviewed all parties in the case and prepared a "comprehensive

evaluation" of Daniel. The forty-page evaluation was "based on an

assessment of the child's needs, potential, developmental status

and observed behavior" with the parties in the case. The trial

court made the report "part of the record." Critzer opined that

"Daniel got along much better with Smith and Botkin" and that,

although the grandparents "love the child[, they] cannot set

limits with him." As a result, Critzer feared Daniel might

develop a "reactive attachment disorder." Critzer testified

"there was an anxiety in the relationship between [Daniel] and

[the grandparents] that was not present in the relationship

between [Daniel] and Smith and Botkin." Finally, Critzer "was

concerned that [father] might hurt [the grandparents]."

Rebecca Prye, a part-time caseworker for the Valley Community

Services Board, first worked with Paula Switzer when she was in a

battered spouse shelter. Prye helped Paula get temporary custody

- 4 -
of Daniel and "was involved in the temporary placement of Daniel

with Smith and Botkin." Prye explained that Paula suffers from

"mental retardation and bipolar affective disorder." Paula stays

with a couple, Timothy and Vicki Banks, who provide foster care

for adults. Prye "testified that [Daniel] has flourished with

Smith and Botkin."

Frances Clark operated the child care center that Daniel

attended "during a substantial portion [of the time] that he has

lived with Smith and Botkin." Clark noticed that when Daniel

returned on Monday after visiting the grandparents, he acted

withdrawn and "lethargic" and "she had problems" with him.

Julia White, a worker with the LIFT program, a program

designed to help "children under three who are developmentally

delayed," stated that in January 1998, Daniel "was three to four

months behind in his cognitive development and his speech. With

Smith and Botkin, [Daniel] caught up with respect to his cognitive

development in less than a year."

Saundra Crawford, a probation officer with the juvenile

court, conducted a custody investigation and prepared a report

that she filed with the trial court.

Grandfather testified he does not have health or life

insurance. He described a physical altercation between himself

and father in February 1999 when Daniel was visiting.

Magdelena Cequeda testified that father offered her and her

children a place to live so he could "show everyone what a

- 5 -
responsible person he is." After she moved in, they constantly

fought and father assaulted her, even after he completed an anger

management course. Cequeda said father "was 'hard' on the

children." She described an incident in which father performed a

sexually explicit act in front of her while her children were in

the residence.

Botkin testified that she and Smith have lived together for

four years. "In December of 1997, Paula asked her and Smith to

watch Daniel while [Paula] had surgery." She and Smith "have had

[Daniel] ever since." Smith and Botkin work full-time for the

same employer. They both receive health and life insurance and

are enrolled in an employer-sponsored 401K plan.

By letter dated December 23, 1999, the trial court awarded

custody to Smith and Botkin "[a]fter carefully considering the

evidence, the statute involved, Sections 20-124.1 through

20-124.3," the authorities cited and the arguments made by the

parties. The trial court indicated that a detailed letter opinion

explaining its decision would be forthcoming.

On January 6, 2000, the trial court issued a letter opinion

confirming the ruling made in its December 23, 1999 letter. The

trial court discussed the "'primacy of the parent-child

relationship'" and acknowledged that Code § 20-124.2 "gives rise

to a presumption that the child's best interests will be served

when in custody of its parents." However, it also explained that

in all child custody cases, "'the best interests of the child are

- 6 -
paramount . . . .'" The trial court "afforded to [father] a

presumption that the best interests of [Daniel] would be served by

awarding [his] custody to him," and it "imposed upon Smith/Botkin

the burden of proving by clear and convincing evidence that the

best interests of [Daniel] dictated that [his] custody be awarded

to someone other than [father]." The trial court recalled the

great amount of evidence establishing how well Daniel was

progressing in Smith and Botkin's custody.

The trial court noted that father "suffers from depression

and an anxiety disorder, and has been diagnosed with a schizoid

personality disorder . . . ." The trial court found that father

is unable "to hold any job for any length of time and his

relationships with all people around him are marked by violence."

