Lewis v. Culpeper County Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia

ALLEN LEWIS
OPINION BY
v. Record No. 2575-06-4 JUDGE LARRY G. ELDER
JULY 31, 2007
CULPEPER COUNTY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge

V. R. Shackelford, III (Shackelford, Thomas & Gregg, P.L.C., on
briefs), for appellant.

Robert F. Beard for appellee.

J. Michael Sharman (Commonwealth Law Offices, P.C., on brief),
Guardian ad litem for the infant child.

Allen Lewis appeals from a decision terminating his parental rights to his daughter, V.L.

On appeal, he contends the circuit court improperly exercised jurisdiction over the matter

following entry of a nonsuit at the request of the Culpeper County Department of Social Services

(DSS). He argues that DSS was instead required to refile in the juvenile and domestic relations

district court. He also contends that DSS failed to file a foster care service plan documenting

that termination of his parental rights was in V.L.’s best interests. We conclude the circuit court

lacked jurisdiction over the petition filed after DSS’s nonsuit. Thus, we vacate the order

terminating Lewis’s parental rights to V.L. and dismiss the petition. Because we dismiss, we do

not consider Lewis’s claim that the foster care plan DSS filed failed to document that terminating

Lewis’s parental rights was in V.L.’s best interests.
 I.

BACKGROUND1

V.L. was born on January 24, 2005, at a time when her older brother, A.L., was already

in the custody of DSS and living in a foster home. V.L.’s mother, Sally Butler, had left a

court-ordered substance abuse program approximately two months prior to giving birth to V.L.

and voluntarily relinquished custody of V.L. to DSS two days after V.L.’s birth. The foster care

plan prepared by a DSS case worker on January 28, 2005, indicated Ms. Butler signed a

permanent entrustment agreement with DSS and “wishe[d] to see [V.L.] placed and adopted by

the same foster family that is caring for [A.L.],” Ms. Butler’s older child. The plan noted that at

the time Butler entrusted V.L. to DSS, “services were available” to Butler but “she chose not to

receive them by leaving her treatment program.” It also noted that when V.L. was born, Butler

tested positive for cocaine and admitted to hospital personnel that she used cocaine,

amphetamines, marijuana, and alcohol while pregnant with V.L. As to Lewis, the plan indicated

only that “[f]ather was incarcerated[;] therefore he did not take part in the planning.”

On July 1, 2005, DSS filed in the juvenile and domestic relations district court (J&DR

court) a petition for the involuntary termination of Lewis’s parental rights to V.L. On August 23,

2005, the J&DR court granted DSS’s petition terminating Lewis’s parental rights, and Lewis

1
Both DSS and the child’s guardian ad litem contend this Court should not consider the
appeal because Lewis failed to include all relevant material in the appendix, particularly the
foster care service plan and the transcript of the trial court’s ruling from the bench. However,
because the relevant evidence and transcript are part of the record on appeal, we consider
Lewis’s questions presented. See Rule 5A:25(c), (h) (providing that the “appendix shall include”
specified items and that “[i]t will be assumed that the appendix contains everything germane to
the question presented” but that “[t]he Court of Appeals may . . . consider other parts of the
record” (emphasis added)); see also Patterson v. City of Richmond, 39 Va. App. 706, 717, 576
S.E.2d 759, 764-65 (2003) (noting importance of presenting an appendix that contains all parts
of record “essential to the resolution of the issue” and stating that in absence of certain exhibits,
“we will not decide the issue,” but not discussing provision of Rule 5A:25(h) permitting court, in
its discretion, to consult material contained in record but not in appendix).
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appealed. At a hearing in the circuit court on January 3, 2006, on appeal of case number “J&DR

2005-C-174,” DSS moved to nonsuit the termination petition. The trial court granted the request

and entered an order to that effect on February 10, 2006.

On February 9, 2006, DSS filed a new petition for involuntary termination of Lewis’s

parental rights, indicating Lewis was an inmate at Haynesville Correctional Center and had “a

projected release date” of June 15, 2007. DSS filed that petition in the circuit court rather than

the J&DR court.

Lewis, through his guardian ad litem, moved to dismiss the termination petition filed in

circuit court, alleging that pursuant to Code § 16.1-241, the J&DR court was the only court with

jurisdiction over the termination petition following DSS’s nonsuit. He argued that although

Code § 16.1-244 provides the J&DR court and the circuit court with concurrent jurisdiction in

certain matters, it did not cover termination proceedings and that, pursuant to the nonsuit statute

and Code § 16.1-241(A)(5), the J&DR court was the only court with original jurisdiction over a

termination petition, even following a nonsuit in the circuit court. The circuit court denied the

motion to dismiss.

Lewis also objected to the termination proceedings on the ground that no foster care plan

had been filed that “document[ed] termination of [Lewis’s] parental rights as being in the best

interests of the child.” He argued the foster care plan of January 28, 2005, was “an appropriate

foster care plan for [Sally Butler, V.L.’s mother],” but was “not an appropriate foster care plan

that deals with [Lewis’s] rights.” The court treated the objection as a motion to strike DSS’s

evidence and denied it.

