COURT OF APPEALS OF VIRGINIA
Present: Judges Annunzia ta, Clements and Kelsey Argued at Salem, Virginia

SHERRY D. YOPP OPINION BY v. Record No. 3165-02-3 JUDGE ROSEMARIE ANNUNZIATA JULY 6, 2004 DANNY LEE HODGES

FROM THE CIRCUIT COUR T OF FRANKLIN COUNTY William N. Alex ander II, Judge John T. Boitnott for appellant. Tonita M. Foster (Law Office of Tonita M. Foster, on briefs), for appellee. (Deanna P. Stone; Rhodes, Fer guson & Stone, Ltd., on brief), Guardian ad litem for the infant child.
Sherry D. Yopp (mother) appeals the trial court’s decision awarding visitation with her minor child D.L.H. (child) to Danny Lee Hodges (maternal grandfather) and his wife (maternal grandmother) (grandparents, collec tively). Mother contends th e trial court applied the wrong burden of proof and, thus, failed to find by clear a nd convincing evidence that denial of visitation to the maternal grandparents would be harmful or detrimental to the child’s welfare. She also contends that the trial court erre d in finding that visitation with th e maternal grandparents was in the child’s best interests. At oral argument on this case, this Court asked the parties to brief whether or not the appeal should be dismissed fo r lack of jurisdiction based on mother’s failure to timely mail or deliver a copy of her not ice of appeal to the child’s guardian ad litem , Deanna P. Stone. The guardian ad litem and maternal grandfather submitted briefs arguing that the appeal must be dismissed under this Court’s de cision in Hughes v. York County Dep’t of Soc.- 2 - Servs. , 36 Va. App. 22, 548 S.E.2d 237 (2001). We hold that Hughes is distinguishable and decline to dismiss the appeal. We further hold on the merits that the trial court did not err in awarding visitation to the maternal grandparents. I. Procedural Background Danny Lee Hodges, the child’s ma ternal grandfather, filed a petition in the juvenile and domestic relations district court on behalf of the maternal grandparents seeking visitation with the child. Following resolution of the matter by the j uvenile and domestic rela tions district court, the case was appealed to th e circuit court and tried de novo . As permitted by Code § 16.1-266(E) 1 (formerly Code § 16.1-266(D )), the trial court appointed Deanna P. Stone as guardian ad litem to represent the child’s interests in the matter. Neither party challenges the trial court’s authority to appoint a guardian ad litem in this case to represent the interests of the child. The court’s order of A ugust 22, 2002, appointing the guardian ad litem was “[r]equested by” mother and “[s]een and agreed ” to by maternal grandfather. The child’s natural father, w ho neither lived with mother nor had any contact with the child, joined in the maternal grandparents’ request that the court award th em visitation with the minor child. At the hearing, the guardian ad litem allied herself with the maternal grandparents and the child’s natural father in requesting that the maternal gr andparents be awarded visitation with the child. The circuit court found it was in the child’s best in terests to have visitation with the maternal grandparents on the second week end of each month, on December 26 and 27, and for one week during summer vacation. 2 The court’s final order memorializing its ruling was

1 Code § 16.1-266(E) provides, in pertinent part , that, “[i]n all other cases which in the discretion of the court require . . . a guardian ad litem . . . to represent the child . . . , competent attorneys-at-law may be appointed by the court.”

2 The maternal grandparents objected to the limits imposed on visitation but did not file a cross-appeal.- 3 - entered on October 30, 2002. The guardian ad litem endorsed the final order under the heading
“Seen.” On December 2, 2002, mother timely filed a noti ce of appeal with the clerk of the circuit court indicating her intention to ch allenge the circuit court’s final or der, but she failed to deliver a copy of the notice of app eal to the child’s guardian ad litem

. 3 II. Factual Background On appeal, we view the evidence, and all r easonable inferences that may be drawn from the evidence, in a light most favorable to the maternal grandparents as the party prevailing below. Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the record establishes that the child and mother lived in the ho me of the maternal grandparents for the first year and a half of the child’s li fe. Mother moved to a residence immediately adjacent to the maternal grandparents’ home, but the child remained with the grandparents. The child resided with the maternal grandparents in their home until age four and a half. Around the time the child reached age five, mo ther married Jamie Yopp (Jamie). Jamie stayed with mother only occasionally. Grandfat her testified that Jamie would “move in for a while and then move out and get an apartment and stay there for a while, then he’ll move back in again, then move back out. It’s just like a revolving door.” Grandfat her said that he was concerned “with the situation with [Jamie] m oving in and out [because] there’s no sense of stability to [the child’s] life.” Jamie and mother have since separated, although they still “socialize like human beings.”

