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QUESTIONS PRESENTED

1) Were 13 year old minor’s due process rights violated under the Fourteenth
Amendment when she was denied an attorney to advocate for her in court proceed-
ings that could result in her losing her freedom to see, contact, or associate with
close members of her family for years (or, possibly, the rest of her life)?

2) Were Grandmother and Birth Mother denied their right to a fair trial and other
due process rights of the Fourteenth Amendment where their view of testifying wit-
nesses were physically blocked during the trial?

3) Was it sufficient for Grandmother to have standing to appeal the Trial Court’s
forced testimony of Grandmother’s Clergy in violation of the Clergy-Penitent privi-
lege, where Grandmother’s Clergy raised objections at trial?

4) Did the Virginia Trial Court violate the Full Faith and Credit Clause and the
Fourteenth Amendment due process rights of the Grandmother by legally ignoring
Grandmother’s Maryland Circuit Court ordered guardianship of her grandchild?
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PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following are all of the parties that appeared in
the court proceeding below.
Petitioner, Delores O’Brien Heffernan (“Grandmother”) who is the 68 year old
grandmother and Maryland Circuit Court appointed guardian of her now, 14 year
old grandchild, AOB. Also appearing below was Patricia Tackett, AOB’s Birth
Mother.
The Respondent is the Arlington County Department of Human Services.
The Guardian Ad Litem (“GAL”) in the case was Karen Grane, who now works for
the Arlington County Attorney’s office.
CORPORATE DISCLOSURES

Pursuant to Rule 29.6, Petitioner states:

None
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TABLE OF CONTENTS
Questions Presented ........................................................................................................ i
Parties To The Proceeding ............................................................................................. ii
Corporate Disclosures ..................................................................................................... ii
Table Of Contents .......................................................................................................... iii
Opinions Below ............................................................................................................... 1
Jurisdiction ..................................................................................................................... 2
Constitutional And Statutory Provisions ...................................................................... 2
U.S. Const. amend. XIV, § 1 ....................................................................................... 2
U.S. Const. art. IV, § 1 ................................................................................................ 2
Virginia Code § 16.1-228 ............................................................................................. 3
Virginia Code § 16.1-266 (A), (B), (E) and (F) ............................................................ 3
MD Cts. & Jud. Proc. § 3-801 ..................................................................................... 4
Statement Of The Case .................................................................................................. 6
Reasons For Granting The Writ .................................................................................. 10

1) Were 13 year old minor’s due process rights violated under the 14th Amend-
ment when she was denied an attorney to advocate for her in court proceedings
that could result in her losing her freedom to see, contact, or associate with
close members of her family for years (or, possibly, the rest of her life)? .......... 10
2) Were Grandmother and Birth Mother denied their right to a fair trial and
other due process rights of the Fourteenth Amendment where their view of
testifying witnesses were physically blocked during the trial? .......................... 14
3) Was it sufficient for Grandmother to have standing to appeal the Trial Court’s
forced testimony of Grandmother’s Clergy in violation of the Clergy-Penitent
privilege, where Grandmother’s Clergy raised objections at trial? ................... 18
4) Did the Virginia Trial Court violate the Full Faith and Credit Clause and the
Fourteenth Amendment due process rights of the Grandmother by legally
ignoring Grandmother’s Maryland Circuit Court ordered guardianship of her
grandchild? ............................................................................................................ 20
Conclusion ..................................................................................................................... 26
Appendix (With Table Of Contents) ............................................................................ 27
Appendix A: Decisions of the State Court of Appeals (Virginia)
Appendix B: State Trial (Arlington Circuit) Court Orders and Objections
Appendix C: Decisions of State Supreme Court (Virginia)
Appendix D: Final Order of State Supreme Court Denying Rehearing
Appendix E: Constitutional Provisions and Statutes
Appendix F: Other Material Essential to Understand the Petition
viv
TABLE OF CITATIONS
Cases
In re: G.K., 993 A.2d 558 (D.C. 2010) .......................................................................... 23
Cupp v. Board of Supervisors, 227 Va. 580, 318 S.E.2d 407 (1984) ........................... 19
Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 98 S.Ct. 2620 (1978) .. 19
Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967) ....................................................................... 11
In Re: O’Neill, 18 Va. App. 674, 446 S.E.2d 475 (1994) .............................................. 21
Nestle v. Com., 470 S.E.2d 133 (Va. App., 1996) ......................................................... 18
Parham v. J. R., 442 U.S. 584, 600, 99 S. Ct. 2493 (1979) ......................................... 11
Pierce v. Society of Sisters, 268 U.S. 510 (1925) .................................................... 11, 24
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52,
96 S. Ct. 2831 (1976) ............................................................................... 11
Tackett, et. al, v Arlington DHS, 62 Va.App. 296,
746 S.E.2d 509 (Va.App. 2013) ............................................................ 1, 18
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503,
89 S. Ct. 733 (1969) ................................................................................... 11
Toland v. Futagi, 40 A.3d 1051, 425 Md. 365 (Md., 2012) ................................... 20, 21
Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906 (1980) .................................... 19
Troxel et vir. v Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) .................................... 11
United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090 (1974) ....................................... 20
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994 (2007). ............. 24
Wright v. Alexandria Div. of Social Services, 433 S.E.2d 500,
16 Va.App. 821 (Va. App., 1993) ................................................................. 19
Statutes
MD Cts. & Jud. Proc. § 3-801 ................................................................................... 4, 21
Virginia Code § 8.01-400 .......................................................................................... 3, 18
Virginia Code § 16.1-228 .......................................................................................... 3, 22
Virginia Code § 16.1-266 .......................................................................................... 3, 13
Other Authorities
ABA Family Law Section Standards of Practice for Lawyers Representing Children
in Custody Cases (2003) ............................................................................................ 12
Standards to Govern the Performance of Guardian Ad Litems for Children. ........... 12
Virginia Court Web Page On Guardians Ad Litem (GAL) .......................................... 12
Virginia Courthouse Facility Guidelines, 2nd Edition, 2001, Court Works (2001) .. 16
Rules
Virginia Supreme Court Rule 8:6 ............................................................................ 5, 13
Constitutional Provisions
U.S. Const. amend. XIV, § 1 ........................................................................................... 2
U.S. Const. art. IV, § 1 .................................................................................................... 2