The court further explained that father "has deep-seated and

complex mental and emotional problems which cannot be resolved by

a mere anger management course." The court further stated that

father "lacks the ability to control his conduct" and "to care for

a three-year-old child."

The trial court found that father and the grandparents "do

not like each other." In fact, "[t]his animosity surfaced in the

Courtroom during the course of the trial and has been well

documented by every individual who has studied this family."

Despite this antagonism, the court noted that father has frequent

contact with his parents and regularly eats meals with them.

"After considering all the evidence in this case," the trial court

- 7 -
found that the grandparents "lack the ability to successfully

raise this child." The court wrote, "That lack of ability,

coupled with the problems presented by [their] adult, retarded

daughter, Tressa, and the frequent contact with [father]

absolutely dictate that the custody of this child not be awarded

to them."

The trial court acknowledged it was troubled by the fact that

Smith and Botkin, though indicating an intention to marry after

the case was over, lived together "without benefit of marriage."

However, the court noted that the guardian ad litem, the CASA

volunteer, and the clinical social worker all recommended that

custody be awarded to Smith and Botkin. The trial court concluded

as follows:

After considering all of the evidence,
all of the statutory provisions,
particularly the factors to be considered by
the Court in determining the best interests
of the child as set forth in Section
20-124.3, the Court is convinced that the
custody of this child ought to be awarded to
Samuel Smith and Jody Botkin. Not only do
they have youth, intelligence and good
health, they also love this child very
deeply. They very clearly represent the
best option to the Court in this case.

The trial court entered a final order on March 7, 2000 in

which it summarized all of its rulings.

II. ANALYSIS

We first address father's contention that Smith, Botkin and

Daniel's maternal grandmother, Edith Fridley, who lives with

- 8 -
Smith and Botkin, are materially and morally unfit to care for

Daniel. 1 Specifically, father contends Smith and Botkin are

first cousins "who live together in open fornication."

"In matters of custody, visitation, and
related child care issues, the court's
paramount concern is always the best
interests of the child." Farley v. Farley,
9 Va. App. 326, 327-28, 387 S.E.2d 794, 795
(1990). "In 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." Id. at 328, 387 S.E.2d at 795
(citing Eichelberger v. Eichelberger, 2 Va.
App. 409, 412, 345 S.E.2d 10, 12 (1986)).
"A trial court's determination of matters
within its discretion is reversible on
appeal only for an abuse of that
discretion . . . and a trial court's
decision will not be set aside unless
plainly wrong or without evidence to support
it." Id. (citations omitted).

Goldhamer v. Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602

(2000).

We will not again recite the evidence before the trial

court, nor the trial court's finding of father's unfitness. The

trial court heard testimony and weighed it accordingly.

In addition to testimony from witnesses and the parties,

the trial court possessed extensive evidence from experts in the

form of reports, observations and recommendations, all of which

1
Father failed to include this issue in his questions
presented, but addresses it in the "Facts and Argument" section
of his brief. Because he contested the trial court's decision
to award custody to Smith and Botkin, we will address this
argument.

- 9 -
supported its decision to award custody to Smith and Botkin.

After reviewing the record, we cannot say that the trial court's

decision was plainly wrong or without evidence to support it.

We next address father's contention that Code

§§ 16.1-241(A) and 20-124.1 2 are unconstitutional because they

allow "non-parent parties to petition and win custody of a

child." He also claims the "legislature without due process of

law has given the protected rights of parents and other close

relatives of children to anyone who wants them."

Code § 16.1-241(A)(3) grants jurisdiction to juvenile

courts in all cases, matters and proceedings involving the

"custody, visitation, support, control or disposition of a

child . . . [w]hose custody, visitation or support is a subject

of controversy or requires determination."