3 The guardian ad litem did not file a responsive brief on be half of the child or appear at oral argument before this Court. However, as noted supra , the guardian ad litem filed a brief in response to this Court’s request addressing whether mother’s failure to mail or deliver a copy of the notice of appeal to her precl uded consideration of the appeal.- 4 - After mother’s marriage, the child began spe nding more time with her. However, the maternal grandparents still care d for him a majority of the tim e because “he would go up there [to mother’s house] and want to come back, and she would let him come back.” The maternal grandparents essentially “raised [the child] until he was fi ve or six years old.” They ensured the child got on the school bus every morning, met him in the afternoon on his return, prepared dinner for him, and helped him with his homework. Grandfather helped the child plant sunflower and green bean seeds in their backya rd. Grandfather said, “We dug a little spot and we planted it. He [the child] checked it every da y, every day.” Grandfather talked to a neighbor about “plowing up a place to plan t a big garden” for the child, and the child became “all excited about [it].” Grandfather also t ook the child on fishing trips. The relationship between moth er and grandparents disinteg rated in 2002 after mother denied the grandparents’ request to take the child“to the beach.” The gr andparents subsequently filed a petition seeking visitation rights. Mother thereafter refused to allo w the grandparents to see the child except for one weekend each month. Mother resisted the grandparents’ petition for visitation on the grounds that the grandparents “badger[ed] [the ch ild] with questions” when they visited with him and consumed alcohol in the child’s presence. She also contended that grandfather has a “very violent” temper. As ev idence of grandfather’s violent temper, mother related an incident in which grandfather “picked up [her] bed and slammed it down because . . . [mother’s] boyfriends made him mad.” However, mother admitted that this incident took place before she had any children. When the child visits with his grandparents , mother does not allow them to touch, hug, or kiss the child. The child “cries to stay” with hi s grandparents when mother ends the visitation. Mother admitted that the child loves his grandpa rents “very much.” However, she opined that severing contact between the child and his gr andparents would have no effect on him.- 5 - The child’s biological father expressly request ed that the maternal grandparents be given visitation rights. The mother di d not claim, nor does any eviden ce establish, that the biological father is an “unfit” parent. 4 See Troxel v. Granville , 530 U.S. 57, 68 (2000) (plurality opinion). The child’s appointed guardian ad litem took the father’s request into account and joined in the recommendation that the maternal grandpa rents be given visitation rights. After hearing the evidence, the court ordered the parties to mediation. Mediation proved fruitless, however, and the trial court ultimately ruled that, “based on the evidence . . . I’ve heard, I do find that it would be in the ch ild’s best interest to continue to have some relationship and contact with these grandparents.” It thus granted the maternal grandparents’ petition for visitation with the child. This appeal followed. III. Analysis A. Mother’s Failure to Notice the Guardian Ad Litem Did Not Create a Jurisdictional Defect Requiring Dismissal of her Appeal We first address whether mother’s appeal must fail on jurisdictional grounds because she failed to deliver a copy of the no tice of appeal to the guardian ad litem . We hold that mother’s failure does not give rise to a jurisdictional defect re quiring dismissal of her appeal because the guardian ad litem in this case is not an indispensable party. Rule 5A:6, which governs notices of appeal to this Court, states in relevant part: No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a c opy of such notice to all opposing counsel and the clerk of the Court of Appeals. (Emphasis added). Rule 5A:1 defines “oppos ing counsel” as “depending on the context, ‘counsel for the appellant’ or ‘counsel for the appe llee.’” Rule 5A:1 further defines “counsel for

