COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Huff UNPUBLISHED
Argued at Alexandria, Virginia
DELORES O’BRIEN HEFFERNAN MEMORANDUM OPINION* BY v. Record No. 2102-13-4 JUDGE GLEN A. HUFF JUNE 17, 2014 ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Daniel S. Fiore, II, Judge
Elizabeth L. Tuomey (Toumey Law Firm, PLLC, on briefs), for appellant.
Jason L. McCandles, Assistant County Attorney; Janell Wolfe, Guardian ad litem for the minor child (Office of the County Attorney, on brief), for appellee.
Delores O’Brien Heffernan (“grandmother”) appeals an order entered by the Circuit
Court of Arlington County (“circuit court”) modifying an existing no contact order restricting
grandmother’s access to her granddaughter (“A.O.”). Grandmother asserts four assignments of
error on appeal. Specifically, grandmother contends the circuit court erred in modifying the no
contact order because 1) it was without authority to do so more than twenty-one days after entry
of the order; 2) the amendments are unduly restrictive and vague; 3) the amendments interfere
with grandmother’s ability to litigate claims and her attorney-client privilege; and 4) the
amendments limit grandmother’s right to free speech.
For the following reasons, this Court affirms the circuit court’s rulings.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle
requires us to ‘discard the evidence’ of the [grandmother] which conflicts, either directly or
inferentially, with the evidence presented by the [Arlington County Department of Human
Services (“Department”)] at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375,
380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence is as follows.
On July 22, 2010, the circuit court removed A.O. from grandmother’s custody through a
petition for emergency removal and placed A.O. in a foster home.1 Subsequently, on December
7, 2011, the juvenile and domestic relations district court terminated the parental rights of A.O.’s
parents; grandmother and the parents appealed to the circuit court, which terminated the parental
rights of A.O.’s parents and denied grandmother’s petition for custody. Additionally, the circuit
court ordered that neither A.O.’s mother, nor her grandmother, were to contact A.O. The circuit
court’s no contact order of July 27, 2012, barred grandmother from contact “direct or indirect,
attempted or completed, with [A.O.], without the prior express written permission of
[Department].” On July 5, 2013, the circuit court issued a show cause against grandmother “as
to why [grandmother] should not be held in contempt of court for violating the [n]o[]contact
[o]rder . . . .” The matter proceeded as a criminal contempt action, and a bench trial commenced
on September 30, 2013.
At trial, the evidence established that in April 2013, A.O. resided in Spring House in
Chesterfield County, Virginia, which is a “group home . . . specifically for teenage girls age 12 to
19 with some kind of mental health diagnosis.” On June 27, 2013, A.O. and other residents of
1 Grandmother did not appear at this hearing because she fled the jurisdiction with A.O. -2- Spring House attended a cookout at Shire House in Chester, Virginia, a group home for teenage
boys with mental health diagnoses. During the event, grandmother approached Shire House in a
“gold Taurus” and asked Andrea Duffy (“Duffy”), the manager of the Spring House, and another
employee named Cassandra Isom (“Isom”), for directions to another camp for children with
disabilities. After providing directions to grandmother, Duffy and Isom heard grandmother yell
“Aflac” in the direction of A.O., who was approximately 50-100 feet away. According to A.O.,
Aflac was a nickname her “whole family” used to call her when she was “really little.”
grandmother then drove away but a woman in an “older model Taurus,” who matched
grandmother’s description, drove past the Shire House later in the afternoon and asked if the
home was for sale. The following day, Duffy and A.O. noticed a “gold Ford Taurus parked a
block from the [Spring House],” which A.O. indicated “was her grandmother.”
On July 2, 2013, grandmother approached Isom after Isom dropped off A.O. for summer
school classes. Grandmother asked Isom if the school “was the school that the kids who lived on
Providence Road attended” and explained she was “getting ready to move” and “rent a house” in the
area. On July 4, 2013, Isom again witnessed the vehicle matching the one previously driven by
grandmother “circling the [Spring House]” and “driving up and down the street real slow.”
