COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Ju dges Frank and Huff 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, Assistan t County Attorney; Janell Wolfe, Guardian ad litemfor 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 (“circ uit court”) modifying an existi ng no contact order restricting grandmother’s access to her granddaughter (“A.O. ”). Grandmother assert s four assignments of error on appeal. Specifically, gr andmother contends the circuit court erred in modifying the no contact order because 1) it was w ithout authority to do so more than twenty-one days after entry of the order; 2) the amendments are unduly rest rictive 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 opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND “When reviewing a trial court’s decision on a ppeal, we view the evidence in the light most favorable to the prevailing party, granting it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 [g randmother] 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 re lations district court terminatedthe 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 grandmothe r’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 gr andmother 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 cour t issued a show cause against grandmother “as to why [grandmother] should not be held in cont empt of court for violating the [n]o[]contact [o]rder . . . .” The matter proceeded as a crim inal 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 ho me . . . 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.- 3 - 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 di rections to another camp for children with disabilities. After providing dir ections 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 afte rnoon 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, grandmothe r approached Isom after Isom dropped off A.O. for summer school classes. Grandmot her asked Isom if the school “was th e school that the kids who lived on Providence Road attended ” and explained she was “g etting ready to move” and “rent a house” in the area. On July 4, 2013, Isom ag ain witnessed the vehicle matching the one previous ly driven by grandmother “circling the [Spring House]” and “driving up and do wn 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 staf f, A.O. “kept on seei ng [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 ob served a “gold Taurus” behind her on the main street directly outside of A.O.’s school. Isom indicated that the vehicle was driven by grandmothe r, who appeared to be wearing a wig. Later, Isom provided a photograph of the vehicle to the sc hool’s resource officer, who confirmed that grandmother was th e registered owner of the vehicle.- 4 - After hearing the evidence, the tr ial court made no express findin gs 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 “ter ms 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 undul y restrictive and vague; 3) the amendments interfere with grandmother’s ability to litigate cl aims and her attorney-clie nt privilege; and 4) the amendments limit grandmother’s right to free speech. A. Standard of Review “In issues of child custody, ‘the court’s param ount 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 cour t thoroughly weighed all of the evidence, considered the statutory requirements, and made its determ ination based on the chil d’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 a ppeal.” 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 asse rts that the trial court lacked jurisdiction under- 5 - Rule 1:1 of the Supreme Court of Virginia 2 because the modification on October 2, 2013 occurred more than twenty- one days after the initial fi nal order on July 27, 2012. The Department contends that the trial court posse ssed continuing authority to modify the order under Code § 20-124.2(E). Code § 20-124.2 provides the circuit court’s authority to adjudicat e claims regarding court-ordered custody and visita tion rights. Code § 20-124.2(B) provides, “[i]n determining custody, the court shall give primar y consideration to the best interest of the child.” Moreover, Code § 20-124.2(E) provides, in rele vant part, “[t]he court shall ha ve 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 provi sions of the order.” Additiona lly, “[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 re tains 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 cust ody or the terms of vis itation when subsequent events render such action appropriate for the chil d’s welfare.” Id. (ci ting Allen v. Allen, 188 Va. 717, 721, 51 S.E.2d 207, 209 (1949)). In the current matter, the or iginal no contact order arose fr om A.O’s custody proceedings on June 20-26, 2012. 3 In those hearings, grandmother peti tioned for custody of the minor child,

2 Rule 1:1 states “All final judgments, orders, and decrees, irrespectiv e of terms of court, shall remain under the control of the trial court a nd subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.”

3 Grandmother was previously denied guardia nship 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 pa rental rights effectively set aside grandmother’s- 6 - A.O., which was denied. Additionally, the Depart ment 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, gr andmother 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 th e July 27, 2012 no contact order because the court was “concerned for the welfare a nd 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 cu stody or the terms of visitation wh en 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 thor oughly weighed all of the evidence, considered the statutory requirements, and made its determina tion 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 consid ered grandmother’s care of A.O., determined that it is in A.O.’s best interest to be in th e 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 c ontact order because “[g]randmoth er consistently worked to sabotage the efforts of [the Depa rtment] designed to improve A.O.’s well-being,” which included initiating “unauthorized contact with A.O. at school and provid ed her with unauthorized cell phones.” Id. at 331, 746 S.E.2d at 526.- 7 - order entered pursuant to this sect ion . . . .”). 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 tole rance for imprecision is much less than if it did not.” The Department contends that grandmother is procedur ally barred pursuant to Rule 5A:18. 4 “Whether the [no contact order] is uncons titutionally 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 prohibit ion 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 wh at 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 discrimi natory 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 unconstitutiona lly vague, which state:

