Chapter 1. General Provisions.

§§ 16.1-1 through 16.1-35.1.

Repealed by Acts 1972, c. 708; 1973, c. 546.

Chapter 2. County Courts.

§§ 16.1-36 through 16.1-51.

Repealed by Acts 1972, c. 708; 1973, c. 546.

Chapter 3. Municipal Courts.

§§ 16.1-52 through 16.1-63.

Repealed by Acts 1972, c. 708; 1973, c. 546.

Chapter 4. Joint Operation of Courts.

§§ 16.1-64 through 16.1-69.

Repealed by Acts 1972, c. 708; 1973, c. 546.

Chapter 4.1. District Courts.

Transition Provisions.

Districts; District Courts and Judges.

Administration and Supervision of the District Courts.

Judges and Personnel of the District Courts.

Financing of the District System.

Retention and Disposition of District Court Records.

Article 1. Transition Provisions.

§ 16.1-69.1. Repealing clause.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, as amended, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(1972, c. 708; 1973, c. 546.)

The numbers of §§ 16.1-69.1 through 16.1-69.52 were assigned by the Virginia Code Commission, the numbers in the 1972 act having been 16.1-1.1 through 16.1-1.52.

Cross references. - For constitutional provision as to authority of General Assembly with regard to courts, see Va. Const., Art. IV, § 14.

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16. Miscellaneous Proceedings. § 16.05 General District Courts. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, §§ 41, 43.

CASE NOTES

Repeal of conflicting provisions of municipal charters. - Repealed § 16.1-1, which was identical to this section, codified a well-established principle of municipal law, in that it provided for the repeal, to the extent necessary, of all provisions of municipal charters inconsistent with State law. Jones v. Kelly, 347 F. Supp. 1260 (E.D. Va. 1972).

§ 16.1-69.2. Effect of repeal of Title 16 and amendment of Title 16.1.

The repeal of Title 16 effective as of July 1, 1956, and amendment of Title 16.1 effective as of July 1, 1973, shall not affect any act or offense done or committed, or any penalty or forfeiture incurred, or any right established, accrued or accruing on or before such day, or any prosecution, suit or action pending on that day. Every such pending prosecution, suit and action shall be proceeded in, tried and determined in the same court, or in the court which succeeds to or has its jurisdiction, and any further action taken therein shall be valid and effective for all purposes, whether taken by the court in its present or former name or by the judge thereof under his present or former judicial title. All further proceedings therein shall conform, as far as practicable, to the provisions of Title 16.1, as amended.

(1956, c. 555; 1972, c. 708; 1973, c. 546.)

Editor's note. - Formerly, this section was not set out in the Code of Virginia. At its April 4, 2017, meeting, the Virginia Code Commission approved setting out the full text.

§ 16.1-69.3. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued before July 1, 1973, shall be valid although given, taken or to be returned to a day after such date, or to a court established by this title or the clerk's office thereof, in like manner as if this title, as amended, had been effective before the same was given, taken or issued.

(1956, c. 555; 1972, c. 708; 1973, c. 546.)

Editor's note. - Formerly, this section was not set out in the Code of Virginia. At its April 4, 2017, meeting, the Virginia Code Commission approved setting out the full text.

§ 16.1-69.4. References to former sections, articles or chapters of Title 16 or Title 16.1 as amended.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 16, as such title existed prior to July 1, 1956, or Title 16.1, as such title existed prior to July 1, 1973, are transferred in the same or in modified form to a new section, article or chapter, and whenever such former section, article or chapter is given a new number in this title, all references to any such former section, article or chapter of Title 16 or Title 16.1 appearing elsewhere in this Code other than in this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(1956, c. 555; 1972, c. 708; 1973, c. 546.)

Editor's note. - Formerly, this section was not set out in the Code of Virginia. At its April 4, 2017, meeting, the Virginia Code Commission approved setting out the full text.

§ 16.1-69.5. Meaning of certain terms.

Unless the context should otherwise require, the terms set out in this section shall be construed as follows:

  1. "Courts not of record" shall mean all courts in the Commonwealth below the jurisdictional level of the circuit courts including general district courts and juvenile and domestic relations district courts;
  2. "General district courts" shall mean all courts not of record, except juvenile and domestic relations district courts in counties and cities heretofore designated as county and municipal courts;
  3. "Juvenile and domestic relations district courts" shall mean all courts in counties and cities heretofore designated as juvenile and domestic relations courts or regional juvenile and domestic relations courts;
  4. "District courts" shall mean general district courts and juvenile and domestic relations district courts;
  5. "County courts" and "municipal courts" shall be deemed to refer to general district courts;
  6. "Juvenile and domestic relations courts" and "regional juvenile and domestic relations courts" shall be deemed to refer to juvenile and domestic relations district courts; and
  7. "Chief judge" shall mean that judge so designated for a term to assume primary administrative responsibility for the general district courts or the juvenile and domestic relations district courts in the district served by such judge.

    (1972, c. 708; 1973, c. 546; 1975, c. 334.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Law review. - For essay, see "Terminating Parental Rights through a Backdoor in the Virginia Code: Adoptions Under section 63.2-1202 (H)," 48 U. Rich. L. Rev. 371 (2013).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attachment and Garnishment, § 24; 5A M.J. Courts, §§ 41, 44.

CASE NOTES

General district court is "court of record" for purposes of 26 U.S.C. § 6323(a). - The general district court of Virginia is a "court of record" for the purpose of affording a judgment lien creditor the special protections contained in § 6323(a) of the Internal Revenue Code (26 U.S.C. § 6323(a)). Air Power, Inc. v. United States, 741 F.2d 53 (4th Cir. 1984).

A juvenile and domestic relations court is a court of record for purposes of the provision in the Bankruptcy Code exempting from discharge obligations of the debtor arising out of an order of child support issued by a court of record. Croteau v. Croteau (In re Croteau), 246 Bankr. 254, 2000 Bankr. LEXIS 302 (Bankr. E.D. Va. 2000).

Subject matter jurisdiction. - Because a juvenile and domestic relations (JDR) district court had no jurisdiction to hear a petition related to consent for adoption that was not a parental placement adoption, a circuit court had no subject matter jurisdiction at all to hear the appeal as the circuit court had no more subject matter jurisdiction than the JDR district court had in that court's original proceeding. Knight v. Ottrix, 69 Va. App. 519, 820 S.E.2d 411, 2018 Va. App. LEXIS 312 (2018).

CIRCUIT COURT OPINIONS

Inapplicable to juvenile and domestic relations cases. - That §§ 16.1-106 and 16.1-113 do not apply to appeals from juvenile and domestic relations district courts is made clear by § 16.1-77, which gives general district courts exclusive original jurisdiction of civil cases involving claims of $3,000 or less and concurrent jurisdiction with the circuit courts of civil cases involving claims above $3,000, and by § 16.1-69.5 (b), which defines "general district courts" as all courts not of record, except juvenile and domestic relations district courts. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

OPINIONS OF THE ATTORNEY GENERAL

Demurrer. - A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

Article 2. Districts; District Courts and Judges.

§ 16.1-69.6. Establishment of districts.

On and after July 1, 1973, the Commonwealth shall be divided into districts encompassing all counties and cities in the Commonwealth to provide a basis for the sound and efficient administration of the courts not of record, as follows:

  1. The City of Chesapeake shall constitute the first district.
  2. The City of Virginia Beach shall constitute the second district.

    (2-A) The Counties of Accomack and Northampton shall constitute district two-A.

  3. The City of Portsmouth shall constitute the third district.
  4. The City of Norfolk shall constitute the fourth district.
  5. The Cities of Franklin and Suffolk and the Counties of Isle of Wight and Southampton shall constitute the fifth district.
  6. The Cities of Emporia and Hopewell and the Counties of Prince George, Surry, Sussex, Greensville and Brunswick shall constitute the sixth district.
  7. The City of Newport News shall constitute the seventh district.
  8. The City of Hampton shall constitute the eighth district.
  9. The Cities of Williamsburg and Poquoson and the Counties of York, James City, Charles City, New Kent, Gloucester, Mathews, Middlesex, King William and King and Queen shall constitute the ninth district.
  10. The Counties of Cumberland, Buckingham, Appomattox, Prince Edward, Charlotte, Lunenburg, Mecklenburg and Halifax shall constitute the tenth district.
  11. The City of Petersburg and the Counties of Dinwiddie, Nottoway, Amelia and Powhatan shall constitute the eleventh district.
  12. The City of Colonial Heights and the County of Chesterfield shall constitute the twelfth district.
  13. The City of Richmond shall constitute the thirteenth district.
  14. The County of Henrico shall constitute the fourteenth district.
  15. The City of Fredericksburg and the Counties of King George, Stafford, Spotsylvania, Caroline, Hanover, Lancaster, Northumberland, Westmoreland, Richmond and Essex shall constitute the fifteenth district.
  16. The City of Charlottesville and the Counties of Madison, Greene, Albemarle, Fluvanna, Goochland, Louisa, Orange and Culpeper shall constitute the sixteenth district.
  17. The County of Arlington and the City of Falls Church shall constitute the seventeenth district.
  18. The City of Alexandria shall constitute the eighteenth district.
  19. The City of Fairfax and the County of Fairfax shall constitute the nineteenth district.
  20. The Counties of Loudoun, Fauquier and Rappahannock shall constitute the twentieth district.
  21. The City of Martinsville and the Counties of Patrick and Henry shall constitute the twenty-first district.
  22. The City of Danville and the Counties of Pittsylvania and Franklin shall constitute the twenty-second district.
  23. The Cities of Roanoke and Salem and the County of Roanoke shall constitute the twenty-third district.
  24. The City of Lynchburg and the Counties of Nelson, Amherst, Campbell and Bedford shall constitute the twenty-fourth district.
  25. The Cities of Covington, Lexington, Staunton, Buena Vista, and Waynesboro and the Counties of Highland, Augusta, Rockbridge, Bath, Alleghany, Botetourt and Craig shall constitute the twenty-fifth district.
  26. The Cities of Harrisonburg and Winchester and the Counties of Frederick, Clarke, Warren, Shenandoah, Page and Rockingham shall constitute the twenty-sixth district.
  27. The Cities of Galax and Radford and the Counties of Pulaski, Wythe, Carroll, Montgomery, Floyd, Giles, Bland and Grayson shall constitute the twenty-seventh district.
  28. The City of Bristol and the Counties of Smyth and Washington shall constitute the twenty-eighth district.
  29. The Counties of Tazewell, Buchanan, Russell and Dickenson shall constitute the twenty-ninth district.
  30. The City of Norton and the Counties of Wise, Scott and Lee shall constitute the thirtieth district.
  31. The Cities of Manassas and Manassas Park, and the County of Prince William shall constitute the thirty-first district.

    (1972, c. 708; 1973, c. 546; 1974, c. 297; 1976, c. 126; 1977, c. 5; 1983, c. 149; 1986, c. 405; 1987, c. 624; 1992, c. 744; 2006, c. 861; 2016, cc. 164, 312.)

Editor's note. - Acts 1992, c. 744, which amended this section, provides that the amendment shall be effective at midnight on December 31, 1992, provided that the consolidation of the County of Alleghany and the City of Clifton Forge shall have been ordered by the Circuit Court of Alleghany prior to that date. However, the consolidation proposal failed when it was presented by referendum. Thus, by direction of the Virginia Code Commission, the amendment to this section by Acts 1992, c. 744 was not given effect.

The 2006 amendments. - The 2006 amendment by c. 861 deleted "The City of South Boston and" at the beginning of subdivision (10) and deleted "Clifton Forge" following "Buena Vista" in subdivision (25).

The 2016 amendments. - The 2016 amendments by cc. 164 and 312 are identical, and substituted "City of Lynchburg" for "Cities of Lynchburg and Bedford" in subdivision (24).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 356.

§ 16.1-69.6:1. Number of judges.

For the several judicial districts there shall be full-time general district court judges and juvenile and domestic relations district court judges, the maximum number as hereinafter set forth, who shall during their service reside within their respective districts, except as provided in § 16.1-69.16, and whose compensation and powers shall be the same as now and hereafter prescribed for general district court judges and juvenile and domestic relations district court judges.

The maximum number of judges of the districts shall be as follows:

Juvenile and Domestic General District Court Relations District Judges Court Judges First 4 4 Second 7 6 Two-A 2 1 Third 2 3 Fourth 6 5 Fifth 3 2 Sixth 5 3 Seventh 4 4 Eighth 3 3 Ninth 3 4 Tenth 3 3 Eleventh 3 3 Twelfth 5 6 Thirteenth 6 5 Fourteenth 5 5 Fifteenth 8 9 Sixteenth 4 6 Seventeenth 3 2 Eighteenth 2 2 Nineteenth 12 8 Twentieth 4 3 Twenty-first 2 2 Twenty-second 2 4 Twenty-third 4 5 Twenty-fourth 3 6 Twenty-fifth 4 5 Twenty-sixth 5 7 Twenty-seventh 5 5 Twenty-eighth 3 3 Twenty-ninth 2 3 Thirtieth 2 3 Thirty-first 5 5

The election or appointment of any district judge shall be subject to the provisions of § 16.1-69.9:3.

(1974, c. 1; 1975, c. 41; 1976, c. 56; 1977, c. 5; 1978, c. 2; 1979, c. 7; 1980, c. 93; 1981, c. 26; 1982, c. 4; 1983, c. 1; 1985, c. 44; 1986, c. 75; 1987, c. 16; 1988, c. 22; 1989, c. 44; 1990, c. 112; 1992, c. 91; 1993, cc. 8, 31; 1994, c. 89; 1994, 1st Sp. Sess., cc. 3, 7; 1995, c. 20; 1996, c. 121; 1997, c. 16; 1998, c. 2; 1999, c. 11; 2000, c. 43; 2001, c. 16; 2004, Sp. Sess. I, c. 4; 2005, cc. 189, 228, 951; 2006, cc. 34, 488; 2006, Sp. Sess. I, c. 2; 2014, cc. 812, 822; 2016, c. 728; 2018, cc. 126, 135; 2020, cc. 343, 586.)

Third Judicial District General District Court judgeships. - Acts 2014, cc. 812 and 822 reduced the number of General District judges from 3 to 2. Acts 2014, cc. 812 and 822, cl. 3 provides: "That the provisions of this act reducing the number of authorized judgeships in the General District Court of the Third Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court."

Editor's note.

Acts 1989, c. 44, cl. 2 provides that the portion of Acts 1989, c. 44, relating to the twentieth judicial district is effective April 1, 1989, and that the remainder of the act is effective July 1, 1989.

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1 and Acts 1996, c. 616, c. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2014, cc. 812 and 822 reduced the number of General District judges from 3 to 2. Acts 2014, cc. 812 and 822, cl. 4 provides: "That the provisions of this act reducing the number of authorized judgeships in the General District Court of the Fifth Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court." That number was increased to 3 again in 2018 (and 3 judges currently sit on that bench).

Acts 2014, cc. 812 and 822 reduced the number of General District judges from 8 to 6. Acts 2014, cc. 812 and 822, cl. 5 provides: "That the provisions of this act reducing the number of authorized judgeships in the General District Court of the Thirteenth Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court; except that the number of authorized judgeships in the General District Court of the Thirteenth Judicial District shall be reduced to seven on the effective date of this act." Clause 5 refers to the reduction of judges from 8 to 6 in the 13th General District, with the reduction from 8 to 7 being immediate. This clause has been triggered because there are now only six judges on the bench in the 13th General District.

Acts 2014, cc. 812 and 822 reduced the number of General District judges from 5 to 3. Acts 2014, cc. 812 and 822, cl. 6 provides: "That the provisions of this act reducing the number of authorized judgeships in the General District Court of the Twenty-fifth Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court; except that the number of authorized judgeships in the General District Court of the Twenty-fifth Judicial District shall be reduced to four on the effective date of this act." Effective July 1, 2018, Acts 2016, c. 728, increases the number of General District judges in the Twenty-fifth Judicial District from "3" to "4." A 4th judge was elected in during the 2019 Session.

Acts 2014, cc. 812 and 822 reduced the number of Juvenile and Domestic Relations District judges from 5 to 4. Acts 2014, cc. 812 and 822, cl. 7 provides: "That the provisions of this act reducing the number of authorized judgeships in the Juvenile and Domestic Relations District Court of the Thirteenth Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court." That number was increased to 5 again in 2018, and a 5th judge was elected during the 2019 session.

Acts 2014, cc. 812 and 822 reduced the number of Juvenile and Domestic Relations District judges from 8 to 7. Acts 2014, cc. 812 and 822, cl. 8 provides: "That the provisions of this act reducing the number of authorized judgeships in the Juvenile and Domestic Relations District Court of the Nineteenth Judicial District shall become effective upon the death, resignation, or retirement on or after January 1, 2014, of any judge of that court." Effective July 1, 2018, Acts 2016, c. 728, increases the number of judgeships in the Nineteenth Judicial District from "7" to "8."

Acts 2014, cc. 812 and 822, cl. 10 provides: "That the Chief Justice shall utilize her authority to designate any judge serving in any circuit or district where the number of authorized judgeships is reduced under this act after July 1, 2014, to provide judicial assistance to any circuit or district court, as appropriate."

The 1998 amendment, increased the number of general district court judges in the second district from 6 to 7, increased the number of juvenile and domestic relations district court judges in the third district from 2 to 3, and in the fourth and thirteenth districts from 4 to 5, and deleted the former paragraph following the twelfth district entry which stated: "The juvenile and domestic relations district court judges of the twelfth district shall render assistance on a regular basis to the juvenile and domestic relations court judges of the thirteenth district by appropriate designation."

The 1999 amendment increased the number of Juvenile and Domestic Relations District Court Judges from six to seven in the Second District, increased the number of General District Court Judges from three to four in the Seventh District, increased the number of Juvenile and Domestic Relations District Court Judges from five to six in the Fifteenth District, increased the number of Juvenile and Domestic Relations District Court Judges from three to four in the Sixteenth District, increased the number of Juvenile and Domestic Relations District Court Judges from four to five in the Twenty-fourth District, increased the number of Juvenile and Domestic Relations District Court Judges from three to four in the Twenty-fifth district, and increased the number of Juvenile and Domestic Relations District Court Judges from three to four in the Twenty-sixth district.

The 2000 amendments. - The 2000 amendment by c. 43 increased the number of Juvenile and Domestic Relations District Court Judges in the fourteenth district from three to four; and inserted the paragraph of text between the fourteenth and fifteenth districts.

The 2001 amendments. - The 2001 amendment by c. 16, in the table listing number of judges in a district, under the heading "General District Court Judges" substituted "4" for "3" in the Sixth and Seventeenth district, and under the heading "Juvenile and Domestic Relations District Court Judges" substituted "3" for "2" in the Eighth district and "5" for "4" in the Twelfth district; and deleted "The juvenile and domestic relations district court judges of the fourteenth judicial district shall render assistance on a regular basis to the juvenile and domestic relations district court judges of the twelfth judicial district by appropriate designation" preceding the entries for the "Fifteenth District."

The 2004 amendments. - The 2004 amendment by Sp. Sess. I, c. 4, as amended by Acts 2005, c. 951, and Acts 2006, Sp. Sess. I, c. 2, effective July 1, 2004, in the table listing number of judges in a district, under the heading "Juvenile and Domestic Relations District Court Judges" substituted "7" for "6" in the Fifteenth district and "4" for "3" in the Twenty-seventh district.

The 2005 amendments. - The 2005 amendments by cc. 189 and 228 are identical, and in the table listing number of judges in a district, under the heading "General District Court Judges" substituted "6" for "5" in the Fifteenth district and under the heading "Juvenile and Domestic Relations District Court Judges" substituted "3" for "2" in the Twentieth district.

The 2006 amendments. - The 2006 amendments by cc. 34 and 488 are identical, and in the table listing number of judges in a district, under the heading "General District Court Judges" substituted "11" for "10" in the Nineteenth district, "4" for "3" in the Twentieth district, and "5" for "4" in the Twenty-seventh district and under the heading "Juvenile and Domestic Relations District Court Judges" substituted "4" for "3" in the Seventh district, "5" for "4" in the Fourteenth district, "8" for "7" in the Nineteenth district, and "5" for "4" in the Twenty-sixth district.

The 2014 amendments. The 2014 amendments by cc. 812 and 822 are identical and inserted "maximum" in the first sentence of the first paragraph and in the second paragraph, and rewrote the table.

The 2016 amendments. - The 2016 amendment by c. 728, effective July 1, 2018, substituted "8" for "7" in the number of Juvenile and Domestic Relations District judgeships in the Nineteenth Judicial District and substituted "4" for "3" in the number of General District judgeships in the Twenty-fifth Judicial District.

The 2018 amendments. - The 2018 amendments by cc. 126 and 135 are identical, and in the table, increased by one the number of General District Judges in Two-A, fifth, sixth, twenty-first, and twenty-eighth districts, and increased the number of Juvenile and Domestic Relations Judges by one in the sixth, thirteenth, and thirtieth districts, and decreased the number of Juvenile and Domestic Relations Judges by one in the second, tenth, and fifteenth districts.

The 2020 amendments. - The 2020 amendments by cc. 343 and 586 are identical, and increased the number of General District Court judges in the Nineteenth district from "11" to "12" in the table.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 356.

§ 16.1-69.7. District courts.

On and after July 1, 1973, in every county and city there shall be one court which shall be called the "................................................... (Name of County .......... General District Court" and one court which shall be called the or City) "............................................................ Juvenile and (Name of County or City)

Domestic Relations District Court," and for each such court there shall be one or more judges who shall be called the judge of such general district court or juvenile and domestic relations district court as appropriate. Unless the General Assembly specifically so provides to the contrary, however, no general district court shall be established in any city in which there is no municipal court with general civil or criminal jurisdiction in operation prior to July 1, 1973, and jurisdiction previously exercised in such city by a county court shall be vested in the general district court of such county.

(1972, c. 708; 1973, c. 546.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 356, 372.

§ 16.1-69.7:1. Establishment of certain district courts.

  1. On and after July 1, 1973, there shall be established in the City of Galax, one general district court and one juvenile and domestic relations district court and for each such court there shall be one or more judges who shall be appointed and serve in accordance with Chapter 4.1 (§ 16.1-69.1 et seq.) of Title 16.1. Such courts shall possess all the jurisdiction and exercise all the powers and authority in cases therein granted to district courts according to general law, within the territory which they serve.
  2. Each such judge shall cause to be collected such costs and fees as allowed by law for services performed by judges, clerks, or employees of the district courts. All fines and fees collected shall be accounted for according to general law and city ordinances and paid into the treasury of the city or to the State, whichever may be entitled thereto, pursuant to § 16.1-69.48.

    (1976, c. 319.)

Editor's note. - Formerly, this section was not set out in the Code of Virginia. At its April 4, 2017, meeting, the Virginia Code Commission approved setting out the full text.

§ 16.1-69.8. Existing courts continued and redesignated; exception.

The present system of courts not of record is continued as follows on and after July 1, 1973:

  1. The county court in each county shall continue as the general district court of such county with the same powers and with territorial jurisdiction over such county and over any city within the county for which a municipal court with general civil or criminal jurisdiction or separate general district court has not been established.
  2. The municipal court or courts in each city, excluding juvenile and domestic relations courts, shall continue as the general district court of the city with the same powers and territorial jurisdiction over such city; provided that in the case of more than one such municipal court in operation in any city, all such courts shall be merged on July 1, 1973, and their powers and territorial jurisdiction merged in the general district court.
  3. The juvenile and domestic relations court of each county and city shall continue as the juvenile and domestic relations district court of the county or city with the same powers and territorial jurisdiction as heretofore provided.
  4. The municipal court of any town and/or other court of any town having general civil and criminal jurisdiction however called shall be abolished and all jurisdiction and power conferred upon any such court shall pass to and be exercised by the district courts having jurisdiction over the county wherein the town is located.

    (1972, c. 708; 1973, c. 546; 2018, c. 164.)

Cross references. - For constitutional provision as to authority of General Assembly with regard to courts, see Va. Const., Art. IV, § 14.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2018 amendments. - The 2018 amendment by c. 164, in subsection (b), deleted "courts of limited jurisdiction established pursuant to Chapter 5 ( § 16.1-70 et seq.) of this title and" preceding "juvenile and domestic relations."

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal & Error, § 356.

§ 16.1-69.9. Judges in office continued; terms of judges; how elected or appointed.

Every judge or justice and every associate, assistant and substitute judge or justice of a court not of record in office January 1, 1973, shall continue in office as a judge or substitute judge of such court under its designation as a general district court or juvenile and domestic relations district court until the expiration of the term for which he was appointed or elected, or until a vacancy shall occur in his office or until a successor shall be appointed or elected, whichever is the latter.

Upon the expiration of such terms, or when a vacancy occurs, successors shall be elected only as authorized pursuant to §§ 16.1-69.10 and 16.1-69.14 and for the term and in the manner following:

  1. With respect to terms expiring on or after July 1, 1980, successors to judges shall be elected for a term of six years by the General Assembly as provided in subdivision 2.

    Any vacancy in the office of any full-time district court judge shall be filled for a full term of six years in the manner prescribed herein; provided that such vacancy shall not be filled except as provided in § 16.1-69.9:3.

  2. Full-time district court judges shall be elected by the majority of the members elected to each house of the General Assembly. No person shall be elected or reelected to a subsequent term under this section until he has submitted to a criminal history record search and submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect and reports of such searches have been received by the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary. If the person has not met the requirement of filing in the preceding calendar year a disclosure form prescribed in § 2.2-3117 or 30-111, he shall also provide a written statement of economic interests on the disclosure form prescribed in § 2.2-3117 to the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary. The judges of the circuit court having jurisdiction over the district may nominate a panel of no more than three persons for each judgeship within the district who are deemed qualified to hold the office. The General Assembly may consider such nominations in electing a judge to fill the office but may elect a person not on such panel to fill the office. Nominations shall be forwarded to the clerks of both houses of the General Assembly on or before December 15.
  3. No person with a criminal conviction for a felony shall be appointed as a substitute judge.

    If an appointment is to be made by two or more judges and there is a tie vote, then the senior judge of the circuit court having jurisdiction in the district shall make the appointment.

    (1972, c. 708; 1973, c. 546; 1975, c. 5; 1976, c. 374; 1977, c. 536; 1980, c. 194; 2004, c. 452; 2018, c. 578.)

Editor's note. - The Virginia Code Commission authorized the substitution of "House Committee for Courts of Justice and the Senate Committee on the Judiciary” for "House and Senate Committees for Courts of Justice” twice in subdivision 2. March 10, 2021.

The 2004 amendments. - The 2004 amendment by c. 452 inserted the second sentence in subdivision (c); added subdivision (d); and made minor stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 578 redesignated subdivisions throughout; in subdivision 2, substituted "and submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect and a report of such search has been received" for "and a report of such search has been received" in the second sentence and inserted the third sentence.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

For an article, "Racial Diversity on the Bench: Beyond Role Models and Public Confidence," see 57 Wash. & Lee L. Rev. 405 (2000).

§ 16.1-69.9:1. Appointment, terms, etc., of substitute judges.

  1. Substitute judges shall be appointed by the chief judge of the circuit court having jurisdiction within the district for a term of six years.
  2. Each substitute judge shall be appointed to serve every general district court and every juvenile and domestic relations district court within the judicial district for which the appointment is made.
  3. No person shall be appointed under this section until he has submitted his fingerprints to be used for the conduct of a national criminal records search and a Virginia criminal history records search, submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect, and provided a written statement of economic interests on the disclosure form prescribed in § 2.2-3117 . No person with a criminal conviction for a felony shall be appointed as a substitute judge. (1973, c. 546; 1975, c. 334; 2004, c. 452; 2018, c. 578.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section and the enactment of § 16.1-69.9:01, by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2004 amendments. - The 2004 amendment by c. 452 added subsection (d).

The 2018 amendments. - The 2018 amendment by c. 578 redesignated subdivisions throughout; added "submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect, and provided a written statement of economic interests on the disclosure form prescribed in § 2.2-3117 " at the end of the first sentence in subsection C.

§ 16.1-69.9:2. Vacancies in office of judges; terms of successor judges; appointment while General Assembly not in session.

Whenever a vacancy occurs in the office of a full-time district court judge the successor shall be elected for a full term of six years and upon qualification shall enter at once upon the discharge of the duties of his office. But subject to the provisions of § 16.1-69.9:3, the judges of the circuit having jurisdiction over the district shall have the power while the General Assembly is not in session to fill pro tempore vacancies in the office of full-time district court judges. Appointment to every such vacancy shall be by commission to expire at the end of thirty days after the commencement of the next session of the General Assembly.

(1973, c. 546; 1980, c. 194; 2001, c. 256.)

The 2001 amendments. - The 2001 amendment by c. 256 substituted "while the General Assembly is not in session" for "during the recess of the General Assembly" in the second sentence, and deleted "Such" at the beginning of the last sentence.

§ 16.1-69.9:3. Investigation and certification of necessity before vacancies filled.

When a vacancy occurs in the office of any judge of any district, the vacancy shall not be filled until, after investigation, the Committee on District Courts certifies that the filling of the vacancy is necessary. The Committee shall publish notice of such certification in a publication of general circulation among attorneys licensed to practice in the Commonwealth. No notice of retirement submitted under § 51.1-305 or § 51.1-307 shall be revoked after certification of the vacancy by the Committee. If the Committee certifies that the filling of the vacancy is not necessary, it shall direct the manner of distributing the work created by the vacancy, and the vacancy shall not be filled if not certified as necessary.

(1973, c. 546; 1975, c. 101; 1999, c. 319; 2004, c. 331.)

The 1999 amendment added the second sentence.

The 2004 amendments. - The 2004 amendment by c. 331 inserted the third sentence.

§ 16.1-69.9:4. Same; election of successor judges.

Whenever a vacancy occurs or exists in the office of a full-time district judge while the General Assembly is in session, or whenever the term of a full-time judge of a district court will expire or the office will be vacated at a date certain between the adjournment of the General Assembly and the commencement of the next session of the General Assembly, a successor judge may be elected at any time during a session preceding the date of such vacancy, by the vote of a majority of the members elected to each house of the General Assembly, for a full term of six years and, upon qualification, the successor judge shall enter at once upon the discharge of the duties of his office. However, such successor judge shall not enter upon the discharge of his duties prior to the commencement of his term of office. No person shall be elected or reelected to a subsequent term under this section until he has submitted to a criminal history record search and submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect and reports of such searches have been received by the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary. If the person has not met the requirement of filing in the preceding calendar year a disclosure form prescribed in § 2.2-3117 or 30-111, he shall also provide a written statement of economic interests on the disclosure form prescribed in § 2.2-3117 to the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary.

(1973, c. 546; 1993, c. 368; 2004, c. 452; 2018, c. 578.)

Editor's note. - The Virginia Code Commission authorized the substitution of "House Committee for Courts of Justice and the Senate Committee on the Judiciary" for "House and Senate Committees for Courts of Justice." March 10, 2021.

The 2004 amendments. - The 2004 amendment by c. 452 added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 578 substituted "and submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect and reports of such searches have been received" for "and a report of such search has been received" in the third sentence and added the last sentence.

Law review. - For an article, "Racial Diversity on the Bench: Beyond Role Models and Public Confidence," see 57 Wash. & Lee L. Rev. 405 (2000).

§ 16.1-69.10. Number of judges.

The number of general district court judges and juvenile and domestic relations district court judges, excluding substitute judges, shall be determined as follows:

  1. Judges in office on January 1, 1973, shall be permitted to complete their terms pursuant to § 16.1-69.9;
  2. [Repealed.]
  3. On and after January 1, 1974, the number of judges authorized in each district shall be determined by the General Assembly based on the requirement that all judges whose terms commence on and after July 1, 1980, serve on a full-time basis; and
  4. On and after July 1, 1980, the number of judges authorized in each district by the General Assembly shall be based on the requirement that no district judge whose term commences on or after July 1, 1980, shall be elected to serve in more than one district or to serve both a general district court and juvenile and domestic relations district court in any district; provided, however, that a judge may serve more than one general district court or more than one juvenile and domestic relations district court in one district. The Committee on District Courts shall make a study and report to the General Assembly on or before December 1 of each year on the number of judges needed and the districts for which they should be authorized. If the Committee recommends the creation of an additional judgeship in any district, it shall publish notice of such recommendation in a publication of general circulation among attorneys licensed to practice in the Commonwealth.

    (1972, c. 708; 1973, c. 546; 1980, c. 194; 1999, c. 319.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1999 amendment added the last sentence in subdivision (d).

§ 16.1-69.11. Chief judges; judges; substitute judges.

Judges of the district courts shall be designated as follows:

  1. In each district there shall be one chief general district judge and one chief juvenile and domestic relations district judge who shall serve as such for a term of two years commencing July 1 of the even-numbered years. The chief district judges shall be designated by judges of the district court having jurisdiction in the district. If the designation is to be made by more than one judge and there is a tie vote, then the chief circuit judge having jurisdiction in the district shall make the designation. The incumbent chief judge shall call for an election at the conclusion of the term as chief judge and shall report the results of such election forthwith to the office of the Executive Secretary. The incumbent chief judge may succeed himself;
  2. Each judge, except substitute judges, shall be designated either general district court judge or juvenile and domestic relations district court judge depending on the court he is so designated to serve; the terms "associate judge" and "assistant judge" shall no longer be applicable and wherever such terms appear in the Code of Virginia they shall be deemed to refer to either general district court judges or juvenile and domestic relations court judges as appropriate;
  3. Substitute judges shall continue to be designated as such.

    (1972, c. 708; 1973, c. 546; 1975, c. 334; 1976, c. 374.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

§ 16.1-69.11:1. Acting chief judge.

If the chief judge of a district court is unable to perform the duties required by law, the chief judge shall notify the other judges of such district court, or if the chief judge is unable to notify the other judges, the judge longest in continuous service who is available shall provide such notice, and the judge longest in continuous service who is available shall be the acting chief judge, and perform such duties during the chief judge's absence. If two or more judges of such district court have served for the same period, the judge most senior in years shall be the acting chief judge. Upon assuming such duties, the acting chief judge shall immediately notify the Executive Secretary of the Supreme Court and the other judges of such district court.

When the chief judge is able to resume the duties of chief judge, the chief judge shall immediately notify the Executive Secretary and the other judges of such district court, and thereupon shall resume such duties.

(2010, cc. 560, 596.)

§ 16.1-69.12. Limitations on practice of law by judges.

  1. A general district court judge or juvenile and domestic relations district court judge elected as a full-time judge for a term commencing on or after July 1, 1980, shall be prohibited from engaging in the practice of law.
  2. [Repealed.]
  3. Substitute judges shall not appear as counsel in any civil or criminal case arising out of the circumstances which were involved in any other case brought before them.

    (1972, c. 708; 1973, c. 546; 1980, c. 194.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

CASE NOTES

Purpose. - This section does not deal only with professional responsibility and matters of ethics. Rather, the enactment has as its dominant purpose the aim to prevent prejudice to members of the public who are litigants and to avert unfairness to persons involved in litigation. Blick v. Marks, Stokes & Harrison, 234 Va. 60 , 360 S.E.2d 345 (1987).

The practice of law by judges of courts not of record was not on its face incompatible with the proper administration of justice. Davis v. Sexton, 211 Va. 410 , 177 S.E.2d 524 (1970) (decided under former § 16.1-10).

When contracts arising from violation of subsection (c) void. - The General Assembly intended that sanctions under § 16.1-69.22 and under lawyer disciplinary procedures constitute adequate penalties for violation of subsection (c) of this section. Therefore, it is manifest the legislature did not intend that contracts arising from a bare violation of subsection (c) of this section be void, unless, however, a litigant has been prejudiced by the violation. Blick v. Marks, Stokes & Harrison, 234 Va. 60 , 360 S.E.2d 345 (1987).

Judge appearing as counsel in criminal case. - Former § 16.1-10 did not forbid a judge of the city of Radford from appearing as counsel in a criminal case in the twenty-second judicial circuit. Davis v. Sexton, 211 Va. 410 , 177 S.E.2d 524 (1970) (decided under former § 16.1-10).

Substitute county judge as defense counsel in state felony prosecution. - The duties of the office of a substitute county judge (now general district court judge) did not dictate an inevitable clash of interest when he acted as defense counsel in a state felony prosecution before a state judge in a court of record, under state law, by state prosecuting attorneys. Kost v. Cox, 317 F. Supp. 884 (W.D. Va. 1970) (decided under former § 16.1-20).

§ 16.1-69.13.

Repealed by Acts 2018, c. 164, cl. 2.

Editor's note. - Former § 16.1-69.13, pertaining to compensation and benefits of judges in office on July 1, 1973, for the duration of his term of office, and for each additional consecutive term thereafter, but not longer than July 1, 1980, was enacted by Acts 1972, c. 708, and amended by Acts 1973, c. 546.

§ 16.1-69.14. Number of substitute judges.

The number of substitute judges shall be determined as follows:

  1. Substitute judges in office on June 30, 1975, shall be permitted to complete their terms;
  2. Subject to the expiration of such terms, the Committee on District Courts shall determine the number of substitute judges for each district which shall be necessary for the effective administration of justice. In determining the total number of substitute judges authorized for each district, the Committee shall consider, among other factors, the number of full-time and part-time judges serving the district.

    (1972, c. 708; 1973, c. 546; 1975, c. 334.)

§ 16.1-69.15. Qualifications of judges.

On and after July 1, 1973, every full-time judge and substitute judge of a district court shall be at the time of his appointment or election a person licensed to practice law in this Commonwealth.

(1972, c. 708; 1973, c. 546.)

Law review. - For note, "Limiting Judicial Incompetence: The Due Process Right to a Legally Learned Judge in State Minor Court Criminal Proceedings," see 61 Va. L. Rev. 1454 (1975).

§ 16.1-69.16. Residence requirements.

  1. Every judge or substitute judge of a district court shall, during his term of office, reside within the boundaries of the district in which he serves as set out in § 16.1-69.6; provided, that judges and substitute judges in office on January 1, 1977, or who are otherwise eligible may continue in office and shall be eligible for reappointment or reelection to successive terms in accordance with the provisions of § 16.1-69.10.
  2. Notwithstanding any provision of law to the contrary, the residency requirement set out herein shall not apply to any judge whose residence prior to July 1, 1977, is outside the boundaries of a new district created by § 16.1-69.6, if such judge is a resident in the geographical area which encompassed the prior district. This provision shall also apply to any subsequent term for which he is elected.
  3. When the boundary of a judicial district is changed to create a new judicial district, any duly elected or appointed judge of the existing judicial district may continue to serve as judge of the new judicial district if he resides therein.

    (1972, c. 708; 1973, c. 546; 1977, c. 25; 1991, c. 403.)

§ 16.1-69.17. Oath of office of judges, clerks and others.

Every judge, substitute judge, clerk, deputy clerk, and juvenile and domestic relations probation officer of a juvenile and domestic relations district court shall, before entering upon the duties of his office, take the oath required by law. The oath of the judge and substitute judge shall be taken before a clerk of a court of record to which appeals from his court lie or any judge, and the oath of the clerk and other officers of the court shall be taken before the judge of the court he serves. Any oath taken before a judge or clerk prior to July 1, 1992, and otherwise conforming with this section is valid.

(1972, c. 708; 1973, c. 546; 1992, c. 390; 1992, Sp. Sess., cc. 1, 2.)

Editor's note. - Acts 1992, Sp. Sess., c. 1, cl. 2 provides: "That any oath taken before a judge or clerk prior to the effective date of this act [May 11, 1992] and otherwise conforming with this act is valid, and any official acts of the person taking such an oath are also valid."

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

§ 16.1-69.17:1. Time within which a judge may qualify; failure to do so vacates office.

Any district court judge of this Commonwealth may qualify at any time after receiving his commission and before the expiration of thirty days after the commencement of his term of office; but if he fails to receive his commission until after the commencement of his term of office, he may qualify within thirty days from the date of receiving such commission. If a judge fails to qualify as above provided, his office shall be deemed to be vacant.

(1976, c. 374.)

§ 16.1-69.18. Bonds of judges, clerks, and others handling funds.

Before entering upon the performance of his duties every judge, substitute judge, clerk, deputy clerk or other officer or employee of a district court shall enter into bond before the clerk of a circuit court to which appeals from his court lie, except as hereinafter provided. The bond shall be in a penalty and with corporate surety approved by the judge of such appellate court. No such bond shall be in a penalty of less than $3,000, nor more than $75,000, and all such bonds shall be conditioned for the faithful performance of the duties of the principal. The bonds shall be made payable to the Commonwealth and shall be filed with the clerk of such appellate court. Provided, however, that instead of specific bonds being given as stipulated herein, the Committee on District Courts may in their discretion procure faithful performance of duty blanket bonds for any or all of the districts enumerated in § 16.1-69.6 covering the judges, substitute judges, clerks and other personnel of the several district courts included in such districts and within the penalty limits contained in this section, unless in the discretion of the Committee, bonds with a larger maximum penalty should be obtained. Provided further, that in those instances where specific bonds for judges, clerks, deputy clerks or other officers or employees of a district court are in effect, the Committee on District Courts may, whenever they deem it advisable, terminate such specific bonds upon obtaining a blanket bond covering such court personnel with appropriate refund or credit being made for the unearned premiums on the specific bonds being terminated. A copy of any such blanket bond so procured shall be filed with the Division of Risk Management within the Department of Treasury and with the clerk of the respective circuit courts to which appeals from the decisions of the several district courts may lie. The premiums for such bonds shall be paid by the Commonwealth.

(1972, c. 708; 1973, c. 546; 1974, c. 3; 1975, c. 334; 2002, c. 406.)

The 2002 amendments. - The 2002 amendment by c. 406 substituted "Division of Risk Management within the Department of Treasury" for "State Comptroller" in the next-to-last sentence.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Clerks of Court, § 2.

§ 16.1-69.19. Incompatible offices.

No person shall at the same time hold the office of judge or substitute judge of a district court and the office of magistrate, clerk of a court, sheriff, treasurer, or commissioner of the revenue, or deputy of either of them. A full-time district court judge may not serve as a commissioner of accounts, commissioner in chancery or a marriage celebrant appointed by the circuit court pursuant to § 20-25 , nor shall such judge, during his continuance in office, seek or accept any nonjudicial elective office, or hold any other office of public trust or engage in any other incompatible activity. If any judge of a district court shall accept any office for which he is ineligible under this section, such acceptance shall vacate his office as judge of such court.

(1972, c. 708; 1973, c. 546; 1976, c. 374; 1993, c. 312.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Clerks of Court, § 2.

§ 16.1-69.20.

Repealed by Acts 1973, c. 546.

§ 16.1-69.21. When substitute to serve; his powers and duties.

In the event of the inability of the judge to perform the duties of his office or any of them by reason of sickness, absence, vacation, interest in the proceeding or parties before the court, or otherwise, such judge or a person acting on his behalf shall promptly notify the appropriate chief district judge of such inability. If the chief district judge determines that the provisions of § 16.1-69.35 have been complied with or cannot reasonably be done within the time permitted and that no other full-time or retired judge is reasonably available to serve, the chief district judge may direct a substitute judge to serve as a judge of the court, which substitute may serve concurrently with one or more of the judges of the court or alone. When reasonably necessary, the chief district judge may designate a substitute judge from another district within the Commonwealth. The committee on district courts may adopt policies and procedures governing the utilization of substitute judges. In such event, those policies and procedures will, where applicable, control. While acting as judge, a substitute judge shall perform the same duties, exercise the same power and authority, and be subject to the same obligations as prescribed herein for the judge. A substitute judge shall retain the power to enter a final order in any case heard by such substitute judge for a period of 14 days after the date of a hearing of such case. While serving as judge of the court, the judge or the substitute judge may perform all acts with respect to the proceedings, judgments and acts of any other judge in connection with any action or proceeding then pending or theretofore disposed of in the court except as otherwise provided in this chapter in the same manner and with the same force and effect as if they were his own.

(1972, c. 708; 1973, c. 546; 1983, c. 128; 1984, c. 570; 2017, c. 650; 2020, c. 118.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2017 amendments. - The 2017 amendment by c. 650 deleted the former third sentence, which read: "In designating a substitute judge to serve, the chief district judge shall, whenever possible, select a substitute judge who does not regularly practice law in the court requiring the substitute"; and substituted "When reasonably necessary" for "Where reasonably available" in the third sentence.

The 2020 amendments. - The 2020 amendment by c. 118 inserted the seventh sentence.

OPINIONS OF THE ATTORNEY GENERAL

Consent for medical treatment of minor by substitute judge. - Without a specific appointment, a substitute judge is not a sitting judge, and therefore should not be called upon by a hospital seeking judicial consent for medical treatment of a minor. See opinion of Attorney General to The Honorable Charles E. Poston, Judge, Fourth Judicial Circuit, 01-112 (2/28/02).

§ 16.1-69.22. Removal of judges and substitute judges.

Any judge or substitute judge of a district court may be removed from office in the manner and for any of the causes prescribed in Chapter 9 (§ 17.1-900 et seq.) of Title 17.1; provided, that substitute judges may be removed from office under the provisions of §§ 24.2-230 through 24.2-238 .

(1972, c. 708; 1973, c. 546.)

Law review. - For proposal for the removal or retirement of unfit judges, see 54 Va. L. Rev. 554 (1968).

CASE NOTES

When contracts arising from violation of subsection (c) of § 16.1-69.12 void. - The General Assembly intended that sanctions under this section and under lawyer disciplinary procedures constitute adequate penalties for violation of subsection (c) of § 16.1-69.12. Therefore, it is manifest the legislature did not intend that contracts arising from a bare violation of subsection (c) of § 16.1-69.12 be void, unless, however, a litigant has been prejudiced by the violation. Blick v. Marks, Stokes & Harrison, 234 Va. 60 , 360 S.E.2d 345 (1987).

§ 16.1-69.22:1. Temporary recall of retired district court judges.

  1. The Chief Justice of the Supreme Court may call upon and authorize any judge of a district court who is retired under the Judicial Retirement System (§ 51.1-300 et seq.) to (i) hear a specific case or cases pursuant to the provisions of § 16.1-69.35 with such designation to continue in effect for the duration of the case or cases or (ii) perform, for a period not to exceed ninety days at any one time, such judicial duties in any district court as the Chief Justice of the Supreme Court shall deem in the public interest for the expeditious disposition of the business of such courts.
  2. It shall be the obligation of any retired judge who is recalled to temporary service under this section and who has not attained age seventy to accept the recall and perform the duties assigned. It shall be within the discretion of any judge who has attained age seventy to accept such recall.
  3. Any judge recalled to duty under this section shall have all the powers, duties, and privileges attendant on the position he is recalled to serve.

    (1990, c. 832; 2014, c. 776.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2014 amendments. - The 2014 amendment by c. 776, effective April 23, 2014, in subsection A inserted "(i) hear a specific case or cases pursuant to the provisions of § 16.1-69.35 with such designation to continue in effect for the duration of the case or cases or (ii)."

CASE NOTES

Challenge to constitutionality of retirement system held properly dismissed. - Suit brought by four former Virginia judges for a declaration that certain provisions of the Commonwealth's judicial retirement system covering them were unconstitutional, both under the equal protection clause of Amendment Fourteen of the Federal Constitution and under the Virginia Constitution, held properly dismissed. Thompson v. Walker, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

Virginia acted reasonably in setting up its recall system, whether it be obligatory or merely discretionary, for retired judges under 70 years of age. Thompson v. Walker, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

Purpose of recall/retirement system. - The clear purpose of the recall/retirement system is to insure the availability of a pool of auxiliary judges so that Virginia courts can more effectively address the problem of case backlogs. This system of benefits and burdens is rationally calculated to achieve this legitimate purpose; its general structure is well within any limitations imposed by the equal protection clause. Thompson v. Walker, 583 F. Supp. 175 (E.D. Va. 1984), aff'd, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

This section, by giving retired judges over 70 discretion to refuse recall, strikes a sensible balance between the needs of the recall system, on the one hand, and the realities of aging, on the other. The Constitution does not forbid this eminently reasonable accommodation of conflicting concerns. Thompson v. Walker, 583 F. Supp. 175 (E.D. Va. 1984), aff'd, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

Retired judge under 70 must serve if recalled. - The language of subsection D of former § 51-178 is plain and unmistakable. It could not be clearer: A retired judge under 70 must serve if recalled. Thompson v. Walker, 583 F. Supp. 175 (E.D. Va. 1984), aff'd, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

Retired judge who both received retirement benefits and appeared in Virginia courts violated former § 51-179 and Canon 8(C) (now 6 C) of the Canons of Judicial Conduct, which incorporates and interprets this section. Thompson v. Walker, 583 F. Supp. 175 (E.D. Va. 1984), aff'd, 758 F.2d 1004 (4th Cir. 1985) (decided under former § 51-178).

Applied in Layne v. Crist Elec. Contr., Inc., 62 Va. App. 632, 751 S.E.2d 679 (2013).

OPINIONS OF THE ATTORNEY GENERAL

A retired judge may conduct civil commitment hearings when he has been recalled to duty by the Chief Justice of the Supreme Court of Virginia or he has been designated to hear and dispose of an action by a chief district judge. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103 (12/18/03).

Retired judge. - A retired judge may perform marriages, even if he has voluntarily had his name removed from the Supreme Court's recall list; he is still a "retired judge" so long as he remains in good standing with the Supreme Court of Virginia, and is a "public official" subject to possible recall under §§ 16.1-69.22:1 or 17.1-106 . See opinion of Attorney General to The Honorable Colleen K. Killilea, Judge, Williamsburg / James City County General District Court, 15-044, 2016 Va. AG LEXIS 15 (9/1/16).

§ 16.1-69.23. In what cases judge disqualified.

If the judge or substitute judge of any district court:

  1. Be a party to an action;
  2. Be interested in the result of any action, otherwise than as resident or taxpayer of the city or county;
  3. Be related to any party to the action as spouse, grandparent, parent, father-in-law, mother-in-law, child, grandchild, son-in-law, daughter-in-law, brother, sister, brother-in-law, sister-in-law, nephew, niece, uncle, aunt, first cousin, guardian or ward;
  4. Be a material witness for either party to the action;
  5. Be counsel for any party to the action;

    he shall not take cognizance thereof.

    (1972, c. 708; 1973, c. 546.)

§ 16.1-69.24. Contempt of court.

  1. A judge of a district court shall have the same powers and jurisdiction as a judge of a circuit court to punish summarily for contempt, but in no case shall the fine exceed $250 and imprisonment exceed 10 days for the same contempt. From any such fine or sentence, there shall be an appeal of right within the period prescribed in this title and to the court or courts designated therein for appeals in other cases, and the proceedings on such appeal shall conform in all respects to the provisions of §§ 18.2-456 through 18.2-459 .
  2. Any person charged with a felony offense, misdemeanor offense, or released on a summons pursuant to § 19.2-73 or 19.2-74 who fails to appear before any court or judicial officer as required shall not be punished for contempt under this provision but may be punished for such contempt under subdivision A 6 of § 18.2-456 . (1972, c. 708; 1973, c. 546; 2000, cc. 164, 185; 2019, c. 708.)

The 2000 amendments. - The 2000 amendments by cc. 164 and 185 are identical, and substituted "$250" for "fifty dollars" in the first sentence.

The 2019 amendments. - The 2019 amendment by c. 708 inserted the subsection A designation and added subsection B; and made stylistic changes.

CASE NOTES

No right of confrontation. - Because the provisions of § 16.1-69.24 and § 18.2-459 had to prevail over the more general provisions of §§ 16.1-132 and 16.1-136, a contemnor appealing an adjudication of summary contempt does not receive a trial de novo in the circuit court with attendant Sixth Amendment protections and, thus, does not have a Sixth Amendment right of confrontation in that summary contempt adjudication in the circuit court. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Construction with other laws. - Where the provisions of §§ 16.1-69.24 and 18.2-459 address the specific subject of appeals from summary contempt adjudications in the district courts, and the provisions of §§ 16.1-132 and 16.1-136 address the general subject of appeals from the district courts, to the extent that the more specific provisions of §§ 16.1-69.24 and § 18.2-459 are in conflict with the general provisions of §§ 16.1-132 and 16.1-136, the more specific statutes prevail. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Evidence sufficient to find contempt. - As to the September 1994 order, the evidence was sufficient to support the trial court's finding that defendant willfully disobeyed that order, where defendant admitted at trial that she knew she was violating the order by removing her daughter from the Presbyterian home before the end of the program. Hanson v. Commonwealth, No. 2899-95-3, 1997 Va. App. LEXIS 206 (Ct. of Appeals Apr. 1, 1997).

Evidence insufficient to find contempt. - At the time of the circuit court trial de novo, defendant had completed the alcohol abuse treatment and was not shown to have willfully disobeyed the court's order; thus, the evidence was insufficient for the circuit court to find that defendant was in contempt of the juvenile court order. Hanson v. Commonwealth, No. 2899-95-3, 1997 Va. App. LEXIS 206 (Ct. of Appeals Apr. 1, 1997).

Issue not preserved for appeal. - Consideration of any challenge to the trial court's authority to find appellant in contempt of court or to that portion of the punishment was barred by Va. Sup. Ct. R. 5A:18 where appellant not only failed to timely object to the trial court's authority to find him in contempt or the decision to strike any defenses to the fraudulent conveyance action, but had conceded that a contempt finding and punishment was appropriate. Parasidis v. Karageorge, No. 0714-15-4, 2015 Va. App. LEXIS 365 (Dec. 8, 2015).

CIRCUIT COURT OPINIONS

Construction with other laws. - Sections 16.1-69.24 and 18.2-459 explicitly allow appeals to the circuit courts from summary contempt convictions in the district courts, but not for dismissals; by necessary implication, subsection H of § 16.1-296 allows appeals from findings of civil or criminal contempt in the juvenile and domestic relations district courts for failure to pay support, as the statute establishes bond requirements for appeals. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

OPINIONS OF THE ATTORNEY GENERAL

Verbal direction to sheriff's deputies to take defendant into custody for a specified number of hours, is equivalent to a written order and therefore is binding upon the sheriff's office, and sheriff's deputies carrying out such orders enjoy the same qualified sovereign immunity they have when others are in their custody. See opinion of Attorney General to The Honorable Dennis S. Proffitt, Sheriff, County of Chesterfield, 10-069, 2010 Va. AG LEXIS 52 (8/30/10).

Prefiling review. - A district court may, pursuant to § 8.01-271.1 , impose a pre-filing review requirement if such a sanction is appropriate. Further, a district court has the inherent authority to limit or prevent an attorney or a litigant from practicing before it in the event the court determines, after a hearing, that the attorney or litigant has engaged in the unauthorized practice of law or otherwise has engaged in unprofessional or unethical conduct. See opinion of Attorney General to The Honorable Barbara J. Gaden, Judge, Richmond General District Court, 10-068, 2010 Va. AG LEXIS 51 (8/30/10).

§ 16.1-69.25. Judge may issue warrants, summons, and subpoenas.

Except as otherwise provided by general law, a judge of a district court may, within the scope of his general jurisdiction, issue warrants, summons, and subpoenas, including subpoenas duces tecum or other process, in civil, traffic and criminal cases, to be returned before his court, and may also issue fugitive warrants and conduct proceedings thereon in accordance with the provisions of §§ 19.2-99 through 19.2-104.

(1972, c. 708; 1973, c. 546; 1994, c. 500; 2014, cc. 305, 310.)

The 2014 amendments. - The 2014 amendments by cc. 305 and 310, are identical, and deleted "within the area which his court serves" following "jurisdiction."

§ 16.1-69.25:1. Judge shall order bill of particulars; time for motion.

Upon request of either party, a judge of a district court may direct the filing of a written bill of particulars at any time before trial and within a period of time specified in the order so requiring. Motions for bills of particulars in criminal cases before general district courts shall be made before a plea is entered and at least seven days before the day fixed for trial.

(1980, c. 338; 1998, cc. 482, 495.)

The 1998 amendments. - The 1998 amendments by cc. 482 and 495 are identical, and added "Upon request of either party" in the first sentence.

CIRCUIT COURT OPINIONS

Bill of particulars approved. - Due to the unusual nature of the allegations and the sweeping, comprehensive relief that was requested, a motion for a bill of particulars was approved. Wiebel v. Hunt, 68 Va. Cir. 191, 2005 Va. Cir. LEXIS 66 (Greene County 2005).

OPINIONS OF THE ATTORNEY GENERAL

Commonwealth's Attorney may request a bill of particulars. - A Commonwealth's Attorney is authorized to request that a bill of particulars be ordered in a district court where a motion to suppress evidence has been filed but includes no factual basis for the motion. See opinion of Attorney General to the Honorable Scott A. Surovell, Member, House of Delegates, 13-051, 2013 Va. AG LEXIS 69 (8/16/13).

Demurrer. - A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

§ 16.1-69.26. Judges as conservators of the peace.

The judge of each district court having criminal jurisdiction shall be a conservator of the peace within the limits of the territory in which he serves; and if such court is a city court, the judge thereof shall, except as otherwise provided by general law, also be a conservator of the peace for the area extending for one mile beyond the corporate limits of the city.

(1972, c. 708; 1973, c. 546.)

Cross references. - For provisions as to the powers and duties of conservators of the peace, see §§ 19.2-18 through 19.2-23.

§ 16.1-69.27. Additional powers of judges.

A judge of a district court may take affidavits and administer oaths and affirmations in all matters and proceedings, may issue all appropriate orders or writs, including orders appointing guardians ad litem in all proper cases, in aid of the jurisdiction conferred upon him, and may certify transcripts of the records and proceedings of the court for use elsewhere. But he shall have no authority to take acknowledgments to deeds or other writings for purposes of recordation.

(1972, c. 708; 1973, c. 546.)

CASE NOTES

No authority to order transportation of prisoners in civil cases. - Nowhere in this statute, nor anywhere else in the statutes delineating the limited jurisdiction of the general district courts, is there a specific grant of the authority to order the transportation of prisoners to appear as witnesses in civil cases, while § 8.01-410 specifically grants the authority to issue prisoner transportation orders in civil cases to the circuit courts; as the more specific statute, § 8.01-410 prevails and only circuit courts are granted the authority to order the transportation of prisoners to appear in civil cases. Commonwealth ex rel. Virginia Dep't of Corrections v. Brown, 259 Va. 697 , 529 S.E.2d 96, 2000 Va. LEXIS 73 (2000).

§ 16.1-69.28. Commitment of insane, etc., persons.

A judge of a district court shall have and may exercise, concurrently with special justices appointed for the purpose, the jurisdiction conferred by general law upon justices, and special justices in all matters in connection with the adjudication and commitment of incapacitated persons, including drug-addicted and inebriate persons, and the institution and conduct of proceedings thereof. Such proceedings may be had at any place within the jurisdiction of the court over which such judge presides.

(1972, c. 708; 1973, c. 546; 1997, c. 801.)

Editor's note. - Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

The 1997 amendment, effective January 1, 1998, substituted "incapacitated persons, including" for "legally incompetent" near the end of the first sentence.

§ 16.1-69.29. Jurisdiction over certain waters.

Where any river, watercourse or bay lies between any counties or any cities, or any county and city in this Commonwealth, the district courts therein, on each side, respectively, shall have concurrent territorial jurisdiction over so much thereof as shall be opposite to such counties and cities. And such courts for counties or cities lying on the waters bounding the Commonwealth shall have concurrent territorial jurisdiction respectively over such waters opposite such counties and cities, as far as the jurisdiction of this Commonwealth extends. But this section shall not apply to the City of Richmond.

(1972, c. 708; 1973, c. 546; 2005, cc. 45, 114.)

The 2005 amendments. - The 2005 amendments by cc. 45 and 114 are identical, and substituted "City of Richmond" for "Cities of Richmond and Norfolk" at the end of the section.

Article 3. Administration and Supervision of the District Courts.

§ 16.1-69.30. District system within unified court system.

The district court system shall be within the unified court system of the Commonwealth subordinate to the Supreme Court and subject to the administrative supervision of the Chief Justice of the Supreme Court.

(1972, c. 708; 1973, c. 546.)

§ 16.1-69.31. The duties of the Judicial Council.

The duties of the Judicial Council with respect to the district court system shall include those set forth in §§ 16.1-69.6 through 16.1-69.12, and such other duties as may be assigned to the Council by law.

(1972, c. 708; 1973, c. 546; 2018, c. 164.)

The 2018 amendments. - The 2018 amendment by c. 164 substituted "16.1-69.12" for "16.1-69.13."

§ 16.1-69.32. Rules.

The Supreme Court may formulate rules of practice and procedure for the general district courts and juvenile and domestic relations district courts following consultation with the Chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary and the executive committee of the Judicial Conference of Virginia for District Courts. Such rules, subject to the strict construction of the provisions of § 8.01-3 , which shall be the only rules of practice and procedure in all the district courts in the Commonwealth, shall be included in the Code of Virginia as provided in § 8.01-3 , subject to revision by the General Assembly.

(1972, c. 708; 1973, c. 546; 1975, c. 334; 1976, c. 306.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The Virginia Code Commission authorized the substitution of "the Chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary" for "the Chairmen of the House and Senate Courts of Justice Committees." March 10, 2021.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 2; 11A M.J. Judgments & Decrees, § 119.

§ 16.1-69.32:1. Substitution of counsel.

Except in case of court-appointed counsel, no rule of court shall be made or construed so as to preclude substitution of counsel in civil and criminal cases in the district courts, nor shall any order or appearance in person, be required, to relieve original counsel of his duties in any such case. It shall be sufficient that new counsel represents to the court that the substitution is made pursuant to agreement by the parties represented and original counsel.

(1980, c. 434.)

§ 16.1-69.33. Committee on District Courts.

There is hereby established a Committee on District Courts to be composed of the Majority Leader of the Senate, the Speaker of the House of Delegates, the Chairman of the House Committee for Courts of Justice or his designee who shall be a member of the committee, the Chairman of the Senate Committee on the Judiciary or his designee who shall be a memer of the committee, two members of the House Committee for Courts of Justice to be appointed by the chairman of the committee, and two members of the Senate Committee on the Judiciary to be appointed by the chairman of the committee, the Chief Justice of the Supreme Court of Virginia who shall be chair of the Committee, one judge of a circuit court, two general district court judges and two juvenile and domestic relations district court judges. The judicial members of the Committee on District Courts shall be made to give representation insofar as feasible to various geographic areas of the Commonwealth. The judicial members of the Committee on District Courts shall be appointed by, and serve at the pleasure of the Chief Justice.

The Committee shall meet at such times and places as it may from time to time designate for the purposes of authorizing the appointment of substitute judges pursuant to § 16.1-69.14, authorizing the establishment of clerks' offices in counties or cities as may be requisite, and establishing when such offices shall be open for business, authorizing the appointment of personnel for the district courts pursuant to Article 4 (§ 16.1-69.37 et seq.) of this chapter and establishing procedures for administrative review of appeals from personnel actions for district court personnel and magistrates, fixing salary classification schedules of court personnel pursuant to Article 5 (§ 16.1-69.44 et seq.) of this chapter and establishing vacation and sick leave for district court judges, district court personnel and magistrates, and for such other duties or matters as are now, or may hereafter be conferred upon the Committee by law. The Committee may also adopt an official seal and authorize its use by district court clerks and deputy clerks of the district courts. Such salary classification schedules, vacation and sick leave policies shall be uniform throughout the Commonwealth.

The Committee on District Courts shall have sole authority and discretion in adjusting salary classification schedules for district court personnel. The Committee shall fix such salaries for the several district court personnel at least annually at such time as it deems it proper and as soon as practicable thereafter certify to the Comptroller and the Executive Secretary of the Supreme Court a detailed statement of the salaries fixed by them for the several district courts and the effective date of any salary adjustments.

The Committee on District Courts shall appoint (i) a Clerk's Advisory Committee composed of two clerks from the general district courts and two clerks from the juvenile and domestic relations district courts; such appointments shall be made after giving due consideration to former clerks of county and municipal courts not of record; (ii) a Magistrate's Advisory Committee composed of two magistrates; such advisory committees are to make recommendations to the Committee regarding administrative functions of the district courts.

For the performance of their duties, the Committee shall be reimbursed out of the money appropriated for the adjudication of cases in the district trial courts for their actual expenses incurred in the performance of their duties and in addition, per diem compensation allowed for members of the General Assembly for each day spent in performing such duties; provided, however, that no additional compensation shall be paid to members of the judiciary serving on the Committee.

In the event of the establishment of personal liability of a district court judge or magistrate for the loss of property or money from a district court or magistrate's office by reason of robbery or burglary, the Committee on District Courts shall have the authority, after appropriate investigation and upon its determination that the individual judge or magistrate was not negligent in the performance of his duties, to reimburse such judge or magistrate to the extent of his personal liability on a warrant of the Comptroller issued as provided by law. However, such reimbursement shall not exceed $1,000 per claim. This paragraph shall apply to all claims arising on and after July 1, 1976.

(1972, c. 708; 1973, cc. 546, 547; 1974, cc. 333, 484; 1975, c. 334; 1976, cc. 52, 444; 1978, c. 133; 1984, c. 23; 1992, c. 497; 2001, c. 367; 2004, c. 330; 2008, c. 115; 2015, c. 331.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The Virginia Code Commission authorized the substitution of "the Chairman of the House Committee for Courts of Justice or his designee who shall be a member of the committee, the Chairman of the Senate Committee on the Judiciary or his designee who shall be a memer of the committee, two members of the House Committee for Courts of Justice to be appointed by the chairman of the committee, and two members of the Senate Committee on the Judiciary to be appointed by the chairman of the committee" for "the chairmen of the House and Senate Courts of Justice Committees or their designees who shall be members of the Courts of Justice committees, two members of each of the Committees for Courts of Justice of each house, to be appointed by the chairman of their Committee" in the first paragraph. March 10, 2021.

The 2001 amendments. - The 2001 amendment by c. 367, in the second paragraph, inserted "pursuant to Article 5 ( § 16.1-69.44 et seq.) of this chapter," deleted "pursuant to Article 5 ( § 16.1-69.44 et seq.) of this chapter, and sick leave for other" following "district court judges," deleted "full-time" preceding "magistrates," and added the last sentence; and deleted the former third paragraph, which read: "Every clerk, deputy clerk, bailiff, clerical assistant, other employee of each district court and full-time magistrate shall be allowed an annual vacation period with pay as follows: for the first year of service, one working day for each full calendar month of service, and upon completion of the second year, and each year thereafter, in addition to the one working day per month, one additional day of vacation for each complete year of service after the first, provided that the maximum number of days' vacation earned per year shall be twenty-four, and in no case shall any clerk, deputy clerk, bailiff, clerical assistant or other employee or magistrate be allowed to accumulate more than forty days' vacation time."

The 2004 amendments. - The 2004 amendment by c. 330, in the first paragraph, in the first sentence, inserted "the Chief Justice of the Supreme Court of Virginia who shall be chair of the Committee" and substituted "two general district court judges and two juvenile and domestic relations district court judges" for "one judge of a general district court and one juvenile and domestic relations district court judge"; and in the fourth paragraph, redsignated former clauses (1) and (2) as clauses (i) and (ii).

The 2008 amendments. - The 2008 amendment by c. 115 inserted "or their designees who shall be members of the Courts of Justice committees" in the first sentence of the first paragraph.

The 2015 amendments. - The 2015 amendment by c. 331 added the second sentence of the second paragraph.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, § 32.

§ 16.1-69.34.

Reserved.

§ 16.1-69.35. Administrative duties of chief district judge.

The chief judge of each district shall have the following administrative duties and authority with respect to his district:

  1. When any district court judge is under any disability or for any other cause is unable to hold court and the chief judge determines that assistance is needed:
    1. The chief district judge shall designate a judge within the district or a judge of another district court within the Commonwealth, if one is reasonably available, to hear and dispose of any action or actions properly coming before such district court for disposition;
    2. If unable to designate a judge as provided in subdivision 1 a, the chief district judge may designate a retired district judge eligible for recall pursuant to § 16.1-69.22:1 for such hearing and disposition if such judge consents; or
    3. If unable to assign a retired district court judge, the chief district judge may designate a retired circuit court judge eligible for recall pursuant to § 17.1-106 if such judge consents or the chief district judge may request that the Chief Justice of the Supreme Court designate a circuit judge if such judge consents. If no judges are available under subdivision a, b or c, then a substitute judge shall be designated pursuant to § 16.1-69.21. While acting, any judge so designated shall have all the authority and power of the judge of the court, and his order or judgment shall, to all intents and purposes, be the judgment of the court. A general district court judge designated pursuant to subdivision 1 a, may, with his consent, substitute for or replace a juvenile and domestic relations district court judge, and vice versa. The names of the judges designated under subdivisions b and c shall be selected from a list provided by the Executive Secretary and approved by the Chief Justice of the Supreme Court.
  2. The chief general district court judge of a district may designate any juvenile and domestic relations district court judge of the district, with the judge's consent, for an individual case or to sit and hear cases for a period of not more than one year, in any of the general district courts within the district. The chief juvenile and domestic relations district court judge of a district may designate any general district court judge of the district, with the judge's consent, for an individual case or to sit and hear cases for a period of not more than one year, in any of the juvenile and domestic relations district courts within the district. Every judge so designated shall have the same powers and jurisdiction and be authorized to perform the same duties as any judge of the district for which he is designated to assist, and, while so acting, his order or judgment shall be, for all purposes, the judgment of the court to which he is assigned.
  3. If on account of congestion in the work of any district court or when in his opinion the administration of justice so requires, the Chief Justice of the Supreme Court may, upon his own initiative or upon written application of the chief district court judge desiring assistance, designate a judge from another district or any circuit court judge, if such circuit court judge consents, or a retired judge eligible for recall, to provide judicial assistance to such district. Every judge so designated shall have the same powers and jurisdiction and be authorized to perform the same duties as any judge of the district for which he is designated to assist and while so acting his order or judgment shall be, to all intents and purposes, the judgment of the court to which he is assigned.
  4. Subject to such rules as may be established pursuant to § 16.1-69.32, the chief judge may establish special divisions of any general district court when the work of the court may be more efficiently handled thereby such as through the establishment of special civil, criminal or traffic divisions, and he may assign the judges of the general district court with respect to serving such special divisions. In the City of Richmond the general district court shall, in addition to any specialized divisions, maintain a separate division of such court in that part of Richmond south of the James River with concurrent jurisdiction over all matters arising in the City of Richmond.
  5. Subject to such rules as may be established pursuant to § 16.1-69.32, the chief judge shall determine when the district courts or divisions of such courts shall be open for the transaction of business. The chief judge or presiding judge of any district court may authorize the clerk's office to close on any date when the chief judge or presiding judge determines that operation of the clerk's office, under prevailing conditions, would constitute a threat to the health or safety of the clerk's office personnel or the general public. Closing of the clerk's office pursuant to this subsection shall have the same effect as provided in subsection B of § 1-210 . In determining whether to close because of a threat to the health or safety of the general public, the chief judge or the presiding judge of the district court shall coordinate with the chief judge or presiding judge of the circuit court so that, where possible and appropriate, both the circuit and district courts take the same action. He shall determine the times each such court shall be held for the trial of civil, criminal or traffic matters and cases. He shall determine whether, in the case of district courts in counties, court shall be held at any place or places in addition to the county seat or other place expressly authorized by statute. He shall determine the office hours and arrange a vacation schedule of the judges within his district, in order to ensure the availability of a judge or judges to the public at normal times of business. A schedule of the times and places at which court is held shall be filed with the Executive Secretary of the Supreme Court and kept posted at the courthouse, and in any county also at any such other place or places where court may be held, and the clerk shall make such schedules available to the public upon request. Any matter may, in the discretion of the judge, or by direction of the chief district judge, be removed from any one of such designated places to another, or to or from the county seat or other place expressly authorized by statute, in order to serve the convenience of the parties or to expedite the administration of justice; however, any town having a population of over 15,000 as of July 1, 1972, having court facilities and a court with both general criminal and civil jurisdiction prior to July 1, 1972, shall be designated by the chief judge as a place to hold court.
  6. Subject to the provisions of § 16.1-69.38, the chief judge of a general district court or the chief judge of a juvenile and domestic relations district court may establish a voluntary civil mediation program for the alternate resolution of disputes. The costs of the program shall be paid by the local governing bodies within the district or by the parties who voluntarily participate in the program.

    (1972, c. 708; 1973, c. 546; 1976, cc. 307, 444; 1978, c. 200; 1984, c. 570; 1987, c. 703; 1989, c. 264; 1991, cc. 177, 392; 1992, c. 387; 1995, c. 57; 2001, c. 494; 2003, c. 102; 2005, cc. 207, 839; 2006, c. 144; 2014, c. 776; 2017, cc. 37, 225; 2019, cc. 240, 321, 526.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2001 amendments. - The 2001 amendment by c. 494 added the second, third, and fourth sentences in subdivision 5.

The 2003 amendments. - The 2003 amendment by c. 102 inserted "consents or the chief district judge may request that the Chief Justice of the Supreme Court designate a circuit judge if such judge consents" at the end of the first paragraph of subdivision 1 c; twice substituted "90" for "ninety" in subdivision 2; in subdivision 3, deleted "district court" following "designate a," inserted "or any circuit court judge, if such circuit court judge consents" following "another district," and deleted the former last sentence, which read: "If such a designation is made, the Chief Justice shall designate a general district court judge to sit in a general district court and a juvenile and domestic relations district court judge to sit in a juvenile and domestic relations district court"; and deleted former subdivision 7, which read: "Notwithstanding any other provision of law, the same judge shall be allowed to serve as both a general district judge and a juvenile and domestic relations district judge for the Counties of Accomack and Northampton."

The 2005 amendments. - The 2005 amendment by c. 207 substituted "one year" for "90 days" in two places in subdivision 2.

The 2005 amendment by c. 839, effective October 1, 2005, substituted "subsection B of § 1-210 " for " § 1-13.3:1" in subdivision 5.

The 2006 amendments. - The 2006 amendment by c. 144 substituted "or when in his opinion the administration of justice so requires" for "there is in his opinion need therefor" in the first sentence of subdivision 3.

The 2014 amendments. - The 2014 amendment by c. 776, effective April 23, 2014, in subdivision 1 b inserted "eligible for recall pursuant to § 16.1-69.22:1"; in subdivision 1 c inserted "eligible for recall pursuant to § 17.1-106 "; and in subdivision 3 inserted "eligible for recall" and made a minor stylistic change.

The 2017 amendments. - The 2017 amendments by cc. 37 and 225 are identical, and substituted "concurrent jurisdiction over all other criminal matters" for "exclusive jurisdiction over all other criminal matters" near the end of subdivision 4.

The 2019 amendments. - The 2019 amendment by c. 240 inserted "or other place expressly authorized by statute" twice in subdivision 5.

The 2019 amendments by cc. 321 and 526 are identical, and substituted "over all matters arising in the City of Richmond" for "in civil matters whenever one or more of the defendants reside or the cause of action or any part thereof arises in that part of the city, concurrent jurisdiction over all traffic matters arising in that part of the city and concurrent jurisdiction over all other criminal matters arising in that part of the city" in subdivision 4.