4 The mother reiterated the concession at oral argument.- 6 - the appellee” as “one of the attorneys represen ting each appellee represented by an attorney, and each appellee not represented by an attorney.” The Rules do not specific ally define the term “appellee.” See Hughes , 36 Va. App. at 25, 548 S.E.2d at 238. In Hughes , we held that the guardian ad litem in a termination of pare ntal rights case is an “appellee” within the meaning of Rule 5A:1 be cause the guardian had taken a position opposing that of the appellant. Id. at 26, 548 S.E.2d at 239. Central to the conclusion that the guardian ad litem was an appellee within the meaning of Rule 5A:1 was our determination that, “[i]n a proceeding to terminate parental rights, the guardian ad litem representing the interests of the children is an indispensable party to the appeal of the final decree.” Id. at 26, 548 S.E.2d at 238. “Thus,” we concluded, “ in the present case , the guardian ad litem [,] [as an indispensable party,] constituted an appellee and ‘opposing counsel ’ for purposes of Rule[] 5A:6.” Id. at 26, 548 S.E.2d at 239 (emphasis added). We therefore di smissed the appeal for want of jurisdiction because the appellant “faile d to provide the guardian ad litem with notice of the appeal” as required by Rule 5A:6. Id. Here, like the appellant in Hughes , mother failed to deliver a copy of the notice of appeal to the guardian ad litem . However, we find Hughes inapposite to the instant case because we hold that the guardian ad litem in a custody or visitation case is not an indispensable party. “The Supreme Court of Virginia has used the terms ‘indispensable parties’ and ‘necessary parties’ synonymously.” Watkin s v. Fairfax County Dep’t of Family Servs. , 42 Va. App. 760, 765, 595 S.E.2d 19, 22 (2004) (citing Asch v. Friends of Mount Vernon Yacht Club , 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996)). It has defined a necessary or indispensable party as one who is in the actual enjoyment of the subject matter, or has an interest in it . . . which is likely to be defeated or diminished by the plaintiff’s claim, in such case he has an immediate interest in- 7 - resisting the demand, and all pers ons who have such immediate interests are necessary parties to the suit. Asch , 251 Va. at 90-91, 465 S.E.2d at 818 (quotations omitted). Thus, a necessary or indispensable party is “so bound up with that of th e other parties, that their legal presence as parties to the proceeding is an absolute necess ity, without which the court cannot proceed.” Id. at 91, 465 S.E.2d at 818 (quotations omitted). The holding in Hughes that a guardian ad litem in termination of pa rental rights cases is an indispensable party is rooted in the statutory bar to proceeding with such cases in the absence of an appointed guardian. Code § 16.1-266(A) requi res that, “[p]rior to th e hearing by the court of . . . a petition seeking termination of residual parental rights . . . , the court shallappoint a discreet and competent attorney-a t-law as guardian ad litem to represent the child.” (Emphasis added). Code § 16.1-266(A)’s directive is mandatory, not discretionary. See Watkins , 42 Va. App. at 765, 595 S.E.2d at 22 (“Indeed, the guardian ad litem is clearly an indispensable party in termination cases because the stat ute governing the appointment of guardians ad litem in termination proceedings, Code § 16.1-266, mandates th eir appointment in such cases.”). In the absence of an appointed guardian ad litem , by statute the proceeding to terminate parental rights is barred. In contrast, Code § 16.1-266(E) allows the trial court to appoint a guardian ad litem “[i]n all other cases which in the discretion of the court require” such an appointment. (Emphasis added). In fact, in a custody or visitation case , the trial court “shall not” appoint a guardian ad litem “unless the court finds . . . th at the interests of the child or children are not otherwise adequately represented.” Th e courts of the Commonwealth routinely resolve custody and visitation disputes without th e appointment of a guardian ad litem