1
OPINIONS BELOW

Petition for Writ of Certiorari is sought for the August 13, 2013 opinion of the
Court of Appeals of Virginia, in the “residual parental rights termination/change of
foster care goal to adoption” proceeding below.
1
That opinion was published at
Tackett, et. al, v Arlington DHS, 62 Va.App. 296, 746 S.E.2d 509 (Va.App. 2013)
(“COA Opinion” or “Tackett”) (Appendix A - 2). The Supreme Court of Virginia is-
sued its final denial of petitions for appeal of that opinion on March 7, 2014. (Ap-
pendix D - 2)
The Tackett reviewed a set of July 27, 2012 orders of the Arlington Circuit
Court (“Trial Court” or “Circuit Court”) that resulted from a single consolidated trial
which began on July 20, 2012. (“Trial Court Opinions”). (Appendix B)
Combined, those Trial Court Opinions did four things:
a) terminated the residual parental rights of AOB’s Birth Mother.

b) changed the foster care goal for AOB to adoption,

c) refused to give custody of AOB to Grandmother,


1
Petitioner notes that a she filed on June 4, 2014 an unrelated Petition for Writ of Cert that
involves a different line of cases involving a different matter. It involved an Arlington Cir-
cuit Court decision in January 2013 that denied a Petition for Writ of Habeas Corpus seek-
ing relief for the unlawful imprisonment of Petitioner’s granddaughter (who was supposed
to be in foster care with Arlington DHS) in a psychiatric institution (at Medicaid expense)
in violation of her due process rights under the Fourteenth Amendment. That Arlington
DHS transfer from a foster care home to being imprisoned in a psychiatric institution with-
out due process was particularly offensive to her constitutional rights given that her social
worker testified that the granddaughter had no serious psychiatric problems that could jus-
tify her being placed there and that she had not committed any crime. Instead, she had on-
ly run away from an overcrowded “cash for kids” foster care home that Arlington DHS had
failed to monitor and to force correction of its abominable living conditions. See, Petition
for Writ of Certiorari, Heffernan v Arlington DHS, filed June 4, 2014.
2
d) entered a “no contact” order.

Tackett generally affirmed the Trial Court Opinions. The Court of Appeals
denied initial rehearing on September 6, 2013, and finally denied rehearing en banc
on September 19, 2013. (Appendix C)
The Supreme Court of Virginia denied petitions for appeal on December 18,
2013, and entered a final denial for rehearing on March 7, 2014. (Appendix D).
Other than Tackett, none of the opinions below were published.
JURISDICTION
The Supreme Court of Virginia issued its final opinions denying the final re-
hearing on March 7, 2014. This Court has jurisdiction under 28 U.S. Code § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the following Constitutional provisions:
U.S. Const. amend. XIV, § 1
All persons born or naturalized in the United States, and subject to the juris-
diction thereof, are citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any state de-
prive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws

U.S. Const. art. IV, § 1
Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by gen-
eral Laws prescribe the Manner in which such Acts, Records, and Proceed-
ings shall be proved, and the Effect thereof.

This case involves the following statutes:
3

Virginia Code § 8.01-400
Communications between ministers of religion and persons they
counsel or advise (Supreme Court Rule 2:503 derived in part from
this section).

No regular minister, priest, rabbi, or accredited practitioner over the age of
eighteen years, of any religious organization or denomination usually re-
ferred to as a church, shall be required to give testimony as a witness or to re-
linquish notes, records or any written documentation made by such person, or
disclose the contents of any such notes, records or written documentation, in
discovery proceedings in any civil action which would disclose any infor-
mation communicated to him in a confidential manner, properly entrusted to
him in his professional capacity and necessary to enable him to discharge the
functions of his office according to the usual course of his practice or disci-
pline, wherein such person so communicating such information about himself
or another is seeking spiritual counsel and advice relative to and growing out
of the information so imparted.

Virginia Code § 16.1-228
When used in this chapter, unless the context otherwise requires:

"Legal custody" means (i) a legal status created by court order which vests in
a custodian the right to have physical custody of the child, to determine and
redetermine where and with whom he shall live, the right and duty to pro-
tect, train and discipline him and to provide him with food, shelter, education
and ordinary medical care, all subject to any residual parental rights and re-
sponsibilities or (ii) the legal status created by court order of joint custody as
defined in § 20-107.2.

"Residual parental rights and responsibilities" means all rights and responsi-
bilities remaining with the parent after the transfer of legal custody or guard-
ianship of the person, including but not limited to the right of visitation, con-
sent to adoption, the right to determine religious affiliation and the responsi-
bility for support.
….

Virginia Code § 16.1-266 (A), (B), (E) and (F)
Appointment of counsel and guardian ad litem.

A. Prior to the hearing by the court of any case involving a child who is al-
leged to be abused or neglected or who is the subject of an entrustment
4
agreement or a petition seeking termination of residual parental rights or
who is otherwise before the court pursuant to subdivision A 4 of § 16.1-241 or
§ 63.2-1230, the court shall appoint a discreet and competent attorney-at-law
as guardian ad litem to represent the child pursuant to § 16.1-266.1.

