                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Powell
Argued at Richmond, Virginia


ANONYMOUS C
                                                               MEMORANDUM OPINION * BY
v.      Record No. 2232-09-2                                     JUDGE CLEO E. POWELL
                                                                    JANUARY 11, 2011
ANONYMOUS B


                     FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                  Cheryl V. Higgins, Judge

                  Gregory F. Jacob (Winston & Strawn LLP, on briefs), for
                  appellant.

                  Thomas M. Wolf (LeClairRyan, A Professional Corporation, on
                  brief), for appellee.

                  C. James Summers (Summers & Anderson, on brief), Guardian ad
                  litem for the infant child.


        Anonymous C (“mother”) and Anonymous B (“father”), the parents of a minor child,

Anonymous A (“the child”), appeal the rulings of the Albemarle County Circuit Court related to its

decision to dissolve and dismiss the preliminary protective order implemented following a finding

by the Albemarle County Juvenile and Domestic Relations District Court (“J&DR court”) that the

child had been abused and neglected. This Court previously remanded this case to the trial court “to

hear evidence and make findings on the issue of which parent or parents committed the abuse and

what type of abuse was involved in order to allow it to enter a protective order containing terms

designed to meet the best interests of the child while taking into consideration the rights of her




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
parents, as well.” Anonymous B v. Anonymous C, 51 Va. App. 657, 678, 660 S.E.2d 307, 317

(2008).

          On appeal, mother contends that the trial court erred in (1) denying her motion for nonsuit;

(2) excluding the child’s disclosures of sexual abuse; (3) refusing to allow one of her experts to

testify about a medical test; (4) allowing one of father’s witnesses to testify on issues beyond the

scope of her expertise; (5) admitting the substance of prior administrative proceedings into

evidence; (6) limiting her expert testimony as cumulative; (7) refusing to allow her to introduce

out-of-court statements for the purpose of showing that her actions were reasonable; (8) refusing to

allow her to introduce numerous exhibits into evidence as a sanction for discovery violations;

(9) overruling her objections to father’s argumentative opening statement; and (10) failing to

conduct a “relative financial ability” analysis before requiring her to pay fees to the guardian ad

litem. Father cross-appeals, arguing the trial court erred by holding that the evidence was

insufficient to find mother abused the child and by excluding evidence of mother’s coaching of

the child. Finding that the trial court erred in several respects, we affirm in part, reverse in part,

and remand for further proceedings consistent with this opinion.

                                              ANALYSIS1

                                     I. Mother’s Motion to Nonsuit

          Mother argues that the trial court erred in denying her motion to nonsuit, as she had an

absolute right to a first nonsuit under Code § 8.01-380. Mother contends that the trial court had

no choice but to grant her motion to nonsuit because the case had not been submitted to the trial

court for consideration, no previous motion for nonsuit had been filed, no motion to strike had

been sustained, and no adverse party had filed a counterclaim.


          1
          As the parties are familiar with the record below, we cite only those facts necessary to the
disposition of the appeal.

                                                  -2-
        Father argues that mother had no standing to unilaterally nonsuit the case, as she was

subject to the preliminary protective order at issue in this case. In the alternative, father contends

that any error on the part of the trial court was harmless, as the trial court had inherent

jurisdiction to dispose of the protective order. Meanwhile, the guardian ad litem argues that

whenever a petition alleging abuse has been filed, the plain language of Code § 16.1-253(F)

requires the trial court to conduct a hearing to determine whether the allegations set forth in the

petition have been proven. The guardian ad litem contends that Code § 8.01-380 is inapplicable

to actions filed under Code § 16.1-253. As we hold that allowing a party subject to a preliminary

protective order to nonsuit the case would subvert the purposes of Code § 16.1-253, we affirm the

decision of the trial court.

        The unique posture of this case is important in understanding this Court’s ultimate

determination on the nonsuit issue. On February 9, 2005, Albemarle County Department of Social

Services (“ACDSS”) filed a petition pursuant to Code § 16.1-253 alleging father had sexually

abused the child. After hearing evidence on the matter, the J&DR court concluded the child had

been abused but that it was unable to identify the perpetrator of the abuse. 2 As a result, the J&DR

court entered a preliminary protective order naming both parents as persons subject to the order.

        On March 15, 2005, the J&DR court held an adjudicatory hearing and again found that the

child was abused and named both parents as subject to the preliminary protective order. On April

29, 2005, following a dispositional hearing, the J&DR court issued a protective order naming both

parents. The J&DR court issued two more protective orders on November 1, 2005, and May 3,

2006, each naming both parents as subject to the order.




        2
        The J&DR court found that either father sexually abused the child or mother
emotionally abused the child by coaching her to make a false report about father.

                                                 -3-
        Following the issuance of the May 3, 2006 protective order, father noted a de novo appeal of

the dispositional hearing.3 While his appeal was pending, ACDSS reversed its administrative

finding that father had sexually abused the child. As a result, father moved the trial court to dissolve

the protective order. In response, mother filed a cross-claim against father, noting that “[t]he

administrative reversal does affect [ACDSS]’s ability to act effectively as Plaintiff in this civil

action.” In her cross-claim, mother requested the trial court construe the March 15, 2005

adjudicatory order to provide that father sexually abused the child and enter such orders as

necessary to protect the child from additional abuse, or, in the alternative, find that father abused the

child and enter such orders as necessary to protect the child from additional abuse. In his answer to

mother’s cross-claim, father moved the trial court to find that mother abused the child and to enter

such orders as necessary to protect the child from additional abuse.

        At trial, the court ruled that it was bound by the J&DR court’s findings of fact as contained

in the J&DR court’s adjudicatory order and proceeded to hold a dispositional hearing based on the

J&DR court’s adjudicatory findings. In the subsequent appeal to this Court, we held the trial court

erred in making this ruling and remanded the case to the trial court with instructions that the trial

court hold a de novo adjudicatory hearing. Anonymous B, 51 Va. App. at 677, 660 S.E.2d at 316.

        As a result, the case before the trial court was father’s de novo appeal of the J&DR court’s

adjudicatory finding that the child had been abused by either mother or father, both of whom were

subject to the resulting protective order. ACDSS was the petitioner, and, as mother and father were

each subject to the resulting protective order, they were both respondents.

        Father subsequently moved to dismiss ACDSS from the case and strike its petition. ACDSS

offered no objection to father’s motion, as long as the trial court found the ruling to be in the best


        3
         This Court subsequently determined that an appeal of the dispositional hearing
necessarily includes an appeal of the corresponding adjudicatory hearing. Anonymous B, 51
Va. App. at 674-75, 660 S.E.2d at 315.
                                               -4-
interests of the child. On March 3, 2009, the trial court granted father’s motion, dismissing ACDSS

as a party and dismissing its petition. At the same time, the trial court also determined that mother’s

cross-claim covered the allegations made in ACDSS’s petition and that the same remedies

necessary to protect the child from additional abuse were still available to the court. As a result, the

trial court effectively substituted mother for ACDSS as the advocate of the protective order. It is

important to note, however, that nothing in the trial court’s order indicated that mother was no

longer subject to the protective order. Indeed, in its order dismissing ACDSS, the trial court

specifically stated “[t]hat the Child Protective Order previously entered by this Court shall remain

in full force and effect pending the full hearing scheduled for this matter.” (Emphasis added). As a

result, mother was now in the position of advocating a protective order to which she was also

subject as a potential abuser.

