                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED



              DWIGHT THOMAS GRANT, II
                                                                               MEMORANDUM OPINION*
              v.     Record No. 0999-14-4                                           PER CURIAM
                                                                                  JANUARY 13, 2015
              ALLISON JOY QUIGLEY


                                    FROM THE CIRCUIT COURT OF CLARKE COUNTY
                                               John E. Wetsel, Jr., Judge

                               (Dominique A. Callins; Kearney, Freeman, Fogarty & Joshi, PLLC,
                               on brief), for appellant.

                               (Ryan M. Schmalzle; Beckman Schmalzle PLC, on brief), for
                               appellee.

                               (Krystal A. Omps; William August Bassler, PLC, on brief),
                               Guardian ad litem for the minor children.


                     Dwight Thomas Grant, II appeals an order that awarded sole custody of the minor children

              to Allison Joy Quigley and ordered Grant to have no contact with the children unless approved by

              the children’s health care providers and the guardian ad litem. Grant argues that the circuit court

              erred by (1) continuing a protective order not entered by the Clarke County Juvenile and Domestic

              Relations District Court (the JDR court); (2) failing to admit evidence regarding the conclusions of a

              subsequent child protective services investigation; (3) “permitting an expert witness to assert an

              expert opinion based upon the expert’s lay observation of a non-treating minor child;” (4) “failing to

              allow appellant to cross-examine an expert witness regarding the expert’s use of facts,

              circumstances and data normally relied upon in the expert’s field of study;” (5) failing to admit

              evidence of Quigley’s alleged history of sexual abuse; (6) failing to admit evidence of Quigley’s

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“previous unfounded allegations of abuse by the appellant;” (7) admitting hearsay statements

“without considering and articulating whether the statements possessed a particularized guarantee of

trustworthiness and reliability;” and (8) finding that the best interests of the children warranted no

contact with Grant because there was insufficient evidence to prove that he sexually abused the

children.1 Upon reviewing the record and briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule

5A:27.

                                          BACKGROUND

         “‘We review the evidence in the light most favorable to . . . the party prevailing below,

and grant . . . all reasonable inferences fairly deducible from the evidence viewed in that light.’”

Judd v. Judd, 53 Va. App. 578, 582, 673 S.E.2d 913, 914 (2009) (quoting Goodhand v. Kildoo,

37 Va. App. 591, 595, 560 S.E.2d 463, 464 (2002)).

         So viewed, the evidence proved that Grant and Quigley were married on April 23, 2006

and divorced on January 23, 2012. Pursuant to their Agreement and Stipulation, which was

incorporated into the final decree of divorce, they had joint legal and shared physical custody of

their two children.2

         In February 2013, the parties’ oldest child displayed behavior that caused Quigley to

believe that the child had been sexually abused by Grant. Quigley contacted the Department of

Social Services, which determined that the complaint was unfounded. The police also

investigated the matter and did not file any criminal charges against Grant.




         1
         Grant withdrew his second and eighth assignments of error; therefore, this Court will
not consider them.
         2
             The children were born in April 2007 and December 2008.

                                                  -2-
       On February 11, 2013, Quigley filed a petition for a protective order and a motion to

amend custody and visitation. Quigley alleged that Grant had sexually abused their oldest

daughter.

       On August 9, 2013, the JDR court entered a protective order pursuant to Code

§ 16.1-279.1 and held that Grant shall have no contact with the two children. The protective

order remains in effect until August 9, 2015. In addition, the JDR court entered an order

awarding Quigley sole legal and physical custody of the children and ordered Grant to have no

contact with the children. Grant appealed to the circuit court.

       On April 23, 2014, the circuit court heard evidence and argument from the parties.

Quigley presented evidence from Dr. Stacey Hoffmann, who is a licensed clinical psychologist.

The circuit court qualified Dr. Hoffman as an expert in sexual abuse and reunification and held

that she could “state her opinions including views of psychology with respect to the potential

abuse and consequences of sexual abuse.” She started seeing the parties’ oldest daughter in 2012

to help address her behavioral problems. After February 2013, the parties’ oldest daughter’s

behavior deteriorated. She exhibited violent and disruptive behavior and was hospitalized six

times for mental health issues.3 Dr. Hoffman opined that the child suffered from post-traumatic

stress disorder and that her behaviors were consistent with a child who had been sexually abused.

The court also heard evidence that the youngest daughter was behaving in such a manner that

indicated she had been sexually abused.