B. Prior to the detention hearing held pursuant to § 16.1-250, the court shall
appoint a qualified and competent attorney-at-law to represent the child un-
less an attorney has been retained and appears on behalf of the child. For the
purposes of appointment of counsel for the detention hearing held pursuant
to § 16.1-250 only, a child's indigence shall be presumed. Nothing in this sub-
section shall prohibit a judge from releasing a child from detention prior to
appointment of counsel.

E. In those cases described in subsections A, B, C and D, which in the discre-
tion of the court require counsel or a guardian ad litem to represent the child
or children or the parent or guardian or other adult party in addition to the
representation provided in those subsections, a discreet and competent attor-
ney-at-law may be appointed by the court as counsel or a guardian ad litem.

F. In all other cases which in the discretion of the court require counsel or a
guardian ad litem, or both, to represent the child or children or the parent or
guardian, discreet and competent attorneys-at-law may be appointed by the
court. However, in cases where the custody of a child or children is the sub-
ject of controversy or requires determination and each of the parents or other
persons claiming a right to custody is represented by counsel, the court shall
not appoint counsel or a guardian ad litem to represent the interests of the
child or children unless the court finds, at any stage in the proceedings in a
specific case, that the interests of the child or children are not otherwise ade-
quately represented.



MD Cts. & Jud. Proc. § 3-801
(a) In this subtitle the following words have the meanings indicated.
…..
(j) “Custodian” means a person or governmental agency to whom custody of
a child has been given by order of court, including a court other than the ju-
venile court.
(k) “Custody” means the right and obligation, unless otherwise determined
by the court, to provide ordinary care for a child and determine placement.

(n) “Guardian” means a person to whom guardianship of a child has been
given by order of court, including a court other than the juvenile court.
5
(o) “Guardianship” means an award by a court, including a court other than
the juvenile court, of the authority to make ordinary and emergency decisions
as to the child’s care, welfare, education, physical and mental health, and the
right to pursue support.
….
(t) “Parent” means a natural or adoptive parent whose parental rights have
not been terminated.
….


The case involves the following rules:

Virginia Supreme Court Rule 8:6. The Roles of Counsel and of Guard-
ians Ad Litem When Representing Children. (Juvenile and Domestic
Relations Court Section of Rules)
The role of counsel for a child is the representation of the child's legitimate
interests. When appointed for a child, the guardian ad litem shall vigorously
represent the child, fully protecting the child's interest and welfare. The
guardian ad litem shall advise the court of the wishes of the child in any case
where the wishes of the child conflict with the opinion of the guardian ad li-
tem as to what is in the child's interest and welfare.
6
STATEMENT OF THE CASE

Petitioner Delores O’Brien Heffernan (hereinafter, “Grandmother”) is the
Maryland Circuit Court Appointed Guardian and Grandmother for now 14-year-old
AOB. Grandmother was granted initially custody of AOB by the Maryland Circuit
Court in 1999 three days after AOB was born in Maryland. (Appendix F-2) In
2005, that Maryland Circuit Court granted guardianship of AOB to Grandmother.
(Appendix F-4)
For all practical purposes, Grandmother has served as AOB’s parent since
September 19, 1999 when she was initially granted custody of AOB and took her
home to care for her. The 2005 Maryland Circuit Court order formally trans-
ferred the rights and obligations of guardianship to Grandmother. It also granted
her the “right and obligation to make all ordinary and emergency caretaking deci-
sions, including those concerning the Child’s educational, travel, medical, hospitali-
zation, psychotropic medication, and mental health treatment needs that are in the
best interest of the Respondent Child.” (Appendix F-4)
When AOB was ten years old, she was abruptly taken from her 68 year old
Grandmother’s custody and care in July 2010. They were living in a house in Fred-
ericksburg, Virginia. Arlington County Department of Human Services (Arlington
DHS) abruptly took AOB from her family based on a removal order that had been
entered ex parte, almost two years before. Although Grandmother initially received
a court-appointed attorney to represent her in Arlington Juvenile and Domestic Re-
lations Court of Arlington (“JDR Court”), she ultimately had to represent herself be-
7
cause of the court-appointed attorney’s failure to properly represent Grandmother.
The JDR Court is a court “not of record.” Thus, decisions of the JDR court can be
reviewed de novo by the Arlington Circuit Court.
At Arlington DHS’s urging, the JDR Court never allowed AOB to return
home, even on a trial basis. The JDR Court, at the urging of the Arlington DHS,
changed AOB’s goal to adoption. Grandmother and Birth Mother appealed to the
Circuit Court of Arlington County (“Trial Court”) for a trial de novo.
During the course of the Trial Court proceedings, both the Grandmother and
Birth Mother filed motions requesting that AOB be appointed her own court-
appointed attorney and that failure to do so violated her due process rights. Tack-
ett at 571 (Appendix A-15) The violation of due process was particularly egregious
in this case because the court appointed “Guardian Ad Litem” Karen Grane (“GAL”)
took positions that conflicted with those of AOB. In addition, AOB had separately
requested her own attorney. (Appendix F-6) In the April 13, 2012 hearing, the
Trial Court summarily denied the motion, stating “I’m going to deny your motion. I
think Ms. Grane [the GAL] can cover it [i.e., both roles].” The issue was raised by
Grandmother and Birth Mother on appeal, and mischaracterized by the Court of
Appeals in its opinion as their seeking an “additional” attorney for AOB. Tackett at
518- 520, 526- (Appendix A-17 – 19, and 39 – 40)
During the course of the Trial Court’s proceedings, the Judge’s bench physi-
cally blocked Grandmother and Birth Mother’s views of the testifying witnesses.
Despite having raised objections at trial, the Trial Court neither asked the witness-
8
es to move forward on the witness stand, nor allowed Grandmother and Birth Moth-
er to relocate to give them unobstructed views of the witnesses. Grandmother
raised the issue on appeal, which the Court of Appeals recognized in its opinion.
Tackett at 527 - 529 (Appendix A- 41 – 42)
Also, during the course of the Trial Court proceeding, the Trial Court com-
pelled the Grandmother’s Clergy to testify against her regarding the content of con-
versations and interactions they had between them. Grandmother’s Clergy object-
ed to being forced to testify, but the Trial Court forced his testimony to proceed.
Grandmother raised the issue on appeal, which the Court of Appeals recognized in
its opinion. Tackett at 527 (Appendix A-40)
None of the Trial Court orders made any findings or issued any rulings that
the Maryland Circuit Court appointed guardianship of Grandmother was terminat-
ed or otherwise void.
Over Grandmother’s and Birth Mother’s objections, the Trial Court entered
its Trial Court Orders on July 27, 2012 upholding the not-of-record JDR Court’s rul-
ings terminating Birth Mother’s parental rights and changing AOB’s foster care goal
to adoption. (Appendix B-2 – 21) The Trial Court also entered a “no contact” order
that contained broad restrictions on the Grandmother’s and Birth Mother’s behav-
ior, including vague restrictions on their speech and general movements, even if
those actions did not, nor could have, resulted in any verbal, visual or physical con-
tact with AOB. (Appendix 24-30)
Timely notice of appeal of the Trial Court’s orders were made to the Court of
9
Appeals of Virginia.
On August 13, 2013, the Court of Appeals of Virginia entered an opinion af-
firming the Trial Court Opinions with one exception. (Tackett) That exception was
that the Court of Appeals reversed the Trial Court’s finding the Grandmother had
standing to challenge the termination of the residual parental rights of the Birth
Mother. Below, the Trial Court had found that Grandmother had standing to chal-
lenge the termination of Birth Mother’s parental rights because "she has facial basis
to be in this Court by having a [Maryland] custody order," and she comes into court
"similarly situated to somebody who had filed their custody petition . . . .". Tackett
at 517 (Appendix A-14)
On September 19, 2013, the Court of Appeals denied rehearing en banc.
(Appendix A - 54)
On December 18, 2013, the Supreme Court of Virginia issued a summary de-
nial of the petitions for appeal that were filed by both Grandmother and Birth
Mother. (Appendix C - 2) On March 7, 2014, the Supreme Court of Virginia issued
the final denial of the requests for rehearing. (Appendix D - 2)
10