        Against this backdrop, we examine Code § 8.01-380(A), which provides in relevant part:

                A party shall not be allowed to suffer a nonsuit as to any cause of
                action or claim or any other party to the proceeding, unless he does
                so before a motion to strike the evidence has been sustained or
                before the jury retires from the bar or before the action has been
                submitted to the court for decision.

        The plain language of the statute establishes that a nonsuit may be taken only as to a cause

of action, claim, or other party. Our Supreme Court has defined a “cause of action” as “a set of

operative facts which, under the substantive law, may give rise to a right of action.” Roller v. Basic

Constr. Co., 238 Va. 321, 328, 384 S.E.2d 323, 326 (1989). “A right of action belongs to some

definite person; it is the remedial right accorded that person to enforce a cause of action. It arises

only when that person’s rights are infringed.” Id. (emphasis added). A claim, on the other hand, is

defined as “[t]he aggregate of operative facts giving rise to a right enforceable by a court.” Black’s

Law Dictionary 281 (9th ed. 2009); see also Stamie E. Lyttle Co. v. County of Hanover, 231 Va. 21,

26 n.4, 341 S.E.2d 174, 178 n.4 (1986) (defining a “claim” as “‘an authoritative or challenging


                                                  -5-
request,’ ‘a demand of a right or supposed right,’ or ‘a calling on another for something due or

supposed to be due’” (quoting Webster’s Third New International Dictionary 414 (1981))).

        Based upon these definitions, most actions brought under Code § 16.1-253 are neither

causes of action nor claims. The statute clearly states that a preliminary protective order may be

issued “[u]pon the motion of any person or upon the court’s own motion . . . if necessary to protect a

child’s life, health, safety or normal development.” Thus, under most circumstances, an action

under Code § 16.1-253 does not involve the infringement of a right personal to the movant; rather, it

involves the protection of a third party: the child. 4 Indeed, the fact that the court has authority to

seek a preliminary protective order sua sponte indicates that no personal right of the movant is

involved. 5

        Recognizing that a number of actions are neither causes of action nor claims, the General

Assembly included in Code § 8.01-380 a third basis to nonsuit an action: taking a nonsuit as to

“any other party to the proceeding.” We note, however, that in the present case, both father and

mother are technically respondents. Thus, mother’s decision to nonsuit the action as to the only

“other party,” i.e., father, would have no bearing on her position as a respondent. As the trial court

would still be in a position to consider all of the evidence presented to determine whether any abuse




        4
         We recognize that, on rare occasions, the child may seek a protective order on his/her
own behalf. In such situations, the action under Code § 16.1-253 would obviously involve a
right personal to the movant, and therefore a right of action would exist.
        5
          Mother’s argument relies heavily on the fact that a nonsuit may be taken in other cases
where the child is the subject of the litigation, such as in custody actions. Her reliance, which at
first blush appears to have merit, is misplaced. Custody actions are readily distinguishable from
the present case, as a custody action is based on the movant’s rights as a parent; such a claim is
personal to the parent, not the child. Actions brought under Code § 16.1-253, on the other hand,
are based on protecting the child from abuse; such actions are not personal to the movant, but are
undertaken on behalf of the child. Indeed, it is clear that the movant need not have any personal
stake in the outcome of an action brought under Code § 16.1-253.

                                                  -6-
occurred and, if so, who committed it, mother’s nonsuit as to the other party would have no

practical effect on the outcome of the proceeding.

        Furthermore, it is well settled that the ability to take a nonsuit is “distinctly a weapon in the

arsenal of a plaintiff.” Trout v. Commonwealth Transp. Comm’r, 241 Va. 69, 73, 400 S.E.2d 172,

174 (1991). However, in the present case, it would be improper to label mother as the “plaintiff”

because the parties to an action under Code § 16.1-253 are not in the same positions as plaintiffs and

defendants in a traditional action. Code § 16.1-253(F) states that, “[i]f a petition alleging abuse or

neglect of a child has been filed . . . the court shall determine whether the allegations of abuse or

neglect have been proven by a preponderance of the evidence.” Notably, the statute is silent as to

who must prove the allegations of neglect and abuse. While at first it appears logical that the

movant or petitioner would be the one required to prove the allegations of neglect and abuse, such is

not always the case. There are situations in which the movant or petitioner is not in a position to

properly advocate for the preliminary protective order, such as where the trial court has moved for

the preliminary protective order or where, as in this case, the petitioner is subject to the preliminary

protective order. Similarly, there are situations in which the advocate of a preliminary protective

order may no longer wish to pursue the matter, such as where the evidence indicates that the

advocate may actually be the abuser.

        In its final order, the trial court correctly recognized that “while the petition is brought in the

name of the mother, it is for the benefit of the child. Therefore, the right to advocate a protective

order on behalf of the child can be transferred to a party of interest.” This observation is consistent

with the stated intention of the Virginia Juvenile Code, Code §§ 16.1-226 to -334, that “in all

proceedings the welfare of the child and the family . . . and the protection of the rights of victims

are the paramount concerns of the Commonwealth.” Code § 16.1-227. Indeed, we have

previously recognized that

                                                   -7-
                  the court’s paramount concern is always the best interests of the
                  child. This standard applies especially in a case of alleged child
                  sexual abuse . . . and in such cases the court may subordinate the
                  legal rights of the parents to the welfare of the child.

Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990) (emphasis added); see also

Forbes v. Haney, 204 Va. 712, 716, 133 S.E.2d 533, 536 (1963) (“[T]he welfare of the child is to

be regarded more highly than the technical legal rights of the parent. Where the interest of the

child demands it, the rights of the father and mother may be disregarded.”).

           Similarly, Code § 16.1-253 is intended to provide for the protection of abused and neglected

children, and it would be highly illogical to allow a person who may, in fact, be responsible for the

abuse and neglect to be in a position to nonsuit the action against herself. Accordingly, in cases

such as this, where allegations of child sexual abuse have been presented to the trial court and a

preliminary protective order has been issued pursuant to those allegations, it is axiomatic that an

alleged abuser’s “right” to nonsuit must be subordinate to the welfare of the child.

           Here, because mother was a respondent to the preliminary protective order, her right to

nonsuit the case against her was necessarily subordinate to the welfare of the child. Therefore, for

all the foregoing reasons, we hold that the trial court did not err in denying mother’s request for a

nonsuit, because the evidence supports a finding that it was in the best interests of the child for the

trial court to transfer the right to advocate for the protective order to father and the guardian ad

litem. 6




           6
         In its final order, the trial court specifically transferred the right to advocate for the
protective order to father and the guardian ad litem, stating

                  Whereas counsel for the father objected, and the guardian ad litem
                  for the child objected, the court finds that they are permitted to
                  continue the advocacy of this petition on behalf of the child and
                  further finds that it is in the best interest of the child to do so . . . .


