COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
JERAMIE MICHAEL BAKER
OPINION BY
v. Record No. 1436-97-4 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
Clifford Y. Rose (Rose & Wall, P.C., on
brief), for appellant.
Lisa R. McKeel, Assistant Attorney General
(Mark L. Earley, Attorney General; John K.
Byrum, Jr., Assistant Attorney General, on
brief), for appellee.
Jeramie Michael Baker, a juvenile, was transferred to the
circuit court for trial as an adult and was convicted by a jury
of attempted robbery in violation of Code § 18.2-58 and unlawful
wounding in violation of Code § 18.2-51. On appeal, Baker
contends the circuit court lacked jurisdiction to try him as an
adult because the juvenile and domestic relations district court
did not comply with the mandatory notice requirements of Code
§§ 16.1-263 and 16.1-264 concerning the initiation of proceedings
against a juvenile. He argues that the juvenile court's failure
to provide service of process upon his biological father violated
the mandatory requirement of Code § 16.1-263 requiring service of
summonses to the "parents" of the juvenile. We agree.
I.
On March 25, 1996, the Commonwealth filed two petitions in
the juvenile and domestic relations district court charging Baker
with attempted robbery and malicious wounding. The petitions
listed Baker's mother's name and address. On the line for
Baker's father's name and address, the petitions read "UK." A
police officer served the petitions on Baker and his mother and
arrested Baker. On the line on the back of the detention order
which read "Parents notified on ____________," the officer wrote
the date "3/25/96."
A month later, a judge of the juvenile court held a transfer
hearing pursuant to Code § 16.1-269.1. The transfer report
prepared by the Department of Youth and Family Services listed
Donald Michael Baker as Baker's father, noted the father's
address as "Unknown," and supplied no information in the spaces
provided for the father's phone number, occupation, or date of
birth. "In describing his relationship with his biological
father" in a substance abuse evaluation, Baker stated "'I don't
have one.'" However, a psychological evaluation noted Baker's
recent contact with his biological father.
The judge found probable cause to believe Baker had
committed the charged offenses, see Code § 16.1-269.1(A)(2), and
granted Baker's motion for a continuance. At the continued
transfer hearing, the judge found that Baker was "not a proper
person to remain within the jurisdiction of the Juvenile Court"
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and transferred Baker to the circuit court to be tried as an
adult. See Code § 16.1-269.1(A)(4).
Prior to the indictment, Baker filed a motion to dismiss the
charges or remand the case to juvenile court and alleged that the
juvenile court lacked jurisdiction to transfer the case to the
circuit court because the juvenile court failed to comply with
the notice requirements of Code §§ 16.1-263 and 16.1-264. The
circuit court judge overruled the motion, finding "that lack of
notice to . . . the biological father, whose address is unknown,
who would have to be proceeded against by order of publication,
does not deprive the Juvenile and Domestic Relations Court of
jurisdiction."
A grand jury later indicted Baker on the transferred
offenses. At the trial, a jury convicted Baker of attempted
robbery and the lesser offense of unlawful wounding.
II.
Our juvenile statutes reflect "society's special concern for
children," Kent v. United States, 383 U.S. 541, 554 (1966), and
"provide judicial procedures through which the provisions of
th[ese] law[s] are executed and enforced and in which the parties
are assured a fair hearing and their constitutional and other
rights are recognized and enforced." Code § 16.1-227(2). At a
transfer hearing, the juvenile judge answers the "'critically
important' question whether a child will be deprived of the
special protections and provisions" of the juvenile court system
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and determines "vitally important statutory rights of the
juvenile." Kent, 383 U.S. at 553, 556. Therefore, the
procedures for transfer must contain "procedural regularity
sufficient in the particular circumstances to satisfy the basic
requirements of due process and fairness, as well as compliance
with the statutory requirements of" notice to the proper and
necessary parties. Id. at 553; see In re Gault, 387 U.S. 1, 33
(1967). "[T]he requirement that the parents of [a juvenile]
defendant charged with a crime have notification of the time and
place of his [or her] trial and an opportunity to be present has
remained constant." Jones v. Commonwealth, 213 Va. 425, 428, 192
S.E.2d 775, 777 (1972).