REASONS FOR GRANTING THE WRIT

1) Were 13 year old minor’s due process rights violated under the Four-
teenth Amendment when she was denied an attorney to advocate for her
in court proceedings that could result in her losing her freedom to see,
contact, or associate with close members of her family for years (or, possi-
bly, the rest of her life)?

Under the Due Process Clauses of the US Constitution, parents and guardi-
ans have a protected liberty interest in the care, custody and control of their chil-
dren. Troxel v. Granville, 530 U.S. 57, 65 (2000) ("the interest of parents in the
care, custody, and control of their children is perhaps the oldest of the fundamental
liberty interests recognized by this Court.").
Court’s have found that children have a reciprocal right to live with their
parents and guardians. Franz v. United States, 707 F.2d 582, 595 (D.C. Cir. 1983)
("[A]bove all, [the constitutional right to family integrity] is manifested in the recip-
rocal rights of parent and child to one another's 'companionship. ''') Id. at 599 (“A
child's corresponding right to protection from interference in the [parent/child] rela-
tionship derives from the psychic importance to him of being raised by a loving, re-
sponsive, reliable adult."). See also, Wallis ex rei. Wallis v. Spencer, 202 F2d 1126,
1136 (9th Cir. 1998); cf Santosky v. Kramer, 455 U.S. 745,760 (1982) ("Until the
State proves parental unfitness, the child and his parents share a vital interest in
preventing erroneous termination of their natural relationship.").
AOB, faced below with loss of her fundamental right to liberty to associate
with her family, is entitled to due process and, in turn, a court appointed counsel
11
that represents her in any proceedings that place that right at risk. See, e.g., Gault,
387 U.S. 1, 87 S.Ct. 1428 (1967).
2

From very early on in this case, a conflict existed between AOB’s expressed
interests, which were to be reunited and remain in contact with her family, and the
position actively advocated by the Guardian ad Litem, which was to terminate
AOB’s relationship with all of her blood relatives and have her be adopted to non-
relatives. The GAL advocated for a position that was diametrically opposed to
AOB’s expressed interests.
According to the Standards To Govern The Performance Of Guardians Ad Li-
tem For Children (2003) published on the Virginia Court website
(www.courts.state.va.us), “[t]he GAL’s “role and responsibility” is not to advocate for
the child’s position, but instead to “represent the child’s best interests before the
court.” The Virginia Court website sets forth that:
It is the fundamental responsibility of the guardian ad litem to pro-
vide independent recommendations to the court about the client’s best
interests, which can be different from advocating for what the client
wants, and to bring balance to the decision-making process.

