                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Frank and Huff
UNPUBLISHED


              Argued at Alexandria, Virginia


              DELORES O’BRIEN HEFFERNAN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 2102-13-4                                      JUDGE GLEN A. HUFF
                                                                                  JUNE 17, 2014
              ARLINGTON COUNTY DEPARTMENT
               OF HUMAN SERVICES


                                  FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                               Daniel S. Fiore, II, Judge

                               Elizabeth L. Tuomey (Toumey Law Firm, PLLC, on briefs), for
                               appellant.

                               Jason L. McCandles, Assistant County Attorney; Janell Wolfe,
                               Guardian ad litem for the minor child (Office of the County
                               Attorney, on brief), for appellee.


                     Delores O’Brien Heffernan (“grandmother”) appeals an order entered by the Circuit

              Court of Arlington County (“circuit court”) modifying an existing no contact order restricting

              grandmother’s access to her granddaughter (“A.O.”). Grandmother asserts four assignments of

              error on appeal. Specifically, grandmother contends the circuit court erred in modifying the no

              contact order because 1) it was without authority to do so more than twenty-one days after entry

              of the order; 2) the amendments are unduly restrictive and vague; 3) the amendments interfere

              with grandmother’s ability to litigate claims and her attorney-client privilege; and 4) the

              amendments limit grandmother’s right to free speech.

                     For the following reasons, this Court affirms the circuit court’s rulings.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       “When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle

requires us to ‘discard the evidence’ of the [grandmother] which conflicts, either directly or

inferentially, with the evidence presented by the [Arlington County Department of Human

Services (“Department”)] at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375,

380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence is as follows.

       On July 22, 2010, the circuit court removed A.O. from grandmother’s custody through a

petition for emergency removal and placed A.O. in a foster home.1 Subsequently, on December

7, 2011, the juvenile and domestic relations district court terminated the parental rights of A.O.’s

parents; grandmother and the parents appealed to the circuit court, which terminated the parental

rights of A.O.’s parents and denied grandmother’s petition for custody. Additionally, the circuit

court ordered that neither A.O.’s mother, nor her grandmother, were to contact A.O. The circuit

court’s no contact order of July 27, 2012, barred grandmother from contact “direct or indirect,

attempted or completed, with [A.O.], without the prior express written permission of

[Department].” On July 5, 2013, the circuit court issued a show cause against grandmother “as

to why [grandmother] should not be held in contempt of court for violating the [n]o[]contact

[o]rder . . . .” The matter proceeded as a criminal contempt action, and a bench trial commenced

on September 30, 2013.

       At trial, the evidence established that in April 2013, A.O. resided in Spring House in

Chesterfield County, Virginia, which is a “group home . . . specifically for teenage girls age 12 to

19 with some kind of mental health diagnosis.” On June 27, 2013, A.O. and other residents of


       1
           Grandmother did not appear at this hearing because she fled the jurisdiction with A.O.
                                                -2-
Spring House attended a cookout at Shire House in Chester, Virginia, a group home for teenage

boys with mental health diagnoses. During the event, grandmother approached Shire House in a

“gold Taurus” and asked Andrea Duffy (“Duffy”), the manager of the Spring House, and another

employee named Cassandra Isom (“Isom”), for directions to another camp for children with

disabilities. After providing directions to grandmother, Duffy and Isom heard grandmother yell

“Aflac” in the direction of A.O., who was approximately 50-100 feet away. According to A.O.,

Aflac was a nickname her “whole family” used to call her when she was “really little.”

grandmother then drove away but a woman in an “older model Taurus,” who matched

grandmother’s description, drove past the Shire House later in the afternoon and asked if the

home was for sale. The following day, Duffy and A.O. noticed a “gold Ford Taurus parked a

block from the [Spring House],” which A.O. indicated “was her grandmother.”

       On July 2, 2013, grandmother approached Isom after Isom dropped off A.O. for summer

school classes. Grandmother asked Isom if the school “was the school that the kids who lived on

Providence Road attended” and explained she was “getting ready to move” and “rent a house” in the

area. On July 4, 2013, Isom again witnessed the vehicle matching the one previously driven by

grandmother “circling the [Spring House]” and “driving up and down the street real slow.”

