                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Malveaux and Senior Judge Frank
UNPUBLISHED




              BRANDON SCOTT LAMBERT
                                                                                MEMORANDUM OPINION*
              v.      Record No. 1572-19-3                                          PER CURIAM
                                                                                   MARCH 10, 2020
              HARRISONBURG/ROCKINGHAM
               SOCIAL SERVICES DISTRICT


                                  FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                                Clark A. Ritchie, Judge

                                (Stephen R. Sofinski, on brief), for appellant. Appellant submitting
                                on brief.

                                (Kim Van Horn Gutterman, Assistant County Attorney; Hallet M.
                                Culbreth, Guardian ad litem for the minor child, on brief), for
                                appellee. Appellee and Guardian ad litem submitting on brief.


                      Brandon Scott Lambert (father) appeals the child protective order entered against him.

              Father argues that the circuit court erred by granting the child protective order that “required sight

              and sound visitation” because the Harrisonburg/Rockingham Social Services District (the

              Department) did not prove by a preponderance of the evidence that “father committed any acts of

              abuse against the minor child.” Upon reviewing the record and briefs of the parties, we conclude

              that the circuit court did not err. Accordingly, we affirm the decision of the circuit court.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          BACKGROUND1

       “On appeal, ‘we view the evidence and all reasonable inferences in the light most

favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.

Dep’t of Soc. Servs., 59 Va. App. 375, 386 (2012) (quoting Jenkins v. Winchester Dep’t of Soc.

Servs., 12 Va. App. 1178, 1180 (1991)).

       Father and Shantell Jackson (mother) are the biological parents to X., the child who is the

subject of this appeal. In September 2018, the Department received a report alleging that mother

was using drugs, had an unsafe living environment, and was not supervising her four children,

including X. Mother submitted to a drug test and tested positive for amphetamines and

methamphetamine. Nine days later, mother submitted to another drug test and tested positive for

marijuana.

       In November 2018, the Department received a report that no one was home to get X. off

the bus2 and that mother was pregnant and using drugs. The Department had difficulty

contacting mother, and when it did speak with her, she was not cooperative.

       In January 2019, the Department received a report of a suspicious death at mother’s

house and went to mother’s house to check on X.3 Mother was not cooperative. The

Department subsequently learned that X. was staying with his paternal great uncle, Ricky Davis,

and his wife, Cathy, who had been caring for X. regularly on weekends, summer breaks, and


       1
         The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
       2
           X. was four years old at the time.
       3
           X. was in mother’s custody, but mother’s other children were living with relatives.
                                               -2-
school holidays. Due to concerns about mother’s drug use and her lack of cooperation, the

Department sought a child protective order and requested that X. continue to reside with the

Davises. Father had been incarcerated since September 25, 2018, shortly after the Department

first became involved with mother and X.

       On January 28, 2019, the Rockingham County Juvenile and Domestic Relations District

Court (the JDR court) entered an ex parte preliminary child protective order. On February 4,

2019, the JDR court held a hearing and entered a preliminary child protective order. On

February 27, 2019, the JDR court adjudicated that X. was abused or neglected. On April 3,

2019, the JDR court entered a child protective order. The JDR court ordered that the parents

have no unsupervised contact with X., refrain from possessing or using illegal drugs, and

cooperate with random drug screens. The JDR court awarded pendente lite legal and physical

custody of X. to the Davises. Father appealed the JDR court’s rulings.4

       On August 23, 2019, the parties appeared before the circuit court. Father presented

evidence that while the Department was investigating mother between September 2018 and

January 2019, father was incarcerated and not involved in the incidents leading to the child’s

removal from mother’s custody.

       When X. was less than two years old, father and X. lived with the Davises for

approximately one year.5 Mr. Davis testified that while father was living with them,

approximately $1,000 went missing. Father started acting paranoid and said that he was seeing

things in the woods. Father broke the bathroom mirror because he thought there were hidden




       4
           Mother did not appeal the JDR court’s orders.
       5
           Mother was in jail when father and X. first came to live with the Davises.
                                               -3-
cameras watching him. At one point, father threatened to shoot X. because he thought X. had

taken his cell phone.6

        The Davises advised father that he had to leave their house because they “couldn’t . . . put

up with anymore.” Mrs. Davis contacted mother and arranged for her to care for X. Father was

upset. After father and his friend packed up his items, there was no room for father’s dog in the

car. Mr. Davis told father to leave the dog and that they will “work it out later.” Father did not

want the Davises to take the dog, so he sliced the dog’s neck with a knife, pointed the knife at

Mr. Davis, and said “that’s what you get for taking my son.” Mr. Davis called 911, and father

and his friend left.