Law review. - For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

CIRCUIT COURT OPINIONS

Transfer of county seat. - Should Augusta County decide to transfer the county seat to Verona, it would have to provide suitable quarters in Verona not only for the circuit court but for the district courts as well. Augusta Co Bd. of Supervisor v. Augusta Cnty. Courthouse, 90 Va. Cir. 68, 2015 Va. Cir. LEXIS 26 (Augusta County Feb. 25, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Consent for medical treatment of minor by substitute judge. - Without a specific appointment, a substitute judge is not a sitting judge, and therefore should not be called upon by a hospital seeking judicial consent for medical treatment of a minor. See opinion of Attorney General to The Honorable Charles E. Poston, Judge, Fourth Judicial Circuit, 01-112 (2/28/02).

A retired judge may conduct civil commitment hearings when he has been recalled to duty by the Chief Justice of the Supreme Court of Virginia or he has been designated to hear and dispose of an action by a chief district judge. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103 (12/18/03).

Retired judge. - A retired judge may perform marriages, even if he has voluntarily had his name removed from the Supreme Court's recall list; he is still a "retired judge" so long as he remains in good standing with the Supreme Court of Virginia, and is a "public official" subject to possible recall under §§ 16.1-69.22:1 or 17.1-106 . See opinion of Attorney General to The Honorable Colleen K. Killilea, Judge, Williamsburg / James City County General District Court, 15-044, 2016 Va. AG LEXIS 15 (9/1/16).

§ 16.1-69.35:01. Location of district courts for Albemarle County.

The Albemarle General District Court and the Albemarle Juvenile and Domestic Relations District Court may sit in the City of Charlottesville on property immediately across the street from the county courthouse.

(2019, c. 240.)

§ 16.1-69.35:1. Location of district courts for Carroll County.

The General District Court and the Juvenile and Domestic Relations District Court for Carroll County shall sit at the Carroll County Courthouse in Hillsville.

(1974, c. 508.)

Editor's note. - Formerly, this section was not set out in the Code of Virginia. At its April 4, 2017, meeting, the Virginia Code Commission approved setting out the full text.

§ 16.1-69.35:2. Recording of proceedings in district courts.

An audio recording of proceedings in a general district court may be made by a party or his counsel.

(1985, c. 378; 2014, c. 268.)

The 2014 amendments. - The 2014 amendment by c. 268, substituted "An audio recording of proceedings" for "Proceedings" and "made" for "tape recorded."

§ 16.1-69.36. Where process returnable and trials held in certain cases.

All process, civil and criminal, returnable before a district court of a county shall, if the defendants or any of them reside in a city or town in which the court is held, be made returnable at the courtroom or place the court is held in such city or town, but if none of the defendants reside therein it shall be made returnable to the county seat, or to one of the other places where the court is held, whichever shall be nearer or more accessible to such defendant or defendants. If the process is made returnable to some other place than the county seat the place to which it is returnable shall be designated therein. For all jurisdictional requirements hereunder the county seat and each and all of the places designated for the holding of the court shall be deemed to be a part of each and every magisterial district in the county.

(1972, c. 708; 1973, c. 546.)

CIRCUIT COURT OPINIONS

Transfer of county seat. - Should Augusta County decide to transfer the county seat to Verona, it would have to provide suitable quarters in Verona not only for the circuit court but for the district courts as well. Augusta Co Bd. of Supervisor v. Augusta Cnty. Courthouse, 90 Va. Cir. 68, 2015 Va. Cir. LEXIS 26 (Augusta County Feb. 25, 2015).

Article 4. Judges and Personnel of the District Courts.

§ 16.1-69.37. Personnel continued in office.

The clerks, deputy clerks, referees, bailiffs and other officers and employees of county, municipal and juvenile and domestic relations courts shall continue in office in like positions with the general district courts and juvenile and domestic relations district courts until the expiration of the term, if any, for which elected or appointed. Nothing contained in this chapter shall be construed to effect or authorize any reduction in the compensation of any such officer or employee during such term.

(1972, c. 708; 1973, c. 546.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-69.38. Authorization for substitute judges and personnel.

The Committee on District Courts established in § 16.1-69.33 shall, subject to the provision of § 16.1-69.37, establish guidelines and determine the necessity for the employment of substitute judges, clerks, deputy clerks and all other personnel of the district courts and authorize the employment of such personnel by the courts. For purposes of this chapter, the term "personnel," as related to the courts, shall not include probation officers and other social service officers of a juvenile and domestic relations district court. The Executive Secretary of the Supreme Court shall obtain pertinent personnel policies of local units of government as to personnel of courts not of record who become employees of district courts pursuant to this chapter, and he shall assist the Committee in the performance of its duties. The Committee may receive the advice and recommendations of the Executive Secretary with respect to authorization of personnel for the district courts, job classifications, salary scales, vacation and sick leave and related personnel matters.

The Committee may authorize the appointment of any personnel to serve one or more district courts within any district and in addition may authorize the clerk and deputy clerks of the circuit court of a political subdivision to serve as clerk and deputy clerks of one or more district courts within the political subdivision.

(1972, c. 708; 1973, c. 546.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-69.39. Appointment of personnel.

All personnel shall be appointed by, serve at the pleasure of, and be subject to removal by the chief judge of the district court in which they serve. In the event of any personnel authorized to serve in both a general district court and juvenile and domestic relations district court within any district, appointments and removals shall be made by the chief judges of such courts and in the event of a tie vote on any such matter the chief judges of the district shall certify such fact to the Committee on District Courts who shall decide the matter. The provisions of this section shall not be applicable in the event of authorization for any deputy circuit court clerk or deputy clerk to serve any district court. Personnel subject to the provisions of this article shall not be subject to the Virginia Personnel Act (§ 2.2-2900 et seq.).

(1972, c. 708; 1973, c. 546; 1975, c. 334.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Clerks of Court, § 1.

CASE NOTES

No right to hearing prior to discharge. - The children's supervisor of a city juvenile detention home held his position pursuant to the pleasure of the judge of the juvenile court and had no right, either under the city charter or the Fourteenth Amendment, to a hearing prior to discharge. Jones v. Kelly, 347 F. Supp. 1260 (E.D. Va. 1972) ??? (decided under former § 16.1-145, relating to employment of personnel by juvenile court judges).

§ 16.1-69.39:1. Legal service to district court employees and magistrates.

All legal services for personnel of the district courts or magistrates in civil matters, including civil litigation, arising out of the performance of their duties, shall be provided by the office of the Attorney General. If, in the opinion of the Attorney General, it is impractical or uneconomical for such service to be rendered by his office, the Committee on District Courts may employ special counsel for such purpose, whose compensation shall be fixed by the Committee. The compensation for such special counsel shall be paid out of the funds appropriated for the administration of the district courts.

(1977, c. 94; 1980, c. 197.)

§ 16.1-69.40. Powers and duties of clerks; civil liability.

The clerk and deputy clerks shall be conservators of the peace within the territory for which the court has jurisdiction, and may, within such judicial district, issue warrants, detention orders, and other processes, original, mesne and final, both civil and criminal, commit to jail or other detention facility, or admit to bail upon recognizance, persons charged with crimes or before the court on civil petition, subject to the limitations set forth by law, and issue subpoenas for witnesses, writs of fieri facias and writs of possession and eviction, attachments and garnishments and abstracts of judgments. A record made in the performance of the clerk's official duties may be authenticated as a true copy by the clerk or by a deputy clerk without additional authentication by the judge to whom the clerk reports, notwithstanding the provisions of subsection B of § 8.01-391 .

No clerk or deputy clerk shall issue any warrant or process based on complaint of his spouse, child, grandchild, parent, grandparent, parent-in-law, child-in-law, brother, sister, brother-in-law, sister-in-law, nephew, niece, uncle, aunt, first cousin, guardian or ward. They may take affidavits and administer oaths and affirmations, take and certify depositions in the same manner as a notary public, perform such other notarial acts as allowed under § 47.1-12 , take acknowledgments to deeds or other writings for purposes of recordation, and issue all other legal processes which may be issued by the judge of such court and exercise such other powers and perform such other duties as are conferred or imposed upon them by law. The clerk may also issue to interested persons informational brochures authorized by a judge of such court explaining the legal rights of such persons.

No clerk or deputy clerk shall be civilly liable for providing information or assistance that is within the scope of his duties.

The clerk shall develop, implement and administer procedures necessary for the efficient operation of the clerk's office, keep the records and accounts of the court, supervise nonjudicial personnel and discharge such other duties as may be prescribed by the judge.

(1972, c. 708; 1973, c. 546; 1974, c. 671; 1978, c. 463; 1983, c. 135; 1985, c. 99; 1989, c. 229; 2001, cc. 488, 499; 2019, cc. 180, 700.)

Cross references. - For provisions as to the powers and duties of conservators of the peace, see §§ 19.2-18 through 19.2-23.

The 2001 amendments. - The 2001 amendment by c. 488 inserted "perform such other notarial acts as allowed under § 47.1-12 " near the middle of the second sentence of the second paragraph.

The 2001 amendment by c. 499 added the third paragraph.

The 2019 amendments. - The 2019 amendments by cc. 180 and 700 are identical, and in the first paragraph, inserted "and eviction" following "writs of possession."

CASE NOTES

Clerks not entitled to immunity for not providing assistance. - Where plaintiff estate administrator alleged a court clerk and deputy clerk were negligent and grossly negligent for failing to send a judge's competency restoration order regarding plaintiff's decedent to a mental hospital, the clerks were not entitled to immunity for providing assistance within the scope of their duties because plaintiff alleged that they did not provide any assistance. Adams v. Naphcare, Inc., 240 F. Supp. 3d 438, 2017 U.S. Dist. LEXIS 30644 (E.D. Va. 2017).

§ 16.1-69.40:1. Traffic infractions within authority of traffic violations clerk; schedule of fines; prepayment of local ordinances.

  1. The Supreme Court shall by rule, which may from time to time be amended, supplemented or repealed, but which shall be uniform in its application throughout the Commonwealth, designate the traffic infractions for which a pretrial waiver of appearance, plea of guilty and fine payment may be accepted. Such designated infractions shall include violations of §§ 46.2-830.1 , 46.2-878.2 and 46.2-1242 or any parallel local ordinances. Notwithstanding any rule of the Supreme Court, a person charged with a traffic offense that is listed as prepayable in the Uniform Fine Schedule may prepay his fines and costs without court appearance whether or not he was involved in an accident. The prepayable fine amount for a violation of § 46.2-878.2 shall be $200 plus an amount per mile-per-hour in excess of posted speed limits, as authorized in § 46.2-878.3 . Such infractions shall not include:
    1. Indictable offenses;
    2. [Repealed.]
    3. Operation of a motor vehicle while under the influence of intoxicating liquor or a narcotic or habit-producing drug, or permitting another person, who is under the influence of intoxicating liquor or a narcotic or habit-producing drug, to operate a motor vehicle owned by the defendant or in his custody or control;
    4. Reckless driving;
    5. Leaving the scene of an accident;
    6. Driving while under suspension or revocation of driving privileges;
    7. Driving without being licensed to drive.
    8. [Repealed.]
  2. An appearance may be made in person or in writing by mail to a clerk of court or in person before a magistrate, prior to any date fixed for trial in court. Any person so appearing may enter a waiver of trial and a plea of guilty and pay the fine and any civil penalties established for the offense charged, with costs. He shall, prior to the plea, waiver, and payment, be informed of his right to stand trial, that his signature to a plea of guilty will have the same force and effect as a judgment of court, and that the record of conviction will be sent to the Commissioner of the Department of Motor Vehicles.
  3. The Supreme Court, upon the recommendation of the Committee on District Courts, shall establish a schedule, within the limits prescribed by law, of the amounts of fines and any civil penalties to be imposed, designating each infraction specifically. The schedule, which may from time to time be amended, supplemented or repealed, shall be uniform in its application throughout the Commonwealth. Such schedule shall not be construed or interpreted so as to limit the discretion of any trial judge trying individual cases at the time fixed for trial. The rule of the Supreme Court establishing the schedule shall be prominently posted in the place where the fines are paid. Fines and costs shall be paid in accordance with the provisions of this Code or any rules or regulations promulgated thereunder.
  4. Fines imposed under local traffic infraction ordinances that do not parallel provisions of state law and fulfill the criteria set out in subsection A may be prepayable in the manner set forth in subsection B if such ordinances appear in a schedule entered by order of the local circuit courts. The chief judge of each circuit may establish a schedule of the fines, within the limits prescribed by local ordinances, to be imposed for prepayment of local ordinances designating each offense specifically. Upon the entry of such order it shall be forwarded within 10 days to the Supreme Court of Virginia by the clerk of the local circuit court. The schedule, which from time to time may be amended, supplemented or repealed, shall be uniform in its application throughout the circuit. Such schedule shall not be construed or interpreted so as to limit the discretion of any trial judge trying individual cases at the time fixed for trial. This schedule shall be prominently posted in the place where fines are paid. Fines and costs shall be paid in accordance with the provisions of this Code or any rules or regulations promulgated thereunder.

    (1977, c. 585; 1978, c. 605; 1979, c. 510; 1983, c. 388; 1994, c. 912; 1998, c. 209; 2000, c. 841; 2003, c. 282; 2004, c. 350; 2011, c. 694; 2017, c. 504; 2020, cc. 1227, 1246.)

Cross references. - As to doubling of otherwise applicable fines set forth in Rule 3B:2 in the case of a waiver of appearance and plea of guilty under § 16.1-69.40:1 or § 19.2-254.2 for a violation of Chapter 8 ( § 46.2-800 et seq.) of Title 46.2 in a designated highway safety corridor, see § 46.2-947.

Editor's note. - Acts 2003, c. 282, cl. 2, provides: "That the Supreme Court shall, when it promulgates regulations for prepayment of fines, require a higher prepayment fee for a violation of § 46.2-878.2 than for other infractions."

Acts 2020, cc. 1227 and 1246, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, cc. 1227 and 1246, cl. 4 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment added the second sentence in the first paragraph in subsection A.

The 2000 amendments. - The 2000 amendment by c. 841, effective January 1, 2001, in subsection A, added the third sentence of the introductory paragraph and repealed subdivision (b).

The 2003 amendments. - The 2003 amendment by c. 282 substituted " § 46.2-1242 or any parallel local ordinance" for " § 46.2-1242 or any parallel local ordinances" in subsection A; and substituted "10" for "ten" in subsection D.

The 2004 amendments. - The 2004 amendment by c. 350 added the last sentence in the first paragraph of subsection A.

The 2011 amendments. - The 2011 amendment by c. 694, in subsection A, redesignated the subdivisions numerically; and in subsection D, made minor stylistic changes in the first sentence, and substituted "The chief judge" for "The judges" in the second sentence.

The 2017 amendments. - The 2017 amendment by c. 504 inserted "46.2-830.1" and made related changes in the first paragraph in subsection A.

The 2020 amendments. - The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and substituted "driving privileges" for "driver's license" in subdivision A 6; and deleted "or the appropriate offices of the State where he received his license to drive" following "Department of Motor Vehicles" at the end of subsection B.

§ 16.1-69.40:2. Nontraffic offenses for which prepayment authorized; schedules, fines; prepayment of local ordinances.

  1. The Supreme Court shall by rule, which may from time to time be amended, supplemented or repealed, but which shall be uniform in its application throughout the Commonwealth, designate the nontraffic offenses for which a pretrial waiver of appearance, plea of guilty and fine payment may be accepted. Such offenses shall not include:
    1. Indictable offenses;
    2. Class 1 or Class 2 misdemeanors;
    3. Offenses which involve moral turpitude;
    4. Any offenses involving injury to persons;
    5. Any offense punishable by incarceration or by a fine of more than $500.
  2. An appearance may be made in person or in writing by mail to a clerk of court or in person before a magistrate, prior to any date fixed for trial in court. Any person so appearing may enter a waiver of trial and plea of guilty and pay the fine established for the offense charged, with costs. He shall, prior to the plea, waiver and payment, be informed of his right to stand trial and that his signature to a plea of guilty will have the same force and effect as a judgment of court.
  3. The Supreme Court, upon the recommendation of the Committee on District Courts, shall establish a schedule, within the limits prescribed by law, of the amounts of fines to be imposed upon prepayment of nontraffic offenses authorized as prepayable under subsection A, designating each offense specifically. The schedule, which may from time to time be amended, supplemented or repealed, shall be uniform in its application throughout the Commonwealth. Such schedule shall not be construed or interpreted so as to limit the discretion of any trial judge trying individual cases at the time fixed for trial. The Rule of the Court establishing the schedule shall be prominently posted in the place where the fines are paid. Fines and costs shall be paid in accordance with the provisions of this Code or any rules or regulations promulgated thereunder.
  4. Local ordinances fulfilling the criteria set out in subsection A may be prepayable in a like manner if such ordinances appear in a schedule entered by order of the local circuit courts. The chief judge of each circuit may establish a schedule of the fines, within the limits prescribed by local ordinances to be imposed for prepayment of local ordinances designating each offense specifically. Upon the entry of such order it shall be forwarded within 10 days to the Supreme Court of Virginia by the clerk of the local circuit court. The schedule, which may from time to time be amended, supplemented or repealed, shall be uniform in its application throughout the circuit. Such schedule shall not be construed or interpreted so as to limit the discretion of any trial judge trying individual cases at the time fixed for trial. This schedule shall be prominently posted in the place where the fines are paid. Fines and costs shall be paid in accordance with the provisions of this Code or any rules or regulations promulgated thereunder.

    (1978, c. 605; 1989, c. 421; 2011, c. 694.)

Cross references. - As to punishment for Class 1 and 2 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2020, c. 1289, Item § 3-6.05, as added by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: "PROCEDURES FOR PREPAYMENT OF CIVIL PENALTIES IN AN EXECUTIVE ORDER

"Any civil penalty under § 44-146.17(1) shall be prepayable in the amount set by executive order and in accordance with § 16.1- 69.40:2 B of the Code of Virginia. Any civil penalty amount set by executive order shall not be construed or interpreted so as to limit the discretion of any trial judge trying individual cases at the time fixed for trial.”

The 2011 amendments. - The 2011 amendment by c. 694, in subsections C and D, deleted "of this section" following "subsection A"; in subsection D, substituted "The chief judge" for "The judges" in the second sentence, and made a minor stylistic change in the third sentence.

§ 16.1-69.40:3. Financial responsibilities of judges and clerks.

The judge of each district court shall have management responsibility over the collection and distribution of all funds received by such court; provided, however, that no judge or clerk shall incur personal liability for a shortage in such funds unless such shortage is a result of his negligence, failure to exercise appropriate supervision or intentional misconduct.

(1979, c. 511.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Clerks of Court, § 10.

§ 16.1-69.41.

Repealed by Acts 1974, c. 3.

Cross references. - For present provisions covering the subject matter of the repealed section, see § 16.1-69.18.

§ 16.1-69.42. Clerk when authorized by judge may execute appeal bonds; may make out and attest transcripts.

The clerk of a district court may, when authorized so to do by the judge of the court he serves, execute appeal bonds in appeals from judgment of the court. Any such clerk may make out and attest transcripts of the papers and records of the court for use in evidence elsewhere.

(1972, c. 708; 1973, c. 546.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Clerks of Court, § 6.

§ 16.1-69.43. Judge before whom accused was arraigned may hear case on merits; judge who has heard part of case may hear case to conclusion.

No rule shall hereafter be promulgated under the limitations of § 8.01-4 or otherwise, which would avoid or preclude the judge before whom an accused is arraigned in criminal cases from hearing all aspects of the case on its merits, or to avoid or preclude any judge in any case who has heard any part of the case on its merits, from hearing the case to its conclusion; provided, however, another judge may hear portions of a case where a judge is required to disqualify himself, in cases in which a mistrial is declared, or in cases which have been reversed on appeal, or in the event of sickness, disability or vacation of the judge. The parties to any suit, action, cause or prosecution may waive the provisions of this section. Such waiver shall be entered of record.

(1973, c. 546.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 38.

Article 5. Financing of the District System.

§ 16.1-69.44. Salaries of judges.

Each district court judge shall be paid by the Commonwealth an annual salary which shall be fixed in the general appropriation acts and set at an amount equal to ninety percent of the annual salary fixed by state law for judges of the circuit courts.

Each substitute judge of a district court shall receive for his services a per diem compensation of $200 except when such judge sits pursuant to the provisions of Title 37.2, in which case compensation shall be limited to that provided in § 37.2-804 . The judge replaced may certify that the substitute judge is entitled to $100 if the substitute judge acted in his official capacity for less than a full court docket or served less than four hours. A full-time judge elected to an initial term after January 1, 1974, shall also be prohibited from engaging in the practice of law.

(1972, c. 708; 1973, c. 546; 1974, c. 612; 1976, cc. 374, 459, 667; 1979, c. 445; 1980, c. 536; 1984, c. 570; 1993, c. 327; 1999, c. 730.)

The 1999 amendment, in the second paragraph, substituted "$200" for "$150" and substituted "$100" for "seventy-five dollars."

§ 16.1-69.45. Salaries of clerks and personnel.

The Committee on District Courts shall fix the salaries for the clerks and personnel of the district courts. Any county or city may supplement the salaries of the clerks and other personnel of the district court wholly out of local funds. However, no supplements may be paid to full-time district court judges or substitute judges. The Commonwealth shall assume the cost of any supplement being paid to a district court employee on January 1, 1980.

(1972, c. 708; 1973, c. 546; 1975, c. 334; 1976, c. 667; 1980, c. 613; 2008, cc. 349, 804; 2012, c. 62.)

The 2008 amendments. - The 2008 amendments by cc. 349 and 804 are identical, and substituted "judges or substitute judges. The Commonwealth" for "judges, substitute judges or district court employees; provided that the Commonwealth" in the second sentence.

The 2012 amendments. - The 2012 amendment by c. 62 inserted the second sentence and inserted "However" in the third sentence.

§ 16.1-69.46. How salaries payable.

All salaries determined according to the provisions of §§ 16.1-69.44 and 16.1-69.45 and any salary payment required by § 16.1-69.37 shall be payable by the Commonwealth, except any supplements paid to district court employees. All annual salaries shall be paid in semimonthly installments within the limits fixed by the Committee.

(1972, c. 708; 1973, c. 546; 2008, cc. 349, 804; 2018, c. 164.)

The 2008 amendments. - The 2008 amendments by cc. 349 and 804 are identical, and inserted "except any supplements paid to district court employees" at the end of the first sentence; deleted "such" preceding "annual salaries" in the second sentence; and made a minor stylistic change.

The 2018 amendments. - The 2018 amendment by c. 164 deleted "16.1-69.13 or" preceding "16.1-69.37."

§ 16.1-69.47.

Repealed by Acts 1980, c. 194.

§ 16.1-69.47:1. Travel expenses of judges and clerks; how paid.

Any judge or clerk traveling more than five miles from the courthouse in the city or county in which he resides on court business shall be entitled to reimbursement by the Commonwealth for such of his actual expenses as are necessarily and ordinarily incidental to such travel. If conveyance is by public transportation, reimbursement shall be at the actual cost thereof. If conveyance is by private transportation, reimbursement shall be at the rate established for members of the General Assembly.

(1973, c. 546; 1975, c. 334; 1978, c. 404.)

§ 16.1-69.48. Fees and fines.

  1. All fees collected by the judge, substitute judge, clerk or employees, but not including fees belonging to officers other than the judge, clerk or employees, of a general district court or juvenile and domestic relations district court shall be paid promptly to the clerk of the circuit court who shall pay the same into the state treasury. Fees collected for services of the attorney for the Commonwealth shall be paid by the clerk of the circuit court, one-half of such fee shall be paid into the treasury of the county or city in which the offense for which warrant issued was committed, and the other one-half of such fees shall be paid by such clerk on his monthly remittance into the state treasury.
  2. Notwithstanding the provisions of subsection A, fines collected for violations of city, town or county ordinances shall be paid promptly to the clerk of the circuit court who shall tender such collected fines on a monthly basis directly to the city, town or county whose ordinance has been violated and not to the state treasury. All fines collected for violations of the laws of the Commonwealth shall be paid promptly to the clerk of the circuit court who shall pay the same into the state treasury.
  3. The word "fees" as used in this section shall include all moneys from every source, exclusive of monthly bank charges, and except collections for child support or support for a spouse or parent, including by way of illustration, but not limited to, the fees collected pursuant to §§ 15.2-1627.3 , 16.1-69.48:1, 18.2-268.1 through 18.2-268.12 , 18.2-271.1 , 19.2-163, 19.2-368.18, 29.1-551 , 46.2-383 , 46.2-1135 , 46.2-1137 and 46.2-1138.1 . (1972, c. 708; 1973, c. 546; 1976, c. 465; 1977, c. 385; 1978, c. 611; 2006, c. 305; 2016, c. 244.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2020, c. 1289, Item 39 I, as amended by Acts 2021, Sp. Sess, I, c. 552, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 16.1-69.48, Code of Virginia, the Executive Secretary of the Supreme Court shall ensure the deposit of all Commonwealth collections directly into the State Treasury for Item 42 General District Courts, Item 43 Juvenile and Domestic Relations District Courts, Item 44 Combined District Courts, and Item 45 Magistrate System."

The 2006 amendments. - The 2006 amendment by c. 305 redesignated subsections (a) through (c) as A through C; and inserted "exclusive of monthly bank charges, and" in subsection C.

The 2016 amendments. - The 2016 amendment by c. 244 rewrote the first sentence of subsection B, which read: "Fines collected for violations of city, town or county ordinances shall be paid promptly to the clerk of the circuit court who shall pay monthly into the treasury of the city, town or county whose ordinance has been violated."

§ 16.1-69.48:1. Fixed fee for misdemeanors, traffic infractions and other violations in district court; additional fees to be added.

  1. Assessment of the fees provided for in this section shall be based on (i) an appearance for court hearing in which there has been a finding of guilty; (ii) a written appearance with waiver of court hearing and entry of guilty plea; (iii) for a defendant failing to appear, a trial in his or her absence resulting in a finding of guilty; (iv) an appearance for court hearing in which the court requires that the defendant successfully complete traffic school, a mature driver motor vehicle crash prevention course, or a driver improvement clinic, in lieu of a finding of guilty; (v) a deferral of proceedings pursuant to § 4.1-305 , 4.1-1120 , 16.1-278.8, 16.1-278.9, 18.2-57.3 , 18.2-251 , 19.2-298.02, 19.2-303.2, or 19.2-303.6; or (vi) proof of compliance with law under §§ 46.2-104 , 46.2-324 , 46.2-613 , 46.2-646 , 46.2-711 , 46.2-715 , 46.2-716 , 46.2-752 , 46.2-1000 , 46.2-1003 , 46.2-1052 , 46.2-1053 , and 46.2-1158.02 . In addition to any other fee prescribed by this section, a fee of $35 shall be taxed as costs whenever a defendant fails to appear, unless, after a hearing requested by such person, good cause is shown for such failure to appear. No defendant with multiple charges arising from a single incident shall be taxed the applicable fixed fee provided in subsection B, C, or D more than once for a single appearance or trial in absence related to that incident. However, when a defendant who has multiple charges arising from the same incident and who has been assessed a fixed fee for one of those charges is later convicted of another charge that arises from that same incident and that has a higher fixed fee, he shall be assessed the difference between the fixed fee earlier assessed and the higher fixed fee. A defendant with charges which arise from separate incidents shall be taxed a fee for each incident even if the charges from the multiple incidents are disposed of in a single appearance or trial in absence. In addition to the fixed fees assessed pursuant to this section, in the appropriate cases, the clerk shall also assess any costs otherwise specifically provided by statute.
  2. In misdemeanors tried in district court, except for those proceedings provided for in subsection C, there shall be assessed as court costs a fixed fee of $61. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:
    1. Processing fee (General Fund)(.573770);
    2. Virginia Crime Victim-Witness Fund (.049180);
    3. Regional Criminal Justice Training Academies Fund (.016393);
    4. Courthouse Construction/Maintenance Fund (.032787);
    5. Criminal Injuries Compensation Fund (.098361);
    6. Intensified Drug Enforcement Jurisdiction Fund (.065574);
    7. Sentencing/supervision fee (General Fund)(.131148); and
    8. Virginia Sexual and Domestic Violence Victim Fund (.032787).
  3. In criminal actions and proceedings in district court for a violation of any provision of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, there shall be assessed as court costs a fixed fee of $136. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:
    1. Processing fee (General Fund)(.257353);
    2. Virginia Crime Victim-Witness Fund (.022059);
    3. Regional Criminal Justice Training Academies Fund (.007353);
    4. Courthouse Construction/Maintenance Fund (.014706);
    5. Criminal Injuries Compensation Fund (.044118);
    6. Intensified Drug Enforcement Jurisdiction Fund (.029412);
    7. Drug Offender Assessment and Treatment Fund (.551471);
    8. Forensic laboratory fee and sentencing/supervision fee (General Fund)(.058824); and
    9. Virginia Sexual and Domestic Violence Victim Fund (.014706).
  4. In traffic infractions tried in district court, there shall be assessed as court costs a fixed fee of $51. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:
    1. Processing fee (General Fund)(.764706);
    2. Virginia Crime Victim-Witness Fund (.058824);
    3. Regional Criminal Justice Training Academies Fund (.019608);
    4. Courthouse Construction/Maintenance Fund (.039216);
    5. Intensified Drug Enforcement Jurisdiction Fund (.078431); and
    6. Virginia Sexual and Domestic Violence Victim Fund (.039216).

      (Code 1950, § 14-132; 1956, c. 556; 1956, Ex. Sess., c. 10; 1958, c. 286; 1960, cc. 278, 368; 1962, c. 546; 1964, c. 386, § 14.1-123; 1968, c. 639; 1970, c. 553; 1975, c. 591; 1977, c. 585; 1978, c. 605; 1979, cc. 525, 594; 1982, cc. 494, 569; 1983, c. 499; 1989, c. 595; 1990, c. 971; 1992, cc. 555, 558; 1995, c. 371; 1996, cc. 62, 976; 1997, c. 215; 1998, c. 872; 2003, cc. 883, 1039; 2004, cc. 371, 375, 1004; 2005, c. 631; 2006, c. 288; 2009, c. 756; 2010, c. 874; 2011, cc. 283, 890; 2014, c. 282; 2017, c. 670; 2019, cc. 14, 57; 2020, c. 1004; 2020, Sp. Sess. I, c. 21; 2021 Sp. Sess. I, cc. 550, 551.)

Cross references. - As to the Regional Criminal Justice Academy Training Fund, see § 9.1-106 . As to the Virginia Sexual and Domestic Violence Victim Fund, see § 9.1-116.1 . As to the Drug Offender Assessment and Treatment Fund, see § 18.2-251.02 . As to the Virginia Crime Victim-Witness Fund, see § 19.2-11.3. As to the Criminal Injuries Compensation Fund, see § 19.2-368.18.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

Effective date. - This section became effective October 1, 1998.

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, rewrote the section.

The 2003 amendments. - The 2003 amendment by c. 883, in the second paragraph of subsection A, substituted "$20" for "ten dollars"; in subsection B, substituted "$57" for "fifty-seven dollars"; and in subsection D, substituted "$42" for "forty-two dollars."

The 2003 amendment by c. 1039, in the second paragraph of subsection A, substituted "10" for "ten dollars"; in subsection B, substituted "$59" for "fifty-seven dollars" in the first sentence, changed the amounts in subdivisions 1 through 7, added "and" at the end of subdivision 6, and deleted former subdivision 8; in subsection C, substituted "$134" for "$132" in the first sentence, changed the amounts in subdivisions 1 through 8, added "and" at the end of subdivision 7, and deleted former subdivision 9; and in subsection D, substituted "$49" for "forty-two dollars" in the first sentence, and changed the amounts in subdivisions 1 through 5.

The 2004 amendments. - The 2004 amendment by c. 371, in subsection A, transferred the last sentence in the former second paragraph to make a new third paragraph and in the present second paragraph, in the second sentence, inserted "applicable fixed" and "subsection B, C or D of" and added the last sentence.

The 2004 amendment by c. 375, in subsection B, substituted "$61" for "$59" in the first sentence and changed the amounts in subdivisions 1 through 7; added subdivision B 8; in subsection C, substituted "$136" for "$134" in the first sentence and changed the amounts in subdivisions 1 through 8; added subdivision C 9; in subsection D, substituted "$51" for "$49" in the first sentence and changed the amounts in subdivisions 1 through 5; added subdivision D 6; and made minor stylistic changes.

The 2004 amendment by c. 1004 inserted "and Treatment" in subdivision C 7.

The 2005 amendments. - The 2005 amendment by c. 631 deleted "18.2-67.2:1" preceding "18.2-251" in subsection A; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 288 inserted "Sexual and" in subdivisions B 8, C 9, and D 6.

The 2009 amendments. - The 2009 amendment by c. 756, in the first paragraph of subsection A, added clause (vi) and made related changes.

The 2010 amendments. - The 2010 amendment by c. 874, cl. 4, as amended by Acts 2011, c. 890, cl. 4, substituted "$35" for "$20" near the beginning of the second paragraph of subsection A.

The 2011 amendments. - The 2011 amendment by c. 283 substituted " §§ 46.2-104 and 46.2-1158.02 " for " §§ 46.2-104 and 46.2-1157 " at the end of clause A (vi).

The 2014 amendments. - The 2014 amendment by c. 282, effective January 1, 2015, in subsection A inserted "a mature driver motor vehicle crash prevention course" in the first paragraph, deleted "of this section" following "B, C, or D" in the second sentence of the second paragraph, and made a minor stylistic change.

The 2017 amendments. - The 2017 amendment by c. 670 inserted "46.2-324, 46.2-613 , 46.2-711 , 46.2-715 , 46.2-716 , 46.2-752 , 46.2-1000 , 46.2-1003 , 46.2-1052 , 46.2-1053 " in clause (vi) of subsection A.

The 2019 amendments. - The 2019 amendments by cc. 14 and 57 are identical, and inserted "46.2-646" in subsection A.

The 2020 amendments. - The 2020 amendment by c. 1004, in clause (v) of subsection A, substituted "18.2-251, 19.2-303.2, or 19.2-303.6" for "18-2-25 or, 19-2-303.2" and made a stylistic change.

The 2020 Sp. Sess. I amendment. - The 2020 amendment by Sp. Sess. I, c. 21, effective March 1, 2021, inserted "19.2-298.02" in clause (v) in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, effective July 1, 2021, are identical, and inserted "4.1-1120" in subsection A in the first paragraph.

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judges, § 10.

§ 16.1-69.48:1.01. Additional fee assessed for conviction of certain offenses.

Beginning May 1, 2003, the clerk shall assess a person, in addition to the fees provided for by § 16.1-69.48:1, a fee of $100 upon conviction of any and each charge of a violation of §§ 18.2-36.1 , 18.2-51.4 , 18.2-266 , 18.2-266.1 , 18.2-268.3 , 46.2-341.24 or § 46.2-341.26:3 , or any similar local ordinance.

(2003, c. 1042, cl. 9.)

Editor's note. - Acts 2003, c. 1042, in cl. 9, which added §§ 16.1-69.48:1.01, 17.1-275.10 , 17.1-275.11 and 46.2-333.1 , provides that the fee prescribed by §§ 16.1-69.48:1.01 and 17.1-275.11 shall not be in addition to the fee prescribed in Items 32, 33, 34 and 35 of the act (Acts 2002, c. 899, as amended by Acts 2003, c. 1042).

Effective date. - This section is effective May 1, 2003.

§ 16.1-69.48:1.02. Additional fee assessed for conviction requiring computer analysis.

In addition to the fees provided for by § 16.1-69.48:1, upon a finding of guilty of any charge or charges in which any computer forensic analysis revealed evidence used at trial of a defendant, the defendant may be assessed costs in an amount equal to the actual cost of the computer forensic analysis not to exceed $100 for each computer analyzed by any state or local law-enforcement agency. Upon motion and submission to the court of an affidavit by the law-enforcement agency setting forth the number of computers analyzed and the total amount of costs requested, the court shall determine the appropriate amount to be assessed and order such amount paid to the law-enforcement agency.

(2011, c. 511.)

§ 16.1-69.48:2. Fees for services of district court judges and clerks and magistrates in civil cases.

Fees in civil cases for services performed by the judges or clerks of general district courts or magistrates in the event any such services are performed by magistrates in civil cases shall be as provided in this section, and, unless otherwise provided, shall be included in the taxed costs and shall not be refundable, except in case of error or as herein provided.

For all court and magistrate services in each distress, detinue, interrogatory summons, unlawful detainer, civil warrant, notice of motion, garnishment, attachment issued, or other civil proceeding, the fee shall be $36. No such fee shall be collected (i) in any tax case instituted by any county, city or town or (ii) in any case instituted by a school board for collection of overdue book rental fees. Of the fees collected under this section, $10 of each such fee collected shall be apportioned to the Courts Technology Fund established under § 17.1-132 .

The judge or clerk shall collect the foregoing fee at the time of issuing process. Any magistrate or other issuing officer shall collect the foregoing fee at the time of issuing process, and shall remit the entire fee promptly to the court to which such process is returnable, or to its clerk. When no service of process is had on a defendant named in any civil process other than a notice of motion for judgment, such process may be reissued once by the court or clerk at the court's direction by changing the return day of such process, for which service by the court or clerk there shall be no charge; however, reissuance of such process shall be within three months after the original return day.

The clerk of any district court may charge a fee for making a copy of any paper of record to go out of his office which is not otherwise specifically provided for. The amount of this fee shall be set in the discretion of the clerk but shall not exceed $1 for the first two pages and $.50 for each page thereafter.

The fees prescribed in this section shall be the only fees charged in civil cases for services performed by such judges and clerks, and when the services referred to herein are performed by magistrates such fees shall be the only fees charged by such magistrates for the prescribed services.

(Code 1950, § 14-133; 1954, c. 287; 1956, c. 556; 1958, c. 555; 1960, cc. 17, 106; 1964, c. 386, § 14.1-125; 1970, c. 569; 1971, Ex. Sess., cc. 155, 253; 1973, c. 545; 1975, c. 591; 1982, c. 569; 1983, c. 499; 1984, cc. 293, 702; 1990, c. 943; 1991, c. 577; 1992, c. 555; 1997, c. 42; 1998, c. 872; 2003, c. 1039; 2006, cc. 623, 718; 2010, c. 874; 2011, c. 890; 2020, c. 1289; 2020, Sp. Sess. I, c. 56.)

Effective date. - This section became effective October 1, 1998.

The 2003 amendments. - The 2003 amendment by c. 1039, in the second paragraph, in the first sentence, substituted "$17" for "twelve dollars," and inserted "or if the amount in controversy is $200 or less, then the fee shall be $12" at the end; and in the next-to-last paragraph, substituted "$1" for "one dollar," and "$.50" for "fifty cents."

The 2006 amendments. - The 2006 amendments by cc. 623 and 718 are nearly identical, and in the second paragraph, in the first sentence, substituted "$22 for the period between July 1, 2006, and December 31, 2006, and $27 thereafter" for "$17" and "$22" for "$12" and added the last two sentences.

The 2010 amendments. - The 2010 amendment by c. 874, cl. 4, as amended by Acts 2011, c. 890, cl. 4, rewrote the second paragraph.

The 2020 amendments. - The 2020 amendment by c. 1289, cl. 5, as amended by Acts 2020 Sp. Sess. I, c. 56, substituted "$36" for "$30" in the first sentence in the second paragraph.

CIRCUIT COURT OPINIONS

Reissuance of service. - Since process can be reissued where service was not found, a warrant in debt is still pending on the docket for that three month period and has not been dismissed, abated or nonsuited, and since the statute specifically applies to the reissuance of process within three months of the return date which is 90 days and all parties agreed that the statute of limitations was tolled for 34 days, that would extend the original statute of limitations by 124 days, when added to May 17, 2011, accrual date, and clearly made July 1, 2013, the refiled date, within the tolled statute of limitations. Samayoa-Bolanos v. Williams, 91 Va. Cir. 106, 2015 Va. Cir. LEXIS 159 (Newport News Aug. 12, 2015).

§ 16.1-69.48:3. Fees charged to drug offenders.

Whenever in a general district court the costs provided for in subsection C of § 16.1-69.48:1 are assessed for a violation of any provision of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, a portion of the costs, as specified in subsection C of § 16.1-69.48:1, shall be included in the taxed costs and paid into the Drug Offender Assessment and Treatment Fund.

(1995, c. 463, § 14.1-134.1; 1998, cc. 783, 840, 872; 2002, c. 831; 2004, c. 1004.)

Editor's note. - Acts 1998, cc. 783 and 840, amended § 14.1-134.1, which was repealed by Acts 1998, c. 872, effective October 1, 1998. At the direction of the Code Commission, effect has been given in this section, as set out above, to Acts 1998, cc. 783 and 840. In accordance with cc. 783 and 840, the amendments, which are identical, substituted "seventy-five dollars" for "$50," inserted "and paid into the Drug Offender Assessment Fund," and deleted the former last sentence, which read: "The clerk shall pay the fee to the state treasury."

Effective date. - This section became effective October 1, 1998.

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, rewrote the section.

The 2004 amendments. - The 2004 amendment by c. 1004 substituted "Drug Offender Assessment and Treatment Fund" for "Drug Offender Assessment Fund."

§ 16.1-69.48:4. Costs generally.

The provisions of Chapter 6 (§ 17.1-600 et seq.) of Title 17.1 shall apply, mutatis mutandis, to the laws of costs in the district courts.

(1998, c. 872.)

Effective date. - This section is effective October 1, 1998.

OPINIONS OF THE ATTORNEY GENERAL

Clerk is not authorized to determine whether deferred judgment order is statutorily authorized prior to assessing applicable costs. - The clerk of the general district court is neither required nor authorized to determine whether a deferred judgment order is statutorily authorized prior to assessing applicable costs. See opinion of Attorney General to The Honorable Joel C. Cunningham, Judge, General District Court of Halifax County, 01-046 (12/21/01).

§ 16.1-69.48:5. Fees for services of juvenile and domestic relations district court judges and clerks in certain civil cases.

Except as otherwise provided, upon the initial commencement of any case in the juvenile and domestic relations district court pursuant to subdivision A 3 of § 16.1-241 when the custody or visitation of a child is a subject of controversy or requires determination, there shall be a filing fee of $25. However, only one $25 fee shall be required for all custody and visitation petitions simultaneously initiated by a single petitioner. Notwithstanding any other provision of law, there shall be no other fees or costs added to this fee as a condition of filing. No case to which this fee is applicable shall be set for hearing by the clerk until this fee has been paid except on account of poverty as provided in § 17.1-606 . Fees shall be paid to the clerk in the jurisdiction in which the petition is filed.

This fee shall not be charged in any case brought by an agent of the Commonwealth or of a local government entity.

When service of process is had on the respondent named in a petition for which the filing fee established by this section has been paid, such petition may be reissued once by changing the return day of such process, for which service there shall be no charge; however, reissuance of such process shall be within three months after the original return day.

In the case of an appeal filed pursuant to § 16.1-296, the clerk shall collect any applicable fees for service of process of the notice of appeal in the circuit court from the appellant prior to transmitting the case to the clerk of the circuit court. For purposes of this section, service of process in the circuit court may include service on the appellee by the sheriff or private process server or certified or registered mail, and service on the attorney for the appellee by regular mail.

(2003, c. 906; 2004, cc. 366, 659, 727.)

The 2004 amendments. - The 2004 amendment by c. 366 added the last paragraph.

The 2004 amendments by cc. 659 and 727 are identical, and inserted the second and third sentences in the first paragraph.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

§ 16.1-69.48:6. Fees for offenses related to sex trafficking.

The court shall order any person convicted of a misdemeanor violation of § 18.2-346.01 or of § 18.2-348 or 18.2-349 to pay a $100 fee, which shall be deposited into the Virginia Prevention of Sex Trafficking Fund to be used in accordance with § 9.1-116.4 .

(2019, c. 728; 2021, Sp. Sess. I, c. 188.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01 " for "subsection B of § 18.2-346 ."

§ 16.1-69.49.

Repealed by Acts 1978, c. 611.

§ 16.1-69.50. Quarters for court and clerk.

Each county and city having a general district court or juvenile and domestic relations district court shall provide suitable quarters for such court and its clerk and social services staff and a suitable room or rooms for the sessions of the court at the places designated for such purpose, except that if the court of a county is held in a city or town, other than the county seat, such city or town shall provide a suitable place for the court to be held. Such county or city shall also provide all necessary furniture, filing cabinets and other equipment necessary for the efficient operation of the court.

(1972, c. 708; 1973, c. 546.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-69.51. Books, supplies, etc.; how furnished; Committee to determine form of records.

The Commonwealth shall provide dockets and other books, stationery and supplies necessary for the efficient operation of all district courts. Notwithstanding any other provision of law, the Committee on District Courts, after consultation with the Executive Secretary of the Supreme Court, may determine the form and character of the records of the district courts and magistrates. All dockets shall be uniform, and the form thereof shall also be subject to approval by the Auditor of Public Accounts.

(1972, c. 708; 1973, c. 546; 1975, c. 334; 1985, c. 133.)

§ 16.1-69.51:1. Display of flags in courtrooms.

There shall be displayed inside each courtroom of all district courts in the cities and counties of the Commonwealth the flag of the United States of America and the flag of the Commonwealth of Virginia. The governing bodies of the respective counties and cities shall make provision for such display and may accept gifts or flags for such purpose.

(1976, c. 445.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Flags and Emblems, § 1.

§ 16.1-69.52.

Repealed by Acts 1983, c. 499.

Cross references. - For current provisions as to retention and disposition of district court records, see § 16.1-69.53 et seq.

Article 6. Retention and Disposition of District Court Records.

§ 16.1-69.53. Definitions; construction of references to period of years.

As used in this article, the following terms shall have the following meanings:

"Court records" shall include case records, financial records and administrative records as defined in this section.

"Case records" shall mean all documents, dockets and indices.

"Documents" shall mean all motions for judgment, bills of complaint, answers, bills of particulars, other pleadings, interrogatories, motions in writing, warrants, summonses, petitions, proof of service, witness summonses and subpoenas, documents received in evidence, transcripts, orders, judgments, writs, and any other similar case-related records and papers in the possession of the district courts and filed with the pleadings in the case.

"Financial records" shall mean all papers and records related to the receipt and disbursement of money by the district court.

"Administrative records" shall mean all other court papers and records not otherwise defined.

Whenever a reference to a period of years for the retention of documents is made in this section, it shall be construed to commence on January 2 of the first year following (i) the final adjudication of a civil case or (ii) the final disposition in all other cases, unless otherwise specified herein. In foster care cases, the final disposition date is the date of transfer of custody to a local board of social services or a child welfare agency.

(1983, c. 499; 2002, c. 747.)

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, deleted "public welfare or" preceding "social services" in the last paragraph.

§ 16.1-69.54. General provisions.

  1. Each district court shall retain and store its court records as provided in this article. The Committee on District Courts, after consultation with the Executive Secretary of the Supreme Court of Virginia, shall determine the methods of processing, retention, reproduction and disposal of records and information in district courts, including records required to be retained in district courts by statute.
  2. Whenever a court record has been reproduced for the purpose of record retention under this article, such original may be disposed of upon completion of the Commonwealth's audit of the court records unless approval is given by the Auditor of Public Accounts for earlier disposition. In the event of such reproduction, the reproduction of the court record shall be retained in accordance with the retention periods specified in this section. The reproduction shall have the same force and effect as the original court record and shall be given the same faith and credit to which the original itself would have been entitled in any judicial or administrative proceeding.
  3. Electronic case papers, whether originating in electronic form or converted to electronic form, shall constitute the official record of the case. Such electronic case papers shall also fulfill any statutory requirement that requires an original, original paper, paper, record, document, facsimile, memorandum, exhibit, certification, or transcript if such electronic case papers are in an electronic form approved by the Executive Secretary of the Supreme Court. When case papers are transmitted between the district and circuit courts and there is an agreement between the chief judge of the applicable district court and the clerk of the circuit court for the electronic transmission of case papers, the case papers shall be transmitted between the courts by an electronic method approved by the Executive Secretary of the Supreme Court, with the exception of any exhibit that cannot be electronically transmitted. The clerk in the appellate court may also request that any paper trial records be forwarded to such clerk.

    (1983, c. 499; 2018, cc. 32, 134.)

The 2018 amendments. - The 2018 amendments by cc. 32 and 134 are identical, and inserted the subsection A and B designations and added subsection C.

§ 16.1-69.54:1. Request for district court records.

  1. For the purposes of this section, "confidential court records," "court records," and "nonconfidential court records" shall have the same meaning as set forth in § 17.1-292 .
  2. Requests for copies of nonconfidential court records maintained in individual case files shall be made to the clerk of a district court.
  3. Requests for reports of aggregated, nonconfidential case data fields that are viewable through the online case information systems maintained by the Executive Secretary of the Supreme Court shall be made to the Office of the Executive Secretary. Such reports of aggregated case data shall not include the name, date of birth, or social security number of any party and shall not include images of the individual records in the respective case files. However, nothing in this section shall be construed to permit any reports or aggregated case data to be sold or posted on any other website or in any way redistributed to any third party. The Executive Secretary, in his discretion, may deny such request to ensure compliance with these provisions. However, such data may be included in products or services provided to a third party, provided that such data is not made available to the general public.
  4. Any clerk or the Executive Secretary, as applicable, may require that the request be in writing and that the requester provide his name and legal address. A request for nonconfidential court records or reports of aggregated nonconfidential case data shall identify the requested records with reasonable specificity. Any clerk or the Executive Secretary, as applicable, may determine the costs to provide the requested records to the requester, advise the requester of such costs, and, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination, which shall be credited to the final cost of supplying the requested records. No clerk, nor the Executive Secretary, shall be required to create a new record if the record does not already exist or provide a report of aggregated, nonconfidential case data in a format not regularly used by the clerk or the Executive Secretary; however, a clerk or the Executive Secretary, as applicable, may abstract or summarize information under such terms and conditions as agreed to by the requester and the clerk or Executive Secretary, as provided herein.
  5. Except where the nature or size of the request would interfere with the business of the court or with its use by the general public, or as otherwise provided by law, the requested court records or reports of aggregated, nonconfidential case data shall be provided to the requester within a reasonable period of time, given the nature of the request and the availability of staff to respond to the request, but in no event longer than 30 days from the date of a complete request made by a requester that is fully compliant with the requirements of this section and other applicable law. Any objection or assertion of confidentiality shall be provided to the requester within a reasonable period of time, but in no event longer than 30 days from the date of a complete request made by a requester.
  6. Any clerk, or the Executive Secretary, may require payment in advance of all reasonable costs, not to exceed the actual cost incurred in accessing, duplicating, reviewing, supplying, or searching for the requested court records or reports of aggregated, nonconfidential case data, including removing any confidential information contained in the court records from the nonconfidential court records being provided, excluding any extraneous, intermediary, or surplus fees or expenses to recoup the general overhead costs associated with creating or maintaining records or transacting the general business of the clerk or the Office of the Executive Secretary. Before processing a request for court records or reports of aggregated, nonconfidential case data, any clerk or the Executive Secretary may require the requester to pay any amounts owed to the clerk or the Office of the Executive Secretary for previous requests for court records or reports of aggregated, nonconfidential case data that remain unpaid 30 days or more after billing.
  7. Any clerk and the Executive Secretary shall be immune from any suit arising from the production of court records or reports of aggregated nonconfidential case data in accordance with this section absent gross negligence or willful misconduct.

    (2018, cc. 127, 584.)

Editor's note. - Acts 2019, cc. 355 and 356, cl. 5 provides: "That the Virginia Housing Commission shall request data from the Executive Secretary pursuant to § 16.1-69.54:1 and conduct evaluations of the effectiveness and efficiency of the eviction diversion pilot program established by the first enactment of this act. To assist the Commission, the Office of the Executive Secretary of the Virginia Supreme Court shall provide the data requested by the Commission in electronic format, at such times as requested by the Commission."

§ 16.1-69.55. Retention of case records; limitations on enforcement of judgments; extensions.

  1. Criminal and traffic infraction proceedings:
    1. In misdemeanor and traffic infraction cases, except misdemeanor cases under § 16.1-253.2, 18.2-57.2 , or 18.2-60.4 , all documents shall be retained for 10 years, including cases sealed in expungement proceedings under § 19.2-392.2. In misdemeanor cases under § 16.1-253.2, 18.2-57.2 , or 18.2-60.4 , all documents shall be retained for 20 years. In misdemeanor cases under §§ 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4 :2, 18.2-346 , 18.2-346 .01, 18.2-347 , 18.2-348 , 18.2-349 , 18.2-370 , 18.2-370.01 , 18.2-374 , 18.2-386.1 , 18.2-387 , and 18.2-387 .1, all documents shall be retained for 50 years. Documents in misdemeanor and traffic infraction cases for which an appeal has been made shall be returned to and filed with the clerk of the appropriate circuit court pursuant to § 16.1-135;
    2. In felony cases that are certified to the grand jury, all documents shall be certified to the clerk of the appropriate circuit court pursuant to §§ 19.2-186 and 19.2-190. All other felony case documents shall be handled as provided in subdivision 1;
    3. Dockets and indices shall be retained for 10 years.
  2. Civil proceedings:
    1. All documents in civil proceedings in district court that are dismissed, including dismissal under § 8.01-335 , shall be retained until completion of the Commonwealth's audit of the court records. Notwithstanding § 8.01-275.1 , the clerks of the district courts may destroy documents in civil proceedings in which no service of process is had 24 months after the last return date;
    2. In civil actions that result in a judgment, all documents in the possession of the general district court shall be retained for 10 years and, unless sooner satisfied, the judgment shall remain in force for a period of 10 years;
    3. In civil cases that are appealed to the circuit court pursuant to § 16.1-112, all documents pertaining thereto shall be transferred to the circuit court in accordance with those sections;
    4. The limitations on enforcement of general district court judgments provided in § 16.1-94.1 shall not apply if the plaintiff, prior to the expiration of that period for enforcement, pays the circuit court docketing and indexing fees on judgments from other courts together with any other required filing fees and dockets the judgment in the circuit court having jurisdiction in the same geographic area as the general district court. However, a judgment debtor wishing to discharge a judgment pursuant to the provisions of § 8.01-456 , when the judgment creditor cannot be located, may, prior to the expiration of that period for enforcement, pay the circuit court docketing and indexing fees on judgments from other courts together with any other required filing fees and docket the judgment in the circuit court having jurisdiction in the same geographic area as the general district court. After the expiration of the period provided in § 16.1-94.1, executions on such docketed civil judgments may issue from the general district court wherein the judgment was obtained upon the filing in the general district court of an abstract from the circuit court. In all other respects, the docketing of a general district court judgment in a circuit court confers upon such judgment the same status as if the judgment were a circuit court judgment;
    5. Dockets for civil cases shall be retained for 10 years;
    6. Indices in civil cases shall be retained for 10 years.
  3. Juvenile and domestic relations district court proceedings:
    1. In adult criminal cases, all records shall be retained as provided in subdivision A 1;
    2. In juvenile cases, all documents and indices shall be governed by the provisions of § 16.1-306;
    3. In all cases involving support arising under Title 16.1, 20, or 63.2, all documents and indices shall be retained until the last juvenile involved, if any, has reached 19 years of age and 10 years have elapsed from either dismissal or termination of the case by court order or by operation of law. Financial records in connection with such cases shall be subject to the provisions of § 16.1-69.56;
    4. In all cases involving sexually violent offenses, as defined in § 37.2-900 , and in all misdemeanor cases under §§ 18.2-67.4 , 18.2-67.4 :1, 18.2-67.4:2 , 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-349 , 18.2-370 , 18.2-370.01 , 18.2-374 , 18.2-386.1 , 18.2-387 , and 18.2-387 .1, all documents shall be retained for 50 years;
    5. In cases transferred to circuit court for trial as an adult or appealed to circuit court, all documents pertaining thereto shall be transferred to circuit court;
    6. All dockets in juvenile cases shall be governed by the provisions of subsection F of § 16.1-306.
  4. At the direction of the chief judge of a district court, the clerk of that court may cause any or all papers or documents pertaining to civil and criminal cases that have been ended to be destroyed if such records, papers, or documents will no longer have administrative, fiscal, historical, or legal value to warrant continued retention, provided such records, papers, or documents have been microfilmed or converted to an electronic format. Such microfilm and microphotographic processes and equipment shall meet state archival microfilm standards pursuant to § 42.1-82 , or such electronic format shall follow state electronic records guidelines, and such records, papers, or documents so converted shall be placed in conveniently accessible files and provisions made for examining and using the same. The provisions of this subsection shall not apply to the documents for misdemeanor cases under §§ 16.1-253.2, 18.2-57.2 , 18.2-60.4 , 18.2-67.4 , 18.2-67.4 :1, 18.2-67.4:2 , 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-349 , 18.2-370 , 18.2-370.01 , 18.2-374 , 18.2-386.1 , 18.2-387 , and 18.2-387 .1, which shall be retained as provided in subsection A. (1983, c. 499; 1990, c. 258; 1996, c. 463; 2003, c. 126; 2005, c. 135; 2007, cc. 369, 468, 869; 2008, c. 749; 2009, c. 740; 2011, cc. 445, 480; 2013, cc. 187, 377; 2014, c. 287; 2018, c. 128; 2021, Sp. Sess. I, c. 188.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2003 amendments. - The 2003 amendment by c. 126 substituted "10" for "ten" throughout the section; in subdivision B 1, deleted "or in which no service of process is had" following " § 8.01-335 ," and added the last sentence; and substituted "19" for "nineteen" in subdivision C 3.

The 2005 amendments. - The 2005 amendment by c. 135 rewrote subdivision B 4.

The 2007 amendments. - The 2007 amendments by cc. 369 and 468 are identical, and inserted the present second sentence in subdivision B 4.

The 2007 amendment by c. 869 substituted "civil cases that are appealed to the circuit court pursuant to § 16.1-112" for "civil cases which are either removed or appealed to the circuit court pursuant to §§ 16.1-92 and 16.1-112 respectively" in subdivision B 3.

The 2008 amendments. - The 2008 amendment by c. 749, in subdivision A 1, inserted "except misdemeanor cases under § 16.1-253.2 or 18.2-57.2 " in the first sentence and inserted the second sentence.

The 2009 amendments. - The 2009 amendment by c. 740, in subdivision A 1, inserted the third sentence; added subdivision C 4; and redesignated former subdivisions C 4 and C 5 and subdivisions C 5 and C 6, respectively.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and in subdivision A 1, twice inserted "or 18.2-60.4 " and made related changes.

The 2013 amendments. - The 2013 amendments by cc. 187 and 377 are nearly identical, and in subsection A, deleted "18.2-370.1" preceding "18.2-374" in the next-to-last sentence of subdivision A 1, in subdivision A 2, substituted "that" for "which" in the first sentence and deleted "A 1 of this section" from the end of the last sentence; in subsection B, substituted "that" for "which" in the first sentence of subdivision B 1 and in subdivision B 2; in subsection C, deleted "of this section" following "subdivision A 1" in subdivision C 1, substituted "Title" for "Titles" in the first sentence of subdivision C 3, deleted "18.2-370.1" preceding "18.2-374" in subdivision C 4, and substituted "subsection F of § 16.2-306" for " § 16.1-306 F" in subdivision C 6; and added subsection D.

The 2014 amendments. - The 2014 amendment by c. 287, in subsection D deleted "general" preceding "district court" in the first sentence.

The 2018 amendments. - The 2018 amendment by c. 128 deleted "for a period of three years or longer" following "have been ended" in the first sentence of subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in subdivisions A 1 and C 4, and subsection D.

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

CASE NOTES

Certification of records. - Circuit court did not err in admitting a general district court's records because after the records were properly certified by the circuit court clerk, they became a part of the circuit court's file, were properly authenticated when the circuit court clerk certified them, and were admissible as evidence. Snowden v. Commonwealth, 62 Va. App. 482, 749 S.E.2d 223, 2013 Va. App. LEXIS 303 (2013).

§ 16.1-69.56. Retention of financial and administrative records.

Appropriate retention periods for the financial and administrative records of the district courts and magistrates shall be prescribed by the Supreme Court of Virginia. In the case of financial records only, the retention period prescribed by the court shall be subject to approval by the Auditor of Public Accounts.

(1983, c. 499; 1987, c. 160.)

§ 16.1-69.57. Destruction of court records.

The clerk of each district court shall destroy the court records upon expiration of the appropriate retention period as set forth in §§ 16.1-69.55 and 16.1-69.56 and consistent with the requirements of confidentiality for juvenile records. The Supreme Court shall determine the methods to be used in destroying court records. Likewise, magistrates shall destroy records retained in the office of the magistrate upon the expiration of the appropriate retention period as set forth in § 16.1-69.56.

(1983, c. 499; 1987, c. 160.)

§ 16.1-69.58. Processing, retention and reproduction of court records; retention and destruction of records in which final disposition was entered before January 1, 1985.

The Committee on District Courts, after consultation with the Executive Secretary of the Supreme Court, shall determine the methods for processing, retention and reproduction of court records and all other records required by statute to be retained in the district courts and for records retained in the office of the magistrate.

The provisions for retention and destruction of records contained in §§ 16.1-117, 16.1-118 and 16.1-118.1 shall apply to court records in district court cases in which a final disposition was entered before January 1, 1985.

(1983, c. 499; 1987, c. 160.)

Chapter 5. Courts of Limited Jurisdiction.

Sec.

§§ 16.1-70 through 16.1-75.

Repealed by Acts 2018, c. 164, cl. 2.

Editor's note. - Former § 16.1-70 pertaining to certain city and town police courts, derived from 1956, c. 555.

Former § 16.1-70.1, pertaining to abolition of municipal court of the Town of Herndon, derived from 1972, c. 708; 1973, c. 546; 1974, c. 648; 1977, c. 95.

Former § 16.1-71, pertaining to applicability of provisions of municipal charters and the authority of city or town council, derived from Acts 1956, c. 555.

Former § 16.1-72, pertaining to removal of actions involving more than fifty dollars, derived from Acts 1956, c. 555.

Former § 16.1-73, pertaining to appeals of actions in municipal courts, derived from Acts 1956, c. 555.

Former § 16.1-74, pertaining to procedure in certain courts of limited jurisdiction, derived from Acts 1956, c. 555.

Former § 16.1-75, pertaining to jurisdiction of mayors, etc., superseded, and continuance of other powers of courts of limited jurisdiction, derived from Acts 1956, c. 555.

§ 16.1-75.1.

Repealed by Acts 1973, c. 545.

Chapter 6. Venue, Jurisdiction and Procedure in Civil Matters.

Venue in Civil Matters.

Jurisdiction in Civil Actions.

Procedure in Civil Cases.

Trying Title to Property Levied on Under Distress or Execution.

Small Claims Court.

Article 1. Venue in Civil Matters.

§ 16.1-76. Venue.

In all civil actions over which the general district courts have jurisdiction pursuant to § 16.1-77, venue shall be determined in accordance with the provisions of Chapter 5 (§ 8.01-257 et seq.) of Title 8.01.

(1956, c. 555; 1977, c. 624; 1978, c. 421.)

Michie's Jurisprudence. - For related discussion, see 19 M.J. Venue, § 5.

Article 2. Jurisdiction in Civil Actions.

§ 16.1-77. Civil jurisdiction of general district courts; amending amount of claim.

Except as provided in Article 5 (§ 16.1-122.1 et seq.), each general district court shall have, within the limits of the territory it serves, civil jurisdiction as follows:

  1. Exclusive original jurisdiction of (i) any claim to specific personal property or to any debt, fine or other money, or to damages for breach of contract or for injury done to property, real or personal, when the amount of such claim does not exceed $4,500, exclusive of interest and any attorney fees, and concurrent jurisdiction with the circuit courts having jurisdiction in such territory of any such claim when the amount thereof exceeds $4,500 but does not exceed $25,000, exclusive of interest and any attorney fees, and (ii) any action for injury to person, regardless of theory, and any action for wrongful death as provided for in Article 5 (§ 8.01-50 et seq.) of Chapter 3 of Title 8.01 when the amount of such claim does not exceed $4,500, exclusive of interest and any attorney fees, and concurrent jurisdiction with the circuit courts having jurisdiction in such territory of any such claim when the amount thereof exceeds $4,500 but does not exceed $50,000, exclusive of interest and any attorney fees. However, the jurisdictional limit shall not apply with respect to distress warrants under the provisions of § 8.01-130.4 , cases involving liquidated damages for violations of vehicle weight limits pursuant to § 46.2-1135 , nor cases involving forfeiture of a bond pursuant to § 19.2-143. While a matter is pending in a general district court, upon motion of the plaintiff seeking to increase the amount of the claim, the court shall order transfer of the matter to the circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer. Except for good cause shown, no such order of transfer shall issue unless the motion to amend and transfer is made at least 10 days before trial. The plaintiff shall pay filing and other fees as otherwise provided by law to the clerk of the court to which the case is transferred, and such clerk shall process the claim as if it were a new civil action. The plaintiff shall prepare and present the order of transfer to the transferring court for entry, after which time the case shall be removed from the pending docket of the transferring court and the order of transfer placed among its records. The plaintiff shall provide a certified copy of the transfer order to the receiving court.
  2. Jurisdiction to try and decide attachment cases when the amount of the plaintiff's claim does not exceed $25,000 exclusive of interest and any attorney fees.
  3. Jurisdiction of actions of unlawful entry or detainer as provided in Article 13 (§ 8.01-124 et seq.) of Chapter 3 of Title 8.01, and in Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, and the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim or cross-claim in an unlawful detainer action that includes a claim for damages sustained or rent against any person obligated on the lease or guarantee of such lease.
  4. Except where otherwise specifically provided, all jurisdiction, power and authority over any civil action or proceeding conferred upon any general district court judge or magistrate under or by virtue of any provisions of the Code.
  5. Jurisdiction to try and decide suits in interpleader involving personal or real property where the amount of money or value of the property is not more than the maximum jurisdictional limits of the general district court. However, the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim, or cross-claim in an interpleader action that is limited to the disposition of an earnest money deposit pursuant to a real estate purchase contract. The action shall be brought in accordance with the procedures for interpleader as set forth in § 8.01-364 . However, the general district court shall not have any power to issue injunctions. Actions in interpleader may be brought by either the stakeholder or any of the claimants. The initial pleading shall be either by motion for judgment, by warrant in debt, or by other uniform court form established by the Supreme Court of Virginia. The initial pleading shall briefly set forth the circumstances of the claim and shall name as defendant all parties in interest who are not parties plaintiff.
  6. Jurisdiction to try and decide any cases pursuant to § 2.2-3713 of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) or § 2.2-3809 of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.), for writs of mandamus or for injunctions.
  7. Jurisdiction to try and decide any cases pursuant to § 55.1-1819 of the Property Owners' Association Act (§ 55.1-1800 et seq.) or § 55.1-1959 of the Virginia Condominium Act (§ 55.1-1900 et seq.).
  8. Concurrent jurisdiction with the circuit courts to submit matters to arbitration pursuant to Chapter 21 (§ 8.01-577 et seq.) of Title 8.01 where the amount in controversy is within the jurisdictional limits of the general district court. Any party that disagrees with an order by a general district court granting an application to compel arbitration may appeal such decision to the circuit court pursuant to § 8.01-581.016 . For purposes of this section, the territory served by a county general district court expressly authorized by statute to be established in a city includes the general district court courtroom. (1956, c. 555; 1968, c. 5; 1973, c. 440; 1978, c. 40; 1981, c. 404; 1983, c. 616; 1987, cc. 87, 93; 1988, c. 799; 1990, cc. 217, 471; 1991, c. 135; 1992, cc. 111, 777; 1995, c. 799; 1997, c. 753; 1998, cc. 482, 495; 1999, cc. 945, 987; 2001, cc. 473, 477; 2002, cc. 200, 506, 645; 2004, cc. 344, 460; 2008, cc. 840, 843; 2009, c. 663; 2010, c. 181; 2011, cc. 14, 76, 372, 378, 702; 2016, c. 181; 2017, c. 657; 2019, cc. 240, 787; 2020, cc. 898, 899; 2021, Sp. Sess. I, cc. 199, 463.)

Cross references. - As to constitutional authority to establish and regulate jurisdiction of inferior courts, see Va. Const., Art. IV, § 14.

Editor's note. - Acts 1988, c. 799, cl. 2, as amended by Acts 1990, c. 565, cl. 1, Acts 1993, c. 593, cl. 1, and Acts 1997, c. 253, cl. 1, provides that the provisions of the 1988 act, which, in part, amended this section, shall become effective October 1, 1988, and no longer expire, as provided for in the original legislation.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "8.01-130.4" for "55-230," "Chapter 14 ( § 55.1-1400 et seq.) of Title 55.1" for "Chapter 13 ( § 55-217 et seq.) of Title 55" and " § 55.1-1819 of the Property Owners' Association Act ( § 55.1-1800 et seq.) or § 55.1-1959 of the Virginia Condominium Act ( § 55.1-1900 et seq.)" for " § 55-79.80:2 of the Condominium Act ( § 55-79.39 et seq.) or § 55-513 of the Property Owners' Association Act ( § 55-508 et seq.)."

The 1998 amendments. - The 1998 amendments by cc. 482 and 495 are identical, and substituted "$3,000" for "$1,000" in two places in subdivision (1).

The 1999 amendments. - The 1999 amendments by cc. 945 and 987 are identical, and substituted "( § 46.2-355.1 et seq.)" for "( § 46.2-351 et seq.)" in subdivision (7).

The 2001 amendments. - The 2001 amendments by cc. 473 and 477, effective October 1, 2001, are identical, and added subdivision (8).

The 2002 amendments. - The 2002 amendments by cc. 200 and 506 are identical, and in subdivision (1), substituted "person that" for "person, which" in the first sentence and added "nor shall it apply to cases involving liquidated damages for violations of vehicle weight limits pursuant to § 46.2-1135 " at the end of the second sentence; and at the beginning of subdivision (8), deleted the parenthetical "(Effective October 1, 2001)."

The 2002 amendment by c. 645 substituted "$4,500" for "$3,000" twice in subdivision 1.

The 2004 amendments. - The 2004 amendment by c. 344, in subdivision (3), inserted "counter-claim or cross-claim in an action" near the middle in the first sentence and added the last sentence.

The 2004 amendment by c. 460, in subdivision (1), in the last sentence, deleted "nor shall it apply to" following " § 55-230" and inserted "nor cases involving forfeiture of a bond pursuant to § 19.2-143" at the end.

The 2008 amendments. - The 2008 amendments by cc. 840 and 843, effective July 1, 2010, are identical, and inserted "or § 2.2-3809 of the Government Data Collection and Dissemination Practices Act" in subdivision (6).

The 2009 amendments. - The 2009 amendment by c. 663, in subdivision (3), in the first sentence, inserted "an unlawful detainer," "that includes a claim" and "against any person obligated on the lease."

The 2010 amendments. - The 2010 amendment by c. 181, in subdivision (5), added the second sentence, added "or by other uniform court form established by the Supreme Court of Virginia" to the end of the fifth sentence, and made a related change.

The 2011 amendments. - The 2011 amendments by cc. 14 and 702 are identical, and in subdivision (1), twice substituted "$25,000" for "$15,000"; and in subdivision (2), substituted "$25,000" for "$15,000."

The 2011 amendment by c. 76, in subdivision (3), in the first sentence, deleted "proved to be owning where the premises were used by the occupant primarily for business, commercial or agricultural purposes" from the end and added "or guarantee of such lease," and deleted the last sentence, which read: "Any counter-claim or cross-claim shall arise out of the same use of the property for business, commercial or agricultural purposes."

The 2011 amendments by cc. 372 and 378 are identical, and added subdivision (9).

The 2016 amendments. - The 2016 amendment by c. 181 deleted "of this chapter" following "( § 16.1-122.1 et seq.)" in the introductory paragraph; in subdivision (4), deleted "of Virginia" at the end; in subdivision (6), inserted "( § 2.2-3800 et seq.)"; and added subdivision (10).

The 2017 amendments. - The 2017 amendment by c. 657 substituted "attorney fees" for "attorney's fees contracted for in the instrument" throughout subdivisions (1) and (2).

The 2019 amendments. - The 2019 amendment by c. 240 added the last paragraph.

The 2019 amendment by c. 787 added the last five sentences to subdivision (1).

The 2020 amendments. - The 2020 amendments by cc. 898 and 899 are identical, and deleted the existing provisions of subdivision (8), which read "Jurisdiction to try and decide cases alleging a civil violation described in § 18.2-76 ." and redesignated accordingly.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 199, effective July 1, 2021, in subdivision (1), inserted the clause (i) designation, deleted "or for any injury to the person that would be recoverable by action at law or suit in equity" following "real or personal" therein, and added clause (ii) in the first sentence, and substituted "the jurisdictional" for "this $25,000" in the second sentence; and made stylistic changes.

The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, deleted former subdivision (7), which read: "Concurrent jurisdiction with the circuit courts having jurisdiction in such territory to adjudicate habitual offenders pursuant to the provisions of Article 9 ( § 46.2-355.1 et seq.) of Chapter 3 of Title 46.2," and redesignated the remaining subdivisions according.

Law review. - For note, "Obtaining Jurisdiction Over Corporations in Virginia," see 12 U. Rich. L. Rev. 369 (1978). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985). For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 2; 2A M.J. Attachment and Garnishment, §§ 2, 24; 5A M.J. Courts, § 43.

Editor's note. - Some of the cases below were decided under former statutes corresponding to this section.

CASE NOTES

Jurisdiction limited by statute. - The judicial authority of a justice of the peace [now general district court judge] is entirely statutory. He can exercise only such jurisdiction as is expressly conferred on him. City of Richmond v. Sutherland, 114 Va. 688 , 77 S.E. 470 (1913); Epperty v. Holley, 3 Va. L. Reg. (n.s.) 27 (1917); Copperthite Pie Corp. v. Whitehurst, 157 Va. 480 , 162 S.E. 189 (1932); Wall v. American Bank & Trust Co., 159 Va. 871 , 167 S.E. 425 (1933); Fuller v. Edwards, 180 Va. 191 , 22 S.E.2d 26 (1942).

A trial justice (appointed under Chapter 2 of former Title 16, now general district court judge) has limited jurisdiction and, since he derives all his jurisdictional authority from statute, he can only exercise such jurisdiction as is expressly conferred upon him. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946).

Actions involving title to realty. - See Martin v. City of Richmond, 108 Va. 765 , 62 S.E. 800 (1908).

A trial justice [now general district court judge] has no jurisdiction in cases involving title to real property. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946), decided under former statute corresponding to this section.

When it appeared from the evidence before the trial justice that the plaintiff in a petition for attachment based his claim upon the loss of acreage in, and an inaccurate description of, the tract of land described in his deed from defendants, it became the duty of the trial justice to dismiss the case. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946).

Circuit court erred in granting a foreclosure purchaser's motion for summary judgment and awarding it possession of the borrowers' property in the purchaser's unlawful detainer action because the circuit court had no more subject matter jurisdiction than the general district court and the general district court lacked subject matter jurisdiction over the case where the borrowers' allegations raised a bona fide question of title that, if proved, could set aside the foreclosure. Parrish v. Fannie Mae, 292 Va. 44 , 787 S.E.2d 116 (2016).

An action for insulting words is within the jurisdiction of a trial justice [now general district court judge]. An injury to one's reputation is an "injury to the person" within the meaning of subsection (1). Fuller v. Edwards, 180 Va. 191 , 22 S.E.2d 26 (1942).

Recovery of fines. - The fine prescribed by former § 18-329 for violating the Sabbath was recoverable before a justice of the peace [now general district court judge] under this section, upon a civil warrant issued under former § 19.1-324 [now § 19.2-341]. Ex parte Marx, 86 Va. 40 , 9 S.E. 475 (1889).