       A.O. testified that she saw grandmother drive by while A.O. waited at the bus stop on

September 4, 2013. After alerting the Spring House staff, A.O. “kept on seeing [grandmother’s] car

driving back and forth . . . in front of the house” while she waited for Isom to pick her up. After

dropping off A.O., Isom observed a “gold Taurus” behind her on the main street directly outside of

A.O.’s school. Isom indicated that the vehicle was driven by grandmother, who appeared to be

wearing a wig. Later, Isom provided a photograph of the vehicle to the school’s resource officer,

who confirmed that grandmother was the registered owner of the vehicle.




                                                 -3-
       After hearing the evidence, the trial court made no express findings of fact and dismissed the

criminal contempt charge. On October 2, 2013, the trial court sua sponte entered a modified no

contact order, adding to the “terms stated in the [n]o[][c]ontact [o]rder of July 27, 2012.” This

appeal followed.

                                           II. ANALYSIS

       On appeal, grandmother contends the trial court erred in modifying the no contact order

because 1) it was without authority to do so more than twenty-one days after entry of the original

no contact order; 2) the amendments are unduly restrictive and vague; 3) the amendments

interfere with grandmother’s ability to litigate claims and her attorney-client privilege; and 4) the

amendments limit grandmother’s right to free speech.

                                       A. Standard of Review

       “In issues of child custody, ‘the court’s paramount concern is always the best interest of

the child.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998)

(quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). On appeal,

“there is a presumption . . . that the trial court thoroughly weighed all of the evidence, considered

the statutory requirements, and made its determination based on the child’s best interest.”

D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005). “As long as

evidence in the record supports the trial court’s ruling and the trial court has not abused its

discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518

S.E.2d 336, 338 (1999).

                                             B. 21-Days

       On appeal, grandmother first contends that the trial court erred in modifying the no

contact order, because it was without authority to do so more than twenty-one days after entry of

the initial order. Specifically, grandmother asserts that the trial court lacked jurisdiction under

                                                 -4-
Rule 1:1 of the Supreme Court of Virginia2 because the modification on October 2, 2013

occurred more than twenty-one days after the initial final order on July 27, 2012. The

Department contends that the trial court possessed continuing authority to modify the order

under Code § 20-124.2(E).

       Code § 20-124.2 provides the circuit court’s authority to adjudicate claims regarding

court-ordered custody and visitation rights. Code § 20-124.2(B) provides, “[i]n determining

custody, the court shall give primary consideration to the best interest of the child.” Moreover,

Code § 20-124.2(E) provides, in relevant part, “[t]he court shall have the continuing authority to

make any additional orders necessary to effectuate and enforce any order entered pursuant to this

section or § 20-103 including the authority to punish as contempt of court any willful failure of a

party to comply with the provisions of the order.” Additionally, “[o]nce a court has ruled on

matters relating to the custody and care of minor children, and visitation rights of the

non-custodial parent, the court retains jurisdiction throughout the minority status of the child

involved.” Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986) (citing

Andrews v. Geyer, 200 Va. 107, 111, 104 S.E.2d 747, 751 (1958)). “The court, in the exercise

of its sound discretion, may alter or change custody or the terms of visitation when subsequent

events render such action appropriate for the child’s welfare.” Id. (citing Allen v. Allen, 188 Va.

717, 721, 51 S.E.2d 207, 209 (1949)).

       In the current matter, the original no contact order arose from A.O’s custody proceedings

on June 20-26, 2012.3 In those hearings, grandmother petitioned for custody of the minor child,


       2
         Rule 1:1 states “All final judgments, orders, and decrees, irrespective of terms of court,
shall remain under the control of the trial court and subject to be modified, vacated, or suspended
for twenty-one days after the date of entry, and no longer.”
       3
         Grandmother was previously denied guardianship of A.O. See Tackett v. Arlington
County Dep. Of Hum. Servs., 62 Va. App. 296, 746 S.E.2d 509 (2013). In Tackett, this Court
held that “[t]he order terminating mother’s parental rights effectively set aside grandmother’s
                                               -5-
A.O., which was denied. Additionally, the Department moved for a continuation of the previous

no contact orders entered on March 2, 2012 and March 14, 2012, which prohibited contact

between grandmother and A.O. The Department’s motion was granted, and the no contact order

was entered on July 27, 2012. Despite the order, grandmother made multiple attempts to contact

A.O. at the Spring House, Shire House, A.O.’s school, and at the bus stop. On October 2, 2013,

the circuit court determined it was necessary to modify the July 27, 2012 no contact order

because the court was “concerned for the welfare and safety of the minor child [A.O.] and . . .

