T. B. v. Alexandria Department of Human Services ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Alston and Senior Judge Clements
Argued at Alexandria, Virginia
T. B. 1
MEMORANDUM OPINION * BY
v. Record No. 0029-10-4 JUDGE JAMES W. HALEY, JR.
OCTOBER 12, 2010
ALEXANDRIA DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Dale Warren Dover, Guardian ad litem for appellant.
Thomas K. Cullen for appellant.
Matthew W. Greene, Special Assistant City Attorney (James L.
Banks, Jr.; Jill A. Shaub; Martin, Arif & Greene, PLC; Office of
the City Attorney, on brief), for appellee.
Adrian P. Showells, II (Knight & Stough, LLP, on brief), Guardian
ad litem for the minor child.
I.
T.B., by her guardian ad litem, Dale Dover, appeals the trial court’s order finding that her
daughter, T.M.B., met the definition of an abused or neglected child set forth in Code
§ 16.1-228. Mr. Dover acted as T.B.’s guardian ad litem in the court below. In addition to a
guardian ad litem, T.B. also has a court-appointed attorney, Thomas Cullen, who did not appeal
her case to this Court and who opposed Mr. Dover’s position at oral argument. Adrian Showells,
guardian ad litem for T.M.B., opposes Mr. Dover’s position as well. Somewhat inexplicably,
1
Following this Court’s usual policy of maintaining the anonymity of minor children, we
have amended the caption in this case to refer to appellant by her initials. For the same reason,
this opinion also uses initials to identify appellant’s daughter.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
given the substance of the trial court’s final order, the opening brief of the guardian ad litem for
T.B. requests a ruling that her daughter, T.M.B., was indeed an abused or neglected child within
the meaning of the statute, albeit for a reason not relied on by the trial court. T.B.’s guardian ad
litem contends that the word “child” in Code § 16.1-228 should be understood to include a
“viable fetus” and, because T.B. used marijuana while she was pregnant with T.M.B., T.M.B.,
therefore, met the definition of an abused or neglected child even before her birth. In response,
the Alexandria Department of Human Services (“the Department”) contends that, whatever the
merits of this argument, this is not a proper case to address it. The Department further contends
that, given her argument on appeal, T.B. is not an “aggrieved party” within the meaning of Code
§ 17.1-405, the statute defining this Court’s appellate jurisdiction over, inter alia, cases
involving the control or disposition of a child. We agree with the Department, and must,
therefore, dismiss this appeal.
II.
Facts
The Juvenile and Domestic Relations District Court for the City of Alexandria placed
T.B. in the Department’s custody on September 13, 2007, in response to the Department’s
petition alleging that T.B. was a child in need of services (“CHINS”) within the meaning of Code
§ 16.1-228. During T.B.’s foster care proceedings, the court appointed Dale Dover as guardian
ad litem to represent T.B.’s interests. Pursuant to the juvenile court’s orders, T.B. lived in a
rehabilitation facility and then in a group home, both in Richmond, VA, before she ran away
sometime during a weekend visit to her grandmother around August 8, 2008. Her whereabouts
were apparently unknown to the Department until October of 2008, when she returned to the
Department’s custody after being served with a detention order. By this time, she was pregnant.
T.B. ran away again in February 2009. She had no further contact with the Department
until she gave birth to T.M.B. in an Alexandria Hospital on April 16, 2009. The next day, the
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Department took T.M.B. into emergency custody pursuant to Code § 63.2-1517. The juvenile
court issued an emergency removal order on April 20, finding that T.B. had admitted to smoking
marijuana during her pregnancy. Following a hearing, the court issued an adjudicatory order on
May 27, 2009, finding that T.B. did not seek prenatal care for T.M.B. and declaring T.M.B. a
neglected child within the meaning of Code § 16.1-228. On June 26, 2009, the juvenile court
issued a dispositional order, incorporating the factual findings of the adjudicatory order,
transferring custody of T.M.B. to the Department, and providing for reasonable visitation
between mother and daughter within the discretion of the Department. The juvenile court also
approved a foster care plan, with the goal of eventually returning T.M.B. to her mother.
