Grady W. Perry v. Clarence H. Carter, Commissioner ( 1999 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present:  Chief Judge Fitzpatrick, Judge Bray and
    Senior Judge Overton *
    Argued at Norfolk, Virginia
    GRADY W. PERRY
    MEMORANDUM OPINION** BY
    v.    Record No. 1366-98-1     CHIEF JUDGE JOHANNA L. FITZPATRICK
    FEBRUARY 2, 1999
    CLARENCE H. CARTER, COMMISSIONER,
    VIRGINIA DEPARTMENT OF SOCIAL SERVICES
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    John C. Morrison, Jr., Judge
    Bernard T. Holmes (Holmes & Associates, P.C.,
    on brief), for appellant.
    Cheryl A. Wilkerson, Assistant Attorney
    General (Mark L. Earley, Attorney General;
    Ashley L. Taylor, Jr., Deputy Attorney
    General; Siran S. Faulders, Senior Assistant
    Attorney General; Daniel J. Poynor, Assistant
    Attorney General, on brief), for appellee.
    Grady W. Perry (appellant) appeals the trial court's order
    granting judgment in his favor and dismissing the administrative
    finding of child abuse against him.   He contends that the trial
    court erred in dismissing the case on a basis other than one he
    deemed appropriate.   He also appeals the trial court's denial of
    attorneys' fees.   For the reasons that follow, we dismiss the
    *
    Judge Overton participated in the hearing and decision of
    this case prior to the effective date of his retirement on
    January 31, 1999 and thereafter by his designation as a senior
    judge pursuant to Code § 17.1-401, recodifying Code
    § 17-116.01:1.
    **
    Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
    this opinion is not designated for publication.
    appeal.
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    I.   BACKGROUND
    The facts are undisputed.    On March 9, 1990, the Norfolk
    Department of Human Services (local agency) received a complaint
    alleging physical abuse by appellant of his five-year-old son,
    M.S.   The local agency conducted an investigation and entered a
    disposition of "Founded-Physical Abuse."      The notice to appellant
    advising him of the results of the investigation and his appeal
    rights was misaddressed and not timely received by appellant.
    In 1995 appellant discovered that his name was listed in the
    Commonwealth's central registry with the disposition of
    "Founded-Physical Abuse."    Appellant contacted the local agency
    regarding the lack of notice and on October 10, 1995, the agency
    responded.
    A review of our record indicates the
    notification letter was sent to an incorrect
    address, and, therefore, you may not have
    been formally notified of the disposition and
    your right to appeal the decision.
    By copy of this letter, I am informing you
    that you have thirty days to request an
    appeal of the disposition of the above
    mentioned matter.
    Within the appropriate time limitation, appellant formally
    requested an appeal of the 1990 disposition finding by the local
    agency.   Following an informal conference, the local agency
    officer assigned to the case rendered a decision upholding the
    original complaint and disposition of "Founded-Physical Abuse."
    Appellant requested further review by the Commissioner of
    the Virginia Department of Social Services (Department).     The
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    parties presented evidence and the designated hearing officer
    upheld the local agency's founded disposition.
    On December 9, 1996, appellant filed a Petition for Appeal
    in the Circuit Court of the City of Norfolk, seeking judicial
    review of the hearing officer's decision.    A judicial review
    hearing was conducted on December 2, 1997.   The trial court found
    that deficiencies in the documentation of the investigation and
    the delay in notice and opportunity to challenge the founded
    disposition impaired appellant's ability to challenge the
    disposition five years later.    The final order entered on May 1,
    1998, read as follows:
    ADJUDGED, ORDERED and DECREED that the
    disposition is reversed and hereby amended to
    "Unfounded" and all records concerning the
    investigation and disposition of the March 9,
    1990 complaint shall be purged from the
    Central Registry and the records of the
    Norfolk Division of Social Services, as
    provided by departmental policy.
    Additionally, the trial court denied appellant's request for
    attorneys' fees.
    II.   STANDING
    Appellant succeeded at the trial court level in his request
    to reverse the Department's administrative finding of abuse and
    to have purged from the central registry all records relating to
    the case.   Nevertheless, he challenges on appeal the trial
    court's reasoning in dismissing the case.    Appellant argues that
    the trial court's failure to find any statutory or constitutional
    violations will have a "chilling" effect on his parental rights.
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    For the reasons that follow, we dismiss the appeal.
    Under Code § 17.1-405, recodifying Code § 17-116.05, only an
    "aggrieved party" may appeal to the Court of Appeals.   "It is
    elementary that an appellant must have been aggrieved by the
    decree appealed from or he has no standing. . . ."    Stone v.
    Henderson, 
    182 Va. 648
    , 651, 
    29 S.E.2d 845
    , 846 (1944).   "The
    word `aggrieved' in a statute, it has been held, refers to a
    substantial grievance, a denial of some personal or property
    right, legal or equitable, or the imposition upon a party of a
    burden or obligation."   D'Alessio v. Lukhard, 
    5 Va. App. 404
    ,
    408, 
    363 S.E.2d 715
    , 718 (1988).
    Before a person is entitled to an appeal or
    writ of error he must show that he has an
    immediate, pecuniary and substantial interest
    in the litigation, and not a remote or
    indirect interest. He must also show that he
    has been aggrieved by the judgment or decree
    of the lower court. Appeals and writs of
    error are not allowed for the purpose of
    settling abstract questions, however
    interesting and important to the public they
    may be, but only to correct errors
    injuriously affecting the appellant or
    plaintiff in error.