2
As Justices Stevens, Scalia and Kennedy noted in note 9 of their dissent in Troxel
et vir. v Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) : “This Court
has on numerous occasions acknowledged that children are in many circumstances
possessed of constitutionally protected rights and liberties. See Parham v. J. R., 442
U.S. 584, 600, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (liberty interest in avoiding
involuntary confinement); Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 74, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976) ("Constitutional rights do not mature
and come into being magically only when one attains the state-defined age of major-
ity. Minors, as well as adults, are protected by the Constitution and possess consti-
tutional rights"); Tinker v. Des Moines Independent Community School Dist., 393
U.S. 503, 506-507, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) (First Amendment right to
political speech); In re Gault, 387 U.S. 1, 13, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967)
(due process rights in criminal proceedings).
12
- Virginia Court Web Page On Guardians Ad Li-
tem (GAL) (www.courts.state.va.us)

AOB wrote a letter to JDR Court Judge Varoutsos on August 15, 2011 ex-
pressing her displeasure with her GAL. Her letter complained that the GAL was
not protect her like a lawyer should, and that she wanted a lawyer who would speak
for her. (Appendix F-6).
The ABA issues authoritative guidelines for attorneys who represent minors.
Those guidelines specifically warn against the conflict when one attorney is given
two jobs: that of “Best Interests Attorney” (also known as GALs in Virginia) and
that of being the legal representative of the child:
These Standards distinguish two distinct types of lawyers for children: (1)
The Child’s Attorney, who provides independent legal representation in a
traditional attorney-client relationship, giving the child a strong voice in the
proceedings; and (2) The Best Interests Attorney, who independently investi-
gates, assesses and advocates the child’s best interests as a lawyer. While
some courts in the past have appointed a lawyer, often called a guardian ad
litem, to report or testify on the child’s best interests and/or related infor-
mation, this is not a lawyer’s role under these Standards.

….Once a lawyer has a lawyer-client relationship with a minor, he or she
cannot and should not assume any other role for the child, especially as Best
Interests Attorney or as a witness who investigates and makes a recommen-
dation.”
- ABA Family Law Section Standards of Practice for Lawyers Represent-
ing Children in Custody Cases (2003) at 1

Notably those ABA guidelines are cited as an authoritative reference in the
Virginia Court’s Standards to Govern the Performance of Guardian Ad Litems for
Children.
It is, arguably, a worse violation of the due process rights of the child that she
be led to believe that the “Best Interests” attorney is somehow representing the
13
child when, in fact, that “Best Interest” attorney is free to advocate positions mate-
rially adverse to those of the child. To make it more unfair for the child, that “Best
Interests” attorney is free to use information the child tells the attorney to advocate
those adverse positions.
The GAL, or Best Interests attorney, in Virginia is unaccountable. They owe
no duty or obligation to the child other than to point out when the child disagrees
with them. GAL’s also have not particular expertise other than being familiar with
the law as lawyers. Finally, they may not be called as witnesses and other parties
cannot do discovery on them.
The Court of Appeals cited to Virginia Code § 16.1-266 (A), (E) and (F), and
Virginia Supreme Court Rule 8:6 that such appointment up to the discretion of the
trial judge and that the GAL is only required to inform the court when the GAL’s
opinion differs from that of the child. Tackett at 518 (Appendix A – 18 -19). The
Court of Appeals said it would not address the due process issue on appeal because
AOB’s Birth Mother did not preserve it at trial. Id. However, Grandmother did
preserve the issue at trial, which the Court of Appeals ignored. As evidence of that
preservation is the Grandmother’s April 6, 2012 motion for appointment which led
to the hearing on the issue (Appendix F-8), the point was made at the hearing that
AOB was being denied a voice in these hearings because she had no court appointed
attorney, As Grandmother’ counsel at that hearing stated: “[AOB] has requested
somebody who can advocate for her expressed interests, and [AOB] feels that her
interests are not being adequately represented, and that is what an advocate does..”
14
Birth Mother’s counsel also pointed out “[AOB] is not having an advocate who will
help her prepare a position. She's not able to object through Ms. Grane as her
guardian ad litem.” In other words, the Trial Court was clearly told at trial and in
motions by Grandmother and Birth Mother that without AOB having her own at-
torney, she has no due process.
The Court should use this opportunity to clarify that it is a denial of a child’s
due process rights in a parental termination proceeding to have a court-assigned
“Best Interests” attorney (i.e., GAL) represent a child in name only, when, in fact,
that GAL’s primary responsibility is a conflicting one, i.e.,, to represent the GAL’s
own views (based on no particular expertise) for which the GAL is accountable to no
one.

2) Were Grandmother and Birth Mother denied their right to a fair trial
and other due process rights of the Fourteenth Amendment where their
view of testifying witnesses were physically blocked during the trial?

The visual line of sight of both Grandmother and Birth Mother’s views were
blocked, such that they could not see a number of the witnesses when those wit-
nesses were testifying. Despite their having brought this problem to the Trial
Court’s attention on more than one occasion, the Trial Court refused each time to
correct the condition. E.g., Tr 6/21/2013 at 129-133 (JA 714-718); Tr. 6/26/2013 at
381-385 (JA 1765-1770) (“MS HEFFERNAN: “Yes, Your Honor. [Our] view of the
witnesses were obstructed unless someone would sit up very close at the left-hand
side. We could not see the faces of the witness, we could only see the top of the head,
15
and we pointed that out early on in the hearing.”….THE COURT: “Your motion [‘for
physical accommodation for being able to see witness when they are testifying’] is
denied. Your exception is noted.”) By having their line of sight views blocked,
Grandmother and Birth Mother were unable to see the witness’s demeanors and
what those witnesses were doing while testifying (e.g., there was expressed con-
cerns that some of witnesses were texting while on the witness stand) (“MS.
O'BRIEN HEFFERNAN: Your Honor? I'm sorry. I'd like to know what Ms. -- who
Ms. Brothers is texting….Does Ms. Watkins [the witness] have her phone [on the
stand], please?” Tr. 6/20/2014 at 202 (JA376)).
Given that loss of their liberties were at serious risk, both Grandmother and
Birth Mother were entitled to due process in these parental termination and adop-
tion proceedings. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147
L.Ed.2d 49 (2000)). Similarly, this Court has placed constitutional rights of guard-
ians in these proceedings above those of the state, and thus found them to be enti-
tled to due process. Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925).
A critical component of due process is a fair trial. It is self-evident that the
right to a fair trial includes the right to see the proceedings, which includes the wit-
nesses when they testify in court. As this Court has found:
“The Constitution guarantees a fair trial through the Due Process Clauses,
but it defines the basic elements of a fair trial largely through the several
provisions of the Sixth Amendment, including the Counsel Clause:

"In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
16
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence."