.- 8 - Because the trial court may resolve a custody or visitation dispute in the absence of a guardian ad litem , we cannot say that the guardian ad litem’s presence in the case before us “ is an absolute necessity , without which the court cannot proceed.” Asch , 251 Va. at 91, 465 S.E.2d at 818 (quotations omitted) (emphasis added). One whose participation in a suit is merely permissible cannot be said to be necessary or indispensa ble to the proceedings , nor can it be said that the party’s absence deprives the court of jurisdiction to a ddress the issues raised. Cf. Hughes , 36 Va. App. at 26, 548 S.E.2d at 238. We thus conclude that, by making the appointment of a guardian ad litem in a custody case a matter of judicial discretion, the legislature has determined that the ap pointment and presence of a guardian ad litem representing the interests of a child w ho is the subject of a custody and visita tion dispute, while permissible, is not required before the court can fu lly adjudicate the issues presented. In summary, the guardian ad litem in this case is not necessa ry or indispensable to the proceedings. It follows that the guardian ad litem is neither an “appellee” nor “opposing counsel” within the meaning of Rule 5A:6 as explained in Hughes . Thus, mother’s failure to provide the guardian ad litem with a copy of the notice of ap peal pursuant to Rule 5A:6 is inconsequential to this Court’s power to exerci se its jurisdiction and adjudicate the maternal grandparents’ petition for visitation with mothe r’s minor child. We find that the appeal is properly before us. 5

5 We do not suggest that, where the trial court has determined that “interests of the child . . . are not . . . adequately represented” by the parents’ or ot her parties’ counsel, necessitating the appointment of a guardian ad litem , the child’s interests should be unrepresented on appeal. Code § 16.1-266. The role of the guardian ad litem appointed by the trial court is important to the prope r adjudication of the issues. See Standards to Govern the Performance of Guardians Ad Litem for Children , std. J (2003), at http://courts.state.va .us/gal/gal_standards_children_080403.html . We conclude only that the absence of the guardian ad litem , by virtue of the appellant’s fa ilure to provide the requisite notice, does not deprive this Court of its subj ect matter jurisdiction and authority to adjudicate the matter. Nothing here change s this Court’s authority to take into account the views of the guardian ad litem by ordering that the child’s representative be brought in to the case. Finally, we- 9 - B. The Trial Court Did Not A pply the Wrong Standard of Proof Turning to the merits of this appeal, mother contends that the trial court erred when it awarded the maternal grandparent s visitation with her minor son in the absence of a finding by clear and convincing evidence that the denial of visitation would be harmful or detrimental to the child’s welfare. She relies on Williams v. Williams , 24 Va. App. 778, 485 S.E.2d 651 (1997), aff’d , 256 Va. 19, 501 S.E.2d 417 (1998), to support her contention. The trial court found Williams distinguishable from the instant case, an d we find no error in that determination. Code § 20-124.2(B) provides that the “court sh all give due regard to the primacy of the parent-child relationship but ma y upon a showing by clear and convi ncing evidence that the best interest of the child would be served thereby award custody or vi sitation to any other person with a legitimate interest.” Persons with a legitimate interest include a minor child’s grandparents.
See Code § 20-124.1. The party seeking visitation b ears the burden of provi ng it is in the best interests of the child. See Code § 20-124.2(B); Dotson v. Hylton , 29 Va. App. 635, 640, 513 S.E.2d 901, 903 (1999). The term “clear and convincing evidence” has been defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere prepondera nce, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” Fred C. Walker Agency, Inc. v. Lucas , 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford , 120 N.E.2d 118, 123 (Ohio 1954)). In Williams , this Court considered an appeal from a trial cour t’s order granting visitation with a minor child to paternal grandparents. Williams , 24 Va. App. at 780, 485 S.E.2d at 652.

