Where a child’s former foster parents sought to regain custody after the J&DR court placed the child with her biological mother, their petitions for custody and visitation were correctly denied because they did not prove “current actual harm” to the child.
A doctor’s deposition did not establish actual harm. Thus any error in excluding it was harmless.
“In custody disputes between third parties and parents, ‘the rights of the parent are, if at all possible, to be respected.’ …
“‘[T]he law presumes that the child’s best interests will be served when in the custody of its parent.’ …
“In visitation disputes between third parties and parents, a trial court ‘shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.’ …
“The best interest of the child is only considered after a finding of actual harm. … ‘Without a finding of harm to the child, a court may not impose its subjective notions of “best interests of the child” over the … objection of the child’s parents without violating the constitutional rights of those parents.’…
“Because visitation – a narrower issue within the custodial liberty interest of parents – cannot be ordered without showing actual harm to the minor child in the absence of visitation, we find that custody also cannot be ordered without proving actual harm.
“In other words, a third-party seeking custody must show present clear and convincing evidence that the child will be harmed – unless removed from the biological parent’s custody – because of parental unfitness, a previous order of divestiture, voluntary relinquishment, abandonment, or ‘special facts and circumstances’ that constitute ‘an extraordinary reason for taking a child from its parent.’”
“In April 2021, the J&DR court agreed with the recommendation of the [Norfolk Department of Human Services] to return M.J. [the minor child] to Joe’s [the biological parent’s] custody. The J&DR court necessarily considered everything that occurred up to that point in making this decision, and it simultaneously rejected the Moores’ [M.J.’s former foster parents’] petitions for custody and visitation.
“For the Moores to succeed at the custody and visitation trial before the circuit court, eight months later, they were required to demonstrate actual current harm to M.J. by clear and convincing evidence. The Moores argue they could have done this, had the deposition of Dr. Tirrell been admitted.
“Dr. Tirrell’s de bene esse deposition does not show actual harm to M.J., as Dr. Tirrell did not testify about any current concerns in Joe’s parenting. Dr. Tirrell’s evaluation occurred nearly two years before the Moores’ custody and visitation trial.
“Her deposition occurred twenty months after her last contact with Joe. In her deposition, Dr. Tirrell stated that she could not testify regarding Joe’s current mental state, medication management, or parenting capabilities.
“The evidence suggests that Joe made significant improvements in her life between April 2020 and December 2021, including attending therapy and obtaining stable housing. Joe improved so much that she regained custody over M.J. in April 2021.
“The Moores submitted that Dr. Tirrell’s deposition and evaluation demonstrated actual harm to the minor child because it impeached Joe’s testimony and revealed her significant mental health and substance abuse issues, turbulent romantic history, and failure to medicate her bipolar disorder.
“Thus, the Moores claim that the deposition and evaluation show that Joe is unable to properly parent M.J. and that M.J. will experience actual harm without the Moores’ presence in her life. …
“Mental health and substance abuse issues alone do not render a parent unfit per se. Although relevant to the historical picture, Dr. Tirrell’s evaluation of Joe’s mental health status is stale. M.J. was in Joe’s custody for one year before this trial.
No actual harm
“The J&DR court knew of Joe’s mental health and substance abuse issues, and it determined that Joe was a fit parent by awarding her custody. Regarding Joe’s romantic history, the evidence – including the deposition and evaluation – indicated that Joe was in a stable, positive relationship. Testimony about Joe’s romantic history and any potential impact on the children constitutes pure speculation of actual harm.
“Finally, although Dr. Tirrell opined that Joe needed medication to treat her bipolar disorder in 2020, her deposition did not state that Joe currently requires such medication.
“The deposition’s impeachment value is, therefore, weak. Considering all of these circumstances together, Dr. Tirrell’s deposition provides no evidence of actual harm to M.J. beyond mere speculation.”
Foster parents’ absence
“Beyond the deposition and evaluation, the Moores submitted their testimony and Joe’s testimony, as an adverse witness, to demonstrate that M.J. would suffer actual harm without their presence. The Moores introduced no other evidence. …
“Joe’s ability to care for M.J. in 2019 is not at issue. Instead, the issue is whether M.J. would experience actual harm now without the Moores’ presence. The custody and visitation trial occurred nearly one year after the Moores’ last contact with M.J. Although the Moores testified about M.J.’s condition in 2019, they could not identify what harm M.J. would now suffer without their presence.
“Instead, they testified that they could better provide financially and spiritually, emphasized their ‘two-parent household,’ and questioned Joe’s history of homelessness, despite her stable housing for over two years.
“When asked about her concerns regarding actual harm, Ms. Moore merely stated, ‘[W]ho will provide [M.J.] the mental stability, the emotional stability, the financial stability? Without the resources of others, how is [Joe] going to be able to maintain and upkeep the things we’ve set in place for [M.J.]?’ Speculative worries do not constitute actual harm.”
“The record plainly shows that Dr. Tirrell’s de bene esse deposition did not raise a showing of actual harm to M.J. Thus, the circuit court’s purported error in excluding the deposition was harmless. Because the evidence does not demonstrate actual harm, which we hold is required in a custodial dispute between a parent and a third party, the circuit court did not err in granting the motion to strike.”
Moore, et al. v. Joe, Record No. 0098-22-1, Jan. 24, 2023. CAV (published opinion) (Ortiz). From the Circuit Court of the City of Norfolk (Atkins). Norman A. Thomas, Guardian ad litem for the minor child; Norman A. Thomas, PLLC; Brian A. Thomasson, P.L.C., on briefs), for appellants. Brandon L. Ballard; Floyd J. Oliver, on brief), for appellee. VLW 023-7-035, 11 pp.