COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Kelsey
Argued at Chesapeake, Virginia
MARTIN GARCIA NAJERA
OPINION BY
v. Record No. 1714-05-1 JUDGE D. ARTHUR KELSEY
MAY 23, 2006
CHESAPEAKE DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Harry Dennis Harmon, Jr., for appellant.
John E. Oliver (City of Chesapeake Attorney’s Office, on brief),
for appellee.
Charles H. Staples (Benchmark Legal Services, L.L.C., on brief),
Guardian ad litem for minor child.
Martin Garcia Najera appeals a circuit court order approving a foster care plan
recommending termination of his residual parental rights and adoption of his child. We dismiss
the appeal as moot.
I.
In September 2004, the Chesapeake Juvenile and Domestic Relations District Court (JDR
court) approved a foster care plan recommending termination of Najera’s residual parental rights
and adoption of his son, a child in the custody of the Chesapeake Division of Social Services
(DSS) since his birth in July 2003. In a later proceeding, the same court granted DSS’s petition
to terminate Najera’s residual parental rights concerning the child. For reasons indiscernible
from the record, Najera appealed to the circuit court the JDR court’s decision to approve DSS’s
foster care plan recommendations ⎯ but not the JDR court’s decision to terminate his residual
parental rights. On de novo appeal of the foster care plan decision, the circuit court approved the
plan and found DSS’s recommendations in the child’s best interest. The circuit court also found
that Najera did not appeal the JDR court’s termination decision, and thus, that matter was not
before the circuit court.
Najera appeals the circuit court order to us, arguing that the evidence was insufficient to
sustain the recommendations made in the DSS foster care plan. Najera, however, does not
contest the circuit court’s finding that he had not appealed the JDR court’s order terminating his
residual parental rights. Najera represents that he intended to file an appeal of the termination
decision, but concedes that no record of such an appeal exists.
II.
When a court terminates a parent’s residual rights, the “ties between the parent and child
are severed forever, and the parent becomes a legal stranger to the child.” C. S. v. Virginia
Beach Dep’t of Soc. Servs., 41 Va. App. 557, 564, 586 S.E.2d 884, 887 (2003) (citations and
internal quotation marks omitted); Commonwealth ex rel. Spotsylvania Dep’t of Soc. Servs. v.
Fletcher, 38 Va. App. 107, 562 S.E.2d 327 (2002), aff’d, 266 Va. 1, 581 S.E.2d 213 (2003). The
termination decision must follow the approval of a foster care plan recommending termination.
Code § 16.1-281(A). A preponderance-of-the-evidence standard governs judicial review of the
foster care plan recommendations, while the more stringent clear-and-convincing-evidence
standard applies to the ultimate termination decision. Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 266 & n.3, 616 S.E.2d 765, 769-70 & n.3 (2005). For this reason, it necessarily
follows that a termination decision, if final and unappealed, moots any justiciable contest over a
prior decision to approve DSS’s foster care plan recommendations.
In other words, it no longer matters whether (under a preponderance-of-the-evidence
standard) it is in the child’s best interests for DSS to recommend termination for planning
purposes ⎯ the JDR court has already terminated Najera’s parental rights, finding (under a
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clear-and-convincing-evidence standard) that the child’s best interests require termination. The
DSS plan to terminate, therefore, has been superseded by the judicial act of termination. By not
appealing the termination order, Najera ended any further judicial review of that issue and, a
fortiori, put to rest any litigable controversy over DSS’s plan for termination. See, e.g., In re
Jessica K., 79 Cal. App. 4th 1313, 1316-17 (Cal. Ct. App. 2000) (holding that a final, unappealed
termination order renders moot an appeal of a family court order preceding the termination).
It is not that simple, Najera argues. A successful challenge on appeal of the DSS plan for
termination, Najera reasons, would enable him to collaterally attack as void the unappealed JDR
termination order. We disagree. Whether a judicial order can be attacked as void “turns on the
subtle, but crucial, difference between the power of a court to adjudicate a specified class of
cases, commonly known as ‘subject matter jurisdiction,’ and the authority of a court to exercise
that power in a particular case.” De Avies v. De Avies, 42 Va. App. 342, 345, 592 S.E.2d 351,
352 (2004) (en banc) (citations omitted). “This distinction guards against the faux elevation of a
court’s failure ‘to comply with the requirements for exercising its authority to the same level of
gravity as a lack of subject matter jurisdiction.’” Id. at 345-46, 592 S.E.2d at 352. In making
that distinction, we “focus on the statutory language delegating power to the courts to decide the
issue and the legislative design it reveals.” Id. at 346, 592 S.E.2d at 353.
In Code §§ 16.1-281 through 16.1-282.2, the legislature delegated power to JDR courts to
review, approve, and disapprove DSS foster care plans. The authority to terminate residual
parental rights comes from Code § 16.1-283. True, the termination decision must sequentially
follow (as it did here) the filing of a foster care plan recommending termination. See Strong v.
Hampton Dep’t of Soc. Servs., 45 Va. App. 317, 610 S.E.2d 873 (2005). But nothing in any of
these enabling statutes expressly states or implicitly reveals a legislative intent to render a final,
unappealed termination order subject to what is in effect a condition subsequent ⎯ appellate
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affirmance of the earlier order approving the DSS foster care plan. Subject matter jurisdiction
turns on the “court’s power to adjudicate a class of cases or controversies,” Jenkins v. Director,
Va. Ctr. for Behav. Rehab., 271 Va. 4, 13, 624 S.E.2d 453, 458 (2006), and cannot be
conditioned upon events occurring after the adjudication. As Chief Justice Marshall put it, such
jurisdiction “depends upon the state of things at the time of the action brought” and, “after
vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance, 22 U.S. 537, 539
(1824); see also Keene Corp. v. United States, 508 U.S. 200, 207 (1993); Freeport-McMoRan,
Inc. v. KN Energy, Inc., 498 U.S. 426, 428 (1991).
Consequently, nothing we could do in this appeal ⎯ even if we reversed outright the
DSS foster care plan recommendations ⎯ would change the fact that Najera has no parental
rights left to protect. In cases where, as here, “an event occurs which renders it impossible for
this court, if it should decide the case in favor of the [appellant], to grant him any effectual relief
whatever, the court will not proceed to a formal judgment but will dismiss the appeal.” Hankins
v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944) (citation omitted); see
also Wallerstein v. Brander, 136 Va. 543, 546, 118 S.E. 224, 225 (1923) (applying “effectual
relief” principle).
In sum, the entry of a final, unappealed order terminating Najera’s residual parental rights
has rendered moot the question whether DSS’s foster care plan should have recommended
termination.
Dismissed.
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