Mr. Dover, as guardian ad litem for T.B., appealed both orders to the circuit court.
T.B. appeared in the circuit court on December 8, 2009, and so did her court-appointed
attorney, Mr. Cullen. Also present were Mr. Dover, as guardian ad litem for T.B., Mr. Showells,
as guardian ad litem for T.M.B., Ms. Sabir, counsel for T.M.B.’s unknown father, and
Mr. Greene, on behalf of the Department. At the outset of the hearing, Mr. Dover stated that he
disagreed with the finding of abuse and neglect, which is why he appealed the case to circuit
court. Mr. Cullen then argued to the court that his client, T.B., did not want to appeal the
juvenile court’s neglect finding. T.B., who by then was seventeen years old, testified as follows:
Well, I don’t really have no objections to them appealing because I
didn’t want to appeal it. I thought everything that they found
downstairs in the Court was true. I didn’t have no problem against
what they found. And my decision on it, I just think it’s stupid
because how can they – it’s my fault when I did what I did when I
was pregnant or whatever the case may be, and I don’t think that
DSS should be held - held accountable for doing what – for my
actions. So I don’t know why he really appealed it because I didn’t
want to appeal it. I didn’t.
There followed a lengthy discussion between the court and legal counsel for the parties over
whether the scope of Mr. Dover’s original appointment to act as T.B.’s guardian ad litem in
T.B.’s CHINS case and subsequent foster care proceedings included a similar appointment to act
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for T.B. in the separate proceeding to resolve the Department’s allegations that her child,
T.M.B., was an abused or neglected child and to establish an appropriate foster care plan for
T.M.B. Though the trial court did not expressly rule on this question, we find that an acceptance
of Mr. Dover’s view of the scope of his appointment is implicit in the fact that Mr. Dover was
permitted to remain in the case, to make arguments, and to examine witnesses. 2 The Department
also stated, with no objection from Mr. Dover or Mr. Cullen, that T.B. had decided to give
T.M.B. up for adoption and that all parties would seek, in the juvenile court, a new foster care
order for T.M.B., with the new goal of adoption.
The Department called one witness, Leslie Jerkins, a child protective services worker for
the City of Alexandria, who testified she was assigned to T.B.’s foster care case in June 2008 and
that T.B. later admitted to her that she smoked marijuana while she was pregnant on December
31, 2008. During Mr. Dover’s cross-examination of Ms. Jerkins, the court inquired of the parties
whether they might all agree on a disposition of the case, given that none of the parties intended
to seek enforcement of the foster care plan Mr. Dover had appealed from juvenile court, with the
goal of returning T.M.B. to T.B.’s custody, and the representations of counsel that the parties had
agreed to seek a new foster care order with the goal of adoption. After a brief recess, the
representatives of all parties, including Mr. Dover, as guardian ad litem for T.B., assented to an
order remanding the case to the juvenile court for the filing of a new foster care plan, with the
goal of adoption. As an evidentiary basis for the proposed order, the court accepted a proffer
from the Department that Taren Lambert would testify that T.B. had indicated her belief that
adoption was in T.M.B.’s best interests because T.B. could not provide an appropriate home for
T.M.B. within the statutory time frame. Everyone present agreed that the trial court should issue
this order, except Mr. Dover, who agreed to the new order remanding the case to the juvenile
2
Neither party appealed this implicit ruling, so we express no opinion on whether the
trial court decided it correctly.
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court for a new foster care plan, but asked the court to note his “objection to the adjudicatory
order.”
MR. DOVER: Your Honor, may I state the basis for my
objection for the record?
THE COURT: Yes.
MR. DOVER: My objection is based on I would ask for a
finding that under 616.1-228 [sic] as to the
definition of a child, and that my objection
is that I would be asking for a finding that
on January 22, 2009, when T.M.B. or T.B.
was put back into the community her
daughter, T.M.B., was a child under
16.1-228 and was put at risk by being put
back into the community
This appeal followed.