Penalty against telegraph company for failure to deliver message. - Where a penalty of $100.00 was imposed by § 1292 of the Code of 1887 (similar to § 56-469 of this Code) for failure of a telegraph company to deliver a message, it was held that such penalty was a fine within the meaning of the forerunner of this section and a justice of the peace (now general district court judge) had no jurisdiction of the case because his jurisdiction was limited therein to $20.00 as to fines. Western Union Tel. Co. v. Pettyjohn, 88 Va. 296 , 13 S.E. 431 (1891).

Amount of debt in controversy. - The law limiting the jurisdiction of justices of the peace [now general district court judges] is founded on public policy, and no manipulation of a debt can effect such jurisdiction. James v. Stokes, 77 Va. 225 (1883); Adams v. Jennings, 103 Va. 579 , 49 S.E. 982 (1905).

Judgment as res judicata. - The civil and police court [now general district court] is concededly one of limited jurisdiction and not a court of record. However, where both parties invoked its jurisdiction, and the claims for property damage asserted by each of them were cognizable in that court, its final judgment on the merits may be invoked by a plea of res judicata or estoppel of record as a bar to further litigation between the same parties of the identical issues litigated and decided in that court, and there is no merit to the contention that the former judgment cannot be a bar because rendered by an inferior court. Petrus v. Robbins, 196 Va. 322 , 83 S.E.2d 408 (1954), decided under former § 16-90, relating to jurisdiction of civil and police justices.

Prohibition against justice exceeding jurisdiction; collateral attack on judgments. - While a writ of prohibition will be awarded to prevent a justice of the peace [now general district court judge] from taking jurisdiction of a debt in excess of $100.00 (now $1,000), which has been split up into notes each less than all of which are due, and for which separate warrants are being prosecuted before him, yet where such warrants have proceeded to judgment before the justice, with the consent or acquiescence of the defendant, such judgments cannot be thereafter collaterally assailed by third persons. This result does not in any degree impinge upon the maxim that consent cannot give jurisdiction, as the justice had jurisdiction over the amount represented in each judgment. Adams v. Jennings, 103 Va. 579 , 49 S.E. 982 (1905).

Dismissal when suit not within jurisdiction. - When the cause of action is not within the jurisdiction granted by law to the tribunal, the court will dismiss the suit at any time when the fact is brought to its notice. Western Union Tel. Co. v. Pettyjohn, 88 Va. 296 , 13 S.E. 431 (1891).

Applied in Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985); Cartwright v. Commonwealth Transp. Comm'r, 270 Va. 58 , 613 S.E.2d 449, 2005 Va. LEXIS 62 (2005).

CIRCUIT COURT OPINIONS

Inapplicable to juvenile and domestic relations cases. - That §§ 16.1-106 and 16.1-113 do not apply to appeals from juvenile and domestic relations district courts is made clear by § 16.1-77, which gives general district courts exclusive original jurisdiction of civil cases involving claims of $3,000 or less and concurrent jurisdiction with the circuit courts of civil cases involving claims above $3,000, and by § 16.1-69.5 (b), which defines "general district courts" as all courts not of record, except juvenile and domestic relations district courts. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Court limited by General District Court's jurisdiction. - Despite the court's original subject matter jurisdiction over equitable claims for rescission, on an appeal from general district court it was nonetheless limited by the jurisdiction of the general district court; as such, the court lacked jurisdiction to grant equitable relief in the instant case. Childers v. Woodlawn Funeral & Crematory, 99 Va. Cir. 388, 2018 Va. Cir. LEXIS 126 (Norfolk July 31, 2018).

§ 16.1-77.1. When general district court may give judgment on forthcoming bond.

A general district court may, on motion, after 10 days' notice of the time and place thereof, give judgment on any forthcoming bond taken by a sheriff or other officer upon a fieri facias issued by such court.

(Code 1950, § 8-457; 1977, c. 624; 1983, c. 616; 2007, c. 869.)

The 2007 amendments. - The 2007 amendment by c. 869 deleted the second sentence, which read: "Any such case meeting the requirements of § 16.1-92 may be removed to the circuit court in accordance with the procedures prescribed by that section," and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forthcoming and Delivery Bonds, § 27.

§ 16.1-77.2. Jurisdiction of partition of personal property and proceedings therefor.

Every general district court shall have jurisdiction of proceedings for partition of personal property, within the limits as to value and in accordance with the provisions hereinafter contained.

When joint owners of personal property of the value of more than $20 but not more than maximum jurisdictional limits of the court as provided in § 16.1-77 (1) cannot agree upon a partition thereof, any party in interest may compel partition, the proceeding for which shall be commenced by a petition presented to a general district court as prescribed in subdivision 5 of § 8.01-262 . A copy of the petition, together with a notice of the time and place the petitioner will ask for a hearing thereon, shall be served on each of the defendants at least 10 days prior to the day of hearing. The court shall hear and decide the matter without the appointment or use of commissioners.

Any party aggrieved by a final judgment rendered by the general district court in any such proceeding shall have an appeal of right to any circuit court of the county or city having jurisdiction of appeals from such general district court, to be perfected within the time, and in all other respects in accordance with the provisions of law concerning appeals from general district courts in other civil cases.

(Code 1950, § 8-703; 1952, c. 252; 1972, c. 368; 1977, c. 624; 1983, c. 616; 2007, c. 869.)

The 2007 amendments. - The 2007 amendment by c. 869 deleted the former third paragraph, which read: "Any such case meeting the requirements of § 16.1-92 may be removed to the circuit court in accordance with procedures prescribed by that section."

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 45.

§ 16.1-78. Judgment by confession not affected.

None of the provisions of § 16.1-77 shall affect the right of any person to obtain judgment by confession in any court of record having jurisdiction thereof, or in the clerk's office of any such court, when such right exists under some other statute or act, on any claim for money, property or damages, regardless of the amount of such claim for money or damages or the value of such property.

(1956, c. 555.)

Article 3. Procedure in Civil Cases.

§ 16.1-79. Actions brought on warrant.

A civil action in a general district court may be brought by warrant directed to the sheriff or to any other person authorized to serve process in such county or city, requiring the person against whom the claim is asserted to appear before the court on a certain day, not exceeding sixty days from the date of service thereof, to answer the complaint of the plaintiff set out in the warrant. After the warrant has been issued and delivered for service it shall not be altered, nor any blank filled, except by order of the court.

(1956, c. 555; 1991, c. 26.)

Cross references. - As to service of process in actions brought on warrant, see § 8.01-329 .

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 3. The Writ Firea Facies: Execution. § 3.2 Execution. Rendleman.

Virginia Forms (Matthew Bender). No. 6-105. Case Disposition; No. 5-712. Warrant in Debt et seq.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 2; 2A M.J. Assumpsit, § 2; 5A M.J. Covenant, Action of, § 1; 5C M.J. Debt, Action of, § 1; 13A M.J. Motions for Judgment, § 2.

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Demurrer. - A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

§ 16.1-79.1. Electronic filing of civil cases.

The general district courts shall accept case data in an electronic format for any civil action filed. The use of the electronic transfer shall be at the option of the plaintiff or the plaintiff's attorney, and if electronic transfer is utilized, the plaintiff or the plaintiff's attorney shall comply with the security and data configuration standards established by the Office of the Executive Secretary of the Supreme Court. If electronic transfer is utilized, the plaintiff or the plaintiff's attorney shall be responsible for filing with the clerk of the general district court the paper copies of any pleading for the proper processing of such civil actions as otherwise required by law, unless the plaintiff or the plaintiff's attorney has established at his expense a system for the filing of a pleading generated through the electronic transfer of data; such system has been authorized by, and meets the filing requirements of, the clerk; and the plaintiff or plaintiff's attorney transmits the process in an electronic format directly with the sheriff as otherwise provided by law. Notwithstanding any electronic transfer, the plaintiff shall remain responsible for payment of any required fees upon case initiation or filing and as otherwise required by law.

(2010, cc. 550, 622; 2011, c. 766.)

The 2011 amendments. - The 2011 amendment by c. 766 added "unless the plaintiff or the plaintiff's attorney has established at his expense a system for the filing of a pleading generated through the electronic transfer of data; such system has been authorized by, and meets the filing requirements of, the clerk; and the plaintiff or plaintiff's attorney transmits the process in an electronic format directly with the sheriff as otherwise provided by law" at the end of the second sentence and added the last sentence.

Law review. - For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

§ 16.1-80. Service of warrant and return thereof.

The officer issuing a warrant shall deliver to the officer to whom it is directed, or to the plaintiff, for service, one or more original warrants and as many copies as there are defendants upon whom it is to be served. Service of the warrant shall be made as provided in Chapter 8 (§ 8.01-285 et seq.) of Title 8.01, but the warrant must be served not less than five days before the return day. Returns shall be made on the original, or on one or more of them if there be more than one issued, and shall show when, where, how and upon whom service was made. The warrant or warrants with the returns thereon shall be delivered to the court prior to the return day thereof, but if not so delivered may, in the discretion of the judge of the court, be delivered before the court convenes on the return day.

(1956, c. 555.)

§ 16.1-81. Actions brought by motion for judgment.

A civil action in a general district court may be brought by motion for judgment. Such motion shall be in writing, signed by the plaintiff or his attorney, and shall contain a caption setting forth the name of the court and the title of the action, which shall include the names of all parties and the address of each defendant. It shall state the facts on which the plaintiff relies, and shall be sufficient if it clearly informs the defendant or defendants of the true nature of the claim asserted. The motion shall notify the defendant or defendants of the day on which such motion shall be made, which day shall not be more than sixty days from the date of service of the motion.

(1956, c. 555; 1990, c. 762.)

Cross references. - As to service of process in actions brought on motion for judgment, see § 8.01-329 .

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, §§ 2, 13; 2A M.J. Assumpsit, § 2; 5A M.J. Covenant, Action of, § 1; 5C M.J. Debt, Action of, § 1; 13A M.J. Motions for Judgment, § 4.

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 16.1-81.1. Certain corporations; pro se representation.

When the amount in controversy in any action at law in a general district court does not exceed the sum of $2,500, exclusive of interest, attorney fees contracted for in the instrument, and costs, a corporate plaintiff or defendant, the stock of which is held by no more than five persons and is not publicly offered or planned to be publicly offered at the time of the litigation, may be represented by an officer of that corporation who shall have all the rights and privileges given an individual to represent, plead, and try a case without an attorney, provided that such officer has the unanimous consent of all the shareholders to do so.

(2009, c. 666.)

§ 16.1-82. Service of motion; return thereon and delivery to the court; how disposed of.

The plaintiff shall file with the clerk of the court an original motion for judgment and as many copies as there are defendants upon whom it is to be served, with the proper fees. The original motion and copies thereof shall then be delivered to the sheriff or other person for service. Service of such motion shall be as provided in Chapter 8 (§ 8.01-285 et seq.) of Title 8.01, but the motion must be served not less than five days before the return day. Returns shall be made on the original motion for judgment and shall show when, where, how and upon whom service was made. The motion or motions with the returns thereon shall be returned by the sheriff or other persons making service to the court within three days of the date service is made. The motion for judgment shall be heard and disposed of by the court in the same manner as if it were a civil warrant. Except as otherwise provided herein, procedure upon such motion for judgment shall conform as nearly as practicable to the procedure in motions for judgment prescribed by Rules of Court for civil actions in courts of record.

(1956, c. 555; 1981, c. 576; 1990, c. 943.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 38.

CASE NOTES

Timely service not shown. - Where the only evidence of the time of receipt of process offered by plaintiffs, other than an undated return receipt, was the testimony of their own counsel that an employee of defendant insurer had telephoned him "two days before the return day," even if counsel's testimony had been admitted into evidence, it would not have proved that the letter was received in the time required by § 8.01-288 and this section. Davis v. American Interinsurance Exch., 228 Va. 1 , 319 S.E.2d 723 (1984).

§ 16.1-83. Consent of parties required for trial within five days of service.

No trial of a warrant or motion for judgment under this title may be had within five days after service thereof except with the consent of the parties. Proceedings to enforce the rights and privileges conferred by the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) shall be conducted within the time limitations specified in § 2.2-3713 .

(1956, c. 555; 1990, c. 217.)

Michie's Jurisprudence. - For related discussion, see 14B M.J. Process, § 12.

§ 16.1-83.1. Certification of expert witness opinion at time of service of process.

Every warrant in debt, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.

The certifying expert shall not be required to be an expert witness expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert's status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form which affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

(2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.)

The 2007 amendments. - The 2007 amendment by c. 489 inserted "or requests a defendant to accept service of process" preceding "shall be deemed" in the first sentence of the first paragraph; and inserted "or qualifications" following "identity" in the first sentence of the second paragraph.

The 2013 amendments. - The 2013 amendments by cc. 65 and 610 are identical, and added the second sentence of the third paragraph.

Law review. - For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

For Survey article, see "Civil Practice and Procedure," 48 U. Rich. L. Rev. 1 (2013).

§ 16.1-84. When action or proceeding not lost; when matured for hearing.

In the event the return day of any civil action or other proceeding is a day on which the court does not sit, such action or proceeding shall not be lost, but shall be deemed matured for hearing or other disposition by the court on the first day thereafter on which the court sits for hearing civil actions.

(1956, c. 555; 1958, c. 210.)

§ 16.1-85. What term "warrant" to include.

Whenever the word "warrant" is used in any section of the Code or act of assembly relating to civil proceedings, it shall, unless the context or use indicates a different meaning, be construed to mean "warrant or motion for judgment."

(1956, c. 555.)

§ 16.1-86. When action deemed brought.

A civil action on a warrant in a district court shall be deemed brought when the memorandum required by § 8.01-290 is filed with the clerk, magistrate, or other officer authorized to issue warrants and the required fee is paid. The officer issuing the warrant shall note on the memorandum the date and time it is received by him with the required fee.

A civil action on a motion for judgment as authorized in § 16.1-81 shall be deemed brought on the day on which the motion is filed with the court.

Whenever any other pleading in any civil action is filed in a district court, the clerk or his designee shall stamp or mark the date received and time of filing on the face of such pleading.

(1956, c. 555; 1980, c. 739; 1990, c. 109.)

§ 16.1-86.1.

Repealed by Acts 1990, c. 109.

§ 16.1-87.

Repealed by Acts 1983, c. 499.

Cross references. - For current provisions as to retention and disposition of district court records, see § 16.1-69.53 et seq.

§ 16.1-88. Procedure when plaintiff sues on sworn claim.

If a civil action in a general district court is upon a contract, express or implied, for the payment of money, or unlawful detainer pursuant to § 55.1-1245 or 55.1-1415 for the payment of money or possession of the premises, or both, or is brought by the Commonwealth or any political subdivision or agency thereof for the collection of taxes or to enforce any other obligation for the payment of money, an affidavit and a copy of the account if there be one and, in actions pursuant to § 55.1-1245 or 55.1-1415 , proof of required notice may be made and served on the defendant in accordance with § 8.01-296 with the warrant or motion for judgment as provided in § 8.01-28 for actions at law, whereupon the provisions of § 8.01-28 shall be applicable to the further proceedings therein. The affidavit and the account if there is one and proof of appropriate notice may be attached to the warrant or motion, in which event the combined papers shall be served as a single paper.

(1956, c. 555; 1973, c. 440; 1991, c. 503.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted " § 55.1-1245 or 55.1-1415 " for " § 55-225 or 55-248.31."

§ 16.1-88.01. Counterclaims.

In any proceeding before any general district court a defendant may, at his option, at any time before trial, plead in writing as a counterclaim, any cause of action at law for a money judgment in personam, or any matter which would entitle him to relief in equity in the nature of damages, that he has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the warrant or notice of motion for judgment, whether or not it is for liquidated damages, whether or not it is in tort or contract, and whether or not the amount demanded exceeds the amount claimed by the plaintiff in the warrant or notice of motion for judgment; however, no such counterclaim shall be filed or heard when the amount claimed therein exceeds the amount within the jurisdiction of such court.

Upon the request of either party, bills of particulars and grounds of defense may be ordered to ensure a fair trial on the merits of the issue presented. The court may, in its discretion, hear the counterclaim together with the original case, or may order and hold a separate hearing of any cause of action asserted in a counterclaim. In either event, the court shall render such final judgment on the whole case as the law and the evidence require.

(Code 1950, § 8-239.1; 1954, c. 608; 1977, c. 624; 1998, cc. 482, 495.)

The 1998 amendments. - The 1998 amendments by cc. 482 and 495 are identical, and in the first paragraph, deleted "provided" preceding "however" and deleted "that" following "however," and in the second paragraph, in the first sentence, substituted "either party" for "the respective parties," deleted "in the discretion of the general district court" following "may be ordered" and substituted "ensure" for "insure."

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 62, 363; 3C M.J. Commercial Law, § 33; 5A M.J. Counties, § 83; 16 M.J. Setoff, Recoupment and Counterclaim, § 1.

CASE NOTES

Counterclaim held abandoned. - Defendant's inaction and failure to seek a definitive ruling when the district court failed, apparently through inadvertence, to rule upon defendant's counterclaim was an abandonment of the claim, and the circuit court properly refused to allow it to be revived in a trial de novo on plaintiff's claim. K-B Corp. v. Gallagher, 218 Va. 381 , 237 S.E.2d 183 (1977).

CIRCUIT COURT OPINIONS

Counterclaim in excess of court's jurisdictional limit. - Under § 16.1-88.01, defendant, sued in general district court, could not file its counterclaim there because it sought damages in excess of that court's jurisdictional limit. But the granting of its motion to remove the case to circuit court triggered defendant's obligation to file its counterclaim within 21 days pursuant to Va. Sup. Ct. R. 3:8; as it failed to do so, its counterclaim was dismissed. Millermusmar, P.C. v. Diakon Logistics, Inc., 72 Va. Cir. 69, 2006 Va. Cir. LEXIS 173 (Fairfax County 2006).

§ 16.1-88.02. Cross-claims.

Subject to the jurisdictional limitations prescribed by law, in any proceeding before a general district court a defendant may, at his option, at any time before trial, plead in writing as a cross-claim any cause of action that he has against one or more defendants growing out of any matter pleaded in the plaintiff's warrant or notice or motion for judgment. The court may order and hold a separate hearing upon any cause of action asserted in a cross-claim.

(Code 1950, § 8-239.2; 1954, c. 608; 1977, c. 624.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 33; 5A M.J. Counties, § 83; 16 M.J. Setoff, Recoupment and Counterclaim, § 1.

§ 16.1-88.03. Pleadings and other papers by certain parties not represented by attorneys.

  1. Any corporation, partnership, limited liability company, limited partnership, professional corporation, professional limited liability company, registered limited liability partnership, registered limited liability limited partnership or business trust, the Fort Monroe Authority, and the Department of Military Affairs, when the amount claimed in any civil action pursuant to subdivision (1) or (3) of § 16.1-77 does not exceed the jurisdictional amounts authorized in such subsections, exclusive of interest, may prepare, execute, file, and have served on other parties in any proceeding in a general district court a warrant in debt, motion for judgment, warrant in detinue, distress warrant, summons for unlawful detainer, counterclaim, crossclaim, suggestion for summons in garnishment, garnishment summons, order of possession, writ of eviction, writ of fieri facias, interpleader and civil appeal notice without the intervention of an attorney. Such papers may be signed by a corporate officer, a manager of a limited liability company, a general partner of any form of partnership or a trustee of any business trust, or such corporate officer, with the approval of the board of directors, or manager, general partner or trustee may authorize in writing an employee, a person licensed under the provisions of § 54.1-2106.1 , or the property manager or the managing agent of a landlord as defined in § 55.1-1200 pursuant to the written property management agreement to sign such papers as the agent of the business entity. Only an agency employee designated in writing by the Adjutant General may sign such papers on behalf of the Department of Military Affairs. However, this section shall not apply to an action under subdivision (1) or (3) of § 16.1-77 which was assigned to a corporation, partnership, limited liability company, limited partnership, professional corporation, professional limited liability company, registered limited liability partnership, registered limited liability limited partnership or business trust, or individual solely for the purpose of enforcing an obligation owed or right inuring to another.
  2. Nothing in this section shall allow a nonlawyer to file a bill of particulars or grounds of defense or to argue motions, issue a subpoena, rule to show cause, or capias; file or interrogate at debtor interrogatories; or to file, issue or argue any other paper, pleading or proceeding not set forth in subsection A.
  3. The provisions of § 8.01-271.1 shall apply to any pleading, motion or other paper filed or made pursuant to this section.
  4. Parties not represented by counsel, and who have made an appearance in the case, shall promptly notify in writing the clerk of court wherein the litigation is pending, and any adverse party, of any change in the party's address necessary for accurate mailing or service of any pleadings or notices. In the absence of such notification, a mailing to or service upon a party at the most recent address contained in the court file of the case shall be deemed effective service or other notice.

    (1990, c. 645; 1992, c. 814; 1993, cc. 473, 478; 2003, cc. 665, 667; 2004, cc. 338, 365; 2005, c. 136; 2006, c. 374; 2017, c. 690; 2019, cc. 180, 477, 700; 2020, cc. 84, 194.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-1200" for "55-248.4."

The 2003 amendments. - The 2003 amendments by cc. 665 and 667 are identical, and in subsection A, substituted "Any corporation, partnership, limited liability company, limited partnership, professional corporation, professional limited liability company, registered limited liability partnership, registered limited liability limited partnership or business trust, when" for "Any corporation or partnership, when" at the beginning of the first sentence, rewrote the second sentence, and inserted "limited liability company, limited partnership, professional corporation, professional limited liability company, registered limited liability partnership, registered limited liability limited partnership or business trust" in the third sentence.

The 2004 amendments. - The 2004 amendment by c. 338, in subsection A, substituted "subdivision" for "subsection" in the first sentence, added the language beginning "or such corporate officer" at the end of the second sentence, and substituted "subdivision (1) or (3) of § 16.1-77" for " § 16.1-77 (1) or (3)" in the last sentence.

The 2004 amendment by c. 365 inserted the language beginning "or such corporate officer" at the end of the second sentence in subsection A.

The 2005 amendments. - The 2005 amendment by 136 added subsection D.

The 2006 amendments. - The 2006 amendment by c. 374 inserted "and who have made an appearance in the case" in subsection D.

The 2017 amendments. - The 2017 amendment by c. 690 inserted "and the Department of Military Affairs" in the first sentence and added the third sentence in subsection A.

The 2019 amendments. - The 2019 amendments by cc. 180 and 700 are identical, and in subsection A, substituted "order of possession, writ of eviction" for "writ of possession."

The 2019 amendment by c. 477 inserted "pursuant to the written property management agreement" and made stylistic changes in subsection A.

The 2020 amendments. - The 2020 amendments by cc. 84 and 194 are identical, and inserted "the Fort Monroe Authority" in the first sentence in subsection A.

Law review. - For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

CIRCUIT COURT OPINIONS

Corporations. - Appeal was dismissed for lack of jurisdiction because appeal that was filed by counsel applied only to an individual, and the corporations were not properly before the court of appeals; the individual's motion for a new trial was only effective as to him and without effect to the corporations. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

§ 16.1-88.1.

Repealed by Acts 1980, c. 183.

Cross references. - For current provisions as to affidavit regarding damages to motor vehicle, see § 8.01-416 .

§ 16.1-88.2. Evidence of medical reports or records; testimony of health care provider or custodian of records.

In a civil suit tried in a general district court or appealed to the circuit court to recover damages for personal injuries or to resolve any dispute with an insurance company or health care provider, either party may present evidence as to the extent, nature, and treatment of the injury, the examination of the person so injured, and the costs of such treatment and examination by the following:

  1. A report from the treating or examining health care provider as defined in § 8.01-581.1 or a health care provider licensed outside of the Commonwealth for his treatment of the plaintiff outside of the Commonwealth. Such medical report shall be admitted if the party intending to present evidence by the use of a report gives the opposing party or parties a copy of the report and written notice of such intention 10 days in advance of trial and if attached to such report is a sworn statement of (i) the treating or examining health care provider that (a) the person named therein was treated or examined by such health care provider, (b) the information contained in the report is true and accurate and fully descriptive as to the nature and extent of the injury, and (c) any statement of costs contained in the report is true and accurate or (ii) the custodian of such report that the same is a true and accurate copy of the report; or
  2. The records or bills of a hospital or similar medical facility at which the treatment or examination was performed. Such hospital or other medical facility records or bills shall be admitted if (i) the party intending to present evidence by the use of records or bills gives the opposing party or parties a copy of the records or bills and written notice of such intention 10 days in advance of trial and (ii) attached to the records or bills is a sworn statement of the custodian thereof that the same is a true and accurate copy of the records or bills of such hospital or other medical facility.

    If, thereafter, the plaintiff or defendant summons the health care provider or custodian making such statement to testify in proper person or by deposition, the court shall determine which party shall pay the fee and costs for such appearance or depositions, or may apportion the same among the parties in such proportions as the ends of justice may require. If such health care provider or custodian is not subject to subpoena for cross-examination in court or by a deposition, then the court shall allow a reasonable opportunity for the party seeking the subpoena for such health care provider or custodian to obtain his testimony as the ends of justice may require. The plaintiff may only present evidence pursuant to this section in circuit court if he has not requested an amount in excess of the ad damnum in the motion for judgment filed in the general district court.

    (1978, c. 490; 1983, c. 616; 1985, c. 379; 1989, c. 563; 1990, c. 279; 1996, c. 749; 2005, c. 811; 2007, cc. 425, 869; 2013, cc. 78, 145; 2014, cc. 25, 85, 446.)

The 2005 amendments. - The 2005 amendment by c. 811, in the first sentence, inserted "or filed in a general district court and removed to circuit court where the claim does not exceed the jurisdictional amount set forth in § 16.1-77" and substituted "10" for "ten."

The 2007 amendments. - The 2007 amendment by c. 425 inserted "or appealed to the circuit court by any defendant" near the beginning of the first sentence.

The 2007 amendment by c. 869 deleted "or filed in a general district court and removed to circuit court where the claim does not exceed the jurisdictional amount set forth in § 16.1-77" from the first sentence.

The 2013 amendments. - The 2013 amendment by c. 78 deleted "by any defendant" following "circuit court" near the beginning of the first sentence; and added the last sentence.

The 2013 amendment by c. 145 restructured the section by inserting "the following:" at the end of the introductory paragraph and adding the subdivision designations; in subdivision 1, deleted "and the records of a hospital or similar medical facility at which the treatment or examination was performed" following "8.01-581.1"; in subdivision 2, added the first sentence, twice substituted "records or bills" for "record," inserted clause (i) and the clause (ii) designator, and substituted "the records or bills" for "it" in clause (ii); and in the last paragraph, deleted "taken de bene esse" following "or by deposition" in the first sentence, and deleted "de bene esse" following "by a deposition" in the second sentence.

The 2014 amendments. - The 2014 amendments by cc. 25 and 446 are identical, and in subdivision 1 added "or a health care provider licensed outside of the Commonwealth for his treatment of the plaintiff outside of the Commonwealth" at the end of the first sentence.

The 2014 amendment by c. 85, in subdivision 1 redesignated clauses (i), (ii), and (iii) as (a), (b), and (c), inserted the clause (i) designator, and inserted "or (ii) the custodian of such report that the same is a true and accurate copy of the report"; and made related changes.

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

§ 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.

A judge or clerk of a district court may issue a subpoena duces tecum pursuant to the terms of Rule 4:9A of the Rules of the Supreme Court of Virginia except that such subpoena may be directed to a party to the case as well as to a person who is not a party.

Subpoenas duces tecum for medical records issued by an attorney shall be subject to the provisions of §§ 8.01-413 and 32.1-127.1:03 except that no separate fee for issuance shall be imposed.

A subpoena duces tecum may also be issued by an attorney-at-law who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena duces tecum shall be on a form approved by the Committee on District Courts, signed by the attorney as if a pleading and shall include the attorney's address. A copy, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas duces tecum issued by a clerk shall apply mutatis mutandis, except that attorneys may not issue subpoenas duces tecum in those cases in which they may not issue a summons as provided in § 8.01-407 . A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date production of evidence is desired. When an attorney-at-law transmits one or more subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in § 8.01-407 regarding such transmittals shall apply.

If the time for compliance with a subpoena duces tecum issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection or testing should not be had. If objection is made, the party on whose behalf the subpoena was issued and served shall not be entitled to the requested production, inspection or testing, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel production, inspection or testing. Upon such timely motion, the court may quash, modify or sustain the subpoena.

(1956, c. 555; 1979, c. 668; 1984, c. 500; 1986, c. 160; 2000, c. 813; 2004, c. 335.)

Editor's note. - Acts 2000, c. 813, cl. 3 provides: "That the Virginia Bar Association, with the support of the Virginia Sheriffs Association and such other organizations from which it may request assistance, shall conduct a study of the effectiveness of this act and report its findings to the General Assembly no later than January 1, 2001."

Acts 2001, cc. 514 and 551 repealed Acts 2000, c. 813, cl. 2 which had provided: "That the provisions of this act shall expire on July 1, 2001, unless reenacted by the 2001 General Assembly. Any subpoena or subpoena duces tecum issued by an attorney in compliance with this act shall remain valid notwithstanding the expiration of this act."

At the direction of the Virginia Code Commission, the reference to "Rule 4:9 of the Rules of the Supreme Court of Virginia" has been changed to "Rule 4:9A of the Rules of the Supreme Court of Virginia."

The 2000 amendments. - The 2000 amendment by c. 813 added the second, third, and fourth paragraphs.

The 2004 amendments. - The 2004 amendment by c. 335 divided the former fourth sentence into the present fourth and fifth sentences by substituting "A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least" for "and may not issue a subpoena duces tecum less than" in the third paragraph; substituted "14" for "fourteen" in the first sentence of the last paragraph; and made a minor stylistic change.

Law review. - For survey of Virginia law on evidence for year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

CASE NOTES

Issuance of subpoena as discovery for tenant in eviction proceeding. - In an eviction proceeding, as a discretionary matter, a general district court in Virginia could provide the tenant discovery by ordering a bill of particulars, and issue subpoenas duces tecum, and has the power to issue a final order that would satisfy the requirements for a written decision. Kennedy v. Block, 784 F.2d 1220 (4th Cir. 1986).

§ 16.1-90. Recognizance upon continuation of case.

Judges of courts not of record may, upon the continuance of any case, require the witnesses or any of them, to enter into recognizance in such penalty as the judge may deem proper, either with or without security, for their appearance at a subsequent date to give evidence in the case, such recognizance to conform to the requirements of §§ 19.2-135 through 19.2-137 for taking recognizance of witnesses.

(1956, c. 555; 1960, c. 372.)

§ 16.1-91.

Repealed by Acts 1984, c. 25.

§ 16.1-91.1. Costs to be included in judgment on forthcoming bond.

The judge of a general district court, on giving judgment on a forthcoming bond, shall include in the costs of the judgment the clerk's fee as stated in subdivision A 21 of § 17.1-275 ; and the clerk shall not receive any fee or reward for any service he is required to perform by the provisions of § 8.01-529 , except that specified in subdivision A 21 of § 17.1-275 .

(Code 1950, § 8-460; 1962, c. 10; 1977, c. 624.)

§ 16.1-91.2. Judge to keep record of judgment on forthcoming bond; how to endorse execution.

The judge of the general district court, rendering a judgment under the provisions of Chapter 19 (§ 8.01-526 et seq.) of Title 8.01, shall keep a record thereof in the same manner as he is required by law in other cases. He shall not stay execution upon such judgment, and shall endorse on any fieri facias issued thereon "no security is to be taken."

(Code 1950, § 8-461; 1962, c. 10; 1977, c. 624.)

§ 16.1-92.

Repealed by Acts 2007, c. 869, cl. 2.

§ 16.1-93. Principles applicable to trial of cases.

Every action or other proceeding in a court not of record shall be tried according to the principles of law and equity, and when the same conflict the principles of equity shall prevail. No warrant, motion or other pleading shall be dismissed by reason of a mere defect, irregularity or omission in the proceedings or in the form of the pleadings when the same may be corrected by an order of the court. The court may direct such proceedings and enter such orders as may be necessary to correct any such defects, irregularities and omissions, and to bring about a trial of the merits of the controversy and promote substantial justice to all parties. The court may make such provisions as to costs and continuances as may be just.

(1956, c. 555.)

Cross references. - For provision on amendment of written pleadings, see Rule 8:8, Juvenile and Domestic Relations District Court Rules.

CASE NOTES

Section controls conduct of trial. - The trial before a justice of the peace (now district court judge) must be conducted under the provisions of this section. Copperthite Pie Corp. v. Whitehurst, 157 Va. 480 , 162 S.E. 189 (1932) (decided under former statute corresponding to this section).

Right to allow setoff. - When this section and § 16.1-77 are read together, the right of the justice to entertain a plea of setoff and give judgment thereon seems to be expressly given. Copperthite Pie Corp. v. Whitehurst, 157 Va. 480 , 162 S.E. 189 (1932) (decided under former statute corresponding to this section).

OPINIONS OF THE ATTORNEY GENERAL

Evictions during COVID-19 pandemic. - Judicial branch mechanisms that may bar evictions across Virginia during the COVID-19 pandemic include the ability to suspend, toll, or extend filing deadlines, etc., including for unlawful detainers and discretion to grant continuances. See opinion of Attorney General to Hon. Marcia S. "Cia" Price, Hon. Lashrecse Aird, Hon. Jeion A. Ward, Hon. Patrick A. Hope, Hon. Marcus B. Simon, Hon. Paul E. Krizek, Hon. Kelly K. Convirs-Fowler, Hon. Jeffrey M. Bourne, Hon. Kathy K.L. Tran, Hon. Alex Q. Askew, Hon. Chris L. Hurst, and Hon. Lee J. Carter, Members, House of Delegates, 20-033, 2020 Va. AG LEXIS 26 (7/15/20).

§ 16.1-93.1. Use of telephonic communication systems or electronic video and audio communication systems to conduct hearing.

Notwithstanding any other provision of law, in any proceeding under this chapter in which a party or witness is incarcerated or when otherwise authorized by the court, the court may, in its discretion, conduct any hearing using a telephonic communication system or an electronic audio and video communication system to provide for the appearance of any parties and witnesses. Any electronic audio and video communication system used to conduct such a hearing shall meet the standards set forth in subsection B of § 19.2-3.1.

(2001, c. 513.)

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

§ 16.1-94. Judgment to be noted on papers; formal orders may be entered.

Whenever a judgment is rendered in a court not of record the judgment shall be entered on the warrant, motion for judgment, counterclaim, cross-claim or other pleading and signed by the judge, or the signature of the judge may be affixed by a facsimile stamp, in which event the judge shall initial a notation of the judgment made on the warrant or other paper. If the action is on a note, bond or other written obligation, the date and amount of the judgment rendered shall be noted thereon, to which notation the judge or clerk shall affix his name or his initials. Nothing in this section shall be construed to prevent the judge from entering a formal order in any case in which he deems such order to be appropriate, including but not limited to settlement and installment orders endorsed by counsel, or to affect the validity of any formal order so entered. If such action is on a lease for the recovery of rent or possession of property this section shall not operate to require marking of such lease unless the judge deems such marking necessary.

(1956, c. 555; 1962, c. 361; 2004, c. 341.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2004, c. 341, cl. 2 provides: "That this act is declarative of existing law."

The 2004 amendments. - The 2004 amendment by c. 341 inserted "including but not limited to settlement and installment orders endorsed by counsel" in the third sentence.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, § 35.

CASE NOTES

Design of section. - This section is designed to allow a court not of record to enter an informal order on the face of the pleadings in disposing of cases. Barkman v. Chevalier, 214 Va. 6 , 196 S.E.2d 911 (1973).

This section requires the judge of a court not of record to enter a notation of judgment somewhere in the record. Barkman v. Chevalier, 214 Va. 6 , 196 S.E.2d 911 (1973).

But this section is procedural only. Barkman v. Chevalier, 214 Va. 6 , 196 S.E.2d 911 (1973).

A judgment may be entered in a court not of record on the warrant itself. - To effectuate a valid judgment, this section requires that the warrant be signed by the judge, or that the judge's signature be affixed by facsimile stamp, in which case the judge must initial the warrant. The requirement of the statute is procedural only. It is designed to allow a court not of record to enter an informal order on the face of the pleadings in disposing of cases. Meredith v. Commonwealth, No. 1117-93-3 (Ct. of Appeals Jan. 10, 1995).

Lack of specific notation as to counterclaim not conclusive. - Where an informal order was entered on a civil warrant before the county court (now general district court), showing judgment in favor of a plaintiff, which may have been intended by the court to be an adverse ruling on the defendant's counterclaim, the lack of a specific notation concerning defendant's pleading is not conclusive of the question whether the counterclaim was recognized and ruled on by the county court. Barkman v. Chevalier, 214 Va. 6 , 196 S.E.2d 911 (1973).

District court final order would satisfy requirements for written decision. - In an eviction proceeding, as a discretionary matter, a general district court in Virginia could provide the tenant discovery by ordering a bill of particulars, and issue subpoenas duces tecum, and has the power to issue a final order that would satisfy the requirements for a written decision. Kennedy v. Block, 784 F.2d 1220 (4th Cir. 1986).

§ 16.1-94.01. When and how satisfaction entered on judgment.

  1. When satisfaction of any judgment rendered in a court not of record is made, the judgment creditor shall by himself, or his agent or attorney, give written notice of such satisfaction, within 30 days of receipt, to the clerk of the court in which the judgment was rendered. Such notice shall include the docket number, the names of the parties, and the date of the judgment. The clerk of the court shall then mark the judgment satisfied. For any money judgment marked as satisfied pursuant to this section, nothing herein shall satisfy an unexecuted order of possession entered pursuant to § 8.01-126 .
  2. If the judgment creditor fails to comply with subsection A, the judgment debtor, his heirs or personal representatives, may, on motion, after 10 days' notice thereof to the judgment creditor, or his assignee, his personal representative, or his agent or attorney, apply to the court in which the judgment was rendered to have the judgment marked satisfied. Upon proof that the judgment has been satisfied, the clerk shall mark the judgment satisfied. If the judgment creditor or his legal representatives cannot be reasonably located, the notice may be published and posted as an order of publication is required to be published and posted under §§ 8.01-316 and 8.01-317 .
  3. The cost of such proceedings, including reasonable attorney fees and the cost of publication, may be ordered to be paid by the judgment creditor.

    (1999, c. 370; 2015, c. 547; 2017, c. 481.)

The 2015 amendments. - The 2015 amendment by c. 547, in subsection A, deleted "payment or" preceding "satisfaction" twice in the first sentence and once in the third sentence, and added the last sentence; deleted "paid, discharged or otherwise" preceding "satisfied" in subsection B; substituted "attorney" for "attorney's" in subsection C; and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 481 substituted "and the date of the judgment" for "the date and amount of the judgment, and the date of the satisfaction" in subsection A.

OPINIONS OF THE ATTORNEY GENERAL

Order of remittance does not serve as a satisfaction of judgment pursuant to the statute. - An order of remittance, after the forfeiture of a bond in a general district court criminal matter has led to a docketed judgment, does not serve as a satisfaction of the judgment pursuant to the statute, but does operate as a satisfaction of the judgment docketed in the circuit court. See opinion of Attorney General to The Honorable Joel C. Cunningham, Judge, General District Court of Halifax County, 02-040 (5/29/02).

§ 16.1-94.1. Limitations on enforcement of district court judgments.

For judgments entered in a general district court on or after January 1, 1985, no execution shall be issued or action brought on such judgment, including a judgment in favor of the Commonwealth, after ten years from the date of such judgment except as provided in § 16.1-69.55 B 4.

(1983, c. 499.)

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

§ 16.1-95. Abstract of judgment.

At any time while the papers in any case in which a judgment has been rendered by a general district court are retained by the court, the judge or clerk of the court shall certify and deliver an abstract of the judgment to any person interested therein. In the absence of any such judge or clerk, or in the event of a vacancy in the office of such judge or clerk, such abstract of judgment may be made and certified by the substitute judge or clerk, if there be one, or by any other judge of a general district court in such county or city.

(1956, c. 555; 1983, c. 499.)

§ 16.1-96. What abstract to contain.

An abstract of a judgment rendered in a court not of record shall contain the information required by § 8.01-449 for entry in the judgment dockets of courts of record, except that it shall not be necessary to include any information as to executions which have been issued thereon.

(1956, c. 555.)

§ 16.1-97.

Repealed by Acts 1987, c. 98.

Cross references. - For current provisions as to when a new trial is granted, see now § 16.1-97.1.

§ 16.1-97.1. When a new trial is granted.

  1. No new trial may be granted from any judgment in a district court unless a motion by one of the parties is made within thirty days after the date of judgment, not including the date of entry of such judgment. The motion for new trial shall be heard by the judge who rendered the judgment, but if the judge is not in office, is absent from the jurisdiction, or is otherwise unavailable to hear the motion for new trial, such motion may be heard by a judge of that district court.
  2. A hearing shall be held by the court, as provided herein, and the court shall rule on any such motions not later than forty-five days after the date of judgment, not including the date of entry of such judgment. Nothing contained in this section shall operate to alter the granting of a new trial by the court pursuant to § 8.01-428 , or to alter the requirements for appeal from any judgment of any district court as otherwise provided by law. (1987, c. 98; 1988, c. 506.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 13B M.J. New Trials, §§ 3, 49.

CASE NOTES

Purpose. - This section was enacted to permit the court not of record (now general district court) to consider, within 30 days (now 45 days) of judgment, a motion for new trial. Godlewski v. Gray, 221 Va. 1092 , 277 S.E.2d 213 (1981) (decided under former § 16.1-97).

Writ of prohibition. - Pursuant to this section, a writ of prohibition will be granted to restrain a justice of the peace (now general district court judge) from allowing a new trial after more than 30 days (now 45 days) after judgment, and to restrain defendant from proceeding after such new trial is allowed. Burroughs v. Taylor, 90 Va. 55 , 17 S.E. 745 (1893) (decided under former statute corresponding to this section).

CIRCUIT COURT OPINIONS

Time limitations. - Because a general district court did not rule on the insureds' motions for a new trial within 45 day after the date of the judgment, as required by subsection B of § 16.1-97.1, the court lost jurisdiction to require an insurer to provide uninsured motorist coverage. Williams v. Morgan-Towe, 72 Va. Cir. 33, 2006 Va. Cir. LEXIS 281 (Norfolk 2006).

Appeal dismissed. - Appeal was dismissed for lack of jurisdiction because appeal that was filed by counsel applied only to an individual, and the corporations were not properly before the court of appeals; the individual's motion for a new trial was only effective as to him and without effect to the corporations. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

§ 16.1-98. Fieri facias or writ of possession on judgment.

Upon a judgment being rendered in a general district court a writ of fieri facias or a writ of possession shall be issued thereon only upon request of the judgment creditor, his assignee or his attorney. When the judgment is for personal property and the defendant is not given the option under § 8.01-121 to pay the amount of the judgment or surrender the property, the plaintiff may, at his option, have a writ of possession for the specific property and a writ of fieri facias for the damages or profits and costs, and if the writ of possession prove ineffectual he may have a writ of fieri facias for the alternate value. The judge or clerk shall write or stamp upon the docket of the court, or upon the original warrant or motion, the issuing of each such writ and the date of issuance.

(1956, c. 555; 1968, c. 260; 1974, c. 666; 1977, c. 624; 1983, c. 499.)

Cross references. - As to writs of possession generally, see §§ 8.01-470 and 8.01-471 .

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 28; 8A M.J. Executions, § 2.

§ 16.1-99. When and where executions returnable; to whom directed.

A writ of fieri facias or a writ of possession issued from a general district court shall be made returnable within 90 days to the court from which it was issued, except that a writ of fieri facias issued in the instance of a wage garnishment shall be returnable not more than 180 days after the date of issuance. If, after the return day of the writ and the completion of any garnishment, interrogatory or other proceeding in connection therewith, the papers in the case have been returned to a circuit court, then the writ and other papers in connection with such proceeding shall likewise be returned to the circuit court and filed with the papers in the case. A writ of fieri facias may be directed to the sheriff of any county or to the sergeant or constable of any corporation.

(1956, c. 555; 1979, c. 45; 2003, c. 234.)

The 2003 amendments. - The 2003 amendment by c. 234, in the first sentence, substituted "90" for "ninety," and inserted "except that a writ of fieri facias issued in the instance of a wage garnishment shall be returnable not more than 180 days after the date of issuance" at the end.

§ 16.1-100. Additional executions; by whom issued.

Subject to the limitations prescribed in Chapter 17 (§ 8.01-426 et seq.) of Title 8.01, additional executions may be issued as provided in § 8.01-475 . Such executions shall be issued by the judge or clerk of the general district court and shall be returned to the court in which such papers are held on the return day of the execution.

(1956, c. 555; 1983, c. 499.)

§ 16.1-101. Proceedings against officer failing to make or making improper return.

If an officer fail to make due return of any execution issued from a court not of record, he may, on motion of the plaintiff and after ten days' notice, be fined from time to time by the judge of such court in an amount not less than five nor more than twenty dollars for each offense. And if an officer make such return upon an execution issued from a court not of record as would, on a motion against the officer, authorize judgment to be entered against him for all or any part of the amount of such execution if the execution had issued from a court of record, the creditor on whose behalf such execution issued, or his personal representative, may, on a motion before the judge of such court after like notice obtain such judgment against the officer, his sureties and others as could be given by a court of record if the execution had issued therefrom. Section 16.1-106 with respect to appeals in civil actions shall apply to such judgment. Notwithstanding the provisions of this section any such officer may be proceeded against as provided in Chapter 16 (§ 15.2-1600 et seq.) of Title 15.2, or a motion for judgment may be brought as authorized in § 8.01-227 .

(1956, c. 555.)

CASE NOTES

Jurisdiction to hear motion and give judgment. - A justice of the peace (now district court judge) has jurisdiction to hear a motion and to give judgment against an officer and his sureties, for the failure of the officer to pay over money collected on an execution. Hendricks v. Shoemaker, 44 Va. (3 Gratt.) 197 (1846) (decided under former statute corresponding to this section).

Is not dependent upon amount involved. - The jurisdiction of the justice in such case is not dependent upon the amount of the execution, or of the judgment on which the execution issued; nor is it affected by the fact that the party prosecuting the motion, is at the same time prosecuting other motions of the same kind, against the same parties, before the same or any other justice, whatever may be the number or aggregate pecuniary amount of the several defaults of the officer. Hendricks v. Shoemaker, 44 Va. (3 Gratt.) 197 (1846), cited in James v. Stokes, 77 Va. 225 (1883). Both cases were decided under former statute corresponding to this section.

Joint notice and separate judgments. - One joint notice to the officer and his sureties, upon defaults of the officer in several cases, is sufficient; but the justice should give a separate and distinct judgment in each case. Hendricks v. Shoemaker, 44 Va. (3 Gratt.) 197 (1846) (decided under former statute corresponding to this section).

§ 16.1-102. Officers and sureties liable for money collected after return day.

If, after the return day of an execution issued on a judgment rendered by a court not of record, an officer shall collect money or take possession of property under such execution, he and his sureties shall be liable for such money or property in like manner as if it had been collected or taken before the return day.

(1956, c. 555.)

§ 16.1-103. Proceedings by interrogatories.

Whenever a fieri facias has been issued upon a judgment rendered in a general district court the judge or clerk of the court may issue the summons provided for in § 8.01-506 . In such case the judge of the general district court shall have all of the powers and authority respecting interrogatories conferred by §§ 8.01-506 to 8.01-510 upon any court or judge mentioned therein. The commissioner before whom any person is required to appear by such summons shall have the same powers and authority as if such summons had been issued under § 8.01-506. All interrogatories, answers, reports and other proceedings under such summons, and also all money, evidences of indebtedness and other security in the hands of an officer which are directed by any section of Chapter 18 (§ 8.01-466 et seq.) of Title 8.01 to be returned or delivered to such court or judge, or to the clerk's office of such court, shall, when the summons was issued by a judge of a general district court be returned or delivered in like manner to the court from which the summons issued.

From any order of the judge of the general district court which involves the disposition of any money or property exceeding the sum of fifty dollars in value, exclusive of interest, there shall be an appeal in the same manner and upon the same conditions as in appeals from judgments rendered in civil matters in general district courts.

(1956, c. 555; 1978, c. 66; 1983, c. 499.)

CASE NOTES

Continuance of interrogatory hearing for status. - Where debtor filed a Chapter 7 petition on the morning of a hearing on interrogatories that were served on her for discovery in aid of execution of Virginia state court judgment, continuing her interrogatories hearing for status violated the automatic stay, as there was no question that creditor and its attorney had actual notice of her bankruptcy filing. Even if creditor's attorney did not request continuance for status, she should have dismissed debtor's interrogatories as soon as she learned of the bankruptcy filing, thus obviating need for a continuance by the state court. In re Hafer,, 2013 Bankr. LEXIS 4630 (Bankr. E.D. Va. Nov. 4, 2013).

§ 16.1-104.

Repealed by Acts 1983, c. 499.

Cross references. - For current provision as to limitations on enforcement of judgments in general district court cases, and extensions thereof, see § 16.1-69.55.

§ 16.1-105. Attachments.

The proceedings on any attachment brought in a court not of record shall conform to the provisions of Chapter 20 (§ 8.01-533 et seq.) of Title 8.01, but if an attachment is returned executed and the defendant has not been served with a copy thereof, and the amount claimed in the attachment does not exceed $500, exclusive of interest and any attorney's fees contracted for in the instrument, the judge or clerk of the court, upon affidavit in conformity with §§ 8.01-316 and 8.01-317 , shall forthwith cause a copy of the attachment to be posted at the front door of the courthouse of the county or the front door of the courtroom of the city or town wherein the attachment was issued, and shall file a certificate of the fact with the papers in the case, and, in addition to such posting, the plaintiff in the attachment or his attorney shall give to the judge or his clerk the last known address or place of abode of the defendant, verified by affidavit, and the judge or clerk shall forthwith mail a copy of the attachment to the defendant at his last known address or place of abode, or if the defendant be a corporation, at its last known address. The mailing of the copy as herein required shall be certified by the judge or clerk in writing, and such certification shall be filed with the papers in the case. Fifteen days after the copy of the attachment has been posted and a copy thereof mailed as herein required, the court may hear and decide the attachment. If the amount claimed in the attachment is more than $500, exclusive of interest and any attorney's fees contracted for in the instrument, an order of publication shall be entered and published and other proceedings had in accordance with the provisions of §§ 8.01-316 , 8.01-317 , 8.01-318 , and 8.01-320 . Personal service on a nonresident defendant out of this Commonwealth as provided in § 8.01-320 shall have the same effect, and no other, as an order of publication duly executed or the posting and mailing of a copy of the attachment as provided herein.

If any such attachment is levied on real estate, the court shall not take cognizance of the case, but the same shall be forthwith removed to a court of record having jurisdiction of other actions removed therefrom, to be further proceeded with in such court of record as if the attachment had originated therein.

(1956, c. 555; 2010, c. 343.)

The 2010 amendments. - The 2010 amendment by c. 343 substituted "$500" for "$300" in the first and fourth sentences of the first paragraph.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 24, 48.

§ 16.1-106. Appeals from courts not of record in civil cases.

  1. From any order entered or judgment rendered in a court not of record in a civil case in which the matter in controversy is of greater value than $20, exclusive of interest, any attorney fees contracted for in the instrument, and costs, or when the case involves the constitutionality or validity of a statute of the Commonwealth, or of an ordinance or bylaw of a municipal corporation, or of the enforcement of rights and privileges conferred by the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), or of a protective order pursuant to § 19.2-152.10, or of an action filed by a condominium unit owners' association or unit owner pursuant to § 55.1-1959 , or of an action filed by a property owners' association or lot owner pursuant to § 55.1-1819 , or from any order entered or judgment rendered in a general district court that alters, amends, overturns, or vacates any prior final order, there shall be an appeal of right, if taken within 10 days after such order or judgment, to a court of record. Such appeal shall be to a court of record having jurisdiction within the territory of the court from which the appeal is taken and shall be heard de novo.
  2. If any party timely notices an appeal as provided by subsection A, such notice of appeal shall be deemed a timely notice of appeal by any other party on a final order or judgment entered in the same or a related action arising from the same conduct, transaction, or occurrence as the underlying action; however, all parties will be required to timely perfect their own respective appeals by giving a bond and the writ tax and costs, if any, in accordance with § 16.1-107.

    If an appeal is noted and perfected after the sheriff has served the notice of intent to execute a writ of eviction, which is required to be served at least 72 hours before such eviction in accordance with law, the party noting or noting and perfecting such appeal shall notify the sheriff of such appeal.

  3. The court from which an appeal is sought may refuse to suspend the execution of a judgment that refuses, grants, modifies, or dissolves an injunction in a case brought pursuant to § 2.2-3713 of the Virginia Freedom of Information Act. A protective order issued pursuant to § 19.2-152.10, including a protective order required by § 18.2-60.4 , shall remain in effect upon petition for or the pendency of an appeal or writ of error unless ordered suspended by the judge of a circuit court or so directed in a writ of supersedeas by the Court of Appeals or the Supreme Court. (1956, c. 555; 1977, c. 624; 1990, c. 217; 1997, c. 831; 2009, c. 729; 2013, cc. 73, 97; 2014, c. 784; 2015, c. 714; 2020, cc. 1048, 1049.)

Cross references. - As to appeals in criminal cases, see § 16.1-132 et seq.

As to appeal from judgment in actions for unlawful entry and detainer, see § 8.01-129 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2009, c. 729, cl. 2, provides: "That the provisions of this act are declarative of existing law."

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "55.1-1959" for "55-79.80:2" and "55.1-1819" for "55-513."

The 2009 amendments. - The 2009 amendment by c. 729 added "and shall be heard de novo" at the end of the first paragraph.

The 2013 amendments. - The 2013 amendments by cc. 73 and 97 are identical, and inserted "including a protective order required by § 18.2-60.4 " in the second sentence of the second paragraph; and made minor stylistic changes throughout.

The 2014 amendments. - The 2014 amendment by c. 784 in the first paragraph inserted "or of an action filed by a condominium unit owners' association or unit owner pursuant to § 55-79.80:2, or of an action filed by a property owners' association or lot owner pursuant to § 55-513" and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 714 substituted "$20" for "$50" in the first sentence.

The 2020 amendments. - The 2020 amendments by cc. 1048 and 1049 are identical, and designated the existing text as subsections A and C; in subsection A, inserted "or from any order entered or judgment rendered in a general district court that alters, amends, overturns, or vacates any prior final order"; and inserted subsection B.

Law review. - For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For an article, "Final and Interlocutory Appeals in Virginia," see 8 Geo. Mason L. Rev. 337 (1999).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

For annual survey article, "Civil Practice and Procedure," see 44 U. Rich. L. Rev. 269 (2009).

For article, "Civil Practice and Procedure," see 54 U. Rich. L. Rev. 7 (2019).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 232, 356-360, 362, 363; 2A M.J. Attachment and Garnishment, § 24.

Editor's note. - Some of the cases below were decided under former statute corresponding to this section.

CASE NOTES

Purpose of section. - The legislative purpose of this section is to afford a summary and speedy settlement of trifling controversies before justices of the peace (now district court judges). Norfolk & W.R.R. v. Clark, 92 Va. 118 , 22 S.E. 867 (1895).

Section § 16.1-112 and this section are remedial and should be construed to effectuate the purposes of their enactment. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 (1907).

The right of appeal is statutory and the exercise of appellate jurisdiction is confined to the provisions of the written law. Covington Virginian, Inc. v. Woods, 182 Va. 538 , 29 S.E.2d 406 (1944).

Appeal of right generally. - Section § 16.1-106 does not require the appealing party to appeal every adverse ruling of the general district court but, rather, provides an appeal of right for any order entered or judgment rendered. Robert & Bertha Robinson Family, LLC v. Allen, 295 Va. 130 , 810 S.E.2d 48, 2018 Va. LEXIS 15 (2018).

Supreme Court of Virginia holds that the appeal of right belongs to the party applying for the same. When the general district court enters a final, appealable judgment on claims pleaded in a warrant, summons, or complaint, Va. Sup. Ct. R. 7B:4(a); a counterclaim or cross-claim, Va. Sup. Ct. R. 7B:3(a); or a third-party civil warrant or complaint, Va. Sup. Ct. R. 7B:10(a), any party seeking on appeal to change or modify an unfavorable disposition of a claim asserted by or against him must file a notice of appeal. The failure to do so will leave the general district court's judgment on the claim intact and subject to res judicata principles. Robert & Bertha Robinson Family, LLC v. Allen, 295 Va. 130 , 810 S.E.2d 48, 2018 Va. LEXIS 15 (2018).

Ruling on motion requesting a new trial not appealable under this section. - Circuit court lacked jurisdiction to hear tenant's appeal in unlawful detainer action from denial of her motion requesting a new trial because the decision denying the motion was not a final order or judgment, as it did not dispose of the merits of the unlawful detainer summons, and therefore was not "any order entered or judgment rendered" as required by this section. Ragan v. Woodcroft Village Apts., 255 Va. 322 , 497 S.E.2d 740 (1998).

Ruling on motion to set aside verdict not a final judgment. - Trial court properly granted the prevailing parties motion to dismiss the losing parties appeal from the general district court, as the losing parties motion to set aside was not a final judgment from which an appeal could be taken. Architectural Stone, LLC v. Wolcott Ctr., LLC, 274 Va. 519 , 649 S.E.2d 670, 2007 Va. LEXIS 107 (2007).

Jurisdictional amount. - Under this section costs are not to be computed as a part of the matter in controversy in determining the right of appeal. Shafer v. C & O R.R., 2 Va. Dec. 252, 23 S.E. 221 (1895).

Under this section no appeal lies from a judgment for $10.00 (now $50.00) and costs, costs being no part of the controversy. Norfolk & W.R.R. v. Clark, 92 Va. 118 , 22 S.E. 867 (1895).

Judgment involving constitutionality of statute. - The language of this section is broad enough to cover the right of appeal to the circuit court from a judgment involving the constitutionality of a statute. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 (1907).

Appeal on statute's constitutionality does not lie if previously decided by Supreme Court. - Where the sole ground for an appeal is the constitutionality of a statute, the validity of which has been settled by former decisions of the Supreme Court, an appeal will not be entertained. This is the rule even if the constitutional objections are not precisely the same ones previously adjudicated. Myers v. Moore, 204 Va. 409 , 131 S.E.2d 414 (1963).

Abandoned counterclaim not revived in trial de novo of plaintiff's claim. - Defendant's inaction and failure to seek a definitive ruling when the district court failed, apparently through inadvertence, to rule upon defendant's counterclaim was an abandonment of the claim, and the circuit court properly refused to allow it to be revived in a trial de novo on plaintiff's claim. K-B Corp. v. Gallagher, 218 Va. 381 , 237 S.E.2d 183 (1977).

Consideration of pleadings. - Circuit court properly considered the pleadings filed in the general district court because, although appeals from courts not of record were heard by the circuit court de novo, the lower court was statutorily required to transmit its record to the circuit court. Parrish v. Fannie Mae, 292 Va. 44 , 787 S.E.2d 116 (2016).

Jurisdiction after nonsuit. - Circuit court erred when it exercised subject matter jurisdiction over a case alleging an unfit pet owner pursuant to former § 3.1-796.115 that originated in general district court, was appealed to the circuit court and nonsuited there, was subsequently refiled in the general district court, dismissed, and then appealed to the circuit court. The county was required by subsection A of § 8.01-380 to refile its petition, following the nonsuit, in the circuit court. Although the circuit court did not have original or general jurisdiction over the § 3.1-796.115 petition pursuant to § 17.1-513 , the circuit court did obtain appellate jurisdiction derivatively from the de novo appeal taken from the general district court. Davis v. County of Fairfax, 282 Va. 23 , 710 S.E.2d 466, 2011 Va. LEXIS 125 (2011).

Appeal from denial of coram nobis petition proper. - Circuit court finding that it lacked jurisdiction to hear appellant's appeal from the denial of a petition for a writ of error coram nobis in a criminal conviction was error because § 16.1-106 was not restricted to only monetary cases; however, coram nobis did not lie as a means by which appellant was allowed to collaterally challenge his guilty plea. Appellant's allegation that he suffered from some undefined lack of capacity due to medication at the time of his guilty plea was not a clerical error nor a claim of an error in fact. Neighbors v. Commonwealth, 274 Va. 503 , 650 S.E.2d 514, 2007 Va. LEXIS 108 (2007).

Dismissal proper. - Circuit court properly dismissed a father's complaint to amend custody and visitation because, while the circuit court had jurisdiction to consider the father's refiled appeals, the parties' circumstances changed during the pendency of the nonsuit, the circuit court had jurisdiction to consider the father's refiled appeals and did the only thing it could do. Barrett v. Minor, No. 0173-14-3, 2015 Va. App. LEXIS 165 (May 12, 2015).

Applied in Godlewski v. Gray, 221 Va. 1092 , 277 S.E.2d 213 (1981); Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985); Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293 , 672 S.E.2d 870, 2009 Va. LEXIS 40 (2009).

CIRCUIT COURT OPINIONS

Applicability of statute. - Sections 16.1-106 and 16.1-113 govern civil cases over which general district courts, not juvenile and domestic relations district courts, have jurisdiction; specifically, § 16.1-106 grants an appeal of right in certain civil cases, and § 16.1-113 specifies how such appeals shall be tried in circuit court. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Inapplicable to juvenile and domestic relations cases. - That §§ 16.1-106 and 16.1-113 do not apply to appeals from juvenile and domestic relations district courts is made clear by § 16.1-77, which gives general district courts exclusive original jurisdiction of civil cases involving claims of $3,000 or less and concurrent jurisdiction with the circuit courts of civil cases involving claims above $3,000, and by § 16.1-69.5 (b), which defines "general district courts" as all courts not of record, except juvenile and domestic relations district courts. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Appeal of void judgment order. - Where an order denying a debtor's motion to vacate a void judgment under § 8.01-428 A (ii) disposed of the whole subject matter of the requested relief, it was appealable as a final judgment. Reston Dental Arts Ctr. v. Shepherd, 61 Va. Cir. 734, 2002 Va. Cir. LEXIS 310 (Fairfax County 2002).

Appeal from mayor. - Where the charter of a city declares that the judgment of the mayor shall be final when the penalty imposed by him is a fine not exceeding $10.00, a judgment of such mayor imposing a fine of $2.00 for violation of a city ordinance cannot be reviewed on a writ of certiorari nor does any appeal lie from such judgment to the circuit court under the provisions of this section, since it applies only to judgments rendered by justices of the peace in civil cases. Danville St. Car Co. v. Wooding, 2 Va. L. Reg. 244 (Danville Cir. Ct. 1896).

Parties on appeal. - Effect of an appeal from a judgment entered against one of two defendants was to completely nullify the effect of the district court judgment; thus, regardless of the finding of the lower court, the reviewing court had appellate jurisdiction over all the parties to the case, including the defendant against whom judgment was not entered. Khan v. Washington, 74 Va. Cir. 95, 2007 Va. Cir. LEXIS 255 (Alexandria 2007).

De novo hearing. - Although the employer was properly served with a suggestion of garnishment and in default in general district court, it was nevertheless entitled to a de novo hearing on its appeal to circuit court. McClenahen v. McNabb, 54 Va. Cir. 489, 2001 Va. Cir. LEXIS 209 (Spotsylvania County 2001).

Nonsuit of appeal permitted. - On appeal of a judgment of the Virginia General District Court (GDC) to the Virginia Circuit Court, under § 16.1-106, the rulings of the GDC were completely null and void, and an original plaintiff was provided a new trial, and was not barred from taking a nonsuit of the appeal to the Circuit Court; § 16.1-106 granted an appeal of right if timely filed, and § 16.1-113 granted authority for the judge or, if required by either party, a jury to make a determination based upon evidence, whether or not that evidence was offered in the GDC, and the only limitations placed on a party in appealing to the Circuit Court were that the appeal be from an order or judgment of a court not of record, and that the appeal be timely made. Joseph v. Giant Food, Inc., 61 Va. Cir. 143, 2003 Va. Cir. LEXIS 52 (Fairfax County 2003).

No jurisdiction for appeal. - Because the tenant's retaliation claim against the landlord under Virginia's Manufactured Home Lot Rental Act, Va. Code Ann. § 55.1-1300 , was part of the landlord's underlying unlawful detainer action and that action was not appealed, that claim was not properly before the circuit court. Even if the tenant had noted an appeal of the tenant's retaliation claim, the decision on that claim was not a final order or judgment that was appealable as the tenant only appealed the tenant's negligence, negligence per se, and breach of contract claims. Cadd v. Bowman Assocs., LLC, 105 Va. Cir. 144, 2020 Va. Cir. LEXIS 55 (Roanoke County Apr. 20, 2020).

No appeal from dismissal without prejudice. - Plaintiff's notice of appeal of dismissal, without prejudice, of the plaintiff's personal injury suit was stricken because dismissal without prejudice was not a final, appealable order for purposes of § 16.1-106. Poullath v. Rzasa, 75 Va. Cir. 349, 2008 Va. Cir. LEXIS 69 (Fairfax County 2008).

§ 16.1-106.1. Withdrawal of appeal in civil cases.

  1. A party who has appealed a final judgment or order rendered by a general district court or a juvenile and domestic relations district court in a civil case may seek to withdraw that appeal at any time.
    1. If the appeal has not been perfected by posting a required appeal bond or paying required costs, or within 10 days after entry of the judgment or order when no appeal bond or costs are required to perfect the appeal, the appeal may be withdrawn by filing in the district court that entered the judgment or order and serving, in person or by first-class mail, on all parties or their counsel a written notice of intent to withdraw the appeal. When the appeal is withdrawn in the district court, the judgment or order of the district court shall have the same effect as if no appeal had been noted.
    2. After the appeal is perfected by posting a required appeal bond or paying required costs, or after 10 days have elapsed since the entry of the judgment or order when no appeal bond or costs are required to perfect the appeal, an appealing party may request that the appeal be withdrawn by filing in the circuit court and serving, in person or by first-class mail, on all parties or their counsel a written notice of intent to withdraw the appeal.
  2. Upon receipt of a notice of intent to withdraw an appeal filed in the circuit court, any party to the appeal, or the circuit court on its own motion, may give notice of a hearing, which shall be scheduled no later than the date set by the circuit court for trial of the appeal. Unless the hearing is scheduled at the time previously set for trial of the appeal, notice of the hearing shall be given, in person or by first-class mail, to all parties or their counsel, any non-party who has posted an appeal bond, and, when appropriate, the Department of Social Services, Division of Child Support Enforcement.
  3. At the hearing, the circuit court shall determine whether any party objects to the proposed withdrawal. A party may object to the withdrawal of an appeal by filing in the circuit court and serving, in person or by first-class mail, on all parties or their counsel a written notice of objection to withdrawal of the appeal. If such a written objection is filed and served within a reasonable period after service of the notice of intent to withdraw the appeal, upon a showing of good cause by the party objecting to the withdrawal of the appeal, the circuit court may decline to permit the withdrawal of the appeal. If no such written objection is timely filed, the appeal shall be deemed to be withdrawn and, subject to subsections E and F, the circuit court shall enter an order disposing of the case in accordance with the judgment or order entered in the district court.
  4. If a party who has appealed a judgment or order of a district court fails to appear in circuit court either at the time for setting the appeal for trial or on the trial date, the circuit court may, upon the motion of any party, enter an order treating the appeal as withdrawn and disposing of the case in accordance with this section. If no party appears for trial, the court may deem the appeal to be withdrawn without a motion and enter an order disposing of the case in accordance with this section.
  5. Upon the withdrawal of an appeal from a general district court, the circuit court shall, upon request of a party who did not appeal the judgment or order, determine whether, as a result of the appeal, a party has a right to additional relief in the circuit court which has accrued since the appeal was noted, including but not limited to attorneys' fees provided for by contract or statute. Subject to any rights of a surety pursuant to § 16.1-110, the circuit court shall also order its clerk to disburse any cash bond posted to perfect the appeal as follows:
    1. First, to the clerk of the court to cover taxable costs in the circuit court as provided by statute;
    2. Second, to the prevailing party in an amount sufficient to satisfy any judgment or order entered in the general district court and any additional relief granted by the circuit court; and
    3. Third, the balance, if any, to the person who posted the bond in the general district court.

      In addition, the circuit court shall enter such order as may be appropriate to conclude all matters arising out of the appeal from the general district court.

  6. Upon the withdrawal of an appeal from a juvenile and domestic relations district court, the circuit court shall, upon request of a party who did not appeal the judgment or order, determine whether, as a result of the appeal, a party has a right to additional relief in the circuit court which has accrued since the appeal was noted, including but not limited to attorneys' fees provided for by contract or statute. Subject to any rights of a surety pursuant to § 16.1-110, the circuit court shall also order its clerk to disburse any cash bond posted to perfect the appeal as follows:
    1. First, to the clerk of the court to cover taxable costs in the circuit court as provided by statute;
    2. Second, to the prevailing party in an amount sufficient to satisfy any judgment or order entered in the juvenile and domestic relations district court and any additional relief granted by the circuit court; and
    3. Third, the balance, if any, to the person who posted the bond in the juvenile and domestic relations district court.

      In addition, the circuit court shall enter such order as may be appropriate to conclude all matters arising out of the petition or motion filed in the juvenile and domestic relations district court and the appeal in circuit court, consistent with the judgment or order entered in the juvenile and domestic relations district court, as modified by the grant of any additional relief by the circuit court pursuant to this subsection. Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297.

      (2008, c. 706.)

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal & Error, § 232.

CASE NOTES

Dismissal of appeal. - Circuit court did not err in dismissing a parent's appeals from a termination of parental rights order as the evidence supported the circuit court's factual findings that the parent had actual notice of the hearing and the parent was not present at the hearing. A social worker testified as to having spoken to the parent on the telephone and that the parent told the worker that the parent was aware of the hearing, that the parent had been in touch with the parent's counsel about the hearing, and that the parent intended to be at the hearing. Vargas v. Arlington County Dep't of Human Servs., No. 0530-18-4, 2018 Va. App. LEXIS 315 (Nov. 13, 2018).

Appellee not required to object. - Appellee did not need to object to appellant's withdrawal of the appeal for the order regarding fees to remain enforceable; the circuit court had already ordered appellant to pay legal fees, and the additional relief that subsection F of § 16.1-106.1 contemplated was already granted. Torchiani v. Senske, No. 1581-19-4, 2020 Va. App. LEXIS 161 (June 2, 2020).

§ 16.1-107. Requirements for appeal.

  1. No appeal shall be allowed unless and until the party applying for the same or someone for him shall give bond, in an amount and with sufficient surety approved by the judge or by his clerk if there is one, or in an amount sufficient to satisfy the judgment of the court in which it was rendered. Either such amount shall include the award of attorney fees, if any. Such bond shall be posted within 30 days from the date of judgment, except for an appeal from the judgment of a general district court on an unlawful detainer pursuant to § 8.01-129 . However, no appeal bond shall be required of a plaintiff in a civil case where the defendant has not asserted a counterclaim, the Commonwealth or when an appeal is proper to protect the estate of a decedent, an infant, a convict, or an insane person, or the interest of a county, city, town or transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2. In a case where a defendant with indemnity coverage through a policy of liability insurance appeals, the bond required by this section shall not exceed the amount of the judgment that is covered by a policy of indemnity coverage.
  2. In all civil cases, except trespass, ejectment, unlawful detainer against a former owner based upon a foreclosure against that owner, or any action involving the recovering rents, no indigent person shall be required to post an appeal bond. In cases of unlawful detainer against a former owner based upon a foreclosure against that owner, a person who has been determined to be indigent pursuant to the guidelines set forth in § 19.2-159 shall post an appeal bond within 30 days from the date of judgment.
  3. In cases of unlawful detainer for a residential dwelling unit, notwithstanding the provisions of § 8.01-129 , an appeal bond shall be posted by the defendant with payment into the general district court in the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due, as contracted for in the rental agreement, and as amended on the unlawful detainer by the court. If such amount is not so paid, any such appeal shall not be perfected as a matter of law. Upon perfection of an appeal, the defendant shall pay the rental amount as contracted for in the rental agreement to the plaintiff on or before the fifth day of each month. If any such rental payment is not so paid, upon written motion of the plaintiff with a copy of such written motion mailed by regular mail to the tenant, the judge of the circuit court shall, without hearing, enter judgment for the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of that date, subtracting any payments made by such tenant as reflected in the court accounts and on a written affidavit submitted by the plaintiff, plaintiff's managing agent, or plaintiff's attorney with a copy of such affidavit mailed by regular mail to the tenant, and an order of possession without further hearings or proceedings in such court. Any funds held in a court account shall be released to the plaintiff without further hearing or proceeding of the court unless the defendant has filed a motion to retain some or all of such funds and the court, after a hearing, enters an order finding that the defendant is likely to succeed on the merits of a counterclaim alleging money damages against the plaintiff, in which case funds shall be held by order of such court.
  4. If such bond is furnished by or on behalf of any party against whom judgment has been rendered for money or property or both, the bond shall be conditioned for the performance and satisfaction of such judgment or order as may be entered against such party on appeal, and for the payment of all costs and damages which may be awarded against him in the appellate court. If the appeal is by a party against whom there is no recovery except for costs, the bond shall be conditioned for the payment of such costs and damages as may be awarded against him on the appeal.
  5. In addition to the foregoing, any party applying for appeal shall, within 30 days from the date of the judgment, pay to the clerk of the court from which the appeal is taken the amount of the writ tax of the court to which the appeal is taken and costs as required by subdivision A 13 of § 17.1-275 , including all fees for service of process of the notice of appeal in the circuit court pursuant to § 16.1-112. (1956, c. 555; 1972, c. 585; 1978, c. 501; 1992, c. 565; 1993, c. 970; 1998, c. 266; 2004, c. 366; 2006, c. 116; 2007, c. 869; 2008, c. 706; 2010, c. 267; 2011, c. 58; 2017, c. 657; 2019, c. 785; 2021, Sp. Sess. I, c. 199.)

Editor's note. - Acts 1993, c. 970, cl. 2, as amended by Acts 1994, c. 564, cl. 3 and Acts 1996, c. 616, cls. 3 and 5, provides that the amendment to this section by Acts 1993, c. 970, cl. 1, "shall expire on May 31, 1998; provided, however, that the provisions of this act shall apply on and after June 1, 1998, only to any final order which disposes of a proceeding in a support case, when such proceeding was commenced in a juvenile and domestic relations district court prior to June 1, 1998, and when such case is appealed to the circuit court, regardless of whether such proceeding was commenced by a petition, motion or other pleading."

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cls. 3 and 5, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 1998 amendment, in the first paragraph, in the last sentence, deleted "or" following "interest of a county, city" and added "or transportation district created pursuant to Chapter 45 ( § 15.2-4500 et seq.) of Title 15.2."

The 2004 amendments. - The 2004 amendment by c. 366, in the last paragraph, substituted "30" for "thirty" and added the language beginning "including all fees" at the end.

The 2006 amendments. - The 2006 amendment by c. 116 inserted "a plaintiff in a civil case where the defendant has not asserted a counterclaim" in the second sentence of the first paragraph; and substituted "any party" for "the party" in the last paragraph.

The 2007 amendments. - The 2007 amendment by c. 869 inserted the present second and last sentences in the first paragraph.