The statute further provides:

The authority of the juvenile court to
adjudicate matters involving the custody,
visitation, support, control or disposition
of a child shall not be limited to the
consideration of petitions filed by a
mother, father or legal guardian but shall
include petitions filed at any time by any
party with a legitimate interest therein. A
party with a legitimate interest shall be
broadly construed and shall include, but not

2
Code § 20-124.1 simply defines "persons with a legitimate
interest." Father makes no argument that the definition is
unconstitutional. We, therefore, only address the
constitutionality of Code § 16.1-241. Further, father did not
challenge the constitutionality of Code § 20-124.2, which allows
the court to give custody to "any other person with a legitimate
interest."

- 10 -
 be limited to, grandparents, stepparents,
former stepparents, blood relatives and
family members.

Code § 16.1-241.

Father relies on Williams v. Williams, 256 Va. 19, 501

S.E.2d 417 (1998), in support of his argument that the trial

court had no jurisdiction to award custody to "any party with a

legitimate interest." Father's reliance on Williams is

misplaced.

Williams involved court-ordered visitation for the

grandparents pursuant to Code § 20-124.2 over both parents'

objections. See Williams, 256 Va. at 20, 501 S.E.2d at 417.

The Supreme Court upheld this Court's decision that Code

§ 20-124.2 did not unconstitutionally interfere with the rights

of parents in raising their child, writing:

[T]he right of parents in raising their
child is a fundamental right protected by
the Fourteenth Amendment. . . . [S]tate
interference with a fundamental right must
be justified by a compelling state interest,
and that to constitute a compelling
interest, "state interference with a
parent's right to raise his or her child
must be for the purpose of protecting the
child's health or welfare."

Id. at 21, 501 S.E.2d at 418 (citations omitted).

The Supreme Court further wrote:

The Court of Appeals then interpreted
Code § 20-124.2(B) to permit the state to
interfere with the right of parents to raise
their child by allowing a court to order
nonparent visitation upon a showing by clear
and convincing evidence that the best

- 11 -
 interests of the child would be served by
such visitation. [Williams v. Williams, 24
Va. App. 778,] 784, 485 S.E.2d [651,] 654
[(1997)]. However, the Court of Appeals
said that the language in the foregoing
statute that a court "shall give due regard
to the primacy of the parent-child
relationship," evinces the General
Assembly's intent to require the court to
find that a denial of nonparent visitation
would be detrimental to the child's welfare
before the court may interfere with the
constitutionally protected parental rights.
Id.

In other words, the Court of Appeals
said, "For the constitutional requirement to
be satisfied, before visitation can be
ordered over the objection of the child's
parents, a court must find an actual harm to
the child's health or welfare without such
visitation." Id. at 784-85, 485 S.E.2d at
654. A court reaches consideration of the
"best interests" standard in determining
visitation only after it finds harm if
visitation is not ordered. Id. at 785, 485
S.E.2d at 654.

Id. at 21-22, 501 S.E.2d at 418.

In Troxel v. Granville, 530 U.S. 57 (2000), the United

States Supreme Court held that a Washington statute was

unconstitutional as violative of a mother's substantive due

process rights because it placed no limits on who could petition

for visitation or the circumstances under which the petition

could be granted. The Supreme Court held that the mother, who

was a "fit parent," had the absolute right to control the

visitation of her children. See id. at 68-69.

- 12 -
 The Court wrote:

First, the Troxels did not allege, and
no court has found, that Granville was an
unfit parent. That aspect of the case is
important, for there is a presumption that
fit parents act in the best interests of
their children. As this Court explained in
Parham[v. J.R., 442 U.S. 584, 99 S. Ct.
2493, 61 L.Ed.2d 101 (1979)]:

"[O]ur constitutional system long ago
rejected any notion that a child is the mere
creature of the State and, on the contrary,
asserted that parents generally have the
right, coupled with the high duty, to
recognize and prepare [their children] for
additional obligations. . . . The law's
concept of the family rests on a presumption
that parents possess what a child lacks in
maturity, experience, and capacity for
judgment required for making life's
difficult decisions. More important,
historically it has recognized that natural
bonds of affection lead parents to act in
the best interests of their children." 442
U.S., at 602, 99 S. Ct. 2493 (alteration in
original) (internal quotation marks and
citations omitted).

Accordingly, so long as a parent
adequately cares for his or her children
(i.e., is fit), there will normally be no
reason for the State to inject itself into
the private realm of the family to further
question the ability of that parent to make
the best decisions concerning the rearing of
that parent's children. See, e.g., [Reno
v.] Flores, 507 U.S. [292,] 304, 113 S. Ct.
1439[, 123 L.Ed.2d 1 (1993)].

Id.

In Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995),

the Supreme Court of Virginia held:

"In all child custody cases, including
those between a parent and a non-parent,

- 13 -
 'the best interests of the child are
paramount and form the lodestar for the
guidance of the court in determining the
dispute.'" Bailes v. Sours, 231 Va. 96, 99,
340 S.E.2d 824, 826 (1986) (quoting Walker
v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195,
198 (1962)). In a custody dispute between a
parent and non-parent, "the law presumes
that the child's best interests will be
served when in the custody of its parent."
Judd v. Van Horn, 195 Va. 988, 996, 81
S.E.2d 432, 436 (1954).

Although the presumption favoring a
parent over a non-parent is strong, it is
rebutted when certain factors, such as
parental unfitness, are established by clear
and convincing evidence. Bailes, 231 Va. at
100, 340 S.E.2d at 827. . . .

In custody cases, the welfare of the
child takes precedence over the rights of
the parent. Malpass v. Morgan, 213 Va. 393,
399, 192 S.E.2d 794, 799 (1972). But, when
the contest is between parent and
non-parent, this rule is conditioned upon
the principle that a parent's rights "are to
be respected if at all consonant with the
best interests of the child." Id. at 400,
192 S.E.2d at 799. Some of the foregoing
principles have been codified recently by
the General Assembly in Code §§ 20-124.1
to -124.6. Acts 1994, ch. 769. . . .

* * * * * * *

Among the factors to be weighed in
determining unfitness are the parent's
misconduct that affects the child, neglect
of the child, and a demonstrated
unwillingness and inability to promote the
emotional and physical well-being of the
child. Other important considerations
include the nature of the home environment
and moral climate in which the child is to
be raised. Brown v. Brown, 218 Va. 196,
199, 237 S.E.2d 89, 91 (1977).

Id. at 413-19, 457 S.E.2d at 104-07.

- 14 -
 In this case, the trial court recognized the primacy of the

parent-child relationship. The trial judge, in his opinion

letter, set forth his factual findings and concluded father was

unfit. Implicit in the court's ruling was that the child would

be subjected to conduct that would harm the child. Other

evidence before the trial court supports the finding. We see no

need to repeat that evidence.

The trial court also found that it was in the child's best

interest to award custody to Smith and Botkin. The evidence

clearly supports that conclusion as well.

Because there is sufficient evidence to show father is

unfit, there is a compelling "state interest" for the court to

award custody to a non-parent. The child's health and welfare

are at stake. Father, therefore, was not deprived of

substantive due process and Code § 16.1-241 is not

unconstitutional. We, therefore, hold that the trial court did

not err.

Father also contends the trial court did not have

jurisdiction to award Smith and Botkin custody of the minor

child. He contends the judgment "joining Smith/Botkin as

parties, recognizing them as having a legitimate interest in

[his] child, and awarding . . . custody to them [is] void ab

initio under constitutional law."

- 15 -
 As explained above, we upheld the trial court's ruling that

the custody and visitation statutes are constitutional. That

analysis disposes of this issue.

We next address father's contention that the non-parent

parties failed to overcome the natural parent presumption and

failed to present sufficient evidence of actual harm. "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) (citing Jacques

v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631

(1991) (citing Rule 5A:18)).