    Nicholas v. Lawrence, 
    161 Va. 589
    , 593, 
    171 S.E. 673
    , 674 (1933)
    (quoted in Virginia Employment Comm'n v. City of Virginia Beach,
    
    222 Va. 728
    , 732, 
    284 S.E.2d 595
    , 597 (1981)).
    The case of Commonwealth v. Harley, 
    256 Va. 216
    , 
    504 S.E.2d 852
     (1998), recently decided by the Supreme Court, is
    dispositive.   In Harley, the defendant appealed his six felony
    convictions to this Court, arguing that the trial court erred in
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    denying his motion for a transcript of a suppression hearing at
    the Commonwealth's expense.      In a published opinion, we held that
    the defendant was constitutionally entitled to a free transcript
    of the suppression hearing.       See Harley v. Commonwealth, 25 Va.
    App. 342, 350, 
    488 S.E.2d 647
    , 750 (1997).      However, we concluded
    that the trial court's error was harmless because there were "no
    significant discrepancies" between the witnesses' testimony at
    the hearing and their testimony at trial.       Id. at 351, 488 S.E.2d
    at 651.   Accordingly, we affirmed the defendant's convictions.
    See id.
    The Commonwealth filed a petition for appeal with the
    Supreme Court, seeking reversal of this Court's decision that the
    defendant was constitutionally entitled to a free transcript of
    the suppression hearing.      The Supreme Court dismissed the appeal
    on the basis that the Commonwealth lacked standing as a "party
    aggrieved."       Harley, 256 Va. at 220, 504 S.E.2d at 854.
    We do not agree that the Commonwealth is
    aggrieved by the Court of Appeals' ruling
    with respect to the issue of Harley's
    entitlement to a free transcript of his
    suppression hearing. That issue was rendered
    moot by the Court of Appeals' further ruling
    that the error in the trial court's denial of
    a free transcript was harmless.
    *       *      *      *      *      *      *
    In reality, the Commonwealth invites
    this Court to render an advisory opinion on a
    moot question based upon speculative facts.
    This is an exercise in which the Court
    traditionally declines to participate. "The
    reason . . . is that the courts are not
    constituted . . . to render advisory
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    opinions, to decide moot questions or to
    answer inquiries which are merely
    speculative."
    Id. at 219-20, 504 S.E.2d at 853-54 (citations omitted).
    In the instant case, the trial court granted judgment in
    appellant's favor and dismissed the finding against him.      The
    disposition of founded physical abuse was changed to unfounded,
    and the records were purged from the central registry.    In its
    final order, the trial court held that the procedural defects in
    the case "were so substantial that they impaired [appellant's]
    ability to challenge the findings at the administrative review
    proceedings."    In short, he won.   There was no other relief yet
    to be afforded this litigant.
    While appellant may prefer that he prevail on a different or
    broader ground, this does not give him standing to appeal the
    trial court's decision in his favor.    We hold that appellant, as
    the prevailing party, is not an "aggrieved party" within the
    meaning of Code § 17.1-405, recodifying Code § 17-116.05.
    Appellant's argument that the trial court's decision will
    have a "chilling" effect on his parental rights in the future,
    which is sufficient to invoke standing, lacks merit.    His
    apprehension that he will suffer from some future burden does not
    qualify him as an "aggrieved party" within the meaning of Code
    § 17.1-405, recodifying Code § 17-116.05.     See id. at 219, 504
    S.E.2d at 854.   Appellant's "concerns are hypothetical and can
    only be based, at best, upon speculation and conjecture."      Id.
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    Accordingly, we dismiss the appeal as it relates to appellant's
    first assignment of error.
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    II.   ATTORNEYS' FEES
    Appellant next argues that the trial court erred in denying
    his request for attorneys' fees.   He contends that as the
    prevailing party in the trial court, he was entitled to
    reasonable costs and attorneys' fees under Code § 9-6.14:21.     The
    Department argues that Code § 9-6.14:21 does not apply to appeals
    of child protective services determinations because the local
    agency is not subject to provisions of the statute.
    Assuming, without deciding, that Code § 9-6.14:21 applies to
    the local agency, we hold that the trial court did not abuse its
    discretion in denying the requested fees.      That statute provides
    in pertinent part:
    In any civil case brought under Article 4
    (§ 9-6.14:15 et seq.) of this chapter and
    § 9-6.14:4.1, in which any person contests
    any agency action, as defined in § 9-6.14:4,
    such person shall be entitled to recover from
    that agency, as defined in the section
    referred to above . . . reasonable costs and
    attorney fees if such person substantially
    prevails on the merits of the case and the
    agency's position is not substantially
    justified, unless special circumstances would
    make an award unjust.
    Code § 9-6.14:21 (emphasis added).
    In the instant case, although appellant met the first prong
    by prevailing on the merits of the case, we cannot say the local
    agency was "not substantially justified" in its position.     The
    trial court made no such finding and the record does not
    establish it.   Appellant's lack of notice of the 1990
    administrative finding was due to a mistake of fact by the local
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    agency and as soon as the mistake was discovered, appellant was
    afforded a delayed appeal by the Department.   Appellant sought
    judicial review of the Department's decision, and the trial court
    reversed those findings and ruled in his favor.   The trial judge
    did not abuse its discretion in denying the request for
    attorneys' fees.   Accordingly, the trial court's decision is
    affirmed.
    For the reasons stated, we dismiss the appeal and the
    request for attorneys' fees.
    Dismissed.
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