do not hold here that this Court may not, under a ppropriate circumstances, dismiss an appeal on the ground that the guardian ad litem was not provided requisite notice. Rule 5A:6, Hughes , 36 Va. App. at 26, 548 S.E.2d at 239.- 10 - The trial court granted the grandpa rents’ petition for vi sitation over the objections of both mother and father. Id. We reversed the trial court’s decisi on, holding that “the parents’ right to autonomy in child rearing is a fundamental right protected by the Fourteenth Amendment of the United States Constitution and that state interfer ence with that right must be justified by a compelling state interest.” Id. In support of the primacy of th e parent-child relationship and in furtherance of the principle that parents have a constitutional right to aut onomy in child rearing, this Court determined that the third party seeki ng visitation over the obje ctions of both parents must show more than that the requested visita tion would be in the child’s best interests. “[B]efore 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 (emphasis added). We subsequently distinguished the holding in Williams in a case involving only one parent’s objection to grandpare nt visitations. In Dotson , we affirmed the trial court’s award of visitation to the paternal grandm other. Although father was incar cerated, he requested that the paternal grandmother be allowed to visit with his child. Dotson , 29 Va. App. at 638, 513 S.E.2d at 902. The trial court granted th e request over mother’s objecti on, finding that such visitation was in the best interests of the child. Id. at 638, 513 S.E.2d at 903. We rejected mother’s argument that the trial court erroneously failed to apply the Williams standard, holding that “[w]hen only one parent objects to a grandparent’s visitation and the other parent requests it, the trial court is not required to follo w the standard enumerated in Williams .” Id. at 639, 513 S.E.2d at 903; see also Griffin v. Griffin , 41 Va. App. 77, 83-84, 581 S.E.2d 899, 902 (2003). The standard enunciated in Dotson applies here because father expressly supported the maternal grandparents’ request for visitation withthe child and the mother has never asserted, and does not now assert, that father is an unfit pa rent who should be deemed legally incapable of- 11 - participating in parental decision making. “C ustody and visitation disputes between two fit parents involve one parent’s f undamental right pitted against the other parent’s fundamental right. The discretion afforded tria l courts under the best-interests test, Code § 20-124.3, reflects a finely balanced judicial response to this parental dead lock.” Griffin , 41 Va. App. at 83, 581 S.E.2d at 902. Thus, the trial court in the instant case applied the correct standard, i.e. the best interests of the child, in de termining whether to award vi sitation to the grandparents. We disagree with mother’s reliance on Troxel v. Granville , 530 U.S. 57 (2000), for the proposition that the trial court applied the incorrect standard. The Troxel Court recognized that “there is a presumption that fit parents act in th e best interests of their children” which must be considered in disputes that arise betw een the parent and a third party. Id. at 68. The Supreme Court specifically signaled the lower court’s error in applying a presumption in favor of visitation with grandparents which “directly cont ravened the traditional presumption that a fit parent will act in the best interest of his or he r child” and that, in so doi ng, the lower court “failed to provide any protection for [the fit parent’s] fundamental constitutional right to make decisions concerning the rearing of her [or his] own [children].” Id. at 69-70. The Troxel Court was not presented with the circumstances we face in the instant case. Here, one parent requests that visitation be accorded the third party, the other pa rent objects to the reque st, and both parents are fit. Because both parents are fit, the trial court had to presume th at both were “act[ing] in the best interests of their” child in order to pr otect each parent’s “fundamental right to make decisions concerning the rear ing of” their child. See id. at 68-70. Thus, faced with a contest in which one parent’s fundamental rights were pitted against the other parent ’s fundamental rights,

see Griffin , 41 Va. App. at 83, 581 S.E.2d at 902, the tr ial court properly cons idered the child’s best interests. We therefore find that Troxel is inapposite and that Dotson controls the issue on- 12 - appeal, and we hold that the trial court did not err as a matter of law in c onsidering only the best interests of the child.

