Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
There was sufficient evidence to justify a protective order against father in favor of a 15-year-old child, A.N.H., an adult child and the mother.
“Father argues that the circuit court erred in issuing the protective order on A.N.H.’s behalf. …
“Father contends there was no evidence of any acts causing ‘bodily injury’ or that A.N.H. had ‘a reasonable apprehension of death, sexual assault, or bodily injury.’ Father argues that A.N.H. testified she ‘did not have any marks that she could remember from being allegedly picked up and thrown down by’ father.
“Father also contends that A.N.H. was ‘not fearful’ of father, alleging that the recording [which father made during the incident at issue] showed A.N.H. challenging father.”
A.H.N. is heard on the recording yelling at father, and telling him not to grab her. “The circuit court heard the recording concerning the incident, including father’s recorded statements that he ‘grabbed’ A.N.H.
and that she ‘need[ed] to get [her] butt spanked.’ According to father’s testimony at trial, A.N.H. ‘was … trying to create a reaction.’
“Father also admitted at trial that he ‘spanked’ A.N.H. but denied grabbing her and instead testified that he ‘corralled her to the stairs.’”
Father points out that “A.N.H. remained at his house for a few days following the incident and returned to his house the week after the incident. Father further argues that CPS never entered a safety plan based on the past complaints and that he was not arrested for domestic assault following the April 22, 2022 incident.
“Father acknowledged ‘having grabbed and/or corralled [A.N.H.] to go back upstairs in an attempt to end her confrontation on April 22, 2022,’ but argued that this was ‘not behavior warranting a protective order against [father], … when considered in light of [A.N.H.’s] disrespectful and seemingly unhinged behavior as captured in the audio recording. …
“Contrary to father’s arguments, the evidence supports the circuit court’s ruling in support of the protective order. A.N.H. testified about her relationship with father as well as the April 22, 2022 incident.
“She stated that during the incident father ‘got mad, and came after [her], grabbing [her], trying to restrain [her] and pick [her] up … and threw [her] to the ground.’
“When she tried to leave the room, father ‘grabbed’ her and ‘threw [her] back to the ground’ again before she was able to go upstairs and lock herself in the bathroom.
“After hearing all the evidence, the circuit court concluded that ‘family abuse is consistent with the recording’ and that A.N.H. was ‘standing up to a bully.’
“Furthermore, A.N.H., as in the emails to mother and the school counselor, testified several times that she was ‘scared’ and ‘terrified’ during the April 22, 2022 incident, and the circuit court explicitly found that A.N.H. was ‘afraid.’
“‘It is well established that the trier of fact ascertains a witness’ credibility, determines the weight to be given to their testimony, and has the discretion to accept or reject any of the witness’ testimony.’ …
The circuit court accepted A.N.H.’s testimony regarding the event and A.N.H.’s fear of father, which was corroborated by the recording. We therefore find that the evidence supports the circuit court’s ruling in support of the protective order.”
Halac v. A.H.N. by next friend Lumley, Record No. 1926-22-4, Sept. 5, 2023. CAV (unpublished opinion) (Malveaux) From the Circuit Court of Loudoun County. (Irby) Melanie Hubbard (Malinowski Hubbard, PLLC, on briefs), for appellant. Amanda M. Stone Swart (Elizabeth M. Ross, Guardian ad litem for the minor child; Livesay & Myers, P.C.; Beckman Schmalzle Georgelas & Ross, PLC, on brief), for appellee. VLW 023-7-341, 8 pp.