The 2008 amendments. - The 2008 amendment by c. 706 inserted "or if withdrawn pursuant to § 16.1-106.1" near the end of the first sentence in the first paragraph.

The 2010 amendments. - The 2010 amendment by c. 267, in the first paragraph, inserted "unlawful detainer against a former owner based upon a foreclosure against that owner" in the next-to-last sentence, and added the last sentence.

The 2011 amendments. - The 2011 amendment by c. 58, in the first paragraph, in the first sentence, substituted "or in an amount sufficient" for "to abide by such judgment as may be rendered on appeal if such appeal is perfected, or if not so perfected or if withdrawn pursuant to § 16.1-106.1, then" and added the second and third sentences.

The 2017 amendments. - The 2017 amendment by c. 657 inserted the second sentence in the first paragraph.

The 2019 amendments. - The 2019 amendment by c. 785 added the designations for subsections A and B; inserted subsection C; and added the designations for subsections D and E.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 199, effective July 1, 2021, in subsection A, substituted the last sentence for the former last two sentences, which read: "No appeal bond shall be required of a defendant with indemnity coverage through a policy of liability insurance sufficient to satisfy the judgment if the defendant's insurer provides a written irrevocable confirmation of coverage in the amount of the judgment. If defendant's insurer does not provide a written irrevocable confirmation of coverage in the amount of the judgment then an appeal bond will be required."

Law review. - For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

For annual survey article, "Civil Practice and Procedure," see 46 U. Rich. L. Rev. 9 (2011).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 232, 356, 360; 5A M.J. Costs, § 8.

Editor's note. - Some of the cases below were decided under former statute corresponding to this section.

CASE NOTES

Generally. - Supreme Court of Virginia holds that the appeal of right belongs to the party applying for the same. When the general district court enters a final, appealable judgment on claims pleaded in a warrant, summons, or complaint, Va. Sup. Ct. R. 7B:4(a); a counterclaim or cross-claim, Va. Sup. Ct. R. 7B:3(a); or a third-party civil warrant or complaint, Va. Sup. Ct. R. 7B:10(a), any party seeking on appeal to change or modify an unfavorable disposition of a claim asserted by or against him must file a notice of appeal. The failure to do so will leave the general district court's judgment on the claim intact and subject to res judicata principles. Robert & Bertha Robinson Family, LLC v. Allen, 295 Va. 130 , 810 S.E.2d 48, 2018 Va. LEXIS 15 (2018).

Statutory requirements must be observed. - The right of appeal is statutory and the statutory procedural prerequisites must be observed. Covington Virginian, Inc. v. Woods, 182 Va. 538 , 29 S.E.2d 406 (1944).

Though substantial compliance is sufficient. - A substantial compliance with the statutory requirements is all that is necessary. Brooks v. Epperson, 164 Va. 37 , 178 S.E. 787 (1935).

The words "or someone for him" mean that the bond called for by this section may be given by someone other than the party taking the appeal, provided the bond is conditioned as required by the statute and carries sufficient surety. Combined Ins. Co. of Am. v. Mundy, 210 Va. 3 , 168 S.E.2d 127 (1969).

The requirements for appeal bonds are mandatory, and the exercise of appellate jurisdiction confined to the provisions of the written law. Covington Virginian, Inc. v. Woods, 182 Va. 538 , 29 S.E.2d 406 (1944), holding that provision requiring bond was not waived.

And a surety is necessary. - In civil appeals from civil and police justices the appeal bond must be with surety. Brooks v. Epperson, 164 Va. 37 , 178 S.E. 787 (1935), decided under former statute corresponding to this section.

Hence, a deposit of cash is not a substantial compliance with this section and a certified check is not "surety" within the meaning of the section. Brooks v. Epperson, 164 Va. 37 , 178 S.E. 787 (1935) (decided under former statute), wherein the court dealt with the check as cash. However, now a cash deposit may be made in lieu of giving bond. See § 16.1-108.

The appeal bond required by this section is not a "fee" or "costs" within the meaning of § 14.1-183 (now § 17.1-606 ). Greer v. Dillard, 213 Va. 477 , 193 S.E.2d 668 (1973).

It is one thing for the State to excuse indigents from payment of fees and costs which are essentially state interests; it is another thing for the State to excuse indigents from posting bonds designed to protect the judgment rights of successful litigants. Greer v. Dillard, 213 Va. 477 , 193 S.E.2d 668 (1973).

Appeal bond is not required from orders terminating parental rights. Casey v. Hopewell Dep't of Social Servs., 14 Va. App. 222, 415 S.E.2d 878 (1992).

Absence of reference to appeal bond does not abrogate section's provisions. - The provisions of § 16.1-136 et seq. indeed make no provision for an appeal bond; however, the absence of any reference to an appeal bond in § 16.1-136 et seq. in no way abrogates the mandatory provisions of this section, which requires a bond in an appeal of a civil case. Scheer v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990).

Thirty-day limit for giving bond. - Consistent with annulment of the earlier 10-day provision, the 1956 enactments, when considered with the 1972 changes, implicitly establish a 30-day limit for giving bond. Godlewski v. Gray, 221 Va. 1092 , 277 S.E.2d 213 (1981).

A deficient appeal bond does not require dismissal of the appeal since under § 16.1-114.1 the court is empowered to correct defects, irregularities or omissions in the proceedings of a court not of record and § 16.1-109 empowers an appellate court to require the appellant to give new or additional security. Burks v. Three Hills Corp., 214 Va. 322 , 200 S.E.2d 521 (1973).

Insufficient bond of corporation. - Defendant corporation gave what it thought was an appeal bond under this section with surety approved by the trial justice (now district court judge). The bond was executed by the president of the corporation, but the corporate seal was not affixed to the instrument. It was contended that there was a substantial compliance with this section, because the executed instrument provided ample security for the payment of any judgment in plaintiff's favor, in that defendant was bound by its written obligation and its surety could not, under other sections of the Code, deny its liability. It was held that there was no merit in the contention. Covington Virginian, Inc. v. Woods, 182 Va. 538 , 29 S.E.2d 406 (1944).

Effect of failure to require appeal bond. - That it is the duty of a justice of the peace (now district court judge) before allowing an appeal, to require an appeal bond may be conceded, but his omission to require such bond does not oust the circuit court of its jurisdiction. Under § 16.1-114.1, it is the duty of the court to correct the omission of the justice and require the execution of the bond, and upon due execution thereof to proceed with the trial of the case according to the principles of law and equity. Jenkins v. Bertram, 163 Va. 672 , 177 S.E. 204 (1934).

Civil contempt of court did not alter nature of relief. - Where judgment was for arrearages in child support payments established by the terms of a previously-entered property settlement agreement, and where husband filed his notice of appeal with the circuit court but posted no appeal bond, upon the expiration of 30 days, the circuit court was without jurisdiction to entertain the appeal; the fact that husband also was found in civil contempt of court, and a sanction was imposed, did not alter the fundamental nature of the relief sought by wife; the case was treated as a civil proceeding in the juvenile and domestic relations court and the appeal to the circuit court was, therefore, civil in nature. Scheer v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990).

No appeal bond was required by this section where the juvenile and domestic relations proceeding from which defendant appealed was his motion to quash the department's withholding order and his motion to be allowed credit for Social Security benefits paid to his children and the order did not establish a support arrearage or enter judgment for an arrearage. Commonwealth, Dep't of Social Servs. ex rel. Comptroller v. Skeens, 18 Va. App. 154, 442 S.E.2d 432 (1994).

Writ tax provisions mandatory. - The provisions of the second paragraph of this section are mandatory, not merely directory. Unless the writ tax is paid to the district court clerk within 30 days from the judgment date, the district court has no authority to transmit the case to the circuit court. Thus, the intended appeal is not perfected and the circuit court does not obtain jurisdiction. Hurst v. Ballard, 230 Va. 365 , 337 S.E.2d 284 (1985).

Timely payment of writ tax is jurisdictional. - In an appeal of a civil case from a general district court to a circuit court, payment of the writ tax within the provided period is jurisdictional. Hurst v. Ballard, 230 Va. 365 , 337 S.E.2d 284 (1985).

Applicability to appeal following incarceration for failing to pay child support. - Denial of a parent's appeal of the denial of a bond motion for an appeal of an order incarcerating the parent for failure to pay child support was summarily affirmed as a parent did not post an appeal bond and there was no indigency exception to subsection H of § 16.1-296; § 16.1-107 concerned appeals of the general district court, rather than the juvenile courts, and § 8.01-676.1 did not apply to appeals of the juvenile courts. Shadwell v. Commonwealth, No. 0236-08-4, 2008 Va. App. LEXIS 444 (Sept. 30, 2008).

Applied in Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985).

CIRCUIT COURT OPINIONS

Jurisdiction. - It is not the transmission of the case papers which creates the jurisdiction of the circuit court, but rather the filing of the notice of appeal. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Additional time to post bond. - Circuit court exercised its authority under § 16.1-109 by allowing plaintiff additional time to post the bond on the counter-claim as there was no reason as to why plaintiff should have to post two separate bonds, one for the appeal of his claim and one for the appeal of the counter-claim, when the claims arose out of the same cause of action and doing so would frustrate the principles of § 16.1-114.1. Van Garris v. Harold, 71 Va. Cir. 411, 2005 Va. Cir. LEXIS 260 (Norfolk 2005).

Appeal bond requirement did not violate right to jury trial. - Debtor's constitutional right to a jury trial was not violated when the clerk of a district court did not forward to the circuit court the record in the district court case, after the debtor's request to waive an appeal bond on indigency grounds was denied following a review by the district court of the financial status of the debtor, because the appeal bond statute, complete with its indigency waiver, was a reasonable provision for circuit court appellate review of district court decisions. Elyazidi v. Barr, 91 Va. Cir. 89, 2015 Va. Cir. LEXIS 163 (Fairfax County Aug. 6, 2015).

Indigent persons. - Mention of specific items in subsection B implies that all items omitted were not intended to be included; subsection B provides a specific list of exceptions to the general rule that indigent persons are not required to post bond, and those exceptions, trespass, ejectment, unlawful detainer against a former owner based upon a foreclosure against that owner, or any action involving the recovering of rents, are therefore the only exceptions contemplated and allowed by the law. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Subsection C does not mention the indigent nor does it purport to create a new exception for this action; unlawful detainer for a residential dwelling unit is simply not one of the listed exceptions to the general rule waiving bond for the indigent in subsection B. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Release of appeal bond. - This section clearly requires that a "judgment or order" be entered against the appellant in the appeal itself as a necessary condition for release of the appeal bond to a plaintiff; § 16.1-113 by its text also requires a judgment in circuit court before its provisions for execution of a judgment apply. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

Motion for release of civil appeal bond denied. - Plaintiff's motion for release of the civil appeal bond was denied because there was no judgment or order against defendants in the appeal; the amendment of the statute to remove the language allowing appeal bonds to be disbursed upon the withdrawal of an appeal supports the conclusion that the court may not require a surety to pay until the appeal has concluded on the merits. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

Appeal bond not required. - Appeal was properly noted, and the circuit court had jurisdiction to consider the merits of an unlawful detainer case because the tenant was indigent, and the circuit court had entered an order finding her such and waiving costs and fees; because the action for unlawful detainer for a residential dwelling unit did not qualify for any of the exceptions enumerated in subsection B, an indigent appellant was not required by § 16.1-107 to post the bond described in subsection C. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Because no arrearages for child support was set by the juvenile and domestic relations district court appealed by appellant, the only issue on appeal was the award of attorney fees set by the final order of the juvenile and domestic relations district court, and the motion to amend the amount of child support was withdrawn, the appeal of attorney fees was not so intrinsically and logically related to arrearages as to constitute support; and appellant was not required to post an appeal bond. Chamberlain v. O'Leary, 105 Va. Cir. 511, 2020 Va. Cir. LEXIS 121 (Spotsylvania County Aug. 18, 2020).

Appeal bond of $0.00. - Lender's motion to dismiss was denied because the lienor satisfied the statutory requirements and purpose of an appeal bond where, while the trial court found for the lender on a lienor's counterclaim, no money judgment was entered against the lienor in favor of the lender, there were no financial interests of the lender to protect during the appeal, and the lienor paid the appeal costs. FedStar Fed. Credit Union v. Euro-Specialty, Inc., 91 Va. Cir. 262, 2015 Va. Cir. LEXIS 136 (Roanoke Oct. 8, 2015).

Insufficient evidence of coverage. - Letter by the vehicle manufacturer stating that an insurer provided coverage for appellant's vehicle did not constitute a "written irrevocable confirmation of indemnity coverage" as required under this section. Damtew v. Shawfang Jeng, 101 Va. Cir. 89, 2019 Va. Cir. LEXIS 6 (Fairfax County Jan. 24, 2019).

§ 16.1-108. Deposit of money in lieu of bond.

In lieu of giving bond with surety as provided in this article, any party appealing from the judgment or order of the court may deposit with the judge or clerk thereof, who shall issue his official receipt therefor, such sum of money as the judge or clerk may estimate to be sufficient to discharge any judgment or order which may be entered by the court of record on the trial of the appeal to secure the appeal bond. The money so deposited shall be transmitted in cash, by check of the court, surety bond, or bank check, or by draft from the escrow account of the appealing party's attorney to the clerk of the court to which the appeal is taken, who shall likewise issue his official receipt therefor.

(1956, c. 555; 1975, c. 227; 1988, c. 698; 2007, c. 131.)

The 2007 amendments. - The 2007 amendment by c. 131, in the last sentence, inserted "surety bond, or bank check, or by draft from the escrow account of the appealing party's attorney" and made a related change.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 360.

CIRCUIT COURT OPINIONS

Appeal bond of $0.00. - Lender's motion to dismiss was denied because the lienor satisfied the statutory requirements and purpose of an appeal bond where, while the trial court found for the lender on a lienor's counterclaim, no money judgment was entered against the lienor in favor of the lender, there were no financial interests of the lender to protect during the appeal, and the lienor paid the appeal costs. FedStar Fed. Credit Union v. Euro-Specialty, Inc., 91 Va. Cir. 262, 2015 Va. Cir. LEXIS 136 (Roanoke Oct. 8, 2015).

§ 16.1-109. Appellate court may require new or additional security.

  1. The court to which the appeal is taken may on motion for good cause shown, after reasonable notice to the appellant, require the appellant to give new or additional security, and if such security be not given within the time prescribed by the appellate court the appeal shall be dismissed with costs, and the judgment or order of the court from which the appeal was taken shall remain in effect and the appellate court shall award execution thereon, with costs, against the appellant and his surety.
  2. When a bond or other security is required by law to be posted or given in connection with an appeal or removal from a district court, and there is either (i) a defect in such bond or other security as a result of an error of the district court, or (ii) the district court erroneously failed to require the bond or other security, and the defect or failure is discovered prior to sending the case to the circuit court, the district court shall order that the appellant or applicant for removal cure such defect or failure within a period not longer than the initial period of time for posting the bond or giving the security. If the error or failure is discovered after the case has been sent to the circuit court, the circuit court shall return the case to the district court for the district court to order the appellant or applicant for removal to cure the defect or post the required bond or give the required security within a period of time not longer than the initial period of time for posting the bond or giving the security for removal. Failure to comply with such order shall result in the disallowance of the appeal or denial of the application for removal.

    (1956, c. 555; 2007, c. 464.)

The 2007 amendments. - The 2007 amendment by c. 464 added the A designation at the beginning of the first paragraph and added subsection B.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 360.

CASE NOTES

Juvenile and domestic relations court abused its discretion when setting bond at $500 for an appeal of a judgment of arrearage of $18,975. Similarly, the circuit court abused its discretion by denying mother's motion to require father to provide new or additional security in an amount sufficient to satisfy the judgment on appeal. Smiley v. Erickson, 29 Va. App. 426, 512 S.E.2d 842 (1999).

A deficient appeal bond does not require dismissal of the appeal since under § 16.1-114.1 the court is empowered to correct defects, irregularities or omissions in the proceedings of a court not of record and this section empowers an appellate court to require the appellant to give new or additional security. Burks v. Three Hills Corp., 214 Va. 322 , 200 S.E.2d 521 (1973).

Error not to correct discrepancies in appeal bond. - It is error for a trial court to fail to exercise its statutory power to correct the discrepancies in an appeal bond of a proceeding in a court not of record where such a correction would have brought the dispute to a trial on the merits and thereby facilitated final adjudication of the rights of the parties. Burks v. Three Hills Corp., 214 Va. 322 , 200 S.E.2d 521 (1973).

Cure not allowed where a party totally failed to comply with the bond requirement. - Trial court properly dismissed a father's appeal of a juvenile court order which modified his child support obligation and assessed an arrearage; a court clerk's act of setting an appeal bond at "0" did not excuse the father of the requirement to post an appeal bond under subsection H of § 16.1-296, and this section did not allow for a cure where there was a total failure to comply with the bond requirement, and thus the failure to post the bond divested the trial court of jurisdiction. Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553, 2005 Va. App. LEXIS 389 (2005).

CIRCUIT COURT OPINIONS

Error not to correct discrepancies in appeal bond. - Circuit court exercised its authority to allow plaintiff additional time to post the bond on the counter-claim as there was no reason why plaintiff should have to post two separate bonds, one for the appeal of his claim and one for the appeal of the counter-claim, when the claims arose out of the same cause of action and doing so would frustrate the principles of § 16.1-114.1. Van Garris v. Harold, 71 Va. Cir. 411, 2005 Va. Cir. LEXIS 260 (Norfolk 2005).

§ 16.1-110. Bankruptcy of appellant does not release surety.

No surety in any appeal bond given by the appellant shall be released by the appellant's being adjudicated a bankrupt at any time subsequent to the judgment rendered in the court not of record, but such surety shall be entitled to make any defense on the trial of the appeal that the appellant could have made, except the defense of bankruptcy.

(1956, c. 555.)

§ 16.1-111. Court to which appeal sent.

The party taking an appeal may, when there is more than one court having jurisdiction, direct to which of such courts the appeal shall be sent for trial, but in the absence of such directions the judge or clerk shall send the same to any court having jurisdiction.

(1956, c. 555.)

§ 16.1-112. All papers transmitted to appellate court; further proceedings.

The judge or clerk of any court from which an appeal is taken under this article shall promptly transmit to the clerk of the appellate court the case papers, which shall include the original warrant or warrants or other notices or pleadings with the judgment endorsed thereon, together with all pleadings, exhibits, and other papers filed in the trial of the case. The required bond, and, if applicable, the money deposited to secure such bond and the writ tax and costs paid pursuant to § 16.1-107 shall also be submitted, along with the fees for service of process of the notice of appeal in the circuit court. Upon receipt of the foregoing by the clerk of the appellate court, the case shall then be docketed, except that an appeal from an order of protection issued pursuant to § 19.2-152.10 shall be assigned a case number within two business days upon receipt of such appeal.

When such case has been docketed, the clerk of such appellate court shall by writing to be served, as provided in §§ 8.01-288 , 8.01-293 , 8.01-296 , and 8.01-325 , or by certified mail, with certified delivery receipt requested, notify the appellee, or by regular mail to his attorney, that such an appeal has been docketed in his office, provided that upon affidavit by the appellant or his agent in conformity with § 8.01-316 being filed with the clerk, the clerk shall post such notice at the front door of his courtroom and shall mail a copy thereof to the appellee at his last known address or place of abode or to his attorney, and he shall file a certificate of such posting and mailing with the papers in the case. No such appeal shall be heard unless it appears that the appellee or his attorney has had such notice, or that such certificate has been filed, 10 days before the date fixed for trial, or has in person or by attorney waived such notice.

If a party files an appeal of a district court order of protection entered pursuant to § 19.2-152.10, such notice of appeal shall be on a form prescribed by the Office of the Executive Secretary. The district court clerk shall contact the appellate court to determine whether the hearing on the appeal shall be set by the appellate court on (i) a date scheduled by the district court clerk with the court, (ii) on the next docket call date, or (iii) a date set for district court appeals. Once the hearing date is set and the appeal documents have been transmitted, the appellate court shall have the parties served with notice of the appeal stating the date and time of the hearing in accordance with subdivision 1 of § 8.01-296 . No such hearing on the appeal shall be heard in the appellate court unless the appellee has been so served with such notice or notice has been waived by the non-moving party.

(1956, c. 555; 1958, c. 211; 1972, c. 585; 1984, c. 108; 1988, c. 698; 2004, c. 366; 2016, c. 612; 2018, cc. 32, 134; 2019, c. 718; 2020, c. 905.)

Editor's note. - Acts 2016, c. 612, cl. 2, effective January 1, 2017, provides: "That any clerk who uses private technology systems authorized pursuant to § 17.1-502 may utilize the provisions of § 16.1-112 provided that the electronic method for transmittal to the appellate court complies with the security and data standards established by the Executive Secretary of the Supreme Court of Virginia."

The 2004 amendments. - The 2004 amendment by c. 366 added the language beginning "and the fees for service of process" at the end of the first sentence in the first paragraph; and in the last paragraph, inserted "or by regular mail" near the middle of the first sentence and substituted "10" for "ten" in the last sentence.

The 2016 amendments. - The 2016 amendment by c. 612, effective January 1, 2017, in the first paragraph, divided the former first sentence into the first and second sentences, inserted "case papers, which shall include the" in the first sentence, substituted " § 16.1-107 shall also be submitted along with the fees" for " § 16.1-107, and the fees" in the second sentence and added the third through sixth sentences; and made minor stylistic changes throughout the section.

The 2018 amendments. - The 2018 amendments by cc. 32 and 134 are identical, and deleted the third through fifth sentences in the first paragraph, which pertained to electronic submission of court records.

The 2019 amendments. - The 2019 amendment by c. 718, in the first paragraph, added "except that an appeal from an order of protection issued pursuant to § 19.2-152.10 shall be assigned a case number within two business days upon receipt of such appeal" at the end; and made a stylistic change.

The 2020 amendments. - The 2020 amendment by c. 905 added the last paragraph.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 360.

CASE NOTES

This section and § 16.1-106 are remedial and should be construed to effectuate the purposes of their enactment. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 (1907) (decided under former statute corresponding to these sections).

Status of judgments after appeal. - No other statute deals with the status of the judgments of a civil and police justice (now district court judge) after appeal, although they necessarily remain unchanged until the appeal is perfected. Thomas Gemmell, Inc. v. Svea Fire & Life Ins. Co., 166 Va. 95 , 184 S.E. 457 (1936) (decided under former statute corresponding to these sections).

The papers required to be delivered by the justice to the clerk constitute the case and are the essential groundwork for intelligent proceeding in the appellate court. Wygal v. Wilder, 117 Va. 896 , 86 S.E. 97 (1915) (decided under former statute corresponding to these sections).

Papers held below until tax and costs paid. - This section requires prompt transmittal of the appellate papers, including the bond, to the circuit court, but permits those papers to be held below for thirty days until the writ tax and costs are paid to the clerk of the court not of record. Godlewski v. Gray, 221 Va. 1092 , 277 S.E.2d 213 (1981).

A notice that an appeal has been docketed is simply notification of continuing action in the same case, of whose pendency the defendant is already aware. The notice is required by this section to be served only upon the appellee or his attorney. The appellee often is the plaintiff, who could hardly be expected to respond to his own civil warrant or other similar pleading. No particular form is prescribed for the notice; the clerk is required merely to give notice that "such an appeal has been docketed in his office." Overnite Transp. Co. v. Barnett's, Inc., 217 Va. 222 , 227 S.E.2d 695 (1976).

Not like notice of motion for judgment. - A notice that an appeal has been docketed is not, by name, nature, or form, equivalent or even similar to a notice of motion for judgment. A notice of motion for judgment is notice to the defendant of a new action brought against him. In prescribed form, the notice specifically calls upon him timely to respond or suffer the enunciated danger of default. Overnite Transp. Co. v. Barnett's, Inc., 217 Va. 222 , 227 S.E.2d 695 (1976).

Transmission of record to circuit court. - Circuit court properly considered the pleadings filed in the general district court because, although appeals from courts not of record were heard by the circuit court de novo, the lower court was statutorily required to transmit its record to the circuit court. Parrish v. Fannie Mae, 292 Va. 44 , 787 S.E.2d 116 (2016).

Applied in Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865, 2005 Va. App. LEXIS 225 (2005).

CIRCUIT COURT OPINIONS

Transmission of record to circuit court. - By failing to transmit the case papers to the circuit court, the general district court (GDC) acted in derogation of strong policy reasons favoring certainty of results in judicial proceedings because its action called into question the finality of the judgment in the absence of a ruling from the circuit court; the GDC in effect delayed timely adjudication of the appeal de novo by declining to perform a ministerial act, namely the forwarding of its case papers to the circuit court. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

It is not the transmission of the case papers that creates the jurisdiction of the circuit court, but rather the filing of the notice of appeal. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Jurisdiction. - When a lower court procedurally impedes an appeal by failing to transmit its case papers to the upper court under the mistaken belief the circuit court does not have jurisdiction and the appellant has taken all steps in the lower court properly to invoke the jurisdiction of the circuit court, then, in effect, the upper court has already acquired jurisdiction over the appeal. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

Mandamus proceeding was unnecessary because the circuit court possessed jurisdiction over the cause, and merely did not have the general district court's (GDC) case papers; while the GDC did not transmit the relevant case papers to the circuit court, the circuit court acquired jurisdiction to determine the appropriateness of the appeal by the filing of the notice of appeal in the GDC. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

When a disputed issue of first impression arises regarding the circuit court's jurisdiction, particularly interpretation of a new statutory provision, due process and prudence suggest the general district court clerk should transmit the case papers to the upper court to permit it to determine the issue of its jurisdiction; this concept of erring on the side of affording litigants meaningful opportunity to be heard should be of particular focus when the consequences of error could be dire. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

General district court divested of jurisdiction. - Case was properly before the circuit court because the general district court having been divested of jurisdiction by virtue of a tenant's appeal, the obtaining of the case papers from the GDC became the province of the circuit court's inherent power to exercise jurisdiction to adjudicate those causes properly entrusted to the forum; the Calendar Control Judge thus appropriately set a hearing to consider whether the bond set by the GDC judge was required to perfect the appeal. FCRHA Cedar Ridge, L.P. v. Boler, 104 Va. Cir. 132, 2020 Va. Cir. LEXIS 8 (Fairfax County Jan. 17, 2020).

§ 16.1-113. How appeals tried.

Every such appeal shall be tried by the court in a summary way, or, if the amount in controversy exceeds fifty dollars, by a jury if either party requires it. All legal evidence produced by either party shall be heard, whether or not it was produced before the court from which the appeal is taken. If judgment is recovered by the appellee, execution shall issue against the principal and his surety, jointly or separately, for the amount of the judgment, including interests and costs, with damages on the aggregate at the rate of ten percent annually, from the date of that judgment until payment, and for the costs of the appeal; and the execution shall be endorsed "No security is to be taken." If the decision is reversed, the party substantially prevailing shall recover his costs and the order or judgment shall be made or given as ought to have been made or given by the judge of the court from which the appeal was taken. When the appeal is from an order or judgment under §§ 16.1-119 through 16.1-121, the court shall enter such judgment respecting the property, the expense of keeping it, and any injury done to it, as may be equitable among the parties.

(1956, c. 555; 1980, c. 129; 1984, c. 38; 1988, c. 337.)

Cross references. - See § 16.1-114.1. For rules of court governing procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 362, 363.

CASE NOTES

The words "that judgment" appearing in the third sentence of this section refer to no other judgment than the one recovered on appeal. There is no other existing judgment, the judgment in a county court (now general district court) having lost all of its effect. Nationwide Mut. Ins. Co. v. Tuttle, 208 Va. 28 , 155 S.E.2d 358 (1967).

The purpose of the ten percent penalty damage was for the purpose of discouraging appeals with little or no basis in law or fact from courts not of record. Nationwide Mut. Ins. Co. v. Tuttle, 208 Va. 28 , 155 S.E.2d 358 (1967).

Effect of appeal from judgment of trial justice. - An appeal from the trial justice, properly perfected, transfers the entire record to the circuit court for a retrial as though originally brought therein. The judgment of the trial justice is completely annulled by the appeal and is not thereafter effective for any purpose. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946) (decided under former statute corresponding to these sections).

In a de novo appeal of a general district court or special justice's determination that a person meets the requirements for involuntary commitment, the circuit court is required by § 37.2-821 to evaluate the evidence for commitment as of the date of the circuit court hearing of the de novo appeal, using the criteria of subsection C of § 37.2-817 . This conclusion is supported by § 16.1-113. Paugh v. Henrico Area Mental Health & Developmental Servs., 286 Va. 85 , 743 S.E.2d 277, 2013 Va. LEXIS 77 (2013) (pursuant to the legislative summary the 2020 amendments to § 37.2-821 by Acts 2020, c. 1175 were in response to this decision).

Abandoned counterclaim not revived in trial de novo of plaintiff's claim. - Defendant's inaction and failure to seek a definitive ruling when the district court failed, apparently through inadvertence, to rule upon defendant's counterclaim was an abandonment of the claim, and the circuit court properly refused to allow it to be revived in a trial de novo on plaintiff's claim. K-B Corp. v. Gallagher, 218 Va. 381 , 237 S.E.2d 183 (1977).

Right to jury trial not improperly denied where plaintiff did not follow procedure. - Dismissal of suit, which complained only of the denial of a trial by jury and asserted a collusion by defendants to deny him one, was proper, where plaintiff's own actions in bringing suit in the general district court rather than the circuit court deprived him of a trial by jury. Had he originally brought his personal injury claim in circuit court, as he was entitled to by § 17-123 (now § 17.1-513 ), he would have received a jury upon request under § 8.01-336 . He also could have received a de novo jury trial by properly perfecting his appeal from general district court under this section. His failure to receive a jury trial, therefore, was the result of his own failure to follow valid state procedures rather than the result of any collusion by defendants in violation of 42 U.S.C. § 1983. Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985), cert. denied, 475 U.S. 1088, 106 S. Ct. 1475, 89 L. Ed. 2d 729 (1986).

Applied in Leisge v. Leisge, 223 Va. 688 , 292 S.E.2d 352 (1982); Slawski v. Commonwealth, Dep't. of Social Servs., Div. of Child Support Enforcement ex rel. Sheehan, 29 Va. App. 721, 514 S.E.2d 773 (1999).

CIRCUIT COURT OPINIONS

Applicability of statute. - Sections 16.1-106 and 16.1-113 govern civil cases over which general district courts, not juvenile and domestic relations district courts, have jurisdiction; specifically, § 16.1-106 grants an appeal of right in certain civil cases, and § 16.1-113 specifies how such appeals shall be tried in circuit court. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Inapplicable to juvenile and domestic relations cases. - That §§ 16.1-106 and 16.1-113 do not apply to appeals from juvenile and domestic relations district courts is made clear by § 16.1-77, which gives general district courts exclusive original jurisdiction of civil cases involving claims of $3,000 or less and concurrent jurisdiction with the circuit courts of civil cases involving claims above $3,000, and by § 16.1-69.5 (b), which defines "general district courts" as all courts not of record, except juvenile and domestic relations district courts. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Parties on appeal. - Effect of an appeal from a judgment entered against one of two defendants was to completely nullify the effect of the district court judgment; thus, regardless of the finding of the lower court, the reviewing court had appellate jurisdiction over all the parties to the case, including the defendant against whom judgment was not entered. Khan v. Washington, 74 Va. Cir. 95, 2007 Va. Cir. LEXIS 255 (Alexandria 2007).

Nonsuit of appeal permitted. - On appeal of a judgment of the Virginia General District Court (GDC) to the Virginia Circuit Court, under § 16.1-106, the rulings of the GDC were completely null and void, and an original plaintiff was provided a new trial, and was not barred from taking a nonsuit of the appeal to the Circuit Court; § 16.1-106 granted an appeal of right if timely filed, and § 16.1-113 granted authority for the judge or, if required by either party, a jury to make a determination based upon evidence, whether or not that evidence was offered in the GDC, and the only limitations placed on a party in appealing to the Circuit Court were that the appeal be from an order or judgment of a court not of record, and that the appeal be timely made. Joseph v. Giant Food, Inc., 61 Va. Cir. 143, 2003 Va. Cir. LEXIS 52 (Fairfax County 2003).

Release of appeal bond. - Section 16.1-107 clearly requires that a "judgment or order" be entered against the appellant in the appeal itself as a necessary condition for release of the appeal bond to a plaintiff; § 16.1-113 by its text also requires a judgment in circuit court before its provisions for execution of a judgment apply. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

Motion for release of civil appeal bond denied. - Plaintiff's motion for release of the civil appeal bond was denied because there was no judgment or order against defendants in the appeal; the Virginia Code does not authorize releasing the surety bond following the dismissal of the appeal. Cajiao v. Warren, 90 Va. Cir. 64, 2015 Va. Cir. LEXIS 147 (Norfolk Feb. 24, 2015).

§ 16.1-114.

Repealed by Acts 1983, c. 499.

§ 16.1-114.1. Principles applicable in trial of appeals; defective or irregular warrants or motions.

Actions or proceedings appealed from district courts shall be tried according to the principles of law and equity, and when the same conflict the principles of equity shall prevail. No warrant, motion or other pleading shall be dismissed by reason of a mere defect, irregularity or omission in the proceedings in the district court, or in the form of any such pleading, when the same may be corrected by a proper order of the court of record. In any such case the court of record shall retain the same, with full power to direct all necessary amendments, to enter orders and direct proceedings to correct such defects, irregularities and omissions, to promote substantial justice to all parties, and to bring about a trial of the merits of the controversy. In any case where an appeal is taken by a defendant the circuit court may direct amendments to increase the amount of the claim above the jurisdictional amount set forth in § 16.1-77. This section shall be liberally construed, to the end that justice is not delayed or denied by reason of errors in the pleadings or in the form of the proceedings.

(1986, c. 45; 1997, c. 753; 2007, c. 869.)

Cross references. - See § 16.1-113. For rules of court governing procedure in civil actions, see Rules 3:1 through 3:25. Specifically, for application of rules, see Rule 3:1.

The 2007 amendments. - The 2007 amendment by c. 869 deleted "or removed" following "proceedings appealed" near the beginning.

Law review. - For essay, see "Nonsuit in Virginia Civil Trials," 48 U. Rich. L. Rev. 265 (2013).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Amendments, § 4; 1B M.J. Appeal and Error, §§ 363, 364.

Editor's note. - Some of the cases below were decided under former § 16.1-114 and corresponding former statutes.

CASE NOTES

This section affords the circuit court full power to control the course of appeals. Overnite Transp. Co. v. Barnett's, Inc., 217 Va. 222 , 227 S.E.2d 695 (1976).

The circuit court may require a defendant in an appealed case to file responsive pleadings and declare him in default for failure to respond as required. Overnite Transp. Co. v. Barnett's, Inc., 217 Va. 222 , 227 S.E.2d 695 (1976).

Formal defects disregarded. - This section and § 8.01-545 seem to accentuate the wholesome purpose of disregarding formal defects that the attainment of the ends of substantial justice may be had. Jenkins v. Faulkner, 174 Va. 43 , 4 S.E.2d 788 (1939).

Section does not excuse total failure to comply with requirement. - The statute refers to "mere defects," "irregularities," and "the form of such pleading"; it does not envision or authorize the exercise of discretion to excuse the total failure to comply with a mandatory statutory requirement for an appeal bond. Scheer v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990).

This section does not empower a circuit court to correct an irregularity in the day-to-day operations of a district court clerk's office that inadvertently causes an appellant to miss the statutory deadline for timely filing an appeal bond. Hutchins v. Carrillo, 27 Va. App. 595, 500 S.E.2d 277 (1998).

Jurisdiction of appellate court is derivative. - The general rule, subject to the exception stated in § 8.01-129 , relating to an appeal from a decision of the trial justice in an action of forceful entry or unlawful detainer, is that jurisdiction of the circuit court to try cases appealed from a decision of a trial justice is derivative and if the trial justice had no jurisdiction to issue the warrant the appellate court acquired no jurisdiction by an appeal - that is, the jurisdiction of the appellate court in such matters is the same as that of the court in which the action was originally instituted. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946).

And motion to dismiss is proper where justice had no jurisdiction. - In Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946), it was held that the trial justice did not have jurisdiction of the case appealed, and when that lack of jurisdiction appeared in the circuit court that court should have sustained the motion to dismiss. Stacy v. Mullins, 185 Va. 837 , 40 S.E.2d 265 (1946).

Amendment of pleadings beyond justice's jurisdiction. - A plaintiff, while his case is pending in the circuit court on appeal from a decision of a trial justice, may not amend his pleadings to present a case which, as clearly shown on the face of the pleadings, the trial justice had no jurisdiction to determine. Addison v. Salyer, 185 Va. 644 , 40 S.E.2d 260 (1946).

Amendment to claim amount in excess of justice's jurisdiction. - On appeal of a civil action from a trial justice appointed under Chapter 2 of former Title 16, a plaintiff may not, in the circuit court, amend his complaint to claim an amount in excess of the jurisdiction of the trial justice. Even if this section were applicable, it would not authorize the amendment, for the reason that the appeal was a continuation of the original case, and on the appeal the warrant could not be amended to make a case of which the trial justice would not have had jurisdiction. Stacy v. Mullins, 185 Va. 837 , 40 S.E.2d 265 (1946).

Substitution of plaintiff as an individual in action brought by her as executrix where plaintiff would be sole distributee of any recovery. See Grinels v. Legg, 208 Va. 63 , 155 S.E.2d 56 (1967).

When a trial court judge fails to require an appeal bond, under this section, which should be liberally construed, it is the duty of the circuit court to correct the omission, and require the execution of the bond, and upon due execution thereof to proceed with the trial of the case according to the principles of law and equity. Jenkins v. Bertram, 163 Va. 672 , 177 S.E. 204 (1934).

Effect of failure to post appeal bond. - Failure of appealing party to post appeal bond in appeal of judgment of juvenile and domestic relations district court was a fatal jurisdictional defect that could not be cured under this section. Commonwealth, Va. Dep't of Social Servs. ex rel. May v. Walker, 253 Va. 319 , 485 S.E.2d 134 (1997).

A deficient appeal bond does not require dismissal of the appeal since under this section the court is empowered to correct defects, irregularities or omissions in the proceedings of a court not of record and § 16.1-109 empowers an appellate court to require the appellant to give new or additional security. Burks v. Three Hills Corp., 214 Va. 322 , 200 S.E.2d 521 (1973).

Error not to correct discrepancies in appeal bond. - It is error for a trial court to fail to exercise its statutory power to correct the discrepancies in an appeal bond of a proceeding in a court not of record where such a correction would have brought the dispute to a trial on the merits and thereby facilitated final adjudication of the rights of the parties. Burks v. Three Hills Corp., 214 Va. 322 , 200 S.E.2d 521 (1973).

CIRCUIT COURT OPINIONS

Principle of equity in mortgage case. - Having conceded that she could not maintain ownership and possession of the real estate without regularly paying the deed of trust note, having established a mechanism for paying the note into the registry of the court, and then having failed to honor her payment obligations, the mortgagor would not be heard to say that she should be allowed to maintain her defense of the case; as this action was removed from the General District Court, and under § 16.1-114.1, equity principles applied and a fundamental principle of equity was that one who sought equity had to do equity, so the mortgagee was granted a writ of possession. Principal Residential Mortg. Corp. v. Curtis, 61 Va. Cir. 151, 2003 Va. Cir. LEXIS 5 (Roanoke 2003).

Effect of failure to post appeal bond. - Circuit court held that plaintiff should be given additional time to post a $15,000 bond on the appeal of defendant's counter-claim as there was no reasoning as to why plaintiff should have to post two separate bonds, one for the appeal of his claim and one for the appeal of the counter-claim when the claims arose out of the same cause of action as doing so would frustrate the principles of § 16.1-114.1. Van Garris v. Harold, 71 Va. Cir. 411, 2005 Va. Cir. LEXIS 260 (Norfolk 2005).

Parties on appeal. - Effect of an appeal from a judgment entered against one of two defendants was to completely nullify the effect of the district court judgment; thus, regardless of the finding of the lower court, the reviewing court had appellate jurisdiction over all the parties to the case, including the defendant against whom judgment was not entered. Khan v. Washington, 74 Va. Cir. 95, 2007 Va. Cir. LEXIS 255 (Alexandria 2007).

Amendment permitted. - Although plaintiff selected only the "contract" box on warrant in debt, plaintiff was permitted to amend its pleadings to include damages not arising from contract because, in light of the trial occurring in the lower court, the tenant could not claim that she was not properly informed as to the true nature of the claims against her. Amendment was permitted under § 16.1-114.1 and Va. Sup. Ct. R. 1:8. PNG Invs., L.L.C. v. Gravely-Robinson, 71 Va. Cir. 140, 2006 Va. Cir. LEXIS 242 (Roanoke County 2006).

Plaintiff's motion for leave to file an amended complaint, to increase the amount of damages requested in the ad damnum clause, was granted because the plaintiff was entitled under § 16.1-114.1 and Va. Sup. Ct. R. 1:8 to seek an amendment following an appeal by a defendant in an attempt to procure full compensation for damages suffered. The court, in making its determination, noted that: (1) there was no showing that either the defendant or the codefendant would have been prejudiced by an amendment increasing the ad damnum clause; (2) the motion for leave to amend was the plaintiff's first request to amend the complaint; and (3) the parties had ample time to prepare based on the increased ad damnum clause because the trial was more than six months away. Khan v. Washington, 74 Va. Cir. 95, 2007 Va. Cir. LEXIS 255 (Alexandria 2007).

Judicial notice. - To promote substantial justice and to bring about a decision on the merits of a second appeal, an appeal from a juvenile and domestic relations district court, a circuit court took judicial notice of the notice of appeal filed by counsel for appellant in the juvenile and domestic relations district court, which was not made a part of the record before the circuit court by either party. Va. Div. of Child Support Enforcement ex rel. Ines v. Curran, 100 Va. Cir. 114, 2018 Va. Cir. LEXIS 336 (Fairfax County Sept. 28, 2018).

§ 16.1-115.

Repealed by Acts 1986, c. 45.

§ 16.1-116. Issuance of executions and abstracts and proceedings by interrogatories after papers returned to circuit court.

When a judgment has been rendered in a civil action in a general district court and the papers in the action have been returned to the clerk of the circuit court for filing and preserving, executions upon and abstracts of the judgment may be issued by the clerk of such circuit court within the periods permitted under § 8.01-251 , provided that such judgment has been duly entered in the judgment lien docket book of such court. However, for a period of two years from the date of any such judgment, the judge or clerk of the general district court may also issue executions upon and abstracts of the judgment. In addition, proceedings by interrogatories may be had in the circuit court as if the judgment had been rendered by that court.

(1956, c. 555; 1962, c. 444; 1983, c. 499.)

§ 16.1-117. When papers in civil cases in certain municipal courts may be destroyed.

The clerk of any municipal court in which papers are filed and preserved under § 16.1-69.55 may destroy the files, papers and records connected with any civil case in such court, if:

  1. Such case was dismissed without any adjudication of the merits of the controversy, and the final order entered was one of dismissal and six months have elapsed from the date of such dismissal; or
  2. Judgment was entered in such case but the right to issue an execution or bring a scire facias or an action on such judgment is barred by § 8.01-251 ; and
  3. The destruction of such papers is authorized and directed by an order of the judge of the court in which they are filed and preserved, which order may refer to such papers by any one or more of the above classifications, or to any group or kind of cases embraced therein, without express reference to any particular case.

    (1956, c. 555.)

§ 16.1-118. When papers in civil cases returned to courts of record may be destroyed.

The clerk of any court of record to whose office papers in civil cases in the district court have been returned for indexing and preserving under § 16.1-69.55 may destroy the files, papers and records connected with any such civil case, if:

  1. Such case was dismissed without any adjudication of the merits of the controversy, and the final order entered was one of dismissal and one year has elapsed from the date of such dismissal; or
  2. Judgment was entered in such case but twenty years have elapsed since entry of such judgment and a motion to extend the period for enforcement of judgment has not been brought prior to the expiration of twenty years from the date such judgment was entered; or
  3. No service of the warrant or motion or other process or summons was had on any defendant and one year has elapsed from the date of such process or summons; and
  4. The destruction of such papers is authorized and directed by an order of the judge of the court in which they are preserved, which order may refer to such papers by any one or more of the above classifications, or to any group or kind of cases embraced therein, without express reference to any particular case.

    (1956, c. 555; 1962, c. 444; 1972, c. 491; 1977, c. 169; 1982, c. 153.)

§ 16.1-118.1. Destruction of papers in civil cases in certain district courts.

In Henrico County or Montgomery County, the clerk of any district court in which papers are filed and preserved under § 16.1-69.55 may destroy the files, papers and records connected with any civil case in such court, if:

  1. Such case was dismissed without any adjudication of the merits of the controversy, and the final order entered was one of dismissal and one year has elapsed from the date of such dismissal; or
  2. Judgment was entered in such case but the right to issue an execution or bring a motion to extend the period for enforcing a judgment or an action on such judgment is barred by § 8.01-251 ; or
  3. No service of the warrant or motion or other process or summons was had on any defendant and one year has elapsed from the date of such process or summons; and
  4. The destruction of such papers is authorized and directed by an order of the judge of the court in which they are preserved, which order may refer to such papers by any one or more of the above classifications, or to any group or kind of cases embraced therein, without express reference to any particular case; and
  5. The audit has been made for the period to which the files, papers and records are applicable.

    (1966, c. 404; 1973, c. 143; 1977, c. 169; 1982, c. 153; 2007, c. 813.)

Editor's note. - Acts 2007, c. 813, cl. 2, provides: "That the provisions of this act shall not affect the powers of any locality with respect to any ordinance, resolution or bylaw validly adopted and not repealed or rescinded prior to July 1, 2007."

The 2007 amendments. - The 2007 amendment by c. 813 substituted "Henrico County or Montgomery County" for "any county having a population of more than 70,000 but less than 75,000 or more than 100,000 but less than 125,000 and adjoining a city having a population of more than 200,000 but less than 300,000, or in any county operating under the county manager form of government as provided in Chapter 6 ( § 15.2-600 et seq.) of Title 15.2" in the introductory paragraph.

Article 4. Trying Title to Property Levied on Under Distress or Execution.

§ 16.1-119. Proceedings to try title to property levied on under distress or execution.

When an execution on a judgment of a general district court, or a warrant of distress, is levied on property, or when a lien is acquired on money or other personal estate by virtue of § 8.01-501 and some person other than the party against whom the process issued claims such property, money or other personal estate, or some part thereof, either the claimant, the officer having such process, or the party who had the same issued may apply to the general district court of the county or city wherein the property, money or other personal estate may be to try the claim of the party so claiming the same or some part thereof, provided that the property, money or other personal estate does not exceed the maximum jurisdictional limit of the court as provided in § 16.1-77 (1).

(1956, c. 555; 1978, c. 42; 1986, c. 27.)

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 3. The Writ Firea Facies: Execution. § 3.2 Execution. Rendleman.

§ 16.1-120. Summons in such case.

If the party making such application shall make and file an affidavit that to the best of his belief such property, money or other personal estate so claimed by such third party is not of greater value than the maximum jurisdictional limits of the court as provided by § 16.1-77 (1), the judge or clerk of the court shall issue a summons directed to the sheriff of his county or city, as the case may be, requiring him to summon both the creditor and the debtor to appear and show cause why such property, money or other personal estate, or any part thereof, should not be discharged from levy or lien of such execution or distress warrant. A copy of such summons shall be served upon the claimant of the property, money or other personal estate, unless the summons is sued out at his instance. The summons shall be made returnable not less than five days after date of its issuance, and if an earlier day shall have been fixed for the sale of the property, or for the return of any process subjecting such money or other personal estate to a final disposition, the judge shall make and endorse on the summons an order requiring the postponement of the sale, or the hearing to be had on such process, until after the return day of the summons.

(1956, c. 555; 1978, c. 42; 1983, c. 616.)

§ 16.1-121. Order after hearing.

After hearing the parties or such of them as may attend after being summoned, and such witnesses as may be introduced by either party, the judge shall order the officer, or the possessor of any money or other personal estate, to deliver the same to the claimant, if he be of opinion that the same belongs to the claimant; but if he be of opinion that the property, money or other personal estate, or any part thereof, belongs to the person against whom the execution or warrant of distress issued, he shall order the officer who levied on the same to sell the property so liable, to satisfy the execution or warrant of distress; or when there is money or other personal estate in the possession of a bailee or garnishee, he shall order the bailee or garnishee, as the case may be, to make delivery to the execution creditor of all such money or other personal estate so found to belong to the execution debtor, or so much thereof as may be necessary to satisfy the execution; and he may give such judgment respecting the property, the expense of keeping it, any injury done by it, and for the costs, as may be just and equitable among the parties.

(1956, c. 555.)

§ 16.1-122. Appeal.

If the property or money claimed in any such proceeding is more than $50 in value, an appeal of right may be had to the judgment or order of the court as provided in § 16.1-106.

(1956, c. 555; 1978, c. 42; 1986, c. 25; 1998, cc. 482, 495; 2002, c. 645; 2007, c. 869.)

The 1998 amendments. - The 1998 amendments by cc. 482 and 495 are identical, and substituted "$3,000" for "$1,000" in the first sentence and added the last sentence.

The 2002 amendments. - The 2002 amendment by c. 645 substituted "$4,500" for "$3,000."

The 2007 amendments. - The 2007 amendment by c. 869, in the first paragraph, deleted the former first sentence, which read: "If the money or property claimed in any such proceeding is more than $4,500 in value, the proceeding may be removed to a circuit court and heard and disposed of therein as provided in § 16.1-92"; deleted the former last sentence, which read: "The limits for removal of cases under the Tort Claims Act ( § 8.01-195.1 et seq.) shall be governed by the jurisdictional amounts set forth in that act"; and made stylistic changes.

Article 5. Small Claims Court.

§ 16.1-122.1. Small claims court; designated.

On or before July 1, 1999, each general district court shall establish, using existing facilities, a small claims division to be designated a small claims court.

Such courts shall not have jurisdiction over suits against the Commonwealth under the Virginia Tort Claims Act (§ 8.01-195.1 et seq.) or suits against any officer or employee of the Commonwealth for claims arising out of the performance of their official duties or responsibilities.

(1988, c. 799; 1989, c. 451; 1990, c. 564; 1994, c. 576; 1995, c. 589; 1998, cc. 656, 779.)

Editor's note. - Acts 1988, c. 799, cl. 2, as amended by Acts 1990, c. 565, cl. 1, Acts 1993, c. 593, cl. 1, and Acts 1997, c. 253, cl. 1, provides that the provisions of the 1988 act, which enacted this article, shall become effective October 1, 1988, and no longer expire on July 1, 1998. The 1997 amendment by c. 253 deleted the provisions which had provided for the expiration of this article on July 1, 1998.

Acts 1996, c. 1033, cl. 1, provides: "The Cities of Harrisonburg and Richmond and the Counties of Brunswick, Greensville, Roanoke, Rockingham and Washington are hereby authorized to establish within their general district court a small claims court division, which shall be designated the small claims court, pursuant to the provisions of § 16.1-122.1."

Acts 1997, c. 253, cl. 2, as amended by Acts 1998, cc. 656 and 779, cl. 2, provides: "That any small claims court created prior to July 1, 1999, shall continue in effect."

The 1998 amendments. - The 1998 amendments by cc. 656 and 779 are identical and rewrote this section.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 41.

§ 16.1-122.2. Jurisdiction.

Notwithstanding any provision of law to the contrary, the small claims court shall have jurisdiction, concurrent with that of the general district court, over the civil action specified in § 16.1-77 (1) when the amount claimed does not exceed $5,000, exclusive of interest.

(1988, c. 799; 2002, c. 704; 2006, c. 141.)

The 2002 amendments. - The 2002 amendment by c. 704 substituted "$2,000" for "$1,000."

The 2006 amendments. - The 2006 amendment by c. 141 substituted "$5,000" for "$2,000."

§ 16.1-122.3. Actions; how commenced; notice; continuances; pleadings.

  1. Actions in the small claims court shall be commenced by the filing of a small claims civil warrant by a plaintiff.
  2. At the time of filing a small claims civil warrant, the plaintiff shall pay to the clerk a required fee, which will be taxed as costs in the case. The plaintiff may be afforded the opportunity to receive preprinted information promulgated by the Committee on District Courts explaining the small claims court, including but not limited to information on case preparation, courtroom procedures, methods of collection, removal rights and appeals. The plaintiff shall select a time for the hearing which shall be held at least five days after service of the warrant. Such time shall be subject to concurrence by the clerk's office. The chief judge may limit the number of cases any one person may set for trial on any one date.
  3. Upon the filing of the small claims civil warrant in small claims court, the court shall cause notice of process to be served upon the defendant. Notice of process shall consist of a copy of the warrant and shall be served by the method used in general district court. If applicable, the defendant shall be served with a copy of the preprinted information identified in subsection B of this section attached to the copy of the civil warrant.
  4. All forms required by this article shall be prescribed by the Supreme Court of Virginia.
  5. The trial shall be conducted on the first return date. However, by consent of all parties or upon order of the court, the time for trial may be changed from the time set for the first return. A continuance shall be granted to either the plaintiff or defendant only upon good cause shown.
  6. There shall be no pleadings in small claims court actions other than the warrant and answer, grounds of defense and counterclaims not to exceed $5,000.

    (1988, c. 799; 1990, c. 564; 2002, c. 704; 2006, c. 141.)

The 2002 amendments. - The 2002 amendment by c. 704 substituted "$2,000" for "$1,000" in subsection F.

The 2006 amendments. - The 2006 amendment by c. 141 substituted "$5,000" for "$2,000" in subsection F.

§ 16.1-122.4. Representation and removal; rights of parties.

  1. All parties shall be represented by themselves in actions before the small claims court except as follows:
    1. A corporate or partnership plaintiff or defendant may be represented by an owner, a general partner, an officer or an employee of that corporation or partnership who shall have all the rights and privileges given an individual to represent, plead and try a case without an attorney. An attorney may serve in this capacity if he is appearing pro se, but he may not serve in a representative capacity.
    2. A plaintiff or defendant who, in the judge's opinion, is unable to understand or participate on his own behalf in the hearing may be represented by a friend or relative if the representative is familiar with the facts of the case and is not an attorney.
  2. A defendant shall have the right to remove the case to the general district court at any point preceding the handing down of the decision by the judge and may be represented by an attorney for that purpose.

    (1988, c. 799; 1997, c. 243; 2001, c. 74.)

The 2001 amendments. - The 2001 amendment by c. 74 inserted "and may be represented by an attorney for that purpose" at the end of subsection B.

§ 16.1-122.5. Informal hearings; rules of evidence suspended.

In trials before the small claims court, witnesses shall be sworn. The general district court judge shall conduct the trial in an informal manner so as to do substantial justice between the parties. The judge shall have the discretion to admit all evidence which may be of probative value although not in accordance with formal rules of practice, procedure, pleading or evidence, except that privileged communications shall not be admissible. The object of such trials shall be to determine the rights of the litigants on the merits and to dispense expeditious justice between the parties.

(1988, c. 799.)

§ 16.1-122.6. Judgment and collection.

The small claims court shall follow the procedures of the general district court in judgment and collection.

(1988, c. 799.)

§ 16.1-122.7. Appeals.

Appeals from the small claims court shall be as in other cases from the general district court.

(1988, c. 799.)

Chapter 7. Jurisdiction and Procedure in Criminal Matters.

Jurisdiction in Criminal Matters.

Procedure in Criminal Cases.

Article 1. Jurisdiction in Criminal Matters.

§ 16.1-123.

Repealed by Acts 1984, c. 506.

§ 16.1-123.1. Criminal and traffic jurisdiction of general district courts.

  1. Each general district court shall have, within the county, including the towns within such county, or city for which it is established, exclusive original jurisdiction for the trial of:
    1. All offenses against the ordinances, laws and bylaws of such county, including the towns within such county, or city or of any service district within such county or city, except a city ordinance enacted pursuant to §§ 18.2-372 through 18.2-391.1 . All offenses against the ordinances of a service district shall be prosecuted in the name of such service district;
    2. All other misdemeanors and traffic infractions arising in such county, including the towns in such county, or city.
  2. Each general district court which is established within a city shall also have:
    1. Concurrent jurisdiction with the circuit court of such city for all violations of state revenue and election laws; and
    2. Exclusive original jurisdiction, except as otherwise provided by general law or the city charter, within the area extending for one mile beyond the corporate limits thereof, for the trial of all offenses against the ordinances, laws and bylaws of the city.
  3. If a city lying within a county has no general district court provided by city charter or under general law, then the general district court of the county within which such city lies shall have the same jurisdiction in such city as a general district court established for a city would have.
  4. Each general district court shall have such other jurisdiction, exclusive or concurrent, as may be conferred on such court by general law or by provisions of the charter of the city for which the court was established.
  5. Notwithstanding the provisions of subsection C of § 19.2-244, any county general district court authorized by § 16.1-69.35:01 to be established in a city shall have exclusive original jurisdiction for the trial of all misdemeanors committed within or upon the general district court courtroom.
  6. Upon certification by the general district court of any felony charge and ancillary misdemeanor charge or when an appeal of a conviction of an offense in general district court is noted, jurisdiction as to such charges shall vest in the circuit court, unless such case is reopened pursuant to § 16.1-133.1; a final judgment, order, or decree is modified, vacated, or suspended pursuant to Supreme Court of Virginia Rule 1:1; or the appeal has been withdrawn in the general district court within 10 days pursuant to § 16.1-133.
  7. Nothing herein shall affect the jurisdiction conferred on the juvenile and domestic relations district court by Chapter 11 (§ 16.1-226 et seq.).

    (1984, c. 506; 2019, c. 240; 2021, Sp. Sess. I, c. 187.)

Cross references. - For constitutional provisions, see Va. Const., Art. I, §§ 8, 11.

For provision redesignating county courts as general district courts, see § 16.1-69.8.

For right of appeal, see § 16.1-132.

For right of jury trial, see § 16.1-136.

The 2019 amendments. - The 2019 amendment by c. 240 added subdivision 5 and redesignated former subdivision 5 as subdivision 6; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 187, effective July 1, 2021, inserted subsection 6 and redesignated former subsection 6 as subsection 7.

Law review. - For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 5A M.J. Courts, §§ 43, 44.

CASE NOTES

Petty offenses not requiring jury trial. - Notwithstanding the broad language of the Virginia Constitution, there are many petty offenses against statutes or municipal ordinances which are triable without a jury, because they were so triable when the Constitution was adopted, and the right of trial by jury which is secured is the right as it existed at the time the Constitution was adopted. This was decided in Ex parte Marx, 86 Va. 40 , 9 S.E. 475 (1889), and such is the settled law on the subject. Ragsdale v. City of Danville, 116 Va. 484 , 82 S.E. 77 (1914).

Ordinance violations involving title to real estate. - See Martin v. City of Richmond, 108 Va. 765 , 62 S.E. 800 (1980); City of Richmond v. Sutherland, 114 Va. 688 , 77 S.E. 470 (1913).

Applied in Greenwalt v. Commonwealth, 224 Va. 498 , 297 S.E.2d 709 (1982); Kelley v. Stamos, 285 Va. 68 , 737 S.E.2d 218, 2013 Va. LEXIS 10 (2013); Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d 533, 2014 Va. App. LEXIS 53 (2014).

§§ 16.1-124, 16.1-125.

Repealed by Acts 1984, c. 506.

Cross references. - As to the criminal and traffic jurisdiction of general district courts, see now § 16.1-123.1.

§ 16.1-126. Certain courts of record may try misdemeanors; procedure.

Notwithstanding the provisions of this chapter, the circuit court of any county or city having criminal jurisdiction, shall have jurisdiction to try any person for any misdemeanor for which a presentment or indictment is brought in or for which an information is filed; or such court may certify the presentment, indictment or information for trial to the court not of record which would otherwise have jurisdiction of the offense; in which event the presentment, indictment or information shall be in lieu of any warrant, petition or other pleading which might otherwise be required by law.

(1956, c. 555.)

Law review. - For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971).

§ 16.1-127. Courts may conduct preliminary examinations.

In addition to the power and authority conferred by this chapter on courts not of record having criminal jurisdiction, each such court shall have power to conduct preliminary examinations of persons charged with crime within its jurisdiction in the manner prescribed in Chapter 7 (§ 19.2-71 et seq.) of Title 19.2.

(1956, c. 555; 1960, c. 362.)

CASE NOTES

County (now general district) courts have no jurisdiction over felonies. Kost v. Cox, 317 F. Supp. 884 (W.D. Va. 1970).

With the exception of conducting preliminary hearings. - See Kost v. Cox, 317 F. Supp. 884 (W.D. Va. 1970).

In Virginia, a preliminary hearing in an adult criminal case is merely a procedural requirement, not jurisdictionally significant. Nottingham v. Zahradnick, 573 F.2d 193 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L. Ed. 2d 430 (1978).

And may be preempted. - Determination by a grand jury of probable cause to indict preempts an adult defendant's right to a preliminary hearing. Nottingham v. Zahradnick, 573 F.2d 193 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L. Ed. 2d 430 (1978).

§ 16.1-128. Exception when jurisdiction in State Corporation Commission.

Nothing in this chapter shall be held to confer upon courts not of record any jurisdiction or power over offenses of which jurisdiction is specifically vested in the State Corporation Commission or in courts of record under the corporation laws of the Commonwealth.

(1956, c. 555.)

Article 2. Procedure in Criminal Cases.

§ 16.1-129. Offenses tried on warrants, or as provided in Chapter 7 of Title 19.2.

Every offense of which a court not of record is given jurisdiction under this title may be tried upon a warrant; or the judge of such court may, in his discretion, make an examination into the offense and proceed according to the provisions of Chapter 7 (§ 19.2-71 et seq.) of Title 19.2. The word warrant as used in this chapter shall be construed to include a summons or notice requiring a person to appear and answer a charge of having violated any statute, ordinance, or any regulation having the force and effect of law.

(1956, c. 555; 1960, c. 373.)

Law review. - For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forgery, §§ 9, 24; 12A M.J. Larceny, § 11.

CASE NOTES

No opportunity for vindictive deterrence of appeal. - The Virginia two-tier system of administering criminal justice does not present the opportunity for the vindictive deterrence of appeal condemned in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

Failure to appear on charging summons. - Traffic summons was a public record as it became the charging document on which a general district court tried an accused, under § 16.1-129, and if an accused willfully violated his written promise to appear in court, given when he signed the summons, he could be convicted for failure to appear under § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested, under subdivision A 3 of § 19.2-74, and, given this statutory scheme, each signed summons clearly could constitute a separate offense under § 18.2-168 , regarding forgery of a public document. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

On appeal, court properly granted motion to amend summons. - Where both an arrest warrant and a summons charged defendant with violating a city ordinance and § 18.2-266 , each of which is a misdemeanor, and the defendant was convicted on the summons and appealed, and on appeal, the circuit court granted the Commonwealth's motion to amend the summons to delete the reference to the city ordinance, this action was proper, as the amendment did not change the nature or character of the offense charged. Hill v. Commonwealth, No. 1240-91-4 (Ct. of Appeals Feb. 2, 1993).

Applied in Bellinger v. Commonwealth, 23 Va. App. 471, 477 S.E.2d 779 (1996).

§ 16.1-129.1.

Repealed by Acts 1990, c. 75.

§ 16.1-129.2. Procedure when warrant defective.

Upon the trial of a warrant, the court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective. But when the warrant is so defective in form that it does not substantially appear from the same what is the offense with which the accused is charged, or even when it is not so seriously defective, the judge of the court having examined on oath the original complainant, if there be one, or if he sees good reason to believe that an offense has been committed, then without examination of witnesses, may issue under his own hand his warrant reciting the offense and requiring the defendant in the original warrant to be arrested and brought before him. Upon the arrest of the defendant on the new warrant and his production or appearance in court the trial shall proceed upon the new warrant. When there is an amendment of the original warrant the trial shall proceed on the amended warrant. But whether the warrant is amended or a new warrant is issued, the court before proceeding to trial on the same may grant a continuance to the prosecution or to the defendant upon such terms as to costs as may be proper under the circumstances of the case; provided, however, that if the warrant be amended or if a new warrant be issued after any evidence has been heard, the accused shall be entitled to a continuance as a matter of right.

When a warrant is amended or a new warrant is issued the costs already accrued shall be taxed against the defendant, if he is ultimately convicted, as a part of the costs arising under the new or amended warrant.

(1968, c. 495.)

Cross references. - For provision on amendment of written pleadings, see Rule 8:8, Juvenile and Domestic Relations District Court Rules.

CASE NOTES

Judge's authority to amend warrant. - Assuming a trial judge never actually accepted a defendant's plea of guilty to a charge of driving under the influence, the judge retained the authority to amend the charging warrant and then find the defendant guilty of reckless driving. Kelley v. Stamos, 285 Va. 68 , 737 S.E.2d 218, 2013 Va. LEXIS 10 (2013).

Amendment did not render warrant defective. - Arrest warrant issued was not defective as a result of having been amended sometime prior to a trial de novo in the lower appellate court, where the dates of the offense were amended, as the same particularity was not required in warrants of arrest as was required in formal indictments; pursuant to §§ 16.1-129.2 and 16.1-137, as long as the warrant was not so defective as to fail to notify the defendant of the nature and character of the offense charged, both district courts and circuit courts had the power to amend a warrant in any respect in which the warrant appeared to be defective, on the courts' own motion and without the consent of the parties. Raja v. Commonwealth, 40 Va. App. 710, 581 S.E.2d 237, 2003 Va. App. LEXIS 318 (2003).

Amendment did not render indictment defective. - Even though the trial court allowed the indictment to be amended, the indictment was not rendered defective by the amendment. The trial court merely allowed the indictment to be changed from reading that defendant robbed the store to defendant robbed the store clerk, but at all times, defendant was aware of the nature of the conduct forming the robbery charge against defendant. Thomas v. Commonwealth, No. 1206-06-2, 2006 Va. App. LEXIS 605 (Dec. 20, 2006).

CIRCUIT COURT OPINIONS

Amendment could not change nature and character of offense charged. - Amendment to a warrant could not change the nature and character of the offense originally charged; a trial court erred when, after hearing the evidence and without the agreement of the parties or the request of either, sua sponte, amended a DUI warrant to reckless driving and convicted defendant, since reckless driving was not a lesser included offense of DUI. Commonwealth v. Sumner, 66 Va. Cir. 266, 2004 Va. Cir. LEXIS 322 (Salem Dec. 3, 2004).

Dismissal of an appeal was required because, although defendant was tried on a charge of improper lane change, he was convicted of the charge of failure to give full time and attention to the operation of the vehicle, pursuant to Fairfax, Va., County Code § 82-4-24, and the district court had not amended the warrant, because an amendment could not change the nature and character of the offense originally charged. Commonwealth v. Dipietro, 79 Va. Cir. 55, 2009 Va. Cir. LEXIS 67 (Fairfax Apr. 22, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Prosecutorial discretion. - While a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer. See opinion of Attorney General to The Honorable Richard K. Newman, Commonwealth Attorney for the City of Hopewell, 11-080, 2012 Va. AG LEXIS 8 (2/17/12).

§ 16.1-129.3.

Repealed by Acts 1974, c. 481.

§ 16.1-130.

Repealed by Acts 1983, c. 499.

Cross references. - For provision as to retention of records of criminal cases in the general district courts and juvenile and domestic relations district courts, see § 16.1-69.55.

§ 16.1-131. Subpoenas duces tecum and recognizances of witnesses; applicable provisions.

The provisions of § 16.1-90 with respect to recognizances for witnesses upon the continuation of any case, shall be applicable to proceedings of a criminal nature as well as to civil actions. The provisions of Rule 3A:12 of the Rules of the Supreme Court shall apply to the issuance of a subpoena duces tecum and punishment for failure to comply.

(1956, c. 555; 1986, c. 160.)

Research References. - Virginia Forms (Matthew Bender). No. 5-706. Subpoena Duces Tecum.

§ 16.1-131.1. Procedure when constitutionality of a statute is challenged in a court not of record.

In any criminal or traffic case in a court not of record, if the court rules that a statute or local ordinance is unconstitutional, it shall upon motion of the Commonwealth, or the locality if a local ordinance is the subject of the ruling, stay the proceedings and issue a written statement of its findings of law and relevant facts, if any, in support of its ruling and shall transmit the case, together with all papers, documents, and evidence connected therewith, to the circuit court for a determination of constitutionality. Either party may file a brief with the circuit court. Either party may request oral argument before the circuit court. The circuit court shall give the issue priority on its docket. If the circuit court rules that the statute or local ordinance is unconstitutional, the Commonwealth or the locality may appeal such interlocutory order to the Court of Appeals and thereafter to the Supreme Court; however, if the circuit court rules that the statute or local ordinance is constitutional, the circuit court shall remand the case to the court not of record for trial consistent with the ruling of the circuit court.

(2006, cc. 571, 876; 2010, cc. 303, 609.)

The 2010 amendments. - The 2010 amendments by cc. 303 and 609 are identical, and inserted "or the locality if a local ordinance is the subject of the ruling" following "Commonwealth" in the first sentence and "or the locality" following "Commonwealth" in the last sentence.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

§ 16.1-132. Right of appeal.

Any person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty, to appeal to the circuit court. There shall also be an appeal of right from any order or judgment of a district court forfeiting any recognizance or revoking any suspension of sentence.

(1956, c. 555.)

Cross references. - For constitutional provision, see Va. Const., Art. I, § 8.

For appeals in civil cases, see §§ 16.1-106 through 16.1-114.1.

Law review. - For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For note, "Limiting Judicial Incompetence: The Due Process Right to a Legally Learned Judge in State Minor Court Criminal Proceedings," see 61 Va. L. Rev. 1454 (1975). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

Research References. - Virginia Forms (Matthew Bender). No. 9-3008. Notice of Appeal (General District Court), et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 25, 85, 357, 376, 377, 380, 382; 4C M.J. Constitutional Law, §§ 128, 141; 5B M.J. Criminal Procedure, § 14; 9A M.J. Habeas Corpus, § 15; 12A M.J. Larceny, § 33.

CASE NOTES

This section and § 16.1-136 were enacted pursuant to the Va. Const., Art. I, § 8, and provide the means of securing a trial by jury. Commonwealth v. Bass, 113 Va. 760 , 74 S.E. 397 (1912), decided under former statute corresponding to this section.

No violation of Equal Protection Clause. - With respect to appellate procedure, the distinctions between felonies and misdemeanors either do not exist or, where they do, are based upon well-reasoned objectives which serve a legitimate state interest and protect the constitutional right of defendants convicted of crime and thus do not violate equal protection. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

The equal protection clause of the Fourteenth Amendment to the United States Constitution is not violated by the procedure in which a person convicted of a misdemeanor in a court not of record is given an automatic appeal to a higher court while a person originally convicted in a court of record has no such automatic right of appeal to a higher court. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Construction with other laws. - Where the provisions of §§ 16.1-69.24 and 18.2-459 address the specific subject of appeals from summary contempt adjudications in the district courts, and the provisions of §§ 16.1-132 and 16.1-136 address the general subject of appeals from the district courts, to the extent that the more specific provisions of §§ 16.1-69.24 and § 18.2-459 are in conflict with the general provisions of §§ 16.1-132 and 16.1-136, the more specific statutes prevail. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Because the provisions of § 16.1-69.24 and § 18.2-459 had to prevail over the more general provisions of §§ 16.1-132 and 16.1-136, a contemnor appealing an adjudication of summary contempt does not receive a trial de novo in the circuit court with attendant Sixth Amendment protections and, thus, does not have a Sixth Amendment right of confrontation in that summary contempt adjudication in the circuit court. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

This section contains no unreasonable restrictions. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965).

Section does not limit appeals from other juvenile court orders or judgments. - Although this section mentions a right to an appeal only with respect to orders or judgments pertaining to convictions, filing for recognizance, or revoking suspension of sentences, this provision does not operate to limit the right of appeal from other juvenile court orders or judgments. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Orders transferring juveniles are final, a contrary interpretation would contravene legislative intent, and such orders are immediately appealable to the circuit court and need not be preceded by a conviction under this section. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

This section insures an unrestricted right of appeal to the circuit court, where the accused can demand a jury. Lacey v. Palmer, 93 Va. 159 , 24 S.E. 930 (1896), decided under former statute corresponding to this section.

Regardless of whether error was committed. - The intent of the former statutes relating to appeals from justices of the peace, and trial justices appointed under Chapter 2 of former Title 16, was to grant an appeal, in the nature of a new trial, as of right without inquiry as to whether the justice or trial justice has committed error or not. And considering the nature and procedure of these courts it seemed to be an undesirable practice to make appeals therefrom depend, in any case, upon the establishment by parol testimony that the justice had been guilty of judicial misconduct or had committed error. Dickerson v. Commonwealth, 162 Va. 787 , 173 S.E. 543 (1934) (decided under former statute corresponding to this section).

The trial de novo procedure involves a fresh determination of guilt or innocence by the court of general jurisdiction, which is not the court that acted before and has no motive to deal more strictly with a de novo defendant than it would with any other. Griffith v. Kerkhoff, 345 F. Supp. 1160 (W.D. Va. 1972).

An appeal of a district court order revoking a suspended sentence must be heard de novo in the circuit court. Barnes v. City of Newport News, 9 Va. App. 466, 389 S.E.2d 481 (1990).

The effect of an appeal from the inferior court's decision is not only to deprive him of further jurisdiction but to annul his judgment of conviction. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941) (decided under former statute corresponding to this section).

An appeal under this section and § 16.1-136 is, in effect, a statutory grant of a new trial which annuls the judgment of the inferior court, and accordingly such judgment may not be introduced in evidence before the jury in the circuit court. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

An appeal under this section is in effect a statutory grant of a new trial, which annuls the judgment of the inferior court as completely as if there had been no previous trial, and it is reversible error to mention such judgment of conviction in a trial of the case on appeal. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

Whenever a defendant exercises his rights under § 16.1-132 and a conviction in general district court is appealed, the fact of that conviction is not admissible in the appeal or in a subsequent civil proceeding. Baker v. Elmendorf, 271 Va. 474 , 628 S.E.2d 358, 2006 Va. LEXIS 39 (2006).

In a malicious prosecution suit, it was error to admit into evidence, under Ricketts v. J.G. McCrory Co., 138 Va. 548 (1924), the fact of a previous conviction as conclusive evidence of probable cause; where the conviction was reversed on appeal, the de novo appeal annulled the judgment of the inferior tribunal completely as if there had been no previous trial and "wiped out" guilty pleas. Baker v. Elmendorf, 271 Va. 474 , 628 S.E.2d 358, 2006 Va. LEXIS 39 (2006).

The right of appeal is not dependent upon the posting of a bond. - The right of an accused to appeal from the district court to the circuit court and obtain retrial of a misdemeanor charge pursuant to this section is not dependent upon his posting an appeal bond. Hill v. Middlesex County, 12 Va. App. 58, 402 S.E.2d 243 (1991).

No condition imposed except appeal be made within 10 days from conviction. - No condition is imposed upon the exercise of the statutory right to appeal in this section other than the requirement that the appeal be made within 10 days from conviction in the district court. Hill v. Middlesex County, 12 Va. App. 58, 402 S.E.2d 243 (1991).