C. The Trial Court’s Determination that Visitati on with Maternal Grandparents Is in the Best Interests of the Child Is Not Plainly Wrong We afford great deference to the trial court’s determination of what is in the best interests of the child. Sullivan v. Knick , 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002). It “is a matter of discretion . . . , and, unl ess plainly wrong or without ev idence to support it, the court’s decree must be affirmed.” Bostick v. Bostick-Bennett , 23 Va. App. 527, 533, 478 S.E.2d 319, 322 (1996). Similarly, “[w]hen a court hears evidence at an ore tenus hearing, its decision is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Wheeler v. Wheeler , 42 Va. App. 282, 288, 591 S.E.2d 698, 701 (2004). Moreover, the credibility of witnesses and the weight to be accorded their testimony is a matter exclusively within th e province of the tr ier of fact. See Barker v. Commonwealth , 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985). Finally, we view th e evidence upon which the trial court relied in a light most favorable to the maternal gra ndparents as the party prevailing below. Congdon , 40 Va. App. at 258, 578 S.E.2d at 835. Applying these principles, we find that th e evidence supported the visitation requested and that the trial court’s deci sion was not plainly wrong. The evidence establishes that the maternal grandparents had been a significant pa rt of the child’s life until the summer of 2002. The child routinely stayed at the maternal grandp arents’ house for the first four or five years of his life. They ensured that he attended school and completed his homework. They provided him with meals every evening, and they participated in family recreationa l activities such as gardening and fishing. The child loves his grandparents and cries when mother takes him away- 13 - from them. The evidence also shows that the grandparents were a source of stability that was often lacking in mother’s household. Based on this evidence, the trial court determin ed it would be in the child’s best interest to have regular and frequent vis itation with the grandparents. The decision of the trial court was not plainly wrong and was supported by the evidence. We, therefore, affirm. Affirmed.- 14 - Clements, J., dissenting, in pa rt, and concurring, in result. While I agree with the result of this appeal, I disagree with the majority’s conclusion that mother’s failure to provide timely notice of the appeal to the child’s guardian ad litem does not require dismissal of mother’s appeal. In my vi ew, the decision of this Court in Hughes v. York County Dep’t of Soc. Servs. , 36 Va. App. 22, 548 S.E.2d 237 (2001) , controls the outcome of this case and requires the opposite conclusion. I would hold, therefor e, that mother’s failure to make the child’s guardian ad litem a party to this appeal by pr oviding her with notice of the appeal in accordance with Rule 5A:6(a) pr ecludes us from entertaining this appeal. Rule 5A:6(a) provides, in pertin ent part, that “[n]o appeal [to this Court] shall be allowed unless, within 30 days after entry of final judgment . . . , counsel f iles with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel .” (Emphasis added.) Here, it is undi sputed that, while mother timely filed a notice of appeal with the clerk of the circuit court indicating her in tention to challenge the circuit court’s final order, she did not mail or deliver a copy of the notice of appeal to the child’s guardian ad litem , who, pursuant to Rule 1:5, was still a counsel of reco rd in the case. 6 The issue, then, is whether we may consider th is appeal even though the child’s guardian ad litem was not given proper notice of th e appeal under Rule 5A:6(a). Faced with a similar issue in Hughes , a case involving the termina tion of parental rights, we held that the appellant’s fa ilure to provide notice of the appeal, under Ru le 5A:6(a), to the

6 Rule 1:5 provides, in pe rtinent part, as follows: “Counsel of record” includes a counsel or party who has signed a pleading in the case or w ho has notified the other parties and the clerk in writing that he appears in the case. Counsel of record shall not wit hdraw from a case except by leave of court after notice to the client of the time and place of a motion for leave to withdraw.- 15 - guardian ad litem appointed by the circuit court to repres ent the children’s in terests precluded us from entertaining the appeal. 36 Va. App. at 26, 548 S.E.2d at 239. We explained that, for purposes of Rule 5A:6(a), the term “opposing co unsel” includes all necessary or indispensable parties to the appeal. 7 Id. This is so, we reasoned, because “[a]n appellate court [may not properly] adjudicate an appeal unless all necessary [or indispensable] parties are properly before the court.” Id. at 25, 548 S.E.2d at 238. We further expl ained that a necessary or indispensable party “is one whose interests are likely to be de feated or diminished by a successful appeal” and that, “[w]here the guardian ad litem has taken a position on behalf of the children in opposition to the appealing party, then the interests of th e children are subject to being ‘defeated or diminished’ by the appellant’s claim.” Id. at 25-26, 548 S.E.2d at 238-39. Applying these principles, we concluded th at the children’s guardian ad litem , who had “joined the [Department of Social Services] in reques ting that appellant’s parental rights be terminated,” id. at 25, 548 S.E.2d at 238, was a necessary or “indispensable pa rty to the appeal and, thus, qualifie[d] as an ‘opposing counsel’ under Rule 5A:6(a), to whom the appellant ha[d] a duty to mail or deliver a copy of the notice of appeal,” M. G. v. Albemarle County Dep’t of Soc. Servs. , 41 Va. App. 170, 177, 583 S.E.2d 761, 764 (2003) (citing Hughes , 36 Va. App. at 25-26, 548 S.E.2d at 238-39). We further concluded that, because the “appellan t failed to provide the [children’s] guardian ad litem with the notice of appeal,” as re quired by Rule 5A:6(a), “the guardian ad litem was not . . . made a party to the appeal.” Hughes , 36 Va. App. at 26, 548 S.E.2d at 239; see also M. G. , 41 Va. App. at 177, 583 S.E.2d at 764 ( noting that “the court never acquires jurisdiction over the

