Whether the statutes create an exception to sovereign immunity in cases where parents win their children back from DSS is no simple matter, according to the Virginia Court of Appeals in its explanation. A successful father who got his kids back after DSS had used charges of abuse and neglect to seize them argued that Code §60.1-278.19 served to waive sovereign immunity in such cases because it provides that juvenile and domestic relations courts can award fees and costs to “any party” when appropriate considering the relative financial ability of both parties. He admitted that this does not amount to an express waiver, but thought it was clearly implied. But the Court of Appeals finds an analogous case in Ligon v. County of Goochland, ___ Va. ___, ___ S.E.2d ___, which concerned §8.01-216.8, and therefore the Court of Appeals held that only an “express and specific” statutory reference to state employees will do it. In §16.1-238 there is no specific and express reference to employees of the Commonwealth either. As the Court remarked in Murphy v. Charlotte County, ___ Va. App. ___, ___ S.E.2d ___, 25 VLW 1211 (3/22/11), if the General Assembly had meant that, it would have said so. To Mr. Murphy’s further argument that there is a waiver under §17.1-600 and §17.1-629 where a party seeks costs, the Court points out that the court of record statutes do this father no good because they allow only costs, not fees, and his motion in fact did not seek such. As for the argument that costs includes fees, the Court simply points out that it has ruled on that one before, and not favorably.