Upon our review of the record, appellant first raised this

argument in his notice of appeal, which was filed on April 4,

2000. Listing an issue in a notice of appeal does not properly

bring the issue to the trial court's attention or preserve the

issue for appeal. See Rule 5A:18. Accordingly, Rule 5A:18 bars

our consideration of this question on appeal. Moreover, the

record does not reflect any reason to invoke the good cause or

ends of justice exceptions. See id.

Father next contends he was denied due process. He argues

that his visitation was changed by the grandparents without

"trial or notice" and that he has "had only two or three

unsupervised visits with" his son. He also contends he was

denied due process when "Smith/Botkin took [his] child without

trial or notice, [and] again when Smith/Botkin refused to allow

- 16 -
[him] any more visitation without trial or notice, again in JDR

Court, and finally in Circuit Court." In his written closing

argument, filed on December 14, 1999, father wrote, "Also,

others involved have already admitted denying my rights to my

son without due process (i.e., changes in custody and visitation

without my knowledge or consent or my day in court!").

"The Fourteenth Amendment to the United
States Constitution provides that no person
shall be deprived of life, liberty or
property without due process of law."
Jackson v. W., 14 Va. App. 391, 405, 419
S.E.2d 385, 393 (1992). "Procedural due
process rules are meant to protect persons
not from the deprivation, but from the
mistaken or unjustified deprivation of life,
liberty, or property." Carey v. Piphus, 435
U.S. 247, 259, 98 S. Ct. 1042, 1050, 55
L.Ed.2d 252 (1978).

O'Banion v. Commonwealth, 33 Va. App. 47, 61, 531 S.E.2d 599,

606 (2000) (en banc). In order to implicate the Due Process

Clause of the Fourteenth Amendment, there must be state action.

See Miller v. Commonwealth, 25 Va. App. 727, 739, 492 S.E.2d

482, 488 (1997).

Here, the visitation and placement of the child until the

trial court ruled on the matter did not involve state action and

was, therefore, not a violation of due process. Moreover, the

record shows that father received notice of all pleadings and

court hearings. Finally, the statement of facts indicates that

"[father] has been present in court when the custody order and

visitation orders have been entered, but he refuses to endorse

- 17 -
any order." Accordingly, the record fails to show father was

denied due process as a result of state action.

Father contends he was denied equal protection in violation

of the Fourteenth Amendment because "in custody cases fathers

are not treated the same as mothers." He argues, "Paula,

despite her apparent limitations, has been given more liberal

visitation and the chance to care for my child (albeit under the

supervision of others), which I haven't."

"The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court." Ohree, 26

Va. App. at 308, 494 S.E.2d at 488 (citing Jacques, 12 Va. App.

at 593, 405 S.E.2d at 631 (citing Rule 5A:18)).

The record fails to show that appellant made an equal

protection argument to the trial court regarding visitation.

See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration

of this question on appeal. Moreover, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18. See id.

Father argues he was denied his "fundamental right" to

counsel because the trial court did not appoint counsel for him.

"The Court of Appeals will not consider an argument on appeal

which was not presented to the trial court." Ohree, 26 Va. App.

at 308, 494 S.E.2d at 488 (citing Jacques, 12 Va. App. at 593,

405 S.E.2d at 631 (citing Rule 5A:18)).

- 18 -
 The record does not establish that father ever requested or

was denied court-appointed counsel. See Rule 5A:18.

Accordingly, Rule 5A:18 bars our consideration of this question

on appeal. Moreover, because the right to court-appointed

counsel does not extend to civil domestic cases of divorce and

child custody, see M.L.B. v. S.L.J., 519 U.S. 102, 123 (1996)

("[C]ounsel at state expense . . . is a constitutional

requirement . . . only when the defendant faces time in

confinement."), the record does not reflect any reason to invoke

the good cause or ends of justice exceptions to Rule 5A:18. See

Rule 5A:18.

We now address the grandparents' arguments. First, the

grandparents contend that Smith and Botkin were not persons with

a legitimate interest under Code §§ 16.1-241, 16.1-278.15 and

20-124.1.