III.
Analysis
According to Code § 17.1-405, only an “aggrieved party” may appeal a final order of a
circuit court involving the control or disposition of a child. The requirement that a party must be
“aggrieved” by the decision he or she seeks to appeal, like the related doctrines of mootness and
standing, exists to prevent courts from issuing advisory opinions or deciding abstract questions
not essential to the resolution of the specific cases before them. Cf. Commonwealth v. Harley,
256 Va. 216, 219-20, 504 S.E.2d 852, 854 (1998); Harbor Cruises, Inc. v. State Corp. Comm’n,
219 Va. 675, 250 S.E.2d 347 (1979); Hamer v. Commonwealth, 107 Va. 636, 637-38, 59 S.E.
400, 400 (1907). As a United States Court of Appeals said of similar federal prudential standing
requirements, “[t]hese are rules of judicial self-restraint and are applied to further preserve ‘the
proper - and properly limited - role of the courts in a democratic society.’” Wright v.
BankAmerica Corp., 219 F.3d 79, 86 (2d Cir. 2000) (quoting Allen v. Wright, 468 U.S. 737, 750
(1984)).
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The essential problem with this appeal concerns the argument of T.B.’s guardian ad litem
and the specific relief he seeks from this Court. As a general matter, a guardian ad litem may
appeal an adverse ruling. See Stanley v. Fairfax Cty. Dept. of Social Serv., 242 Va. 60, 62, 405
S.E.2d 621, 622 (1991); Givens v. Clem, 107 Va. 435, 437, 59 S.E. 413, 414 (1907). And, like
every guardian ad litem, Mr. Dover has an obligation to “faithfully represent the . . . interests of
the person under a disability for whom he is appointed.” Code § 8.01-9. Thus, T.B.’s own
statement to the trial court – that she was satisfied with the result of her case in the juvenile court
and did not want Mr. Dover to appeal her case to the circuit court – does not necessarily prevent
her guardian ad litem from pursuing a further appeal to this Court. It might be appropriate to do
so, if the guardian ad litem believes in good faith that such an appeal is in his ward’s interest. 3
But in his brief, Mr. Dover does not ask us to reverse the trial court’s final order in this case, i.e.,
the order finding that T.M.B. was an abused or neglected child pursuant to Code § 16.1-228.
Instead, the conclusion of appellant’s brief reads as follows:
Wherefore, for the foregoing reasons, it is respectfully requested
that this Honorable Court rule that a viable fetus is a child or entity
subject to the protection of the Court within the meaning of
Virginia Code Section 16.1-228. It is respectfully requested that
this Honorable Court further find that T.M.B. was abused or
neglected or put at risk, by Agency action, in violation of her rights
under the Due Process Clause of the Fourteenth Amendment.
Brief of Appellant at 23. We cannot issue the ruling appellant seeks while remaining faithful to
the following principle: ‘“The desire to obtain sweeping relief cannot be accepted as a substitute
for compliance with the general rule that the complainant must present facts sufficient to show
3
We express no opinion as to whether it was in T.B.’s or in T.M.B.’s best interests for
T.M.B. to be adopted or to remain in the custody of T.B., as that issue is not before us. We do
note that it is difficult to imagine why it would be in T.B.’s interest for her guardian ad litem to
seek a ruling from this Court that T.M.B., as a viable fetus, was an abused or neglected child for
the purposes of Code § 16.1-228. On brief and at oral argument, Mr. Dover has consistently
failed to explain why his ward’s interest is best served by seeking a ruling from this Court that
would sustain the result of the trial court’s order, while substituting his suggested rationale for
the trial court’s reasoning.