A.O. testified that she saw grandmother drive by while A.O. waited at the bus stop on
September 4, 2013. After alerting the Spring House staff, A.O. “kept on seeing [grandmother’s] car
driving back and forth . . . in front of the house” while she waited for Isom to pick her up. After
dropping off A.O., Isom observed a “gold Taurus” behind her on the main street directly outside of
A.O.’s school. Isom indicated that the vehicle was driven by grandmother, who appeared to be
wearing a wig. Later, Isom provided a photograph of the vehicle to the school’s resource officer,
who confirmed that grandmother was the registered owner of the vehicle.
-3- After hearing the evidence, the trial court made no express findings of fact and dismissed the
criminal contempt charge. On October 2, 2013, the trial court sua sponte entered a modified no
contact order, adding to the “terms stated in the [n]o[][c]ontact [o]rder of July 27, 2012.” This
appeal followed.
II. ANALYSIS
On appeal, grandmother contends the trial court erred in modifying the no contact order
because 1) it was without authority to do so more than twenty-one days after entry of the original
no contact order; 2) the amendments are unduly restrictive and vague; 3) the amendments
interfere with grandmother’s ability to litigate claims and her attorney-client privilege; and 4) the
A. Standard of Review
“In issues of child custody, ‘the court’s paramount concern is always the best interest of
the child.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998)
(quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). On appeal,
“there is a presumption . . . that the trial court thoroughly weighed all of the evidence, considered
the statutory requirements, and made its determination based on the child’s best interest.”
D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005). “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.” Brown v. Brown, 30 Va. App. 532, 538, 518
S.E.2d 336, 338 (1999).
B. 21-Days
On appeal, grandmother first contends that the trial court erred in modifying the no
contact order, because it was without authority to do so more than twenty-one days after entry of
the initial order. Specifically, grandmother asserts that the trial court lacked jurisdiction under
-4- Rule 1:1 of the Supreme Court of Virginia2 because the modification on October 2, 2013
occurred more than twenty-one days after the initial final order on July 27, 2012. The
Department contends that the trial court possessed continuing authority to modify the order
under Code § 20-124.2(E).
Code § 20-124.2 provides the circuit court’s authority to adjudicate claims regarding
court-ordered custody and visitation rights. Code § 20-124.2(B) provides, “[i]n determining
custody, the court shall give primary consideration to the best interest of the child.” Moreover,
Code § 20-124.2(E) provides, in relevant part, “[t]he court shall have the continuing authority to
make any additional orders necessary to effectuate and enforce any order entered pursuant to this
section or § 20-103 including the authority to punish as contempt of court any willful failure of a
party to comply with the provisions of the order.” Additionally, “[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.” Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986) (citing
Andrews v. Geyer, 200 Va. 107, 111, 104 S.E.2d 747, 751 (1958)). “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.” Id. (citing Allen v. Allen, 188 Va.
717, 721, 51 S.E.2d 207, 209 (1949)).
In the current matter, the original no contact order arose from A.O’s custody proceedings
on June 20-26, 2012.3 In those hearings, grandmother petitioned for custody of the minor child,
2 Rule 1:1 states “All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” 3 Grandmother was previously denied guardianship of A.O. See Tackett v. Arlington County Dep. Of Hum. Servs., 62 Va. App. 296, 746 S.E.2d 509 (2013). In Tackett, this Court held that “[t]he order terminating mother’s parental rights effectively set aside grandmother’s -5- A.O., which was denied. Additionally, the Department moved for a continuation of the previous
no contact orders entered on March 2, 2012 and March 14, 2012, which prohibited contact
between grandmother and A.O. The Department’s motion was granted, and the no contact order
was entered on July 27, 2012. Despite the order, grandmother made multiple attempts to contact
A.O. at the Spring House, Shire House, A.O.’s school, and at the bus stop. On October 2, 2013,
the circuit court determined it was necessary to modify the July 27, 2012 no contact order
because the court was “concerned for the welfare and safety of the minor child [A.O.] and . . .
