In re Bates

38 Va. Cir. 515, 1992 WL 884413, 1992 Va. Cir. LEXIS 589

Opinion

By Judge Clifford R. Weckstein

Mr. Kennett, on behalf of L. R. Brown, Jr., and Cheryl Bates Brown, has filed a plea in equity requiring a jury trial pursuant to Virginia Code § 8.01-336(D). This document contains a certificate of mailing to the Commonwealth’s Attorney, but not to Mr. Gray, the guardian ad litem.

Mr. Kennett argues that a plea to jurisdiction is a plea in equity; that by denying that the children who are the subjects of these proceedings were (as the Department of Social Services alleged in a petition) abused, abandoned or neglected, Mr. Brown and Ms. Bates (now Mrs. Brown) deny the jurisdiction of the Juvenile Court; and that, therefore, they are entitled to a chancery jury as a matter of law. This argument is no more than slight of hand. What Mr. Kennett’s clients actually allege is that there is a conflict in the evidence; that the Department of Social Services will not be able to sustain its allegations of abuse, abandonment, or neglect; and that, therefore, the Department should not prevail.

Once the Department has made the allegations necessary to invoke the jurisdiction of the Court, the controversy is one of fact. Therefore, the question of jury vel non is to be decided under Virginia Code § 8.01-336(E), rather than under § 8.01-336(D). For the reasons stated in an opinion that I wrote on February 17, 1989 in cases involving Shelly Elizabeth Nichols, Courtney Ann Wood and Mary Beth Wood, I deny the request for jury trial.