7 As the majority indicates, the Supreme Court and this Court have used the terms “necessary party” and “indispensable party” inte rchangeably in referring to those entities and persons who must be made a party to an appeal. See Watkins v. Fairfax County Dep’t of Family Servs. , 42 Va. App. 760, 765, 595 S.E.2d 19, 22 (2004). As the rationale expressed herein applies equally to both types of parties, I, too, draw no distin ction between those terms here.- 16 - indispensable party” when that party is not given notice of the app eal). Thus, we held we could not entertain the appeal. Hughes , 36 Va. App. at 26, 548 S.E.2d at 239. As the majority notes, “[h]er e, like the appellant in Hughes , mother failed to deliver a copy of the notice of appeal to the [child’s] guardian ad litem .” And like the children’s guardian ad litem in Hughes , the child’s guardian ad litem in this case took a position on behalf of the child in opposition to the appellant. At the hearing before the ci rcuit court, the child’s guardian ad litem joined the child’s grandpare nts and the child’s natural fa ther in requesting that the circuit court award visitation to the grandparents. The child’s mo ther opposed that request. After the circuit court entered an order granting visitation to the grandparents, mother noted her appeal, seeking to overturn the ci rcuit court’s decision. Thus, the child’s interests are subject to being defeated or diminished by mother’s claim in this appeal. Accordingly, under the principles set forth in Hughes , the child’s guardian ad litem is a necessary or indispensable party to this appeal. Id. at 25-26, 548 S.E.2d at 238-39. As such, she is an “opposing counsel” within the meaning of Rule 5A:6(a). Id. at 26, 548 S.E.2d at 239. Mother was, thus, required under Rule 5A:6(a) to mail or deliver a copy of the notice of appeal to her. Because mother failed to do so, the child’s guardian ad litem was not made a party to the appeal. Id. Consequently, we may not entertain this appeal. Id. Accordingly, I would dismiss this appeal and not reach the merits of the case. The majority finds Hughes inapplicable here be cause the instant case involves visitation, rather than the termination of parental ri ghts. The majority reasons that a guardian ad litem appointed by the trial court in a termination-of-p arental-rights case is a necessary or indispensable party on appeal because that appointment is required by Code § 16.1-266(A), while a guardian ad litem appointed by the trial court in a custody or visitation case is not a necessary or indispensable party on appeal, even when representing child ren whose interests are- 17 - subject to being defeated or diminished, because that appointment is merely discretionary under Code § 16.1-266(E). I disagr ee with this reasoning. For one thing, it disregards the established definition of “a necessary or indispensable party” long employed by the Supreme Court and this Court. As the major ity notes, the Supreme Court has defined “necessary parties” as follows: “‘“Where an individual is in th e actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely to be defeated or diminished by the plaintiff’s claim, in such case he has an im mediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.”’” Asch v. Friends of Mount Vernon Yacht Club , 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996) (quoting Raney v. Four Thirty Seven Land Co. , 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris’ Ex’rs. , 102 Va. 625, 630, 46 S.E. 905, 907 (1904) (quoting 1 Daniel’s Chancery Practice , 244))). Thus, as we said in Hughes , a necessary or indispensable party to an appeal “is one whose interests are likely to be defeat ed or diminished by a successful appeal.” 36 Va. App. at 25, 548 S.E.2d at 238. Cons equently, the majority’s conclusion that the child’s guardian ad litem is not a necessary or indispensable party to this appeal, even though the child’s interests stood to be defeat ed or diminished if mother pr evailed on appeal, impermissibly conflicts with the established definition of “a necessary or indispensable party.” See Roane v.