In Karim v. Commonwealth, 22 Va. App. 767, 473 S.E.2d 103
(1996) (en banc), we held that the provisions of Code §§ 16.1-263
and 16.1-264, "relating to procedures for instituting proceedings
against juveniles, are mandatory and jurisdictional," and the
failure to "strictly follow" these notice procedures denies a
juvenile defendant "a substantive right and the constitutional
guarantee of due process." 22 Va. App. at 779, 473 S.E.2d at
108-09. In particular, Code § 16.1-263 provides in pertinent
part as follows:
A. After a petition is filed, the court
shall direct the issuance of summonses, one
directed to the juvenile, if the juvenile is
twelve or more years of age, and another to
the parents, guardian, legal custodian or
other person standing in loco parentis, and
such other persons as appear to the court to
be proper or necessary parties to the
proceedings. The summons shall require them
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to appear personally before the court at the
time fixed to answer or testify as to the
allegations of the petition. Where the
custodian is summoned and such person is not
the parent of the juvenile in question, the
parent shall also be served with a summons.
The court may direct that other proper or
necessary parties to the proceedings be
notified of the pendency of the case, the
charge and the time and place for the
hearing.
B. The summons shall advise the parties of
their right to counsel as provided in
§ 16.1-266. A copy of the petition shall
accompany each summons for the initial
proceedings. The summons shall include
notice that in the event that the juvenile is
committed to the Department or to a secure
local facility, the parent or other person
legally obligated to care for and support the
juvenile may be required to pay a reasonable
sum for support and treatment of the juvenile
pursuant to § 16.1-290. Notice of subsequent
proceedings shall be provided to all parties
in interest. In all cases where a party is
represented by counsel and counsel has been
provided with a copy of the petition and due
notice as to time, date and place of the
hearing, such action shall be deemed due
notice to such party, unless such counsel has
notified the court that he no longer
represents such party.
* * * * * * *
E. No such summons or notification shall be
required if the judge shall certify on the
record that the identity of a parent or
guardian is not reasonably ascertainable. An
affidavit of the mother that the identity of
the father is not reasonably ascertainable
shall be sufficient evidence of this fact,
provided there is no other evidence before
the court which would refute such an
affidavit. 1
1
This subsection was amended in 1997, after the trial of this
case, to allow a judge to certify on the record that a parent or
guardian's identity or location is not reasonably ascertainable.
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Code § 16.1-263 (emphasis added). In addition, Code
§ 16.1-264(A) provides in pertinent part as follows:
If after reasonable effort a party other than
the person who is the subject of the petition
cannot be found or his post-office address
cannot be ascertained, whether he is within
or without the Commonwealth, the court may
order service of the summons upon him by
publication in accordance with the provisions
of §§ 8.01-316 and 8.01-317.
A plain reading of Code §§ 16.1-263 and 16.1-264 manifests
legislative intent that both parents be notified and dispenses
with this requirement only when the trial judge has certified on
the record that the identity of a parent is not reasonably
ascertainable. The trial judge made no such certification on
this record. Indeed, the record contains no evidence that any
attempt was made by the trial judge or the Commonwealth to
ascertain the address of the biological father. In fact, at the
hearing on Baker's motion to dismiss or remand back to the
juvenile court, the Commonwealth "conceded that there was no
attempt to give the [biological father] notice."
At the least, the Commonwealth was required to make a
reasonable inquiry as to the address of Baker's biological
father, and, if the address could not be ascertained "[a]fter
reasonable effort," to effect service of the summons by
publication. See Code § 16.1-264. Cf. Unknown Father of Baby
Girl Janet v. Division of Social Services, 15 Va. App. 110, 116,
422 S.E.2d 407, 410-11 (1992) (noting that where "the mother's
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testimony fails to suggest even a clue as to the father's
identity, his whereabouts, or that a reasonable inquiry or search
would successfully identify and locate him," the trial judge
properly certified on the record that father's identity was "not
reasonably ascertainable"). We disagree with the Commonwealth's
assertion, made at oral argument, that the time requirements of
an order of publication "in accordance with the provisions of
[Code] §§ 8.01-316 and 8.01-317," see Code § 16.1-264, cannot be
reconciled with the twenty-one day time limitation specified in
Code § 16.1-277.1. We note that the twenty-one day period in
Code § 16.1-277.1(A) is not absolute because it may be enlarged,
when appropriate, by the trial judge pursuant to other provisions
of the statute. See Code § 16.1-277.1(B) (providing for a period
of 120 days under specified circumstances) and Code
§ 16.1-277.1(D) (stating that "[t]he time limitations provided
for in this section may be extended by the court for a reasonable
period of time based upon good cause shown, provided that the
basis for such extension is recorded in writing and filed among
the papers of the proceedings").