[was] aware of the extent to which [grandmother] and others may proceed to avoid the current

[n]o[][c]ontact [o]rder . . . .” Specifically, the modified order was customized to the

circumstances surrounding grandmother’s behavior. “The court, in the exercise of its sound

discretion, may alter or change custody or the terms of visitation when subsequent events render

such action appropriate for the child’s welfare.” Id. (citing Allen, 188 Va. at 721, 51 S.E.2d at

209).

        Further, in determining the best interest of A.O., this Court must grant the circuit court

great deference as “there is a presumption . . . that the trial court thoroughly weighed all of the

evidence, considered the statutory requirements, and made its determination based on the child’s

best interest.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882. Thus, the circuit court had

the statutory continuing authority and jurisdiction to modify the earlier no contact order upon

determining such to be in A.O.’s best interest. Code § 20-124.2(E) (“The court shall have the

continuing authority . . . to make any additional orders necessary to effectuate and enforce any



guardianship, when the circuit court, having considered grandmother’s care of A.O., determined
that it is in A.O.’s best interest to be in the custody of [the Department] and placed for adoption
with the consent of [the Department].” Id. at 328, 746 S.E.2d at 525. Additionally, this Court in
Tackett, upheld the initial no contact order because “[g]randmother consistently worked to
sabotage the efforts of [the Department] designed to improve A.O.’s well-being,” which included
initiating “unauthorized contact with A.O. at school and provided her with unauthorized cell
phones.” Id. at 331, 746 S.E.2d at 526.
                                                    -6-
order entered pursuant to this section . . . .”). Accordingly, this Court finds that the circuit court

did not err in modifying the no contact order.

                                            C. Vagueness

       Grandmother next asserts that the circuit court erred in modifying the no contact order

because the amendments are unduly restrictive and vague. Specifically, grandmother argues that

since the order is enforceable by law, “the tolerance for imprecision is much less than if it did

not.” The Department contends that grandmother is procedurally barred pursuant to Rule

5A:18.4

       “Whether the [no contact order] is unconstitutionally vague is a question of law we

review de novo.” Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d 609, 617 (2010)

(citing Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d 679, 684 (2010)). “‘The

constitutional prohibition against vagueness derives from the requirement of fair notice

embodied in the Due Process Clause’ and ensures that a law ‘be sufficiently precise and definite

to give fair warning’ of what it requires.” Id. at 164, 694 S.E.2d at 617 (quoting Tanner v. City

of Va. Beach, 277 Va. 432, 438-39, 674 S.E.2d 848, 852 (2009)). “Its purpose is to safeguard

against the arbitrary and discriminatory application of the law when a legislative act permits a

subjective interpretation by those charged with its enforcement.” Id. (citing Tanner, 277 Va. at

439, 674 S.E.2d at 852).

       Grandmother asserts that provisions one and two of the no contact order are unduly

restrictive and unconstitutionally vague, which state:

       4
          Before the circuit court entered the order on October 2, 2013, grandmother stated her
objections to the no contact order. Grandmother argued “we submit that it is unduly restrictive.
. . . Simply knowing where she is does not mean that she has contact . . . .” Additionally,
grandmother argued “it’s our position that that’s just simply too vague, that it requires her to
predict the future.” Code § 8.01-384 provides that an issue is adequately preserved for appeal if
“a party, at the time of the ruling or order of the court . . . makes known to the court . . . [her]
objections to the action of the court and [her] grounds therefor.” Accordingly, grandmother’s
objection to the vagueness of the order’s modifications was sufficiently preserved.
                                                  -7-
               1. [Grandmother] is hereby prohibited from determining, in any
                  way, by any method or by any process, the whereabouts or
                  location, at any time of [A.O.].; and
               2. [Grandmother] is hereby prohibited from taking any action for
                  the purpose of her being seen by [A.O.], or [A.O.]’s hearing the
                  voice of [grandmother], or otherwise causing [A.O.] to know
                  that [grandmother] is present or at or about the location of
                  [A.O.], and [grandmother] is also prohibited from attempting
                  the foregoing . . . .