Code § 20-124.1 does not specifically define a "person with

a legitimate interest" but requires that the term be "broadly

construed to accommodate the best interest of the child." Code

§ 20-124.1. However, we addressed "a party with a legitimate

interest" in a standing context in Thrift v. Baldwin, 23 Va.

App. 18, 473 S.E.2d 715 (1996).

In Thrift, three of the five Thrift children were adopted

by the Baldwins. See Thrift, 23 Va. App. at 19, 473 S.E.2d at

715. The children's paternal grandparents adopted one of the

five children. See id. Subsequently, the paternal grandparents

- 19 -
and the child they adopted petitioned for visitation of the

three children adopted by the Baldwins. See id. In finding

that the paternal grandparents had standing to petition for

visitation, we held:

The statute enjoins a broad
construction of the term "[a] party with a
legitimate interest." We hold that this
term means not only a party possessed of
legal rights with respect to the child, but
also any party having a cognizable and
reasonable interest in maintaining a close
relationship with the child. The statute
expressly provides that the term shall
include "grandparents and other blood
relatives." Although the adoption of the
children by the Baldwins extinguished the
Thrifts' legal grandparental and sibling
relationship, see Code § 63.1-233; see also
Cage v. Harrisonburg Dep't of Social
Services, 13 Va. App. 246, 410 S.E.2d 405
(1991), the blood relationship continues.
Code § 16.1-241(A) expressly confers
standing to seek visitation.

Id. at 20, 473 S.E.2d at 716.

Therefore, we review the facts to determine whether Smith

and Botkin had a "cognizable and reasonable interest" in

maintaining a close relationship with the child.

Thomas and Paula Switzer were married on June 12, 1993 and

separated for the last time in October 1997, after a marriage

marred by repeated incidents of abuse of Paula by Thomas. Upon

separation, Paula spent almost two months in an emergency

battered spouse shelter with the child. Smith and Botkin agreed

to care for the child in January 1998, and he has been in their

custody since that time. At the time of the de novo hearing in

- 20 -
circuit court on November 29, 1999, the child had been living

with them for almost two years.

Evidence further indicated that the child is flourishing

under the care of Smith and Botkin. We agree with the trial

court's finding that Smith and Botkin are "persons with a

legitimate interest." The evidence clearly indicates that they

have a close relationship with the child and a reasonable

interest in maintaining that relationship. The trial court did

not err in finding that Smith and Botkin were "persons with a

legitimate interest."

Both the grandparents and father contend that because Smith

and Botkin asked the court to withdraw their custody petition,

there was no valid custody petition pending to enable the trial

court to award them custody.

We address this argument as put forth in the brief of the

grandparents because father indicated his intention to rely on

their arguments. In his pretrial motion to dismiss, he failed

to independently argue the issue.

On February 24, 1998, Smith and Botkin filed a petition in

the juvenile court for the court to determine custody of the

child. They indicated that Paula left the child in their care

on January 6, 1998, and they requested custody. On August 10,

1998, the guardian ad litem for the child moved the juvenile

court to "consolidate [Smith and Botkin's] petition for

custody," "make [them] parties in this matter," and order

- 21 -
"temporary custody to" Smith and Botkin "pending a full custody

hearing."

On September 14, 1998, the juvenile court found that "the

best interest of [the] child" would be best served by

"preserving the status quo." It then ordered that the child

"temporarily remain in the care of" Smith and Botkin.

On February 24, 1999, Smith and Botkin filed a letter with

the juvenile court indicating they "[would] no longer be

pursuing [their] petition for custody." They expressed

dissatisfaction with the way in which the parties have acted and

agreed with the CASA recommendation that the child be put up for

an open adoption. The record contains no documentation that

Smith and Botkin followed up on their request, nor is there an

order in the record granting the request to withdraw their

petition. To the contrary, subsequent to the letter, they

participated in the custody proceeding and were awarded custody.