                                                     -8-
                      II. Exclusion of the Child’s Disclosures of Sexual Abuse

       Mother next argues that the trial court erred in excluding the child’s disclosures of sexual

abuse. According to mother, the trial court erred by: (1) excluding the child’s disclosures of sexual

abuse that had been allowed into evidence in previous hearings; (2) excluding all of the child’s

disclosures of sexual abuse without making specific findings related to each disclosure;

(3) misapplying the trustworthiness and reliability factors enumerated in Code § 63.2-1522(D) in

excluding the child’s disclosures of sexual abuse to Dr. Viola Vaughan-Eden (“Dr. Vaughan-

Eden”) and Lori Green (“Green”); (4) refusing to allow the child’s disclosures of sexual abuse

into evidence to demonstrate the child’s state of mind; and (5) finding the child was unavailable

to testify. For the reasons set forth below, we agree that the trial court erred in excluding some of

the child’s disclosures of sexual abuse and remand the matter to the trial court to make the necessary

trustworthiness and reliability findings for all of the child’s disclosures of sexual abuse.

                   A. Disclosures of Sexual Abuse Admitted in Prior Proceedings

       Mother argues that the trial court erred in excluding the child’s disclosures of sexual

abuse because the disclosures had previously been allowed into evidence during the adjudicatory

hearing held in the J&DR court. Mother contends that the law of the case doctrine required the

trial court to allow the disclosures into evidence.

       Rule 5A:18 7 provides that “No ruling of the trial court . . . will be considered as a basis

for reversal unless an objection was stated together with the grounds therefor at the time of the

ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of



       7
           Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling . . . .” As the proceedings below were completed prior to this
revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See
Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of
Court in effect at the time of the proceedings below).
                                                   -9-
justice.” “The purpose of Rule 5A:18 is to provide the trial court with the opportunity to remedy

any errors so that an appeal is not necessary.” Knight v. Commonwealth, 18 Va. App. 207, 216,

443 S.E.2d 165, 170 (1994).

        At no point during the trial did mother argue that the child’s disclosures should be admitted

on the grounds that they had been admitted during a previous stage of the litigation.8 Accordingly,

Rule 5A:18 bars our consideration of this issue on appeal.

            B. Exclusion of the Child’s Disclosures of Sexual Abuse in a Single Ruling

        Mother next argues that the trial court erred in excluding the child’s disclosures of sexual

abuse in “a blanket ruling,” as opposed to addressing each disclosure individually. Mother notes

that, when the trial court applied the trustworthiness and reliability factors enumerated in Code

§ 63.2-1522(D), it used facts applicable to a few of the child’s disclosures of sexual abuse to

discredit all of the child’s disclosures of sexual abuse. Mother contends that the language of

Code § 63.2-1522 uses the word “statement” in the singular form, indicating “the legislature’s

intent that each disclosure be analyzed separately.” Father does not dispute mother’s

interpretation of the statute; rather, he argues that the trial court did not err in its application of

Code § 63.2-1522, as the record supports the findings of the trial court. Furthermore, father

contends that mother mischaracterizes the letter opinion as a “single, blanket ruling” under Code

§ 63.2-1522. According to father, the letter opinion merely represents the trial court’s ruling on

his motion in limine, which specifically targeted the disclosures of sexual abuse made to

Dr. Vaughan-Eden, Green, and Dr. Sheila Furey (“Dr. Furey”). To the extent that the trial court




        8
         Although mother made an argument based on the law of the case doctrine, the argument
was not regarding any disclosures of sexual abuse made by the child. Rather, mother argued that
the law of the case doctrine applied to the trial court’s previous finding that the child was abused
and, therefore, all that needed to be determined was the type of abuse and the identity of the
abuser. At no time did she reference the disclosures of sexual abuse made by the child.
                                                 - 10 -
excluded the child’s disclosures of sexual abuse without making the required findings, we agree

with mother that the trial court erred.

       Statutory interpretation presents a pure question of law, which we review de novo.

Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).

                 When interpreting statutes, courts “ascertain and give effect to the
                 intention of the legislature.” Chase v. DaimlerChrysler Corp., 266
                 Va. 544, 547, 587 S.E.2d 521, 522 (2003). That intent is usually
                 self-evident from the words used in the statute. Id. Consequently,
                 courts apply the plain language of a statute unless the terms are
                 ambiguous, Tiller v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d
                 441, 442 (1952), or applying the plain language would lead to an
                 absurd result. Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d
                 494, 496 (2001).

Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006).

       Under Code § 63.2-1522(A), “an out-of-court statement made by a child . . . describing

any act of a sexual nature performed with or on the child by another . . . may be admissible in

evidence if the requirements of [Code § 63.2-1522(B)] are met.” (Emphasis added). Code

§ 63.2-1522(B) provides that the out-of-court statement may be admitted if the child is

unavailable to testify, Code § 63.2-1522(B)(1), and the “statement is shown to possess

particularized guarantees of trustworthiness and reliability,” Code § 63.2-1522(B)(2). In

determining whether the child’s statement possesses the necessary particularized guarantees of

trustworthiness and reliability, the trial court must consider the twelve factors listed in Code

§ 63.2-1522(D). 9 Furthermore, the trial court is required to “support with findings on the

       9
           The twelve factors are as follows:

                 1. The child’s personal knowledge of the event;

                 2. The age and maturity of the child;

                 3. Certainty that the statement was made, including the credibility
                 of the person testifying about the statement and any apparent


                                                - 11 -
record . . . any rulings pertaining to . . . the trustworthiness and reliability of the out-of-court

statement.” Code § 63.2-1522(E).

        The consistent use of the term “statement” in the singular form clearly indicates the

General Assembly’s intent that each disclosure of sexual abuse must be analyzed individually.

Furthermore, a majority of the factors the trial court must consider in determining the

trustworthiness and reliability of a child’s statement are statement specific. 10 Indeed, only three



                motive such person may have to falsify or distort the event
                including bias, corruption or coercion;

                4. Any apparent motive the child may have to falsify or distort the
                event, including bias, corruption, or coercion;

                5. The timing of the child’s statement;

                6. Whether more than one person heard the statement;

                7. Whether the child was suffering pain or distress when making
                the statement;

                8. Whether the child’s age makes it unlikely that the child
                fabricated a statement that represents a graphic, detailed account
                beyond the child’s knowledge and experience;

                9. Whether the statement has internal consistency or coherence,
                and uses terminology appropriate to the child’s age;

                10. Whether the statement is spontaneous or directly responsive to
                questions;

                11. Whether the statement is responsive to suggestive or leading
                questions; and

                12. Whether extrinsic evidence exists to show the defendant’s
                opportunity to commit the act complained of in the child’s
                statement.

