                                COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Beales and Senior Judge Coleman
Argued at Richmond, Virginia


MINOR CHILD, 1
 BY HIS COURT-APPOINTED GUARDIAN AD LITEM
                                                               MEMORANDUM OPINION * BY
v.      Record No. 1167-10-2                                   JUDGE RANDOLPH A. BEALES
                                                                     MARCH 8, 2011
ROIJO E. ELLIS AND
 ROBERT E. ELLIS, JR.


                     FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                            Buford M. Parsons, Jr., Judge Designate 2

                  Todd M. Ritter (Daniels & Morgan, on brief), for appellant.

                  (Maureen L. White, on brief), for appellee Roijo E. Ellis.

                  No brief or argument for appellee Robert E. Ellis, Jr.


        The minor child (hereinafter referred to as “the child”), through his guardian ad litem

(hereinafter referred to as “the GAL”), appeals the decision of the Circuit Court of Powhatan

County, which granted Roijo E. Ellis’s (hereinafter referred to as “the mother”) motion to strike and

then dismissed the GAL’s petition. After reviewing the evidence in this record, we affirm the trial

court’s ruling.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         We have used the designation, “minor child,” rather than the appellant’s given name, in
order to attempt to provide some privacy for the child involved in this case.
        2
         Judge Thomas V. Warren presided over the hearing in this case and made a ruling from
the bench. Judge Warren then retired, and Retired Judge Buford M. Parsons, Jr., entered the
final order memorializing Judge Warren’s ruling from the bench.
                         I. Procedural Background and Standard of Review3

        The child’s GAL filed a petition in the juvenile and domestic relations (hereinafter referred

to as “JDR”) district court, asking that the court find that the child was a “child in need of services”

(sometimes referred to as a “CHINS” petition) pursuant to Code §§ 16.1-228 and 16.1-241(A)(1).

The JDR court granted the petition, and the mother then appealed to the circuit court (hereinafter

referred to as “trial court”) for a trial de novo. See Code § 16.1-296(A). After the GAL presented

her case to the trial court, the mother made a motion to strike, arguing that the GAL had failed to

present sufficient evidence to prove that the child was in need of services. The trial court agreed

and granted the motion. The GAL then noted an appeal to this Court.

        When a trial court considers a motion to strike at the conclusion of a petitioning party’s

evidence, that court must “accept as true all evidence favorable to a plaintiff and any reasonable

inferences that may be drawn from such evidence.” James v. City of Falls Church, 280 Va. 31, 38,

694 S.E.2d 568, 572 (2010). On appeal, this Court must examine the record using this same

standard. McGowan v. Lewis, 233 Va. 386, 387, 355 S.E.2d 334, 334 (1987); Chaplain v.

Chaplain, 54 Va. App. 762, 772-73, 682 S.E.2d 108, 113 (2009). However, we review the

application of the law de novo. See Shilling v. Baker, 279 Va. 720, 724, 691 S.E.2d 806, 808

(2010) (noting that, if “[t]he issue is a legal one,” then “we review [it] de novo”).

        Because the trial court here ruled on a motion to strike at the conclusion of the GAL’s

evidence, rather than at the conclusion of all the evidence, this Court must review the evidence in

the light most favorable to the GAL’s position. See Chaplain, 54 Va. App. at 773, 682 S.E.2d at

113.




        3
        Because the facts are familiar to the parties, we forego a general discussion of the
evidence in this record in favor of incorporating the relevant facts into our analysis below.

                                                  -2-
                                            II. Analysis

        Under Code § 16.1-228(i), a juvenile is “a child in need of services” if he is engaged in

“behavior, conduct or [has a] condition [that] presents or results in a serious threat to [his]

well-being and physical safety.” As relevant to this case, the GAL needed to prove that “a clear

and substantial danger to the child’s life or health” existed, that the child and/or his family was

“in need of treatment, rehabilitation or services not presently being received,” and that the

court’s intervention was “essential to provide the treatment, rehabilitation or services needed.”

Code § 16.1-228 (defining “child in need of services”).

        The trial court found that the evidence presented by the GAL had not met the

requirements of Code § 16.1-228. The court explained that the statute contained “a rather high

threshold I think for the plaintiffs in the case, and I don’t think you’ve reached it. I don’t think

the state [sic] has reached that hurdle of talking about clear and substantial danger to the child’s

life. I just can’t follow that.”

        The evidence here, even viewed in the light most favorable to the GAL, failed to prove

that a “serious threat” existed – that the child’s behavior, conduct, or condition presented “a clear

and substantial danger” to his “life or health.” The evidence proved that the child was an

excellent student, who made good grades. He was liked by his peers and his teachers, and he

was involved in extracurricular activities. His mother was a school psychologist who did “very

well” at her job. When the child’s parents separated, the mother took the child to a counselor

because, as she told the counselor, she had become concerned about the child’s reactions to “the

changes that the family was going through because of the dad.” Nothing in this record suggests

that the mother abused or neglected her child. Although one expert had “serious concerns” about

her “ability to appropriately parent this child,” the expert also admitted during direct examination

that this expert did not have enough information to form a definite opinion.

                                                 -3-
       Although the child’s father was an abusive alcoholic who had punched the child once at

some undetermined point in the past, the evidence proved that a protective order prohibited the

father from contacting both the mother and the child. Although the mother had initially allowed

the father to violate the protective order, the evidence proved that she had not allowed the father

to violate the protective order for a number of months before the hearing in the trial court.

       The experts testified that the mother and the child had “an adjustment disorder,” which

was characterized as “the lowest of all disorders.” Such disorders, according to the experts,

indicated that a specific situation was creating stress in their lives and “causing some

impairment.” However, the experts never explained what “impairment” existed in the child’s

life or in the mother’s life. They did not explain how this “impairment” in the mother’s behavior

endangered the child, except to say that the child needed counseling and that the mother did not

want to take the child to the current counselor.

       The experts recommended that the child receive counseling because he had been exposed

to an alcoholic father and had witnessed his father abusing his mother. However, neither expert

pointed to any behavior by the child that suggested he needed more counseling than he had

already received. The child exhibited no behavior that suggested he might become an alcoholic

or an abusive spouse. One expert even explained that she had done no diagnostic testing of the

child because “there didn’t appear to be a need.” Instead, the experts’ advice was based on the

abstract literature in their fields – not on the application of those abstract recommendations to the

particular facts in this case. The experts had not collected sufficient information, by their own

admissions, to clearly indicate what substantial dangers the child would face if the

Commonwealth did not intervene in his care. At best, as the trial court found, the expert

testimony was “speculative, sort of conjectural.”




                                                   -4-
       We agree with the trial court, for the above reasons, that this evidence did not prove that

the child faced a “clear and substantial danger” to his life or health, especially given the

existence of the protective order that is in place to protect the child and the GAL’s own evidence

in the record which indicates that the mother has not allowed the father to violate this protective

order in quite some time. Therefore, the GAL’s evidence did not meet the prima facie burden

established in Code § 16.1-228 for proving that a child is in need of services.

                                           III. Conclusion

       We find that the trial court did not err in granting the mother’s motion to strike, and, thus,

we affirm the trial court’s dismissal of the CHINS petition.

                                                                                             Affirmed.




                                                 -5-