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that his individual need requires the remedy for which he asks.’” Schlesinger v. Reservists
Comm. To Stop the War, 418 U.S. 208, 221-22 (1974) (quoting McCabe v. Atchison, T. &
S.F.R. Co., 245 U.S. 151, 164 (1914)). And we believe the requirement that only an “aggrieved
party” may appeal a circuit court’s final order, and specifically the interpretation of the term
“aggrieved party” in the Supreme Court’s decision in Harley, 256 Va. 216, 504 S.E.2d 852,
compels us to dismiss this appeal without considering the merits of Mr. Dover’s ostensible
question presented.
The defendant in Harley was convicted of several offenses, and he appealed, arguing that
the circuit court erred in denying his motion that a transcript of his prior suppression hearing be
produced for him at state expense. Id. at 217, 504 S.E.2d at 852-53. A panel of this Court
agreed with the defendant, but affirmed his conviction on the grounds that the error was
harmless. Harley v. Commonwealth, 25 Va. App. 342, 350, 488 S.E.2d 647, 650 (1997). Even
though this Court had affirmed the defendant’s convictions, the Commonwealth sought further
review in the Supreme Court of the Court of Appeals’ ruling that the defendant was entitled to a
transcript of his suppression hearing at state expense. Harley, 256 Va. at 218, 504 S.E.2d at 853.
The Supreme Court, however, dismissed the Commonwealth’s appeal, holding that the
Commonwealth was not an “aggrieved party” under former Code § 17-116.08 (now Code
§ 17.1-411). Id. “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.” Id. at 219, 504 S.E.2d at 853.
The Commonwealth is apprehensive, of course, about the effect
the Court of Appeals’ decision will have upon future cases. But
the Commonwealth’s concerns are hypothetical and can only be
based, at best, upon speculation and conjecture. Its apprehension,
therefore, is not sufficient to qualify it as a “party aggrieved”
within the meaning of Code § 17-116.08 and the explication given
the word “aggrieved” in the case of Virginia Beach Beautification
Commission v. Board of Zoning Appeals, [231 Va. 415, 344
S.E.2d 899 (1986)]. Neither the statute nor the case can be read to
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provide the Commonwealth a present appeal based upon the
apprehension that it will suffer the imposition of some future
burden.
Id. at 219, 504 S.E.2d at 854.
Through her guardian ad litem, T.B., like the Commonwealth in Harley, seeks to appeal
the trial court’s ruling without seeking to change the result of that ruling. It is true that, in an
appropriate case, an appellee may argue that the trial court reached the correct result, albeit for
the wrong reason, see Perry v. Commonwealth, 55 Va. App. 122, 128, 684 S.E.2d 227, 229-30
(2009), but an appellee, by definition, is not a party aggrieved by the earlier decision. Thus, like
the Commonwealth in Harley, T.B. “invites this Court to render an advisory opinion on a moot
question based upon speculative facts. This is an exercise in which this Court traditionally
declines to participate.” Harley, 256 Va. at 219, 504 S.E.2d at 854. 4
The Department and Mr. Showells, as guardian ad litem for T.M.B., argue that Mr. Dover
failed to adequately preserve his question presented for appeal. Given our determination that
T.B. is not an “aggrieved party,” there is no need for us to consider this question. Code
§ 17.1-405 concerns this Court’s appellate jurisdiction, and jurisdiction is always a threshold
question. See Commonwealth v. Southerly, 262 Va. 294, 297, 551 S.E.2d 650, 651 (2001);
Parrish v. Jessee, 250 Va. 514, 520, 464 S.E.2d 141, 145 (1995). Thus, it is necessary for us to
consider whether a party has properly preserved a question for appeal only after this Court’s
jurisdiction has been established.
4
Notwithstanding the Harley Court’s reference to the mootness doctrine in the text
above, it is unnecessary for us to decide whether this appeal must also be dismissed as moot. We
hold only that, given Mr. Dover’s arguments and requested relief, T.B. is not an “aggrieved”
party within the meaning of Code § 17.1-405.
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IV.
Conclusion
For the reasons above, we hold that, given T.B.’s argument and the relief she seeks on
appeal, she is not an aggrieved party within the meaning of Code § 17.1-405. This appeal is,
therefore, dismissed.
Dismissed.
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