Comprehensive Services Act Office, etc v. J. M.

• Court: Court of Appeals of Virginia
• Decided: August 3, 1999
• Docket: 1620982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia

COMPREHENSIVE SERVICES ACT OFFICE OF THE CITY OF RICHMOND MEMORANDUM OPINION * BY v. Record No. 1620-98-2 JUDGE RICHARD S. BRAY AUGUST 3, 1999 J. M. 1

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge

Alexandra Silva, Assistant City Attorney (Keith A. May, Assistant City Attorney, on brief), for appellant.

Linda Mallory Berry; Adrienne E. Volenik, Guardian ad litem (Elizabeth L. Fowler, Certified Third-Year Student; Office of the Public Defender; Mental Disabilities Law Clinic, T.C. Williams School of Law, on brief), for appellee.

The Comprehensive Services Act Office (CSA) appeals the

decision of the trial court ordering it to “immediately pursue

and locate residential placement for [J.M.] . . . funded by the

[CSA] pursuant to [Code §] 2.1-757(E).” CSA contends that (1)

the trial court erroneously denied a hearing de novo on appeal

from the juvenile and domestic relations district court (J&DR),

(2) the J&DR acted without jurisdiction and all attendant orders

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 The appellee in this case shall be referred to as “J.M.” are “void and without effect,” (3) the order improperly required

CSA funding for services to J.M. contrary to the applicable

Individualized Educational Program (IEP), and (4) the court

unreasonably infringed on the legislative branch in violation of

the separation of powers. 2 We find that the CSA was entitled to

an evidentiary hearing and, therefore, reverse the disputed

order, and remand the proceedings to the circuit court for

further reconsideration in accordance with this opinion. 3

On May 13, 1997, the guardian ad litem (GAL) for J.M.

lodged a petition with the J&DR alleging that J.M., then age 17,

was “a child in need of supervision, subject to compulsory

attendance in that he is habitually truant from school without

justification despite reasonable efforts to effect his regular

attendance.” On May 15, 1997, the J&DR found J.M. “in need of

supervision,” and referred the matter to a family assessment and

planning team (FAPT) to evaluate the child’s service needs

pursuant to Code § 16.1-278.5. 4 The J&DR thereafter conducted

several hearings in a continuing review and consideration of the

2 At oral argument, the CSA abandoned its contention on brief that J.M., age 18 on June 4, 1997, was no longer a “child” eligible for services in the instant cause. 3 Because we are unwilling to anticipate the result of a proper hearing of the instant cause before the trial court, we decline to address the remaining arguments of the CSA on appeal. 4 The CSA Office is the Richmond government agency that oversees family assessment and planning teams to evaluate children in need of supervision.

- 2 - petition and, on February 3, 1998, ordered residential placement

for J.M., funded by the CSA pursuant to Code § 2.1-757(E). 5 See

Fauquier County Dep’t of Soc. Servs. v. Robinson, 20 Va. App.

142, 146-47, 455 S.E.2d 734, 736 (1995). The CSA Office

appealed the order to the trial court in accordance with Code

§ 16.1-278(A). In a subsequent pretrial motion, J.M. and the

GAL urged the trial court to limit the appeal to consideration

of the J&DR’s authority to order “the CSA to pursue, locate, and

fund a residential placement for [J.M.] . . ., in that he is

currently 18 years of age and his Individual Education Plan

(IEP) does not specify residential services.” The court granted

the motion and refused to allow the CSA to introduce evidence,

thereby denying the CSA a de novo evidentiary hearing on any

issue then on appeal.

Following argument on the restricted legal issue, the court

concluded that the CSA “was not a party to the . . . juvenile

5 Code § 2.1-757(E) directs that,

[i]n any matter properly before a court wherein the family assessment and planning team has recommended a level of treatment and services needed by the child and family, the court shall consider the recommendations of the family assessment and planning team. However, the court may make such other disposition as is authorized or required by law, and services ordered pursuant to such disposition shall qualify for funding under this section.

- 3 - court proceedings,” had a limited right of appeal pursuant to

Code § 16.1-278(A), and ordered it to immediately pursue, locate

and fund a residential placement for J.M., consistent with the

original J&DR order. The CSA Office appeals to this Court,

complaining first that the court erroneously refused to

entertain a de novo appeal. In response, J.M. argues, inter

alia, that the CSA’s appeal was limited by Code § 16.1-278 to

“what the court specifically ordered with respect to that

agency.”

Pursuant to Code § 16.1-278(A), a “judge may order, after

notice and opportunity to be heard, . . . any governmental

agency . . . to render only such information, assistance,

services and cooperation as may be provided for by state or

federal law or an ordinance of any city, county or town.” The

agency “may appeal such order to the circuit court in accordance

with Code § 16.1-296.” Code § 16.1-278(A) (emphasis added). In

considering the issues properly before the court on appeal, the

“proceedings . . . shall conform to the equity practice where

evidence is heard ore tenus.” Code § 16.1-296(F).

Additionally, “[t]he circuit court may affirm or reverse the

order of the juvenile court. Upon reversal, the circuit court

may remand the case to the [J&DR] for an alternative

disposition.” Code § 16.1-278(A).

Code § 16.1-278 afforded the CSA an appeal to the circuit

court for review of the disposition component of the J&DR order,

- 4 - which required the CSA to provide residential placement for J.M.

The statute confers the circuit court with authority to either

affirm or reverse such order on appeal, after hearing evidence

ore tenus in accordance with Code § 16.1-296(F). Thus, in

adjudicating the instant appeal, the CSA was entitled to an

evidentiary hearing on the J&DR’s order to the CSA affecting the

residential placement. When the trial court refused to hear and

consider evidence pertinent to the disposition component of the

J&DR order, the CSA was denied its statutory remedy.

The CSA also contends that the J&DR was without

jurisdiction over the matter because the GAL failed to comply

with the intake procedure prescribed by Code § 16.1-260.

However, when acting upon a petition, a “[f]ailure to comply

with the procedures set forth in this section shall not divest

the juvenile court of jurisdiction granted it in § 16.1-241.” 6

Code § 16.1-260(I); cf. Rader v. Montgomery County Dep’t of Soc.

Servs., 5 Va. App. 523, 527, 365 S.E.2d 234, 236 (1988) (Code

§ 16.1-260(I), formerly Code § 16.1-260(F), does not waive

requirement of the filing of the petition). Here, the J&DR

acted on a petition of the GAL filed with the court and,

therefore, exercised jurisdiction over the proceedings,

notwithstanding any latent procedural defect.

6 Code § 16.1-241 confers jurisdiction to the J&DR over all proceedings involving the disposition of a child who is alleged to be in need of supervision.

- 5 - Accordingly, we reverse the disputed order and remand the

cause to the trial court for a limited hearing and adjudication,

consistent with Code § 16.1-278 and this opinion, if the CSA be

so advised.

Reversed and remanded.

- 6 -