       On April 29, 2014, the circuit court issued its factual findings. After reviewing the

factors in Code § 20-124.3, the circuit court determined that Quigley should have sole legal and

physical custody of the children, and Grant should have no contact with the children unless


       3
        As of the trial date in the circuit court, the child had been residing in a residential
treatment facility since September 17, 2013.

                                                 -3-
approved by the children’s treating health care providers and the guardian ad litem. The circuit

court also held that “[t]he protective orders issued by the Juvenile and Domestic Relations

District Court remain in effect.” This appeal followed.

                                             ANALYSIS

                              Assignment of error #1 – Protective order

          Grant argues that the circuit court erred by extending the protective order entered by the

JDR court.4 Specifically, Grant asserts that he was not served with a permanent protective order

by the JDR court. He contends the circuit court “erred in continuing an unenforceable protective

order.”

          Pursuant to Code § 16.1-279.1(A), a court “may issue a protective order to protect the

health and safety of the petitioner and family or household members of the petitioner.”

According to Code § 16.1-279.1(C), “[a] copy of the protective order shall be served on the

respondent and provided to the petitioner as soon as possible.”

          Although Grant was not served with the protective order, he clearly had actual notice of

it. See Tsai v. Commonwealth, 51 Va. App. 649, 654, 659 S.E.2d 594, 596 (2008) (a person can

be convicted of violating a protective order if he was personally served with the protective order

or he had actual notice of it). The protective order was included in the appendix for this appeal.

The JDR court entered it on August 9, 2013, which is the same date that it entered the custody

order. Grant’s notice of appeal from the JDR court to the circuit court included a case number

that was the same as that listed on the protective order. Grant discussed the existence of the

protective order with the circuit court at the beginning of the hearing.




          4
       The circuit court’s final order states, “The protective orders issued by the Juvenile and
Domestic Relations District Court remain in effect.”

                                                  -4-
       Since Grant had actual notice of the protective order, the circuit court did not err in

holding that it remained in effect.

                                      Assignment of error #3

       Grant argues that the circuit court erred in permitting Dr. Hoffman to testify that her

observations of the parties’ youngest child were consistent with sexual abuse, as her opinion was

not admissible expert testimony. Grant contends Quigley did not establish a sufficient basis for

Dr. Hoffman’s opinion regarding the youngest child because Dr. Hoffman did not treat the child.

       “Generally, the admissibility of evidence ‘is within the broad discretion of the trial court,

and an [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of

discretion.’” Surles v. Mayer, 48 Va. App. 146, 177, 628 S.E.2d 563, 578 (2006) (quoting Blain

v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)) (brackets in original).

       “Likewise, ‘whether a witness is qualified to testify as an expert is largely within the

sound discretion of the trial court.’” O’Rourke v. Vuturo, 49 Va. App. 139, 153, 638 S.E.2d 124,

130 (2006) (quoting Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408, 418, 568

S.E.2d 703, 709 (2002) (internal quotations omitted)).

       Grant objected to Dr. Hoffman testifying about the parties’ youngest child. Quigley

identified Dr. Hoffman as an expert witness. In her “Pretrial Expert Designations,” she stated

that the youngest child had spoken with Dr. Hoffman and that Dr. Hoffman opined, “Both

children have exhibited behavior that is consistent with sexual abuse.” The circuit court held that

Quigley adequately identified Dr. Hoffman as an expert witness. We agree. Dr. Hoffman

testified that she saw the youngest child “approximately seven or eight” times and observed

behaviors that concerned her. The circuit court stated,

               I think one, I’ve already qualified this. Two, I’ve already
               instructed her to state no opinions she does not hold without a
               reasonable degree of psychological probability. If she doesn’t hold
               it to a reasonable degree of psychological probability, she’s not to
                                                -5-
               state it. Now insofar as her observations, they’re all within the
               purview of a relationship with a child as a clinical psychologist so
               your objection is noted and overruled.

       Grant further contends Dr. Hoffman was treating the oldest child, not the youngest child,

and should not have given an opinion regarding the youngest child. However, the circuit court

could determine how much weight to place on Dr. Hoffman’s testimony regarding the youngest

child. “In determining the weight to be given the testimony of an expert witness, the fact finder

may consider the basis for the expert’s opinion.” Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668-69 (1997) (en banc) (citing Gilbert v. Summers, 240 Va. 155, 393 S.E.2d 213

(1990)).

       The circuit court did not abuse its discretion in allowing Dr. Hoffman to give an expert

opinion regarding the youngest child.