4 Before the circuit court entered the orde r on October 2, 2013, grandmother stated her objections to the no contact orde r. Grandmother argued “we subm it that it is unduly restrictive. . . . Simply knowing where she is does not mean that she has contact . . . .” Additionally, grandmother argued “it’s our positio n that that’s just simply too vague, that it requires her to predict the future.” Code § 8.01-384 provides that an issue is ade quately preserved for appeal if “a party, at the time of the ruling or order of th e 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 m odifications was sufficiently preserved.- 8 - 1. [Grandmother] is hereby prohibi ted 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 prohibi ted 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 al so 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 specific ally address grandmother’s repeated violations of the original no contact order. The evidence pr esented 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 provisi ons 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 gran dmother 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- 9 - attorney-client privilege. The De partment argues that grandmothe r’s assertion is procedurally barred under Rule 5A:18 5 and, in the alternative, the am endments do not unduly restrict grandmother’s ability to litigate claims b ecause the language of provision three allows grandmother to “file a motion seeking permission to proceed.” Grandmother takes issue with provision thr ee of the modified no contact order, which

states: 3. [Grandmother] shall not reveal , disclose, or discuss any information whatsoever regardi ng [A.O.] to or with anyone except a licensed attorney at law who is in good standing with the Virginia State Bar, abse nt good cause shown and further order of the Court . . . . On brief, grandmother cites no re levant law or author ity in support of her contention but rather argues that the provision prohibits her right to consult w ith anyone other than a Virginia attorney. The provision, however, is not an absolute rest riction on grandmother’s ability to consult an attorney. Additionally, grandmother is free to se ek 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 disc losure of confidential communi cations between grandmother and her counsel. The restriction is narrowly limited to “information . . . regard ing [A.O.].” “As long as evidence in the recordsupports the trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on a ppeal.” Brown, 30 Va. App. at 538, 518 S.E.2d at 338. The evidence in the record s upports 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 argum ent before the circuit court on October 2, 2013. Specifically, grandmother stated “With re spect 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.”- 10 - in modifying the no contact order because the am endments 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 ri ght 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:18 6 and, in the alternativ e, that the provisions are narrowly tailored to achieve a compelling state interest. A ssuming without deciding that the amended no contact order c onstitutes restraint of free speech, the order passes a strict scrutiny analysis because of the compelling state interest in protecting the inte rests of the child and because of the narrowly drawn restriction. “When . . . governmental regulation is base d upon the content of speech, as opposed to a time, place, and manner classification, the regulati on must be strictly scrutinized . . . because regulation that relates to subj ect matter ‘slip[s] from the neutrality of time, place, and circumstance into a concern aboutcontent.’” Adams Outdoor A dvertising 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)). Unde r the strict scrutiny test, a regulation of protected speech will withstand a First Amendmen t challenge only if the government shows that (1) it has a compelling interest in restricting spee ch, (2) the restrictions further such an interest, and (3) a more narrowly drawn restriction will fru strate 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. Specifica lly, grandmother stated “For number five, our objection would just be that it would interfere with he r first amendment rights.”- 11 - Grandmother alleges that provisions three a nd five of the no contact order violate her First Amendment rights to freedom of speech, which provide: 3. [Grandmother] shall not reve al, 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 an y 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 intere st.” (citing Stanley v. Illinois, 405 U.S. 645, 652 (1972))). Accordingly, the only ques tions that remain are whether the “restrictions further such an interest, and . . . a more narrowly drawn restri ction will frustrate its interest.” Adams Outdoor Advertising, 236 Va. at 381, 373 S.E.2d at 922-23 (c iting Consol. Edison Co., 447 U.S. at 540). In the current matter, the circuit court modified the or iginal order in response to grandmother’s continuous violati ons 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 th e 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 circumve nt the original order. In making this determination the circuit court indicated its decisi on was based on “the welfare and safety of . . .- 12 - [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 free dom 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 a nd 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 circui t court determined the modified no contact order was necessary in order to protect the best interest of A.O., which is a co mpelling interest of the state. Having previously attempted a narrower restriction which failed, th e circuit court did not abuse its discretion in modifying the order. Acco rdingly, this Court finds that the circuit court did not err in modifying the no contact order becau se 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 th e trial court did not err in modifying the no contact order because 1) it possesse d 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 abil ity to litigate claims and her attorney-client privilege; and 4) assuming without deciding th at 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 sati sfy a strict scrutiny analysis. Accordingly, the circuit court is affirmed in its m odifications of the no contact order. Affirmed.