The trial court ultimately ruled that clear and convincing evidence supported termination

based on both (1) what it found to be Lewis’s failure, without good cause, to remedy

substantially the conditions that led to or required V.L.’s foster care placement notwithstanding

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appropriate efforts, and (2) the prior termination of Lewis’s residual parental rights to another of

his children, V.L.’s older brother, A.L.2 The court also noted the uncertainty that Lewis would

be able to assume care for V.L. even upon his release from incarceration.

II.

ANALYSIS: JURISDICTION FOLLOWING NONSUIT

Code § 8.01-380 provides in relevant part as follows:

After a nonsuit no new proceeding on the same cause of action or
against the same party shall be had in any court other than that in
which the nonsuit was taken, unless that court is without
jurisdiction, or not a proper venue, or other good cause is shown
for proceeding in another court, or when such new proceeding is
instituted in a federal court.

Lewis contends that the circuit court lacked authority to act on DSS’s termination petition filed

February 9, 2006, because, under the language of Code § 8.01-380, “that court [was] without

jurisdiction.” We agree.

Code § 16.1-241 provides in relevant part as follows:

Except as hereinafter provided, each [J&DR] court shall have,
within the limits of the territory for which it is created, exclusive
original jurisdiction . . . over all cases, matters and proceedings
involving:

A. The custody, visitation, support, control or disposition
of a child:

* * * * * * *

5. Where the termination of residual parental rights
and responsibilities is sought. In such cases jurisdiction
shall be concurrent with and not exclusive of courts having
equity jurisdiction [e.g., circuit courts], as provided in
§ 16.1-244.

2
The termination of Lewis’s parental rights to A.L. was appealed and was reversed by
this Court on December 12, 2006. See Lewis v. Sharman, G.A.L., No. 1198-06-4 (Va. Ct. App.
Dec. 12, 2006). However, on appeal, Lewis has not asserted this reversal as a basis for reversal
in his case involving V.L.
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Code § 16.1-244 provides, inter alia, that “[n]othing contained in this law shall deprive any other

court of the concurrent jurisdiction . . . to determine the custody, guardianship, visitation or

support of children when custody, guardianship, visitation or support is incidental to the

determination of causes pending in such courts.” Code § 16.1-244(A). In a suit for divorce, for

example, an issue of “custody, guardianship, visitation or support of children” might qualify as

incidental. See id. (setting out impact of circuit court’s exercise of this “incidental” jurisdiction

in divorce suit on juvenile court’s ongoing jurisdiction).

Interpreting the interplay between Code §§ 16.1-241 and -244 in Willis v. Gamez, 20

Va. App. 75, 455 S.E.2d 274 (1995), we stated:

[A]lthough concurrent jurisdiction to terminate parental rights
might exist in some cases, the record does not establish the circuit
court’s jurisdiction in this case. Even if we assume that a
termination of residual parental rights involves the “custody,
guardianship, visitation or support of children,” the record in this
case does not establish that a cause was pending in the circuit court
to which the father’s petition would be “incidental” to a
determination of that cause [sic].

Id. at 80, 455 S.E.2d at 277; see Church v. Church, 24 Va. App. 502, 505-08 & n.2, 483 S.E.2d

498, 499-501 & n.2 (1997) (reversing trial court’s conclusion that Code §§ 16.1-241(A)(5) and

16.1-244 gave court granting divorce jurisdiction to terminate parental rights in same

proceeding).

Similarly, nothing in the record in DSS’s case against Lewis concerning V.L. indicates

that any cause was pending in the circuit court to which the termination of Lewis’s parental

rights to V.L. might be “incidental.” The only proceeding ever pending in the circuit court was

the termination petition itself. Thus, the circuit court had no jurisdiction to entertain DSS’s new

termination petition unless some sort of “residual” circuit court jurisdiction survived the granting

of the nonsuit.

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 DSS contends that when Lewis noted his appeal of the J&DR court’s ruling on the first

termination petition, the circuit court’s acquisition of jurisdiction to try the matter de novo

constituted the acquisition of original jurisdiction and that the ability to exercise this original

jurisdiction survived DSS’s taking of the nonsuit. It cites Thomas Gemmell, Inc. v. Svea Fire &

Life Insurance Co., 166 Va. 95, 184 S.E. 457 (1936), for this proposition.

We disagree that Gemmell supports such an argument. Gemmell involved a nonsuit

taken following a de novo appeal. The Court noted that a nonsuit “is unsuited to pure appellate

procedure” but explained that a nonsuit might nevertheless be taken in a de novo appeal because

“[a] court which hears a case de novo . . . acts not as a court of appeals but as one exercising

original jurisdiction.” Id. at 97-98, 184 S.E. at 458. The Supreme Court did not hold that a court

hearing an appeal de novo may exercise original jurisdiction following a nonsuit even though it

lacked original jurisdiction in the first instance. We are aware of no case or statute that would

support such a result.