Code § 63.2-1522(D).
        10
           Nine of the twelve factors (2, 3, 5, 6, 7, 8, 9, 10, and 11) relate either to the content of
the specific statement made by the child, the context in which that statement was made, or the
credibility of the person testifying about the statement.

                                                 - 12 -
factors are not statement specific. 11 In its August 6, 2009 letter opinion, the trial court identified

each of the twelve factors of trustworthiness and reliability enumerated in Code § 63.2-1522(D),

and explained how it considered each factor. Throughout its explanation, the trial court referred

only to the disclosures made to Dr. Vaughan-Eden and Green. At no point did the trial court

reference disclosures of sexual abuse made by the child to Dr. Furey or anyone else. 12 Absent

the requisite findings on the record, the trial court’s exclusion of all of the child’s out-of-court

statements describing sexual abuse was error.13

             C. Exclusion of the Disclosures Made to Dr. Vaughan-Eden and Green

       As previously noted, the trial court’s August 6, 2009 letter opinion specifically referenced

the disclosures of sexual abuse the child made to Dr. Vaughan-Eden and Green. As such, unlike

the disclosures of sexual abuse made to Dr. Furey and others, the trial court’s rulings on these

statements are supported with findings on the record, as required by Code § 63.2-1522(E).


       11
          Factors 1 and 4 focus on the basis of the child’s knowledge about the event and any
potential motive the child may have to lie. Meanwhile, factor 12 involves evidence independent
of the child’s statement.
       12
           We recognize that a finding that the child lacks the proper basis of knowledge
(factor 1) or has a motive to lie (factor 4) could affect all of the disclosures made by a child and
therefore serve as a non-statement-specific basis for excluding all of the child’s statements.
Nevertheless, the trial court would still be required to make a finding that the child’s statements
lacked the necessary trustworthiness and reliability as a result. Code § 63.2-1522(E). Here, the
record clearly demonstrates that the trial court was concerned that the child’s statements were
tainted by the fact that she had “no memory of a time when there has not been a focus on
whether she has been sexually abused.” Indeed, the trial court specifically found that such
experiences “would have some influence on the statements of the child.” However, rather than
finding that the taint was so pervasive as to render all of the child’s statements untrustworthy, the
trial court determined that it would simply “mak[e] it more difficult to find the particularized
guarantees of trustworthiness and reliability.”
       13
          Mother’s question presented was limited specifically to the trial court’s exclusion of
the child’s disclosures of sexual abuse under Code § 63.2-1522. As such, our holding is limited
to only those statements made by the child “describing any act of a sexual nature performed with
or on the child by another.” Code § 63.2-1522(A). The issue of the trial court’s exclusion of
hearsay statements made by the child that do not relate to sexual abuse is raised in father’s
cross-appeal and is therefore discussed below.
                                              - 13 -
Mother, however, argues that the trial court misapplied the trustworthiness and reliability factors

enumerated in Code § 63.2-1522(D). Specifically, mother contends that the trial court erred in

finding that the disclosures were the product of leading questions as opposed to spontaneous

statements by the child.

       “In determining whether a statement possesses particularized guarantees of

trustworthiness and reliability . . . the court shall consider” the twelve enumerated factors and

“make findings on the record.” Code § 63.2-1522(D), (E). As we have repeatedly recognized in

interpreting similar statutes that require the trial court to consider certain enumerated factors, the

trial court “‘is not required to quantify or elaborate exactly what weight or consideration it has

given to each of the statutory factors.’” Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d

596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986)). “If the circuit court considers all the factors and bases its findings on credible evidence,

we will not disturb its decision on appeal.” Fadness v. Fadness, 52 Va. App. 833, 842, 667

S.E.2d 857, 862 (2008). As such, the decision of the trial court will be reversed only when its

decision is plainly wrong or without evidence to support it. Code § 8.01-680; see Gamble v.

Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992) (“When the record discloses that the

trial court considered all of the statutory factors, the court’s ruling will not be disturbed on

appeal unless there has been a clear abuse of discretion.”).

       Upon familiar principles, “we consider the evidence in the light most favorable to the

party prevailing in the trial court.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383

S.E.2d 28, 30 (1989). Mother’s specific argument focuses on the trial court’s findings regarding

factors 6, 10, and 11. With regard to those factors, the trial court made these specific findings in

its August 6, 2009 letter opinion:

               [Regarding factor 6], [w]hile more than one person heard the
               statement, the court does not find that it indicates a particularized
                                                - 14 -
               guarantee of trustworthiness or reliability. The statement was
               heard by Lori Green and Terry Walls, but the statement was
               repeated after prompting by Dr. Vaughan-Eden through leading
               questions such as “who hurt your butt.”

                          *       *       *       *       *       *       *

                  The court next examines the tenth and eleventh factors. . . . It is
               difficult for the court to assess these factors because Dr. Vaughan-
               Eden’s sessions with the child were not recorded and her notes do
               not indicate with any degree of specificity what questions were
               asked of the child. The questions that are pointed out in the notes,
               such as “who hurt your butt,” seem to be leading in nature.

       Nothing in either of these statements is plainly wrong or lacking evidence to support it.

Indeed, Dr. Vaughan-Eden’s notes make it clear that the child’s statement in front of Green and

Terry Walls was prompted by specific questioning on the part of Dr. Vaughan-Eden.

       Furthermore, we note, as a general matter, that the trial court found that Dr. Vaughan-

Eden violated the protocol of the forensic model she purported to follow and that her evaluation

of the child was tainted by mother’s inflammatory description of father’s alleged actions. These

findings alone would be sufficient to support the trial court’s ruling. Accordingly, we cannot say

that the ruling of the trial court is “plainly wrong or without evidence to support it.”

                     D. Disclosures as Evidence of the Child’s State of Mind

       Mother argues that the trial court erred in refusing to allow the disclosures of sexual

abuse as evidence of the child’s state of mind. Mother contends that the disclosures of sexual

abuse demonstrated that the child had been exposed to some kind of sexualized contact not

normal for a child her age or that the child had been exposed to a traumatic experience that

caused her to feel pain or to be afraid. However, as previously noted, we “will not consider an

argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see also Rule 5A:18.




                                                - 15 -
       Mother’s brief does not direct us to the place in the record where she preserved this

specific issue for appeal, see Rule 5A:20(c) (stating that “[t]he opening brief of appellant shall

contain . . . [a] statement of the questions presented with a clear and exact reference to the

page(s) of the transcript, written statement, record, or appendix where each assignment of error

was preserved in the trial court (emphasis added)), and we have found no evidence in the record

indicating that mother informed the trial court of the error she now presents to us. 14 “We will

not search the record for errors in order to interpret the appellant’s contention and correct

deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239

(1992). As it does not appear that this objection was ever presented to the trial court, Rule 5A:18

bars our consideration of this question presented on appeal. 15


       14
           In her brief, mother indicates this issue was preserved in two different places in the
record. She first cites to an objection she made regarding the redaction of alleged hearsay in
plaintiff’s exhibit 6. The material redacted from plaintiff’s exhibit 6 consisted of statements
made by mother to the University of Virginia medical staff relating to the symptoms mother
observed in the child prior to bringing the child to the hospital. None of the redacted material
involved any disclosures of sexual abuse made by the child.
        Mother next cites to her “Objections to Order Excluding Hearsay Statements,” where she
stated:

               The trial court should address each hearsay statement individually
               with the parties and counsel, and [mother] should be allowed the
               opportunity to argue each statement individually and to seek the
               introduction of each statement on alternative grounds, e.g. state of
               mind, recent complaint exception, excited utterance, spontaneous
               response to an event of which the child had first-hand knowledge,
               and/or Code of Virginia § 8.01-401.1.