[was] aware of the extent to which [grandmother] and others may proceed to avoid the current
[n]o[][c]ontact [o]rder . . . .” Specifically, the modified order was customized to the
circumstances surrounding grandmother’s behavior. “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.” Id. (citing Allen, 188 Va. at 721, 51 S.E.2d at
209).
Further, in determining the best interest of A.O., this Court must grant the circuit court
great deference as “there is a presumption . . . that the trial court thoroughly weighed all of the
evidence, considered the statutory requirements, and made its determination based on the child’s
best interest.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882. Thus, the circuit court had
the statutory continuing authority and jurisdiction to modify the earlier no contact order upon
determining such to be in A.O.’s best interest. Code § 20-124.2(E) (“The court shall have the
continuing authority . . . to make any additional orders necessary to effectuate and enforce any
guardianship, when the circuit court, having considered grandmother’s care of A.O., determined that it is in A.O.’s best interest to be in the custody of [the Department] and placed for adoption with the consent of [the Department].” Id. at 328, 746 S.E.2d at 525. Additionally, this Court in Tackett, upheld the initial no contact order because “[g]randmother consistently worked to sabotage the efforts of [the Department] designed to improve A.O.’s well-being,” which included initiating “unauthorized contact with A.O. at school and provided her with unauthorized cell phones.” Id. at 331, 746 S.E.2d at 526. -6- order entered pursuant to this section . . . .”). Accordingly, this Court finds that the circuit court
did not err in modifying the no contact order.
C. Vagueness
Grandmother next asserts that the circuit court erred in modifying the no contact order
because the amendments are unduly restrictive and vague. Specifically, grandmother argues that
since the order is enforceable by law, “the tolerance for imprecision is much less than if it did
not.” The Department contends that grandmother is procedurally barred pursuant to Rule
5A:18.4
“Whether the [no contact order] is unconstitutionally vague is a question of law we
review de novo.” Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d 609, 617 (2010)
(citing Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d 679, 684 (2010)). “‘The
constitutional prohibition against vagueness derives from the requirement of fair notice
embodied in the Due Process Clause’ and ensures that a law ‘be sufficiently precise and definite
to give fair warning’ of what it requires.” Id. at 164, 694 S.E.2d at 617 (quoting Tanner v. City
of Va. Beach, 277 Va. 432, 438-39, 674 S.E.2d 848, 852 (2009)). “Its purpose is to safeguard
against the arbitrary and discriminatory application of the law when a legislative act permits a
subjective interpretation by those charged with its enforcement.” Id. (citing Tanner, 277 Va. at
439, 674 S.E.2d at 852).
Grandmother asserts that provisions one and two of the no contact order are unduly
restrictive and unconstitutionally vague, which state:
4 Before the circuit court entered the order on October 2, 2013, grandmother stated her objections to the no contact order. Grandmother argued “we submit that it is unduly restrictive. . . . Simply knowing where she is does not mean that she has contact . . . .” Additionally, grandmother argued “it’s our position that that’s just simply too vague, that it requires her to predict the future.” Code § 8.01-384 provides that an issue is adequately preserved for appeal if “a party, at the time of the ruling or order of the court . . . makes known to the court . . . [her] objections to the action of the court and [her] grounds therefor.” Accordingly, grandmother’s objection to the vagueness of the order’s modifications was sufficiently preserved. -7- 1. [Grandmother] is hereby prohibited from determining, in any way, by any method or by any process, the whereabouts or location, at any time of [A.O.].; and 2. [Grandmother] is hereby prohibited from taking any action for the purpose of her being seen by [A.O.], or [A.O.]’s hearing the voice of [grandmother], or otherwise causing [A.O.] to know that [grandmother] is present or at or about the location of [A.O.], and [grandmother] is also prohibited from attempting the foregoing . . . .