        Father admitted that he had been convicted of possession of methamphetamine in 2006

and four probation violations thereafter. Father also acknowledged that he had been convicted of

public swearing, assault, and several counts of public intoxication. At a hearing on August 9,

2018, father pleaded guilty and was convicted of possession of methamphetamine. The circuit

court had sentenced him to five years in prison and suspended the entire sentence, except for the

time served. The circuit court placed him on supervised probation. On August 30, 2018, the

circuit court issued a capias after receiving a report that father had violated the conditions of his

probation; father was arrested on September 25, 2018. In October 2018, the circuit court found

that father had violated the terms and conditions of his probation and revoked his entire

suspended sentence. Father has been incarcerated since September 25, 2018.

        When asked whether he had an anger problem, father responded that it was “not like it

used to be ten years ago,” but “[i]t’s a work in progress.” Father admitted that he had concerns

about his mental health, but refused to take any medication. He stated that he had “done all [he]




        6
            Mr. Davis estimated that X. was sixteen months old at the time.
                                                 -4-
can to help [himself].” Father testified that he had asked two judges, a Commonwealth’s

attorney, and two defense lawyers “for mental help . . . and was denied.”

       After hearing all of the evidence and argument, the circuit court found that X. was abused

and neglected. The circuit court found that it was in the child’s best interest to enter the child

protective order, which included a provision that father’s “contact with the child, if any, shall be

sight and sound supervised.” This appeal followed.

                                             ANALYSIS

       Father argues that the circuit court erred by entering the child protective order against

him. He contends that the Department failed to prove by a preponderance of the evidence that he

“committed acts of abuse toward the minor child that would warrant or substantiate a need for

‘no unsupervised contact’ with the child.”

       “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great

weight and will not be disturbed on appeal unless plainly wrong or without evidence to support

it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting

Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)). “In matters of a

child’s welfare, [circuit] courts are vested with broad discretion in making the decisions

necessary to guard and to foster a child’s best interests.” Thach v. Arlington Cty. Dep’t of

Human Servs., 63 Va. App. 157, 168 (2014) (quoting Logan v. Fairfax Cty. Dep’t of Human

Dev., 13 Va. App. 123, 128 (1991)). “This Court presumes that the circuit court ‘thoroughly

weighed all the evidence, considered the statutory requirements, and made its determination

based on the child’s best interests.’” Id. (quoting Logan, 13 Va. App. at 128).

       Father argues that the circuit court erred in entering the child protective order against him

because it was mother’s conduct, not his, that led to the Department filing the petition seeking

the child protective order. Here, the circuit court found that the child was abused or neglected

                                                -5-
based on mother’s actions and found that father’s incarceration prevented him from caring for

the child. Once a child is found to be abused or neglected, Code § 16.1-278.2 provides several

options for a court “to protect the welfare of the child,” including prohibiting or limiting contact

“as the court deems appropriate between the child and his parent . . . whose presence tends to

endanger the child’s life, health or normal development.” Code § 16.1-278.2(A)(3).

       The circuit court found that father had “some pretty serious mental health issues” that he

needed to address. The circuit court further found that father had “utilized illegal substances to

either self-medicate those [mental health] issues or as part of some sort of addiction.” The

circuit court expressed concern about father’s “erratic” behavior when he lived with the Davises.

The circuit court explained that father’s “behaviors . . . were not necessarily consistent with the

stability and appropriateness of the household, regarding [X.].” The circuit court was especially

concerned about father’s “absolutely appalling” conduct with his dog and his “inclination” to kill

something he loved when he was “in the midst of a mental health episode [and] . . . felt like

things were being taken away from [him].” After considering all of the evidence, the circuit

court found that it was “appropriate to grant the protective order.”

       The record supports the circuit court’s judgment that a protective order limiting father’s

contact with X. was appropriate to protect X.’s welfare. Code § 16.1-278.2 does not limit a court

from entering a protective order to those parents whose actions precipitated the finding of abuse

and neglect. Rather, Code § 16.1-278.2(A) provides a court with several options to “protect the

welfare of the child” who was found to be abused or neglected. One option is to prohibit or limit

a parent’s contact with a child when the parent’s presence “tends to endanger the child’s life,

health or normal development.” Code § 16.1-278.2(A)(3). Here, the circuit court found that

father’s untreated mental health situation endangered X., especially considering father’s actions

toward his dog after the Davises asked him to leave. Father testified that he did better and felt

                                                -6-
better when he was with X., but the circuit court found that it was “unfair for a child to carry the

responsibility of maintaining the stability of . . . [father’s] behavior.”

        “When the trial court acts as a factfinder, as it did in this case, it retains ‘broad discretion

in making the decisions necessary to guard and to foster a child’s best interests.’” Farrell, 59

Va. App. at 421 (quoting Farley v. Farley, 9 Va. App. 326, 328 (1990)).

        Considering the totality of the record, the circuit court did not err in granting the child

protective order against father.

                                           CONCLUSION

        For the foregoing reasons, the circuit court’s ruling is affirmed.

                                                                                              Affirmed.




                                                  -7-