Roane , 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991) (“We are bound by decisions of the Supreme Court of Virginia and are without authority to overrule [them].”); Robinson v. Commonwealth , 13 Va. App. 540, 543, 413 S.E.2d 661, 662 (1992) (“Under the rule of stare decisis , a decision by a panel of this cour t is an established precedent.”). Likewise, the majority’s view that “[o]ne whose participation in a suit is merely permissible cannot be said to be necessary or indispen sable to the proceedi ngs” ignores the fact- 18 - that the lower court may appoint a guardian ad litem in cases like this only if the court finds that independent representation of the ch ild’s interests is necessary. See Verrocchio v. Verrocchio , 16 Va. App. 314, 317, 429 S.E.2d 482, 484 (1993) (“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.” (emphasis adde d)); Code § 16.1-266(E) (allowing the court to appoint a guardian ad litem “[i]n all other cases which in the discretion of the court require . . . a guardian ad litem . . . to represent the child or children” (emphasis added)). Indeed, as the majority notes, Code § 16.1-266(E) specif ically permits the court to appoint a guardian ad litem in a custody or visitation case only if the court “finds . . . that the interests of the child or children are not otherw ise adequately represented” by the pare nts’ or other parties’ counsel. See also Verrocchio , 16 Va. App. at 320, 429 S.E.2d at 486 (“Co de § 16.1-266 ‘recognizes that the substantive rights and interests of the child are often separate and di stinct from those of the other parties to the litigation . . . [and] that thes e rights and interests ar e best protected by an independent party.’” (quoting Stanley v. Fairfax County Dep’t of Social Servs. , 10 Va. App. 596, 601, 395 S.E.2d 199, 202 (1990), aff’d , 242 Va. 60, 405 S.E.2d 621 (1991))). Thus, “a finding that the appointment of a guardian ad litem is necessary and would be in the child’s best interest is an essential prerequisite” to the making of such an appointment. Id. at 322, 429 S.E.2d at 487 (holding that, while not required in every case, “where the trial judge finds that the best interests of the child are not adequately protected by the parties” and th at appointment of a guardian ad litem is “necessary to protect the interests of the minor child,” th en “appointment of a guardian ad litem for the child is appropriate”). It follows, therefore, that , in appointing the guardian ad litem in this case to represent and advocate the child’s interests, the circuit court specifical ly found that the guardian ad litem’s participation in the case was n ecessary to the proceedings because the child’s interests were not- 19 - otherwise represented. For this Cour t to then say that the guardian ad litem in the instant case is not a necessary or indispensable party to the appeal simply because the appointment of a guardian ad litem is not required in all custody and vi sitation cases is, in my view, an unwarrantedly narrow app lication of the principles set forth in Hughes . It not only serves to effectively overrule the circuit court’s determination that the guardian ad litem was required to represent the child in the case, it also serves to generally demean and diminish the role of guardians ad litem in custody and visitation cases appeal ed to this Court. See generally Bottoms
v. Bottoms , 249 Va. 413, 420, 457 S.E.2d 102, 108 (1995) (no ting that “the recommendation of the guardian ad litem . . . , while not binding or controlli ng, should not be disregarded” and that, “[t]he duty of a guardian ad litem in a child custody dispute is to see that the interest of the child is ‘represented and protected’” (quoting Code § 8.01-9)). Most significantly, however, in leaving the child’s independe nt interests unrepresented by counsel on appeal in this case, the majority’s decision elevates the procedural rights of mother over what should be the paramount consideration— the welfare and best interests of the child.
See Verrocchio , 16 Va. App. at 320, 429 S.E.2d at 486 (“‘In Virginia, we have established the rule that the welfare of the in fant is the primary, paramount, a nd controlling consideration of the court in all controversies between parents ove r the custody [and visitation] of their minor children. All other matters are subor dinate.’” (quoting Mullen v. Mullen , 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948))); 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 th e child are the ‘primary, paramount, and controlling consideration[s].’” (quoting Mullen , 188 Va. at 269, 49 S.E.2d at 354)); 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- 20 - concern where children are concer ned are their best interests.”). I cannot subscribe to such an

outcome. For these reasons, I respectfully dissent from the majority’s decision not to dismiss this appeal.