Under settled principles,

“An appeal which brings up the entire cause for trial de
novo in the appellate court operates to annul the [district court’s]
judgment, in the absence of a statute providing otherwise.” 2
R.C.L., p. 118.

“Where the effect of an appeal is to transfer the entire
record to the appellate court for a retrial as though originally
brought therein, the judgment appealed from is completely
annulled, and is not thereafter available for any purpose.” 16
R.C.L., p. 406.

Id. at 99, 184 S.E. at 458 (emphasis added). Similarly, the taking of a nonsuit as to a cause of

action not only “carries down [the] previous rulings and orders in the case” but also “leaves the

situation as if the suit had never been filed.” 6A Michie’s Jurisprudence, Dismissal,

Discontinuance and Nonsuit § 30, at 216 (2001) (emphasis added); see also Dalloul v. Agbey,

255 Va. 511, 515, 499 S.E.2d 279, 282 (1998) (holding entry of nonsuit order rendered “case . . .
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concluded as to all claims and parties”). And as the Supreme Court recognized in Gemmell,

“‘[t]he right of the plaintiff to take a nonsuit or a dismissal of his suit extends to the appellate

court on appeal from a decision of a magistrate and trial de novo.’” 166 Va. at 99, 184 S.E. at

458 (quoting 6 Encyclopedia of Pleading and Practice, p. 867). Thus, absent some controlling

authority to the contrary, where a plaintiff who prevailed in the district court takes a nonsuit in

the defendant’s de novo appeal in circuit court, the combined effect of the principles applicable

to nonsuits and de novo appeals is to nullify the entire suit as if it had never existed in either

court.

Here, DSS has cited no statute or case decision, and we have found none, that we

interpret as either preventing Lewis’s de novo appeal from annulling the J&DR court’s ruling or

reviving that ruling when the circuit court granted DSS’s request for a nonsuit. Further, the

nonsuit statute, Code § 8.01-380, expressly provides that a new proceeding following a nonsuit

may not be filed in the court in which the nonsuit was taken if “that court is without

jurisdiction.” As the Virginia Supreme Court has recognized, “the purpose of the limitation

contained in Code § 8.01-380(A) [is] to prevent a plaintiff from ‘forum-shopping.’” Moore v.

Gillis, 239 Va. 239, 241, 389 S.E.2d 453, 454 (1990). The statute contains no indication of

legislative intent to override other statutory provisions delineating the subject matter jurisdiction

of various courts. See Code § 8.01-380(A) (“After a nonsuit no new proceeding on the same

cause of action or against the same party shall be had in any court other than that in which the

nonsuit was taken, unless that court is without jurisdiction . . . .” (emphasis added)); cf. Connor

v. Rose, 252 Va. 57, 58, 471 S.E.2d 478, 478-79 (1996) (holding that where plaintiff took

nonsuit in general district court in action seeking damages of $4,000 and refiled in circuit court

against same defendant on same cause of action but sought damages of $11,000, an amount in

excess of district court’s jurisdictional limit, circuit court was proper forum for second action).

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 On these facts, the circuit court had jurisdiction only over the de novo appeal of a

termination ruling made in J&DR court. Following Lewis’s appeal and DSS’s nonsuit, the

J&DR court’s underlying termination ruling ceased to exist and did not provide a basis for the

circuit court’s exercise of jurisdiction over the termination petition filed therein on February 9,

2006. Thus, the circuit court lacked jurisdiction to issue the order terminating Lewis’s parental

rights to V.L.

III.

For these reasons, we hold the circuit court lacked jurisdiction over the petition filed after

DSS’s nonsuit and erred in terminating Lewis’s parental rights. We vacate the order terminating

Lewis’s parental rights to V.L. and dismiss the petition. Because we dismiss, we do not consider

Lewis’s claim that the foster care plan DSS filed failed to document that terminating Lewis’s

parental rights was in V.L.’s best interests.3

Reversed and dismissed.

3
See Code § 16.1-283 (providing that a court “may terminate the residual parental rights
of one parent without affecting the rights of the other parent” and that “[n]o petition seeking
termination . . . shall be accepted by the court prior to the filing of a foster care plan . . . which
documents termination of residual parental rights as being in the best interests of the child”);
Strong v. Hampton Dep’t of Soc. Servs., 45 Va. App. 317, 322, 610 S.E.2d 873, 876 (2005)
(holding due process requires strict adherence to statute requiring filing of plan documenting that
termination of parent’s parental rights is in child’s best interests in order to “guarantee[] proper
notice” to that parent); cf. Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333,
340, 417 S.E.2d 1, 5 (1992) (holding that “long-term incarceration does not, per se, authorize
termination of parental rights” but that “it is a valid and proper circumstance which, when
combined with other evidence concerning the parent/child relationship, can support a court’s
finding by clear and convincing evidence that the best interests of the child will be served by
termination”).
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