        On this occasion, mother did not argue that the disclosures should come in under any
specific exception to the hearsay rule, such as state of mind. Rather, she sought the opportunity
to argue for the admission of each disclosure on an individual basis.
       15
           To the extent that mother’s objections arguably served to put the trial court on notice of
her argument that the disclosures should be admitted based on an exception to the hearsay rule,
we note that mother failed to specify which exception is applicable to the child’s disclosures of
sexual abuse; rather, she merely listed a number of exceptions to the hearsay rule that she would
like to argue.

                                               - 16 -
                             E. Refusal to Allow the Child to Testify

       In her final argument relating to the child’s disclosures, mother argues that the trial court

erred in refusing to allow her to call the child to testify once the disclosures of sexual abuse had

been excluded. Mother contends her stipulation that the child was unavailable to testify was void

ab initio, as it lacked the necessary expert opinion testimony required under Code

§ 63.2-1522(B)(1)(g), and, therefore, she should have been allowed to call the child to testify.

We disagree.

       A stipulation is “an agreement between counsel respecting business before a court.”

Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951).

               A stipulation of counsel, particularly when relied upon by a court,
               cannot later be unilaterally withdrawn. Trial judges must be able
               to rely on counsel to make tactical concessions during trial,
               especially those “designed to narrow the issues and expedite the
               trial or settlement of litigation,” McLaughlin v. Gholson, 210 Va.
               498, 500, 171 S.E.2d 816, 817 (1970), without the risk of such
               reliance being undermined later.

Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448, 455 (2006).




               “When an objection identifies the rule of evidence on which
               admission or exclusion depends, the proponent ordinarily need not
               do more to preserve error than offer the evidence. But when the
               objection, hearsay in this case, does not focus on the specific issue
               presented on review, here the applicability of [a specific]
               exception, error is not preserved [when the evidence is excluded]
               unless the proponent [of the evidence] alerts the trial court to that
               issue. This is in accord with the general principle that to preserve
               error in a ruling on evidence a party must notify the trial court of
               his position and the specific rule of evidence on which [the party]
               relies.”

Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 524-25 (1992) (quoting Huff v.
White Motor Corp., 609 F.2d 286, 290 n.2 (7th Cir. 1979)) (substitutions in original).
        Furthermore, mother failed to obtain a ruling on this matter from the trial court, therefore,
“there is no ruling for us to review on appeal.” Ohree, 26 Va. App. at 308, 494 S.E.2d at 489.
                                                - 17 -
           We have recognized that the efficacy of stipulations is not unlimited. Indeed, stipulations

like the one at issue here “are subject to several restrictions, including the requirement that the

court ‘review the provisions of the [stipulations] for their consistency with the best interests of

the child or children whose welfare the [stipulation] addresses.’” Anonymous B, 51 Va. App. at

676, 660 S.E.2d at 316 (quoting Shoup v. Shoup, 37 Va. App. 240, 250, 556 S.E.2d 783, 788

(2001)). However, once a valid stipulation has been agreed to, “there can be no objection to it.”

Burke, 193 Va. at 137, 67 S.E.2d at 920.

           Here, in accepting the stipulation that the child was unavailable, the trial court

specifically addressed the issue of whether the stipulation was in the child’s best interests,

stating:

                  [I]t appears to the Court that even if a therapist evaluated the child
                  and said, “no, the child is just fine and could testify,” that both
                  parties would still agree that the therapist was wrong.

                  And in looking at the history of this case and the allegations that
                  have been made, and the evaluations the child has already been
                  through, and the relationship between the parties, the Court finds
                  that based upon those factors, as well as the recognition of the
                  parties, that there is a substantial likelihood the child would suffer
                  severe emotional trauma from testifying at the proceeding or by
                  means of a videotaped deposition or a closed-circuit television.
                  And further finding that the child is already going to be seeing a
                  therapist, and then to add another evaluation on top of having a
                  therapist does not appear would be in the best interests of this
                  child, the Court is going to find . . . that the child is not available,
                  pursuant to 63.2-1522, and not require the expert evaluation at the
                  time.

           It is important to note that mother made no objection to the trial court’s findings. As our

Supreme Court explained decades ago,

                  In Virginia, we have also approved the general rule that a party is
                  forbidden to assume successive positions in the course of a suit, or
                  series of suits, in reference to the same fact or state of facts, which
                  are inconsistent with each other, or mutually contradictory. A
                  litigant is estopped from taking a position which is inconsistent
                  with one previously assumed, either in the course of litigation for

                                                   - 18 -
                the same cause of action, or in dealings in pais. This wise and
                salutary policy has been repeatedly followed.

Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937). “Or, as some cases

put it, ‘A man shall not be allowed to approbate and reprobate at the same time.’” Leech v.

Beasley, 203 Va. 955, 962, 128 S.E.2d 293, 298 (1962).

        Considering that the parties agreed to the stipulation and the trial court found the

stipulation was in the best interests of the child, for all intents and purposes the child was no

longer available to testify. The trial court, therefore, did not err in refusing to allow mother to

call the child to testify.

              III. Qualification of Dr. Benton to Testify About the ABEL Assessment

        Mother argues that the trial court erred in refusing to allow Dr. Benton to testify

concerning the reliability of the ABEL Assessment of Sexual Interest (“ABEL Assessment”). 16

According to mother, Dr. Benton was qualified to testify as an expert on the ABEL Assessment

due to his years of experience in evaluating sexually abused children coupled with the fact that

he had read “extensively” about the ABEL Assessment. As such, mother contends the trial court

abused its discretion in not qualifying Dr. Benton as an expert in that area. We disagree.

                In civil cases, expert testimony generally is admissible if it will
                assist the trier of fact in understanding the evidence. However, the
                admission of expert testimony is subject to certain basic
                requirements, including the requirement that the evidence be based
                on an adequate foundation. The decision whether to admit such
                testimony is a matter committed to the trial judge’s sound
                discretion, and we will reverse a trial court’s determination in this
                regard only when the court has abused its discretion.

John v. Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696 (2002) (citations omitted).




        16
         The ABEL Assessment of Sexual Interest purports to identify sexual disorders and
measure deviant sexual interest.