- Strickland v Washington, 466 US 668, 684-685, 104 S. Ct.
2052, 80 L.Ed. 2d 674 (1974)

The need for a party to visually see a witness testify is so obvious and fun-
damental that it is required of the design of all courtrooms in Virginia. See, e.g.,
Virginia Courthouse Facility Guidelines, 2nd Edition, 2001, Court Works (2001) at
48 (“Generally, all participants within the litigation area should have a clear unob-
structed view of each other.”)
Although technically this was not a criminal case, the deprivation of liberty is
so great in parental rights termination cases that due process should include all of
the basic elements of a “fair trial,” including the right to confront witnesses.
Given the purposeful design of the Virginia courtroom to allow all parties to
see the witnesses when they testify, there was no reason that proper accommoda-
tion could not have been made. The Trial Court had the responsibility to assure
that the parties could see the testifying witnesses. Whether the obscured views
were caused by the witnesses sitting too far back on the witness stand, or caused by
the large number of parties in the proceedings resulting in some with blocked views,
accommodation should have been made when requested because it was, by design,
possible to accommodate those requests. The Trial Court never claimed that it
would be impossible, or even unreasonable, to make the accommodations.
Grandmother and Birth Mother made objections about their blocked views
several times. However, the Trial Court failed to make even the most minimal in-
17
quiry and accommodation to address their concerns. The Trial Court gave no rea-
son for its having failed to instruct the witnesses to move forward on the witness
stand so all parties could see them.
In its opinion, the Court of Appeals refused to address the merits of the issue
because it claimed that “no authority” was cited to support the issue in the appeal
briefs. Thus, in effect, the Court of Appeals took the position that a critical compo-
nent of a fair trial is not the ability to see the witnesses. However if that is the case,
then why have the party at the trial in the first place? It is basic and self-evident
because being able to see the witnesses is an understood component of the party at-
tending their own trial.
Grandmother’s brief preserved the constitutional issue of the blocked views,
as it set forth that the blocked views “denied the right to a fair trial, and violated
due process rights” of Grandmother. Grandmother’s Br. on Petition for Custody,
(Record No. 1520-12-4) at 7, and 28-32 (“this [Court of Appeals] court must consider
whether the trial court denied the due process, fair hearing, and lack of prejudicial
procedural error owed to AOB and Pro Se Appellant…. Due process and a fair hear-
ing was denied Pro Se Appellant by the following undisputed occurrences: A) Pro se
Appellant was prevented from seeing witnesses when they testified during the hear-
ing and the court refused to make accommodation to allow pro se Appellant to see
the witnesses when they testified…”); also, Grandmother’s Reply Br. Petition for
Custody (Record No. 1520-12-4) at 11 (“the [Trial] Court’s refusal to accommodate
pro se Appellant by allowing her to place herself somewhere in the courtroom that
18
was designed to allow her to see the witnesses testify denied her a fundamental el-
ement of a fair trial, and thus due process.”) Thus, the issues were properly raised,
as best that Grandmother a pro se appellant might be expected to raise them.
The Trial Court’s refusal to allow Grandmother and Birth Mother to see wit-
nesses testify denied them a fundamental element of a fair trial, and thus due pro-
cess. This Court is urged to hear this issue because it presents an opportunity to
clearly establish that one of the elements of a fair trial is the ability of a party to see
and observe witnesses when those witnesses are testifying. Except in exceptional
circumstances not present here, this right should be considered a vital component of
a fair trial, particularly when the party is pro se.

3) Was it sufficient for Grandmother to have standing to appeal the Trial
Court’s forced testimony of Grandmother’s Clergy in violation of the Cler-
gy-Penitent privilege, where Grandmother’s Clergy raised objections at
trial?

In Virginia, the Clergy-Penitent privilege belongs to the clergy. Thus, the
clergy has standing to object at trial to being called as a witness or being asked
questions in violation of his Clergy-Penitent privilege. (VA Code § 8.01-400, Nestle v.
Com., 470 S.E.2d 133, 137 (Va. App., 1996)).
Even though the privilege belongs to the clergy in Virginia and Grandmoth-
er’s Clergy objected at trial, the Court of Appeals took the view that Grandmother
did not have standing to seek review on appeal of violation of that privilege because
she had not raised the objection at trial. Tackett at 527 (Appendix A-40). Grand-
mother’s Clergy was not a party to the case and, thus, was not in a position to seek
19
review of his forced testimony over his objections. The only harmed party in a posi-
tion to raise the matter on appeal was the Grandmother.
There was no dispute that objection was made by the Grandmother’s Clergy.
Minister Manship raised objections at the time he was being forced to testify at tri-
al. In fact, he objected twice at the hearing. Thus, Grandmother’s Clergy’s objec-
tions were timely made.
Because Grandmother would be adversely affected by the disclosure of her
conversations with Clergy, Grandmother clearly has “a personal stake in the out-
come of the controversy” to uphold that privilege. Thus, she should have standing
to appeal the error with regard the violation of Clergy-Penitent privilege here.
Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984) (quot-
ing Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620,
2630, 57 L.Ed.2d 595 (1978)). Wright v. Alexandria Div. of Social Services, 433
S.E.2d 500, 502; 16 Va.App. 821, 825 (Va. App., 1993).
This Court, albeit in dicta, acknowledged the existence of a "priest-penitent"
privilege. See Trammel v. United States, 445 U.S. 40, 45, 100 S.Ct. 906, 909-10, 63
L.Ed.2d 186 (1980). (citing, Grand Jury Investigation, In re, 918 F.2d 374 (C.A.3
(Pa.), 1990). The Court favorably referred to several privileges by analogy, among
them, the "priest-penitent" privilege:
The privileges between priest and penitent, attorney and client, and physi-
cian and patient limit protection to private communications. The privileges
are rooted in the imperative need for confidence and trust. The priest-
penitent privilege recognizes the human need to disclose to a spiritual coun-
selor, in total and absolute confidence, what are believed to be flawed acts or
thoughts and to receive priestly consolation and guidance in return.
20

Id. at 51, 100 S.Ct. at 913.