The juvenile court conducted a hearing on April 14, 1999. On

May 4, 1999, the juvenile court awarded Smith and Botkin legal

and physical custody of Daniel and denied the custody petitions

of father and the grandparents. Paula's petition for custody

"was voluntarily withdrawn" prior to the hearing.

In its August 26, 1999 opinion letter, the trial court

wrote:

There is no question but that Samuel Smith
and Judy Botkin filed a Petition for
Custody. There is no question but they sent

- 22 -
 a letter to the court indicating they did
not intend to pursue that petition.
However, there is no order in the file
dismissing the petition or indicating that
the court ever took any action on the
letter.

We agree with the trial court's ruling that "the petition

was still pending and validly before the court at the time of

the April 14, 1999 trial." The petition had not been dismissed

and removed from the docket. There was no order removing the

case from the docket. "A court speaks only through its orders."

Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773

(1964). Accordingly, the trial court did not commit reversible

error.

The grandparents next contend the trial court erred in

treating grandparents and non-relatives equally in a custody

determination. They cite no cases, nor do we find any, to

support their position. While acknowledging this issue is a

matter of first impression in Virginia, they cite no case from

any other state.

The grandparents rely on Code § 16.1-283(A), which requires

that the court, in cases involving the termination of residual

parental rights, "shall give a consideration to granting custody

to relatives of the child, including grandparents." This

reference is not persuasive.

"The termination of parental rights is a grave, drastic,

and irreversible action. When a court orders termination of

- 23 -
parental rights, the ties between the parent and child are

severed forever, and the parent becomes 'a legal stranger to the

child.'" Lowe v. Dep't of Public Welfare of City of Richmond,

231 Va. 277, 280, 343 S.E.2d 70, 72 (1986) (quoting Shank v.

Dep't Social Services, 217 Va. 506, 509, 230 S.E.2d 454, 457

(1976)).

The very nature of a custody proceeding is quite different

than termination because parental rights are not lost and

custody is subject to modification upon "'a material change in

circumstances justifying a modification of the decree.'" Ohlen

v. Shively, 16 Va. App. 419, 424, 430 S.E.2d 559, 561 (1993)

(quoting Yohay v. Ryan, 4 Va. App. 559, 565-66, 359 S.E.2d 320,

324 (1987)). Therefore, we hold the language, relied upon by

the grandparents, in Code § 16.1-283(A) is limited to a

termination proceeding.

Further, the argument that relatives be granted preference

in a custody context belies the unambiguous language of Code

§ 20-124.1.

"Where a statute is unambiguous, the
plain meaning is to be accepted without
resort to the rules of statutory
interpretation." Last v. Virginia State Bd.
of Med., 14 Va. App. 906, 910, 421 S.E.2d
201, 205 (1992). "'Courts are not permitted
to rewrite statutes. This is a legislative
function. The manifest intention of the
legislature, clearly disclosed by its
language, must be applied.'" Barr v. Town &
Country Properties, Inc., 240 Va. 292, 295,
396 S.E.2d 672, 674 (1990) (quoting Anderson
v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d

- 24 -
 838, 841 (1944)). Accordingly, we must
"'take the words as written'" in Code
§ [20-124.1] and give them their plain
meaning. Adkins v. Commonwealth, 27 Va.
App. 166, 169, 497 S.E.2d 896, 897 (1998)
(quoting Birdsong Peanut Co. v. Cowling, 8
Va. App. 274, 277, 381 S.E.2d 24, 26
(1989)).

Krampen v. Commonwealth, 29 Va. App. 163, 168, 510 S.E.2d 276,

278 (1999).

In Code § 20-124.2(B), the legislature expressed its

intention that a trial court "give due regard to the primacy of

the parent-child relationship . . . ." However, that same code

section authorizes the trial court to "award custody or

visitation to any other person with a legitimate interest" "upon

a showing by clear and convincing evidence that the best

interest of the child would be served thereby." Code

§ 20-124.2(B).