                                                - 19 -
        At trial, Dr. Benton admitted that, although he was familiar with the ABEL Assessment,

he had never received any training on administering the exam. Indeed, he testified that Dr. Abel,

the creator of the ABEL Assessment, had not publicly released all of the parameters of the exam.

In light of Dr. Benton’s candid admissions, we cannot say that the trial court abused its discretion

in refusing to allow Dr. Benton to testify as an expert on a subject which he was, admittedly, not

an expert. 17

                IV. Qualification of Wendy Carroll to Testify About Child Sexual Abuse

        Mother also argues that the trial court erred in allowing Wendy Carroll (“Carroll”) to

offer opinion testimony concerning child sexual abuse. Mother contends that Carroll was not

qualified as an expert in child sexual abuse and, therefore, her testimony allowed father to cast

doubts on mother’s case through unqualified expert testimony. We disagree.

        Carroll, a licensed professional counselor and family therapist, provided testimony about

the ten months that she evaluated the child as part of a separate custody/visitation case between

mother and father. Carroll testified as a fact witness and never qualified as an expert of any sort.

Indeed, mother offered into evidence a letter written by Carroll in which Carroll admitted that the

accusations of child sexual abuse “involve[d] issues that are beyond [her] scope of expertise and

practice.” The testimony at issue occurred when counsel for father asked Carroll: “In the ten

months that you observed [the child], did you see anything that gave you any concern about [the

child] being sexually abused?” Mother objected on the grounds that Carroll had not qualified as

an expert in the field of child sexual abuse. The trial court overruled mother’s objection, stating

that:

                  the Court does not put this on the same level as a forensic sexual
                  evaluation, but finds that [Carroll] is a licensed therapist and

        17
          It is of further note that mother failed to establish any prejudice, as, on rebuttal, she
called Dr. Stephen Granderson, an expert qualified to testify about the ABEL Assessment and its
applicability in cases such as this one.
                                                 - 20 -
               therefore can observe behavior and have concern without it being
               classified as part of a forensic sexual evaluation.

The trial court explained further that the question “as asked” was no different from other

questions asked of lay witnesses with regard to their observations of the child’s behavior.

       Under the “opinion rule,” “opinion testimony of lay witnesses is incompetent because the

jury is in as good a position as a witness to form opinions from the facts.” Lafon v.

Commonwealth, 17 Va. App. 411, 420, 438 S.E.2d 279, 285 (1993). There are, however,

numerous exceptions to the “opinion rule.”

               The principal exception to the “opinion rule” is the common sense
               understanding that the terms “fact” and “opinion” are relative.
               Some statements are not mere opinions but are impressions drawn
               from collected, observed facts, and are admitted under the
               “collective facts rule.” Thus, an “opinion” formed by a witness at
               a given time, may be a “fact” that explains why the witness acted
               in a particular way. Making this distinction is a question best left
               to the discretion of the trial judge.

Id. at 420-21, 438 S.E.2d at 285 (citations omitted).

       Here, it is clear that Carroll’s testimony fell within the collective facts exception to the

opinion rule. Carroll did not testify as an expert; she testified as a fact witness. The question, as

posed, merely asked Carroll about her observations and her reaction to those observations, and

the trial court’s comments indicate it did not consider Carroll’s response as anything other than

fact-based testimony. Accordingly, we affirm the decision of the trial court.

                V. Admission of Prior Administrative Proceedings Into Evidence

       Mother argues that the trial court erred in allowing testimony regarding ACDSS’s

administrative opinion reversing its initial Level 1 finding of child sexual abuse. Specifically,

mother contends that this Court had previously upheld the trial court’s exclusion of the evidence

and therefore the trial court clearly abused its discretion. Mother also argues that the trial court’s

rationale for allowing the findings into evidence was flawed. The trial court allowed father to


                                                - 21 -
use the administrative hearing to show Green was biased against him, which mother contends

was irrelevant to the issues before the trial court.

        “There is no rule of evidence which provides that testimony admissible for one purpose

and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the

case.” United States v. Abel, 469 U.S. 45, 56 (1984). “Frequently, evidence that is inadmissible

under a general rule of evidence is admissible under an exception to the general rule or under

another rule.” Satterfield v. Commonwealth, 14 Va. App. 630, 635, 420 S.E.2d 228, 231 (1992).

        In the previous trial on this matter, father sought to enter the findings of the

administrative hearing as admissions of a party opponent, namely ACDSS. The trial court

rejected the evidence on the basis that it was cumulative, as the trial court was already aware of

the findings. On that basis, we upheld the trial court’s decision to exclude the evidence. Here,

the findings of the administrative hearing officer were offered for an entirely separate purpose:

to demonstrate Green’s bias toward father.

                The bias of a witness, like prejudice and relationship, is not a
                collateral matter. The bias of a witness is always a relevant subject
                of inquiry when confined to ascertaining previous relationship,
                feeling and conduct of the witness . . . . [O]n cross-examination
                great latitude is allowed and . . . the general rule is that anything
                tending to show the bias on the part of a witness may be drawn out.

Henson v. Commonwealth, 165 Va. 821, 825-26, 183 S.E. 435, 437 (1936).

        Green was one of the primary witnesses against father. In addition to hearing one of the

child’s disclosures of sexual abuse, Green played a significant role in supervising father’s

visitation with the child. As a key witness against father, Green’s credibility, as well as any bias

she may have had toward him, was necessarily at issue. As such, we find no error in the trial

court’s decision to allow testimony regarding the findings of the administrative hearing officer to

ascertain what bias, if any, Green may have had toward father.



                                                 - 22 -
                                 VI. Cumulative Expert Testimony

        Mother next argues that the trial court erred in limiting her use of expert testimony.

Mother contends that, because Dr. Vaughan-Eden was an expert witness and a fact witness and

the credibility of the disclosures of sexual abuse the child made to Dr. Vaughan-Eden were the

central issue of the trial, mother should have been allowed to put on experts who would testify

that the disclosures were credible. Mother specifically notes that this ruling prevented her from

calling one of her expert witnesses and severely limited the scope of the testimony of another.

                In the very nature of things there can be no limitation placed on the
                number of witnesses who are called upon to testify as to facts, but
                there is a wide discretion vested in the trial court as to the number
                of opinion witnesses it will hear on a given subject.

Maupin v. Maupin, 158 Va. 663, 673, 164 S.E. 557, 560 (1932).

        “Cumulative testimony is repetitive testimony that restates what has been said already

and adds nothing to it. It is testimony of the same kind and character as that already given.”

Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985). “[W]here evidence is

merely cumulative its introduction may be limited by the court.” Id. Furthermore, “the

exclusion of evidence favorable to a party in a civil action on the ground that it is repetitious and

cumulative is a matter within the sound discretion of the trial court[,] and . . . its ruling is entitled

on review to a presumption of correctness.” Harrison v. Commonwealth, 244 Va. 576, 585, 423

S.E.2d 160, 165 (1992).