See also United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090 3108, 41
L.Ed.2d 1039 (1974) ("[G]enerally, an attorney or a priest may not be required to
disclose what has been revealed in professional confidence." (emphasis added)
Because this issue has implications on first amendment freedom of religion
and other privileges (like attorney-client privilege), this Court should address the
issue and clarify that where these types of privileges belong to the practitioner (here
the Clergy), the other party who benefits from that privilege (here the Penitent)
should have standing to seek review of an adverse ruling even where only the Cler-
gy timely raised objections to the privilege’s violations.
4) Did the Virginia Trial Court violate the Full Faith and Credit Clause
and the Fourteenth Amendment due process rights of the Grandmother by
legally ignoring Grandmother’s Maryland Circuit Court ordered guardian-
ship of her grandchild?

The Maryland Circuit Court granted “Custody” of AOB to Grandmother when
AOB was only three days old. (Appendix at F-2) Then, in a separate proceeding
six years later in 2005, the Maryland Circuit Court granted “guardianship” to
Grandmother, in addition to custody of AOB. (Appendix at F-4).
To understand what rights and powers were granted to Grandmother in 1999
and 2005, one must look to Maryland law. In Toland v. Futagi, 40 A.3d 1051, 425
Md. 365, (Md., 2012), the Court of Appeals of Maryland noted that guardianship is a
creature of the Maryland court: “A guardianship…. generally is an outgrowth of a
court decree.” Id. at 1065, 425 Md. 389.
21
Toland discussed the distinction between guardianship and custody:

The role of a guardian is, therefore, separate and distinct from that of
a custodian of a child. In In re Adoption/Guardianship No. 10935, 342 Md.
615, 679 A.2d 530 (1996), a case involving the resignation of a co-guardian,
we reiterated that a parent may name a guardian for his or her child, without
termination of a parent's right to custody. See also Monrad G. Paulsen and
Judah Best, Appointment of a Guardian in the Conflict of Laws, 45 Iowa
L.Rev. 212, 213 (1960) (“Legal custody can be given to one person or agency
while another remains the guardian.”).

- Toland, at 1065, 425 Md. 390.
Consistent with the view of Toland, Maryland statutory law makes similar
distinctions between “guardianship” and “custody.” Specifically, it defines “guardi-
anship” as an award by a court, including a court other than a juvenile court, of the
“authority to make ordinary and emergency decisions as to the child’s care, welfare,
education, physical and mental health, and the right to pursue support.” MD Cts. &
Jud. Proc. § 3-801 (2006). The same code section defines “custody” as “the right and
obligation, unless otherwise ordered by a court, to provide ordinary care for a child
and determine placement.” Id.
In Virginia, similar differences have been found between custody and guardi-
anship, as explained in In Re: O’Neill, 18 Va. App. 674, 678-679, 446 S.E.2d 475,
478 (1994):
Custody is broadly defined as "[t]he care, control and maintenance of a child."
Black's Law Dictionary 347 (5th ed.1979). A guardian is "[o]ne who legally
has responsibility for the care and management of the person, or the estate,
or both, of a child during its minority."

O’Neil went on to quote the Virginia Code to point out that in Virginia guard-
ianship is clearly distinct from custody:
22

“In this Commonwealth, "legal custody" is defined as "the right to have phys-
ical [charge] of the child, to determine and redetermine where and with
whom [the child] shall live, the right and duty to protect, train and discipline
[the child] and to provide [the child] with food, shelter, education and ordi-
nary medical care, all subject to any residual parental rights and responsibil-
ities.] [Virginia] Code § 16.1-228. The term "guardian" is not defined by any
statute in this Commonwealth, nor does any statute or court decision in this
Commonwealth adequately distinguish guardianship and custody, although
it is certain that there is a distinction between the two. See, e.g., Code § 16.1-
228 (nominating without distinguishing "parent," "guardian" and "legal cus-
todian" as separate entities and defining "residual parental rights and re-
sponsibilities as those remaining with the parent after the transfer of "legal
custody or guardianship").”

