Virginia Family Law Appeals

Even in family court, ruling without hearing evidence is unconstitutional - Va. Ct. of App.

A Circuit Court Judge went too far, too fast, by announcing his ruling based on his knowledge of the case in earlier years and possible review of the file, and a Guardian Ad Litem's presentation, without letting the petitioner present evidence. (The respondent did not even try to present evidence.) A mother whose child had been placed for adoption, with an aunt, filed for visitation, but the judge discontinued the trial in the middle of the mother's presentation of evidence, in order to go to hear another case in another county. Despite repeated requests from counsel, a hearing to conclude the case was not set for nearly two years, and the judge said at the beginning of the hearing, after hearing from the Guardian Ad Litem, that the mother could not have visitation because she had now gone too long without it. The Court of Appeals holds that it was error to deny the visitation, and grant the final adoption, without hearing all the evidence. Gregory v. Martin, 9/16/14 (unpublished).

Welfare agency must turn over child interview tape; prosecutor must seek, evaluate exculpatory evidence - Va.Ct.

CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY.  A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation.  Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights.  When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped.  At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played.  Investigators, of course, were ready to testify to the hearsay statements of the child.  That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out.  When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it.  When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes.  The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury.  The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards.  In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.”  It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense.  The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof.  There were dissents by Judge Kelsey and an even longer one by Judge Beales.  These were lengthy and scholarly dissents, though space considerations preclude summary of them here.

No relief for Va. father who got court order only after time to appeal it expired

JUVENILE AND CIRCUIT COURTS – APPEAL PERIOD – CORRECTION OF ORDERS – RECEIVED AFTER APPEAL DEADLINE.  Maybe anybody who has never received a juvenile court order until after the 10-days appeal period has run has never lived, or at least hasn’t practiced law very long, but the Court of Appeals recently got a chance to discuss this issue, in an opinion that for some readers may read like a good-news/bad-news joke.  Yes, there is a statute that covers the set-aside of orders for failure to receive notice of the entry of a final order, and it’s the one that talks about setting aside default judgments for clerical mistakes and the independent actions that can be brought for relief from fraud and related matters. But the bad news for a hapless father seeking relief from a JDR court custody order that the mother had obtained is that that statute applies only to judgments of the circuit court.  After all, it says so.  The father immediately moved to reconsider for lack of jurisdiction, seeking a change of the entry date to a date late enough to allow him to appeal, but the juvenile court refused, and the circuit court, when resorted to, denied the motion on the grounds that §8.01-428(C) does not apply.  Though one wonders whether anything could have been done using the statute granting the circuit court power to do anything here that juvenile court can do, but after all, the circuit court here would have had to want to do something under that statute. Eklund v. Eklund, unpublished, 25 VLW 1446 (5/17/11]. 

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.  

Rodgers v. Rodgers: CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.

CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.  When the appellant father in Rodgers v. Rodgers, unpublished, 23 VLW 407 (9/30/08) came in alleging that the trial court had no business changing custody from joint to sole custody with mother because there was no change of circumstances except his taking the son to get a haircut, the Court of Appeals unloaded on him saying essentially “Oh yeah?  What about this?”  And to prove that there was indeed more change of circumstances, there follows an impressive list of mere-conclusory horribles that sound suspiciously like getting the kid a haircut – after a viciously adversary advocate gets through with it, of course.  In a brief discussion that makes one wonder whatever happened to the Virginia Rule that required “fact pleading,” we learn from the slip opinion that the court below in fact found that the father was guilty of “disruptive and destructive behaviors toward the child,” and “did not follow the prior orders relating to communications with mother, including notifying mother of significant issues,” and furthermore “made disparaging remarks about mother and ... put his needs before the child’s needs.”  The pro se father also may have thought he had a pretty good issue to take to this Court of Appeals when he alleged that the circuit court below didn’t really afford him a de novo trial, but just rubber-stamped the decision of the juvenile court.  Well he strikes out there as well, because the circuit court order, as quoted by the appellate court, said, “the Court does award sole custody of the child ... to the father.  The Court makes this award for the same reasons as expressed by the [JDR Judge] ... in her order dated June 6, 2006.  The Court adopts her reasoning by reference,” adding that “the Court did conduct a hearing ore tenus.”  Well sure it’s a requirement that the circuit court hold a real de novo trial, the Court of Appeals says, but here there is no way to determine whether that requirement was met, because there would be no way to determine that question if there wasn’t a transcript “or summary” of the circuit court proceedings, so that issue can’t be considered.

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.

Ipsen v. Moxley: JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

21 VLW 1392 (4/10/07)
The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses.  In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say.   It was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted.  On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed. 

Lewis v. Culpeper County DSS: PARENTAL RIGHTS TERMINATION — EXCLUSIVE ORIGINAL JURISDICTION — NEW TERMINATION PETITION AFTER NONSUIT.

What happens after a local DSS tries to terminate a father’s parental rights, father loses in juvenile court, appeals for trial de novo in circuit, and then as soon as it gets to a hearing, the DSS nonsuits?  If there is a refiling should that be in circuit court?  No, it has to be in juvenile court, the Court of Appeals points out, as required by the jurisdictional statutes.

JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses. In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say. In Ipsen v. Moxley, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1392 (4/10/07), it was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted. On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed.