Virginia Family Law Appeals

C.G. v. Virginia DSS: ADMINISTRATIVE CHILD-ABUSE FINDINGS – “NON-CRIMINAL” NATURE – CRIMES IN ANOTHER STATE.

A fine legal argument that might have served a criminal defendant well proved useless to a man who was found guilty of abusing his granddaughter during a trip to North Carolina and incurred lifetime listing as a sex offender.  Whether Virginia can prosecute an act of sexual abuse allegedly committed in another state might be a good question, but this man doesn’t have any right to raise that question because it’s the DSS doing the prosecuting, and so there has been no criminal prosecution and no criminal conviction and such jurisdictional questions don’t matter.  Administrative proceedings which levy their punishments under the Child Abuse and Neglect Act are statutorily not criminal, and the placement of the appellant’s name in the sex offender registry is nothing he can complain about.  It’s an administrative remedy intended not to punish him, but to protect children.  Having said all that, the Court of Appeals goes on to evaluate some of the evidence and say that it was, on the whole, supportive of the conviction.  C.G. v. Virginia DSS, unpublished, 23 VLW 354 (8/5/08).

ADMINISTRATIVE CHILD-ABUSE FINDINGS – “NON-CRIMINAL” NATURE – CRIMES IN ANOTHER STATE.

A fine legal argument that might well have served a criminal defendant proved useless to a man who was found guilty of abusing his granddaughter during a trip to North Carolina and incurred lifetime listing as a sex offender.  Whether Virginia can prosecute an act of sexual abuse allegedly committed in another state might be a good question, but this man doesn’t have any right to raise that question because it’s the DSS doing the prosecuting, and so there has been no criminal prosecution and no criminal conviction and such jurisdictional questions don’t matter.  Administrative proceedings which levy their punishments under the Child Abuse and Neglect Act are statutorily not criminal, and the placement of the appellant’s name in the sex offender registry is nothing he can complain about.  It’s an administrative remedy intended not to punish him, but to protect children.  Having said all that, the Court of Appeals goes on to evaluate some of the evidence and say that it was, on the whole, supportive of the conviction.  C.G. v. Virginia DSS, unpublished, 23 VLW 354 (8/5/08).

Scialdone: CONTEMPT – DIRECT AND INDIRECT – CONSTITUTIONAL RIGHTS – APPEALS – WAIVER.

Ah, the frustrating question of direct v. indirect contempt, which so bedevils lawyers, who often have as persistent a problem with it as they say admirals have with port left and starboard right. Fortunately the Court of Appeals sorts it all out and re-explains direct and indirect contempt in a recent opinion as though it were so simple only a complete idiot would have any degree of doubt about it. And speaking of idiocy, while surely appellate opinions often describe a factual and procedural situation that no one involved at the trial level could ever recognize as the same case, it would be pretty hard, from the opinion in this case, to say that the defendants weren’t guilty of astoundingly, appallingly idiotic behavior.
But first, the appellate procedural hurdles event. The Court of Appeals in Scialdone v. Commonwealth, 51 Va. App. 679, 660 S.E.2d 317 (4/29/08), holds that two lawyers and a law student employee forfeited their right to raise the constitutional right of equal protection against their summary contempt convictions because they didn’t “articulate” any basis for saying they have such a right.

Gooch v. Harris: ADOPTION – OVER PARENT’S OBJECTION (NON-CONSENT) – MERE “BEST INTERESTS” – PARENTAL RIGHTS TERMINATION BYPASSED - CONSTITUTIONAL RIGHTS.

Here’s what most readers are bound to think when they encounter Gooch v. Harris, 52 Va. App. 157, 662 S.E.2d 95 (6/10/08). No matter how many times the U.S. Supreme Court, the Virginia Supreme Court, and even the Virginia Court of Appeals itself, have emphasized that you can’t take a natural parent’s child away permanently, over objection, and give it to some third party to adopt, upon a finding of mere best interests, because it’s unconstitutional, the current Court of Appeals now believes there’s nothing wrong with that at all. In this remarkable opinion the Court of Appeals says Oh no, of course a circuit court can do that, because there’s now a new Virginia adoption statute saying it can.

Lee v. Frederick County DSS: PROCEDURE – JUVENILE COURT – FINALITY OF RULINGS AND NON-RULINGS – CRIMINAL FINDINGS AND CUSTODY AWARDS TO DSS.

  Some recent rulings show what an incredibly tricky and dangerous territory the juvenile court as a court not of record can be, and how you often don’t get any two bites at the apple at all.  A mother mistakenly looked at it as a matter of simple common sense when her child’s delinquency charges were dismissed and she thought that a motion by her to return custody of the accused delinquent son to her from the DSS should be a simple matter and should succeed.  No, the Court of Appeals says, it was proper for a circuit court to dismiss the mother’s motion to get her child back, because the juvenile court in fact had not had any jurisdiction to dismiss one of the charges (destruction of property) that had been brought against this child, and which had resulted in his being adjudicated a delinquent, justifying the JDR court’s §16.1-278.8(A)(13)(c) transferring his custody to the welfare department.  Indeed, dispositional orders made under §16.1-278.8 are final orders, and since the mother did not appeal this particular order on this particular charge within ten days, everything became permanent.  Under Rule 1:1 the JDR court lost jurisdiction over charge #4 and had no business trying later on to dismiss it.  No finding has to be made as to letting the DSS keep this child, because the original delinquency finding, and the dispositional finding, remain in place as final orders.  Unpublished, 23 VLW 354 (8/5/08).

Anonymous B v. Anonymous C: CHILD ABUSE – AGREED ORDERS – PROCEDURE – NEED FOR TRIAL OF ISSUES – BEST-INTERESTS STANDARD.

Ah, those agreed dispositions.  It is well known that many parents will sign anything if it seems to hold out at least some small, desperate hope that cooperation will keep the system from disappearing their children into the terminations-adoption pipeline without even so much as a chance to wave goodbye.  Two parents who agreed to a stipulation that abuse occurred after one accused the other of sexually abusing their daughter,  and who both wanted to see their child again, ended up with a very non-specific order that the Court of Appeals says is no good. (Not improper, but it must be redone anyway.) It is devoid of various findings that the Court of Appeals, in a very long opinion, says are absolutely necessary.  (How exactly the parties were able to appeal an agreed order remains a good question, but readers are not referred to the Record for further Enlightment, because it’s sealed.)

    The circuit court, like the juvenile court before it, could not make an order of abuse with nothing more.  It was required,  even though the parties stipulated they would be bound by the court’s finding and order, to take evidence as to exactly what happened, what was done and which parent did it, and then and only then, make a specific protective order that would serve the best interests of the particular child involved, and take into account the rights of the parents.

Benzine v. Benzine: ALIMONY – PROCEDURE – WRITTEN FINDINGS/CONCLUSIONS REQUIREMENT.

After some recent Court of Appeals declarations that there is no requirement for a judge to make written findings of fact and conclusions of law in support of a child support ruling, it will be important to some readers to hear some reassurance by the Court of Appeals that such findings and conclusions are indeed statutorily required in an alimony case.  Thus a retired serviceman who got hit with a $500 per month alimony award to a wife who was already getting a split of his military retirement successfully appealed the judgment of a judge who seems to have ignored the statutory requirement.