The right to appeal is not waived by form of plea. - The words "and whether or not such conviction was upon a plea of guilty," make statutory the holding in Dickerson v. Commonwealth, 162 Va. 787 , 173 S.E. 543 (1934), that a plea of guilty or not guilty does not operate to waive or bar the right of appeal given by that section. The case cited disapproves the contrary rule laid down in Cooper v. Town of Appalachia, 145 Va. 861 , 134 S.E. 591 (1926).

Nor by motion to suspend jail sentence. - A motion to suspend a jail sentence made by or on behalf of the accused after he had been sentenced is not a waiver of, or a bar to, the right of the accused to appeal to the circuit court. Dickerson v. Commonwealth, 162 Va. 787 , 173 S.E. 543 (1934) (decided under former statute corresponding to this section).

Accused, convicted by a trial justice and informed that if he paid his fine and costs he would not be granted an appeal, stated that he did not intend to appeal, paid the fine and costs, and was remanded to jail to begin the service of his sentence. Within the ten-day period in which an appeal is allowed by this section, his application to the trial justice for an appeal was denied. It was held that his right to appeal was not waived. Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946) (decided under former statute corresponding to this section).

And payment of fine and partial submission to judgment of trial justice do not constitute waiver of the right to appeal if proper steps are taken to perfect such an appeal within the period named in this section. Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946) decided under former statute corresponding to this section).

Assignment of errors not required. - An appeal of right is given by the statute to one convicted in the inferior court without assigning errors. Harrison v. Commonwealth, 81 Va. 491 (1886)(decided under former statute corresponding to this section).

Plea of guilty not to be considered on appeal. - The language of this section indicates that a plea of guilty in an inferior court should not be considered on appeal. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

Since under the terms of this section an accused is given the right to a new trial whether or not such conviction was upon a plea of guilty in the inferior court, such plea of guilty was not admissible in evidence on the appeal to the court of record. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

Double jeopardy is not violated where defendant is re-indicted on original offense after appeal de novo to the circuit court because the plea-based conviction is thereby vacated and jeopardy continues until a final conviction is rendered. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

When the defendant appealed her misdemeanor possession conviction to the circuit court, as she had a right to do under this section, her conviction was vacated; therefore, the defendant could be retried for the same or a greater offense without double jeopardy being violated. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

Imposition of greater sentence on retrial. - Allowing a jury to impose a greater sentence on retrial without evidence of supervening misconduct does not place an unconstitutional condition on one's exercise of the right to a trial by jury. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

When a jury in a de novo trial imposed a more severe sentence than was imposed in the lower court of record, there was no denial of either due process or equal protection. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

When a greater sentence is imposed at a retrial by a jury, such a penalty will be valid in the absence of exceptional circumstances. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

The imposition of a harsher sentence in the absence of any intervening misconduct at a de novo trial on appeal of the defendant's conviction of reckless driving does not violate the due process clause. Griffith v. Kerkhoff, 345 F. Supp. 1160 (W.D. Va. 1972).

Fact that defendant was sentenced to a greater punishment after his de novo trial in circuit court did not establish a violation of due process or show that a manifest injustice occurred. Breznick v. Commonwealth, No. 0982-19-3, 2020 Va. App. LEXIS 216 (July 28, 2020).

No conviction of greater offense on appeal from conviction of lesser included offense. - One who was tried in a court not of record on a warrant charging him with driving under the influence of alcohol, and who was convicted of the lesser included offense of impaired driving, may not be tried and convicted of driving under the influence of intoxicants on an appeal of his conviction to the corporation (now circuit) court. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

When a warrant charges an accused with an offense of several grades, and on his trial in a court not of record he is acquitted of the greater offense and convicted of the lesser included offense, on appeal from that conviction the defendant is not placed in the same position as to the offense of which he was acquitted as if no trial had been had. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

Due process affords the appellant the right to a de novo hearing in the circuit court without having to risk an attempt by the Commonwealth to convict him of a more serious charge with a greater potential punishment for the same criminal incident. Allen v. Commonwealth, 36 Va. App. 334, 549 S.E.2d 652, 2001 Va. App. LEXIS 447 (2001).

Commonwealth's indictment and conviction of the appellant for a felony offense upon his invocation of this section was constitutionally impermissible as a violation of due process; appellant could only be tried in the circuit court for the original misdemeanor, and the indictment for the felony offense should have been dismissed. Allen v. Commonwealth, 36 Va. App. 334, 549 S.E.2d 652, 2001 Va. App. LEXIS 447 (2001).

Reopening of case by district court where appeal withdrawn. - Where an appeal had been perfected to the circuit court, and where appellant withdrew his appeal, until a de novo hearing on the merits had commenced, the district court could "for good cause shown" reopen and reconsider its judgment within sixty days from the final judgment. Zamani v. Commonwealth, 26 Va. App. 59, 492 S.E.2d 854 (1997), aff'd, 256 Va. 391 , 507 S.E.2d 608 (1998).

Evidence of statements or admissions. - There is nothing in the language of this section or § 16.1-136 which excludes evidence of statements or admissions made by an accused while testifying in the inferior court. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

Evidence of guilty plea that was followed by appeal to circuit court was properly excluded in later civil trial. - In a civil suit by plaintiff buyer against defendant individual to recover damages for personal injuries arising from an altercation, the trial court did not err in excluding evidence that the individual had pleaded guilty to a misdemeanor charge in relation to the altercation in the district court, as the individual had appealed the conviction to the circuit court under § 16.1-132, which effectively "wiped out" the guilty plea, making evidence of the plea inadmissible. Santen v. Tuthill, 265 Va. 492 , 578 S.E.2d 788, 2003 Va. LEXIS 48 (2003).

Timeliness of appeal. - In a case in which a circuit court quashed defendant's appeal of a revocation of suspension of his sentence for contributing to the delinquency of a minor based on an excessive number of unexcused school absences of one of his four minor children, from the juvenile and domestic relations district court (juvenile court) because it was untimely, the circuit court incorrectly determined that the December 17, 2008, order was a final order by the juvenile court and that his appeal within ten days after entry of the February 11, 2009, order was untimely. Not until the juvenile court heard additional evidence on February 11, 2009, regarding compliance with the conditions of suspension did it make a final, appealable determination regarding whether to impose the previously suspended 30-day sentence or to re-suspend some or all of that time, and defendant's appeal was filed on the same day. Smith v. Commonwealth, No. 0613-09-3, 2009 Va. App. LEXIS 557 (Dec. 15, 2009).

Defendant's appeal of his misdemeanor conviction in the general district court for a de novo trial in the circuit court fell precisely within the class of cases and controversies that the statutes granted the circuit court authority to adjudicate, and the question of whether his notice of appeal was timely filed concerned the circuit court's active jurisdiction, which could be waived if not preserved. Because defendant failed to preserve this argument in circuit court, it could not be addressed on appeal. Breznick v. Commonwealth, No. 0982-19-3, 2020 Va. App. LEXIS 216 (July 28, 2020).

Applied in Robinson v. Commonwealth, 206 Va. 766 , 146 S.E.2d 197 (1966); Hogan v. Lukhard, 351 F. Supp. 1112 (E.D. Va. 1972); White v. Commonwealth, 214 Va. 559 , 203 S.E.2d 443 (1974); Preston v. Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992).

CIRCUIT COURT OPINIONS

Jurisdiction. - When defendant failed to file a notice of a appeal of his driving under the influence conviction within 10 days, he was not entitled to a trial de novo as the appellate court lacked jurisdiction. Commonwealth v. Copto-Lavalle, 58 Va. Cir. 148, 2002 Va. Cir. LEXIS 29 (Fairfax County 2002).

Alleged denial of due process cured. - When defendant exercised his statutory right to note an appeal, his conviction in the general district court was vacated and a de novo trial began anew in the circuit court; any alleged denial of due process in the general district court was cured with the de novo trial in the circuit court. Commonwealth v. Chastain,, 2021 Va. Cir. LEXIS 111 (Fairfax County Apr. 5, 2021).

§ 16.1-133. Withdrawal of appeal.

Notwithstanding the provisions of § 16.1-135, any person convicted in a general district court, a juvenile and domestic relations district court, or a court of limited jurisdiction of an offense not felonious may, at any time before the appeal is heard, withdraw an appeal which has been noted, pay the fine and costs to such court, and serve any sentence which has been imposed.

A person withdrawing an appeal shall give written notice of withdrawal to the court and counsel for the prosecution prior to the hearing date of the appeal. If the appeal is withdrawn more than ten days after conviction, the circuit court shall forthwith enter an order affirming the judgment of the lower court and the clerk shall tax the costs as provided by statute. Fines and costs shall be collected by the circuit court, and all papers shall be retained in the circuit court clerk's office.

Where the withdrawal is within ten days after conviction, no additional costs shall be charged, and the judgment of the lower court shall be imposed without further action of the circuit court.

(1956, c. 555; 1973, c. 18; 1974, c. 228; 1979, c. 536; 1982, c. 366; 1983, c. 105; 1990, c. 25.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 9-3008. Notice of Appeal (General District Court), et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 232, 376, 381.

CASE NOTES

Construction with § 16.1-133.1. - The General Assembly intended to make fully available to a person convicted of a misdemeanor both the right to seek review by a de novo appeal and the right, within the specified period, to petition to reopen the case in the district court; this section and § 16.1-133.1 must be construed in a manner that affords a convicted person the full opportunity to employ both post-trial procedures to the extent the exercise of one does not conflict with the exercise of the other. Commonwealth v. Zamani, 256 Va. 391 , 507 S.E.2d 608 (1998).

Termination of district court's jurisdiction following appeal to circuit court. - Where a case is brought in the circuit court on appeal from the district court, a de novo hearing on the merits must commence before the district court's jurisdiction to reopen the case is terminated; accordingly, where a defendant had noted his appeal to the circuit court and, at the only hearing in that court, the defendant had waived his right to a jury trial and the case was continued, such incidents did not rise to the dignity of a de novo hearing on the merits, the district court retained jurisdiction to reopen its judgment and the defendant could withdraw his appeal to the circuit court. Commonwealth v. Zamani, 256 Va. 391 , 507 S.E.2d 608 (1998).

Validity of district court's jurisdiction following appeal to circuit court. - Where defendant withdrew an appeal of a district court judgment, pursuant to § 16.1-133, more than 10 days after the date of the judgment, and a de novo hearing was not held, the judgment was stayed, but remained valid; a circuit court's appellate order did not annul or abrogate the district court judgment. Commonwealth v. Diaz, 266 Va. 260 , 585 S.E.2d 552, 2003 Va. LEXIS 90 (2003).

Reopening of case by district court. - Where an appeal had been perfected to the circuit court, and where appellant withdrew his appeal, until a de novo hearing on the merits had commenced, the district court could "for good cause shown" reopen and reconsider its judgment within sixty days from the final judgment. Zamani v. Commonwealth, 26 Va. App. 59, 492 S.E.2d 854 (1997), aff'd, 256 Va. 391 , 507 S.E.2d 608 (1998).

Applied in Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

CIRCUIT COURT OPINIONS

Responsibility for costs. - Defendant's appeal of a district court conviction for unreasonably failing to permit his blood or breath to be tested when charged with driving while intoxicated was a criminal matter to which the same procedures applied as appeals from misdemeanor convictions, and defendant was therefore responsible for the jury expense incurred in the circuit court when defendant withdrew his appeal on the day of trial when a jury had been assembled and resolved his case via plea bargain; to avoid the charge, defendant would have had to have withdrawn his jury demand at least 10 days prior to trial. Commonwealth v. Franklin, 54 Va. Cir. 214, 2000 Va. Cir. LEXIS 579 (Northampton County 2000).

§ 16.1-133.1. Reopening case after conviction.

Within sixty days from the date of conviction of any person in a general district court or juvenile and domestic relations district court for an offense not felonious, the case may be reopened upon the application of such person and for good cause shown. Such application shall be heard by the judge who presided at the trial in which the conviction was had, but if he be not in office, or be absent from the county or city or is otherwise unavailable to hear the application, it may be heard by his successor or by any other judge or substitute judge of such court. If the case is reopened after the case documents have been filed with the circuit court, the clerk of the circuit court shall return the case documents to the district court in which the case was originally tried.

(1973, c. 440; 1975, c. 298; 1983, c. 21.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Research References. - Virginia Forms (Matthew Bender). No. 9-3005. Order Vacating Plea of Guilty (Court Not of Record).

CASE NOTES

Construction with § 16.1-133. - The General Assembly intended to make fully available to a person convicted of a misdemeanor both the right to seek review by a de novo appeal and the right, within the period specified in this section, to petition to reopen the case in the district court; this section and § 16.1-133 must be construed in a manner that affords a convicted person the full opportunity to employ both post-trial procedures to the extent the exercise of one does not conflict with the exercise of the other. Commonwealth v. Zamani, 256 Va. 391 , 507 S.E.2d 608 (1998).

Termination of district court's jurisdiction following appeal to circuit court. - Where a case is brought in the circuit court on appeal from the district court, a de novo hearing on the merits must commence before the district court's jurisdiction to reopen the case is terminated; accordingly, where a defendant had noted his appeal to the circuit court and, at the only hearing in that court, the defendant had waived his right to a jury trial and the case was continued, such incidents did not rise to the dignity of a de novo hearing on the merits, the district court retained jurisdiction to reopen its judgment and the defendant could withdraw his appeal to the circuit court. Commonwealth v. Zamani, 256 Va. 391 , 507 S.E.2d 608 (1998).

Juvenile court lost jurisdiction since no timely appeal filed. - Because a mother did not comply with subsection A of § 16.1-296 and § 16.1-133.1 by appealing a dispositional order within 10 days of its entry or applying to reopen the case within 60 days, pursuant to Va. Sup. Ct. R. 1:1, the juvenile court lost jurisdiction of a charge and the court's dismissal of that charge had no force; therefore, since the juvenile court had authority under subdivision A 13 c of § 16.1-278.8 to maintain custody of the child with the social services department, the circuit court properly denied the mother's motion to dismiss proceedings and return custody of her son. Lee v. Frederick County Dep't of Soc. Servs., No. 2693-07-4, 2008 Va. App. LEXIS 370 (Aug. 5, 2008).

Reopening of case where appeal withdrawn. - Where an appeal had been perfected to the circuit court, and where appellant withdrew his appeal, until a de novo hearing on the merits had commenced, the district court could "for good cause shown" reopen and reconsider its judgment within sixty days from the final judgment. Zamani v. Commonwealth, 26 Va. App. 59, 492 S.E.2d 854 (1997), aff'd, 256 Va. 391 , 507 S.E.2d 608 (1998).

Finding of contempt based on valid conviction. - Trial court's finding that defendant was in contempt of court was based on a valid conviction; as the district court did not dismiss defendant's conviction within 21 days of the conviction order, the district court no longer had jurisdiction and could not dismiss defendant's conviction. Wilson v. Commonwealth, No. 1959-01-4, 2002 Va. App. LEXIS 465 (Ct. of Appeals Aug. 13, 2002).

CIRCUIT COURT OPINIONS

Applicability. - Statutory authority of § 16.1-133.1 applies only to convictions not matters rendered nolle prosequi; while the district court may retain its revisory power over criminal sentences within the time frame allotted by Va. Sup. Ct. R. 1:1, it is clear the General Assembly did not statutorily authorize the district court, on application of the Commonwealth, to vacate the nolle prosequi once entered. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Construction. - While the statute does elongate the time of the revisory power of such courts, it does so only when application is made by the defendant; In addition, in excluding the Commonwealth from the ability to reopen cases, the statute appears to enjoin completely the Commonwealth from revisiting a judgment of conviction to exact an altered punishment. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Double jeopardy. - Because the Commonwealth terminated a prosecution after jeopardy had attached, the nolle prosequi acted as an acquittal for double jeopardy purposes, and, therefore, the cause had to be dismissed with finality. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Litigants are entitled to the certainty that a nolle prosequi is not a mere fleeting grant of a temporary end of a prosecution easily reversed by a judge upon the whim of the moment, but instead triggers the statutory due process rights attendant to bringing charges anew. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

District court abused its discretion in vacating nolle prosequi order. - District court's action of taking the uninvited initiative to cause the nolle prosequi to be vacated and proceeding to trial without the formal recharging of the offense constituted an abuse of discretion because it never announced in reversing its original ruling why its previous judgment was in error; the district court acted in a manner that could be interpreted as crossing the line between prosecuting and judging the case. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Statute does not apply to matters rendered nolle prosequi. - Statutory authority applies only to convictions not matters rendered nolle prosequi; while the district court may retain its revisory power over criminal sentences within the time frame allotted by Va. Sup. Ct. R. 1:1, it is clear the General Assembly did not statutorily authorize the district court, on application of the Commonwealth, to vacate the nolle prosequi once entered. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Court cannot reacquire jurisdiction by vacating nolle prosequi order. - District court could not vacate its written grant of a nolle prosequi motion because it divested itself of jurisdiction over defendant and thus, could not reacquire the same by vacating its divesting order; to re-institute the jurisdiction of the district court over defendant, due process required the reinstatement of the case through recharging, assuming double jeopardy was of no bar. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

§ 16.1-134. Appeal by Commonwealth in revenue cases.

In any case involving the violation of a law relating to the state revenue tried in a court not of record under this title, the Commonwealth shall also have the right at any time within ten days from final judgment to appeal to the circuit court.

(1956, c. 555.)

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 47, 376.

§ 16.1-135. Bail and recognizance; papers filed with circuit court.

A person who has been convicted of an offense in a district court and who has noted an appeal, either at the time judgment is rendered or subsequent to its entry, shall be given credit for any bond that he may have posted in the court from which he appeals and shall be treated in accordance with the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2. Any new bond which may be required for the release of such person pending the appeal shall be given before the judge or the clerk of the district court and treated in accordance with Article 1 of Chapter 9 of Title 19.2; however, if the judge or clerk is not available to take the bond, the bond may be given before a magistrate serving the jurisdiction. Whenever an appeal is taken and the ten-day period prescribed by § 16.1-133 has expired the papers shall be promptly filed with the clerk of the circuit court.

(1956, c. 555; 1981, c. 159; 1999, cc. 829, 846; 2008, cc. 551, 691.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of Title 19.2" for " §§ 19.2-123 and 19.2-124" in the first and second sentences.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "magistrate serving the jurisdiction" for "magistrate of the jurisdiction" in the next-to-last sentence.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 376, 378; 5B M.J. Criminal Procedure, § 14.

CASE NOTES

Authority of justice after judgment of conviction. - The only prerogative that can be lawfully exercised, after judgment of conviction has been pronounced, by a justice of the peace (now district court judge) is to admit the accused to bail, if applied for immediately, or grant bail if subsequently applied for within ten days, or carry into execution the judgment. Seay v. Commonwealth, 155 Va. 1087 , 156 S.E. 574 (1931) (decided under former statute corresponding to this section).

He cannot grant a new trial or hold judgment in abeyance. - There is no statutory provision for a new trial to be had before a justice of the peace (now district court judge) in a criminal case, nor is there any warrant of law authorizing him to hold in abeyance the judgment of conviction. Seay v. Commonwealth, 155 Va. 1087 , 156 S.E. 574 (1931) (decided under former statute corresponding to this section).

It is his mandatory duty to forthwith return and file all papers with the clerk of the court having appellate jurisdiction of the case. Seay v. Commonwealth, 155 Va. 1087 , 156 S.E. 574 (1931), cited in Omohundro v. Palmer, 158 Va. 693 , 164 S.E. 541 (1932) (decided under former statute corresponding to this section).

When such filing has been done by the justice his jurisdiction is at an end and any further act committed in connection with the judgment is ultra vires and void. Seay v. Commonwealth, 155 Va. 1087 , 156 S.E. 574 (1931) (decided under former statute corresponding to this section).

A police justice (now district court judge) loses all jurisdiction over a case when he notes the appeal, admits the accused to bail and delivers the papers to the clerk of the hustings court. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941) (decided under former statute corresponding to this section).

The right of appeal is not dependent upon the posting of a bond. - The right of an accused to appeal from the district court to the circuit court and obtain retrial of a misdemeanor charge pursuant to § 16.1-132 is not dependent upon his posting an appeal bond. Hill v. Middlesex County, 12 Va. App. 58, 402 S.E.2d 243 (1991).

This section authorizes the requirement of bail and describes the manner of taking and handling bail bonds. It does not require the accused to secure his release on bail, nor does it impose a bonding condition upon his exercise of his right to trial de novo. Hill v. Middlesex County, 12 Va. App. 58, 402 S.E.2d 243 (1991).

No condition imposed except appeal be made within 10 days from conviction. - No condition is imposed upon the exercise of the statutory right to appeal in § 16.1-132 other than the requirement that the appeal be made within 10 days from conviction in the district court. Hill v. Middlesex County, 12 Va. App. 58, 402 S.E.2d 243 (1991).

§ 16.1-136. How appeal tried.

Any appeal taken under the provisions of this chapter shall be heard de novo in the appellate court and shall be tried without formal pleadings in writing; and, except in the case of an appeal from any order or judgment of a court not of record forfeiting any recognizance or revoking any suspension of sentence, the accused shall be entitled to trial by a jury in the same manner as if he had been indicted for the offense in the circuit court.

(1956, c. 555.)

Cross references. - As to procedure on appeal in civil cases, see §§ 16.1-106, 16.1-113 and 16.1-114.1.

Law review. - For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 379, 380, 382; 2B M.J. Automobiles, § 118; 2C M.J. Autrefois, Acquit and Convict, § 11; 4C M.J. Constitutional Law, §§ 128, 141; 5B M.J. Criminal Procedure, § 77; 9A M.J. Habeas Corpus, § 15; 19 M.J. Warrants, § 6.

CASE NOTES

I. IN GENERAL.

Constitutionality of distinctions between felonies and misdemeanors with respect to appeals. - With respect to appellate procedure, the distinctions between felonies and misdemeanors either do not exist or, where they do, are based upon well-reasoned objectives which serve a legitimate state interest and protect the constitutional rights of defendants convicted of crime and thus do not violate equal protection. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Construction with other laws. - Where the provisions of §§ 16.1-69.24 and 18.2-459 address the specific subject of appeals from summary contempt adjudications in the district courts, and the provisions of §§ 16.1-132 and 16.1-136 address the general subject of appeals from the district courts, to the extent that the more specific provisions of §§ 16.1-69.24 and § 18.2-459 are in conflict with the general provisions of §§ 16.1-132 and 16.1-136, the more specific statutes prevail. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Because the provisions of § 16.1-69.24 and § 18.2-459 had to prevail over the more general provisions of §§ 16.1-132 and 16.1-136, a contemnor appealing an adjudication of summary contempt does not receive a trial de novo in the circuit court with attendant Sixth Amendment protections and, thus, does not have a Sixth Amendment right of confrontation in that summary contempt adjudication in the circuit court. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Double jeopardy does not attach. - Assertion that the trial on the new warrant under this section was barred by the double jeopardy clause was without merit. An appeal de novo from a general district court to a circuit court annuls the former judgment as completely as if no trial had ever occurred. To allow a defendant to appeal a conviction in the general district court de novo and then plead double jeopardy in the circuit court would grant every criminal defendant who appealed an automatic pass to freedom. Ledbetter v. Commonwealth, 18 Va. App. 805, 447 S.E.2d 250 (1994).

Trial by jury. - This section and § 16.1-132 were enacted pursuant to Va. Const., Art. I, § 8, and provide the means of securing a trial by jury. Commonwealth v. Bass, 113 Va. 760 , 74 S.E. 397 (1912) (decided under former statutes corresponding to this section and § 16.1-132).

Improper denial of de novo appeal. - Circuit court committed clear error in denying a mother her right to a de novo appeal of an order awarding a father custody of the parties' child because the circuit court considered the transcript of the juvenile and domestic relations district court hearing on the matter and pronounced that its ruling would be the same unless the mother presented different evidence; the circuit court improperly shifted the burden of production and persuasion from the father to the mother by requiring the mother to present new or different evidence and imposed an award of attorney's fees as a punitive measure to punish the mother for pursuing her right to a trial de novo. Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355, 2008 Va. App. LEXIS 139 (2008).

No opportunity for vindictive deterrence of appeal. - The Virginia two-tier system of administering criminal justice does not present the opportunity for the vindictive deterrence of appeal condemned in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

Applied in Eames v. Town of Rocky Mount, 217 Va. 16 , 225 S.E.2d 197 (1976); Fairfax County Dep't of Family Servs. v. Nordel, 29 Va. App. 400, 512 S.E.2d 830 (1999).

II. TRIAL DE NOVO.

The court is given a free hand in conducting the trial on appeal, under this section and § 16.1-137, in such a way as to guarantee every substantial right, on the one hand, and, on the other, to cut off frivolous and formal objections. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922) (decided under former statute corresponding to this section).

The de novo trial is a two-edged sword. Just as a defendant is protected against having anything that happened in the lower court used against him in the de novo trial, he may not seek to incur any of the benefits. The fact that the prosecution may have agreed to a lesser penalty below is irrelevant in the de novo trial. McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

Which is to be heard de novo. - Under the provisions of this section appeals from convictions by mayors, police justices, justices of the peace and trial justices appointed under Chapter 2 of former Title 16 (now district court judges), are to be tried de novo. Postal Telegraph-Cable Co. v. City of Charlottesville, 126 Va. 800 , 101 S.E. 357 (1919); Ossa v. Town of Appalachia, 137 Va. 795 , 119 S.E. 51 (1923); Seay v. Commonwealth, 155 Va. 1087 , 156 S.E. 574 (1931); Peak v. Commonwealth, 171 Va. 535 , 199 S.E. 473 (1938); Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946). The above cases were decided under former statute corresponding to this section; Laing v. Commonwealth, 203 Va. 682 , 127 S.E.2d 142 (1962), cert. denied, Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992).

In Virginia, on appeal from convictions of misdemeanors in courts not of record to courts of record, the defendant is entitled to a trial de novo under this section. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

Circuit court erred because it acted as a court of appeals and did not conduct a de novo trial by asking a father to show where in the record he preserved his arguments; the circuit court did not conduct a new hearing on the underlying issues but rather reviewed the determination of the juvenile and domestic relations district court and rendered a decision based upon that review. Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263 (Oct. 11, 2016).

And without formal pleadings. - This section dispenses with formal pleadings in writing on the trial where an appeal has been taken from the judgment of a justice convicting one of an offense. Harding v. Commonwealth, 105 Va. 858 , 52 S.E. 832 (1906); Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921); Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922); Ossa v. Town of Appalachia, 137 Va. 795 , 119 S.E. 51 (1923); McWilliams v. Commonwealth, 165 Va. 725 , 181 S.E. 391 (1935); Peak v. Commonwealth, 171 Va. 535 , 199 S.E. 473 (1938). The above cases were decided under former statute corresponding to this section.

This section does not deprive an accused of the right or relieve him of the duty to file informal or special pleas, if he intends to rely on them. Royals v. City of Hampton, 201 Va. 552 , 111 S.E.2d 795 (1960).

A trial de novo in the circuit court grants to a litigant every advantage which would have been his had the case been tried originally in such court. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Consideration of evidence. - A trial court is required to consider any relevant evidence developed prior to the hearing date that may impact on the child's best interests. Parish v. Spaulding, 20 Va. App. 130, 455 S.E.2d 728 (1995).

The appeal is in effect a statutory grant of a new trial to the accused to be had before the appellate court. Dickerson v. Commonwealth, 162 Va. 787 , 173 S.E. 543 (1934); Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946); Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949). These cases were decided under former statute corresponding to this section.

The intent of this section and § 16.1-137 is to afford the accused, by giving him a new trial before the court on appeal, the opportunity to have every advantage which would have been his had he been tried originally in such court. Dickerson v. Commonwealth, 162 Va. 787 , 173 S.E. 543 (1934) (decided under former corresponding statutes).

The appeal is in effect a statutory grant of a new trial to the accused, to be had before a court of record having original criminal jurisdiction. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965).

The intent of this section and § 16.1-137, is to grant a new trial to the accused, with the opportunity to have every advantage which he would have had had he been tried originally in a circuit court, and to give such court a free hand in conducting such new trial in such a way as to guarantee to the accused every substantial right on the one hand, and, on the other hand, to cut frivolous and purely formal objections. Royals v. City of Hampton, 201 Va. 552 , 111 S.E.2d 795 (1960).

It annuls the judgment of the trial justice, and it is reversible error to permit such judgment to be introduced in evidence before the jury on the trial of the case on appeal. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941); Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946); Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949). These cases were decided under former statute corresponding to this section.

The appeal annuls the judgment of the inferior tribunal as completely as if there had been no previous trial. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965); Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

The appeal not only annuls the judgment of the inferior court, but it is reversible error to permit such judgment to be introduced in evidence before the jury on a trial of the case on appeal. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965).

An appeal under this section and § 16.1-132 is, in effect, a statutory grant of a new trial which annuls the judgment of the inferior court, and accordingly such judgment may not be introduced in evidence before the jury in the circuit court. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

The statutory grant of a new trial under this section annuls the judgment of the inferior court. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

This section annuls the judgment of the court not of record as completely as if there had been no previous trial. The amount of punishment awarded in the previous trial may not be imparted to the jury. The judgment appealed from is completely annulled, and is not thereafter available for any purpose. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

Where a hearing is de novo, an appeal to the circuit court from a juvenile court under this section annuls the judgment of the juvenile court as completely as if there had been no previous trial. Cox v. Cox, 16 Va. App. 146, 428 S.E.2d 515 (1993).

Also a former plea of guilty. - The appeal in effect annuls or wipes out a former plea of guilty entered before the trial justice. The purpose of this section is to give the accused a new trial in the circuit court, unhampered and unprejudiced by such plea. Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949) (decided under former § 16-10, corresponding to this section).

And a plea of guilty by accused before the trial justice is not admissible in the circuit court as "a confession." Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949) (decided under former § 16-10, corresponding to this section).

A plea of guilty in the court not of record may not be considered in the appeal. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

And the trial on appeal is not a review of the proceedings before the justice. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941) (decided under former statute corresponding to this section).

Where the court made no factual findings, offered no independent basis for its decision and rendered no independent final judgment based on the facts, the trial court has acted inconsistently with its duty to render a new and inherently independent judgment upon the evidence presented to it. In re Fener, No. 0588-03-1, 2003 Va. App. LEXIS 596 (Ct. of Appeals Nov. 18, 2003).

The statute contemplates that the accused shall plead anew in the circuit court, for unless he does so he could not be tried by a jury in the same manner as if he had been indicted for the offense in said court. Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949) (decided under former § 16-10, corresponding to this section).

The judgment of the inferior court may not be introduced in evidence before the jury in the court of record. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

And record of such court may not be used as reason for increased punishment. - In a de novo trial in Virginia, it is improper for the sentencing judge in the court of record to consider the record in the inferior court so that he can state his reasons for giving increased punishment. The jury verdict of a finding of guilt and fixing punishment, of course, states no reasons. The judge, after a verdict, merely imposes the sentence fixed by the jury. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

Imposition of greater sentence on retrial. - Allowing a jury to impose a greater sentence on retrial without evidence of supervening misconduct does not place an unconstitutional condition on one's exercise of the right to a trial by jury. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

When a jury in a de novo trial imposed a more severe sentence than was imposed in the lower court of record, there was no denial of either due process or equal protection. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

When a greater sentence is imposed at a retrial by a jury, such a penalty will be valid in the absence of exceptional circumstances. Manns v. Allman, 324 F. Supp. 1149 (W.D. Va. 1971), aff'd, 473 F.2d 909 (4th Cir. 1973).

The fact that a state's law provides for a de novo trial on appeal does not prevent the prohibition of a longer sentence after appeal. Griffin v. Wilkerson, 335 F. Supp. 1272 (W.D. Va. 1972).

The question on appeal is whether the accused is guilty of the offense charged and for which he has been tried. In determining this issue the judgment of the trial justice is disregarded. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941); Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946); Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949). These cases were decided under former statute corresponding to this section. See also, Royals v. City of Hampton, 201 Va. 552 , 111 S.E.2d 795 (1960).

The question on the appeal is not whether the county court (now general district court) was in error, but whether the defendant is guilty or not guilty. And that matter is determined by an entirely new trial. McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

And not whether the judgment of the justice is correct. - The question on appeal from a justice's decision is not whether his judgment is correct, and in determining the guilt or innocence of the accused the judgment is disregarded. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941); Gravely v. Deeds, 185 Va. 662 , 40 S.E.2d 175 (1946). These cases were decided under former statute corresponding to this section.

It is improper to inform the jury of the punishment given accused by the trial justice, since this section provides that the appeal must be tried de novo. Green v. Commonwealth, 170 Va. 619 , 195 S.E. 520 (1938) (decided under former statute corresponding to this section).

It was improper for the prosecutor in argument to refer to the punishment requested in the lower court, but since there was no reference to the punishment actually imposed, the impropriety was not grounds for reversal, particularly since the jury was appropriately instructed. Mawyer v. Commonwealth, 203 Va. 898 , 128 S.E.2d 433 (1962).

Arguments in general district court not binding. - The Commonwealth, on appeal from a conviction in general district court, is no more bound by the assertions of the prosecutor in the first trial than is the defendant bound by his counsel's actions therein. Ledbetter v. Commonwealth, 18 Va. App. 805, 447 S.E.2d 250 (1994).

Amendment of judgment changing acquittal to conviction. - Courts cannot alter the language of the judgment of a police justice (now district court judge) so as to change an acquittal to a conviction, in order to secure a trial de novo. Peak v. Commonwealth, 171 Va. 535 , 199 S.E. 473 (1938) (decided under former statute corresponding to this section).

Evidence of statements or admissions. - There is nothing in the language of this section or § 16.1-132 which excludes evidence of statements or admissions made by an accused while testifying in the inferior court. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

No conviction of greater offense on appeal from conviction of lesser included offense. - One who was tried in a court not of record on a warrant charging him with driving under the influence of alcohol, and who was convicted of the lesser included offense of impaired driving, may not be tried and convicted of driving under the influence of intoxicants on an appeal of his conviction to the corporation (now circuit) court. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

When a warrant charges an accused with an offense of several grades, and on his trial in a court not of record he is acquitted of the greater offense and convicted of the lesser included offense, on appeal from that conviction the defendant is not placed in the same position as to the offense of which he was acquitted as if no trial had been had. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

Although a circuit court had discretion under § 16.1-137 to amend a defective warrant, defendant's double jeopardy rights were violated when the circuit court, in an appeal de novo under § 16.1-136, improperly amended the warrant to charge driving under the influence (DUI) second offense under § 18.2-266 after defendant had been acquitted of that charge by a district court, which had then convicted defendant of a lesser offense of DUI first offense. Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

An appeal of a district court order revoking a suspended sentence must be heard de novo in the circuit court. Barnes v. City of Newport News, 9 Va. App. 466, 389 S.E.2d 481 (1990).

An appeal of a district court order suspending driver's license. - Because the appeal of a conviction from a general district court to circuit court results in a trial de novo, perfecting the appeal in the district court renders the judgment a nullity under § 16.1-136; if the judgment in the district court is void, there is no conviction and therefore no suspension of the license. The license is returned to the accused simply because the court has no authority to retain physical custody of it; the language of § 46.2-398 requiring the return of the license upon effecting an appeal would be unnecessary if this statute did not apply to appeals from the circuit court. Corbin v. Commonwealth, 44 Va. App. 196, 604 S.E.2d 111, 2004 Va. App. LEXIS 516 (2004).

Validity of district court's jurisdiction following appeal to circuit court. - Where defendant withdrew an appeal of a district court judgment more than 10 days after the date of the judgment, and a de novo hearing was not held, the judgment was stayed but remained valid; a circuit court's appellate order did not annul or abrogate the district court judgment. Commonwealth v. Diaz, 266 Va. 260 , 585 S.E.2d 552, 2003 Va. LEXIS 90 (2003), reversing 38 VA. App. 713, 568 S.E.2d 401 (2002).

III. APPEALS FROM JUVENILE AND DOMESTIC RELATIONS DISTRICT COURTS.

Transfer decision appeal. - The circuit court that hears an appeal of a juvenile court's transfer decision de novo pursuant to this section must, in the absence of any provision specifying a different procedure, follow the mandatory provisions that govern juvenile court transfer proceedings. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Review of juvenile court record in making determination on transfer issue. - The critical requirement is that the circuit court make an independent determination on the issue of transfer but it is permissible for the circuit court to review the transcripts and written records from the juvenile court. Grogg v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988).

Section only vehicle for appeal from juvenile court. - Although this chapter relates to "Jurisdiction and Procedure in Criminal Matters," this section remains the only vehicle for appeal from the juvenile court to the circuit court, having been reenacted as a part of the Juvenile and Domestic Relations District Court Law of 1977. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Distinction between appeal and divestiture of further jurisdiction in juvenile court. - Under the statutory scheme this distinction between an appeal under this section and a divestiture of further jurisdiction in the juvenile court by operation of subsection A of § 16.1-244 is intentional and consistent with and conducive to the best interests of children who are the subjects of custody disputes between their natural parents, the protection of parental rights, and, less significantly, with the notion of judicial economy. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

In an appeal to the circuit court, the "advantage" granted to the noncustodial parent is simply the avoidance of the additional burden of proof imposed by the change in circumstance test; in the de novo appeal, the issue is simply what is in the best interests of the child. Accordingly, the procedural distinction between an appeal under this section and a divestiture of further jurisdiction in the juvenile court by operation of subsection A of § 16.1-244 is significant and perhaps controlling in most cases. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

The procedural distinction between an appeal under this section and a divestiture of further jurisdiction in the juvenile court by operation of subsection A of § 16.1-244 relating to divorce proceedings is significant. An order adjudicating an appeal from the juvenile court to the circuit court is not entitled to the procedural convenience of transfer provided by § 20-79 . Rather, such order, together with related issues embraced by the appeal, rests within the exclusive jurisdiction of the circuit court pending disposition by that court. Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999).

De novo review precludes issues concerning notice provided by JDR court. - Because the custody case was heard de novo in the trial court, the decision of the juvenile and domestic relations district court (JDR court) was annulled under § 16.1-136. Any issues concerning the notice provided by the JDR court were moot. Harris v. Burd,, 2006 Va. App. LEXIS 393 (Aug. 22, 2006).

Impartial de novo standard of review not denied. - Trial court did not deny a mother an impartial de novo standard of review on appeal from an order of a juvenile and domestic relations district court because although the trial court reviewed the JDR court's opinion in issuing its pendente lite order, the trial court stated that it reached its own conclusions; from the trial court's letter opinion, and the fact that the pendente lite hearing lasted for two days, it was apparent that the mother was allowed to put on evidence, and in addition, the final hearing took place over two days, with one day devoted to custody issues. Huston v. Huston,, 2010 Va. App. LEXIS 407 (Oct. 19, 2010).

Circuit court retained jurisdiction of juvenile proceeding following disposition of appeal. - Where the circuit court acquired jurisdiction over an appeal de novo of a juvenile proceeding, the circuit court retained jurisdiction to hear a parole revocation proceeding concerning the juvenile upon her release from the department of juvenile justice. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Admission of orders terminating parental rights. - Record belied a parent's assertion that the trial court did not afford the parent a trial de novo and shifted the burden of going forward with evidence to the parent as a result of its admission of orders terminating the parent's residual parental rights. To the contrary, the record showed that the trial court admitted the orders, but limited their use to show the procedural history of the case, not the substantive history. Chappell v. Alexandria Dep't of Human Servs.,, 2008 Va. App. LEXIS 267 (June 3, 2008).

Burden of proof. - A de novo hearing means a trial anew, with the burden of proof remaining upon the party with whom it rested in the juvenile court. Box v. Talley, 1 Va. App. 289, 338 S.E.2d 349 (1986).

Burden on appeal of termination order on social services department. - On appeal to circuit court brought by parents under this section from orders of the juvenile and domestic relations district court terminating their residual parental rights pursuant to § 16.1-283, the circuit court erred in placing the burden of proof on the parents rather than the department, as should have occurred in a trial de novo. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Civil contempt of court did not alter nature of relief. - Where judgment was for arrearages in child support payments established by the terms of a previously-entered property settlement agreement, and where husband filed his notice of appeal with the circuit court but posted no appeal bond, upon the expiration of 30 days, the circuit court was without jurisdiction to entertain the appeal; the fact that husband also was found in civil contempt of court, and a sanction was imposed, did not alter the fundamental nature of the relief sought by wife; the case was treated as a civil proceeding in the juvenile and domestic relations court and the appeal to the circuit court was, therefore, civil in nature. Scheer v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990).

Absence of reference to appeal bond does not abrogate § 16.1-107 provisions. - The provisions of this section and following sections indeed make no provision for an appeal bond; however, the absence of any reference to an appeal bond in this section in no way abrogates the mandatory provisions of § 16.1-107, which requires a bond in an appeal of a civil case. Scheer v. Isaacs, 10 Va. App. 338, 392 S.E.2d 201 (1990).

Award of attorney fees. - Circuit court erred in awarding a father attorney fees in his child custody action because it denied the mother a de novo review on appeal and used the attorney fees award as a punitive measure to punish the mother for pursuing her right to a trial de novo; the circuit court's action imposed upon the mother the burden of proving that the juvenile and domestic relations court judge had decided the parties' custody dispute wrongly and/or had weighed the evidence incorrectly, and the circuit court abdicated its responsibility to independently weigh the evidence, make its own credibility determinations, and decide in the exercise of its sound discretion in which parent custody would be vested so as to serve the best interest of the child. Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355, 2008 Va. App. LEXIS 139 (2008).

CIRCUIT COURT OPINIONS

Jurisdiction. - When defendant failed to file a notice of a appeal of his driving under the influence conviction within 10 days, he was not entitled to a trial de novo as the appellate court lacked jurisdiction. Commonwealth v. Copto-Lavalle, 58 Va. Cir. 148, 2002 Va. Cir. LEXIS 29 (Fairfax County 2002).

Finding of not guilty of contempt and lack of arrearages was not appealable, and thus, the circuit court lacked jurisdiction to hear the case; any finding by the juvenile and domestic relations court not holding a father in contempt was not appealable by either party since the district court found the father not in contempt because no arrearages existed and that distinct connection between the alleged arrears and contempt were litigated fully in the district court. Shipe v. Shipe,, 2021 Va. Cir. LEXIS 194 (Culpeper Sept. 21, 2021).

Trial de novo. - When defendant exercised his statutory right to note an appeal, his conviction in the general district court was vacated and a de novo trial began anew in the circuit court; any alleged denial of due process in the general district court was cured with the de novo trial in the circuit court. Commonwealth v. Chastain,, 2021 Va. Cir. LEXIS 111 (Fairfax County Apr. 5, 2021).

Nonsuit. - Nonsuit in de novo appeal from child support proceedings could be taken by the Division of Child Support Enforcement under subsection D of § 8.01-380 because although the appeal was heard de novo without formal pleadings under § 16.1-136, the father was not relieved of the duty to file an actual counterclaim. Div. of Child Support Enforcement ex rel. Abediyi v. Ferguson, 77 Va. Cir. 341, 2008 Va. Cir. LEXIS 163 (Roanoke 2008).

Jury trial. - In an action where defendant was charged with a Class 4 misdemeanor, for an animal running at large, pursuant to Chesapeake City Code § 10-42, which offense was punishable by a maximum fine of $250, the court on appeals did not err by granting defendant's request for a jury trial, as such was provided for under § 16.1-136. Commonwealth v. Boone,, 2021 Va. Cir. LEXIS 92 (Chesapeake Mar. 25, 2021).

§ 16.1-137. Procedure on appeal when warrant defective.

Upon the trial of the warrant on appeal the court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective. But when the warrant is so defective in form that it does not substantially appear from the same what is the offense with which the accused is charged, or even when it is not so seriously defective, the judge of the court having examined on oath the original complainant, if there be one, or if he sees good reason to believe that an offense has been committed, then without examination of witnesses, may issue under his own hand his warrant reciting the offense and requiring the defendant in the original warrant to be arrested and brought before him. Upon the arrest of the defendant on the new warrant and his production or appearance in court the trial shall proceed upon the new warrant. When there is an amendment of the original warrant the trial shall proceed on the amended warrant. But whether the warrant is amended or a new warrant is issued, the court before proceeding to trial on the same may grant a continuance to the prosecution or to the defendant upon such terms as to costs as may be proper under the circumstances of the case; provided, however, that if the warrant be amended or if a new warrant be issued after any evidence has been heard, the accused shall be entitled to a continuance as a matter of right.

When a warrant is amended or a new warrant is issued the costs already accrued shall be taxed against the defendant, if he is ultimately convicted, as a part of the costs arising under the new or amended warrant.

(1956, c. 555; 1958, c. 399.)

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 380; 19 M.J. Warrants, §§ 2, 6.

CASE NOTES

Legislative intent. - This section was intended to provide broad powers and abundant opportunity to amend a defective warrant where justice so requires. Watkins v. Commonwealth, No. 0975-96-3, 1997 Va. App. LEXIS 294 (Ct. of Appeals May 6, 1997).

Formal pleadings are dispensed with. - Formal pleadings are dispensed with on the trial of an appeal from the judgment of a justice of the peace (now district court judge) convicting one of an offense. Harding v. Commonwealth, 105 Va. 858 , 52 S.E. 832 (1906) (decided under former statute corresponding to this section). See § 16.1-136.

And a warrant does not require technical precision. - A warrant need not have the particularity or technical precision of pleading required in an indictment. Harding v. Commonwealth, 105 Va. 858 , 52 S.E. 832 (1906). See Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921). These cases were decided under former statute corresponding to this section.

But it must recite the offense charged. - While a warrant is not required to describe the offense with that particularity demanded of indictments, it must recite the offense charged. Commonwealth v. Doss, 159 Va. 968 , 167 S.E. 371 (1933); Smith v. Commonwealth, 160 Va. 943 , 169 S.E. 550 (1933). Both cases were decided under former statute corresponding to this section.

It was error for the trial court to convict the defendant of a violation of a state statute upon a warrant which, at the time of conviction, charged a violation of a county ordinance. Robinson v. Commonwealth, 206 Va. 766 , 146 S.E.2d 197 (1966).

With sufficient clarity. - Where an appeal has been taken from the judgment of a justice of the peace (now district court judge) convicting one of an offense, the charge of the offense must be sufficiently clear and specific to inform the accused of the precise offense with which he is charged. Harding v. Commonwealth, 105 Va. 858 , 52 S.E. 832 (1906) (decided under former statute corresponding to this section).

A warrant charging the accused with the violation of § 36 of Michie's Virginia Code of 1930, by hunting during the closed season, was held fatally defective as legal notice to the accused of the offense with which he was charged. Smith v. Commonwealth, 160 Va. 943 , 169 S.E. 550 (1933) (decided under former statute corresponding to this section).

The court is given a free hand in conducting the trial on appeal, under this section and § 16.1-136, in such way as to guarantee every substantial right, on the one hand, and, on the other, to cut off frivolous and formal objections. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922) (decided under former statutes corresponding to this section and § 16.1-136).

It may amend warrants or issue new ones. - Under this section, on appeals from convictions before a mayor, justice of the peace or police justice (now district court judges), the appellate court has full power to amend the warrants in any particular, or to issue new warrants in lieu thereof. Postal Telegraph-Cable Co. v. City of Charlottesville, 126 Va. 800 , 101 S.E. 357 (1919); Ossa v. Town of Appalachia, 137 Va. 795 , 119 S.E. 51 (1923); Commonwealth v. Doss, 159 Va. 968 , 167 S.E. 371 (1933); Smith v. Commonwealth, 160 Va. 943 , 169 S.E. 550 (1933). These cases were decided under former statute corresponding to this section.

Under this section abundant opportunity is afforded to correct a warrant. Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921) (decided under former statute corresponding to this section).

Under this section there is ample power to correct formal objection to a warrant. Flint v. Commonwealth, 114 Va. 820 , 76 S.E. 308 (1912) (decided under former statute corresponding to this section).

Where the original warrant was sufficient to inform the accused of the charge against him, the court did not err in permitting amendments thereto instead of issuing a new warrant. McWilliams v. Commonwealth, 165 Va. 725 , 181 S.E. 391 (1935) (decided under former statute corresponding to this section).

Because a warrant provided defendant with notice of the nature and character of the offense with which defendant was charged, and because §§ 16.1-137 and 19.2-226 authorized the trial court to amend the warrant to delete reference to a city code, which was mere surplusage, the trial court properly denied defendant's motion to dismiss, and found defendant guilty of a second offense of driving under the influence under § 18.2-266 . Dennis v. Commonwealth,, 2008 Va. App. LEXIS 530 (Dec. 9, 2008).

The court may change a warrant to cover another offense. - Under the broad powers conferred by this section, the court of its own motion may direct the attorney for the Commonwealth to change a warrant from an attempt to commit larceny of oats to an attempt to obtain money by false pretenses. Robinson v. Commonwealth, 111 Va. 844 , 69 S.E. 518 (1910), distinguished in, Eddy v. Commonwealth, 119 Va. 873 , 89 S.E. 899 (1916). These cases were decided under former statute corresponding to this section.

Where the real subject of prosecution was the violation of a local law against catching fish with nets, and the warrant charged defendant with a violation of the fish laws of the State, the defect could have been corrected by amendment under this section. Burks v. Commonwealth, 126 Va. 763 , 101 S.E. 230 (1919) (decided under former statute corresponding to this section).

And it may be duty bound to do so. - When it was brought to the attention of the trial court by accused that the appeal warrant charged him with an offense against the State, whereas he had been tried before the police justice for an offense against a city ordinance, it became the duty of the trial court, under this section, to amend the warrant so as to conform it to the facts so brought to its attention. Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941) (decided under former statute corresponding to this section).

Instead of remanding case to trial justice. - See Read v. Commonwealth, 65 Va. (24 Gratt.) 618 (1873); Malouf v. City of Roanoke, 177 Va. 846 , 13 S.E.2d 319 (1941). Both cases were decided under former statute corresponding to this section.

The court was bound to take the warrant as it read when the evidence was concluded and the defendant's motion to strike was made. Robinson v. Commonwealth, 206 Va. 766 , 146 S.E.2d 197 (1966).

Substitution of warrant pending appeal may be error. - Where a prisoner convicted by a police justice of the violation of a city ordinance against houses of ill fame appeals to the corporation court, neither the attorney for the Commonwealth nor the police justice can, pending the appeal, change the warrant so as to charge an offense under former § 18.1-196 (now § 18.2-347 ). There having been no conviction of any offense under the statute, the provisions of this section as to amendments and changes of the warrant have no application, and until such conviction, the corporation court has no jurisdiction, with or without the consent of the accused, to hear and determine a charge of misdemeanor under former § 18.1-196 (now § 18.2-347 ). Eddy v. Commonwealth, 119 Va. 873 , 89 S.E. 899 (1916). Both cases were decided under former statute corresponding to this section.

The court may try a case on a new warrant. - Under the broad terms of this section if there is any substantial reason to suppose that the accused does not know from the warrant what he is charged with, the court may discard the original warrant and proceed to trial on a new warrant for the offense. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922) (decided under former statute corresponding to this section).

Or on a warrant issued before commission of offense. - In a prosecution for the unlawful sale of ardent spirits, it was held that the defendant was not prejudiced by the fact that the warrant was issued, though not served, before the sale for which he was tried, since, under the broad powers given by this section, the court could have issued a warrant in the exact words of the warrant on which the defendant was tried. Robinson v. Commonwealth, 118 Va. 785 , 87 S.E. 553 (1916) (decided under former statute corresponding to this section).

The circuit court is the proper forum to try cases when it issues a new warrant. Ledbetter v. Commonwealth, 18 Va. App. 805, 447 S.E.2d 250 (1994).

Failure to allege venue not ground for reversal. - Where the accused could have been tried without a warrant in the first instance under former § 16.1-129.1, and as abundant opportunity is afforded under this section to correct the warrant where one has been issued, and as in either event the appeal is to be tried "without formal pleadings in writing" ( § 16.1-136), the Supreme Court ought not to reverse the judgment of the trial court simply because the warrant failed to allege the venue of the offense. Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921) (decided under former statutes corresponding to this section, former § 16.1-129.1 and § 16.1-136).

Where no objection to the warrant is made in the trial court, and no motion is made to correct it under the comprehensive provisions of this section, the Supreme Court will not reverse the judgment of the trial court for formal imperfections of the warrant unless the ends of justice require it. Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921) (decided under former statute corresponding to this section).

Where no objection was made in the trial court to the sufficiency of a warrant in a prosecution for disorderly conduct, and no demurrer thereto was interposed, defendant cannot object for the first time in the Supreme Court that the warrant did not specify the acts of disorderly conduct complained of. Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 (1921) (decided under former statute corresponding to this section).

On appeal from the judgment of a civil and police justice (now district court judge) to the corporation court (now circuit court) in a criminal case, a general motion to quash the warrant on appeal, which points out no specific objections, cannot under the terms of this section and § 16.1-136, avail after verdict as against any defect in form unless it appears from the record of the trial that the accused was or could have been prejudiced thereby. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922) (decided under former statutes corresponding to this section and § 16.1-136).

Amendment of warrant and conviction constituted double jeopardy. - Although a circuit court had discretion under § 16.1-137 to amend a defective warrant, defendant's double jeopardy rights were violated when the circuit court, in an appeal de novo under § 16.1-136, improperly amended the warrant to charge driving under the influence (DUI) second offense under § 18.2-266 after defendant had been acquitted of that charge by a district court, which had then convicted defendant of a lesser offense of DUI first offense. Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

On appeal, court properly granted motion to amend summons. - Where both an arrest warrant and a summons charged defendant with violating a city ordinance and § 18.2-266 , each of which is a misdemeanor, and the defendant was convicted on the summons and appealed, and on appeal, the circuit court granted the Commonwealth's motion to amend the summons to delete the reference to the city ordinance, this action was proper, as the amendment did not change the nature or character of the offense charged. Hill v. Commonwealth, No. 1240-91-4 (Ct. of Appeals Feb. 2, 1993).

Defective warrant held not prejudicial. - For a case where a defective warrant was held not to be prejudicial, see Laing v. Commonwealth, 203 Va. 682 , 127 S.E.2d 142 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963).

Amendment did not render warrant defective. - Arrest warrant issued was not defective as a result of having been amended sometime prior to a trial de novo in the lower appellate court, where the dates of the offense were amended, as the same particularity was not required in warrants of arrest as was required in formal indictments; pursuant to §§ 16.1-129.2 and 16.1-137, as long as the warrant was not so defective as to fail to notify the defendant of the nature and character of the offense charged, both district courts and circuit courts had the power to amend a warrant in any respect in which the warrant appeared to be defective, on the courts' own motion and without the consent of the parties. Raja v. Commonwealth, 40 Va. App. 710, 581 S.E.2d 237, 2003 Va. App. LEXIS 318 (2003).

Even though the trial court allowed the indictment to be amended, the indictment was not rendered defective by the amendment. The trial court merely allowed the indictment to be changed from reading that defendant robbed the store to defendant robbed the store clerk, but at all times, defendant was aware of the nature of the conduct forming the robbery charge against defendant. Thomas v. Commonwealth, No. 1206-06-2, 2006 Va. App. LEXIS 605 (Dec. 20, 2006).

§ 16.1-138.

Repealed by Acts 1983, c. 499.

Cross references. - As to retention and disposition of district court records, see § 16.1-69.53 et seq.

Chapter 8. Juvenile and Domestic Relations Courts.

§§ 16.1-139 through 16.1-217.

Repealed by Acts 1977, c. 559.

Cross references. - For new sections covering the same subject matter as the repealed sections, see §§ 16.1-226 through 16.1-334.

§§ 16.1-217.1 through 16.1-217.4.

Repealed by Acts 1975, c. 341.

Cross references. - For present provisions as to child abuse and neglect, see § 63.2-1500 et seq.

Chapter 9. Judicial Conference of Virginia for District Courts.

Sec.

§ 16.1-218. Established; active and honorary members.

There is hereby established a Judicial Conference of Virginia for District Courts whose active members shall be the judge of every general district court and juvenile and domestic relations district court of the Commonwealth. The Attorney General of Virginia, the Chairman of the House Committee for Courts of Justice or his designee who shall be a member of the committee, the Chairman of the Senate Committee on the Judiciary or his designees who shall be a member of the committee, the president and secretary of the Virginia State Bar, the president and secretary of the Virginia Bar Association, the president and secretary of the Virginia Trial Lawyers Association, the president and secretary of the Old Dominion Bar Association, the president and secretary of the Virginia Association of Commonwealth's Attorneys, the president and secretary of the Virginia Women Attorneys Association, the president and secretary of the Virginia College of Criminal Defense Attorneys, and the president and secretary of the Virginia Association of Defense Attorneys shall be honorary members of the Conference without voting privilege.

(1962, c. 622; 1970, c. 559; 1972, c. 518; 1975, c. 334; 1980, c. 447; 1981, c. 231; 1989, c. 597; 1990, c. 249; 2001, c. 229; 2008, c. 115.)

Cross references. - As to the Judicial Conference of Virginia for courts of record, see § 17.1-706 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The Virginia Code Commission authorized the substitution of "the Chairman of the House Committee for Courts of Justice or his designee who shall be a member of the committee, the Chairman of the Senate Committee on the Judiciary or his designees who shall be a member of the committee" for "the chairmen of the Courts of Justice Committees of the Senate and House of Delegates or their designees who shall be members of the Courts of Justice committees." March 10, 2021.

The 2001 amendments. - The 2001 amendment by c. 229 inserted "the president and secretary of the Virginia College of Criminal Defense Attorneys" in the second sentence.

The 2008 amendments. - The 2008 amendment by c. 115 inserted "or their designees who shall be members of the Courts of Justice committees" near the beginning of the second sentence.

§ 16.1-219. President; election of executive committee; assistance by Executive Secretary of Supreme Court.

The Chief Justice of the Supreme Court shall be president of the Conference. The Conference shall elect from the judges of courts not of record seven judges who shall act as an executive committee. The Chief Justice shall be chairman of the executive committee, but he may designate the Executive Secretary of the Supreme Court to preside at meetings of the executive committee and the Conference and may assign him administrative duties relating to the committee and Conference.

(1962, c. 622; 1970, c. 559.)

§ 16.1-220. Meetings; active members must give notice of inability to attend; special session concerning motor vehicle and traffic laws.

The Conference shall meet at least once in each calendar year at the call of the president and at such other times as may be designated by him or by the executive committee for the purpose of discussing and considering means and methods of improving the administration of justice in this Commonwealth. If any active member shall for any cause be unable to attend, he shall promptly notify the president. Unless excused from attendance, it shall be the duty of each active member to attend and remain throughout the proceedings of the Conference.

In conjunction with said meetings and as a part thereof, the Conference shall conduct a session at least once each year devoted to the consideration of and instruction on the Commonwealth's motor vehicle and traffic laws and their proper administration. Unless excused from attendance, it shall be the duty of each active member whose jurisdiction includes cases involving violations of such laws to attend this session. The Executive Secretary of the Supreme Court shall be responsible for preparing the program for this session, and the office of the Attorney General, Department of State Police and Department of Motor Vehicles shall cooperate with him in preparing for this session.

(1962, c. 622; 1968, c. 496; 1970, c. 559.)

§ 16.1-221. Members to receive actual expenses.

The active members and honorary members shall receive their actual expenses while in attendance at the meetings of the Conference, and of the executive committee.

(1962, c. 622; 1964, c. 9.)

Chapter 10. Virginia Juvenile Justice Information System.

Sec.

§ 16.1-222. Established; powers of Director.

  1. There is hereby established within the Department of Juvenile Justice the Virginia Juvenile Justice Information System which shall operate separate and apart from the Central Criminal Records Exchange.
  2. The Director of the Department of Juvenile Justice is authorized to employ such personnel, establish such offices, acquire such equipment and use such available equipment as shall be necessary to carry out the purpose of this chapter. He is further authorized to enter into agreements with other state agencies for services to be performed for the Virginia Juvenile Justice Information System by employees of such other agencies.

    (1976, c. 589; 1989, c. 733.)

Cross references. - As to personal information systems which are exempt from the Government Data Collection and Dissemination Practices Act, see § 2.2-3802 .

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

For a book review, "Random Violence and the Transformation of the Juvenile Justice Debate," see 86 Va. L. Rev. 1095 (2000).

§ 16.1-223. Receipt, etc., of data; forms for reports; confidentiality.

  1. The Virginia Juvenile Justice Information System shall receive, classify and file data reported to it pursuant to § 16.1-224. The Director is authorized to prepare and furnish to all court service personnel automated data processing equipment, which shall be used for making the data submissions.
  2. Data stored in the Virginia Juvenile Justice Information System shall be confidential, and information from such data that may be used to identify a juvenile may be released only in accordance with § 16.1-300.

    The data submissions may be made available to the Central Criminal Records Exchange or any other automated data processing system, unless the data is identifiable with a particular juvenile. The State Board of Juvenile Justice shall promulgate regulations governing the security and confidentiality of the data submission.

    (1976, c. 589; 1978, c. 684; 1988, c. 541; 2001, cc. 203, 215.)

The 2001 amendments. - The 2001 amendments by cc. 203 and 215 are identical, and in subsection A, deleted "required to be" following "file data," and substituted "pursuant to" for "by"; in subsection B, in the first paragraph, inserted "and information from such data that may be used to identify a juvenile may be released only in accordance with § 16.1-300," and deleted the former second sentence, which formerly read: "The information from such data which may be used to identify a juvenile shall be released only to the judge, prosecuting attorney and probation officers assigned to serve a court having the child currently before it in any proceeding in accordance with standards adopted by the Department of Juvenile Justice," and substituted "State Board" for "Department" in the last paragraph.

§ 16.1-224. Data submissions by court service units.

  1. All court service units serving juvenile and domestic relations district courts shall make data submissions to the Virginia Juvenile Justice Information System of any persons referred to an intake officer of a court service unit pursuant to § 16.1-260, except that no data submission shall be required for a juvenile charged with a traffic infraction as defined in § 46.2-100 .
  2. In the case of a juvenile who is alleged to be delinquent and who is referred to a court service unit pursuant to § 16.1-260, the data submissions required by subsection A of this section shall contain the name, date of birth and, if any, the social security number of the juvenile before the court. The data submissions concerning all other children coming before a juvenile and domestic relations district court, except those charged with traffic infractions, may in accordance with standards adopted by the Department of Juvenile Justice, contain information identifying the child.
  3. The court service unit shall make a data submission to the Virginia Juvenile Justice Information System of the final disposition of each case reported to the System. When the court service unit reports a disposition of a case which is other than a finding of guilty, the name and other personal identification of the juvenile shall be deleted from the data submissions required by subsection B of this section and from the report of final disposition required by this subsection.

    (1976, c. 589; 1978, c. 684; 1988, c. 541.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

§ 16.1-225. Penalty for violation of confidentiality of records.

Any person who knowingly and willfully violates the provisions of this chapter which require confidentiality of such records shall be guilty of a Class 2 misdemeanor.

(1976, c. 589; 1977, c. 360; 1988, c. 541.)

Cross references. - As to punishment for Class 2 misdemeanors, see § 18.2-11 .

Chapter 11. Juvenile and Domestic Relations District Courts.

General Provisions.

Organization and Personnel.

Jurisdiction and Venue.

Immediate Custody, Arrest, Detention and Shelter Care.

Intake, Petition and Notice.

Appointment of Counsel.

Transfer and Waiver.

Adjudication.

Disposition.

Probation and Parole.

Appeal.

Confidentiality and Expungement.

Virginia Juvenile Community Crime Control Act.

Facilities for Detention and Other Residential Care.

Funding of Local Juvenile Facilities,

Programs and Certain Court

Service Units.

Private Operation of Juvenile Detention Facilities.

Interstate Compact Relating to Juveniles.

Serious or Habitual Offender Comprehensive Action Program.

Emancipation of Minors.

Psychiatric Treatment of Minors Act.

Standby Guardianship.

Juvenile Competency.

Article 1. General Provisions.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, §§ 81, 84.

§ 16.1-226. Short title.

The short title of the statutes embraced in this chapter is "Juvenile and Domestic Relations District Court Law."

(Code 1950, § 16.1-139; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1977, c. 559.)

Cross references. - As to constitutional authority to establish and regulate jurisdiction of inferior courts, see Va. Const., Art. IV, § 14.

As to the definitions used in the chapter regarding the Department of Criminal Justice Services, see § 9.1-101 .

As to duty of the Commissioner of Social Services to encourage and direct training of personnel of local boards and departments engaged in administering programs within the purview of § 16.1-226 et seq., see § 63.2-204 .

As to initiation by the Commissioner of Social Services of collection procedures upon an administrative support order, pursuant to § 16.1-226 et seq., see § 63.2-1916 .

As to the Uniform Collaborative Law Act, see Chapter 11 ( § 20-168 et seq.) of Title 20.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Many of the cases cited in the notes under the various sections of this chapter were decided under corresponding provisions of former Chapter 8 of this title.

Law review. - For note entitled, "The Dilemma of the 'Uniquely Juvenile' Offender," see 14 Wm. & Mary L. Rev. 386 (1972). For survey of Virginia law on domestic relations for the year 1976-1977, see 63 Va. L. Rev. 1418 (1977). For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979). For article, "The Rights of Adolescents," see 23 Wm. & Mary L. Rev. 363 (1982).

For a book review, "Random Violence and the Transformation of the Juvenile Justice Debate," see 86 Va. L. Rev. 1095 (2000).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

CASE NOTES

The jurisdiction, practice, and procedure of the juvenile and domestic relations district courts are entirely statutory, and are set forth in this chapter. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Strict compliance with substantive statutes required. - Taken as a whole, the Virginia cases compel strict compliance with the requirements of the juvenile statutes that are not merely procedural. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

But failure to comply with any statute may not be jurisdictional defect. - Virginia cases do not indicate that the failure to comply with any juvenile statute is a jurisdictional defect and establish no per se rule to that effect. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Cases arising within boundaries of United States Naval Weapons Station. - Virginia courts have jurisdiction to issue and enforce orders pursuant to Chapter 11 of Title 16.1 and Title 63.2 for child-protective services cases arising within the boundaries of the United States Naval Weapons Station. See opinion of Attorney General to Mr. James E. Barnett, County Attorney for York County, 03-034 (3/3/04).

A local department of social services is obligated to provide child welfare services within the Naval Weapons Station, including removal and protective orders, and to apply current abuse and neglect statutes. See opinion of Attorney General to Mr. James E. Barnett, County Attorney for York County, 03-034 (3/3/04).

Local courts may order social workers to enter the Naval Weapons Station to perform home studies and conduct investigations regarding allegations of abuse, neglect, or delinquency. See opinion of Attorney General to Mr. James E. Barnett, County Attorney for York County, 03-034 (3/3/04).

Release of information to local commissioner of revenue. - This section does not prohibit a landlord or managing agent of an apartment complex from releasing to the local commissioner of the revenue a tenant list and vehicle information. See opinion of Attorney General to The Honorable Geraldine M. Whiting, Commissioner of the Revenue for Arlington County, 03-022 (10/8/03).

§ 16.1-227. Purpose and intent.

This law shall be construed liberally and as remedial in character, and the powers hereby conferred are intended to be general to effect the beneficial purposes herein set forth. It is the intention of this law that in all proceedings the welfare of the child and the family, the safety of the community and the protection of the rights of victims are the paramount concerns of the Commonwealth and to the end that these purposes may be attained, the judge shall possess all necessary and incidental powers and authority, whether legal or equitable in their nature.

This law shall be interpreted and construed so as to effectuate the following purposes:

  1. To divert from or within the juvenile justice system, to the extent possible, consistent with the protection of the public safety, those children who can be cared for or treated through alternative programs;
  2. To provide judicial procedures through which the provisions of this law are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other rights are recognized and enforced;
  3. To separate a child from such child's parents, guardian, legal custodian or other person standing in loco parentis only when the child's welfare is endangered or it is in the interest of public safety and then only after consideration of alternatives to out-of-home placement which afford effective protection to the child, his family, and the community; and
  4. To protect the community against those acts of its citizens, both juveniles and adults, which are harmful to others and to reduce the incidence of delinquent behavior and to hold offenders accountable for their behavior.

    (Code 1950, § 16.1-140; 1956, c. 555; 1977, c. 559; 1990, c. 554; 1991, c. 392; 1996, cc. 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in the introductory paragraph, substituted "and the family, the safety of the community and the protection of the rights of victims are" for "the family is" substituted "concerns" for "concern," and substituted "these purposes" for "humane purposes," and in subdivision 4, inserted "both juveniles and adults" following "acts of its citizens" and inserted "and to hold offenders accountable for their behavior" following "the incidence of delinquent behavior."

Law review. - For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978). For comment on termination of parental rights, see 15 U. Rich. L. Rev. 213 (1980). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 82.

CASE NOTES

The primary function of the juvenile courts properly considered is not conviction or punishment for crime; but crime prevention and juvenile rehabilitation. Kiracofe v. Commonwealth, 198 Va. 833 , 97 S.E.2d 14 (1957).

Strict compliance with substantive statutes required. - Taken as a whole, the Virginia cases compel strict compliance with the requirements of the juvenile statutes that are not merely procedural. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

But failure to comply with any statute may not be jurisdictional defect. - Virginia cases do not indicate that the failure to comply with any juvenile statute is a jurisdictional defect and establish no per se rule to that effect. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

Impeachment with prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

Authority to issue interlocutory order. - Trial court properly affirmed juvenile and domestic relations court's order which held the juvenile in contempt for failing to attend school, as § 16.1-227 provided the court with authority to issue the interlocutory order. B.P. v. Commonwealth, 38 Va. App. 735, 568 S.E.2d 412, 2002 Va. App. LEXIS 498 (2002).

Best interests of child. - Mother and father's apparent stipulation to the correctness of the juvenile and domestic relations court's adjudicatory order making a nonspecific finding that their child was abused was not binding on the trial court to the extent that agreement conflicted with the trial court's duty to determine what disposition would serve the best interest of the child. Thus, the trial court needed to hear evidence and make findings about who was inflicting the abuse, and what type of abuse was being inflicted, since § 16.1-227 expressed the intent of the legislature that the welfare of the child and the family were the paramount concerns of the Commonwealth. Anonymous B v. Anonymous C, 51 Va. App. 657, 660 S.E.2d 307, 2008 Va. App. LEXIS 201 (2008).

Trial court did not err in denying a mother's request for a nonsuit under § 8.01-380 because the evidence supported a finding that it was in the best interests of her child for the trial court to transfer the right to advocate for the protective order to the father and the guardian ad litem, and since the mother was a respondent to the preliminary protective order, her right to nonsuit the case against her was subordinate to the welfare of the child; in cases where allegations of child sexual abuse have been presented to the trial court and a preliminary protective order has been issued pursuant to those allegations, an alleged abuser's "right" to nonsuit must be subordinate to the welfare of the child, and the right to advocate a protective order on behalf of the child can be transferred to a party of interest. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

Applied in Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984); Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 394 S.E.2d 492 (1990); Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

CIRCUIT COURT OPINIONS

Equitable powers of juvenile court. - Juvenile court erred in concluding that it did not have jurisdiction over the petition the city social services agency filed that alleged the minor child was a child in need of services and that continued placement in the home would be contrary to the minor child's welfare; evidence showing that the mother had previously abused the minor child's brother was sufficient to invoke the juvenile court's equitable jurisdiction even though the evidence did not show that the minor child had been abused, as the juvenile court was authorized to prevent the minor child's placement with a known abuser and did not have to wait for the minor child herself to be abused. Norfolk Dep't of Soc. Servs. v. Petermore, 63 Va. Cir. 315, 2003 Va. Cir. LEXIS 351 (Norfolk 2003).

OPINIONS OF THE ATTORNEY GENERAL

Contempt proceedings. - A juvenile and domestic relations (JDR) court may enforce, through indirect contempt proceedings, a provision of an emergency protective order (EPO) granting the petitioner the possession of a companion animal when a magistrate has issued the EPO. The contempt proceedings may be initiated by a JDR court through the issuance of a show cause summons. A JDR court has discretion in imposing punishment for a violation of a companion animal provision in an EPO, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury. See opinion of Attorney General to Honorable Anita D. Filson, Chief Judge, Juvenile and Domestic Relations District Court for the 25th Judicial District, No. 14-033, 2014 Va. AG LEXIS 62 (11/21/14).