                                      Assignment of error #4

       Grant argues that the circuit court erred by failing to allow him to cross-examine

Dr. Hoffman regarding her use of facts, circumstances, and data normally relied upon by experts

in her field of study. Specifically, he challenges the circuit court’s refusal to allow him to

cross-examine Dr. Hoffman about his willingness to take a polygraph examination and the

results of his psychosexual evaluations.

               In any civil action any expert witness may give testimony and
               render an opinion or draw inferences from facts, circumstances or
               data made known to or perceived by such witness at or before the
               hearing or trial during which he is called upon to testify. The facts,
               circumstances or data relied upon by such witness in forming an
               opinion or drawing inferences, if of a type normally relied upon by
               others in the particular field of expertise in forming opinions and
               drawing inferences, need not be admissible in evidence.

Code § 8.01-401.1.

       The circuit court ruled that Grant could not ask Dr. Hoffman about his willingness to take

a polygraph test because “[t]he law considers polygraphs to be hocus pocus.” See Robinson v.

                                                -6-
Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986) (“In a long line of cases,

spanning almost thirty years, we have made clear that polygraph examinations are so thoroughly

unreliable as to be of no proper evidentiary use . . . .” (citations omitted)). Considering the

Court’s view on polygraph tests, the circuit court did not abuse its discretion in refusing to allow

Grant to question Dr. Hoffman about them.

       The circuit court also held that Grant could not ask Dr. Hoffman about a psychosexual

evaluation that he took because Grant did not provide a copy of the report to Dr. Hoffman prior

to trial. The circuit court stated that Dr. Hoffman clearly did not rely upon the report in forming

her opinion, since she had not seen it. Furthermore, the circuit court explained that the person

who administered the test was not present at the hearing, so its validity was questionable. Lastly,

the circuit court found that the report was not identified as an exhibit, and copies of the report

were not provided to opposing counsel or the guardian ad litem.

       The circuit court asked Dr. Hoffman if a psychosexual evaluation would have been useful

for her analysis of the situation. She responded that it would have been useful, but not necessary.

She further explained her answer by stating, “A snapshot of what somebody did in their office

for a few hours is not going to rise to the same level of what a team of people that have basically

been working with the little girl around the clock.”

       The polygraph test and psychosexual evaluation were not included in the record. Grant

did not proffer the results of the tests and what the proposed testimony would have been. “‘It is

well settled that when a party’s evidence has been ruled inadmissible, the party must proffer or

avouch the evidence for the record in order to preserve the ruling for appeal; otherwise, the

appellate court has no basis to decide whether the evidence was admissible.’” Zelenak v.

Commonwealth, 25 Va. App. 295, 302, 487 S.E.2d 873, 876 (1997) (en banc) (quoting Smith v.

Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992)). For this Court to consider

                                                -7-
whether the trial judge erroneously limited Grant’s cross-examination of Dr. Hoffman, the record

must contain a proffer of both the questions Grant wanted to ask and the answers Dr. Hoffman

would have given. See Spencer v. Commonwealth, 238 Va. 295, 305, 384 S.E.2d 785, 792

(1989).

          Because the record fails to contain the proffer, Rule 5A:18 bars this Court’s consideration

of this assignment of error.

                                        Assignment of error #5

          Grant argues that the circuit court erred in failing to allow him to cross-examine Quigley

about her alleged history of sexual abuse. Grant asked Quigley, “And is it also your, your mental

health history that you have determined that you were sexually molested as a child?” Quigley’s

counsel objected to the relevance of the question. Grant’s response was simply, “It’s extremely

relevant.” He provided no further explanation. The circuit court sustained the objection. For the

first time on appeal, Grant contends “such evidence speaks to the issue of mental condition of a

parent, bias, motive and credibility.” 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). Accordingly, this Court will not consider the fifth assignment of error.

                                        Assignment of error #6

          Grant argues that the circuit court erred in failing to admit evidence of previously

unfounded allegations of abuse that Quigley made against him. At trial, Grant asked Quigley,

“Now this incident that occurred in February of 2013, and those allegations that you asserted

against Mr. Grant, this is not the first time that you accused him of harming the children. Is that

right?” Quigley’s counsel objected. The circuit court stated, “Unless it’s sexual abuse it’s not

material.” The circuit court explained, “There’s, there is no evidence of any abuse other than

sexual abuse since January 23, 2012. Any former abuse could have been litigated and wasn’t.”

                                                  -8-
Contrary to Grant’s arguments, the circuit court stated that it would allow questions “about any

type of sexual abuse,” but Grant did not ask Quigley about any other allegations of sexual abuse

she made against him.

       On appeal, Grant states, “Had Grant been permitted, he would have introduced evidence

of a history of allegations of abuse by the Appellant against the parties’ children, none of which

were based upon any credible foundation and none of which result in further action or

intervention by the court.” Grant did not proffer what the evidence would have been.