        In the present case, the trial court did not, as mother contends, prevent her from calling

one of her expert witnesses or limit the scope of the testimony of other expert witnesses. Rather,

the trial court ruled that mother could not bolster Dr. Vaughan-Eden’s testimony during her

case-in-chief. Indeed, the trial court specifically noted that “it would be appropriate to have the

defense actually present evidence” before allowing mother to bolster Dr. Vaughan-Eden’s

testimony. Moreover, the trial court permitted mother, in her case-in-chief, to elicit extensive
                                                 - 23 -
testimony from Dr. Benton, ruling that his testimony was not cumulative of Dr. Vaughan-Eden’s.

Dr. Benton testified that the child’s statements were clear and detailed and that the medical

records were “consistent with sexual abuse.” Dr. Benton also gave detailed testimony about the

sexualized behaviors the child allegedly exhibited in front of others and his opinion regarding the

significance of those behaviors to the assessment of whether the child had been sexually abused.

Finally, the trial court specifically stated that mother could call additional experts as rebuttal

witnesses. 18 The fact that mother chose not to call the expert witness in question on rebuttal

cannot be found to be error on the part of the trial court.

                 VII. Evidence Showing the Reasonableness of Mother’s Actions

       Mother also argues that the trial court erred in not allowing her to present evidence that

demonstrated her actions were reasonable. Specifically, mother contends the trial court

misapplied the hearsay rule in a way that prevented her from demonstrating that her actions were

reasonable reactions to what other people told her. We agree.

       “Hearsay evidence is defined as a spoken or written out-of-court declaration or nonverbal

assertion offered in court to prove the truth of the matter asserted therein.” Arnold v.

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). “The primary

justification for the exclusion of hearsay is the lack of any opportunity for the adversary to

cross-examine the absent declarant whose out-of-court statement is introduced into evidence.”

Anderson v. United States, 417 U.S. 211, 220 (1974). Thus, “the basis for excluding hearsay is

that it is not subject to the tests which ordinarily exist to ascertain the testimony’s truth.” Penny

v. Commonwealth, 6 Va. App. 494, 498, 370 S.E.2d 314, 317 (1988). However, “[t]he hearsay

rule does not operate to exclude evidence of a statement, request, or message offered for the


       18
        Indeed, as previously noted, on rebuttal mother did call at least one expert witness,
Dr. Ganderson.

                                                - 24 -
mere purpose of explaining or throwing light on the conduct of the person to whom it was

made.” Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960).

       In the present case, mother sought to explain a number of her actions by offering the

statement of a third party that prompted her actions. The statements were not offered for the

truth of the matter asserted but, rather, as an explanation as to what caused mother to act in the

way she did. The trial court refused to allow such statements into evidence, ruling that they were

hearsay. In one such instance, the trial court offered the following example to explain its

application of the hearsay rule:

                 So here is the Court’s analysis. If the statement was going to be,
                 and I’m going to use something absurd, that Dr. Davidson told
                 [mother] to start participating in arson, and [mother] terminated
                 [Dr. Davidson’s] services, the Court would have to find that it was
                 true, that that’s the statement that Dr. Davidson made. So
                 therefore, even though it’s being said that it’s not offered for the
                 truth of the matter, the Court would have to believe the truth to
                 find that it served as a basis for [mother] terminating
                 [Dr. Davidson’s] services.

       It is clear that mother was not offering Dr. Davidson’s statement for the truth of the

matter asserted by Dr. Davidson; rather, she was offering the statement as evidence that

Dr. Davidson made a statement that prompted mother’s actions, i.e., to explain why mother did

what she did. Thus, Dr. Davidson’s statement was not hearsay and should have been allowed

into evidence.

       Furthermore, the trial court’s misapplication of the hearsay rule with regard to mother’s

testimony was not isolated to the statements by Dr. Davidson. As the trial court specifically

faulted mother for failing to offer evidence to explain her actions, when in fact the trial court’s

misapplication of the hearsay rule prevented mother from offering that evidence, we cannot say

the error was harmless and therefore must reverse the decision of the trial court.




                                                - 25 -
                                VIII. Mother’s Discovery Violations

       Mother further argues that the trial court abused its discretion by not allowing her to

introduce into evidence the “exhibits” 19 referenced in the March 2006 letter as a sanction for

failing to disclose them in discovery. Mother contends that the exhibits served to demonstrate

her state of mind (which was the reason that father introduced the letter in the first place),

completed the record, and were in accord with the pretrial order allowing exhibits not listed to be

entered as rebuttal evidence.

       “Rule 4:12 gives the trial court broad discretion in determining what sanctions, if any,

will be imposed upon a litigant who fails to respond timely to discovery.” Woodbury v.

Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990). “Consequently, we accord deference

to the decision of the trial court in this case and will reverse that decision only if the court abused

its discretion.” Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000).

       The record demonstrates that, during discovery, father was provided with a copy of the

March 2006 letter, but the exhibits that were enclosed with the letter were not included. There is

evidence in the record that father had access to some of the referenced exhibits through other

discovery. However, the fact remains that father was not provided with the exhibits in the form

that they were in when they were attached to the letter. Indeed, the record indicates that at least

one of the referenced exhibits was not actually included with the letter when it was originally

sent. Father, however, would have no way of knowing this based on what he received in

discovery. In providing the letter in an incomplete form, mother failed to comply fully with the




       19
           Throughout the March 2006 letter, mother refers to twenty “exhibits,” labeled “A” thru
“T,” that allegedly supported her allegations of sexual abuse against father. Although the letter
refers to the various exhibits, there is no indication as to the exact form and content of each
exhibit.

                                                - 26 -
discovery order in this case. As such, it cannot be said that the trial court abused its discretion in

sanctioning mother.

                          IX. Father’s Argumentative Opening Statement

       Mother argues that the trial court erred in allowing father to make argumentative

comments during his opening statement. Mother contends that this “stripped [her] of her right as

the plaintiff to be the first to present her case and tainted the trial court’s view of Mother’s

evidence from the very outset.”

       Assuming, arguendo, that mother is correct and the trial court allowed father to make

argumentative statements during opening argument, such error was harmless. “[I]n a bench trial,

the trial judge is presumed to disregard prejudicial or inadmissible evidence, and this

presumption will control in the absence of clear evidence to the contrary.” Hall v.

Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992). Mother has presented no

evidence demonstrating that the trial court failed to disregard any prejudicial or inadmissible

evidence that father allegedly presented during opening argument, thus we must assume that any

such evidence was disregarded. Furthermore, even if the trial court erred in allowing father to

make argumentative statements during his opening statement, we hold that the error did not

“injuriously affect” the mother’s interest and is therefore harmless. See Jenkins v. Dep’t of Soc.

Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991) (“[E]rror which does not injuriously

affect the interest of the party complaining is not reversible.”).

                              X. Parties’ Relative Financial Abilities

       Mother’s final argument is that the trial court erred in dividing the guardian ad litem’s

fees equally between the parties without considering the “relative financial abilities of the

parties.” According to mother, any award of guardian ad litem fees must be based on Code




                                                - 27 -
§ 16.1-278.19, which requires the court to assess the relative financial abilities of the parties in

awarding attorney’s fees. We disagree.