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-228. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Abused or neglected child" means any child:

  1. Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions, including, but not limited to, a child who is with his parent or other person responsible for his care either (i) during the manufacture or attempted manufacture of a Schedule I or II controlled substance, or (ii) during the unlawful sale of such substance by that child's parents or other person responsible for his care, where such manufacture, or attempted manufacture or unlawful sale would constitute a felony violation of § 18.2-248 ;
  2. Whose parents or other person responsible for his care neglects or refuses to provide care necessary for his health; however, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child. Further, a decision by parents who have legal authority for the child or, in the absence of parents with legal authority for the child, any person with legal authority for the child who refuses a particular medical treatment for a child with a life-threatening condition shall not be deemed a refusal to provide necessary care if (i) such decision is made jointly by the parents or other person with legal authority and the child; (ii) the child has reached 14 years of age and is sufficiently mature to have an informed opinion on the subject of his medical treatment; (iii) the parents or other person with legal authority and the child have considered alternative treatment options; and (iv) the parents or other person with legal authority and the child believe in good faith that such decision is in the child's best interest. Nothing in this subdivision shall be construed to limit the provisions of § 16.1-278.4;
  3. Whose parents or other person responsible for his care abandons such child;
  4. Whose parents or other person responsible for his care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law;
  5. Who is without parental care or guardianship caused by the unreasonable absence or the mental or physical incapacity of the child's parent, guardian, legal custodian, or other person standing in loco parentis;
  6. Whose parents or other person responsible for his care creates a substantial risk of physical or mental injury by knowingly leaving the child alone in the same dwelling, including an apartment as defined in § 55.1-2000 , with a person to whom the child is not related by blood or marriage and who the parent or other person responsible for his care knows has been convicted of an offense against a minor for which registration is required as a Tier III offender pursuant to § 9.1-902 ; or
  7. Who has been identified as a victim of sex trafficking or severe forms of trafficking as defined in the federal Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7102 et seq., and in the federal Justice for Victims of Trafficking Act of 2015, 42 U.S.C. § 5101 et seq. If a civil proceeding under this chapter is based solely on the parent having left the child at a hospital or emergency medical services agency, it shall be an affirmative defense that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended emergency medical services agency that employs emergency medical services personnel, within 14 days of the child's birth. For purposes of terminating parental rights pursuant to § 16.1-283 and placement for adoption, the court may find such a child is a neglected child upon the ground of abandonment. "Adoptive home" means the place of residence of any natural person in which a child resides as a member of the household and in which he has been placed for the purposes of adoption or in which he has been legally adopted by another member of the household. "Adult" means a person 18 years of age or older. "Ancillary crime" or "ancillary charge" means any delinquent act committed by a juvenile as a part of the same act or transaction as, or that constitutes a part of a common scheme or plan with, a delinquent act that would be a felony if committed by an adult. "Boot camp" means a short-term secure or nonsecure juvenile residential facility with highly structured components including, but not limited to, military style drill and ceremony, physical labor, education and rigid discipline, and no less than six months of intensive aftercare. "Child," "juvenile," or "minor" means a person who is (i) younger than 18 years of age or (ii) for purposes of the Fostering Futures program set forth in Article 2 (§ 63.2-917 et seq.) of Chapter 9 of Title 63.2, younger than 21 years of age and meets the eligibility criteria set forth in § 63.2-919 . "Child in need of services" means (i) a child whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of the child or (ii) a child under the age of 14 whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of another person; however, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be a child in need of services, nor shall any child who habitually remains away from or habitually deserts or abandons his family as a result of what the court or the local child protective services unit determines to be incidents of physical, emotional or sexual abuse in the home be considered a child in need of services for that reason alone. However, to find that a child falls within these provisions, (i) the conduct complained of must present a clear and substantial danger to the child's life or health or to the life or health of another person, (ii) the child or his family is in need of treatment, rehabilitation or services not presently being received, and (iii) the intervention of the court is essential to provide the treatment, rehabilitation or services needed by the child or his family. "Child in need of supervision" means: 1. A child who, while subject to compulsory school attendance, is habitually and without justification absent from school, and (i) the child has been offered an adequate opportunity to receive the benefit of any and all educational services and programs that are required to be provided by law and which meet the child's particular educational needs, (ii) the school system from which the child is absent or other appropriate agency has made a reasonable effort to effect the child's regular attendance without success, and (iii) the school system has provided documentation that it has complied with the provisions of § 22.1-258; or 2. A child who, without reasonable cause and without the consent of his parent, lawful custodian or placement authority, remains away from or deserts or abandons his family or lawful custodian on more than one occasion or escapes or remains away without proper authority from a residential care facility in which he has been placed by the court, and (i) such conduct presents a clear and substantial danger to the child's life or health, (ii) the child or his family is in need of treatment, rehabilitation or services not presently being received, and (iii) the intervention of the court is essential to provide the treatment, rehabilitation or services needed by the child or his family. "Child welfare agency" means a child-placing agency, child-caring institution or independent foster home as defined in § 63.2-100 . "The court" or the "juvenile court" or the "juvenile and domestic relations court" means the juvenile and domestic relations district court of each county or city. "Delinquent act" means (i) an act designated a crime under the law of the Commonwealth, or an ordinance of any city, county, town, or service district, or under federal law, (ii) a violation of § 18.2-308.7 , or (iii) a violation of a court order as provided for in § 16.1-292, but does not include an act other than a violation of § 18.2-308.7 , which is otherwise lawful, but is designated a crime only if committed by a child. "Delinquent child" means a child who has committed a delinquent act or an adult who has committed a delinquent act prior to his 18th birthday, except where the jurisdiction of the juvenile court has been terminated under the provisions of § 16.1-269.6. "Department" means the Department of Juvenile Justice and "Director" means the administrative head in charge thereof or such of his assistants and subordinates as are designated by him to discharge the duties imposed upon him under this law. "Driver's license" means any document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2, or the comparable law of another jurisdiction, authorizing the operation of a motor vehicle upon the highways. "Family abuse" means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person's family or household member. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. "Family or household member" means (i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family. "Foster care services" means the provision of a full range of casework, treatment and community services for a planned period of time to a child who is abused or neglected as defined in § 63.2-100 or in need of services as defined in this section and his family when the child (i) has been identified as needing services to prevent or eliminate the need for foster care placement, (ii) has been placed through an agreement between the local board of social services or a public agency designated by the community policy and management team and the parents or guardians where legal custody remains with the parents or guardians, (iii) has been committed or entrusted to a local board of social services or child welfare agency, (iv) has been placed under the supervisory responsibility of the local board pursuant to § 16.1-293, or (v) is living with a relative participating in the Federal-Funded Kinship Guardianship Assistance program set forth in § 63.2-1305 and developed consistent with 42 U.S.C. § 673 or the State-Funded Kinship Guardianship Assistance program set forth in § 63.2-1306 . "Independent living arrangement" means placement of (i) a child at least 16 years of age who is in the custody of a local board or licensed child-placing agency by the local board or licensed child-placing agency or (ii) a child at least 16 years of age or a person between the ages of 18 and 21 who was committed to the Department of Juvenile Justice immediately prior to placement by the Department of Juvenile Justice, in a living arrangement in which such child or person does not have daily substitute parental supervision. "Independent living services" means services and activities provided to a child in foster care 14 years of age or older and who has been committed or entrusted to a local board of social services, child welfare agency, or private child-placing agency. "Independent living services" may also mean services and activities provided to a person who (i) was in foster care on his 18th birthday and has not yet reached the age of 21 years; (ii) is between the ages of 18 and 21 and who, immediately prior to his commitment to the Department of Juvenile Justice, was in the custody of a local board of social services; or (iii) is a child at least 16 years of age or a person between the ages of 18 and 21 who was committed to the Department of Juvenile Justice immediately prior to placement in an independent living arrangement. "Independent living services" includes counseling, education, housing, employment, and money management skills development and access to essential documents and other appropriate services to help children or persons prepare for self-sufficiency. "Intake officer" means a juvenile probation officer appointed as such pursuant to the authority of this chapter. "Jail" or "other facility designed for the detention of adults" means a local or regional correctional facility as defined in § 53.1-1 , except those facilities utilized on a temporary basis as a court holding cell for a child incident to a court hearing or as a temporary lock-up room or ward incident to the transfer of a child to a juvenile facility. "The judge" means the judge or the substitute judge of the juvenile and domestic relations district court of each county or city. "This law" or "the law" means the Juvenile and Domestic Relations District Court Law embraced in this chapter. "Legal custody" means (i) a legal status created by court order which vests in a custodian the right to have physical custody of the child, to determine and redetermine where and with whom he shall live, the right and duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to any residual parental rights and responsibilities or (ii) the legal status created by court order of joint custody as defined in § 20-107.2 . "Permanent foster care placement" means the place of residence in which a child resides and in which he has been placed pursuant to the provisions of §§ 63.2-900 and 63.2-908 with the expectation and agreement between the placing agency and the place of permanent foster care that the child shall remain in the placement until he reaches the age of majority unless modified by court order or unless removed pursuant to § 16.1-251 or 63.2-1517 . A permanent foster care placement may be a place of residence of any natural person or persons deemed appropriate to meet a child's needs on a long-term basis. "Qualified individual" means a trained professional or licensed clinician who is not an employee of the local board of social services or licensed child-placing agency that placed the child in a qualified residential treatment program and is not affiliated with any placement setting in which children are placed by such local board of social services or licensed child-placing agency. "Qualified residential treatment program" means a program that (i) provides 24-hour residential placement services for children in foster care; (ii) has adopted a trauma-informed treatment model that meets the clinical and other needs of children with serious emotional or behavioral disorders, including any clinical or other needs identified through assessments conducted pursuant to clause (viii) of this definition; (iii) employs registered or licensed nursing and other clinical staff who provide care, on site and within the scope of their practice, and are available 24 hours a day, 7 days a week; (iv) conducts outreach with the child's family members, including efforts to maintain connections between the child and his siblings and other family; documents and maintains records of such outreach efforts; and maintains contact information for any known biological family and fictive kin of the child; (v) whenever appropriate and in the best interest of the child, facilitates participation by family members in the child's treatment program before and after discharge and documents the manner in which such participation is facilitated; (vi) provides discharge planning and family-based aftercare support for at least six months after discharge; (vii) is licensed in accordance with 42 U.S.C. § 671(a)(10) and accredited by an organization approved by the federal Secretary of Health and Human Services; and (viii) requires that any child placed in the program receive an assessment within 30 days of such placement by a qualified individual that (a) assesses the strengths and needs of the child using an age-appropriate, evidence-based, validated, and functional assessment tool approved by the Commissioner of Social Services; (b) identifies whether the needs of the child can be met through placement with a family member or in a foster home or, if not, in a placement setting authorized by 42 U.S.C. § 672(k)(2), including a qualified residential treatment program, that would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short-term and long-term goals established for the child in his foster care or permanency plan; (c) establishes a list of short-term and long-term mental and behavioral health goals for the child; and (d) is documented in a written report to be filed with the court prior to any hearing on the child's placement pursuant to § 16.1-281, 16.1-282, 16.1-282.1, or 16.1-282.2. "Residual parental rights and responsibilities" means all rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including but not limited to the right of visitation, consent to adoption, the right to determine religious affiliation and the responsibility for support. "Secure facility" or "detention home" means a local, regional or state public or private locked residential facility that has construction fixtures designed to prevent escape and to restrict the movement and activities of children held in lawful custody. "Shelter care" means the temporary care of children in physically unrestricting facilities. "State Board" means the State Board of Juvenile Justice. "Status offender" means a child who commits an act prohibited by law which would not be criminal if committed by an adult. "Status offense" means an act prohibited by law which would not be an offense if committed by an adult. "Violent juvenile felony" means any of the delinquent acts enumerated in subsection B or C of § 16.1-269.1 when committed by a juvenile 14 years of age or older. (Code 1950, § 16.1-141; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, cc. 44, 45; 1977, c. 559; 1978, c. 605; 1979, c. 15; 1981, c. 491; 1984, c. 631; 1985, c. 260; 1986, cc. 281, 308; 1987, c. 632; 1988, c. 794; 1990, cc. 704, 769, 842; 1991, c. 534; 1992, cc. 742, 830, 886; 1993, cc. 435, 467, 494; 1994, cc. 859, 865, 949; 1996, cc. 755, 914; 1999, cc. 453, 665, 697, 721; 2002, cc. 810, 818; 2003, cc. 538, 547, 835; 2004, cc. 245, 753; 2006, c. 868; 2008, cc. 475, 483; 2011, cc. 445, 480; 2015, cc. 502, 503; 2016, c. 631; 2017, c. 623; 2018, c. 497; 2019, cc. 282, 688; 2020, cc. 95, 732, 829, 1227, 1246, 1285, 1286; 2021 Sp. Sess. I, cc. 254, 310, 550, 551.)

Cross references. - As to the availability of confidential medical and mental health records of children maintained by the Department of Juvenile Justice, see § 16.1-300.

As to the Uniform Collaborative Law Act, see Chapter 11 ( § 20-168 et seq.) of Title 20.

As to foster care services for a child who is abused or neglected as defined in § 63.2-100 or in need of services as defined in § 16.1-228, see § 63.2-905 .

As to parental or agency consent for adoption, and exceptions to consent requirement, see § 63.2-1202 .

For the definition in this section applying to the Juvenile and Domestic Relations District Court rules, see Rule 8:2, in Volume 11.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

At the direction of the Virginia Code Commission, the new paragraph added by Acts 2016, c. 631, was inserted following subdivision 6 of the definition of "Abused or neglected child."

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-2000" for "55-79.2."

Acts 2020, c. 829, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 1227 and 1246, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, cc. 1227 and 1246, cl. 4 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

At the direction of the Virginia Code Commission, in clause (ii) of the definition for "Child," "younger" was substituted for "less" to conform to the language of Acts 2020, cc. 1285 and 1286. In the definition of "Ancillary crime," "or that constitutes" was substituted for "or which constitutes" at the direction of the Virginia Code Commission.

Acts 2021, Sp. Sess. I, c. 254, cl. 2 provides: "The Board of Social Services (the Board) shall promulgate regulations to implement the provisions of this act. Such regulations shall include conditions for establishing a kinship guardianship, requirements for the development and amendment of a kinship guardianship assistance agreement, and circumstances that qualify a prospective kinship guardian for exemption from the relative foster home approval process. The Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and added the paragraphs defining "Ancillary crime," "Boot camp" and "Violent juvenile felony."

The 1999 amendments. - The 1999 amendment by c. 453, in the paragraph defining "Child in need of supervision," in subdivision 1, deleted "and" preceding "(ii) the school," and inserted "and (iii) the school system has provided documentation that it has complied with the provisions of § 22.1-258" near the end of the paragraph, and in subdivision 2, deleted "habitually" preceding "deserts or abandons," and inserted "on more than one occasion" preceding "or escapes."

The 1999 amendment by c. 665 substituted "any act involving violence, force, or threat" for "any act of violence" in the paragraph defining "Family abuse."

The 1999 amendments by c. 697 and 721 are identical, and substituted "regardless of whether such persons reside" for "who reside" in clause (iii) of the paragraph defining "Family or household member."

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and in the definition of "family abuse," inserted "but not limited to," substituted "results in bodily injury" for "results in physical injury," and deleted "serious" following "apprehension of."

The 2003 amendments. - The 2003 amendments by cc. 538 and 547 are nearly identical, and substituted "12" for "twelve," "14" for "fourteen," and "18" for "eighteen" throughout the section; in the paragraph defining "Child in need of services," in the first paragraph, inserted the clause (i) designation, and inserted "or (ii) a child under the age of 14 whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of another person," and inserted "to the life or health of another person" in the second paragraph; and substituted "that" for "which" following "residential facility" in the paragraph defining "Secure facility."

The 2003 amendment by c. 835 substituted "18" for "eighteen" in the paragraphs defining "Adult" and "'Child,' 'juvenile' or 'minor"'; in the paragraph defining "Family or household member," inserted "half-brothers, half-sisters" in clause (iii) and substituted "12" for "twelve" in clause (vi); and substituted "14" for "fourteen" in the paragraph defining "Violent juvenile felony."

The 2004 amendments. - The 2004 amendment by c. 245 added the last paragraph in the definition of "Abused or neglected child."

The 2004 amendment by c. 753 added the language beginning "including, but not limited to" in paragraph 1 of the definition of "Abused or neglected child."

The 2006 amendments. - The 2006 amendment by c. 868, in the paragraph defining "Abused or neglected child," inserted the subdivision 6 designation and the first paragraph thereof, transferred the second paragraph in subdivision 5 to the second paragraph in subdivision 6 and made a related change.

The 2008 amendments. - The 2008 amendments by cc. 475 and 483 are nearly identical, and inserted the definitions of "Independent living arrangement" and "Independent living services"; and made a minor stylistic change.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and in the definition for "Family abuse," in the first sentence, deleted "including, but not limited to, any forceful detention" following "threat," inserted "death, sexual assault, or" and made minor stylistic changes, and added the last sentence.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and in the last paragraph in the definition of "Abused or neglected child," substituted "emergency medical services agency" for "rescue squad" twice and substituted "medical services personnel" for "medical technicians."

The 2016 amendments. - The 2016 amendment by c. 631, added subdivision 7 in the definition for "Abused or neglected child."

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in the definition of "Delinquent act," deleted "blood or" preceding "breath test" in the last sentence.

The 2018 amendments. - The 2018 amendment by c. 497, in the definition for "Independent living arrangement," inserted "(i)," deleted "and has been placed" preceding "by the local board" and inserted "or (ii) a child at least 16 years of age or a person between the ages of 18 and 21 who was committed to the Department of Juvenile Justice immediately prior to placement by the Department of Juvenile Justice"; and in the definition for "Independent living services," added clauses (ii) and (iii); and made stylistic changes.

The 2019 amendments. - The 2019 amendments by cc. 282 and 688 are identical, and added the definitions for "Fictive kin," "Qualified individual," and "Qualified residential treatment program."

The 2020 amendments. - The 2020 amendments by cc. 95 and 732 are identical, and in the definition of "Child," "juvenile," or "minor," inserted "who is (1)," added clause (ii), and made a related change.

The 2020 amendment by c. 829 substituted "Tier III" for "violent sexual" in subdivision 6 in the definition of "Abused or neglected child."

The 2020 amendments by cc. 1227 and 1246 are identical, effective January 1, 2021, and rewrote the introductory language; added the definition of "Driver's license"; and in subdivision 7 of the definition of "Abused or neglected child," inserted "federal" twice.

The 2020 amendments by cc. 1285 and 1286 are identical, and in the definition for "Child," "juvenile," or "minor," substituted "younger" for "less"; in the definition for "Delinquent act," substituted "does" for "shall" in the first sentence, substituted " 'delinquent act' includes" for "the term shall include" in the second sentence and added the last sentence; in the definition for "Independent living services," substituted " 'Independent living services' includes" for "Such services shall include" in the last sentence and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 254, effective July 1, 2021, added clause (v) at the end of in the definition of "foster care services."

The 2021 amendment by Sp. Sess. I, c. 310, effective July 1, 2021, in subdivision 2, added the second and third sentences; and in subdivision 4, inserted "in subdivision 2."

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, effective July 1, 2021, are identical, and deleted the former last sentence of the definition for "Delinquent act," which read: "For purposes of § § 16.1-241, 16.1-273, 16.1-278.8, 16.1-278.8:01, and 16.1-278.9, "delinquent act" includes a violation of § 18.2-250.1 ."

Law review. - For note, "The Constitutionality of Excluding Young People From Jury Service," see 29 Wash. & Lee L. Rev. 131 (1972). For comment on termination of parental rights, see 15 U. Rich. L. Rev. 213 (1980). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981). For 1987 survey of Virginia law as to children, see 21 U. Rich. L. Rev. 789 (1987).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For a review of Virginia legal issues involving children, see 33 U. Rich. L. Rev. 1001 (1999).

For article, "Gender Bias Task Force: Comments on Family Law Issues," see 58 Wash. & Lee L. Rev. 1089 (2001). For article, "Family Law," see 35 U. Rich. L. Rev. 651 (2001).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For article, "Marriage Mimicry: The Law of Domestic Violence," see 47 Wm. & Mary L. Rev. 1841 (2006).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 72; 9B M.J. Infants and Juveniles, §§ 13, 15; 14A M.J. Parent & Child, § 8.

CASE NOTES

Guardianship, legal custody distinguished. - The distinction between "legal custody" and "guardianship" is a reflection of the extent of the power over, and the responsibility to, the child involved in each. Thus, in the Commonwealth, legal custody is the right to have physical charge of the child and generally direct the day-to-day activities of the child's life. Guardianship of the person and estate of a child, by contrast, is a broader power to have the custody of the ward and the right to take possession of the ward's estate, real and personal, and out of the proceeds of such estate provide for the ward's maintenance and education. Additionally, the legal custodian, while being required to provide for the child, is not fiduciary or guarantor of the child. Rather, it is the guardian of the person and estate who carries the burden of managing the ward's estate and making good the lawful debts of his ward. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Legal custodian not required to pay support for child in physical custody of another. - Under the definition of "legal custody" in this section, a divorced grandmother and grandfather who had been granted joint legal custody of their granddaughter had the duty to provide her "with food, shelter, education and ordinary medical care," but no more; the grandfather was required to provide these necessities for the child during the periods of the year that she stayed with him, but he was not similarly responsible for her needs while she was staying with her grandmother. Russell v. Russell, 35 Va. App. 360, 545 S.E.2d 548, 2001 Va. App. LEXIS 224 (2001).

Protective order did not in effect change legal custody. - Child protective order did not in effect change legal custody of a child from a parent to a grandparent because the order only expressed certain responsibilities the grandparent was authorized to exercise while the child remained in the grandparent's care. Wisman v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0451-15-3, 2015 Va. App. LEXIS 317 (Nov. 10, 2015).

Code contemplates intervention where severe injury likely if child returned to parent. - The Code contemplates intervention in circumstances, which are without realistic probability of improvement of conditions, by allowing for the emergency removal of children before placement into an environment where the child would be subjected to an imminent threat to life or health to the extent that severe or irreversible injury would be likely to result if the child were returned to or left in the custody of his parent. Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 409 S.E.2d 16 (1991).

Definition of abused or neglected child does not require proof of actual harm. - The statutory definitions of an abused or neglected child do not require proof of actual harm or impairment having been experienced by the child. The term "substantial risk" speaks in futuro. Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 409 S.E.2d 16 (1991).

Evidence was sufficient to show that the mother's child was neglected, as it showed that the mother violated a protective order that directed her to keep the child away from the mother's suspected abusive boyfriend and no showing had to be made that the child had been actually harmed, as the evidence showed that the child was at a substantial risk of future harm from him becuase the mother would not keep the child away from him although he was already suspected of having abused the child once. S.V.R. v. Hampton Dep't of Soc. Servs., No. 0073-04-1, 2004 Va. App. LEXIS 450 (Ct. of Appeals Sept. 21, 2004).

In a case involving termination of residual parental rights, removal of a child was warranted based on a father's history of not having provided his children with appropriate housing and his lack of a plan for appropriate housing since the definition of abused or neglected child did not require proof of actual harm or impairment; the term "substantial risk" spoke in futuro, and the living conditions in a motel were not adequate to meet the child's needs. Williams-Kemp v. Prince Edward County Dep't of Soc. Servs., No. 1979-14-2, 2015 Va. App. LEXIS 41 (Ct. of Appeals Feb. 10, 2015).

Violation not established. - Alleged violation of subsection 1 was not established because there was no evidence that the children suffered any injury; while the Commonwealth referenced the "flat affect" as the mental injury, there was no evidence causally linking the flat affect of the children to any act or omission of defendant. Wilmer v. Commonwealth, No. 0654-16-3, 2017 Va. App. LEXIS 223 (Aug. 29, 2017).

No evidence of active abuse but court found "passive" abuse. - Where appellant contended that because there was no visible evidence of active abuse and trial court found "passive" abuse, that the requirements of this section were unmet, this position was without merit. The fact that the child suffered no injury while her parent was under the influence of self-induced drugs was not a mitigating circumstance. The evidence clearly supported the trial court's finding of neglect. Deskin v. Clarke County Dep't of Social Servs., No. 0623-97-4 (Ct. of Appeals Nov. 25, 1997).

Ties between parent and child severed forever when parental rights terminated. - When a court orders termination of parental rights, the ties between the parent and child are severed forever and the parent becomes "a legal stranger to the child." Cage v. Harrisonburg Dep't of Social Servs., 13 Va. App. 246, 410 S.E.2d 405 (1991).

Juvenile court abuse and neglect action in relation to termination of parental rights action. - Circuit court properly terminated a mother's parental rights pursuant to subsection C of § 16.1-283; in an appeal de novo from a juvenile court, an agency was not limited to the evidence and arguments presented in an earlier abuse and neglect action in the juvenile court pursuant to this section § 16.1-228, and thus the agency was not limited to seeking termination pursuant to subsection B of § 16.1-283. Nguyen v. Fairfax County Dep't of Family Servs., No. 0938-04-4, 2004 Va. App. LEXIS 465 (Ct. of Appeals Sept. 28, 2004).

In a case in which the Petersburg Department of Social Services (DSS) filed petitions alleging that two children were abused and/or neglected within the meaning of § 16.1-228, and the father appealed the § 16.1-283 termination of his parental rights arguing that the trial court erred in terminating his parental rights where he was exercising his Fifth Amendment right to remain silent due to pending criminal charges related to the present proceedings, even if the trial court erroneously based its decisions to terminate the father's parental rights in part on the allegations of father's sexual abuse and his decision to assert his Fifth Amendment rights, any such error was harmless because sufficient evidence not related to the sexual abuse allegations or the criminal charges supported the trial court's decisions. In addition to the father's failure to participate in a psychosexual evaluation, he had not provided the DSS with verification of employment or housing, he had not participated in parenting classes, he had not paid child support or visited the children, and he had tested positive for drug use in the recent past. White v. Petersburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 481 (Oct. 27, 2009).

Sufficient evidence of neglect. - Trial court did not err in entering the protective order due to neglect based on its finding that despite months of counseling the father continued to discourage the youngest daughter's relationship with the mother, the father would not cooperate with social workers and counselors, and the father refused to encourage the older children to participate in therapy with the mother and the youngest daughter. Rhodes v. Harrisonburg Rockingham Soc. Servs. Dist., No. 2221-14-3, 2015 Va. App. LEXIS 309 (Nov. 3, 2015).

Trial court did not err in its decision approving the removal and initial foster care plans relating to two children because the record supported the findings that the children were abused and neglected where the children were residing in a hotel room that was filthy. The trial court did not err by finding that there was no less drastic alternative than removal and foster care placement due to the fact that a grandmother's house was not an option due to the lack of space; moreover, the father failed to clean and maintain the hotel room after a court hearing informed him of the need to do so. Beim v. Roanoke Cnty. Dep't of Soc. Servs., No. 1210-15-3, 2016 Va. App. LEXIS 44 (Feb. 16, 2016).

Trial court did not err by finding that the mother abused and neglected her child because she took the child to the police department and reported that she was afraid for his safety, she willingly gave him to the police department, she was hospitalized twice for mental health issues and diagnosed with a delusional disorder, she was unable to care for the child, and she refused to accept her diagnosis and comply with treatment. Moses v. Alexandria Dep't of Cmty. & Human Servs., No. 1749-17-4, 2018 Va. App. LEXIS 44 (Feb. 20, 2018).

Circuit court's finding that the children were abused or neglected was not error where one child had reported the father's sexual abuse to a number of different people over a significant period of time, the child's language about the abuse was very detailed and credible, and some physical evidence recovered from the family home corroborated some details. Curtin v. Spotsylvania Cty. Dep't of Soc. Servs., No. 0709-18-2, 2018 Va. App. LEXIS 354 (Dec. 18, 2018).

Circuit court did not err in finding that there was sufficient evidence to adjudicate that another child was abused or neglected because at the time of the child's birth three of the mother's other children had already been removed from her care due to her inability to provide a safe and stable home, and the mother did not inform the Department of Human Services of the child's birth and left him in the care of another person. Silver v. Norfolk Dep't of Human Servs., No. 0830-20-1, 2021 Va. App. LEXIS 25 (Feb. 23, 2021).

Evidence was sufficient to support the trial court's adjudication of abuse or neglect under § 16.1-228 because the undisputed evidence showed that during the mother's high-risk pregnancy with the children she did not seek any prenatal care, she admitted to using PCP on several occasions, the children were born prematurely, and the mother's 2017 parental capacity assessment concluded that she was at risk for future child neglect. Simms v. Alexandria Dep't of Cmty. & Human Servs., No. 0915-20-4, 2021 Va. App. LEXIS 93 (June 15, 2021).

Child in need of services. - Circuit court did not err in finding sufficient evidence of abuse or neglect or in ordering that children remain with their fathers because the mother had numerous reports, investigations, and family assessments over the years; the department of social services (DSS) did not fail to make reasonable efforts to prevent removal because the mother not only failed to provide DSS an opportunity to inspect and approve possible homes but also relocated her children without notifying DSS. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Because the Commonwealth's evidence was insufficient to prove that defendant's child was a "child in need of services, "defendant's conviction of contributing to the delinquency of a minor was reversed, as the 911 call the child made could not be considered treatment, rehabilitation, or services not presently being received, and there was no evidence that defendant's conduct would have continued indefinitely had the court not intervened, as defendant and the children were already inside the house when the deputy arrived. Spell v. Commonwealth, 72 Va. App. 629, 851 S.E.2d 83, 2020 Va. App. LEXIS 302 (2020).

"Family or household member." - In a prosecution for domestic assault in violation of § 18.2-57.2 , evidence that defendant considered the victim's child to be his daughter was sufficient to prove the victim was his "family or household member" as defined in § 16.1-228 and incorporated in § 18.2-57.2 . As he made no timely request for court-ordered DNA testing, he could not challenge the sufficiency of the evidence on this issue on appeal. Graves v. Commonwealth, No. 2938-05-3, 2007 Va. App. LEXIS 63 (Ct. of Appeals Feb. 20, 2007).

Mother's claim that the father committed child abuse by allowing the children to stay with the paternal grandfather failed, because this section specifically excluded relatives. Padula-Wilson v. Wilson, No. 1203-14-2, 2015 Va. App. LEXIS 123 (Apr. 14, 2015).

History of family abuse. - Award of primary physical custody of the children to the father was proper, in part because the mother's argument that the circuit court abused its discretion in disregarding the history of family abuse that she endured throughout the marriage was without merit. All facts pertaining to the allegation of family abuse were before the circuit court, and it appeared from the record that the court did consider them; the court simply gave greater weight to the testimony of father and that finding was not plainly wrong or without evidence to support it. Gudino v. Gudino, No. 0068-11-2, 2011 Va. App. LEXIS 327 (Nov. 1, 2011).

Trial court did not err by finding that there was no abuse or history of family abuse because it had the opportunity to see and hear the witnesses, and the record supported its findings; a doctor and the guardian ad litem reported that there were inconsistencies in the children's reports, and the children appeared to be repeating incidents that occurred years earlier. Gudino v. Gudino, No. 0711-15-2, 2016 Va. App. LEXIS 66 (Mar. 1, 2016).

Reasonable fear of bodily injury. - Threats which placed defendant's wife in reasonable apprehension of death or bodily injury were part of Virginia's definition of domestic abuse under § 16.1-228, and 18 U.S.C.S. § 922(g)(8)(B) reached those restrained from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner, and the absence of findings in the protective order of prior violence or prior bodily injury inflicted on the wife did not suffice to vitiate defendant's § 922(g)(8) conviction on Second Amendment grounds. United States v. Mahin, 668 F.3d 119, 2012 U.S. App. LEXIS 2083 (4th Cir. 2012).

Definition of "child." - Evidence was sufficient to convict defendant of possession of a firearm after having been convicted of a felony under § 18.2-308.2 , as an undated juvenile adjudication order stating that a "child" was found guilty of breaking and entering and larceny and was committed to the Virginia Department of Juvenile Justice (DJJ) was adequate proof that defendant, while a juvenile, committed two acts that would have been felonies if committed by an adult. Under § 16.1-228, "child" meant a person less than 18 years of age; and under § 16.1-278.7, only a juvenile 11 years or older could be committed to DJJ. Perez v. Commonwealth, 274 Va. 724 , 652 S.E.2d 95, 2007 Va. LEXIS 129 (2007).

Definition of "delinquent." - By unsuccessfully soliciting oral sex from a minor, defendant willfully encouraged her to engage in a criminal act in violation of § 18.2-29 . As his solicitation was clearly designed to encourage her to commit that act, which would have rendered her delinquent under this section, the evidence established that he contributed to the delinquency of a minor in violation of § 18.2-371 . MacDonald v. Commonwealth,, 2007 Va. App. LEXIS 7 (Jan. 9, 2007).

Trial court had subject matter jurisdiction under § 17.1-513 over defendant's trial, even though under subsection A of § 16.1-241, the juvenile and domestic relations district courts had exclusive original jurisdiction over all cases involving a juvenile who was alleged to be delinquent, defined under this section as one under 18 years old, as defendant gave defendant's birthdate as December 13, 1986, and the indictment stated that the offense occurred on December 16, 2006. Hall v. Commonwealth, No. 2902-07-3, 2009 Va. App. LEXIS 73 (Feb. 17, 2009).

Contributing to the delinquency of a minor. - Trial court did not abuse its discretion when it refused to give defendant's proposed instruction on the definition of a "person responsible for the care of a child," a phrase that did not appear in the statutes applicable to the offense of contributing to the delinquency of a minor, because the jury was properly instructed on the elements of the offense and all necessary definitions. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Evidence supported the jury's finding that defendant left her child without "parental care or guardianship" because when defendant chose to go inside a store and leave her young child in the car, either alone or under the intermittent monitoring of a stranger, she left the child without parental care, which was the care provided by a parent to his or her child; the statute does not require actual harm or impairment. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Evidence was sufficient to support defendant's conviction for contributing to the delinquency of a minor because defendant's actions caused her daughter to falsely report sexual abuse, a criminal act under the laws of Virginia; a rational fact finder could conclude that defendant caused the daughter to falsely report sexual abuse by her father when she hypnotized the daughter and facilitated the daughter's disclosure of the abuse to a detective and child protective services. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Definition of "adoptive parents." - Phrase "adoptive parents" in subsection K of § 16.1-241 must be interpreted to describe, as set forth in this section, the residence of any natural person in which the child resides as a member of the household and in which he has been placed for the purposes of adoption. Segura v. Fairfax County Dep't of Family Servs., No. 0858-07-4, 2008 Va. App. LEXIS 93 (Ct. of Appeals Feb. 26, 2008).

Insurer may condition coverage on obtaining guardianship. - Because the statutory definition of legal custody in this Commonwealth includes the power to direct medical care, legal guardianship of the person was not a necessary legal status for grandparents who had such custody to obtain to direct such care for their granddaughter. However, the status of legal custodian does not require a non-governmental entity such as their insurance carrier to recognize their financial responsibility for her medical care. Therefore, their insurance carrier could decline to recognize the child as an insured person until they obtained the status of legal guardians of the person in order to comply with their contract. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994).

Civil rights claims. - In a family's suit against numerous state, county, and private defendants for separating the daughter from the mother and stepfather based upon allegations of sexual abuse, certain substantive due process, procedural due process, and unlawful seizure claims survived dismissal, but the emergency removal of the daughter was authorized by Virginia law. Gedrich v. Fairfax County Dep't of Family Servs., 282 F. Supp. 2d 439, 2003 U.S. Dist. LEXIS 16312 (E.D. Va. 2003).

Right to bear arms. - While the Second Amendment did not historically protect individuals subject to domestic protective orders, as defendant had committed an act of family violence under § 16.1-253.1, and as the deprivation of defendant's right to bear arms was only temporary, defendant's prosecution under 18 U.S.C.S. § 922(g)(8) was not unconstitutional. United States v. Elkins,, 2011 U.S. Dist. LEXIS 47105 (W.D. Va. May 2, 2011).

Circuit court has subject matter jurisdiction to determine parentage in domestic assault cases. - Florida circuit court does not err in exercising subject matter jurisdiction to determine parentage for purposes of adjudicating a defendant's guilt on charges of felony domestic assault, whether or not other proceedings involving a determination of parentage are then pending in the juvenile and domestic relations district court. Graves v. Commonwealth, No. 2938-05-3, 2007 Va. App. LEXIS 63 (Ct. of Appeals Feb. 20, 2007).

Sufficient evidence of neglected child. - There was sufficient credible evidence for the trial court to find that the infant was a neglected child as defined in this section where while in mother's care, the infant's weight dropped to a dangerously low level, risking permanent damage to her physical development; instructions and assistance by case workers had little effect in alleviating mother's problems; and mother's own testimony demonstrated that she remained confused about her child's nutritional needs. Barr v. Winchester Dep't of Social Servs., No. 1144-93-4 (Ct. of Appeals May 31, 1994).

Evidence that the mother was not an appropriate caretaker because she had a history of serious emotional disturbance characterized by aggressive and emotional outbursts, poor impulse control, poor judgment, and poor problem-solving skills that interfered with her ability to provide a safe and secure environment was sufficient to support a finding of neglect and/or abuse. Wilson v. Fairfax County Dep't of Family Servs., No. 2606-02-4, 2003 Va. App. LEXIS 405 (Ct. of Appeals July 15, 2003).

Evidence showed that father's action in taking his children to a bank where he and the mother uttered a forgery, which caused the police to take the father and mother away to jail, caused the father to be unreasonably absent and the children to be without parental care; accordingly, the trial court's finding that the children were neglected, for the purposes of the city welfare agency's request for an emergency order of removal of the children, was not clearly erroneous and was affirmed. Lewis v. Fredericksburg Dep't of Soc. Servs., No. 2832-02-2, 2003 Va. App. LEXIS 432 (Ct. of Appeals Aug. 12, 2003).

Where the evidence showed that a child's mother was a heroin abuser, was unable to stop using heroin, was occasionally incarcerated, was often discovered having left her son unattended, and was unable to remedy her heroin addiction or provide her son with a stable environment, and where her son had been in foster care for 29.5 months, was returned to her mother's care, and was soon after removed from her care because the mother was using heroin within a week, the Department of Family Services proved by clear and convincing evidence that statutory grounds for termination of the mother's parental rights existed and that the child's best interests would be served through adoption. Foster v. Fairfax County Dep't of Family Servs., No. 0026-04-4, 2004 Va. App. LEXIS 346 (Ct. of Appeals July 20, 2004).

Court properly terminated a father's parental rights because the father admitted that he smoked marijuana after the department removed the children the second time, and an expert noted that the father suffered from alcohol dependence, a history of polysubstance abuse, along with a narcissistic personality disorder with antisocial traits. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 375, 719 S.E.2d 329, 2012 Va. App. LEXIS 1 (2012).

Evidence was sufficient to terminate a mother's parental rights on the basis that the children were abused or neglected because the mother's continued drug use created an unsafe environment, and the mother's failure to adequately address one child's medical needs created an unsafe environment for all the children because a doctor expressed concerns regarding the child's weight and malnourishment. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 342, 719 S.E.2d 313, 2012 Va. App. LEXIS 4 (2012).

Trial court did not err in finding that children were neglected because the expert testimony in the record supported a finding that the mother's mental incapacity prevented her from rendering appropriate parental care; several social workers and home-based counselors testified about mother's lack of insight into her family's situation. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

Substantial risk of neglect. - Department proved that the youngest child was at substantial risk of abuse and neglect, given that less than two months before the child's birth, another court had terminated mother's parental rights to her eleven oldest children because of her abuse toward the children, plus she refused to address the allegations of abuse. Carlos v. Va. Beach Dep't of Human Servs., No. 1060-15-1, 2016 Va. App. LEXIS 13 (Jan. 19, 2016).

Sufficient evidence of abuse and neglect. - Record contained credible evidence that the mother inflicted physical and mental abuse on her child, as she refused to allow him to attend a public school, requiring him instead to stay at home and essentially home-school himself, provided the child with no social activities, and failed to provide a safe, comfortable environment in which the child could thrive mentally or physically; accordingly, the trial court's finding of abuse and neglect was not plainly wrong or without evidence to support it, pursuant to subdivisions 1 and 2 of § 16.1-228. Parker v. Lynchburg Div. of Soc. Servs., No. 0301-03-3, 2003 Va. App. LEXIS 450 (Ct. of Appeals Aug. 26, 2003).

Evidence was sufficient to support the trial court's finding that the father's two-year-old daughter was abused or neglected, as proof of actual harm or impairment was not required because the statutory term "substantial risk" spoke in futuro; accordingly, the father's admission that he was in violation of the conditions of his probation and parole, that he was a fugitive, and that he knew a warrant would be issued for his arrest yet he exposed the two-year-old daughter to the potential for harm during his arrest was sufficient to support the trial court's finding. Seibert v. Alexandria Div. of Soc. Servs.,, 2005 Va. App. LEXIS 163 (Apr. 26, 2005).

Appellant's residual parental rights to her daughter were properly terminated pursuant to subdivision C 2 of § 16.1-283, as the evidence established that the child was abused and neglected as defined in § 16.1-228, because appellant was not prepared to care for the child at home, and because of her mental retardation and mental health issues, appellant did not understand how to feed an infant or the frequency of feedings, and the evidence established that appellant did not have the cognitive ability to care for the child, and that further time would not remedy appellant's cognitive functioning. Sylvia v. Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 109 (Mar. 20, 2007).

Because a doctor's education, experience, knowledge, and skill regarding child abuse qualified the doctor as an expert, and because the parents did not preserve their arguments under Va. Sup. Ct. R. 5A:18 and 5A:20(c) that the doctor relied on hearsay and that their child was injured while in their care, the child was properly found to be abused and neglected under § 16.1-228. Hersey v. New Kent Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 321 (Aug. 28, 2007).

Finding that the children, a boy and a girl, were abused or neglected under § 16.1-228, was supported by evidence that the mother allowed the father to commit sexual acts upon the girl by continuing to leave the girl in father's care after the girl reported the sexual abuse to the mother, the father created physical injury by throwing objects at the boy, and the boy was a child whose parent committed a sexual act upon a child. Kelly v. Hopewell Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 206 (May 5, 2009).

Uncle's nieces, in the uncle's care, were properly found to be abused or neglected under § 16.1-228, based on the uncle's commission of sexual acts with another child, because the victim of the uncle's sexual act did not have to be a child in the uncle's care, under § 16.1-228, as "a child" in the statute, stating "abused or neglected child" meant any child whose custodian committed or allowed to be committed any sexual act upon a child in violation of the law, referred to "any child." Cumbo v. Dickenson County Dep't of Soc. Servs., 62 Va. App. 124, 742 S.E.2d 885, 2013 Va. App. LEXIS 173 (2013).

Uncle's nieces, in the uncle's care, were properly found to be abused or neglected under § 16.1-228, based on the uncle's commission of sexual acts with another child, when related criminal charges against the uncle were nolle prosequied, because the presumption of innocence did not require a conviction, as (1) the presumption did not apply to civil abuse and neglect proceedings, (2) a criminal conviction required proof beyond a reasonable doubt, while a lesser preponderance of the evidence standard applied to abuse and neglect proceedings, and (3) the uncle's admission to the sexual contact provided sufficient evidence to find the uncle engaged in sexual activity with a minor. Cumbo v. Dickenson County Dep't of Soc. Servs., 62 Va. App. 124, 742 S.E.2d 885, 2013 Va. App. LEXIS 173 (2013).

Uncle's nieces, in the uncle's care, were properly found to be abused or neglected under § 16.1-228, based on the uncle's commission of sexual acts with another child, resulting in criminal charges that were nolle prosequied, because (1) the statute required only that the uncle perform a sexual act with a child, not that the uncle be convicted of such an act, and (2) the uncle did not contest that the uncle took indecent liberties with the other child in violation of § 18.2-370 . Cumbo v. Dickenson County Dep't of Soc. Servs., 62 Va. App. 124, 742 S.E.2d 885, 2013 Va. App. LEXIS 173 (2013).

Trial court did not err in finding that the mother abused or neglected her child because the evidence proved that the child had threatened to harm herself, had a plan to do so, and had done so in the past; when the school asked the mother to get the child evaluated, she refused to seek the appropriate medical care for the child; she continually denied that the child had any mental health issues, despite the fact that the child had expressed an intent to harm herself and had a plan to do so; and she essentially abandoned the child when she left her at the hospital and would not even talk with the child's doctor there. Williams v. Charlottesville Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 260 (July 22, 2014).

Trial court erred in granting mother's motion to strike at the close of department's case-in-chief, as the department established a prima facie showing of abuse and neglect, but the error was harmless as the trial court did not abuse its discretion by ultimately discounting previous findings of abuse made in a prior order and relying on the lack of any subsequent evidence of abuse following the prior order's finding. Lynchburg Dep't of Soc. Servs. v. Boxley, No. 1560-19-3, 2020 Va. App. LEXIS 156 (May 19, 2020).

In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to show that the mother committed an act of family abuse because she admitted that she locked her son - who had had heat-induced seizures in the past - in the backseat of a car with only one window slightly open and left him there alone for an extended period of time while she continued shopping. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

A mother's minor children were abused and neglected because the mother left the children unsupervised on numerous occasions, homeless shelter staff had to remove small objects from the children's mouths because of the mother's inattentiveness, the mother repeatedly declined offered services, the mother's mental health evaluation indicated that the mother could not safely parent the children, and the mother left Virginia for a time while the children remained in the care of a social services agency. Payne v. Prince Edward Cty. Dep't of Soc. Servs., No. 0839-20-2, 2021 Va. App. LEXIS 9 (Jan. 26, 2021).

The finding of abuse and neglect was supported by the evidence, which included broken nose, two black eyes, and abrasions around the child's neck resulting from an altercation with the parents, as well as additional injuries in different stages of healing. Cotton v. City of Hampton Dep't of Soc. Servs., No. 1255-20-1, 2021 Va. App. LEXIS 154 (Aug. 17, 2021).

Reasonable apprehension of family abuse. - In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to prove that the daughter had a reasonable apprehension of facing the same form of family abuse as her brother because a child could reasonably expect to face treatment from her parent similar to that received by her twin sibling. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

Because there was evidence of a father's previous physical abuse against a mother, his pursuit of the mother and child in a car chase, his contact with the child and the mother at the child's sporting events despite the court order prohibiting him from attending, and his assault of a family friend in a parking lot at night in the mother and child's presence, the father's actions in stalking the mother and the child placed both in a reasonable apprehension of serious bodily injury. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Evidence was sufficient to prove that in stalking a mother and a child, a father committed an act of abuse against a family member, and, therefore, the circuit court was authorized to issue an order to protect the mother and the child; the father intended to cause fear or knew or should have known that his conduct would cause fear for the mother and child because he pursued the mother and child in a car chase, and he knew the mother had reported that the child feared him. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Insufficient evidence of abuse and neglect. - Trial court erred in convicting defendant of causing an act or omission that rendered a child abused or neglected because he did not create or inflict a physical or mental injury upon the children or cause them to be without care by an unreasonable absence; both, or either of the children's mothers independently, were responsible for the children's care during the time that defendant left the children with them, and neither of the children was injured or harmed. Wilmer v. Commonwealth, No. 0654-16-3, 2017 Va. App. LEXIS 223 (Aug. 29, 2017).

Circuit court did not err in finding that a mother abused or neglected the mother's children because a social services department presented evidence that the mother had verbally, emotionally, and physically abused all the children by kicking the children, hitting the children, throwing objects at the children, yelling at the children, and pulling the hair of the children. One child had attempted suicide multiple times, yet the mother insisted that the child was just seeking attention and did not need mental health treatment. Jaffar v. City of Fredericksburg Dep't of Soc. Servs., No. 1002-20-2, 2021 Va. App. LEXIS 76 (May 11, 2021).

Dismissal of abuse and neglect finding. - Circuit court did not err in dismissing an abuse and neglect finding against a father because the guardian ad litem for the minor children left the dismissal on the grounds of mootness uncontested, and the basis of mootness alone provided a sufficient legal foundation for the circuit court's ruling; although the guardian argued the issue of mootness before the circuit court, he did not raise it on appeal, and thus his failure to address the issue resulted in a waiver of any claim of error. Steinberg v. Befekadu, No. 1814-18-4, 2019 Va. App. LEXIS 189 (Aug. 13, 2019).

Sufficient evidence of child in need of services. - Clear and convincing evidence supported the trial court's finding that sixteen-year-old was a "child in need of services" under this section where she was taken by appellant to her home where she spent the night with appellant's son without her parents' permission and was involved in sexual activity and appellant was involved in preplanning this event, took the child from her home, lied both to her parents and the police about her departure and the circumstances surrounding her overnight stay. The court was justified in concluding that her family needed assistance and services to regain control over their daughter and to remove appellant's detrimental influence. Watkins v. Commonwealth, No. 0975-96-3, 1997 Va. App. LEXIS 294 (Ct. of Appeals May 6, 1997).

Circuit court did not err in finding that a father's children were in need of services and in awarding custody to a paternal aunt because behavioral issues associated with the children were affecting their well-being and safety - the children were lying, using drugs, and had been suspended from school - and the father was unable and perhaps unwilling to see to their needs. Hamilton v. Loudoun County Dep't of Family Servs.,, 2014 Va. App. LEXIS 421 (Dec. 30, 2014).

Trial court properly found that a child was a child in need of services and approved the foster care plan with the goal of adoption because the child's mental condition was attributed to inconsistency in primary caregivers due in part to the frequent removals caused by the custodian's drug problems, the child needed the permanent stability that could only be found through continuing the foster care placement with the foster mother, and the trial court properly considered appropriate factors, including the best interests of the child, in making its decision. Roberts-Bond v. Harrisonburg-Rockingham Soc. Servs. Dist., Nos. 0770-16-3, 1159-16-3, 2016 Va. App. LEXIS 359 (Ct. of Appeals Dec. 20, 2016).

Child in need of services. - Child was not in need of services under this section where child's situation quickly improved without the necessity of court intervention once the child was removed from the defendant's control. DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999).

The trial judge is required to consider any history of family abuse as defined in this section when determining custody of minor children. Davenport v. Davenport, No. 1517-93-2 (Ct. of Appeals Jan. 31, 1995).

Circuit court had jurisdiction where defendant failed to prove he was under 18 when offenses were committed. - Although there was conflicting evidence as to defendant's age, credible evidence supported trial court's conclusion that defendant failed to meet his burden of proving he was less than 18 years of age on date offenses were committed, and therefore trial court did not err in denying defendant's motion to set aside his conviction for lack of subject matter jurisdiction. Winston v. Commonwealth, 26 Va. App. 746, 497 S.E.2d 141 (1998).

Court lacked jurisdiction. - Court of Appeals lacked jurisdiction to hear a mother's appeal because the circuit court's orders, that her children were abused or neglected or were at risk of abuse or neglect, were not final orders where the orders were adjudicatory in nature, did not make any of the seven statutory dispositions, and did not make any final determinations regarding custody. Byrd v. Petersburg Dep't of Soc. Servs., No. 0782-15-2, 2016 Va. App. LEXIS 203 (Ct. of Appeals July 19, 2016).

Applied in Grigg v. Commonwealth, 224 Va. 356 , 297 S.E.2d 799 (1982); Deahl v. Winchester Dep't of Social Servs., 224 Va. 664 , 299 S.E.2d 863 (1983); Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989); Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990); Pfoltzer v. County of Fairfax, 775 F. Supp. 874 (E.D. Va. 1991); Kluis v. Commonwealth, 14 Va. App. 720, 418 S.E.2d 908 (1992); Goodwin v. Commonwealth, 23 Va. App. 475, 477 S.E.2d 781 (1996); DeAmicis v. Commonwealth, 31 Va. App. 437, 524 S.E.2d 151 (2000); Virginia Farm Bureau Mut. Ins. Co. v. Gile, 259 Va. 164 , 524 S.E.2d 642 (2000); Justus v. Commonwealth, 274 Va. 143 , 645 S.E.2d 284, 2007 Va. LEXIS 74 (2007).

CIRCUIT COURT OPINIONS

Jurisdiction. - Issue of whether the court could or should enter a proposed order with special immigrant juvenile status findings was not reached where the child had turned 18 since the juvenile order, and although he was intellectually and physically disabled and could not care for himself, legally he had become emancipated and was no longer a minor whose custody could be adjudicated by the juvenile court. In re Alas-Leiva, 101 Va. Cir. 556, 2018 Va. Cir. LEXIS 715 (Norfolk Dec. 7, 2018).

Truancy. - Though a Child in Need of Supervision order may have been defective and thus voidable because of improperly documented compliance with § 22.1-258, because no motion to reconsider was made within 21 days and no appeal to the circuit court was lodged within 10 days, the order could not be collaterally attacked in a contempt proceeding. Commonwealth v. May, 62 Va. Cir. 360, 2003 Va. Cir. LEXIS 275 (Rockingham County 2003).

Exclusion from marital home. - Husband met the requirements to exclude the wife from the marital home because the husband's testimony showed health problems resulting from the wife's alleged "hoarding" and threatening to use a gun and to have someone come and "take him out." Didier v. Didier, 85 Va. Cir. 72, 2012 Va. Cir. LEXIS 186 (Chesapeake July 26, 2012).

Abandonment and neglect. - Reunification with a child's father was not viable due to abandonment and neglect, where the father had contributed nothing toward the support and maintenance of the child, the father had no contact with the child in approximately three years, and the father had physically abused the child and his mother. Esmeralda v. Edmundo,, 2019 Va. Cir. LEXIS 440 (Fairfax County Aug. 29, 2019).

Sufficient evidence of abuse or neglect. - Although parents claimed they did not cause their 11-month-old daughter's injuries and did not allow someone else to cause her injuries, a doctor's testimony that the child displayed symptoms of shaken baby syndrome was sufficient for the court to find that the child was abused or neglected, within the meaning of § 16.1-228, and the court found that the child was abused or neglected and that her two-year-old brother was a child at risk of being abused or neglected because of the injuries his sister sustained. In re McBride, 60 Va. Cir. 261, 2002 Va. Cir. LEXIS 391 (Richmond 2002).

Insufficient evidence of abuse or neglect. - County department of social services' (DSS) neglect/abuse petition was dismissed as when the petition was filed, the child was in a residential program and had not been subjected to physical assaults by his father for a significant period of time; the child had been adjudicated a child in need of services and DSS did not show that the child was now being abused or neglected. Madison County Dep't of Soc. Servs. v. Aylor,, 2006 Va. Cir. LEXIS 149 (Madison County Aug. 14, 2006).

Finding that a father's daughter was abused and neglected under § 16.1-228 was not supported by the evidence; instead, pursuant to § 20-124.2 , the court gave regard to the primacy of the parent-child relationship. While the father used poor judgment in taking the daughter out of school, in not taking her to two court-ordered visits with her counselor, and in moving her out of state, this did not show that the father had refused to provide care necessary for the daughter's health. In re Baxter, 73 Va. Cir. 520, 2007 Va. Cir. LEXIS 133 (Henrico County 2007).

OPINIONS OF THE ATTORNEY GENERAL

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Act, omission, or condition that renders a child delinquent, etc. - A parent or caretaker who leaves a child alone in the same room with a sexually violent offender, yet remains within the residence, has not violated § 18.2-371 by leaving the child "alone in the same dwelling" with an offender within the meaning of § 16.1-228. See opinion of Attorney General to The Honorable A. Donald McEachin, Member, Senate of Virginia, 14-015, 2014 Va. AG LEXIS 14 (5/23/14).

§ 16.1-229. This chapter controlling in event of conflict.

Whenever any specific provision of this chapter differs from or is in conflict with any provision or requirement of any other chapters of this title relating to the same or a similar subject, then such specific provision shall be controlling with respect to such subject or requirement.

(Code 1950, § 16.1-142; 1956, c. 555; 1977, c. 559.)

§ 16.1-229.1. Removal of a child; names and contact information of persons with a legitimate interest.

In any proceeding held pursuant to this chapter in which a child is removed from his home, the court may order the parents or guardians of such child to provide the names and contact information for all persons with a legitimate interest to the local department of social services.

(2019, c. 434.)

Article 2. Organization and Personnel.

§ 16.1-230. Organization and operation of juvenile and domestic relations district courts.

The provisions of Chapter 4.1 (§ 16.1-69.1 et seq.) of this title establishing the district court system shall be controlling over the provisions of this chapter with respect to the organization, judges, administration and supervision, personnel, and financing of the juvenile and domestic relations district courts in the event of any conflict between the provisions of Chapter 4.1 and this chapter.

(Code 1950, § 16.1-153.1; 1972, c. 708; 1973, c. 546; 1977, c. 559.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Law review. - For note, "Limiting Judicial Incompetence: The Due Process Right to a Legally Learned Judge in State Minor Court Criminal Proceedings," see 61 Va. L. Rev. 1454 (1975). For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

§ 16.1-231. Rules of procedure.

The chief judge may adopt and publish rules not in violation of law or in conflict with rules adopted pursuant to Chapter 4.1 (§ 16.1-69.1 et seq.) of this title to regulate the conduct of the clerks and employees of the court, which rules shall be construed and enforced liberally in furtherance of the remedial purposes of this chapter. Insofar as is practicable all such records and rules shall be uniform throughout the Commonwealth.

(Code 1950, § 16.1-154; 1956, c. 555; 1968, c. 451; 1972, c. 708; 1973, c. 546; 1975, c. 334; 1977, c. 559.)

§ 16.1-232. Attorney for the Commonwealth to prosecute certain cases and represent Commonwealth on appeal.

The attorney for the Commonwealth shall prosecute felony charges before the juvenile court, unless relieved of such responsibility by order of the court. In his discretion, the attorney for the Commonwealth may prosecute misdemeanor charges before such court.

The attorney for the Commonwealth shall represent the Commonwealth in all cases appealed from the juvenile and domestic relations district court to the circuit court.

(Code 1950, § 16.1-155; 1956, c. 555; 1977, c. 559; 1980, c. 530; 1991, c. 262.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Commonwealth's and State's Attorney, § 4.

CASE NOTES

Purpose. - This section, in effect, gives the Commonwealth's attorney some discretion in prosecuting certain criminal cases in the juvenile and domestic relations courts and requires him to prosecute all cases appealed to the circuit court. But the statute does not confer authority to represent parties in civil cases in which the Commonwealth is not a party in interest. Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169 (1987).

Duty to prosecute foreign support orders. - The Commonwealth's attorney has a duty to prosecute foreign support orders that are properly before a Virginia court pursuant to the Revised Uniform Reciprocal Enforcement of Support Act ( §§ 20-88.12 to 20-88.31) [see now the Uniform Interstate Family Support Act ( § 20-88.32 et. seq.)] Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169 (1987).

The word "case," as used in the second paragraph of this section, refers to the cases described in the paragraph immediately preceding it. The first paragraph provides that the Commonwealth shall prosecute felony charges before the juvenile court and may prosecute misdemeanor charges before that court, but shall be required to do so only when the court so directs. Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169 (1987).

The second paragraph of this section, which states that the Commonwealth shall represent the state in all cases appealed from the juvenile and domestic relations district court to the circuit court, refers only to cases in which the Commonwealth is a party or, at least, has an interest. Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169 (1987).

Real party in interest has right to own counsel. - In civil matters appealed to the circuit court, the Commonwealth may have a theoretical interest in seeing that the best interests of children are provided for in both custody disputes and support proceedings. However, the real party in interest has a right to his or her own counsel. Certainly the legislature never intended that under these circumstances the Commonwealth's attorney be allowed to control litigation in a purely civil case. Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169 (1987).

§ 16.1-233. Department to develop court services; court services units; appointment and removal of employees; salaries.

  1. Within funds appropriated for the purpose, it shall be a function of the Department to develop and operate, except as hereinafter provided, probation, parole and other court services for juvenile and domestic relations district courts in order that all children coming within the jurisdiction of such courts throughout the Commonwealth shall receive the fullest protection of the court. To this end the Director may establish court services units in the Department. The Director shall appoint such employees as he may find to be necessary to carry out properly the responsibilities of the Department relative to the development, supervision and operation of probation, parole and other court services throughout the Commonwealth as set forth in this chapter.
  2. The salaries of the persons employed pursuant to this section shall be paid out of funds appropriated for such purpose to the Department of Juvenile Justice. The Director and such employees as he may find necessary to carry out properly the responsibilities of the Department pursuant to subsection A of this section shall have access to all probation offices, other social services and to their records.
  3. The State Board shall establish minimum standards for court service staffs and related supportive personnel and promulgate regulations pertaining to their appointment and function to the end that uniform services, insofar as is practical, will be available to juvenile and domestic relations district courts throughout the Commonwealth. In counties or cities now served by regional juvenile and domestic relations courts or where specialized court service units are not provided, and in any county or city which provided specialized services on June 30, 1973, that requests the development of a court service unit, appointment to positions in such units shall be based on merit as provided in the Virginia Personnel Act (§ 2.2-2900 et seq.).
  4. No person shall be assigned to or discharged from the state-operated court service staff of a juvenile and domestic relations district court except as provided in the Virginia Personnel Act (§ 2.2-2900 et seq.). The Director shall have the authority, for good cause, after consulting with the judge or judges of that juvenile and domestic relations district court and after due notice and opportunity to be heard, to order the transfer, demotion or separation of any person from the court service staff subject only to the limitations of the Virginia Personnel Act. (Code 1950, § 16.1-203; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, cc. 44, 45; 1977, c. 559; 1979, c. 700; 1989, c. 733; 1995, cc. 696, 699; 2001, c. 853; 2003, c. 648.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 1995, cc. 696 and 699, cl. 2, provide: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of the Virginia Juvenile Community Crime Control Act during the 1995 Session of the General Assembly." Appropriation for this act was made pursuant to Acts 1995, c. 853, item 578.

Acts 2001, c. 853, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in juvenile correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 1995 amendments. - The 1995 amendments by cc. 696 and 699 are identical, and deleted "except as otherwise provided in § 16.1-311 as it pertains to employees of juvenile detention homes and probation houses" following "pursuant to this section" near the beginning of subsection B.

The 2001 amendments. - The 2001 amendment by c. 853 inserted "parole" following "probation" once in the first, and once in the third sentence of subsection A.

The 2003 amendments. - The 2003 amendment by c. 648, in the second sentence of subsection A, substituted "may" for "is empowered to" and "the" for "his" preceding "Department"; substituted "the Virginia Personnel Act ( § 2.2-2900 et seq.)" for "Chapter 29 ( § 2.2-2900 et seq.) of Title 2.2" at the end of subsection C; and rewrote subsection D, which formerly read: "No person shall be assigned to or discharged from the state-operated court service staff of a juvenile and domestic relations district court except as provided in Chapter 29 of Title 2.2, nor without the prior mutual approval of the judge thereof and the Director. However, the chief judge of any such court shall be empowered, for good cause, after due notice and opportunity to be heard, to order the transfer of any person from the court service staff of his court, and the Director shall likewise be empowered to order such transfer or separation subject only to the limitations of Chapter 29 of Title 2.2."

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 88.

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

§ 16.1-234. Duties of Department; provision of quarters, utilities, and office equipment to court service unit.

The Director shall cause the Department to study the conditions existing in the several cities and counties, to confer with the judges of the juvenile and domestic relations district courts, the directors and boards of social services, and other appropriate officials, as the case may be, and to plan, establish and operate unless otherwise provided an adequate and coordinated program of probation, parole and related services to all juvenile and domestic relations district courts in counties or cities heretofore served by regional juvenile and domestic relations courts, and where specialized probation, parole and related court services were not provided as of July 1, 1973, and to counties and cities that request a development of a court service unit with the approval of the governing bodies after consultation with the chief juvenile and domestic relations district court judge.

In each county and city in which there is located an office for a state juvenile and domestic relations district court service unit such jurisdiction shall provide suitable quarters and utilities, including telephone service, for such court service unit staff. Such county or city shall also provide all necessary furniture and furnishings for the efficient operation of the unit. When such court service unit serves counties or cities in addition to the county or city where the office is located, the jurisdiction or jurisdictions so served shall share proportionately, based on the population of the jurisdictions, in the cost of the quarters and utilities, including telephone service and necessary furniture and furnishings. All other office equipment and supplies, including postage, shall be furnished by the Commonwealth and shall be paid out of the appropriation for criminal charges.

In counties and cities that provided specialized court service programs prior to July 1, 1973, which do not request the development of a state-operated court service unit, it shall be the duty of the Department to insure that minimum standards established by the State Board are adhered to, to confer with the judges of the juvenile and domestic relations district court and other appropriate officials as the case may be, and to assist in the continued development and extension of an adequate and coordinated program of court services, probation, parole and detention facilities and other specialized services and facilities to such juvenile and domestic relations district courts.

(Code 1950, § 16.1-204; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, c. 641; 1977, c. 559; 1979, c. 700; 2001, c. 853.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2001, c. 853, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in juvenile correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2001 amendments. - The 2001 amendment by c. 853 in the first sentence substituted "directors and boards of social services" for "superintendents and boards of public welfare," inserted "parole" following "probation," twice, substituted "services were not provided" for "services are not being provided," and substituted "that" for "which" preceding "request"; and in the last paragraph, substituted "that provided" for "providing" near the beginning of the paragraph, and inserted "parole" following "probation."

§ 16.1-235. How probation, parole and related court services provided.

Probation, parole and related court services shall be provided through the following means:

  1. State court service units. - The Department shall develop and operate probation, parole and related court services in counties or cities heretofore served by regional juvenile and domestic relations district courts and where specialized probation, parole and related court services were not provided as of July 1, 1973, and make such services available to juvenile and domestic relations district courts, as required by this chapter and by regulations established by the Board. All other counties or cities may request the development of a state-operated court service unit with the approval of their governing bodies after consultation with the chief judge of the juvenile and domestic relations district court of such jurisdiction.
  2. Local units. - In counties and cities providing specialized court services as of July 1, 1973, who do not request the development of a state-operated court service unit, the governing body or bodies of the district shall appoint one or more suitable persons as probation and parole officers and related court service personnel in accordance with established qualifications and regulations and shall develop and operate probation, parole, detention and related court services. The transfer, demotion, or separation of probation officers and related court service personnel appointed pursuant to this subsection shall be under the authority of the governing body or bodies of the district and shall be only for good cause shown, after consulting with the judge or judges of that juvenile and domestic relations district court, in accordance with the Virginia Personnel Act (§ 2.2-2900 et seq.) and after due notice and opportunity to be heard.
  3. A county or city that is providing court services through a state-operated court services unit, with the approval of its governing body after consultation with the chief judge of the juvenile and domestic relations district court of the jurisdiction, may cease providing services through a state-operated court services unit and commence operation as a local unit, subject to all laws, regulations, policies and procedures applicable to a local unit.

    (Code 1950, § 16.1-205; 1956, c. 555; 1972, cc. 73, 708; 1973, c. 546; 1974, cc. 44, 45, 673; 1977, c. 559; 2001, c. 853; 2002, c. 510; 2003, c. 648.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2001, c. 853, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in juvenile correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2001 amendments. - The 2001 amendment by c. 853 inserted "parole" following "Probation," in the introductory language; in the first sentence of subdivision A, inserted "parole" following "probation," twice, and substituted "services were not provided" for "services are not being provided"; in the third sentence of subdivision A, inserted "parole" following "probation," inserted "and parole" following "probation" preceding "officers" and substituted "services were not provided" for "services are not being provided"; and in subdivision B, inserted "parole" following "probation," and inserted "and parole" following "probation" preceding "officers."

The 2002 amendments. - The 2002 amendment by ch. 510 added subsection C.

The 2003 amendments. - The 2003 amendment by c. 648 deleted the former last sentence of subsection A, which read: "In counties or cities now served by regional juvenile and domestic relations district courts and where specialized probation, parole and related court services were not provided as of July 1, 1973, the judge or judges of the juvenile and domestic relations district court may from a list of eligibles certified by the Director appoint one or more suitable persons as probation and parole officers and related court service personnel in accordance with established qualifications and regulations"; in subsection B, in the first paragraph, deleted "the chief judge or judges of the juvenile and domestic relations district court may, from a list of eligibles certified by the Director or by" following "service unit," and inserted "shall" following "district," and added the second paragraph.

§ 16.1-235.1. Provision of court services; replacement intake officers.

The chief judge may make arrangements for a replacement intake officer from another court service unit to ensure the capability of a prompt response in matters under § 16.1-255 or 16.1-260 during hours the court is closed. The replacement intake officer shall have all the authority and power of an intake officer of that district when authorized in writing by the appointing authority and by the chief judge of that district.

(2002, c. 700; 2012, cc. 164, 456.)

The 2012 amendments. - The 2012 amendments by cc. 164 and 456 are identical, and deleted the former third sentence, which read: "The arrangements shall conform to policy governing the use of replacement intake officers established by the State Board of Juvenile Justice."; and made a minor stylistic change.

Research References. - Virginia Forms (Matthew Bender). No. 9-101. Notice of Intake Hearing.

§ 16.1-236. Supervisory officers.

In any court where more than one probation or parole officer or other court services staff has been appointed under the provisions of this law, one or more probation or parole officers may be designated to serve in a supervisory position, other than court services unit director, by the Director, if it is a state-operated court services unit, or by the local governing body, if it is a locally operated court services unit.

The transfer, demotion, or separation of supervisory officers, other than court services unit directors, of state court service units shall be under the authority of the Director and shall be only for good cause shown, after consulting with the judge or judges of that juvenile and domestic relations district court, and in accordance with the Virginia Personnel Act (§ 2.2-2900 et seq.). The transfer, demotion or separation of supervisory officers of local court service units shall be under the authority of the local governing body and shall be only for good cause shown, after consulting with the judge or judges of that juvenile and domestic relations district court and after due notice and opportunity to be heard.

(Code 1950, § 16.1-207; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, c. 673; 1977, c. 559; 2001, c. 853; 2003, c. 648.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2001, c. 853, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in juvenile correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2001 amendments. - The 2001 amendment by c. 853 inserted "or parole" following "probation" twice in the first sentence.

The 2003 amendments. - The 2003 amendment by c. 648 rewrote the section.

§ 16.1-236.1. Court services unit directors.

  1. State-operated court services units. A court services unit director shall be designated for each state-operated court services unit. The judge or judges of the juvenile and domestic relations district court shall, from a list of eligible persons submitted by the Director appoint one court services unit director for the state-operated court services unit serving that district court. The list of eligible persons shall be developed in accordance with state personnel laws and regulations, and Department policies and procedures. If any list of eligible persons submitted by the Director is unsatisfactory to the judge or judges, the judge or judges may request the Director to submit a new list containing the names of additional eligible persons. Upon such request by the judge or judges, the Director shall develop and submit a new list of eligible persons in accordance with state personnel laws and regulations, and Department policies and procedures. The transfer, demotion, or separation of a court services unit director, appointed pursuant to this subsection shall be under the authority of the Director and shall be only for good cause shown, after consulting with the judge or judges of that juvenile and domestic relations district court, and in accordance with the Virginia Personnel Act (§ 2.2-2900 et seq.).
  2. Locally operated court services units. A court services unit director shall be designated for each locally operated court services unit. The judge or judges of the juvenile and domestic relations district court shall, from a list of eligible persons submitted by the governing body or bodies of the district, appoint one court services unit director for the locally operated court services unit serving that district court. The list of eligible persons shall be in accordance with locally established qualifications that are consistent with state personnel laws and regulations, and Department policies and procedures. If any list of eligible persons submitted by the governing body or bodies of the district is unsatisfactory to the judge or judges, the judge or judges may request the governing body or bodies to submit a new list containing the names of additional eligible persons. Upon such request by the judge or judges, the governing body or bodies shall develop and submit a new list of eligible persons in accordance with locally established qualifications that are consistent with state personnel laws and regulations, and Department policies and procedures. The transfer, demotion, or separation of a court services unit director appointed pursuant to this subsection shall be under the authority of the local governing body or bodies and shall be only for good cause shown after consulting with the judge or judges of that juvenile and domestic relations district court and in accordance with the Virginia Personnel Act (§ 2.2-2900 et seq.). (2003, c. 648.)

CASE NOTES

Reassignment. - Circuit court erred in reversing a hearing officer's decision that granted an employee's request for relief and reinstatement to his former position, because the employee's grievance went through every procedural step available and policy to which he was entitled, the hearing officer had jurisdiction to take the necessary action, the position was a statutory creation, the hearing officer's findings of fact generally reflected positively on the employee, and the Department of Juvenile Justice reassigned the employee arbitrarily or as a form of unwarranted punishment. Va. Dep't of Juvenile Justice v. Milner, Nos. 1812-14-2, 2147-14-2, 2015 Va. App. LEXIS 223 (July 21, 2015).

OPINIONS OF THE ATTORNEY GENERAL

"List of eligible persons," for state-operated court services unit directors consists of those individuals submitted by the Director of the Department of Juvenile Justice pursuant to state personnel laws and regulations and Department policies and procedures. Such list is the only list from which judges may appoint a director. Should the list be unsatisfactory to judges, they may request new lists. See opinion of Attorney General to Mr. Barry R. Green, Director, Department of Juvenile Justice, 05-068, 2005 Va. AG LEXIS 42 (10/19/05).

§ 16.1-237. Powers, duties and functions of probation and parole officers.

In addition to any other powers and duties imposed by this law, a probation or parole officer appointed hereunder shall:

  1. Investigate all cases referred to him by the judge or any person designated so to do, and shall render reports of such investigation as required;
  2. Supervise persons placed under his supervision and shall keep informed concerning the conduct and condition of every person under his supervision by visiting, requiring reports and in other ways, and shall report thereon as required;
  3. Under the general supervision of the director of the court service unit, investigate complaints and accept for informal supervision cases wherein such handling would best serve the interests of all concerned;
  4. Use all suitable methods not inconsistent with conditions imposed by the court to aid and encourage persons on probation or parole and to bring about improvement in their conduct and condition;
  5. Furnish to each person placed on probation or parole a written statement of the conditions of his probation or parole and instruct him regarding the same;
  6. Keep records of his work including photographs and perform such other duties as the judge or other person designated by the judge or the Director shall require;
  7. Have the authority to administer oaths and take acknowledgements for the purposes of §§ 16.1-259 and 16.1-260 to facilitate the processes of intake and petition;
  8. Have the powers of arrest of a police officer and the power to carry a concealed weapon when specifically so authorized by the judge; and
  9. Determine by reviewing the Local Inmate Data System or the Juvenile Tracking System (JTS) upon intake and again prior to discharge whether a blood, saliva, or tissue sample has been taken for DNA analysis for each offender required to submit a sample pursuant to § 16.1-299.1 and, if no sample has been taken, require an offender to submit a sample for DNA analysis.

    (Code 1950, § 16.1-208; 1956, c. 555; 1964, c. 516; 1972, c. 708; 1973, c. 546; 1974, c. 464; 1977, c. 559; 2001, c. 853; 2007, c. 528; 2009, c. 726.)

Editor's note. - Acts 2001, c. 853, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in juvenile correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2001 amendments. - The 2001 amendment by c. 853 inserted "or parole" following "probation," in the introductory language; substituted "persons placed" for "such persons as are placed" near the beginning of subdivision B; inserted "or parole" following "probation" once in subdivision D, and twice in subdivision E; and substituted "the judge" for "him" near the end of subdivision F.

The 2007 amendments. - The 2007 amendment by c. 528 added subsection I and made related changes.

The 2009 amendments. - The 2009 amendment by c. 726 inserted "including photographs" in subsection F.

Research References. - Virginia Forms (Matthew Bender). No. 5-278. Order for Investigation and Report.

OPINIONS OF THE ATTORNEY GENERAL

Probation and parole officers described in this section are not "law-enforcement officers" for purposes of the Virginia Law Officers' Retirement System. See opinion of Attorney General to The Honorable Harry B. Blevins, Member, Senate of Virginia, 08-075 (10/30/08).

§ 16.1-238. Compensation of probation officers, court service staff members and related court service personnel; reimbursement; traveling and other expenses.

The compensation of probation officers and other court service staff members appointed in accordance with subsection B of § 16.1-235 shall be fixed by the governing body of the city or county in which they serve. They shall be paid out of the county or city treasury. One-half of such compensation shall be reimbursed to any city or county from funds appropriated to the Department. Any funds from the Department of Criminal Justice Services or from other public fund sources outside of the provisions of this law which are used in compensating such personnel shall not be considered state funds.

Compensation of all other probation officers and related court service personnel appointed in accordance with subsection A of § 16.1-235 shall be fixed in accordance with Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2. Personnel transferred from local and regional court staffs shall suffer no reduction in pay and shall transfer into the state program all accrued leave and other benefits allowable under Chapter 29 of Title 2.2. Probation officers and related court service personnel appointed in accordance with subsection A of § 16.1-235 shall be paid necessary traveling and other expenses incurred in the discharge of their duties.

The salary and expenses provided for personnel appointed in accordance with subsection A of § 16.1-235 shall be paid by the Commonwealth, and no part shall be paid by or chargeable to any county or city. The governing body of any county or city, however, may add to the compensation of such personnel such an amount as the governing body may appropriate not to exceed 50 percent of the amount paid by the Commonwealth. No such additional amount paid by a local governing body shall be chargeable to the Department of Juvenile Justice nor shall it remove or supersede any authority, control or supervision of the Department.

(Code 1950, § 16.1-206; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, cc. 44, 45; 1977, c. 559; 1982, c. 636; 1983, c. 358; 1989, c. 733; 2012, cc. 164, 456.)

The 2012 amendments. - The 2012 amendments by cc. 164 and 456 are identical, and in the first paragraph, substituted "subsection B of § 16.1-235" for " § 16.1-235 B" and deleted "in accordance with minimum standards prescribed by the State Board," in the first sentence, and deleted "complying with the minimum standards set by the State Board" following "city or county" in the third sentence; substituted "subsection A of § 16.1-235" for " § 16.1-235 A" twice in the second paragraph and once in the third paragraph; and made a mnor stylistic change.

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

§ 16.1-239. Payment of traveling expenses of court officers; reimbursement.

In counties and cities providing specialized court service programs prior to July 1, 1973, as provided in §§ 16.1-234 and 16.1-235, and under the rules of the Department the traveling expenses incurred by a probation officer, court service officer or other officer of the court when traveling under the order of the judge, shall be paid out of the county or city treasury. One-half of such expenses shall be reimbursed to the city or county by the Department out of funds appropriated for such purposes.

(Code 1950, § 16.1-213; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1977, c. 559; 1982, c. 636; 1983, c. 358.)

§ 16.1-240. Citizens advisory council.