Code § 20-124.1 provides:

"Person with a legitimate interest" shall be
broadly construed and includes, but is not
limited to grandparents, stepparents, former
stepparents, blood relatives and family
members provided any such party has
intervened in the suit or is otherwise
properly before the court. The term shall
be broadly construed to accommodate the best
interest of the child.

By expressly distinguishing parents from non-parents and by

including relatives and non-relatives as persons with a

legitimate interest, the legislature evinced its desire that all

- 25 -
non-parents, whether relatives or not, come before the court

equally. Accordingly, the trial court did not err in so ruling.

Finally, we address the grandparents' constitutional

arguments. First, they contend the trial court violated the Due

Process Clause of the Fourteenth Amendment when it held that

father was unfit, there being no allegation of unfitness in the

written petition. They maintain that the initial pleading, the

petition for custody, was deficient in that it did not

sufficiently put father on notice that he would need to defend

himself against allegations of unfitness. Next, they challenge

the constitutionality of Code §§ 16.1-241, 16.1-278.15 and

20-124.1. They challenge the concept in these statutes that

"any party with a legitimate interest" may file a petition for

custody. They assert that parents have a "liberty interest,

their right to raise their children."

We do not address the merits of these contentions because

the grandparents are asserting the constitutional rights of

another.

[W]e note that generally, a litigant
may challenge the constitutionality of a law
only as it applies to him or her. Grosso v.
Commonwealth, 177 Va. 830, 839, 13 S.E.2d
285, 288 (1941). That the statute may apply
unconstitutionally to another is irrelevant;
one cannot raise third party rights. An
exception to this rule is in the area of
first amendment challenges. Broadrick v.
Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct.
2908, 2915-16, 37 L.Ed.2d 830 (1973).

- 26 -
Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d

239, 241-42 (1988).

In Wright v. Alexandria Div. of Social Services, 16 Va.

App. 821, 433 S.E.2d 500 (1993), we held that a child has

standing to raise the issue of whether her mother's

constitutional rights were violated in a termination of parental

rights case.

We wrote:

A party has standing in a case if he or
she "allege[s] such a personal stake in the
outcome of the controversy as to assure that
concrete adverseness which sharpens the
presentation of issues upon which the court
so largely depends for illumination of
difficult constitutional questions." Duke
Power Co. v. Carolina Env. Study Group, 438
U.S. 59, 72, 98 S. Ct. 2620, 2630, 57
L.Ed.2d 595 (1978) (quoted in Cupp v. Board
of Supervisors, 227 Va. 580, 589, 318 S.E.2d
407, 411 (1984)) (emphasis added in Cupp).

In cases involving parental rights, the
rights of the child coexist and are
intertwined with those of the parent. The
legal disposition of the parent's rights
with respect to the child necessarily
affects and alters the rights of the child
with respect to his or her parent. Boronica
Wright has a "personal stake in the outcome"
of the proceeding to terminate her mother's
parental rights and, therefore, has standing
to challenge the propriety of the trial
judge's decision to terminate those rights.

Id. at 825, 433 S.E.2d at 502-03.

In the present case, the rights of the grandparents and

those of father do not co-exist and are not intertwined. To

- 27 -
some extent, their interests were adverse because each sought

custody of the child.

By law, their interests are not co-extensive. Grandparents

are not entitled to visitation over the parent's objection

unless the court finds "'actual harm to the child's health or

welfare without such visitation.'" Williams, 256 Va. at 22, 501

S.E.2d at 418.

In Troxel, 530 U.S. at 68-69, the United States Supreme

Court held that a Washington state statute was unconstitutional

because it infringed on the mother's fundamental right to make

decisions concerning the care, custody and control of her

children by granting the grandparents more visitation than was

agreeable to the mother.

We, therefore, conclude that the grandparents have no

standing to complain of constitutional violations of father's

rights.

For these reasons, we find the trial court did not err in

awarding custody to Smith and Botkin. We, therefore, affirm the

judgment of the trial court.

Affirmed.

- 28 -