Grandmother contends that the provisions are “so vague that it is impossible for
[grandmother] to know what behavior, in the normal course of her living, violates them.” The
provisions, however, were customized to specifically address grandmother’s repeated violations
of the original no contact order. The evidence presented suggests that grandmother, on multiple
occasions, determined A.O.’s location and followed A.O. to events at the Shire House, the
Spring House, and at A.O.’s school. Moreover, grandmother resorted to yelling out A.O.’s
childhood nickname in order to cause disruption. These actions were in defiance of the express
terms of the no contact order of July 27, 2012. Thus, the circuit court found it necessary to
modify the no contact order with stricter provisions in order to address and curb grandmother’s
non-compliance.
In the context of grandmother’s behavior, the wording of the order’s modification was
necessary to address grandmother’s particular actions and the terms of the modification were
“sufficiently precise and definite to give fair warning” to grandmother while protecting the best
interest of A.O. Tanner, 277 Va. at 439, 674 S.E.2d at 852. Therefore, the circuit court did not
abuse its discretion in provisions one and two of the modified no contact order. Accordingly,
this Court finds that the circuit court did not err in modifying the no contact order.
D. Ability to Litigate Claims
Next, grandmother contends that the circuit court erred in modifying the no contact order
because the amendments interfere with grandmother’s ability to litigate claims and violate her
-8- attorney-client privilege. The Department argues that grandmother’s assertion is procedurally
barred under Rule 5A:185 and, in the alternative, the amendments do not unduly restrict
grandmother’s ability to litigate claims because the language of provision three allows
grandmother to “file a motion seeking permission to proceed.”
Grandmother takes issue with provision three of the modified no contact order, which
states:
3. [Grandmother] shall not reveal, disclose, or discuss any information whatsoever regarding [A.O.] to or with anyone except a licensed attorney at law who is in good standing with the Virginia State Bar, absent good cause shown and further order of the Court . . . .
On brief, grandmother cites no relevant law or authority in support of her contention but rather
argues that the provision prohibits her right to consult with anyone other than a Virginia attorney.
The provision, however, is not an absolute restriction on grandmother’s ability to consult an
attorney. Additionally, grandmother is free to seek counsel outside of Virginia, pertaining to
information relating to A.O., so long as there is “good cause shown and further order of the
Court.” Moreover, the provision does not restrict grandmother’s ability to consult with an
attorney, nor does it require disclosure of confidential communications between grandmother and
her counsel. The restriction is narrowly limited to “information . . . regarding [A.O.].” “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.” Brown, 30 Va. App. at 538, 518 S.E.2d at
338. The evidence in the record supports a finding that the circuit court modified the no contact
order, including provision three, as necessary and appropriate under the circumstances “for the
welfare and safety of . . . [A.O.].” Accordingly, this Court finds that the circuit court did not err
5 Grandmother adequately preserved her argument before the circuit court on October 2, 2013. Specifically, grandmother stated “With respect to number three, Your Honor, that interferes with her ability to [file] federal suits with federal departments and to be represented by her D.C. attorney.” -9- in modifying the no contact order because the amendments do not interfere with grandmother’s
ability to litigate claims and her attorney-client privilege.
E. Freedom of Speech
Lastly, grandmother asserts that the trial court erred in modifying the no contact order
because the amendments limit grandmother’s right to free speech. Specifically, grandmother
takes issue with provisions three and five of the no contact order. The Department argues that
grandmother is procedurally barred under Rule 5A:186 and, in the alternative, that the provisions
are narrowly tailored to achieve a compelling state interest. Assuming without deciding that the
amended no contact order constitutes restraint of free speech, the order passes a strict scrutiny
analysis because of the compelling state interest in protecting the interests of the child and
because of the narrowly drawn restriction.