  1. The governing bodies of each county and city served by a court service unit may appoint one or more members to a citizens advisory council, in total not to exceed 15 members; and the chief judge of the juvenile and domestic relations district court may appoint one or more members to the advisory council, in total not to exceed five members. The duties of the council shall be as follows:
    1. To advise and cooperate with the court upon all matters affecting the working of this law and other laws relating to children, their care and protection and to domestic relations;
    2. To consult and confer with the court and director of the court service unit from time to time relative to the development and extension of the court service program;
    3. To encourage the member selected by the council to serve on the central advisory council to visit, as often as the member conveniently can, institutions and associations receiving children under this law, and to report to the court from time to time and at least annually in its report made pursuant to subdivision 5 the conditions and surroundings of the children received by or in charge of any such persons, institutions or associations;
    4. To make themselves familiar with the work of the court under this law; and
    5. To make an annual report to the court and the participating governing bodies on the work of the council.
  2. If the governing body does not exercise its option to appoint a citizens advisory council pursuant to subsection A, the judge of the juvenile and domestic relations district court may appoint an advisory board of citizens, not to exceed 15 members, who shall perform the same duties as provided in this section.

    (Code 1950, § 16.1-157; 1956, c. 555; 1968, c. 435; 1977, c. 559; 1989, c. 733; 2012, cc. 164, 456.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2012 amendments. - The 2012 amendments by cc. 164 and 456 are identical, and deleted "hereof" following "subdivision 5" in subdivision A 3; deleted former subsections B and D pertaining to traveling expenses, and the selection of a member to serve on a central advisory council, respectively, and redesignated former subsection C as B; deleted "of this section" following "subsection A" in subsection C; and made minor stylistic changes.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 88.

Article 3. Jurisdiction and Venue.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abortion, § 1; 4A M.J. Commonwealth's and State's Attorney, § 4; 6A M.J. Divorce and Alimony, § 69; 9B M.J. Infants and Juveniles, §§ 13, 82, 84; 11B M.J. Jurisdiction, § 21.

§ 16.1-241. Jurisdiction; consent for abortion.

The judges of the juvenile and domestic relations district court elected or appointed under this law shall be conservators of the peace within the corporate limits of the cities and the boundaries of the counties for which they are respectively chosen and within one mile beyond the limits of such cities and counties. Except as hereinafter provided, each juvenile and domestic relations district court shall have, within the limits of the territory for which it is created, exclusive original jurisdiction, and within one mile beyond the limits of said city or county, concurrent jurisdiction with the juvenile court or courts of the adjoining city or county, over all cases, matters and proceedings involving:

  1. The custody, visitation, support, control or disposition of a child:
    1. Who is alleged to be abused, neglected, in need of services, in need of supervision, a status offender, or delinquent except where the jurisdiction of the juvenile court has been terminated or divested;
    2. Who is abandoned by his parent or other custodian or who by reason of the absence or physical or mental incapacity of his parents is without parental care and guardianship; 2a. Who is at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in the care of the parent or custodian;
    3. Whose custody, visitation or support is a subject of controversy or requires determination. In such cases jurisdiction shall be concurrent with and not exclusive of courts having equity jurisdiction, except as provided in § 16.1-244;
    4. Who is the subject of an entrustment agreement entered into pursuant to § 63.2-903 or 63.2-1817 or whose parent or parents for good cause desire to be relieved of his care and custody;
    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, as provided in § 16.1-244;
    6. Who is charged with a traffic infraction as defined in § 46.2-100 ; or
    7. Who is alleged to have refused to take a blood test in violation of § 18.2-268.2 . In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection B of § 16.1-269.1, and for any charges ancillary thereto, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 16 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection C of § 16.1-269.1, and for all charges ancillary thereto, if the attorney for the Commonwealth has given notice as provided in subsection C of § 16.1-269.1, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 16 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. A determination by the juvenile court following a preliminary hearing pursuant to subsection B or C of § 16.1-269.1 to certify a charge to the grand jury shall divest the juvenile court of jurisdiction over the charge and any ancillary charge. In any case in which a transfer hearing is held pursuant to subsection A of § 16.1-269.1, if the juvenile court determines to transfer the case, jurisdiction of the juvenile court over the case shall be divested as provided in § 16.1-269.6. In all other cases involving delinquent acts, and in cases in which an ancillary charge remains after a violent juvenile felony charge has been dismissed or a violent juvenile felony has been reduced to a lesser offense not constituting a violent juvenile felony, the jurisdiction of the juvenile court shall not be divested unless there is a transfer pursuant to subsection A of § 16.1-269.1. The authority of the juvenile court to adjudicate matters involving the custody, visitation, support, control or disposition of a child shall not be limited to the consideration of petitions filed by a mother, father or legal guardian but shall include petitions filed at any time by any party with a legitimate interest therein. A party with a legitimate interest shall be broadly construed and shall include, but not be limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated by court order, either voluntarily or involuntarily, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241 , or (iii) who has been convicted of a violation of subsection A of § 18.2-61 , § 18.2-63 , subsection B of § 18.2-366 , or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation. The authority of the juvenile court to consider a petition involving the custody of a child shall not be proscribed or limited where the child has previously been awarded to the custody of a local board of social services. A1. Making specific findings of fact required by state or federal law to enable a child to apply for or receive a state or federal benefit. For the purposes of this subsection only, when the court has obtained jurisdiction over the case of any child, the court may continue to exercise its jurisdiction until such person reaches 21 years of age, for the purpose of entering findings of fact or amending past orders, to include findings of fact necessary for the person to petition the federal government for status as a special immigrant juvenile, as defined by 8 U.S.C. § 1101(a)(27)(J).
  2. The admission of minors for inpatient treatment in a mental health facility in accordance with the provisions of Article 16 (§ 16.1-335 et seq.) and the involuntary admission of a person with mental illness or judicial certification of eligibility for admission to a training center for persons with intellectual disability in accordance with the provisions of Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. Jurisdiction of the involuntary admission and certification of adults shall be concurrent with the general district court.
  3. Except as provided in subsections D and H, judicial consent to such activities as may require parental consent may be given for a child who has been separated from his parents, guardian, legal custodian or other person standing in loco parentis and is in the custody of the court when such consent is required by law.
  4. Judicial consent for emergency surgical or medical treatment for a child who is neither married nor has ever been married, when the consent of his parent, guardian, legal custodian or other person standing in loco parentis is unobtainable because such parent, guardian, legal custodian or other person standing in loco parentis (i) is not a resident of the Commonwealth, (ii) has his whereabouts unknown, (iii) cannot be consulted with promptness, reasonable under the circumstances, or (iv) fails to give such consent or provide such treatment when requested by the judge to do so.
  5. Any person charged with deserting, abandoning or failing to provide support for any person in violation of law.
  6. Any parent, guardian, legal custodian or other person standing in loco parentis of a child:
    1. Who has been abused or neglected;
    2. Who is the subject of an entrustment agreement entered into pursuant to § 63.2-903 or 63.2-1817 or is otherwise before the court pursuant to subdivision A 4; or
    3. Who has been adjudicated in need of services, in need of supervision, or delinquent, if the court finds that such person has by overt act or omission induced, caused, encouraged or contributed to the conduct of the child complained of in the petition.
  7. Petitions filed by or on behalf of a child or such child's parent, guardian, legal custodian or other person standing in loco parentis for the purpose of obtaining treatment, rehabilitation or other services that are required by law to be provided for that child or such child's parent, guardian, legal custodian or other person standing in loco parentis. Jurisdiction in such cases shall be concurrent with and not exclusive of that of courts having equity jurisdiction as provided in § 16.1-244.
  8. Judicial consent to apply for a work permit for a child when such child is separated from his parents, legal guardian or other person standing in loco parentis.
  9. The prosecution and punishment of persons charged with ill-treatment, abuse, abandonment or neglect of children or with any violation of law that causes or tends to cause a child to come within the purview of this law, or with any other offense against the person of a child. In prosecution for felonies over which the court has jurisdiction, jurisdiction shall be limited to determining whether or not there is probable cause.
  10. All offenses in which one family or household member is charged with an offense in which another family or household member is the victim and all offenses under § 18.2-49.1 . In prosecution for felonies over which the court has jurisdiction, jurisdiction shall be limited to determining whether or not there is probable cause. Any objection based on jurisdiction under this subsection shall be made before a jury is impaneled and sworn in a jury trial or, in a nonjury trial, before the earlier of when the court begins to hear or receive evidence or the first witness is sworn, or it shall be conclusively waived for all purposes. Any such objection shall not affect or be grounds for challenging directly or collaterally the jurisdiction of the court in which the case is tried.
  11. Petitions filed by a natural parent, whose parental rights to a child have been voluntarily relinquished pursuant to a court proceeding, to seek a reversal of the court order terminating such parental rights. No such petition shall be accepted, however, after the child has been placed in the home of adoptive parents.
  12. Any person who seeks spousal support after having separated from his spouse. A decision under this subdivision shall not be res judicata in any subsequent action for spousal support in a circuit court. A circuit court shall have concurrent original jurisdiction in all causes of action under this subdivision.
  13. Petitions filed for the purpose of obtaining an order of protection pursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1, and all petitions filed for the purpose of obtaining an order of protection pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10 if either the alleged victim or the respondent is a juvenile.
  14. Any person who escapes or remains away without proper authority from a residential care facility in which he had been placed by the court or as a result of his commitment to the Virginia Department of Juvenile Justice.
  15. Petitions for emancipation of a minor pursuant to Article 15 (§ 16.1-331 et seq.).
  16. Petitions for enforcement of administrative support orders entered pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2, or by another state in the same manner as if the orders were entered by a juvenile and domestic relations district court upon the filing of a certified copy of such order in the juvenile and domestic relations district court.
  17. Petitions for a determination of parentage pursuant to Chapter 3.1 (§ 20-49.1 et seq.) of Title 20. A circuit court shall have concurrent original jurisdiction to the extent provided for in § 20-49.2 .
  18. [Repealed.]
  19. Petitions filed by school boards against parents pursuant to §§ 16.1-241.2 and 22.1-279.3.
  20. Petitions to enforce any request for information or subpoena that is not complied with or to review any refusal to issue a subpoena in an administrative appeal regarding child abuse and neglect pursuant to § 63.2-1526 .
  21. Petitions filed in connection with parental placement adoption consent hearings pursuant to § 63.2-1233 . Such proceedings shall be advanced on the docket so as to be heard by the court within 10 days of filing of the petition, or as soon thereafter as practicable so as to provide the earliest possible disposition.
  22. Petitions filed for the purpose of obtaining the court's assistance with the execution of consent to an adoption when the consent to an adoption is executed pursuant to the laws of another state and the laws of that state provide for the execution of consent to an adoption in the court of the Commonwealth.
  23. Petitions filed by a juvenile seeking judicial authorization for a physician to perform an abortion if a minor elects not to seek consent of an authorized person. After a hearing, a judge shall issue an order authorizing a physician to perform an abortion, without the consent of any authorized person, if he finds that (i) the minor is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independent of the wishes of any authorized person, or (ii) the minor is not mature enough or well enough informed to make such decision, but the desired abortion would be in her best interest. If the judge authorizes an abortion based on the best interests of the minor, such order shall expressly state that such authorization is subject to the physician or his agent giving notice of intent to perform the abortion; however, no such notice shall be required if the judge finds that such notice would not be in the best interest of the minor. In determining whether notice is in the best interest of the minor, the judge shall consider the totality of the circumstances; however, he shall find that notice is not in the best interest of the minor if he finds that (a) one or more authorized persons with whom the minor regularly and customarily resides is abusive or neglectful and (b) every other authorized person, if any, is either abusive or neglectful or has refused to accept responsibility as parent, legal guardian, custodian or person standing in loco parentis. The minor may participate in the court proceedings on her own behalf, and the court may appoint a guardian ad litem for the minor. The court shall advise the minor that she has a right to counsel and shall, upon her request, appoint counsel for her. Notwithstanding any other provision of law, the provisions of this subsection shall govern proceedings relating to consent for a minor's abortion. Court proceedings under this subsection and records of such proceedings shall be confidential. Such proceedings shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor. Court proceedings under this subsection shall be heard and decided as soon as practicable but in no event later than four days after the petition is filed. An expedited confidential appeal to the circuit court shall be available to any minor for whom the court denies an order authorizing an abortion without consent or without notice. Any such appeal shall be heard and decided no later than five days after the appeal is filed. The time periods required by this subsection shall be subject to subsection B of § 1-210 . An order authorizing an abortion without consent or without notice shall not be subject to appeal. No filing fees shall be required of the minor at trial or upon appeal. If either the original court or the circuit court fails to act within the time periods required by this subsection, the court before which the proceeding is pending shall immediately authorize a physician to perform the abortion without consent of or notice to an authorized person. Nothing contained in this subsection shall be construed to authorize a physician to perform an abortion on a minor in circumstances or in a manner that would be unlawful if performed on an adult woman. A physician shall not knowingly perform an abortion upon an unemancipated minor unless consent has been obtained or the minor delivers to the physician a court order entered pursuant to this section and the physician or his agent provides such notice as such order may require. However, neither consent nor judicial authorization nor notice shall be required if the minor declares that she is abused or neglected and the attending physician has reason to suspect that the minor may be an abused or neglected child as defined in § 63.2-100 and reports the suspected abuse or neglect in accordance with § 63.2-1509 ; or if there is a medical emergency, in which case the attending physician shall certify the facts justifying the exception in the minor's medical record. For purposes of this subsection: "Authorization" means the minor has delivered to the physician a notarized, written statement signed by an authorized person that the authorized person knows of the minor's intent to have an abortion and consents to such abortion being performed on the minor. "Authorized person" means (i) a parent or duly appointed legal guardian or custodian of the minor or (ii) a person standing in loco parentis, including, but not limited to, a grandparent or adult sibling with whom the minor regularly and customarily resides and who has care and control of the minor. Any person who knows he is not an authorized person and who knowingly and willfully signs an authorization statement consenting to an abortion for a minor is guilty of a Class 3 misdemeanor. "Consent" means that (i) the physician has given notice of intent to perform the abortion and has received authorization from an authorized person, or (ii) at least one authorized person is present with the minor seeking the abortion and provides written authorization to the physician, which shall be witnessed by the physician or an agent thereof. In either case, the written authorization shall be incorporated into the minor's medical record and maintained as a part thereof. "Medical emergency" means any condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function. "Notice of intent to perform the abortion" means that (i) the physician or his agent has given actual notice of his intention to perform such abortion to an authorized person, either in person or by telephone, at least 24 hours previous to the performance of the abortion or (ii) the physician or his agent, after a reasonable effort to notify an authorized person, has mailed notice to an authorized person by certified mail, addressed to such person at his usual place of abode, with return receipt requested, at least 72 hours prior to the performance of the abortion. "Perform an abortion" means to interrupt or terminate a pregnancy by any surgical or nonsurgical procedure or to induce a miscarriage as provided in § 18.2-72 , 18.2-73 , or 18.2-74 . "Unemancipated minor" means a minor who has not been emancipated by (i) entry into a valid marriage, even though the marriage may have been terminated by dissolution; (ii) active duty with any of the Armed Forces of the United States; (iii) willingly living separate and apart from his or her parents or guardian, with the consent or acquiescence of the parents or guardian; or (iv) entry of an order of emancipation pursuant to Article 15 (§ 16.1-331 et seq.).
  24. Petitions filed pursuant to Article 17 (§ 16.1-349 et seq.) relating to standby guardians for minor children.
  25. Petitions involving minors filed pursuant to § 32.1-45.1 relating to obtaining a blood specimen or test results.
  26. Petitions filed pursuant to § 16.1-283.3 for review of voluntary agreements for continuation of services and support for persons who meet the eligibility criteria for the Fostering Futures program set forth in § 63.2-919 . The ages specified in this law refer to the age of the child at the time of the acts complained of in the petition. Notwithstanding any other provision of law, no fees shall be charged by a sheriff for the service of any process in a proceeding pursuant to subdivision A 3, except as provided in subdivision A 6 of § 17.1-272 , or subsection B, D, M, or R. Notwithstanding the provisions of § 18.2-71 , any physician who performs an abortion in violation of subsection W shall be guilty of a Class 3 misdemeanor. Upon certification by the juvenile and domestic relations district court of any felony charge and ancillary misdemeanor charge committed by an adult or when an appeal of a conviction or adjudication of delinquency of an offense in the juvenile and domestic relations district court is noted, jurisdiction as to such charges shall vest in the circuit court, unless such case is reopened pursuant to § 16.1-133.1; a final judgment, order, or decree is modified, vacated, or suspended pursuant to Supreme Court of Virginia Rule 1:1; or the appeal has been withdrawn in the juvenile and domestic relations district court within 10 days pursuant to § 16.1-133. (Code 1950, § 16.1-158; 1956, c. 555; 1960, c. 388; 1968, c. 225; 1970, cc. 232, 600; 1973, c. 440; 1976, cc. 42, 324; 1977, cc. 525, 559; 1978, c. 648; 1979, cc. 597, 605, 628; 1980, cc. 527, 529; 1981, cc. 454, 475, 488, 491, 501, 502, 510; 1982, c. 46; 1983, c. 280; 1984, cc. 631, 645, 651, 665, 669; 1985, c. 270; 1986, cc. 59, 506; 1987, c. 632; 1988, cc. 797, 906; 1989, cc. 368, 733; 1990, cc. 704, 975; 1991, cc. 511, 715; 1992, cc. 585, 742; 1994, cc. 575, 719, 813, 859, 949; 1995, cc. 7, 665, 772, 826, 852; 1996, cc. 755, 914; 1997, cc. 690, 708; 1998, c. 829; 1999, cc. 697, 721, 1028; 2000, c. 830; 2003, cc. 229, 960, 962; 2004, c. 588; 2005, cc. 716, 839, 890; 2007, cc. 284, 370; 2008, cc. 164, 201; 2010, c. 402; 2012, cc. 424, 476, 507, 637; 2014, c. 653; 2017, c. 623; 2019, cc. 27, 412, 631; 2020, cc. 95, 732, 987, 988; 2021, Sp. Sess. I, cc. 187, 286.)

Cross references. - As to notice of right to counsel, see § 16.1-266.

As to the one year deadline for claims of error or defect, see § 16.1-272.1.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

As to visitation of child placed in foster care, see § 63.2-912 .

As to testimony of child by use of two-way closed-circuit television in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1521 . As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2003, cc. 960 and 962, cl. 2 provides: "That if the amendments made by this act to § 16.1-241 are ever temporarily or permanently restrained or enjoined by judicial order, the provisions of § 16.1-241 shall be enforced as though the amendments were not enacted; however, if such temporary or permanent restraining order or injunction is ever stayed or dissolved, or otherwise ceases to have effect, § 16.1-241, as amended by this act, shall have full force and effect."

Acts 2019, cc. 412 and 631 added subsection A1, which grants the juvenile and domestic relations district court's jurisdiction to make "specific findings of fact required by state or federal law to enable a child to apply for or receive a state or federal benefit." The Canales v. Orellana , 67 Va. App. 759, 800 S.E.2d 208 (2017) decision, was reached before the 2019 acts became effective.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "terminated or divested" for "terminated under the provisions of § 16.1-269.6" in subdivision A 1, added the present second and third paragraphs of subdivision A 6, and substituted "or subsection B, D, M or R" for "subsections M or R" in the last paragraph.

The 1998 amendment added subsection W.

The 1999 amendments. - The 1999 amendment by cc. 697 and 721 are identical, and added "and" at the end of subdivision A 5; in subsection D, in clause (ii), inserted "has" and deleted "is" preceding "unknown," and deleted "he" at the beginning of clause (iii); added "or" at the end of subdivision F 2; and deleted the former fourth sentence in the second paragraph of subsection J, which read: "For purposes of this subsection, 'family or household member,' as defined in § 16.1-228, shall also be construed to include parent and child, stepparent and stepchild, brothers and sisters, and grandparent and grandchild, regardless of whether such persons reside in the same home."

The 1999 amendment by c. 1028 inserted " § 18.2-63 " in clause (ii) of the concluding paragraph of subsection A.

The 2000 amendments. - The 2000 amendment by c. 830 substituted " § 63.1-219.48" for " § 63.1-231" at the end of clause (i) in the concluding paragraph of subsection A; and substituted " § 63.1-219.40" for " § 63.1-22.3" at the end of the first sentence in subsection U.

The 2003 amendments. - The 2003 amendment by c. 229, in the first paragraph following subdivision A 6, twice substituted "14" for "fourteen," and in the third paragraph thereof, rewrote the third sentence, which formerly read: "A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, or any other person whose interest in the child derives from or through such person whose parental rights have been so terminated, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241 , or (ii) who has been convicted of a violation of subsection A of § 18.2-61 , § 18.2-63 or subsection B of § 18.2-366 when the child who is the subject of the petition was conceived as a result of such violation"; substituted "10" for "ten" in subdivision U; and in subdivision V, in the paragraph defining "Notice of intent to perform the abortion," substituted "24" for "twenty-four," and "72" for "seventy-two."

The 2003 amendments by cc. 960 and 962 are identical, and substituted "14" for "fourteen" throughout the section; substituted "the Commonwealth" for "this Commonwealth" in subdivision D (i); substituted "that are" for "which are" in subdivision G; substituted "that causes" for "which causes" in subdivision I; substituted "10" for "ten" in subdivision U; and rewrote subdivision V.

The 2004 amendments. - The 2004 amendment by c. 588 inserted "except as provided in subdivision A 6 of § 17.1-272 " near the end in the next-to-last paragraph of subsection W.

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, rewrote subsection B and made minor stylistic changes.

The 2005 amendment by c. 839, effective October 1, 2005, substituted "subsection B of § 1-210 " for " § 1-13.3:1" in the sixth paragraph of subsection V; and made minor stylistic changes.

The 2005 amendment by c. 890 inserted "or an equivalent offense of another state, the United States, or any foreign jurisdiction" in the last paragraph of subsection A; made a related change; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendments by cc. 284 and 370 are identical, and added subsection X.

The 2008 amendments. - The 2008 amendments by cc. 164 and 201 are identical, and added the second sentence of subsection Q.

The 2010 amendments. - The 2010 amendment by c. 402 deleted former subsection X, which read: "Petitions filed pursuant to § 18.2-370.5 for an order allowing the petitioner to enter and be present on school or child day center property. In such cases jurisdiction shall be concurrent with and not exclusive of circuit courts."

The 2012 amendments. - The 2012 amendment by c. 424 added subsection V and redesignated former subsection V as W; substituted "subsection W" for "subsection V" in the last paragraph, and made related and minor stylistic changes throughout the section.

The 2012 amendments by cc. 476 and 507 are identical, and substituted "persons with intellectual disability in accordance with the provisions of Chapter 8 ( § 37.2-800 et seq.) of Title 37.2" for "persons with mental retardation in accordance with the provisions of Chapters 1 ( § 37.2-100 et seq.) and 8 ( § 37.2-800 et seq.) of Title 37.2" at the end of the first sentence of subsection B; and made minor stylistic changes throughout the section.

The 2012 amendment by c. 637 added ", 16.1-253.4, or 16.1-279.1, and all petitions filed for the purpose of obtaining an order of protection pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10 if either the alleged victim or the respondent is a juvenile" at the end of subsection M; repealed former subsection R, whch read: "Petitions for the purpose of obtaining an emergency protective order pursuant to § 16.1-253.4."; and made a minor stylistic change.

The 2014 amendments. - The 2014 amendment by c. 653 in the last paragraph of subsection A inserted "step-grandparents" in the second sentence.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, added subdivision A 7, and made related changes.

The 2019 amendments. - The 2019 amendment by c. 27 added subsection Y.

The 2019 amendments by cc. 412 and 631 are identical, and added subsection A1.

The 2020 amendments. - The 2020 amendments by cc. 95 and 732 are identical, and inserted subsection Z.

The 2020 amendment by c. 987, in subsection A in the paragraph after subdivision 7, substituted "16 years" for "14 years" in the first and second sentences; and in subsection W in the last sentence of the third paragraph, substituted "(a)" and "(b)" for "(i)" and "(ii)," respectively.

The 2020 amendment by c. 988, in subsection A in the paragraph after subdivision 7, substituted "16 years" for "14 years" in the first and second sentences.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 187, effective July 1, 2021, added the last paragraph in the section.

The 2021 amendment by Sp. Sess. I, c. 286, effective July 1, 2021, added the last sentence in subsection A1.

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 1994 survey of Virginia domestic relations law, see 28 U. Rich. L. Rev. 981 (1994).

For 1995 survey of criminal law and procedure, see 29 U. Rich. L. Rev. 951 (1995).

For an article relating to recent changes of formidable importance in major areas of domestic relations, both nationally and in Virginia, see 32 U. Rich. L. Rev. 1165 (1998).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For an article, "Blood Ties: A Rationale for Child Visitation by Legal Strangers," see 55 Wash. & Lee L. Rev. 351 (1998).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For annual survey article, see "Family Law," 48 U. Rich. L. Rev. 135 (2013).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 7 Family Support Obligations. § 7.5 Contempt. Rendleman.

Virginia Forms (Matthew Bender). No. 5-155. Petition for Protective Order - Family Abuse, et seq.

CASE NOTES

Constitutionality of parental notice provision. - The Parental Notice Act, as legislation that respects the fundamental interests of responsible parents in the rearing and in the educational, moral and religious development of their children, without unduly burdening the fundamental abortion right, is facially constitutional under the Fourth Amendment. Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352 (4th Cir. 1998).

The unmistakable implication in this section and the guidelines given by the supreme court to its lower courts is that, whenever possible, bypass petitions should be resolved within the four-day statutory period required for holding hearings and no more is required to sustain the statute against a facial challenge to its constitutionality. Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352 (4th Cir. 1998).

The imposing confidentiality protections provided for in this and other statutes and promulgated by the supreme court in the form of instructions to the judges and clerks who will handle cases under the parental notification law, would be adequate to sustain a statute requiring parental consent and they are clearly adequate to sustain this statute requiring only notice. Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352 (4th Cir. 1998).

Provided that a parental notice statute, such as this one, does not condition the minor's access to abortion upon notice to abusive or neglectful parents, absent parents who have not assumed their parental responsibilities or parents with similar relationships with their daughters, nothing more is required in order to withstand a facial challenge to its constitutionality. Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352 (4th Cir. 1998).

Power of circuit court. - A circuit court possesses the inherent power to punish juveniles for criminal contempt for disobedience to its orders, decrees, and processes. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

The juvenile code does not require a circuit court seeking to punish a juvenile for contempt of a court's subpoena power to refer the legal or factual issues to a separate juvenile and domestic relations court. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

Juvenile and Domestic Relations District (JDR) court and a circuit court on appeal were not required to make findings supporting a child's application for Special Immigrant Juvenile status when awarding custody because these courts did not decide if any such findings made when awarding custody helped a child achieve such status. Canales v. Orellana, 67 Va. App. 759, 800 S.E.2d 208 (2017).

Jurisdiction. - This section grants the juvenile court exclusive original jurisdiction over all cases, matters and proceedings concerning a juvenile who is alleged to have been delinquent. Moore v. Commonwealth, 259 Va. 405 , 527 S.E.2d 415 (2000), rev'd on other grounds, Pope v. Commonwealth, 37 Va. App. 451, 559 S.E.2d 388 (2002).

The jurisdiction of a juvenile and domestic relations district court is remarkably broad and includes concurrent jurisdiction with the circuit courts over the custody, visitation and support of a child whose custody, visitation or support is a subject of controversy or requires determination. Croteau v. Croteau (In re Croteau), 246 Bankr. 254, 2000 Bankr. LEXIS 302 (Bankr. E.D. Va. 2000).

Subdivision A 1 of § 16.1-241, by its plain language, does not predicate subject matter jurisdiction on the residence of the child but grants exclusive jurisdiction to juvenile and domestic relations district courts over all cases, matters and proceedings involving the custody of a child who was alleged to be abused or neglected. Wilson v. Fairfax County Dep't of Family Servs., No. 2606-02-4, 2003 Va. App. LEXIS 405 (Ct. of Appeals July 15, 2003).

Circuit court properly declined jurisdiction over appellant mother's subsection K § 16.1-241 petition to reverse a prior adjudication terminating her parental rights because the phrase "adoptive parents" had to be interpreted to describe, as set forth in § 16.1-228, the residence of any natural person in which the child resided as a member of the household and in which he had been placed for the purposes of adoption; thus, the circuit court lacked jurisdiction over the petition because the child had been placed in the home of adoptive parents, even though a final order of adoption had not been entered. Segura v. Fairfax County Dep't of Family Servs., No. 0858-07-4, 2008 Va. App. LEXIS 93 (Ct. of Appeals Feb. 26, 2008).

Because the circuit court did not have jurisdiction under subdivision A 3 of § 16.1-241 and § 20-124.3 to determine visitation for a person who was 18 years old, the appellant's motion was moot; therefore, the circuit court properly dismissed the matter. Crossman v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0632-08-2, 2008 Va. App. LEXIS 369 (Aug. 5, 2008).

Trial court had subject matter jurisdiction under § 17.1-513 over defendant's trial, even though under subsection A of this section, the juvenile and domestic relations district courts had exclusive original jurisdiction over all cases involving a juvenile who was alleged to be delinquent, defined under § 16.1-228 as one under 18 years old, as defendant gave defendant's birthdate as December 13, 1986, and the indictment stated that the offense occurred on December 16, 2006. Hall v. Commonwealth, No. 2902-07-3, 2009 Va. App. LEXIS 73 (Feb. 17, 2009).

Juvenile and domestic relations district court had subject matter jurisdiction under subdivision A 3 of § 16.1-241 to enter an order granting joint custody of a child to the mother and an adoptee because the custody of the child was the subject of controversy and/or required determination, and the rights of the biological father were also at issue; subdivision A 3 of § 16.1-241 does not restrict a juvenile and domestic relations district court's jurisdiction only to matters in which a disagreement exists between parents or other interested parties. Morgan v. Kifus, No. 0399-10-4, 2011 Va. App. LEXIS 126 (Ct. of Appeals Apr. 12, 2011).

Circuit court erred in finding that the juvenile and domestic relations (JDR) district court lacked subject matter jurisdiction to modify an order because subsection A granted the JDR court the jurisdiction over that specified class of cases or controversies at issue in the order, which involves visitation of the parties' child. Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263 (Oct. 11, 2016).

Waiver of jurisdiction. - Nothing in either this section or § 16.1-244 permits the juvenile court to "waive" its jurisdiction and allow a party to bring an original action in the circuit court without meeting the statutory requirements. Willis v. Gamez, 20 Va. App. 75, 455 S.E.2d 274 (1995).

When the legislature enacted subsection (J), it created an exception to the general rule that lack of subject-matter jurisdiction cannot be waived. Burke v. Commonwealth, 29 Va. App. 183, 510 S.E.2d 743 (1999).

Defendant waived his objection to the juvenile court's exercise of jurisdiction over his preliminary hearing by not raising such objection before trial in the circuit court. Burke v. Commonwealth, 29 Va. App. 183, 510 S.E.2d 743 (1999).

Defendant waived jurisdictional objection to his preliminary hearing, where he failed to raise his objection before trial in circuit court. Waller v. Commonwealth, No. 0657-98-2, 1999 Va. App. LEXIS 330 (Ct. of Appeals June 8, 1999).

Award of custody to non-parents. - Because there was sufficient evidence to show that child's father was unfit, there was a compelling state interest for the court to award custody to non-parents; the father, therefore, was not deprived of substantive due process and this section was not unconstitutional. Switzer v. Smith, Nos. 0779-00-3, 1159-00-3, 2001 Va. App. LEXIS 454 (Ct. of Appeals July 31, 2001).

Court of appeals erred when the court upheld a circuit court's decision awarding custody of a child who had been adjudicated as abused and neglected and removed the child from the child's parents, pursuant to §§ 16.1-251 and 16.1-252, giving custody to the child's grandparents, based on the court's conclusion that language in subsection A of § 16.1-241 and subsection B of § 16.1-278.15 subordinated Virginia statutes on foster care to Virginia's general custody statutes. The only interpretation of Titles 16.1 and 20 that gave effect to both statutory schemes and the intent of the Virginia General Assembly was that a trial court had to make the specific factual findings required by the foster care statutes in a custody case involving a child who was subject to a foster care plan. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 , 666 S.E.2d 361, 2008 Va. LEXIS 97 (2008).

Custody order did not violate Marriage Affirmation Amendment. - Custody order granting joint custody of a child to the mother and an adoptee was not void as violative of the Virginia Marriage Amendment, Va. Const., Art. I, § 15-A, or the Marriage Affirmation Act, § 20-45.3, because the custody order was premised on the adoptee's status as a party with a legitimate interest under subsection A of § 16.1-241 and stated that the adoptee was a fit and proper person to care for the minor child; there was no language in the custody order recognizing a legal relationship between the mother and adoptee or indicating the juvenile and domestic relations district court's decision to award joint custody to the adoptee was based on the relationship between the mother, adoptee, and father, rather than the relationship between the adoptee and child. Morgan v. Kifus, No. 0399-10-4, 2011 Va. App. LEXIS 126 (Ct. of Appeals Apr. 12, 2011).

Court had jurisdiction and authority to order mother's alcohol evaluation. - While defendant argued that the evidence was insufficient to prove that she was a contributing factor to her daughter's need for supervision as required under this section, the evidence was sufficient to support the trial court's finding that she contributed to the need for supervision and, therefore, the juvenile court had jurisdiction to order the alcohol evaluation. Hanson v. Commonwealth, No. 2899-95-3, 1997 Va. App. LEXIS 206 (Ct. of Appeals Apr. 1, 1997).

Circuit court retained jurisdiction over a juvenile's parole revocation proceeding. - Where the circuit court acquired jurisdiction over an appeal of a juvenile proceeding originally heard by the juvenile court, the circuit court retained jurisdiction to hear a parole revocation proceeding concerning the juvenile upon her release from the department of juvenile justice. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Commonwealth not "victim" in all criminal cases. - Although it is true that the Commonwealth is the plaintiff party in any criminal case in the Virginia courts, one cannot infer from that fact that the Commonwealth is the victim in all criminal cases for purposes of applying this section. By the Commonwealth's rationale, no family or household member could ever be the victim of a crime committed by a family member, because the Commonwealth would be the victim. That analysis effectively would render subdivision J meaningless. Pope v. Commonwealth, 19 Va. App. 130, 449 S.E.2d 269 (1994).

The term "party with a legitimate interest" means not only a party possessed of legal rights with respect to the child, but also any party having a cognizable and reasonable interest in maintaining a close relationship with the child. Thrift v. Baldwin, 23 Va. App. 18, 473 S.E.2d 715 (1996).

Person with a legitimate interest. - Great great stepaunt of a nine-year-old child was a family member under subsection A of § 16.1-241; because the statutory phrase "person with a legitimate interest" was to be broadly construed to accommodate the best interest of the child, the trial court erred in ruling the great great stepaunt was not a person with a legitimate interest. Joseph v. Portsmouth Dep't of Soc. Servs., No. 1984-05-1, 2006 Va. App. LEXIS 264 (June 13, 2006).

"Adoptive parents." - Phrase "adoptive parents" in subsection K must be interpreted to describe, as set forth in § 16.1-228, the residence of any natural person in which the child resides as a member of the household and in which he has been placed for the purposes of adoption. Segura v. Fairfax County Dep't of Family Servs., No. 0858-07-4, 2008 Va. App. LEXIS 93 (Ct. of Appeals Feb. 26, 2008).

Court did not have authority to order visitation by man determined not to be father. - Subdivision A of this section does not confer upon the juvenile and domestic relations district courts, or upon the circuit courts on appeal, authority and jurisdiction to order visitation with a child by one, not married to the mother, previously thought to be the father but later determined not to be. Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441 (1991).

Although the adoption of the children by the defendants extinguished the plaintiffs' grandparental and sibling relationship, the blood relationship continued, and this section particularly confers standing to all plaintiffs to seek visitation. Thrift v. Baldwin, 23 Va. App. 18, 473 S.E.2d 715 (1996).

Forgery conviction vacated for lack of jurisdiction. - Because defendant's brother was the victim of forgery committed by defendant, the juvenile and domestic relations district court had exclusive, original jurisdiction to determine whether there was probable cause. Therefore, since defendant was never brought before a juvenile and domestic relations district court for the purpose of determining probable cause, or for any purpose, but rather was brought before the general district court which acted in the absence of jurisdiction and thus had no power to certify the case to the circuit court, the forgery conviction should be vacated. Pope v. Commonwealth, 19 Va. App. 130, 449 S.E.2d 269 (1994).

Jurisdiction properly exercised. - The defendant burglarized the house of the widow of his father. He was brought before general district court for a preliminary hearing, indicted, and tried in the circuit court. The fact that the defendant was the illegitimate son of the victim's deceased husband was stipulated. The defendant contended that he was a stepchild of the victim and should have been tried under this section. Without a former marriage no stepchild is possible and the defendant fell under neither the technical definition of a stepchild nor in the statutory intent to protect and preserve family harmony. Consequently, the general district court was the proper forum for the defendant's criminal prosecution to begin. Bell v. Commonwealth, No. 0799-95-1, 1996 Va. App. LEXIS 424 (Ct. of Appeals June 11, 1996).

Trial court did not err when it denied a mother's motion to dismiss the Virginia Beach Department of Social Services' action to terminate the mother's parental rights pursuant to § 16.1-283 based upon a petition filed in Norfolk because, even if a Virginia Beach juvenile and domestic relations court lacked jurisdiction to issue an emergency removal order pursuant to which the child was removed from the mother, the mother lost her parental rights through a petition that originated out of Norfolk, which was the proper venue under § 16.1-243 and had jurisdiction under this section. Paris v. City of Va. Beach Dep't of Soc. Servs., No. 2009-04-1, 2005 Va. App. LEXIS 30 (Ct. of Appeals Jan. 25, 2005).

Because trial court had subject matter jurisdiction under § 16.1-241 in earlier proceeding, any defects in order awarding mother custody rendered it voidable, not void. Department waived issue of whether the mother was a "party with a legitimate interest" to seek custody by failing to timely appeal the trial court's earlier order. Hudson v. Franklin County Dep't of Soc. Servs., No. 0576-06-3, 2007 Va. App. LEXIS 53 (Feb. 13, 2007).

Circuit court did not err in denying parents' motions to dismiss petitions filed by a county department of family services pursuant to subdivision A 1 of § 16.1-241 alleging that their children were abused and neglected because the circuit court had the power to exercise its subject matter jurisdiction since subsection B of § 16.1-251 was procedural and directory, rather than mandatory and jurisdictional, and the parents failed to show that they suffered any prejudice as a result of the juvenile and domestic relations district court's alleged failure to comply with subsection B of § 16.1-251; the department's action invoked the subject matter jurisdiction of the district court, upon appeal to the circuit court, the circuit court's jurisdiction was derivative of that of the district court, and therefore, if the district court had subject matter jurisdiction, so too did the circuit court upon appeal from the district court order. Marrison v. Fairfax County Dep't of Family Servs., 59 Va. App. 61, 717 S.E.2d 146, 2011 Va. App. LEXIS 336 (2011).

Adoptive parents' failure to timely appeal the juvenile court's visitation order was of no legal consequence because there was no need for them to file a separate pleading to seek the termination of biological grandparents' visitation when entry of the order of adoption divested the grandparents of any right to visitation; the petition for adoption necessarily implied a question of the grandparents' ongoing visitation, and the circuit court had jurisdiction to entertain the petition. Harvey v. Flockhart, 65 Va. App. 131, 775 S.E.2d 427 (2015).

Juvenile and domestic relations court properly exercised jurisdiction over a father's motions to amend custody in cases transferred to the court because (1) the transferring court had statutory jurisdiction, (2) no appeal was pending at the time of transfer, (3) the transfer was statutorily authorized, and (4) any error not raised in the trial court was waived. Barrett v. Minor, No. 1250-16-3, 2018 Va. App. LEXIS 284 (Oct. 23, 2018), appeal dismissed, mot. denied, sanctions allowed, 843 S.E.2d 749, 2020 Va. LEXIS 63 (2020).

Lack of jurisdiction. - Court of Appeals lacked jurisdiction to hear a mother's appeal because the circuit court's orders, that her children were abused or neglected or were at risk of abuse or neglect, were not final orders where the orders were adjudicatory in nature, did not make any of the seven statutory dispositions, and did not make any final determinations regarding custody. Byrd v. Petersburg Dep't of Soc. Servs., No. 0782-15-2, 2016 Va. App. LEXIS 203 (Ct. of Appeals July 19, 2016).

Juvenile and Domestic Relations District (JDR) court and a circuit court on appeal had no jurisdiction to make findings supporting a juvenile immigrant's application for Special Immigrant Juvenile status because no state or federal statute authorized or required such findings when deciding custody, as Va. Code Ann. § 16.1-241 did not authorize a JDR court to conduct a hearing for such purposes. Canales v. Orellana, 67 Va. App. 759, 800 S.E.2d 208 (2017).

Circuit court properly dismissed a mother's appeal-of an order denying her motions to restore her parental rights and for full custody of her child-for lack of jurisdiction because the mother was not a "party with a legitimate interest" where her parental rights had been terminated, the child adopted, and she had exhausted her appeals of that decision, and the record did not reflect that she filed any objections to the transcript with the clerk of the circuit court. Haney v. Roanoke City Dep't of Soc. Servs., No. 1219-16-3, No. 1220-16-3, 2017 Va. App. LEXIS 86 (Mar. 21, 2017).

Exclusive, original jurisdiction. - This section provides that each juvenile and domestic relations district court has exclusive, original jurisdiction over proceedings involving delinquent children, unless the case is transferred to the circuit court. Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

The juvenile and domestic relations district courts have exclusive, original jurisdiction over criminal offenses alleged to have been committed by a juvenile. Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).

Circuit court had jurisdiction where defendant failed to prove he was under 18 when offenses were committed. - Although there was conflicting evidence as to defendant's age, credible evidence supported trial court's conclusion that defendant failed to meet his burden of proving he was less than 18 years of age on date offenses were committed, and therefore trial court did not err in denying defendant's motion to set aside his conviction for lack of subject matter jurisdiction. Winston v. Commonwealth, 26 Va. App. 746, 497 S.E.2d 141 (1998).

The circuit court, sitting as chancery court in divorce case, lacked jurisdiction to terminate father's parental rights and, with that termination, father's child support obligation. Church v. Church, 24 Va. App. 502, 483 S.E.2d 498 (1997).

Jurisdiction based on entrustment agreement. - By the plain language of this statutory provision, a valid and effective entrustment agreement which meets the requirements set forth in former § 63.1-56 (see now § 63.2-900 ) must be executed before the court may adjudicate a petition for the termination of parental rights. Fredericksburg Dep't of Soc. Servs. v. Brown, 33 Va. App. 313, 533 S.E.2d 12 (2000).

Validity of entrustment agreements jurisdictional and not subject to waiver. - Parents did not waive their challenge to the validity of entrustment agreements signed by their children's aunt when the termination issue was tried de novo in the circuit court because the question of whether requirements of this section were met, and particularly whether the children were the subjects of a valid entrustment agreement, was jurisdictional in nature; because the exercise of subject matter jurisdiction could not be waived by the parties, the validity of the entrustment agreements was properly before the circuit court even assuming the parents had entered an agreed order in the juvenile and domestic relations court approving the execution of the challenged agreements. Fredericksburg Dep't of Soc. Servs. v. Brown, 33 Va. App. 313, 533 S.E.2d 12 (2000).

Jurisdiction of circuit court coincident with juvenile and domestic relations court. - Because the jurisdiction of the circuit court to hear and decide the issues raised in a petition to terminate parental rights is wholly derivative of that of the juvenile and domestic relations court, its power to adjudicate such a petition is coincident with that of the lower court. Fredericksburg Dep't of Soc. Servs. v. Brown, 33 Va. App. 313, 533 S.E.2d 12 (2000).

Authority to issue interlocutory order. - Trial court properly affirmed juvenile and domestic relations court's order which held the juvenile in contempt for failing to attend school, as § 16.1-241 A. provided the court with authority to issue the interlocutory order. B.P. v. Commonwealth, 38 Va. App. 735, 568 S.E.2d 412, 2002 Va. App. LEXIS 498 (2002).

Probable cause finding divested juvenile court of jurisdiction. - Defendant juvenile, tried as an adult on a charge of malicious wounding and convicted of the lesser included offense of unlawful wounding, could not have the case transferred back to the juvenile court, as once the juvenile court made a probable cause finding, the juvenile court had no further jurisdiction; under subdivision A 6 of § 16.1-241, the jurisdiction of the juvenile court was limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was fourteen years of age or older at the time of the commission of the alleged offense, and any matters related thereto. Hughes v. Commonwealth, 39 Va. App. 448, 573 S.E.2d 324, 2002 Va. App. LEXIS 765 (2002).

Applied in Ward v. Commonwealth, Dep't of Social Servs., 13 Va. App. 144, 408 S.E.2d 921 (1991); Fauquier County Dep't of Social Servs. v. Robinson, 20 Va. App. 142, 455 S.E.2d 734 (1995); Catron v. Morrison, 186 Bankr. 197 (Bankr. E.D. Va. 1995); Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999); Fairfax County Dep't of Family Servs. v. Nordel, 29 Va. App. 400, 512 S.E.2d 830 (1999).

CIRCUIT COURT OPINIONS

"Person with legitimate interest." - Since petitioner was a child's foster parent for the first eighteen months of the child's life, cared for the child continuously during that period, held the same place in the emotional life of the foster child, and fulfilled the same socializing functions as a natural family, she qualified as a "persona with a legitimate interest" and had standing to pursue her petition for custody of the child. Welch v. Wise County Dep't of Soc. Servs., 84 Va. Cir. 245, 2012 Va. Cir. LEXIS 27 (Wise County Jan. 27, 2012).

While petitioner's name did not appear on the foster care agreement that placed a child in petitioner's home and was not the child's foster parent, petitioner was an approved foster care household member, she performed parental duties, and she contributed to the maintenance and well-being of the child; therefore, she qualified as a "persona with a legitimate interest" and had standing to pursue her petition for custody of the child. Welch v. Wise County Dep't of Soc. Servs., 84 Va. Cir. 245, 2012 Va. Cir. LEXIS 27 (Wise County Jan. 27, 2012).

Finding that a child is at risk of being abused or neglected. - Although parents claimed they did not cause their 11-month-old daughter's injuries and did not allow someone else to cause her injuries, a doctor's testimony that the child displayed symptoms of shaken baby syndrome was sufficient for the court to find that the child was abused or neglected, within the meaning of § 16.1-228, and the court found that the child was abused or neglected and that her two-year-old brother was a child at risk of being abused or neglected because of the injuries his sister sustained. In re McBride, 60 Va. Cir. 261, 2002 Va. Cir. LEXIS 391 (Richmond 2002).

Jurisdiction over child in need of services petition. - Juvenile court erred in concluding that it did not have jurisdiction over the petition the city social services agency filed that alleged the minor child was a child in need of services and that continued placement in the home would be contrary to the minor child's welfare; evidence showing that the mother had previously abused the minor child's brother was sufficient to invoke the juvenile court's equitable jurisdiction even though the evidence did not show that the minor child had been abused, as the juvenile court was authorized to prevent the minor child's placement with a known abuser and did not have to wait for the minor child herself to be abused. Norfolk Dep't of Soc. Servs. v. Petermore, 63 Va. Cir. 315, 2003 Va. Cir. LEXIS 351 (Norfolk 2003).

Jurisdiction. - Motion filed by a mother and father to dismiss foster parents' adoption petition was granted because the case did not involve a parental placement within the meaning of §§ 63.2-1230 through 63.2-1240 when the custody order did not mention any placement for the purpose of foster care or adoption, and neither birth parent placed the child with the foster parents for adoption; jurisdiction could not rest on subdivision A 5 of § 16.1-241 because there was no pleading filed to request termination of parental rights, the juvenile court's order did not refer to a termination proceeding, and a separate proceeding was not instituted as required by subsection A of § 16.1-283. In re Terry, 78 Va. Cir. 25, 2008 Va. Cir. LEXIS 272 (Henrico County 2008).

Because a mother nonsuited a petition for child support in the juvenile and domestic relations district court, her current petition for child support was not before the circuit court on an appeal; therefore, the circuit court did not have jurisdiction over the petition in that manner, and the filing of the petition in the circuit court was not an appropriate proceeding because child support was not incidental to the custody trial the circuit court would hear. Name Redacted by the Court, 96 Va. Cir. 393, 2017 Va. Cir. LEXIS 173 (Fairfax County Sept. 20, 2017).

Father's motion to dismiss a mother's petition for child support for lack of subject matter jurisdiction was granted because the juvenile and domestic relations district court was not without jurisdiction to hear the petition, and there was no good cause to bring it before the circuit court; any perceived convenience for the parties did not amount to "good cause," especially when the juvenile and domestic relations district court retained jurisdiction to hear the petition. Name Redacted by the Court, 96 Va. Cir. 393, 2017 Va. Cir. LEXIS 173 (Fairfax County Sept. 20, 2017).

Power of circuit court. - In a case in which a consent decree was entered in the juvenile and domestic relations district court in which a husband was ordered to pay spousal support through November 30, 2008, at which time the spousal support would terminate, and the husband later filed for divorce, the res judicata language of subsection L of § 16.1-241 did not apply to the consent decree entered by the juvenile and domestic relations district court. Since the consent decree was reduced to writing in a court order and signed by or on behalf of the husband and the wife, it constituted a binding stipulation or contract as contemplated by subsection C of § 20-109 , and, since it was filed before the entry of a final decree, the circuit court was prevented from entering a spousal support order contrary to the terms of the parties' agreement. Paul v. Paul, 77 Va. Cir. 124, 2008 Va. Cir. LEXIS 250 (Salem 2008).

OPINIONS OF THE ATTORNEY GENERAL

Juvenile court has jurisdiction over adult charged with driving in reckless manner which places juvenile in danger. - The juvenile court, and not the general district court, has jurisdiction to try a case involving an adult charged with driving in a reckless manner which places the person of a juvenile in danger. See opinion of Attorney General to The Honorable Michael J. Valentine, Judge, Juvenile and Domestic Relations District Court, 01-021 (9/28/01).

Consent for medical treatment of minor by substitute judge. - Without a specific appointment, a substitute judge is not a sitting judge, and therefore should not be called upon by a hospital seeking judicial consent for medical treatment of a minor. See opinion of Attorney General to The Honorable Charles E. Poston, Judge, Fourth Judicial Circuit, 01-112 (2/28/02).

§ 16.1-241.1.

Repealed by Acts 2002, c. 305.

§ 16.1-241.2. Proceedings against certain parents.

  1. Upon the failure of a parent to comply with the provisions of § 22.1-279.3, the school board may, by petition to the juvenile and domestic relations court, proceed against such parent for willful and unreasonable refusal to participate in efforts to improve the student's behavior as follows:
    1. If the court finds that the parent has willfully and unreasonably failed to meet, pursuant to a request of the principal as set forth in subsection D of § 22.1-279.3, to review the school board's standards of student conduct and the parent's responsibility to assist the school in disciplining the student, maintaining order, or ensuring the child's school attendance, and to discuss improvement of the child's behavior, school attendance, or educational progress, it may order the parent to so meet; or
    2. If the court finds that the parent has willfully and unreasonably failed to accompany a suspended student to meet with school officials pursuant to subsection F of § 22.1-279.3, or upon the student receiving a second suspension or being expelled, it may order (i) the student or his parent to participate in such programs or such treatment as the court deems appropriate to improve the student's behavior, including, but not limited to, extended day programs and summer school or other education programs and counseling, or (ii) the student or his parent to be subject to such conditions and limitations as the court deems appropriate for the supervision, care, and rehabilitation of the student or his parent; in addition, the court may order the parent to pay a civil penalty not to exceed $500.

      The court may use its contempt power to enforce any order entered under this section.

  2. The civil penalties established pursuant to this section shall be enforceable in the juvenile and domestic relations court or its successor in interest in which the student's school is located and shall be paid into a fund maintained by the appropriate local governing body to support programs or treatments designed to improve the behavior and school attendance of students as described in subdivision 2 of subsection G of § 22.1-279.3. Upon the failure to pay any civil penalties imposed by this section and § 22.1-279.3, the attorney for the appropriate county, city, or town shall enforce the collection of such civil penalties.
  3. For the purposes of this section and § 22.1-279.3, "parent" or "parents" means any parent, guardian, legal custodian, or other person having control or charge of a child.

    (1994, c. 813; 1995, c. 852; 1996, c. 771; 2004, c. 573.)

The 2004 amendments. - The 2004 amendment by c. 573, in subdivision A 1, deleted "and" preceding "maintaining order," inserted "or ensuring the child's school attendance," and substituted "school attendance" for "and"; inserted "the language "including, but not limited to ... and counseling" in clause (i) of subdivision A 2; substituted "may" for "shall not" in the last paragraph of subsection A; and inserted "and school attendance" in the first sentence of subsection B.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

§ 16.1-241.3. Newborn children; substance abuse.

Upon the filing of a petition alleging that an investigation has been commenced in response to a report of suspected abuse or neglect of the child based upon a factor specified in subsection B of § 63.2-1509 , the court may enter any order authorized pursuant to this chapter which the court deems necessary to protect the health and welfare of the child pending final disposition of the investigation pursuant to Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 or other proceedings brought pursuant to this chapter. Such orders may include, but shall not be limited to, an emergency removal order pursuant to § 16.1-251, a preliminary protective order pursuant to § 16.1-253 or an order authorized pursuant to subdivisions A 1 through 4 of § 16.1-278.2. The fact that an order was entered pursuant to this section shall not be admissible as evidence in any criminal, civil or administrative proceeding other than a proceeding to enforce the order.

The order shall be effective for a limited duration not to exceed the period of time necessary to conclude the investigation and any proceedings initiated pursuant to Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2, but shall be a final order subject to appeal.

(1998, cc. 704, 716; 2002, c. 860; 2012, cc. 504, 640.)

Cross references. - As to filing of a petition pursuant to § 16.1-241.3 by a local social services department upon a report or complaint based upon one of the factors in § 63.2-1509 B, see § 63.2-1505 B 1 and § 63.2-1506 B 1.

Editor's note. - Acts 1998, c. 716, cl. 2 provides: "That on or before October 1, 1999, and each year thereafter for the following two years, the Department of Social Services shall report to the General Assembly on the implementation of this act. The report shall include data compiled in conjunction with the State Board of Medicine, the Department of Health, the Department of Mental Health, Mental Retardation and Substance Abuse Services [now the Department of Behavioral Health and Development Services] and the Office of the Executive Secretary of the Supreme Court, on the numbers of mothers and infants affected, the number of reports made pursuant to subsection A 1 of [former] § 63.1-248.3 [see now § 63.2-1509 ] and investigations resulting therefrom, the outcome of those investigations, the number of petitions filed with the juvenile courts pursuant to § 16.1-241.3 and the disposition on those petitions, the types of treatments and other services provided and such other information as representatives of those departments having expertise in perinatal addiction or abuse and neglect cases deem appropriate to a thorough evaluation of this act. For purposes of preparing this report, the departments and offices shall establish procedures which are necessary and appropriate to track cases involving suspected addiction of newborn infants during the period to be covered by the report."

The 2002 amendments. - The 2002 amendment by c. 860 substituted "subsection B" for "subsection A 1" in the first sentence of the first paragraph.

The 2012 amendments. - The 2012 amendments by cc. 504 and 640 are identical, and in the first paragraph, deleted "within twenty-one days of a child's birth" following "filing of a petition" in the first sentence and substituted "subdivisions A 1 through 4 of § 16.1-278.2" for "subdivisions 1 through 4 of subsection A of § 16.1-278.2" at the end of the next-to-last sentence.

§ 16.1-242. Retention of jurisdiction.

When jurisdiction has been obtained by the court in the case of any child, such jurisdiction, which includes the authority to suspend, reduce, modify, or dismiss the disposition of any juvenile adjudication, may be retained by the court until such person becomes 21 years of age, except when the person is in the custody of the Department or when jurisdiction is divested under the provisions of § 16.1-244. In any event, when such person reaches the age of 21 and a prosecution has not been commenced against him, he shall be proceeded against as an adult, even if he was a juvenile when the offense was committed.

(Code 1950, § 16.1-159; 1956, c. 555; 1977, c. 559; 1978, c. 740; 1992, c. 509; 2018, c. 656.)

Cross references. - As to the Court-Appointed Special Advocate Program, see § 9.1-151 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2018, c. 656, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2018 amendments. - The 2018 amendment by c. 656 inserted "which includes the authority to suspend, reduce, modify, or dismiss the disposition of any juvenile adjudication" in the first sentence and made minor stylistic changes.

Law review. - For discussion of retrial of infant as adult, see 4 U. Rich. L. Rev. 142 (1969). For comment, "The Uniform Child Custody Jurisdiction Act in Virginia," see 14 U. Rich. L. Rev. 435 (1979).

For article, "Legal Issues Involving Children," see 26 U. Rich. L. Rev. 797 (1992).

CASE NOTES

Prosecution as adult after loss of jurisdiction. - A defendant who is charged with the commission of a crime when a juvenile and is not validly tried therefor before he reaches 21 years of age, is no longer within the jurisdiction of the juvenile court but may be proceeded against as an adult. Pruitt v. Guerry, 210 Va. 268 , 170 S.E.2d 1 (1969).

Statutes governing insanity defense not applicable in juvenile proceedings. - If the statutory scheme governing the disposition of persons acquitted by reason of insanity were available to a juvenile, that scheme's indeterminate period of commitment for inpatient hospitalization could run afoul of the limited duration of the juvenile and domestic relations district courts' jurisdiction pursuant to this section; therefore, the statutory provisions relating to the insanity defense are inapplicable in juvenile proceedings. Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304, 2000 Va. LEXIS 131 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Probation revocation proceedings. - A juvenile court retains jurisdiction over a probationer although he has reached the age of twenty-one prior to a probation revocation proceeding. See opinion of Attorney General to Honorable Harvey L. Bryant, Commonwealth's Attorney for the City of Virginia Beach, 05-037, 2005 Va. AG LEXIS 26 (6/20/05).

§ 16.1-242.1. Retention of jurisdiction; appeals involving children in foster care.

Upon appeal to the circuit court of any case involving a child placed in foster care and in any appeal to the Court of Appeals or Supreme Court of Virginia, the juvenile court shall retain jurisdiction to continue to hear petitions filed pursuant to §§ 16.1-282 and 16.1-282.1. Orders of the juvenile court in such cases shall continue to be reviewed and enforced by the juvenile court until the circuit court, Court of Appeals or Supreme Court rules otherwise.

(1998, c. 550.)

CASE NOTES

Permanency planning. - Pursuant to the second sentence of the statute, the permanency planning orders continued to be reviewed and enforced by the juvenile and domestic relations district court until the trial court or appellate court ruled on the appeal of the orders because nothing in the statute indicates that the filing of a notice of appeal to the trial court for a permanency planning order renders that order void. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

§ 16.1-243. Venue.

  1. Original venue:
    1. Cases involving children, other than support or where protective order issued: Proceedings with respect to children under this law, except support proceedings as provided in subdivision 2 or family abuse proceedings as provided in subdivision 3, shall:
      1. Delinquency: If delinquency is alleged, be commenced in the city or county where the acts constituting the alleged delinquency occurred or they may, with the written consent of the child and the attorney for the Commonwealth for both jurisdictions, be commenced in the city or county where the child resides;
      2. Custody or visitation: In cases involving custody or visitation, be commenced in the court of the city or county which, in order of priority, (i) is the home of the child at the time of the filing of the petition, or had been the home of the child within six months before the filing of the petition and the child is absent from the city or county because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in the city or county; (ii) has significant connection with the child and in which there is substantial evidence concerning the child's present or future care, protection, training and personal relationships; (iii) is where the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (iv) it is in the best interest of the child for the court to assume jurisdiction as no other city or county is an appropriate venue under the preceding provisions of this subdivision;
      3. Adoption: In parental placement adoption consent hearings pursuant to §§ 16.1-241, 63.2-1233 , and 63.2-1237 , be commenced in any city or county, provided, however, that diligent efforts shall first be made to commence such hearings (i) in the city or county where the child to be adopted was born, (ii) in the city or county where the birth parent(s) reside, or (iii) in the city or county where the prospective adoptive parent(s) reside. In cases in which a hearing is commenced in a city or county other than one described in clause (i), (ii), or (iii), the petitioner shall certify in writing to the court that diligent efforts to commence a hearing in such city or county have been made but have proven ineffective;
      4. Abuse and neglect: In cases involving an allegedly abused or neglected child, be commenced (i) in the city or county where the child resides, (ii) in the city or county where the child is present when the proceedings are commenced, or (iii) in the city or county where the alleged abuse or neglect occurred; and
      5. All other cases: In all other proceedings, be commenced in the city or county where the child resides or in the city or county where the child is present when the proceedings are commenced.
    2. Support: Proceedings that involve child or spousal support or child and spousal support, exclusive of proceedings arising under Chapter 5 (§ 20-61 et seq.) of Title 20, shall be commenced in the city or county where either party resides or in the city or county where the respondent is present when the proceeding commences.
    3. Family abuse: Proceedings in which an order of protection is sought as a result of family abuse shall be commenced where (i) either party has his or her principal residence (ii) the abuse occurred or (iii) a protective order was issued if at the time the proceeding is commenced the order is in effect to protect the petitioner or a family or household member of the petitioner.
  2. Transfer of venue:
    1. Generally: Except in custody, visitation and support cases, if the child resides in a city or county of the Commonwealth and the proceeding is commenced in a court of another city or county, that court may at any time, on its own motion or a motion of a party for good cause shown, transfer the proceeding to the city or county of the child's residence for such further action or proceedings as the court receiving the transfer may deem proper. However, such transfer may occur in delinquency proceedings only after adjudication, which shall include, for the purposes of this section, a finding of facts sufficient to justify a finding of delinquency.
    2. Custody and visitation: In custody and visitation cases, if venue lies in one of several cities or counties, the court in which the motion for transfer is made shall determine which such city or county is the most appropriate venue unless the parties mutually agree to the selection of venue. In the consideration of the motion, the best interests of the child shall determine the most appropriate forum.
    3. Support: In support proceedings, exclusive of proceedings arising under Chapter 5 (§ 20-61 et seq.) of Title 20, if the respondent resides in a city or county in the Commonwealth and the proceeding is commenced in a court of another city or county, that court may, at any time on its own motion or a motion of a party for good cause shown or by agreement of the parties, transfer the proceeding to the city or county of the respondent's residence for such further action or proceedings as the court receiving the transfer may deem proper. For the purposes of determining venue of cases involving support, the respondent's residence shall include any city or county in which the respondent has resided within the last six months prior to the commencement of the proceeding or in which the respondent is residing at the time that the motion for transfer of venue is made. If venue is transferable to one of several cities or counties, the court in which the motion for transfer is made shall determine which such city or county is the most appropriate venue unless the parties mutually agree to the selection of such venue. When the support proceeding is a companion case to a child custody or visitation proceeding, the provisions governing venue in the proceeding involving the child's custody or visitation shall govern.
    4. Subsequent transfers: Any court receiving a transferred proceeding as provided in this section may in its discretion transfer such proceeding to a court in an appropriate venue for good cause shown based either upon changes in circumstances or mistakes of fact or upon agreement of the parties. In any transfer of venue in cases involving children, the best interests of the child shall be considered in deciding if and to which court a transfer of venue would be appropriate.
    5. Enforcement of orders for support, maintenance and custody: Any juvenile and domestic relations district court to which a suit is transferred for enforcement of orders pertaining to support, maintenance, care or custody pursuant to § 20-79 (c) may transfer the case as provided in this section.
  3. Records: Originals of all legal and social records pertaining to the case shall accompany the transfer of venue. Records imaged from the original documents shall be considered original documents for purposes of the transfer of venue. The transferor court may, in its discretion, retain copies as it deems appropriate.

    (Code 1950, § 16.1-160; 1956, c. 555; 1977, c. 559; 1985, c. 367; 1987, cc. 598, 608, 620; 1989, c. 545; 1995, cc. 772, 826; 1996, c. 866; 2000, c. 830; 2010, cc. 717, 760; 2012, c. 424; 2018, c. 17; 2019, cc. 126, 235.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2000 amendments. - The 2000 amendment by c. 830 substituted "63.1-219.40 and 63.1-219.44" for "and 63.1-220.3" in subdivision A 1 c.

The 2010 amendments. - The 2010 amendments by cc. 717 and 760 are identical, and in subsection C, inserted the second sentence and deleted "such" preceding "copies" in the last sentence.

The 2012 amendments. - The 2012 amendment by c. 424 rewrote subdivision A 1 c, which formerly read "Adoption: In parental placement adoption consent hearings pursuant to §§ 16.1-241, 63.2-1233 and 63.2-1237 , be commenced (i) in the city or county where the child to be adopted was born, (ii) in the city or county where the birth parent(s) reside, or (iii) in the city or county where the prospective adoptive parent(s) reside" and made minor stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 17, in subdivision A 1 c, in the second sentence, substituted "clause (i), (ii), or (iii)" for "clauses (i) through (iii)"; inserted subdivision A 1 d and redesignated former subdivision A 1 d as A 1 e; and made stylistic changes.

The 2019 amendments. - The 2019 amendments by cc. 126 and 235 are identical, and substituted "may occur in delinquency proceedings only after adjudication, which shall include, for the purposes of this section, a finding of facts sufficient to justify a finding of delinquency" for "may occur only after adjudication in delinquency proceedings" in subdivision B 1.

Law review. - For 1987 survey of Virginia law as to children, see 21 U. Rich. L. Rev. 789 (1987).

For survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

CASE NOTES

Propriety of action where child was removed pursuant to emergency removal ordered by court lacking jurisdiction. - Trial court did not err when it denied a mother's motion to dismiss the Virginia Beach Department of Social Services' action to terminate the mother's parental rights pursuant to § 16.1-283 based upon a petition filed in Norfolk because, even if a Virginia Beach juvenile and domestic relations court lacked jurisdiction to issue an emergency removal order pursuant to which the child was removed from the mother, the mother lost her parental rights through a petition that originated out of Norfolk, which was the proper venue under this section and had jurisdiction under § 16.1-241. Paris v. City of Va. Beach Dep't of Soc. Servs., No. 2009-04-1, 2005 Va. App. LEXIS 30 (Ct. of Appeals Jan. 25, 2005).

Motion to change venue properly denied. - Father's motion to change venue was properly denied because (1) the father's claim that a change was in a child's best interest relied on the lowest priority statutory factor, (2) the children's only connection to another jurisdiction was the father's move to another county while the case was pending, (3) the fact that the mother's relative worked in the court showed no influence on the case, and (4) the father did not show the presiding judge's recusal and appointment of a substitute judge caused procedural hardships. Bistel v. Bistel, No. 1126-16-3, 2017 Va. App. LEXIS 96 (Apr. 4, 2017).

Transfer statutorily authorized. - Juvenile and domestic relations court properly exercised jurisdiction over a father's motions to amend custody in cases transferred to the court because (1) the transferring court had statutory jurisdiction, (2) no appeal was pending at the time of transfer, (3) the transfer was statutorily authorized, and (4) any error not raised in the trial court was waived. Barrett v. Minor, No. 1250-16-3, 2018 Va. App. LEXIS 284 (Oct. 23, 2018), appeal dismissed, mot. denied, sanctions allowed, 843 S.E.2d 749, 2020 Va. LEXIS 63 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Proper venue for a juvenile detention hearing is the place where the proceeding has been commenced. See opinion of Attorney General to The Honorable Michael W. Lee, Commonwealth's Attorney for City of Colonial Heights, 05-002 (3/29/05).

§ 16.1-244. Concurrent jurisdiction; exceptions.

  1. Nothing contained in this law shall deprive any other court of the concurrent jurisdiction to determine the custody of children upon a writ of habeas corpus under the law, or to determine the custody, guardianship, visitation or support of children when such custody, guardianship, visitation or support is incidental to the determination of causes pending in such courts, nor deprive a circuit court of jurisdiction to determine spousal support in a suit for separate maintenance. However, when a suit for divorce has been filed in a circuit court, in which the custody, guardianship, visitation or support of children of the parties or spousal support is raised by the pleadings and a hearing, including a pendente lite hearing, is set by the circuit court on any such issue for a date certain or on a motions docket to be heard within 21 days of the filing, the juvenile and domestic relations district courts shall be divested of the right to enter any further decrees or orders to determine custody, guardianship, visitation or support when raised for such hearing and such matters shall be determined by the circuit court unless both parties agreed to a referral to the juvenile court. Nothing in this section shall deprive a circuit court of the authority to refer any such case to a commissioner for a hearing or shall deprive the juvenile and domestic relations district courts of the jurisdiction to enforce its valid orders prior to the entry of a conflicting order of any circuit court for any period during which the order was in effect or to temporarily place a child in the custody of any person when that child has been adjudicated abused, neglected, in need of services or delinquent subsequent to the order of any circuit court.
  2. Jurisdiction of cases involving violations of federal law by a child shall be concurrent and shall be assumed only if waived by the federal court or the United States attorney.

    (Code 1950, § 16.1-161; 1956, c. 555; 1977, c. 559; 1978, c. 740; 1984, cc. 657, 669; 1985, c. 183; 1987, c. 36; 1989, c. 509; 1990, c. 600; 2000, c. 781; 2003, c. 129.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2000 amendments. - The 2000 amendment by c. 781, in subsection A, inserted "to determine custody, guardianship, visitation or support when raised for such hearing and" near the end of the second sentence and deleted the former third sentence, which read: "Upon a showing of need to continue any preliminary protective order issued by the juvenile and domestic relations district court, the circuit court shall grant a hearing to the parties as a preferential matter on the court docket."

The 2003 amendments. - The 2003 amendment by c. 129, in the second sentence, inserted "including a pendente lite hearing" following "hearing," inserted "or on a motions docket" following "certain," and substituted "21" for "twenty-one."

Law review. - For survey of Virginia law on domestic relations for the year 1969-1970, see 56 Va. L. Rev. 1411 (1970). For comment, "The Uniform Child Custody Jurisdiction Act in Virginia," see 14 U. Rich. L. Rev. 435 (1979).

For survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

Michie's Jurisprudence. - For related discussion, see 6A M.J. Divorce and Alimony, § 69; 9A M.J. Habeas Corpus, § 16.

CASE NOTES

Generally, under statutory scheme, juvenile courts have exclusive original jurisdiction in custody cases unless and until circuit courts assume jurisdiction. The circuit courts may assume jurisdiction either by an appeal from the juvenile courts or by the direct filing of an appropriate proceeding in the circuit courts. The procedural standard to be applied in the circuit courts is dictated by the manner in which those courts assume jurisdiction. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

Waiver of jurisdiction. - Nothing in either § 16.1-241 or this section permits the juvenile court to "waive" its jurisdiction and allow a party to bring an original action in the circuit court without meeting the statutory requirements. Willis v. Gamez, 20 Va. App. 75, 455 S.E.2d 274 (1995).

Mere filing of divorce suit by husband prior to participating in subsequent juvenile court proceeding did not sufficiently "challenge" juvenile court order to relieve him of meeting the extra burden of proof imposed by the "change in circumstances test." Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

Courts of equity not divested of all power to determine custody of children. - It is evident, as indicated by the language of this section, that it was not the purpose of the legislature to divest courts of equity of all power to determine the custody of children. Under this section a court of record has concurrent jurisdiction to determine the custody of children: (1) upon a writ of habeas corpus; and (2) in a suit in equity when custody is incidental to the determination of the cause. Poole v. Poole, 210 Va. 442 , 171 S.E.2d 685 (1970).

Jurisdiction of circuit court over custody petition. - Although a circuit court had acquired jurisdiction solely by virtue of an appealed visitation petition, custody was incidental to visitation under the circumstances and the circuit court had subject matter jurisdiction to transfer custody. Cintron v. Long, No. 2169-99-2, 2000 Va. App. LEXIS 487 (Ct. of Appeals July 5, 2000).

Authority of circuit court to reinstate case on docket. - Circuit court had authority to reinstate the case on its docket and to entertain the parties' motions to enforce visitation rights and to modify child support after having transferred "all matters . . . pertaining to child support, visitation rights [and] custody of the minor children" to the juvenile and domestic relations district court pursuant to § 20-79(c) . Although a final divorce decree had been entered, when the case was reinstated on the docket of the circuit court, the case was "pending" for consideration of those matters over which the circuit court had continuing jurisdiction. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883 (1993).

A "transfer" of "any other matters pertaining to support and maintenance . . . and custody" to the juvenile and domestic relations district court pursuant to § 20-79(c) conveys concurrent jurisdiction on the juvenile and domestic relations district court to hear those matters, but the transfer does not divest the circuit court of its continuing jurisdiction to consider those issues, should it exercise its discretion to do so. Accordingly, the circuit court had the authority to reinstate the case on its docket and to consider the motions to modify child support and visitation. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883 (1993).

Distinction between appeal and divestiture of jurisdiction. - Under the statutory scheme this distinction between an appeal under § 16.1-136 and a divestiture of further jurisdiction in the juvenile court by operation of subsection A is intentional and consistent with and conducive to the best interests of children who are the subjects of custody disputes between their natural parents, the protection of parental rights, and, less significantly, with the notion of judicial economy. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

In an appeal to the circuit court, the "advantage" granted to the noncustodial parent is simply the avoidance of the additional burden of proof imposed by the change in circumstance test; in the de novo appeal, the issue is simply what is in the best interests of the child. Accordingly, the procedural distinction between an appeal under § 16.1-136 and a divestiture of further jurisdiction in the juvenile court by operation of this section is significant and perhaps controlling in most cases. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

The procedural distinction between an appeal under § 16.1-136 and a divestiture of further jurisdiction in the juvenile court by operation of this section relating to divorce proceedings is significant. An order adjudicating an appeal from the juvenile court to the circuit court is not entitled to the procedural convenience of transfer provided by § 20-79 . Rather, such order, together with related issues embraced by the appeal, rests within the exclusive jurisdiction of the circuit court pending disposition by that court. Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999).

Divestiture of jurisdiction in juvenile court simply provides for orderly transfer of concurrent jurisdiction to the sole jurisdiction of the superior circuit court. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

Unlike an appeal, divestiture provisions of subsection A do not annul judgment of juvenile court as if no previous hearing occurred. Rather the judgment of the juvenile court remains in full force and effect until modified by the circuit court to which jurisdiction has been transferred. In modifying the prior order, the procedural standard to be applied is the "change in circumstances" test which affords the benefit of stability to the child. It further ensures an orderly administration of the judicial process in both levels of courts with concurrent jurisdiction in these cases in which natural parents regrettably too often find themselves. Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (1988).

Hearing not scheduled as required; divestiture not successful. - Although husband fully utilized the concurrent jurisdiction initially available to him in both the trial and juvenile and domestic courts, simultaneously filing a bill of complaint for divorce in the trial court seeking, inter alia, child custody and support, and a petition pursuing identical relief in the juvenile and domestic court, the record did not reveal that a hearing on the matters of custody or support was thereafter scheduled in the trial court for a date certain to be heard within 21 days of filing, as required by subsection A. Thus, the institution of the divorce proceedings, together with the related prayers, did not divest the juvenile and domestic court from shared jurisdiction. Rose v. Bartlett, No. 2776-99-3, 2000 Va. App. LEXIS 438 (Ct. of Appeals June 13, 2000).

Jurisdiction over adoption petition. - Adoptive parents' failure to timely appeal the juvenile court's visitation order was of no legal consequence because there was no need for them to file a separate pleading to seek the termination of biological grandparents' visitation when entry of the order of adoption divested the grandparents of any right to visitation; the petition for adoption necessarily implied a question of the grandparents' ongoing visitation, and the circuit court had jurisdiction to entertain the petition. Harvey v. Flockhart, 65 Va. App. 131, 775 S.E.2d 427 (2015).

