Virginia Family Law Appeals

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Murphy v. Charlotte County – CUSTODY – PARENTAL SUCCESS AGAINST DSS – FEE AWARDS – SOVEREIGN IMMUNITY

 

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.  

Minor Child v. Ellis – CUSTODY, ETC. – STATE v. FAMILIES – CHINS – UNWARRANTED GAL PETITION.

 It seems there are still some counties in Virginia where a judge will recognize a case that should never have gone this far.  When a guardian ad litem’s successful CHINS petition was appealed to circuit, the circuit judge granted a motion to strike after hearing everything the GAL and GAL’s experts had to say.  Though the guardian ad litem of course appealed this dismissal, the Court of Appeals affirmed.  In this case the parents were separated and the mother had custody, and in the past the father, labeled “alcoholic and abusive,” had been subject to a protective order forbidding contact between the father and the child.  While the mother in the past had nevertheless allowed some contact, she has been prohibiting access recently.  The guardian ad litem’s evidence shows only that the child was an excellent student who did well in school and made good grades, was liked by the kids and the teachers, involved in extracurricular activities, and that the mother was doing very well at her own job.  At the time of separation the mother had taken the child to a “counselor,” because of concern about the child’s reaction to “the changes that the family was going through because of the Dad,” but nothing even suggested that anybody was abusing or neglecting this child.  Though one of the experts said there were “serious concerns,” this expert also admitted—on direct—to not having enough information to form an opinion.  Seen in the light most favorable to the GAL, the experts’ testimony included that the child had an “adjustment disorder,” which they characterized as “the lowest of all disorders,” which indicates that a specific situation is creating stress and “causing some impairment.”  “However,” the Court of Appeals noted, “the experts never explained what ‘impairment’ existed in the child’s life or 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 basis of the experts’ recommendation of further counseling was that the child had once been exposed to an alcoholic father and had witnessed abuse of the mother, but neither expert could point to any behavior by the child himself even that he needed more counseling.  No behavior suggested that the child was on a bad course through life. One expert explained that she had not done any testing because “there didn’t appear to be a need,” and the only advice of the experts 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 admitted they had not collected serious information to satisfy the statute or to illustrate any substantial dangers this child would face if the state was not allowed to intervene in his life. Section 16.1-228(I) defines a child in need of services as one who is engaged in behavior or conduct or has a condition, that “prevents or results in a serious threat to” the child’s well-being and physical safety.  The GAL to satisfy the statute needed to prove, in fact, a “clear and substantial danger to the child’s life or health,” and that the family or child was “in need of treatment, rehabilitation or services not presently being received,” and that intervention was “essential” to provide it.  Nobody got even close to satisfying this standard.  Minor Child v. Ellis, unpublished, 25 VLW 1156 (3/8/11).