“When . . . governmental regulation is based upon the content of speech, as opposed to a
time, place, and manner classification, the regulation must be strictly scrutinized . . . because
regulation that relates to subject matter ‘slip[s] from the neutrality of time, place, and
circumstance into a concern about content.’” Adams Outdoor Advertising v. City of Newport
News, 236 Va. 370, 381, 373 S.E.2d 917, 922-23 (1988) (quoting Police Dept. of City of
Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Under the strict scrutiny test, a regulation of
protected speech will withstand a First Amendment challenge only if the government shows that
(1) it has a compelling interest in restricting speech, (2) the restrictions further such an interest,
and (3) a more narrowly drawn restriction will frustrate its interest. Id. (citing Consol. Edison
Co. v. Public Serv. Comm’n, 447 U.S. 530, 540 (1980)).
6 The Department’s procedural argument fails because grandmother adequately preserved the argument before the trial court. Specifically, grandmother stated “For number five, our objection would just be that it would interfere with her first amendment rights.” - 10 - Grandmother alleges that provisions three and five of the no contact order violate her
First Amendment rights to freedom of speech, which provide:
3. [Grandmother] shall not reveal, disclose, or discuss any information whatsoever regarding [A.O.] to or with anyone except a licensed attorney at law who is in good standing with the Virginia State Bar, absent good cause shown and further order of the Court;
* * * * * * *
5. [Grandmother] shall not post any information on the Internet or World Wide Web about [A.O.] . . . .
The Supreme Court previously determined that the best interests of a child are a compelling state
interest. See Knox v. Lynchburg Division of Soc. Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404
(1982) (“Clearly, the protection of children from harm, whether moral, emotional, mental, or
physical, is a valid and compelling state interest.” (citing Stanley v. Illinois, 405 U.S. 645, 652
(1972))). Accordingly, the only questions that remain are whether the “restrictions further such
an interest, and . . . a more narrowly drawn restriction will frustrate its interest.” Adams Outdoor
Advertising, 236 Va. at 381, 373 S.E.2d at 922-23 (citing Consol. Edison Co., 447 U.S. at 540).
In the current matter, the circuit court modified the original order in response to
grandmother’s continuous violations of its terms. The record indicates that grandmother
determined A.O.’s location and followed A.O. to events at the Shire House, Spring House, and
A.O.’s school. Additionally, grandmother called out to A.O. at the Shire House by using a
nickname known only by A.O.’s close family members. Further, grandmother made attempts to
contact A.O. on Facebook and other outlets on the Internet. In response to grandmother’s
noncompliance, the circuit court found it necessary to modify the no contact order to prohibit the
exact conduct grandmother utilized to circumvent the original order. In making this
determination the circuit court indicated its decision was based on “the welfare and safety of . . .
- 11 - [A.O.].” The evidence suggests that a “more narrowly drawn restriction” had already failed in
the original no contact order.
Most notably, “[w]hile the rights of freedom of speech and assembly are fundamental,
they are not absolute and must be exercised in subordination to the general comfort and
convenience and in consonance with peace, good order and the rights of others.” York v. City of
Danville, 207 Va. 665, 669, 152 S.E.2d 259, 263 (1967). In response to grandmother’s failure to
follow the terms of the original order, the circuit court determined the modified no contact order
was necessary in order to protect the best interest of A.O., which is a compelling interest of the
state. Having previously attempted a narrower restriction which failed, the circuit court did not
abuse its discretion in modifying the order. Accordingly, this Court finds that the circuit court
did not err in modifying the no contact order because the amendments are justified, even when
measured against the strict scrutiny test applicable to restrictions of free speech.
III. CONCLUSION
Based on the foregoing, this Court finds that the trial court did not err in modifying the no
contact order because 1) it possessed authority to do so more than twenty-one days after entry of
the previous no contact order; 2) the amendments are not unduly restrictive and vague; 3) the
amendments do not interfere with grandmother’s ability to litigate claims and her attorney-client
privilege; and 4) assuming without deciding that the amendments restrict grandmother’s
constitutionally protected right of free speech, the restrictions are sufficiently narrow and are
justified by the state’s compelling interest, to satisfy a strict scrutiny analysis. Accordingly, the
circuit court is affirmed in its modifications of the no contact order.
Affirmed.
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