       “It is well settled that when a party’s evidence has been ruled inadmissible, the party

must proffer or avouch the evidence for the record in order to preserve the ruling for appeal;

otherwise, the appellate court has no basis to decide whether the evidence was admissible.”

Smith, 14 Va. App. at 357-58, 416 S.E.2d at 715; see also Joynes v. Payne, 36 Va. App. 401,

418, 551 S.E.2d 10, 18 (2001).

       Since Grant offered no proffer, this Court will not consider his sixth assignment of error.

                                      Assignment of error #7

       Grant argues that the circuit court erred in admitting the oldest child’s out-of-court

statements without making the findings required by Code § 63.2-1522, which defines when

out-of-court statements, “describing any act of a sexual nature performed with or on the child by

another,” made by a child twelve years of age or younger may be admitted into court.

       First, Grant argues that the circuit court erred in admitting pictures the oldest child drew

while in the presence of Dr. Hoffman. Grant did not object to the drawings based on the circuit

court failing to make the requisite findings from Code § 63.2-1522; therefore, this Court will not

consider his argument on appeal as related to the child’s drawings. See Rule 5A:18.

       Second, Grant objected to the statements that the oldest child made to Quigley. Quigley

testified about an incident that occurred in early 2013 when the children were in the bathtub

                                               -9-
together. She asked the oldest child whether anyone had touched her the way the oldest child

was touching the youngest child in the bathtub. Quigley testified that the oldest child said,

“[J]ust daddy when he tickles me.” Grant objected to the child’s statement based on hearsay.

The circuit court held that the statement was admissible pursuant to Code § 63.2-1522. It

explained,

               This is a child under the age of 12 who is suffering clearly from a
               physical or mental disability and that she is institutionalized and
               the statement has been provided to the opposing party in advance
               and was thought to be admitted so that’s how I’m going to rule on
               that one.

       Grant argues that the circuit court failed to consider whether the statement possessed

“particularized guarantees of trustworthiness and reliability” as required by Code

§ 63.2-1522(B)(2) and the factors under subsection D.

       Assuming without deciding that the circuit court erred in admitting the statement, the

error is harmless. “Under the doctrine of harmless error, we will affirm the circuit court’s

judgment when we can conclude that the error at issue could not have affected the [result].”

King v. Cooley, 274 Va. 374, 379, 650 S.E.2d 523, 526 (2007). “In short, error which does not

injuriously affect the interest of the party complaining is not reversible.” Jenkins v. Winchester

Dep’t of Social Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991) (citation omitted); see

Code § 8.01-678.

       There was sufficient evidence, besides the child’s statements, presented to the circuit

court to support its findings that the children were sexually abused. The circuit court heard

evidence about the children coloring on their vaginas with markers and “playing a game of

sticking things in their vaginas.” Quigley said that she saw the youngest child touching herself

inappropriately. There was evidence that the oldest child would react violently when Grant’s

name was mentioned. After February 2013, the child’s behavior deteriorated, which led to her


                                               - 10 -
being hospitalized several times and living at a residential treatment center for months. In

addition, the circuit court heard evidence from Dr. Hoffman, who treated the oldest child.

Dr. Hoffman testified that the child’s behaviors “were highly consistent with a child who had

been sexually abused.” Dr. Hoffman testified, without objection, that the oldest child “has

consistently identified her father as the perpetrator” of the sexual abuse. Dr. Hoffman further

opined that Grant was the perpetrator based on her “direct group with [the oldest child] and her

disclosures and the subsequent evaluation of reports from the future treatment providers, [and]

from Virginia Treatment Center for Children.” Dr. Hoffman also described the youngest child’s

behaviors, which suggested that she was sexually abused.

       In its letter opinion, the circuit court summarized the testimony from Quigley and

Dr. Hoffman. The circuit court concluded, “[The oldest child’s] disclosures, the testimony of

Dr. Hoffman, and the fact that mention of Father is a trigger for her violent behaviors support the

conclusion that [the oldest child] has been touched inappropriately by her Father.” There is

sufficient evidence, without the child’s out-of-court statements, to support the circuit court’s

findings. Therefore, considering the totality of the evidence, any error made by the circuit court

with respect to the admissibility of the child’s statements is harmless.

                                     Attorney’s fees and costs

       Quigley asks this Court to award her attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we decline to award Quigley her attorney’s fees and costs on appeal.

                                          CONCLUSION

       For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                          Affirmed.




                                               - 11 -