       Grandmother contends that the provisions are “so vague that it is impossible for

[grandmother] to know what behavior, in the normal course of her living, violates them.” The

provisions, however, were customized to specifically address grandmother’s repeated violations

of the original no contact order. The evidence presented suggests that grandmother, on multiple

occasions, determined A.O.’s location and followed A.O. to events at the Shire House, the

Spring House, and at A.O.’s school. Moreover, grandmother resorted to yelling out A.O.’s

childhood nickname in order to cause disruption. These actions were in defiance of the express

terms of the no contact order of July 27, 2012. Thus, the circuit court found it necessary to

modify the no contact order with stricter provisions in order to address and curb grandmother’s

non-compliance.

       In the context of grandmother’s behavior, the wording of the order’s modification was

necessary to address grandmother’s particular actions and the terms of the modification were

“sufficiently precise and definite to give fair warning” to grandmother while protecting the best

interest of A.O. Tanner, 277 Va. at 439, 674 S.E.2d at 852. Therefore, the circuit court did not

abuse its discretion in provisions one and two of the modified no contact order. Accordingly,

this Court finds that the circuit court did not err in modifying the no contact order.

                                   D. Ability to Litigate Claims

       Next, grandmother contends that the circuit court erred in modifying the no contact order

because the amendments interfere with grandmother’s ability to litigate claims and violate her

                                                -8-
attorney-client privilege. The Department argues that grandmother’s assertion is procedurally

barred under Rule 5A:185 and, in the alternative, the amendments do not unduly restrict

grandmother’s ability to litigate claims because the language of provision three allows

grandmother to “file a motion seeking permission to proceed.”

          Grandmother takes issue with provision three of the modified no contact order, which

states:

                 3. [Grandmother] shall not reveal, disclose, or discuss any
                    information whatsoever regarding [A.O.] to or with anyone
                    except a licensed attorney at law who is in good standing with
                    the Virginia State Bar, absent good cause shown and further
                    order of the Court . . . .

On brief, grandmother cites no relevant law or authority in support of her contention but rather

argues that the provision prohibits her right to consult with anyone other than a Virginia attorney.

The provision, however, is not an absolute restriction on grandmother’s ability to consult an

attorney. Additionally, grandmother is free to seek counsel outside of Virginia, pertaining to

information relating to A.O., so long as there is “good cause shown and further order of the

Court.” Moreover, the provision does not restrict grandmother’s ability to consult with an

attorney, nor does it require disclosure of confidential communications between grandmother and

her counsel. The restriction is narrowly limited to “information . . . regarding [A.O.].” “As long

as evidence in the record supports the trial court’s ruling and the trial court has not abused its

discretion, its ruling must be affirmed on appeal.” Brown, 30 Va. App. at 538, 518 S.E.2d at

338. The evidence in the record supports a finding that the circuit court modified the no contact

order, including provision three, as necessary and appropriate under the circumstances “for the

welfare and safety of . . . [A.O.].” Accordingly, this Court finds that the circuit court did not err

          5
          Grandmother adequately preserved her argument before the circuit court on October 2,
2013. Specifically, grandmother stated “With respect to number three, Your Honor, that
interferes with her ability to [file] federal suits with federal departments and to be represented by
her D.C. attorney.”
                                                    -9-
in modifying the no contact order because the amendments do not interfere with grandmother’s

ability to litigate claims and her attorney-client privilege.

                                        E. Freedom of Speech

        Lastly, grandmother asserts that the trial court erred in modifying the no contact order

because the amendments limit grandmother’s right to free speech. Specifically, grandmother

takes issue with provisions three and five of the no contact order. The Department argues that

grandmother is procedurally barred under Rule 5A:186 and, in the alternative, that the provisions

are narrowly tailored to achieve a compelling state interest. Assuming without deciding that the

amended no contact order constitutes restraint of free speech, the order passes a strict scrutiny

analysis because of the compelling state interest in protecting the interests of the child and

because of the narrowly drawn restriction.