Without either a certification on the record that the
identity of Baker's father was not reasonably ascertainable or
proof of service of the summons upon Baker's father by
publication, the provisions of Code § 16.1-263(A), requiring
service of summonses on the parents of the juvenile, have not
been met. "The provisions in the Code specifying parents of a
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juvenile as proper and necessary parties who must receive notice
are mandatory." Karim, 22 Va. App. at 776, 473 S.E.2d at 107;
see Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739, 743 (1966).
Noncompliance with these requirements necessitates reversal of
Baker's convictions. See Williams v. Commonwealth, 26 Va. App.
776, 781, 497 S.E.2d 156, 159 (1998).
We further note that the history of the amendments to Code
§ 16.1-264 supports the foregoing analysis. Prior to 1991, Code
§ 16.1-264 provided in part as follows:
A. If a party designated in § 16.1-263 A to
be served with a summons can be found within
the Commonwealth, the summons shall be served
upon him in person. However, service of the
summons on one parent in person shall be
deemed sufficient service on both parents in
cases where (i) the child is alleged to be in
need of services or delinquent and custody of
the child is not in issue and (ii) the
serving officer has reasonable grounds to
believe the parents are living together in
the same household, provided a copy of the
summons is served on the parent who was not
served in person by substituted service as
prescribed in § 8.01-296(2) and the serving
officer notes on the return that he believes
the parents are living together.
(Emphasis added). In 1991, the legislature deleted the
italicized portion of the above quoted statutory language. The
statute currently provides as follows:
If a party designated in § 16.1-263 A to be
served with a summons can be found within the
Commonwealth, the summons shall be served
upon him in person or by substituted service
as prescribed in § 8.01-296(2).
Code § 16.1-264(A).
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When we construe statutes, "we assume that the legislature's
amendments to the law are purposeful and not unnecessary."
Broadnax v. Commonwealth, 24 Va. App. 808, 814, 485 S.E.2d 666,
669 (1997). "We will not construe legislative action in a manner
that would ascribe to the General Assembly a futile gesture.
Legislative amendments are presumed as intended to effect a
change in the law." Shaw v. Commonwealth, 9 Va. App. 331, 334,
387 S.E.2d 792, 794 (1990); see Wisniewski v. Johnson, 223 Va.
141, 144, 286 S.E.2d 223, 224-25 (1982). The General Assembly,
by deleting the language "service of the summons on one parent in
person shall be deemed sufficient service on both parents,"
clearly intended that such service would no longer be sufficient
notice to the "parents" of the juvenile. This amendment to Code
§ 16.1-264 and the plain language of Code § 16.1-263(A) that the
"parents" of the juvenile must be served with summonses evince
the legislature's intent that both parents (unless the identity
of one parent is not reasonably ascertainable, see Code
§ 16.1-263(E)) be notified of the juvenile proceedings initiated
against their child. The Commonwealth's argument that service of
a summons on one parent is sufficient is contrary to the General
Assembly's amendment to Code § 16.1-264, which deleted that very
language. "We will not read into the statute language which the
legislature purposefully deleted." Shaw, 9 Va. App. at 334, 387
S.E.2d at 794.
Moreover, Code § 16.1-263(E) states that "[a]n affidavit of
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the mother that the identity of the father is not reasonably
ascertainable shall be sufficient evidence of this fact." If the
legislature intended to require or permit service of a summons
upon only one parent, that part of subsection (E) relating to "an
affidavit of the mother" would be unnecessary because the statute
presupposes the mother is obviously present and available for
service. To interpret subsection (A) as requiring notice to only
one parent would render the language of subsection (E)
superfluous and meaningless. "Under well-established principles
of statutory interpretation, where possible, every word of a
statute must be given meaning." Gray v. Graves Mountain Lodge,
26 Va. App. 350, 356, 494 S.E.2d 866, 869 (1998); see Monument
Assocs. v. Arlington County Bd., 242 Va. 145, 149, 408 S.E.2d
889, 891 (1991).
Because the notice of the initiation of juvenile proceedings
was not properly served on the required parties, the transfer of
jurisdiction was ineffectual and the subsequent convictions are
void. Accordingly, we reverse Baker's convictions and remand to
the circuit court with instructions to remand to the juvenile and
domestic relations district court to take further action if the
Commonwealth be so advised.
Reversed and remanded.
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