- O’Neill at 679-680

In re O’Neill noted that Virginia Code § 16.1-228 defines residual parental
rights as “those remaining with the parent after the transfer of legal custody or
guardianship.” (Emphasis added).
O’Neill concluded that:
The distinction we draw between "legal custody" and "guardianship" is a re-
flection of the extent of the power over and the responsibility to the child in-
volved in each. Thus, in this Commonwealth, legal custody is the right to
have physical charge of the child and generally direct the day-to-day activi-
ties of the child's life. Guardianship of the person and estate of a child, by
contrast, is a broader power to have the custody of the ward and the right to
take possession of the ward's estate, real and personal, and out of the pro-
ceeds of such estate provide for the ward's maintenance and education. See
Code § 31-8. Additionally, the legal custodian, while being required to provide
the ordinary necessities of daily life for the child, is not a fiduciary or guaran-
tor of the child. Rather, it is the guardian of the person and estate who car-
ries the burden of managing the ward's estate and making good the lawful
debts of his ward.
- Id. at 679-680
The important point here that that under both Maryland and Virginia’s defi-
nitions, “guardianship” is a distinct concept and a distinct set of rights and obliga-
23
tions vis a vis custody. “Residual parental rights” are those parental rights remain-
ing with the parent after any other rights (e.g., custody and/or guardianship) are
transferred to a third party.
3
It follows that if guardianship of a child had previ-
ously been transferred to a third person (as was the case here), then guardianship is
no longer included in the “residual parental rights” associated with the child’s birth
parents. It follows that termination of the birth parent’s residual parental rights
would not, in and of itself, affect that previously transferred guardianship.
Grandmother originally had “guardianship” rights and “custody” rights to
AOB, which had originally been transferred from the Birth Mother to Grandmother
by Maryland Circuit Court in 2005 and 1999, respectively. Thus, after 2005 the
Birth Mother’s residual parental rights did not contain the guardianship rights and
obligations to AOB. It follows that Grandmother’s guardianship of AOB remained
unaffected by the Trial Court’s termination of the residual parental rights of the
Birth Mother (because those rights no longer included guardianship), and the associ-
ated transfer of only custody rights to the Arlington DHS (which also did not affect
guardianship). Trial Court Order For Involuntary Termination Of Residual Paren-
tal Rights. (Appendix B – 68)
Neither the Trial Court, nor any other court placed Grandmother on notice
that her guardianship rights of AOB was to be terminated, nor did any court enter
any order that explicitly terminated Grandmother’s guardianship of AOB.

3
Other jurisdictions use a similar relationship between “custody,” “guardianship,”
and “residual parental rights.” See, e.g., In re: G.K., 993 A.2d 558, 564-567 (D.C.
2010)
24
The Court of Appeals Opinion took the position that termination of the resid-
ual parental rights of the Birth Mother “by operation of law” terminated the guardi-
anship assigned by Maryland to a third party. Tackett at 525 (Va. App., 2013) (Ap-
pendix A-35). Such a view ignores the law of both Maryland and Virginia, because
the terminated Birth Mother’s residual parent rights no longer included the guardi-
anship rights to AOB.
The Court of Appeals in Tackett simply ignored the legal effectiveness of the
Maryland Circuit Court’s 2005 order granting guardianship to Grandmother, and
that it was no longer within the residual parental rights of the Birth Mother. By
doing so, it failed to give full faith and credit to that 2005 Guardianship Order of
Maryland Court that explicitly transferred guardianship rights to Grandmother.
U.S. Const. Art. IV, § 1.
As noted above, the U.S. Supreme Court has placed constitutional rights of
liberty of guardians above those of the state, thus entitling termination of such
guardianship to due process – which would include, in their most primitive form,
the right to notice and a fair trial. Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925) (acknowledging the liberty of parents and guardians to direct the upbringing
and education of children under their control), in accord, Winkelman v. Parma City
Sch. Dist., 550 U.S. 516, 529, 127 S.Ct. 1994, 167 L.Ed.2d 904, 75 USLW 4329
(2007).
A Maryland Circuit Court appointed guardianship granted to a third party is
not, and could not, be treated as subordinate to the rights of the birth parent’s re-
25
sidual parental rights after those guardianship rights had been transferred to a
third party (here the Grandmother).
The Court of Appeals identified no order in Virginia that explicitly trans-
ferred guardianship away from Grandmother, nor did it identify any notice and fair
hearing on the issue of transfer or termination of guardianship of Grandmother.
There was no petition filed in any court giving notice that Grandmother’s foreign
guardianship was to be the subject of a hearing for termination. Instead, the
Court of Appeals uses the “by operation of law,” as a convenient vehicle to excuse
the Trial Court from giving any deference to the Maryland Court Order of 2005, and
its failure to provide any notice or making an explicating finding that could lead a
reasonable person who holds the child’ guardianship rights that those rights were
up for termination.
The Court of Appeals Opinion tried to defend its position by confusing the is-
sue of whether the Virginia court had jurisdiction to address guardianship, with the
issue of whether there was due process in the making any alleged changes to
Grandmother’s guardianship. Tackett at 525 (Appendix A-34)
To uphold the requirements for due process in the termination of a foreign
guardianship, and giving it the full faith and credit to which it is entitled, this
Court should take this opportunity to clarify that a state court must give proper no-
tice and a fair hearing before termination a foreign guardianship, particularly
where the guardian had, as in this case, served as the child’s parent for child’s en-
tire life. Given that more and more grandparents are now stepping into the roles
26
of parenting and having guardianship of their grandchildren, this issue has become
of increasing importance and must be addressed. See, Amy Goyer, More Grandpar-
ents Raising Grandkids, AARP (December 20, 2010).
CONCLUSION

For the reasons set forth in this Petition, the Court is respectfully requested
to grant this petition.

Respectfully submitted,




Roy L. Morris, Esq.* David Helfrey, Esq.
Offices of Roy Morris Sandberg Phoenix
PO Box 100212 & von Gontard
Arlington, VA 22210 600 Washington Ave. 15th
202 657 5793 St. Louis, MO 63101
*Counsel of Record 314-425-4914

Pro Bono Counsel for Petitioner Delores O’Brien Heffernan

June 5, 2014


Deborah Kramer
2045 N. 15
th
St. # 105
Arlington, VA 22201

Elizabeth Tuomey,
2045 N. 15th Street, Suite 300,
Arlington, Virginia 22201

Janell Wolfe
2007 N. 15th St. Suite 100,
Arlington, VA 22201

I declare under penalty of perjury that the forgoing is true and correct.


June 5, 2014 _________________________