        “When . . . governmental regulation is based upon the content of speech, as opposed to a

time, place, and manner classification, the regulation must be strictly scrutinized . . . because

regulation that relates to subject matter ‘slip[s] from the neutrality of time, place, and

circumstance into a concern about content.’” Adams Outdoor Advertising v. City of Newport

News, 236 Va. 370, 381, 373 S.E.2d 917, 922-23 (1988) (quoting Police Dept. of City of

Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Under the strict scrutiny test, a regulation of

protected speech will withstand a First Amendment challenge only if the government shows that

(1) it has a compelling interest in restricting speech, (2) the restrictions further such an interest,

and (3) a more narrowly drawn restriction will frustrate its interest. Id. (citing Consol. Edison

Co. v. Public Serv. Comm’n, 447 U.S. 530, 540 (1980)).




        6
         The Department’s procedural argument fails because grandmother adequately preserved
the argument before the trial court. Specifically, grandmother stated “For number five, our
objection would just be that it would interfere with her first amendment rights.”
                                               - 10 -
       Grandmother alleges that provisions three and five of the no contact order violate her

First Amendment rights to freedom of speech, which provide:

               3. [Grandmother] shall not reveal, disclose, or discuss any
               information whatsoever regarding [A.O.] to or with anyone except
               a licensed attorney at law who is in good standing with the
               Virginia State Bar, absent good cause shown and further order of
               the Court;

                          *       *       *       *       *       *      *

               5. [Grandmother] shall not post any information on the Internet or
               World Wide Web about [A.O.] . . . .

The Supreme Court previously determined that the best interests of a child are a compelling state

interest. See Knox v. Lynchburg Division of Soc. Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404

(1982) (“Clearly, the protection of children from harm, whether moral, emotional, mental, or

physical, is a valid and compelling state interest.” (citing Stanley v. Illinois, 405 U.S. 645, 652

(1972))). Accordingly, the only questions that remain are whether the “restrictions further such

an interest, and . . . a more narrowly drawn restriction will frustrate its interest.” Adams Outdoor

Advertising, 236 Va. at 381, 373 S.E.2d at 922-23 (citing Consol. Edison Co., 447 U.S. at 540).

       In the current matter, the circuit court modified the original order in response to

grandmother’s continuous violations of its terms. The record indicates that grandmother

determined A.O.’s location and followed A.O. to events at the Shire House, Spring House, and

A.O.’s school. Additionally, grandmother called out to A.O. at the Shire House by using a

nickname known only by A.O.’s close family members. Further, grandmother made attempts to

contact A.O. on Facebook and other outlets on the Internet. In response to grandmother’s

noncompliance, the circuit court found it necessary to modify the no contact order to prohibit the

exact conduct grandmother utilized to circumvent the original order. In making this

determination the circuit court indicated its decision was based on “the welfare and safety of . . .



                                                - 11 -
[A.O.].” The evidence suggests that a “more narrowly drawn restriction” had already failed in

the original no contact order.

       Most notably, “[w]hile the rights of freedom of speech and assembly are fundamental,

they are not absolute and must be exercised in subordination to the general comfort and

convenience and in consonance with peace, good order and the rights of others.” York v. City of

Danville, 207 Va. 665, 669, 152 S.E.2d 259, 263 (1967). In response to grandmother’s failure to

follow the terms of the original order, the circuit court determined the modified no contact order

was necessary in order to protect the best interest of A.O., which is a compelling interest of the

state. Having previously attempted a narrower restriction which failed, the circuit court did not

abuse its discretion in modifying the order. Accordingly, this Court finds that the circuit court

did not err in modifying the no contact order because the amendments are justified, even when

measured against the strict scrutiny test applicable to restrictions of free speech.

                                        III. CONCLUSION

       Based on the foregoing, this Court finds that the trial court did not err in modifying the no

contact order because 1) it possessed authority to do so more than twenty-one days after entry of

the previous no contact order; 2) the amendments are not unduly restrictive and vague; 3) the

amendments do not interfere with grandmother’s ability to litigate claims and her attorney-client

privilege; and 4) assuming without deciding that the amendments restrict grandmother’s

constitutionally protected right of free speech, the restrictions are sufficiently narrow and are

justified by the state’s compelling interest, to satisfy a strict scrutiny analysis. Accordingly, the

circuit court is affirmed in its modifications of the no contact order.

                                                                                            Affirmed.




                                                - 12 -