       As an initial matter, we note that Code § 16.1-278.19 merely allows the court to shift the

burden of attorney’s fees and costs from one party to another. Code § 16.1-278.19 states that

“[i]n any matter properly before the court, the court may award attorneys’ fees and costs on

behalf of any party as the court deems appropriate based on the relative financial ability of the

parties.” (Emphasis added). The legislature’s use of the word “may” indicates that Code

§ 16.1-278.19 is non-compulsory, as the trial court may award attorney’s fees and costs.

Similarly, the phrase “on behalf of any party” clearly indicates that fees and costs must first be

incurred by the party before the trial court may make the award. Thus, Code § 16.1-278.19 is

clearly designed to give the trial court authority to shift the burden of attorney’s fees and costs

from one party to another and does not set out a requirement that a guardian ad litem’s fees must

be divided among the parties based on their relative financial abilities.

       Code § 16.1-267(A), 20 on the other hand, clearly governs guardian ad litem fees. Under

Code § 16.1-267(A), the court is required to assess the total costs of the guardian ad litem’s

representation of the child against both parents. 21 Notably, however, the statute is silent as to


       20
            Code § 16.1-267(A) states:

                When the court appoints counsel to represent a child pursuant to
                subsection A of § 16.1-266 and, after an investigation by the court
                services unit, finds that the parents are financially able to pay for
                the attorney and refuse to do so, the court shall assess costs
                against the parents for such legal services in the maximum amount
                of that awarded the attorney by the court under the circumstances
                of the case, considering such factors as the ability of the parents to
                pay and the nature and extent of the counsel’s duties in the case.

(Emphasis added).
       21
         As mother’s argument is based solely on the applicability of Code § 16.1-278.19, we
do not examine the trial court’s application of Code § 16.1-267(A). See Rule 5A:18.
                                               - 28 -
how the court may apportion those costs between the parents. We have recognized that the

power to apportion the fees and expenses of the guardian ad litem is indivisible from the power

to appoint the guardian ad litem. Verrocchio v. Verrocchio, 16 Va. App. 314, 322, 429 S.E.2d

482, 487 (1993). Our Supreme Court has recognized that the trial court may allocate the costs of

the guardian ad litem’s services “based upon the final result.” Infant C. v. Boy Scouts of

America, 239 Va. 572, 584, 391 S.E.2d 322, 329 (1990). As such, “[t]he decision to apportion

guardian fees between both parties . . . involves a matter within the [trial court’s] discretion.”

Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003). As nothing in our

jurisprudence indicates that allocating guardian ad litem costs equally amongst the parties is

error, we hold that the trial court did not abuse its discretion.

                                XI. Evidence of Abuse and Neglect

        In his cross-appeal, father argues that the trial court erred in finding that mother did not

abuse the child. Father contends that, contrary to the trial court’s ruling, Code § 63.2-100 does

not require proof of actual mental or physical injury; rather, the evidence need only show “an

identifiable pattern of harmful behavior by the parent that threatens to inflict injury to the mental

functioning of the child.” Jackson v. W., 14 Va. App. 391, 397, 419 S.E.2d 385, 388 (1992).

        As previously stated, statutory interpretation presents a pure question of law, which we

review de novo. Ainslie, 265 Va. at 352, 577 S.E.2d at 248. “When the language of a statute is

unambiguous, we are bound by the plain meaning of that language.” Conyers v. Martial Arts

World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

        In its September 1, 2009 letter opinion, the trial court stated that

                [Code § 63.2-100] requires that the Court find that [mother’s]
                actions created or inflicted upon the child a physical or mental
                injury . . . . While the mother’s actions at time[s] were extreme, I
                cannot find that she inflicted mental injury. The court find[s] there
                is a legal difference in intentional[ly] interfering with the father’s

                                                 - 29 -
                access and relationship with the daughter and what would be
                required to show a mental injury to the child.

(Emphasis added).

        An “abused or neglected child” is defined as any child under the age of eighteen,

“[w]hose parents or other person responsible for his care creates or inflicts, threatens to create or

inflict, or allows to be created or inflicted upon such child a physical or mental injury by other

than accidental means . . . .” Code § 63.2-100 (emphasis added). In interpreting Code

§ 63.2-100, we have held that “the statutory definitions of an abused or neglected child do not

require proof of actual harm or impairment having been experienced by the child.” Jenkins, 12

Va. App. at 1183, 409 S.E.2d at 19.

        Furthermore,

                [t]he Commonwealth’s policy is to protect abused children and to
                prevent further abuse of those children. This policy would be
                meaningless if a child must suffer an actual injury from the
                behavior of his or her parent before receiving the Commonwealth’s
                protection.

Jackson, 14 Va. App. at 402, 419 S.E.2d at 391.

        It is readily apparent that the trial court interpreted Code § 63.2-100 to require that the

child suffer an actual mental injury. In actuality, all that is required under the statute is the

creation of an environment that threatens to inflict physical or mental injury to the child. See id.

at 397, 419 S.E.2d at 388. Accordingly, we must reverse the judgment of the trial court.

                    XII. Exclusion of the Remainder of the Child’s Statements

        Father next argues that the trial court erred in excluding one specific hearsay statement

made by the child that did not relate to the allegations of sexual abuse. According to father, the

statement was an excited utterance and therefore should have been allowed into evidence as an

exception to the hearsay rule.



                                                 - 30 -
       In excluding the statement, the trial relied on its previous ruling that the child’s

statements were unreliable under Code § 63.2-1522. We note, however, that Code § 63.2-1522

applies only to statements made by a child “describing any act of a sexual nature performed with

or on the child by another.” The child’s statement in this instance did not describe an act of a

sexual nature; therefore Code § 63.2-1522 was inapplicable. As there was no objection to the

admission of the child’s statement into evidence, the trial court erred in subsequently excluding

the statement based on its application of Code § 63.2-1522.

                                          CONCLUSION

       The trial court erred in (1) failing to support “with findings on the record” its rulings

pertaining to the child’s disclosures of sexual abuse under Code § 63.2-1522; (2) misapplying the

hearsay rule with regard to mother’s state of mind; (3) misinterpreting Code § 63.2-100; and

(4) excluding the child’s hearsay statements not describing an act of a sexual nature under Code

§ 63.2-1522.

               It would serve no useful purpose for us to examine the evidence bit
               by bit to determine what was relevant and what was not. Suffice it
               to say that we are convinced from the record that the most
               appropriate action is for the trial court to reexamine all the
               evidence in light of this opinion.

Keel v. Keel, 225 Va. 606, 613, 303 S.E.2d 917, 922 (1983).

       Accordingly, we affirm in part, reverse in part, and remand the matter to the trial court

for further proceedings consistent with this opinion.

                                                                                    Affirmed in part,
                                                                                    reversed in part
                                                                                    and remanded.




                                               - 31 -