Jurisdiction as to custody and support of children of parties to divorce suit. - Section 20-108 and other related sections give courts of equity ample authority to deal with matters of custody and support of children if one or both of the parties to the divorce suit should die. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417 (1952); Judd. v. Van Horn, 195 Va. 988 , 81 S.E.2d 432 (1954).

Writ of prohibition against juvenile and domestic relations court held properly denied. - Court properly denied petition for writ of prohibition sought by father to prevent further action by the juvenile and domestic relations district court on the ground that it lacked subject matter jurisdiction by virtue of the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act. The juvenile and domestic relations district courts of Virginia have general jurisdiction over all proceedings involving the custody, visitation, support, control or disposition of a child, except as otherwise provided in this section. In re Johnston, 3 Va. App. 492, 350 S.E.2d 681 (1986).

Limited jurisdiction of district court after filing for divorce where spousal support in issue. - When a suit for divorce has been filed and spousal support is at issue, the district court is divested of jurisdiction to enter any further decrees or order relating to support except to enforce its orders entered prior to an order of the circuit court. Martin v. Bales, 7 Va. App. 141, 371 S.E.2d 823 (1988).

Applied in Fauquier County Dep't of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811, 2011 Va. App. LEXIS 381 (2011).

CIRCUIT COURT OPINIONS

Effect of 21-day rule. - The 21-day rule of § 16.1-244 divests the juvenile and domestic relations court of jurisdiction even though the circuit court has entered no orders on the issue involved as long as a hearing is set within 21 days of the filing of the divorce case. Forand v. Mutchler, 59 Va. Cir. 68, 2002 Va. Cir. LEXIS 109 (Loudoun County 2002).

No exception for concurrent jurisdiction present. - Juvenile and domestic relations (J&DR) court was without authority to enter a protective order as between two divorcing parties because a circuit court had previously acquired jurisdiction and entered an order addressing support, custody, and visitation and none of the exceptions allowing an exercise of concurrent jurisdiction by the J&DR court applied. Wyrick v. Wyrick, 61 Va. Cir. 74, 2003 Va. Cir. LEXIS 9 (Roanoke County 2003).

Circuit court's child support award retroactive to juvenile court's petition. - Based upon the jurisdictional provisions of § 16.1-244, which indicated that upon a wife's filing of a divorce action, which included a request for child support, the juvenile and domestic relations district court no longer had authority over a previously filed child support petition, the circuit court awarded child support retroactively to the date of the commencement of the initial request for support in the domestic relations court, which was in compliance with the dictates of subsection B of § 20-108.1 . Nagpaul v. Nagpaul,, 2003 Va. Cir. LEXIS 178 (Fairfax County Aug. 7, 2003).

Jurisdiction not divested. - This section did not preclude the juvenile court from enforcing a support order because the circuit court orders relied on by the mother did not include any support provision that applied during the time period covered by the juvenile court support order, rather they dealt with custody. Federico v. DCSE, 70 Va. Cir. 260, 2006 Va. Cir. LEXIS 23 (Madison County 2006).

Lack of subject matter jurisdiction. - Because a mother nonsuited a petition for child support in the juvenile and domestic relations district court, her current petition for child support was not before the circuit court on an appeal; therefore, the circuit court did not have jurisdiction over the petition in that manner, and the filing of the petition in the circuit court was not an appropriate proceeding because child support was not incidental to the custody trial the circuit court would hear. Name Redacted by the Court, 96 Va. Cir. 393, 2017 Va. Cir. LEXIS 173 (Fairfax County Sept. 20, 2017).

§ 16.1-245. Transfer from other courts.

If, during the pendency of a proceeding in any other court, it is ascertained for the first time that exclusive jurisdiction lies within the juvenile and domestic relations district court, such court shall forthwith transfer the case, together with all papers, documents and evidence connected therewith, to the juvenile and domestic relations district court of the city or county having jurisdiction. The court making the transfer shall determine who is to have custody of the child pending action by the juvenile and domestic relations district court pursuant to § 16.1-247. If, during the pendency of a proceeding in the juvenile and domestic relations district court, it is ascertained for the first time that exclusive jurisdiction lies in the general district or circuit court, the juvenile and domestic relations district court shall likewise transfer the case to the appropriate court.

(Code 1950, § 16.1-175; 1956, c. 555; 1977, c. 559; 1992, c. 496.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Law review. - For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 8; 9B M.J. Infants and Juveniles, §§ 13, 84.

CIRCUIT COURT OPINIONS

Transferee court lacked subject matter jurisdiction. - Circuit Court for the City of Norfolk did not have subject matter jurisdiction to consider the parties' motions to amend a husband's child and spousal support obligations upon a transfer from the Norfolk Juvenile and Domestic Relations District Court since: (1) the circuit court did not have concurrent jurisdiction to amend the support orders; (2) § 16.1-245 allowed the district court to transfer a case to the circuit court if the circuit court had exclusive jurisdiction, but the circuit court did not have exclusive jurisdiction; (3) the circuit court only had appellate jurisdiction over a Juvenile and Domestic Relations District Court order under subsections A and J of § 16.1-296; (4) there was no authority to transfer a case from a lower court to a circuit court pendente lite; and (5) the Virginia Constitution and the statutes enacted pursuant to it were the sources of the circuit court's subject matter jurisdiction. Cunningham v. Cunningham, 86 Va. Cir. 202, 2013 Va. Cir. LEXIS 10 (Norfolk Jan. 24, 2013).

§ 16.1-245.1. Medical evidence admissible in juvenile and domestic relations district court.

In any civil case heard in a juvenile and domestic relations district court involving allegations of child abuse or neglect or family abuse, any party may present evidence, by a report from the treating or examining health care provider as defined in § 8.01-581.1 or the records of a hospital, medical facility or laboratory at which the treatment, examination or laboratory analysis was performed, or both, as to the extent, nature, and treatment of any physical condition or injury suffered by a person and the examination of the person or the result of the laboratory analysis.

A medical report shall be admitted if the party intending to present such evidence at trial or hearing gives the opposing party or parties a copy of the evidence and written notice of intention to present it at least 10 days, or in the case of a preliminary removal hearing under § 16.1-252 or in preliminary protective order hearings under § 16.1-253 or 16.1-253.1 at least 24 hours, prior to the trial or hearing and if attached to such evidence is a sworn statement of the treating or examining health care provider or laboratory analyst who made the report that (i) the information contained therein is true, accurate, and fully describes the nature and extent of the physical condition or injury and (ii) the patient named therein was the person treated or examined by such health care provider; or, in the case of a laboratory analysis, that the information contained therein is true and accurate.

A hospital or other medical facility record shall be admitted if attached to it is a sworn statement of the custodian thereof that the same is a true and accurate copy of the record of such hospital or other medical facility. If thereafter a party summons the health care provider or custodian making such statement to testify in proper person or by deposition taken de bene esse, the court shall determine which party shall pay the fees and costs for such appearance or depositions, or may apportion the same among the parties in such proportion as the ends of justice may require. If such health care provider or custodian is not subject to subpoena for cross-examination in court or by a deposition de bene esse, then the court shall allow a reasonable opportunity for the party seeking the subpoena for such health care provider or custodian to obtain his testimony as the ends of justice may require.

(1990, c. 560; 1996, c. 866; 2000, c. 163; 2019, c. 716.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2000 amendments. - The 2000 amendment by c. 163, in the first paragraph, deleted "or" following "records of a hospital" and following "at which treatment," inserted "or laboratory" following "medical facility," inserted "or laboratory analysis" preceding "was performed," and added "or the result of the laboratory analysis"; and in the second paragraph, inserted "or laboratory analyst" following "health care provider" and added "or, in the case of a laboratory analysis, that the information contained therein is true and accurate."

The 2019 amendments. - The 2019 amendment by c. 716, in the second paragraph, inserted "in preliminary protective order hearings under § 16.1-253 or" and made stylistic changes.

CASE NOTES

Introduction into evidence of psychological evaluation. - In a proceeding to terminate parental rights, the court properly allowed the introduction into evidence of the mother's psychological evaluation as the report was previously made a part of the file in the juvenile court and the juvenile court documents were admitted in evidence. Padilla v. Norfolk Division of Social Services, No. 1388-98-1, 1999 Va. App. LEXIS 48 (Jan. 26, 1999).

Admission of medical records harmless error. - Assuming the circuit court erred in admitting a child's medical records, the error was harmless because the county department of family services presented sufficient evidence to terminate the mother's parental rights without the admission of the medical records; the trial court found that the mother had limitations that affected her ability to adequately care for the child and his siblings and she was unwilling to accept assistance. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

Article 4. Immediate Custody, Arrest, Detention and Shelter Care.

§ 16.1-246. When and how child may be taken into immediate custody.

No child may be taken into immediate custody except:

  1. With a detention order issued by the judge, the intake officer or the clerk, when authorized by the judge, of the juvenile and domestic relations district court in accordance with the provisions of this law or with a warrant issued by a magistrate; or
  2. When a child is alleged to be in need of services or supervision and (i) there is a clear and substantial danger to the child's life or health or (ii) the assumption of custody is necessary to ensure the child's appearance before the court; or
  3. When, in the presence of the officer who makes the arrest, a child has committed an act designated a crime under the law of this Commonwealth, or an ordinance of any city, county, town or service district, or under federal law and the officer believes that such is necessary for the protection of the public interest; or C1. When a child has committed a misdemeanor offense involving (i) shoplifting in violation of § 18.2-103 , (ii) assault and battery or (iii) carrying a weapon on school property in violation of § 18.2-308.1 and, although the offense was not committed in the presence of the officer who makes the arrest, the arrest is based on probable cause on reasonable complaint of a person who observed the alleged offense; or
  4. When there is probable cause to believe that a child has committed an offense which if committed by an adult would be a felony; or
  5. When a law-enforcement officer has probable cause to believe that a person committed to the Department of Juvenile Justice as a child has run away or that a child has escaped from a jail or detention home; or
  6. When a law-enforcement officer has probable cause to believe a child has run away from a residential, child-caring facility or home in which he had been placed by the court, the local department of social services or a licensed child welfare agency; or
  7. When a law-enforcement officer has probable cause to believe that a child (i) has run away from home or (ii) is without adult supervision at such hours of the night and under such circumstances that the law-enforcement officer reasonably concludes that there is a clear and substantial danger to the child's welfare; or
  8. When a child is believed to be in need of inpatient treatment for mental illness as provided in § 16.1-340.

    (Code 1950, § 16.1-194; 1956, c. 555; 1958, c. 344; 1974, cc. 585, 671; 1977, c. 559; 1978, cc. 643, 740; 1979, c. 701; 1981, c. 487; 1982, c. 683; 1985, c. 540; 1990, cc. 635, 642, 743, 744, 975; 2002, c. 747.)

Cross references. - As to bail for juveniles taken into custody pursuant to this section, see § 19.2-119 et seq.

As to recognizances for juveniles taken into custody pursuant to this section, see § 19.2-135 et seq.

As to local boards of social services accepting temporary custody of persons under 18 years of age taken into custody pursuant to § 16.1-246 B or § 63.2-1517 , see § 63.2-900 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, deleted "public welfare or" preceding "social services" in subsection F.

Law review. - For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975). For survey of Virginia criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978). For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979). For comment, "The Uniform Child Custody Jurisdiction Act in Virginia," see 14 U. Rich. L. Rev. 435 (1979). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 5-154. Shelter Care Order, et seq.

Michie's Jurisprudence. - For related discussion, see 19 M.J. Warrants, § 2.

CASE NOTES

Failure to conform strictly with this section and the sections following pertaining to arrest and detention did not deprive the Commonwealth of the right to prosecute where no constitutional violations were involved. Durrette v. Commonwealth, 201 Va. 735 , 113 S.E.2d 842 (1960).

It is not an unconstitutional denial of equal protection for children taken into protective custody under former § 63.1-248.9 [see now § 63.2-1517 ] in order to protect them from imminent harm to be afforded different procedural protections than children taken into custody under this section on suspicion of criminal or other misconduct. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994).

OPINIONS OF THE ATTORNEY GENERAL

Out-of-state runaway children can be detained within Commonwealth. - Amendment to statute was not necessary to authorize law-enforcement officers of the Commonwealth to detain nonresident runaway children as subsection G already authorized law-enforcement officers to take into custody out-of-state runaway children who were within the Commonwealth. See opinion of Attorney General to The Honorable William C. Mims, Member, Senate of Virginia, 00-096 (11/29/00).

§ 16.1-247. Duties of person taking child into custody.

  1. A person taking a child into custody pursuant to the provisions of subsection A of § 16.1-246, during such hours as the court is open, shall, with all practicable speed, and in accordance with the provisions of this law and the orders of court pursuant thereto, bring the child to the judge or intake officer of the court and the judge, intake officer or arresting officer shall, in the most expeditious manner practicable, give notice of the action taken, together with a statement of the reasons for taking the child into custody, orally or in writing to the child's parent, guardian, legal custodian or other person standing in loco parentis.
  2. A person taking a child into custody pursuant to the provisions of subsection B, C, or D of § 16.1-246, during such hours as the court is open, shall, with all practicable speed, and in accordance with the provisions of this law and the orders of court pursuant thereto:
    1. Release the child to such child's parents, guardian, custodian or other suitable person able and willing to provide supervision and care for such child and issue oral counsel and warning as may be appropriate; or
    2. Release the child to such child's parents, guardian, legal custodian or other person standing in loco parentis upon their promise to bring the child before the court when requested; or
    3. If not released, bring the child to the judge or intake officer of the court and, in the most expeditious manner practicable, give notice of the action taken, together with a statement of the reasons for taking the child into custody, in writing to the judge or intake officer, and the judge, intake officer or arresting officer shall give notice of the action taken orally or in writing to the child's parent, guardian, legal custodian or other person standing in loco parentis. Nothing herein shall prevent the child from being held for the purpose of administering a blood or breath test to determine the alcoholic content of his blood where the child has been taken into custody pursuant to § 18.2-266 .
  3. A person taking a child into custody pursuant to the provisions of subsections E and F of § 16.1-246, during such hours as the court is open, shall, with all practicable speed and in accordance with the provisions of this law and the orders of court pursuant thereto:
    1. Release the child to the institution, facility or home from which he ran away or escaped; or
    2. If not released, bring the child to the judge or intake officer of the court and, in the most expeditious manner practicable, give notice of the action taken, together with a statement of the reasons for taking the child into custody, in writing to the judge or intake officer, and the judge, intake officer or arresting officer shall give notice of the action taken orally or in writing to the institution, facility or home in which the child had been placed and orally or in writing to the child's parent, guardian, legal custodian or other person standing in loco parentis.
  4. A person taking a child into custody pursuant to the provisions of subsection A of § 16.1-246, during such hours as the court is not open, shall with all practicable speed and in accordance with the provisions of this law and the orders of court pursuant thereto:
    1. Release the child taken into custody pursuant to a warrant on bail or recognizance pursuant to Chapter 9 (§ 19.2-119 et seq.) of Title 19.2; or
    2. Place the child in a detention home or in shelter care; or
    3. Place the child in a jail subject to the provisions of § 16.1-249.
  5. A person taking a child into custody pursuant to the provisions of subsection B, C, or D of § 16.1-246 during such hours as the court is not open, shall:
    1. Release the child pursuant to the provisions of subdivision B 1 or B 2 of this section; or
    2. Release the child on bail or recognizance pursuant to Chapter 9 (§ 19.2-119 et seq.) of Title 19.2; or
    3. Place the child taken into custody pursuant to subsection B of § 16.1-246 in shelter care after the issuance of a detention order pursuant to § 16.1-255; or
    4. Place the child taken into custody pursuant to subsection C or D of § 16.1-246 in shelter care or in a detention home after the issuance of a warrant by a magistrate; or
    5. Place the child in a jail subject to the provisions of § 16.1-249 after the issuance of a warrant by a magistrate or after the issuance of a detention order pursuant to § 16.1-255; or
    6. In addition to any other provisions of this subsection, detain the child for a reasonably necessary period of time in order to administer a breath or blood test to determine the alcohol content of his blood, if such child was taken into custody pursuant to § 18.2-266 .
  6. A person taking a child into custody pursuant to the provisions of subsection E of § 16.1-246, during such hours as the court is not open, shall:
    1. Release the child to the institution or facility from which he ran away or escaped; or
    2. Detain the child in a detention home or in a jail subject to the provisions of § 16.1-249 after the issuance of a warrant by a magistrate or after the issuance of a detention order pursuant to § 16.1-255.
  7. A person taking a child into custody pursuant to the provisions of subsection F of § 16.1-246, during such hours as the court is not open, shall:
    1. Release the child to the facility or home from which he ran away; or
    2. Detain the child in shelter care after the issuance of a detention order pursuant to § 16.1-255 or after the issuance of a warrant by a magistrate.
  8. If a parent, guardian or other custodian fails, when requested, to bring the child before the court as provided in subdivisions B 2 and E 1, the court may issue a detention order directing that the child be taken into custody and be brought before the court.
  9. A law-enforcement officer taking a child into custody pursuant to the provisions of subsection G of § 16.1-246 shall notify the intake officer of the juvenile court of the action taken. The intake officer shall determine if the child's conduct or situation is within the jurisdiction of the court and if a petition should be filed on behalf of the child. If the intake officer determines that a petition should not be filed, the law-enforcement officer shall as soon as practicable:
    1. Return the child to his home;
    2. Release the child to such child's parents, guardian, legal custodian or other person standing in loco parentis;
    3. Place the child in shelter care for a period not longer than 24 hours after the issuance of a detention order pursuant to § 16.1-255; or
    4. Release the child.

      During the period of detention authorized by this subsection no child shall be confined in any detention home, jail or other facility for the detention of adults.

  10. If a child is taken into custody pursuant to the provisions of subsection B, F, or G of § 16.1-246 by a law-enforcement officer during such hours as the court is not in session and the child is not released or transferred to a facility or institution in accordance with subsection E, G, or I of this section, the child shall be held in custody only so long as is reasonably necessary to complete identification, investigation and processing. The child shall be held under visual supervision in a nonlocked, multipurpose area which is not designated for residential use. The child shall not be handcuffed or otherwise secured to a stationary object.
  11. When an adult is taken into custody pursuant to a warrant, detention order, or capias alleging a delinquent act committed when he was a juvenile, he may be released on bail or recognizance pursuant to Chapter 9 (§ 19.2-119 et seq.) of Title 19.2. An intake officer shall have the authority to issue a capias for an adult under the age of 21 who is alleged to have committed, before attaining the age of 18, an offense that would be a crime if committed by an adult.

    (Code 1950, § 16.1-197; 1956, c. 550; 1958, c. 344; 1973, c. 440; 1974, c. 584; 1975, c. 248; 1977, c. 559; 1978, c. 643; 1979, c. 701; 1984, c. 567; 1992, cc. 728, 830; 2004, cc. 415, 439; 2012, c. 253; 2016, c. 626.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2004 amendments. - The 2004 amendments by cc. 415 and 439 are nearly identical, and inserted "or after the issuance of a detention order pursuant to § 16.1-255" in subdivision D 5; added "or after the issuance of a detention order pursuant to § 16.1-255" at the end of subdivision F 2; and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 253 inserted "( § 19.2-119 et seq.)" following "Chapter 9" in subdivision E 2; deleted "hereof" following "subdivisions B 2 and E 1" in subsection H; and added subsection K.

The 2016 amendments. - The 2016 amendment by c. 626, in subsection K, inserted "or capias" and made a related change in the first sentence and added the last sentence.

Law review. - For survey of Virginia criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978).

CASE NOTES

This section is not intended to safeguard a juvenile's Fifth and Sixth Amendment rights. Roberts v. Commonwealth, 18 Va. App. 554, 445 S.E.2d 709 (1994).

No constitutional violation. - The Equal Protection Clause is not violated by the absence from former § 63.1-248.9 [see now § 63.2-1517 ], and the presence in subdivision E 3 of this section of a requirement of administrative intake officer review prior to continued detention; the difference in procedures is neither irrational or capricious. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994).

Confession by 17-year-old, after being arrested and taken to the police station and interrogated, was voluntary, as the absence of a parent did not necessarily invalidate a waiver of a juvenile's Fifth Amendment rights, but instead constituted a circumstance and factor to be considered in the totality of the circumstances; § 16.1-247 was procedural, and any failure of the police to adhere to the provisions of § 16.1-247 did not result in a per se violation of Fifth Amendment rights. Cary v. Commonwealth, 40 Va. App. 480, 579 S.E.2d 691, 2003 Va. App. LEXIS 284 (2003).

CIRCUIT COURT OPINIONS

This section is not intended to safeguard a juvenile's Fifth and Sixth Amendment rights. - Section 16.1-247, requiring that a juvenile in custody be brought before a judge or intake officer in the most expeditious manner practicable was not intended to safeguard a juvenile's Fifth and Sixth Amendment rights, as the statute set forth a procedural requirement, and violation of the requirement reached a constitutional dimension only if it resulted in defendant's loss of exculpatory evidence. Commonwealth v. Malvo, 63 Va. Cir. 22, 2003 Va. Cir. LEXIS 188 (Fairfax County 2003).

"With all practicable speed." - When a juvenile defendant released from federal custody to state custody was taken before a judicial officer within 24 hours of being received into state custody, he was taken before the judicial officer "with all practicable speed," as required by § 16.1-247, particularly when the chief juvenile court judge was advised of and reviewed his circumstances and the conditions of his detention in the interim. Commonwealth v. Malvo, 63 Va. Cir. 22, 2003 Va. Cir. LEXIS 188 (Fairfax County 2003).

§ 16.1-247.1. Custodial interrogation of a child; parental notification and contact.

  1. Prior to any custodial interrogation of a child by a law-enforcement officer who has arrested such child pursuant to subsection C, C1, or D of § 16.1-246, the child's parent, guardian, or legal custodian shall be notified of his arrest and the child shall have contact with his parent, guardian, or legal custodian. The notification and contact required by this subsection may be in person, electronically, by telephone, or by video conference.
  2. Notwithstanding the provisions of subsection A, a custodial interrogation may be conducted if (i) the child's parent, guardian, or legal custodian is a codefendant in the alleged offense; (ii) the child's parent, guardian, or legal custodian has been arrested for, has been charged with, or is being investigated for a crime against the child; (iii) if, after every reasonable effort has been made to comply with subsection A, the child's parent, guardian, or legal custodian cannot be located or refuses contact with the child; or (iv) if the law-enforcement officer conducting the custodial interrogation reasonably believes the information sought is necessary to protect life, limb, or property from an imminent danger and the law-enforcement officer's questions are limited to those that are reasonably necessary to obtain such information.

    (2020, c. 480.)

§ 16.1-248.

Repealed by Acts 1985, c. 260.

Cross references. - For present provisions as to criteria for detention or shelter care, see § 16.1-248.1.

§ 16.1-248.1. Criteria for detention or shelter care.

  1. A juvenile taken into custody whose case is considered by a judge, intake officer or magistrate pursuant to § 16.1-247 shall immediately be released, upon the ascertainment of the necessary facts, to the care, custody and control of such juvenile's parent, guardian, custodian or other suitable person able and willing to provide supervision and care for such juvenile, either on bail or recognizance pursuant to Chapter 9 (§ 19.2-119 et seq.) of Title 19.2 or under such conditions as may be imposed or otherwise. However, at any time prior to an order of final disposition, a juvenile may be detained in a secure facility, pursuant to a detention order or warrant, only upon a finding by the judge, intake officer, or magistrate, that there is probable cause to believe that the juvenile committed the act alleged, and that at least one of the following conditions is met:
    1. The juvenile is alleged to have (a) violated the terms of his probation or parole when the charge for which he was placed on probation or parole would have been a felony or Class 1 misdemeanor if committed by an adult; (b) committed an act that would be a felony or Class 1 misdemeanor if committed by an adult; or (c) violated any of the provisions of § 18.2-308.7 , and there is clear and convincing evidence that:
      1. Considering the seriousness of the current offense or offenses and other pending charges, the seriousness of prior adjudicated offenses, the legal status of the juvenile and any aggravating and mitigating circumstances, the liberty of the juvenile, constitutes a clear and substantial threat to the person or property of others;
      2. The liberty of the juvenile would present a clear and substantial threat of serious harm to such juvenile's life or health; or
      3. The juvenile has threatened to abscond from the court's jurisdiction during the pendency of the instant proceedings or has a record of willful failure to appear at a court hearing within the immediately preceding 12 months.
    2. The juvenile has absconded from a detention home or facility where he has been directed to remain by the lawful order of a judge or intake officer.
    3. The juvenile is a fugitive from a jurisdiction outside the Commonwealth and subject to a verified petition or warrant, in which case such juvenile may be detained for a period not to exceed that provided for in § 16.1-323 while arrangements are made to return the juvenile to the lawful custody of a parent, guardian or other authority in another state.
    4. The juvenile has failed to appear in court after having been duly served with a summons in any case in which it is alleged that the juvenile has committed a delinquent act or that the child is in need of services or is in need of supervision; however, a child alleged to be in need of services or in need of supervision may be detained for good cause pursuant to this subsection only until the next day upon which the court sits within the county or city in which the charge against the child is pending, and under no circumstances longer than 72 hours from the time he was taken into custody. If the 72-hour period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the 72 hours shall be extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed.
    5. The juvenile failed to adhere to the conditions imposed upon him by the court, intake officer or magistrate following his release upon a Class 1 misdemeanor charge or a felony charge. However, no juvenile younger than 11 years of age shall be placed in secure detention unless such juvenile is alleged to have committed one or more of the delinquent acts enumerated in subsection B or C of § 16.1-269.1. When a juvenile is placed in secure detention, the detention order shall state the offense for which the juvenile is being detained, and, to the extent practicable, other pending and previous charges.
  2. Any juvenile not meeting the criteria for placement in a secure facility shall be released to a parent, guardian or other person willing and able to provide supervision and care under such conditions as the judge, intake officer or magistrate may impose. However, a juvenile may be placed in shelter care if:
    1. The juvenile is eligible for placement in a secure facility;
    2. The juvenile has failed to adhere to the directions of the court, intake officer or magistrate while on conditional release;
    3. The juvenile's parent, guardian or other person able to provide supervision cannot be reached within a reasonable time;
    4. The juvenile does not consent to return home;
    5. Neither the juvenile's parent or guardian nor any other person able to provide proper supervision can arrive to assume custody within a reasonable time; or
    6. The juvenile's parent or guardian refuses to permit the juvenile to return home and no relative or other person willing and able to provide proper supervision and care can be located within a reasonable time.
  3. When a juvenile is detained in a secure facility, the juvenile's probation officer may review such placement for the purpose of seeking a less restrictive alternative to confinement in that secure facility.
  4. The criteria for continuing the juvenile in detention or shelter care as set forth in this section shall govern the decisions of all persons involved in determining whether the continued detention or shelter care is warranted pending court disposition. Such criteria shall be supported by clear and convincing evidence in support of the decision not to release the juvenile.
  5. Nothing in this section shall be construed to deprive the court of its power to punish a juvenile summarily for contempt for acts set forth in § 18.2-456 , other than acts of disobedience of the court's dispositional order which are committed outside the presence of the court.
  6. A detention order may be issued pursuant to subdivision A 2 by the committing court or by the court in the jurisdiction from which the juvenile fled or where he was taken into custody.
  7. The court is authorized to detain a juvenile based upon the criteria set forth in subsection A at any time after a delinquency petition has been filed, both prior to adjudication and after adjudication pending final disposition subject to the time limitations set forth in § 16.1-277.1.
  8. If the intake officer or magistrate releases the juvenile, either on bail or recognizance or under such conditions as may be imposed, no motion to revoke bail, or change such conditions may be made unless (i) the juvenile has violated a term or condition of his release, or is convicted of or taken into custody for an additional offense, or (ii) the attorney for the Commonwealth presents evidence that incorrect or incomplete information regarding the factors in subsection A was relied upon by the intake officer or magistrate establishing the initial terms of release. If the juvenile court releases the juvenile, either on bail or recognizance or under such conditions as may be imposed, over the objection of the attorney for the Commonwealth, the attorney for the Commonwealth may appeal such decision to the circuit court. The order of the juvenile court releasing the juvenile shall remain in effect until the circuit court, Court of Appeals or Supreme Court rules otherwise.

    (1977, c. 559; 1979, c. 701; 1985, c. 260; 1986, c. 517; 1987, c. 632; 1989, c. 725; 1990, c. 257; 1996, cc. 755, 914; 2000, c. 836; 2001, c. 837; 2002, cc. 55, 359; 2003, cc. 104, 851; 2004, c. 374; 2005, c. 647; 2010, c. 683; 2011, c. 644; 2021, Sp. Sess. I, c. 115.)

Cross references. - As to medical records of juvenile in secure facility, see § 16.1-248.3.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile" for "child" throughout the section, substituted "juvenile's" for "child's" throughout the section, inserted "Considering the seriousness of the current offense or offenses and other pending charges, the seriousness of prior adjudicated offenses, the legal status of the juvenile and any aggravating and mitigating circumstances" preceding "the release" in subdivision A 1 a, deleted "of this chapter" following " § 16.1-323 " in subdivision A 3, and in subdivision A 4, inserted "or that the child" preceding "is in need of services" and deleted "or she" following "from the time he."

The 2000 amendments. - The 2000 amendment by c. 836, in subsection A, substituted "a clear and substantial threat" for "an unreasonable danger" near the end of subdivision 1 a, and added the concluding paragraph of the subsection.

The 2001 amendments. - The 2001 amendment by c. 837 inserted "If the seventy-two hour period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed" at the end of subdivision A 4.

The 2002 amendments. - The 2002 amendments by cc. 55 and 359 are identical, and added subdivision A 1 a and the subdivision A 1 b designation; and substituted "that" for "which" in subdivision A 1 b.

The 2003 amendments. - The 2003 amendments by cc. 104 and 851 are identical, and in subsection A, inserted "at any time prior to an order of final disposition" near the beginning of the second sentence of the introductory language, and substituted "liberty" for "release" in subdivisions A 1 a and A 1 b; and added subsection F.

The 2004 amendments. - The 2004 amendment by c. 374 inserted subsection C; and redesignated former subsections C through F as present subsections D through G.

The 2005 amendments. - The 2005 amendment by c. 647 added subsection H.

The 2010 amendments. - The 2010 amendment by c. 683 added clause (c) in subdivision A 1 and made a related change.

The 2011 amendments. - The 2011 amendment by c. 644 added the subdivision A 5 designation and the first paragraph therein.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 115, effective July 1, 2021, inserted the paragraph following subdivision A 5; and substituted "subdivision A 2" for "subdivision 2 of subsection A" in subsection F.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000). For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000). For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Officer's accommodation of juvenile's request to use toilet facilities did not change juvenile's custodial status. Moss v. Commonwealth, 30 Va. App. 219, 516 S.E.2d 246 (1999).

Denial of bond proper. - Denial of bond to the juvenile defendant was supported by the finding that there was probable cause to believe defendant committed the charged weapons offenses, as the uncontested facts showed officers saw defendant with bulge in his pocket that looked like a gun and a loaded gun was found near where the bulge mysteriously disappeared. Moreover, it was uncontested that the alleged acts would have been a Class 1 misdemeanor if committed by an adult and violated the terms of his parole for what would have been felony if committed by an adult. Barnes v. Commonwealth, 72 Va. App. 160, 842 S.E.2d 433, 2020 Va. App. LEXIS 166 (June 2, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Detention of juvenile not already in custody. - Juvenile court judge has no statutory authority to temporarily detain a juvenile after an adjudication hearing where the juvenile is determined delinquent but pending the disposition hearing, when the juvenile was not originally taken into custody and detained pursuant to subsection A of this section. See opinion of Attorney General to The Honorable J. Dean Lewis, Judge, Fifteenth District Juvenile and Domestic Relations Court, 02-047 (8/7/02).

§ 16.1-248.2. Mental health screening and assessment for certain juveniles.

Whenever a juvenile is placed in a secure facility pursuant to § 16.1-248.1, the staff of the facility shall gather such information from the juvenile and the probation officer as is reasonably available and deemed necessary by the facility staff. As part of the intake procedures at each such facility, the staff shall ascertain the juvenile's need for a mental health assessment. If it is determined that the juvenile needs such an assessment, the assessment shall take place within twenty-four hours of such determination. The community services board serving the jurisdiction where the facility is located shall be responsible for conducting the assessments and shall be compensated from funds appropriated to the Department of Juvenile Justice for this purpose. The Department of Juvenile Justice shall develop criteria and a compensation plan for such assessments.

(1996, cc. 755, 914; 1998, c. 434.)

The 1998 amendment added the last two sentences.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

§ 16.1-248.3. Medical records of juveniles in secure facility.

Whenever a juvenile is placed in a secure facility or a shelter care facility pursuant to § 16.1-248.1, the director of the facility or his designee shall be entitled to obtain medical records concerning the juvenile from a provider. Prior to using the authority granted by this section to obtain such records, the director of the facility or his designee shall make a reasonable attempt to obtain consent for the release of the records from the juvenile's parent or legal guardian or, in instances where the juvenile may consent pursuant to § 54.1-2969 , from the juvenile. The director of the facility or his designee may proceed to obtain the records from the provider if such consent is refused or is not readily obtainable and the records are necessary (i) for the provision of health care to the juvenile, (ii) to protect the health and safety of the juvenile or other residents or staff of the facility or (iii) to maintain the security and safety of the facility.

The director or his designee shall document in writing the reason that the records were requested and that a reasonable attempt was made to obtain consent for the release of records and that consent was refused or not readily obtainable.

No person to whom disclosure of records was made pursuant to this section shall redisclose or otherwise reveal the records, beyond the purpose for which such disclosure was made, without first obtaining specific consent to redisclose from the juvenile's parent or legal guardian or, in instances where the juvenile may consent pursuant to § 54.1-2969 , from the juvenile.

Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2, shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in § 32.1-36.1 .

The definitions of "provider" and "records" in § 32.1-127.1:03 shall apply to this section.

(2003, c. 983.)

Law review. - For annual survey article discussing the state of health care law in Virginia, see 38 U. Rich. L. Rev. 137(2003).

§ 16.1-249. Places of confinement for juveniles.

  1. If it is ordered that a juvenile remain in detention or shelter care pursuant to § 16.1-248.1, such juvenile may be detained, pending a court hearing, in the following places:
    1. An approved foster home or a home otherwise authorized by law to provide such care;
    2. A facility operated by a licensed child welfare agency;
    3. If a juvenile is alleged to be delinquent, a detention home or group home approved by the Department;
    4. Any other suitable place designated by the court and approved by the Department;
    5. To the extent permitted by federal law, a separate juvenile detention facility located upon the site of an adult regional jail facility established by any county, city or any combination thereof constructed after 1994, approved by the Department of Juvenile Justice and certified by the Board of Juvenile Justice for the holding and detention of juveniles.

      A juvenile younger than 11 years of age who is alleged to have committed one or more of the delinquent acts enumerated in subsection B or C of § 16.1-269.1 and who is ordered to remain in detention or shelter care pursuant to § 16.1-248.1 pending a court hearing may only be detained in a place described in subdivision 1, 2, or 4, but under no circumstances shall such juvenile be detained pursuant to this section in a secure detention facility.

  2. No juvenile shall be detained or confined in any jail or other facility for the detention of adult offenders or persons charged with crime except as provided in subsection D, E, F or G.
  3. The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately when a juvenile who is or appears to be under the age of 18 years is received at the facility, and shall deliver him to the court upon request, or transfer him to a detention facility designated by the court.
  4. When a case is transferred to the circuit court in accordance with the provisions of subsection A of § 16.1-269.1 and an order is entered by the circuit court in accordance with § 16.1-269.6, or in accordance with the provisions of § 16.1-270 where the juvenile has waived the jurisdiction of the district court, or when the district court has certified a charge to the grand jury pursuant to subsection B or C of § 16.1-269.1, the juvenile, if in confinement, shall be placed in a juvenile secure facility, unless the court determines that the juvenile is a threat to the security or safety of the other juveniles detained or the staff of the facility, in which case the court may transfer the juvenile to a jail or other facility for the detention of adults, provided that the facility is approved by the State Board of Local and Regional Jails for the detention of juveniles.
  5. If, in the judgment of the custodian, a juvenile has demonstrated that he is a threat to the security or safety of the other juveniles detained or the staff of the home or facility, the judge shall determine whether such juvenile should be transferred to another juvenile facility or, if the child is 14 years of age or older, a jail or other facility for the detention of adults, provided that (i) the detention is in a room or ward entirely separate and removed from adults, (ii) adequate supervision is provided, and (iii) the facility is approved by the State Board of Local and Regional Jails for detention of juveniles.
  6. If, in the judgment of the custodian, it has been demonstrated that the presence of a juvenile in a facility creates a threat to the security or safety of the other juveniles detained or the staff of the home or facility, the custodian may transfer the juvenile to another juvenile facility, or, if the child is 14 years of age or older, a jail or other facility for the detention of adults pursuant to the limitations of clauses (i), (ii) and (iii) of subsection E for a period not to exceed six hours prior to a court hearing and an additional six hours after the court hearing unless a longer period is ordered pursuant to subsection E.
  7. If a juvenile 14 years of age or older is charged with an offense which, if committed by an adult, would be a felony or Class 1 misdemeanor, and the judge or intake officer determines that secure detention is needed for the safety of the juvenile or the community, such juvenile may be detained for a period not to exceed six hours prior to a court hearing and six hours after the court hearing in a temporary lock-up room or ward for juveniles while arrangements are completed to transfer the juvenile to a juvenile facility. Such room or ward may be located in a building which also contains a jail or other facility for the detention of adults, provided that (i) such room or ward is totally separate and removed from adults or juveniles transferred to the circuit court pursuant to Article 7 (§ 16.1-269.1 et seq.), (ii) constant supervision is provided, and (iii) the facility is approved by the State Board of Local and Regional Jails for the detention of juveniles. The State Board of Local and Regional Jails is authorized and directed to prescribe minimum standards for temporary lock-up rooms and wards based on the requirements set out in this subsection.

    G1. Any juvenile who has been ordered detained in a secure detention facility pursuant to § 16.1-248.1 may be held incident to a court hearing (i) in a court holding cell for a period not to exceed six hours, provided that the juvenile is entirely separate and removed from detained adults, or (ii) in a nonsecure area, provided that constant supervision is provided.

  8. If a judge, intake officer or magistrate orders the predispositional detention of persons 18 years of age or older, such detention shall be in an adult facility; however, if the predispositional detention is ordered for a violation of the terms and conditions of release from a juvenile correctional center, the judge, intake officer or magistrate may order such detention be in a juvenile facility.
  9. The Departments of Corrections, Juvenile Justice and Criminal Justice Services shall assist the localities or combinations thereof in implementing this section and ensuring compliance herewith.

    (1977, c. 559; 1979, c. 655; 1983, c. 336; 1985, c. 260; 1988, c. 886; 1989, c. 557; 1993, c. 435; 1994, cc. 859, 904, 949; 1995, cc. 746, 748, 798, 802; 1996, cc. 755, 914; 1998, cc. 576, 830; 2002, c. 558; 2004, cc. 415, 439; 2010, c. 739; 2018, cc. 36, 73; 2020, c. 759; 2021, Sp. Sess. I, c. 115.)

Cross references. - As to punishment for Class 1 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and added subdivision A 5, inserted "Except for placement under subsection A 5" preceding "the official" in subsection C, in subsection D, inserted "subsection A of" preceding " § 16.1-269.1" and inserted "or when the district court has certified a charge to the grand jury pursuant to subsection B or C of § 16.1-269.1" following "has waived the jurisdiction of the district court," and substituted "release from a juvenile correctional center" for "release from a learning center" in subsection H.

The 1998 amendments. - The 1998 amendment by c. 576 substituted "Juvenile Justice" for "Corrections" following "Board of" in subdivision A 5; deleted "Except for placement under subsection A 5" preceding "The official in charge" in subsection C; and substituted "clauses (i), (ii) and (iii) of subsection E" for "subdivisions E (i), (ii) and (iii)" in subsection F.

The 1998 amendment by c. 830, effective April 22, 1998, substituted "subdivision A 5" for "subsection A 5" in subsection C; in subsection F, substituted "clauses (i), (ii) and (iii) of subsection E" for "subdivisions E (i), (ii) and (iii)" and added the language beginning "prior to a court" and ending "ordered pursuant to subsection E"; and substituted "not to exceed six hours prior to a court hearing and six hours after the court hearing" for "no longer than six hours" in the first sentence of subsection G.

The 2002 amendments. - The 2002 amendment by c. 558 rewrote subsection H, which fomerly read: "A judge may order the predispositional detention of persons eighteen years of age or older (i) in a juvenile facility only for a violation of the terms and conditions of release from a juvenile correctional center or (ii) in an adult facility."

The 2004 amendments. - The 2004 amendments by cc. 415 and 439 are identical, and twice inserted "intake officer or magistrate" in subsection H and made minor stylistic changes.

The 2010 amendments. - The 2010 amendment by c. 739 substituted "shall be placed in a juvenile secure facility, unless the court determines that the juvenile is a threat to the security or safety of the other juveniles detained or the staff of the facility, in which case the court may transfer the juvenile" for "may be transferred" in subsection D.

The 2018 amendments. - The 2018 amendments by cc. 36 and 73 are identical, and substituted "provided that the facility is approved by the State Board of Corrections for the detention of juveniles" for "and need no longer be entirely separate and removed from adults" in subsection D; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 759, substituted "State Board of Local and Regional Jails" for "State Board of Corrections" wherever it appears.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 115, effective July 1, 2021, deleted "in" preceding "a detention home" in subdivision A 3; and added the paragraph following subdivision A 5.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

CASE NOTES

If the decision to waive juvenile jurisdiction were not immediately appealable, those legislative protections afforded children under the juvenile justice system once lost, would be irretrievable. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Housing in adult jail facility pending transfer. - A juvenile who has been convicted as an adult may be housed in an adult jail facility pending transfer to the Department of Juvenile Justice. See opinion of Attorney General to Mr. Robert J. McCabe, Sheriff for the City of Norfolk, 05-012 (3/29/05).

§ 16.1-249.1. Places of confinement to give notice of intake of certain persons.

  1. At the time of receipt of any person, for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1 into a secure facility, the secure facility shall obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police. A person required to register shall register and submit to be photographed as part of the registration. The facility shall forthwith forward the registration information to the Department of State Police on the date of the receipt of the prisoner.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the facility shall promptly investigate or request the State Police promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant, or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was received. The facility shall notify the State Police forthwith of such actions taken pursuant to this section. (2006, cc. 857, 914.)

§ 16.1-250. Procedure for detention hearing.

  1. When a child has been taken into immediate custody and not released as provided in § 16.1-247 or § 16.1-248.1, such child shall appear before a judge on the next day on which the court sits within the county or city wherein the charge against the child is pending. In the event the court does not sit within the county or city on the following day, such child shall appear before a judge within a reasonable time, not to exceed 72 hours, after he has been taken into custody. If the 72-hour period expires on a Saturday, Sunday or other legal holiday, the 72 hours shall be extended to the next day which is not a Saturday, Sunday or legal holiday. In the event the court does not sit on the following day within the county or city wherein the charge against the child is pending, the court may conduct the hearing in another county or city, but only if two-way electronic video and audio communication is available in the courthouse of the county or city wherein the charge is pending.
  2. The appearance of the child, the attorney for the Commonwealth, the attorney for the child and the parent, guardian, legal custodian or other person standing in loco parentis may be by (i) personal appearance before the judge or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, a judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by electronically transmitted facsimile process. The facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.
  3. Notice of the detention hearing or any rehearing, either oral or written, stating the time, place and purpose of the hearing shall be given to the parent, guardian, legal custodian or other person standing in loco parentis if he can be found, to the child's attorney, to the child if 12 years of age or older and to the attorney for the Commonwealth.
  4. During the detention hearing, the parties shall be informed of the child's right to remain silent with respect to any allegation of delinquency and of the contents of the petition. The attorney for the child and the attorney for the Commonwealth shall be given the opportunity to be heard.
  5. If the judge finds that there is not probable cause to believe that the child committed the delinquent act alleged, the court shall order his release. If the judge finds that there is probable cause to believe that the child committed the delinquent act alleged but that the full-time detention of a child who is alleged to be delinquent is not required, the court shall order his release, and in so doing, the court may impose one or more of the following conditions singly or in combination:
    1. Place the child in the custody of a parent, guardian, legal custodian or other person standing in loco parentis under their supervision, or under the supervision of an organization or individual agreeing to supervise him;
    2. Place restrictions on the child's travel, association or place of abode during the period of his release;
    3. Impose any other condition deemed reasonably necessary and consistent with the criteria for detaining children specified in § 16.1-248.1; or
    4. Release the child on bail or recognizance in accordance with the provisions of Chapter 9 (§ 19.2-119 et seq.) of Title 19.2.
  6. An order releasing a child on any of the conditions specified in this section may, at any time, be amended to impose additional or different conditions of release or to return the child who is alleged to be delinquent to custody for failure to conform to the conditions previously imposed.
  7. All relevant and material evidence helpful in determining probable cause under this section or the need for detention may be admitted by the court even though not competent in a hearing on the petition.
  8. If the child is not released and a parent, guardian, legal custodian or other person standing in loco parentis is not notified and does not appear or does not waive appearance at the hearing, upon the written request of such person stating that such person is willing and available to supervise the child upon release from detention and to return the child to court for all scheduled proceedings on the pending charges, the court shall rehear the matter on the next day on which the court sits within the county or city wherein the charge against the child is pending. If the court does not sit within the county or city on the following day, such hearing shall be held before a judge within a reasonable time, not to exceed 72 hours, after the request.
  9. In considering probable cause under this section, if the court deems it necessary to summon witnesses to assist in such determination then the hearing may be continued and the child remain in detention, but in no event longer than three consecutive days, exclusive of Saturdays, Sundays, and legal holidays.

    (1977, c. 559; 1979, c. 338; 1985, c. 260; 1986, c. 542; 1988, c. 220; 1989, c. 549; 1992, c. 508; 1995, c. 451; 2004, c. 437; 2006, c. 89.)

The 2004 amendments. - The 2004 amendment by c. 437, effective July 1, 2005, in subsection C, inserted "or any rehearing" and "to the child's attorney" and substituted "older" for "over"; in subsection D, combined the former first and second sentences into the first sentence, by deleting "judge shall advise the parties of the right to counsel pursuant to § 16.1-266. The" and inserted "child and the attorney for the" in the last sentence; in subsection H, in the first sentence, inserted "written" and "stating that such person ... on the pending charges"; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 89 added the last sentence in subsection A; and inserted "the attorney for the Commonwealth, the attorney for the child and the parent, guardian, legal custodian or other person standing in loco parentis" in the first sentence of subsection B.

Law review. - For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Venue for juvenile detention hearing. - The proper venue for a juvenile detention hearing is the place where the proceeding has been commenced. See opinion of Attorney General to Mr. Michael W. Lee, Commonwealth's Attorney for the City of Colonial Heights, 05-002 (3/29/05).

§ 16.1-250.1.

Repealed by Acts 2004, c. 437, cl. 2, effective July 1, 2005.

The 2001 amendments. - The 2001 amendment by c. 837 inserted "If the seventy-two hour period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed" as the second sentence in the second paragraph.

§ 16.1-251. Emergency removal order.

  1. A child may be taken into immediate custody and placed in shelter care pursuant to an emergency removal order in cases in which the child is alleged to have been abused or neglected. Such order may be issued ex parte by the court upon a petition supported by an affidavit or by sworn testimony in person before the judge or intake officer which establishes that:
    1. The child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition.
    2. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably protect the child's life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary protective order pursuant to § 16.1-253.

      If the petitioner fails to obtain an emergency removal order within four hours of taking custody of the child, the affidavit or sworn testimony before the judge or intake officer shall state the reasons therefor.

      When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.

      The petitioner shall not be required by the court to make reasonable efforts to prevent removal of the child from his home if the court finds that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) on the basis of clear and convincing evidence, the parent has subjected any child to aggravated circumstances or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283.

      As used in this section:

      "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect (i) evinces a wanton or depraved indifference to human life or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.

      "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk.

      "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

      "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once but otherwise meets the definition of "aggravated circumstances."

  2. Whenever a child is taken into immediate custody pursuant to an emergency removal order, a hearing shall be held in accordance with § 16.1-252 as soon as practicable, but in no event later than five business days after the removal of the child.
  3. In the emergency removal order the court shall give consideration to temporary placement of the child with a person with a legitimate interest under the supervision of the local department of social services, until such time as the hearing in accordance with § 16.1-252 is held.
  4. The local department of social services having "legal custody" of a child as defined in § 16.1-228 (i) shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent.

    (1977, c. 559; 1984, c. 499; 1985, c. 584; 1986, c. 308; 1990, c. 769; 2000, c. 385; 2003, c. 508; 2017, c. 190; 2019, c. 434.)

Cross references. - As to foster care plans, placement of child, permissible plan goals, and court review of foster children, see § 63.2-906 .

As to permanent foster care placements, see § 63.2-908 .

As to testimony of child by use of two-way closed-circuit television in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1521 . As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

The 2000 amendments. - The 2000 amendment by c. 385, in subsection C, substituted "a relative or other interested individual" for "suitable relatives" and inserted "under the supervision of the local department of social services"; and substituted "The local department of social services" for "A person" in subsection D.

The 2003 amendments. - The 2003 amendment by c. 508 added the next-to-last paragraph in subsection A.

The 2017 amendments. - The 2017 amendment by c. 190 added the fourth paragraph and the definitions at the end of subsection A.

The 2019 amendments. - The 2019 amendment by c. 434 substituted "person with a legitimate interest" for "relative or other interested individual, including grandparents" in subsection C.

Law review. - For comment, "The Uniform Child Custody Jurisdiction Act in Virginia," see 14 U. Rich. L. Rev. 435 (1979).

For article, "Family Law," see 35 U. Rich. L. Rev. 651 (2001).

For essay, "Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth," see 53 U. Rich. L. Rev. 255 (2018).

CASE NOTES

Code contemplates intervention where severe injury likely if child returned to parent. - The Code contemplates intervention in circumstances, which are without realistic probability of improvement of conditions, by allowing for the emergency removal of children before placement into an environment where the child would be subjected to an imminent threat to life or health to the extent that severe or irreversible injury would be likely to result if the child were returned to or left in the custody of his parent. Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 409 S.E.2d 16 (1991).

Relation to custody statutes. - Court of appeals erred when the court upheld a circuit court's decision awarding custody of a child who had been adjudicated as abused and neglected and removed the child from the child's parents, pursuant to §§ 16.1-251 and 16.1-252, giving custody to the child's grandparents, based on the court's conclusion that language in subsection A of § 16.1-241 and subsection B of § 16.1-278.15 subordinated Virginia statutes on foster care to Virginia's general custody statutes. The only interpretation of Titles 16.1 and 20 that gave effect to both statutory schemes and the intent of the Virginia General Assembly was that a trial court had to make the specific factual findings required by the foster care statutes in a custody case involving a child who was subject to a foster care plan. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 , 666 S.E.2d 361, 2008 Va. LEXIS 97 (2008).

Parents given specific written notice of subsequent hearing. - Under this section, §§ 16.1-252 and 16.1-253 the parents shall be given specific notice in writing of a subsequent hearing on the merits by a petition stating the factual circumstances which allegedly necessitated removal of the children. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Statute is procedural and directory. - Because subsection B of § 16.1-251 does not expressly prohibit the juvenile and domestic relations district court from conducting a preliminary removal hearing beyond the five-business-day period, is not prohibitive or limiting, and does not contain any manifestation of a contrary intent, subsection B of § 16.1-251 is procedural and directory, rather than mandatory and jurisdictional; although subsection B does provide that the hearing shall be held "in no event" later than five business days after the removal of the child, this phrase does not suggest an intent that the statute be deemed mandatory and jurisdictional because subsection B of § 16.1-251 contains no explicit penalty for failure to comply with the five-day requirement nor explicitly renders a hearing held beyond the five-day period invalid. Marrison v. Fairfax County Dep't of Family Servs., 59 Va. App. 61, 717 S.E.2d 146, 2011 Va. App. LEXIS 336 (2011).

Jurisdiction. - Circuit court did not err in denying parents' motions to dismiss petitions filed by a county department of family services pursuant to subdivision A 1 of § 16.1-241 alleging that their children were abused and neglected because the circuit court had the power to exercise its subject matter jurisdiction since subsection B of § 16.1-251 was procedural and directory, rather than mandatory and jurisdictional, and the parents failed to show that they suffered any prejudice as a result of the juvenile and domestic relations district court's alleged failure to comply with subsection B of § 16.1-251; under subdivision A 1 of § 16.1-241, the department's action invoked the subject matter jurisdiction of the district court, upon appeal to the circuit court, the circuit court's jurisdiction was derivative of that of the district court, and therefore, if the district court had subject matter jurisdiction, so too did the circuit court upon appeal from the district court order. Marrison v. Fairfax County Dep't of Family Servs., 59 Va. App. 61, 717 S.E.2d 146, 2011 Va. App. LEXIS 336 (2011).

Court of appeals lacked jurisdiction to address a mother's claim that emergency removal orders violated the statute because neither the emergency removal orders, nor any equivalent orders, were before the circuit court. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Evidence of neglect supported emergency order of removal. - Evidence showed that father's action in taking his children to a bank where he and the mother uttered a forgery, which caused the police to take the father and mother away to jail, caused the father to be unreasonably absent and the children to be without parental care; accordingly, the trial court's finding that the children were neglected, for the purposes of the city welfare agency's request for an emergency order of removal of the children, was not clearly erroneous and was affirmed. Lewis v. Fredericksburg Dep't of Soc. Servs., No. 2832-02-2, 2003 Va. App. LEXIS 432 (Ct. of Appeals Aug. 12, 2003).

Removal appropriate. - In a case involving termination of residual parental rights, removal of a child was warranted based on a father's history of not having provided his children with appropriate housing and his lack of a plan for appropriate housing since the definition of abused or neglected child did not require proof of actual harm or impairment; the term "substantial risk" spoke in futuro, and the living conditions in a motel were not adequate to meet the child's needs. Williams-Kemp v. Prince Edward County Dep't of Soc. Servs., No. 1979-14-2, 2015 Va. App. LEXIS 41 (Ct. of Appeals Feb. 10, 2015).

Trial court did not err in its decision approving the removal and initial foster care plans relating to two children because the record supported the findings that the children were abused and neglected where the children were residing in a hotel room that was filthy. The trial court did not err by finding that there was no less drastic alternative than removal and foster care placement due to the fact that a grandmother's house was not an option due to the lack of space; moreover, the father failed to clean and maintain the hotel room after a court hearing informed him of the need to do so. Beim v. Roanoke Cnty. Dep't of Soc. Servs., No. 1210-15-3, 2016 Va. App. LEXIS 44 (Feb. 16, 2016).

Circuit court did not err in finding sufficient evidence of abuse or neglect or in ordering that children remain with their fathers because the mother had numerous reports, investigations, and family assessments over the years; the department of social services (DSS) did not fail to make reasonable efforts to prevent removal because the mother not only failed to provide DSS an opportunity to inspect and approve possible homes but also relocated her children without notifying DSS. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Applied in Robinette v. Keene, 2 Va. App. 578, 347 S.E.2d 156 (1986).

§ 16.1-252. Preliminary removal order; hearing.

  1. A preliminary removal order in cases in which a child is alleged to have been abused or neglected may be issued by the court after a hearing wherein the court finds that reasonable efforts have been made to prevent removal of the child from his home. The hearing shall be in the nature of a preliminary hearing rather than a final determination of custody.
  2. Prior to the removal hearing, notice of the hearing shall be given at least 24 hours in advance of the hearing to the guardian ad litem for the child, to the parents, guardian, legal custodian or other person standing in loco parentis of the child and to the child if he or she is 12 years of age or older. If notice to the parents, guardian, legal custodian or other person standing in loco parentis cannot be given despite diligent efforts to do so, the hearing shall be held nonetheless, and the parents, guardian, legal custodian or other person standing in loco parentis shall be afforded a later hearing on their motion regarding a continuation of the summary removal order. The notice provided herein shall include (i) the time, date and place for the hearing; (ii) a specific statement of the factual circumstances which allegedly necessitate removal of the child; and (iii) notice that child support will be considered if a determination is made that the child must be removed from the home.
  3. All parties to the hearing shall be informed of their right to counsel pursuant to § 16.1-266.
  4. At the removal hearing the child and his parent, guardian, legal custodian or other person standing in loco parentis shall have the right to confront and cross-examine all adverse witnesses and evidence and to present evidence on their own behalf. If the child was 14 years of age or under on the date of the alleged offense and is 16 or under at the time of the hearing, the child's attorney or guardian ad litem, or if the child has been committed to the custody of the Department of Social Services, the local department of social services, may apply for an order from the court that the child's testimony be taken in a room outside the courtroom and be televised by two-way closed-circuit television. The provisions of § 63.2-1521 shall apply, mutatis mutandis, to the use of two-way closed-circuit television except that the person seeking the order shall apply for the order at least 48 hours before the hearing, unless the court for good cause shown allows the application to be made at a later time.
  5. In order for a preliminary order to issue or for an existing order to be continued, the petitioning party or agency must prove:
    1. The child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition; and
    2. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably and adequately protect the child's life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary protective order pursuant to § 16.1-253.

      When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.

      The petitioner shall not be required by the court to make reasonable efforts to prevent removal of the child from his home if the court finds that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) on the basis of clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283.

      As used in this section:

      "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect (i) evinces a wanton or depraved indifference to human life or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.

      "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk.

      "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

      "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once but otherwise meets the definition of "aggravated circumstances."

  6. If the court determines that pursuant to subsection E hereof the removal of the child is proper, the court shall:
    1. Order that the child be placed in the temporary care and custody of a suitable person, subject to the provisions of subsection F1 and under the supervision of the local department of social services, with consideration being given to placement in the temporary care and custody of a person with a legitimate interest until such time as the court enters an order of disposition pursuant to § 16.1-278.2, or, if such placement is not available, in the care and custody of a suitable agency;
    2. Order that reasonable visitation be allowed between the child and his parents, guardian, legal custodian or other person standing in loco parentis, and between the child and his siblings, if such visitation would not endanger the child's life or health; and
    3. Order that the parent or other legally obligated person pay child support pursuant to § 16.1-290.

      In addition, the court may enter a preliminary protective order pursuant to § 16.1-253 imposing requirements and conditions as specified in that section which the court deems appropriate for protection of the welfare of the child.

      F1. Prior to the entry of an order pursuant to subsection F transferring temporary custody of the child to a person with a legitimate interest, the court shall consider whether such person is one who (i) is willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; and (iii) is willing and has the ability to protect the child from abuse and neglect. The court's order transferring temporary custody to a person with a legitimate interest should provide for compliance with any preliminary protective order entered on behalf of the child in accordance with the provisions of § 16.1-253; initiation and completion of the investigation as directed by the court and court review of the child's placement required in accordance with the provisions of § 16.1-278.2; and, as appropriate, ongoing provision of social services to the child and the temporary custodian.

  7. At the conclusion of the preliminary removal order hearing, the court shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence. Any finding of abuse or neglect shall be stated in the court order. However, if, before such a finding is made, a person responsible for the care and custody of the child, the child's guardian ad litem or the local department of social services objects to a finding being made at the hearing, the court shall schedule an adjudicatory hearing to be held within 30 days of the date of the initial preliminary removal hearing. The adjudicatory hearing shall be held to determine whether the allegations of abuse and neglect have been proven by a preponderance of the evidence. Parties who are present at the preliminary removal order hearing shall be given notice of the date set for the adjudicatory hearing and parties who are not present shall be summoned as provided in § 16.1-263. The hearing shall be held and an order may be entered, although a party to the preliminary removal order hearing fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort.

    The preliminary removal order and any preliminary protective order issued shall remain in full force and effect pending the adjudicatory hearing.

  8. If the preliminary removal order includes a finding of abuse or neglect and the child is removed from his home or a preliminary protective order is issued, a dispositional hearing shall be held pursuant to § 16.1-278.2. The dispositional hearing shall be scheduled at the time of the preliminary removal order hearing and shall be held within 60 days of the preliminary removal order hearing. If an adjudicatory hearing is requested pursuant to subsection G, the dispositional hearing shall nonetheless be scheduled at the initial preliminary removal order hearing. All parties present at the preliminary removal order hearing shall be given notice of the date scheduled for the dispositional hearing; parties who are not present shall be summoned to appear as provided in § 16.1-263.
  9. The local department of social services having "legal custody" of a child as defined in § 16.1-228 (i) shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent.
  10. Violation of any order issued pursuant to this section shall constitute contempt of court.

    (1977, c. 559; 1984, c. 499; 1985, c. 584; 1986, c. 308; 1990, c. 769; 1994, c. 42; 1995, c. 817; 1997, c. 790; 1999, c. 668; 2000, c. 385; 2008, c. 397; 2013, c. 130; 2017, c. 190; 2019, c. 434.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

The 1999 amendment, in subsection D, in the second sentence, substituted "was fourteen years of age" for "is twelve years of age" and inserted "on the date of the alleged offense and is sixteen or under at the time of the hearing."

The 2000 amendments. - The 2000 amendment by c. 385, in subdivision F 1, inserted "temporary" preceding "care" twice, inserted "subject to the provisions of subsection F1 of this section and under the supervision of the local department of social services," and substituted "relative or other interested individual, including grandparents, until such time as the court enters an order of disposition pursuant to § 16.1-278.2" for "nearest kin, including grandparents, or personal friend"; added subsection F1; and substituted "The local department of social services" for "A person" in subsection I.

The 2008 amendments. - The 2008 amendment by c. 397 inserted "and between the child and his siblings" in subdivision F 2.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, substituted "60 days" for "seventy-five days" in the second sentence of subsection H, and made numeric stylistic changes throughout the section.

The 2017 amendments. - The 2017 amendment by c. 190 added the third paragraph and the definitions at the end of subdivision E 2.

The 2019 amendments. - The 2019 amendment by c. 434, in subdivision F 1, substituted "person with a legitimate interest" for "relative or other interested individual, including grandparents"; in subsection F1, substituted "person with a legitimate interest" for both "relative or other interested individual, including grandparents" and "relative or other interested individual," and substituted "such person" for "the relative or other interested individual"; and made stylistic changes.

CASE NOTES

Relation to custody statutes. - Court of appeals erred when the court upheld a circuit court's decision awarding custody of a child who had been adjudicated as abused and neglected and removed the child from the child's parents, pursuant to §§ 16.1-251 and 16.1-252, giving custody to the child's grandparents, based on the court's conclusion that language in subsection A of § 16.1-241 and subsection B of § 16.1-278.15 subordinated Virginia statutes on foster care to Virginia's general custody statutes. The only interpretation of Titles 16.1 and 20 that gave effect to both statutory schemes and the intent of the Virginia General Assembly was that a trial court had to make the specific factual findings required by the foster care statutes in a custody case involving a child who was subject to a foster care plan. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 , 666 S.E.2d 361, 2008 Va. LEXIS 97 (2008).

Parents given specific written notice of subsequent hearing. - Under this section, §§ 16.1-251 and 16.1-253 the parents shall be given specific notice in writing of a subsequent hearing on the merits by a petition stating the factual circumstances which allegedly necessitated removal of the children. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Immunity of social workers. - State social workers are absolutely immune from liability resulting from their decision to file a removal petition. Vosburg v. Department of Social Servs., 884 F.2d 133 (4th Cir. 1989).

Appealability of juvenile court order. - Because the plain language of §§ 16.1-278.2 D, 16.1-252, and 16.1-296 A provided that a preliminary removal order was not a dispositional order and was not a final order, the trial court did not err in finding that it lacked jurisdiction to entertain a department of social services' appeal of a juvenile court's order. Richmond Dep't of Soc. Servs. v. Petersburg Dep't of Soc. Servs., No. 2261-05-2, 2006 Va. App. LEXIS 263 (June 13, 2006).

Motion to strike. - Trial court erred in granting mother's motion to strike at the close of department's case-in-chief, as the department established a prima facie showing of abuse and neglect, but the error was harmless as the trial court did not abuse its discretion by ultimately discounting previous findings of abuse made in a prior order and relying on the lack of any subsequent evidence of abuse following the prior order's finding. Lynchburg Dep't of Soc. Servs. v. Boxley, No. 1560-19-3, 2020 Va. App. LEXIS 156 (May 19, 2020).

CIRCUIT COURT OPINIONS

Sufficient evidence of abuse or neglect. - Although parents claimed they did not cause their 11-month-old daughter's injuries and did not allow someone else to cause her injuries, a doctor's testimony that the child displayed symptoms of shaken baby syndrome was sufficient for the court to find that the child was abused or neglected, within the meaning of § 16.1-228, and the court found that the child was abused or neglected and that her two-year-old brother was a child at risk of being abused or neglected because of the injuries his sister sustained. In re McBride, 60 Va. Cir. 261, 2002 Va. Cir. LEXIS 391 (Richmond 2002).

§ 16.1-253. Preliminary protective order.

  1. Upon the motion of any person or upon the court's own motion, the court may issue a preliminary protective order, after a hearing, if necessary to protect a child's life, health, safety or normal development pending the final determination of any matter before the court. The order may require a child's parents, guardian, legal custodian, other person standing in loco parentis or other family or household member of the child to observe reasonable conditions of behavior for a specified length of time. These conditions shall include any one or more of the following:
    1. To abstain from offensive conduct against the child, a family or household member of the child or any person to whom custody of the child is awarded;
    2. To cooperate in the provision of reasonable services or programs designed to protect the child's life, health or normal development;
    3. To allow persons named by the court to come into the child's home at reasonable times designated by the court to visit the child or inspect the fitness of the home and to determine the physical or emotional health of the child;
    4. To allow visitation with the child by persons entitled thereto, as determined by the court;
    5. To refrain from acts of commission or omission which tend to endanger the child's life, health or normal development;
    6. To refrain from such contact with the child or family or household members of the child, as the court may deem appropriate, including removal of such person from the residence of the child. However, prior to the issuance by the court of an order removing such person from the residence of the child, the petitioner must prove by a preponderance of the evidence that such person's probable future conduct would constitute a danger to the life or health of such child, and that there are no less drastic alternatives which could reasonably and adequately protect the child's life or health pending a final determination on the petition; or
    7. To grant the person on whose behalf the order is issued the possession of any companion animal as defined in § 3.2-6500 if such person meets the definition of owner in § 3.2-6500.
  2. A preliminary protective order may be issued ex parte upon motion of any person or the court's own motion in any matter before the court, or upon petition. The motion or petition shall be supported by an affidavit or by sworn testimony in person before the judge or intake officer which establishes that the child would be subjected to an imminent threat to life or health to the extent that delay for the provision of an adversary hearing would be likely to result in serious or irremediable injury to the child's life or health. If an ex parte order is issued without an affidavit being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings. Following the issuance of an ex parte order the court shall provide an adversary hearing to the affected parties within the shortest practicable time not to exceed five business days after the issuance of the order.
  3. Prior to the hearing required by this section, notice of the hearing shall be given at least 24 hours in advance of the hearing to the guardian ad litem for the child, to the parents, guardian, legal custodian, or other person standing in loco parentis of the child, to any other family or household member of the child to whom the protective order may be directed and to the child if he or she is 12 years of age or older. The notice provided herein shall include (i) the time, date and place for the hearing and (ii) a specific statement of the factual circumstances which allegedly necessitate the issuance of a preliminary protective order.
  4. All parties to the hearing shall be informed of their right to counsel pursuant to § 16.1-266.
  5. At the hearing the child, his or her parents, guardian, legal custodian or other person standing in loco parentis and any other family or household member of the child to whom notice was given shall have the right to confront and cross-examine all adverse witnesses and evidence and to present evidence on their own behalf.
  6. If a petition alleging abuse or neglect of a child has been filed, at the hearing pursuant to this section the court shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence. Any finding of abuse or neglect shall be stated in the court order. However, if, before such a finding is made, a person responsible for the care and custody of the child, the child's guardian ad litem or the local department of social services objects to a finding being made at the hearing, the court shall schedule an adjudicatory hearing to be held within 30 days of the date of the initial preliminary protective order hearing. The adjudicatory hearing shall be held to determine whether the allegations of abuse and neglect have been proven by a preponderance of the evidence. Parties who are present at the hearing shall be given notice of the date set for the adjudicatory hearing and parties who are not present shall be summoned as provided in § 16.1-263. The adjudicatory hearing shall be held and an order may be entered, although a party to the hearing fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort.

    Any preliminary protective order issued shall remain in full force and effect pending the adjudicatory hearing.

  7. If at the preliminary protective order hearing held pursuant to this section the court makes a finding of abuse or neglect and a preliminary protective order is issued, a dispositional hearing shall be held pursuant to § 16.1-278.2. The court shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court. A copy of the preliminary protective order containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the allegedly abusing person in person as provided in § 16.1-264 and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the allegedly abusing person in person as provided in § 16.1-264. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. The preliminary order shall specify a date for the dispositional hearing. The dispositional hearing shall be scheduled at the time of the hearing pursuant to this section, and shall be held within 60 days of this hearing. If an adjudicatory hearing is requested pursuant to subsection F, the dispositional hearing shall nonetheless be scheduled at the hearing pursuant to this section. All parties present at the hearing shall be given notice of the date and time scheduled for the dispositional hearing; parties who are not present shall be summoned to appear as provided in § 16.1-263.
  8. Nothing in this section enables the court to remove a child from the custody of his or her parents, guardian, legal custodian or other person standing in loco parentis, except as provided in § 16.1-278.2, and no order hereunder shall be entered against a person over whom the court does not have jurisdiction.
  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. Violation of any order issued pursuant to this section shall be punishable as contempt of court. However, if the violation involves an act or acts of commission or omission that endanger the child's life or health or result in bodily injury to the child, it shall be punishable as a Class 1 misdemeanor.
  11. The court shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court. A copy of the preliminary protective order containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the allegedly abusing person in person as provided in § 16.1-264 and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the allegedly abusing person in person as provided in § 16.1-264. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. The preliminary order shall specify a date for the full hearing. Upon receipt of the return of service or other proof of service pursuant to subsection C of § 16.1-264, the clerk shall forthwith forward an attested copy of the preliminary protective order to the primary law-enforcement agency and the agency shall forthwith verify and enter any modification as necessary into the Virginia Criminal Information Network as described above. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  12. No fee shall be charged for filing or serving any petition or order pursuant to this section.

    (1977, c. 559; 1985, c. 595; 1986, c. 308; 1987, c. 497; 1996, c. 866; 1997, c. 790; 1998, c. 550; 2002, cc. 508, 810, 818; 2008, cc. 73, 246; 2009, c. 732; 2013, c. 130; 2014, c. 346; 2021, Sp. Sess. I, cc. 184, 529.)

Cross references. - As to testimony of child by use of two-way closed-circuit television in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1521 . As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

Editor's note. - Acts 2013, c. 130, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2014."

Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, c. 529, cl. 2 provides: "That the provisions of this act shall supersede and control any provision of Chapter 184 of the Acts of Assembly of 2021, Special Session I."

The 1998 amendment inserted "safety," substituted "any matter before the court" for "a petition filed under this law" in the first sentence of the introductory paragraph of subsection A; in subsection B, substituted "motion of any person or the court's own motion in any matter before the court, or upon" for "a" in the first sentence, added "The motion or petition shall be" in the second sentence and inserted the present next-to-last sentence; substituted "protective order" for "removal" in the third sentence of subsection F; in subsection G, inserted "preliminary protective order" in the first sentence and inserted "and time" in the last sentence; and inserted "except as provided in § 16.1-278.2" in subsection H.

The 2002 amendments. - The 2002 amendment by c. 508 added subsection I; redesignated former subsection I as subsection J; and added subsections K and L.

The 2002 amendments by cc. 810 and 818 are identical, and inserted the second through fifth sentences in subsection G.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and rewrote subsections G and K; added subsection M; and made minor stylistic changes.

The 2009 amendments. - The 2009 amendment by c. 732, in subsection G, in the second sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the third sentence, deleted "and an addendum" preceding "containing any such," in the fourth sentence, deleted "and addendum" preceding "by the primary," in the fifth sentence, deleted "and an addendum" following "copy of the order" and "receipt of the order" inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court"; in subsection K, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" following "protective order," in the third sentence, deleted "and addendum" following "receipt of the order," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection M, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, substituted "60 days" for "75 days" in the eighth sentence of subsection G.

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision A 7 and made related changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 184 and 529, effective July 1, 2021, are nearly identical, and in subsection J, substituted "be punishable as" for "constitute" in the first sentence, and added the second sentence.

CASE NOTES

Parents given specific written notice of subsequent hearing. - Under this section, §§ 16.1-251 and 16.1-252 the parents shall be given specific notice in writing of a subsequent hearing on the merits by a petition stating the factual circumstances which allegedly necessitated removal of the children. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Writ of prohibition against juvenile and domestic relations court held properly denied. - Court properly denied petition for writ of prohibition sought by father to prevent further action by the juvenile and domestic relations district court on the ground that it lacked subject matter jurisdiction by virtue of the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act. The juvenile and domestic relations district courts of Virginia have general jurisdiction over all proceedings involving the custody, visitation, support, control or disposition of a child, except as otherwise provided in § 16.1-244. In re Johnston, 3 Va. App. 492, 350 S.E.2d 681 (1986).

Court has authority to seek a preliminary protective order. - Under most circumstances, an action under § 16.1-253 does not involve the infringement of a right personal to the movant because it involves the protection of a third party: the child; the fact that the trial court has authority to seek a preliminary protective order sua sponte indicates that no personal right of the movant is involved. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

Protective order appropriately entered. - Father's argument that the trial court erred in issuing a protective order, based on his neglect and abuse of his child, for a period of five years in contravention of subdivision A 3 of § 16.1-278.2 was without merit because that code section only limited the duration of a protective order excluding from the home parents or other adults living in the same dwelling with the abused child, and at the time the order was entered, the father was no longer living in the same home as the child; further, the five-year limitation on visitation was clearly within the trial court's discretion as appropriate to protect the child's life, health, and normal development, pursuant to § 16.1-253. Altice v. Roanoke County Dep't of Soc. Servs., 45 Va. App. 400, 611 S.E.2d 628, 2005 Va. App. LEXIS 154 (2005).

Further proceedings required to enter proper protective order. - Despite mother and father's apparent stipulation to the judicial and domestic relations court's nonspecific finding of abuse, the trial court was required to hear evidence and make findings on the issues of which parent or parents committed abuse inflicted on child and what type of abuse was involved. Only then could the trial court enter a § 16.1-253 protective order designed to meet the best interests of the child while also taking into consideration the rights of her mother and father. Anonymous B v. Anonymous C, 51 Va. App. 657, 660 S.E.2d 307, 2008 Va. App. LEXIS 201 (2008).

Nonsuit. - Trial court did not err in denying a mother's request for a nonsuit under § 8.01-380 because the evidence supported a finding that it was in the best interests of her child for the trial court to transfer the right to advocate for the protective order to the father and the guardian ad litem, and since the mother was a respondent to the preliminary protective order, her right to nonsuit the case against her was subordinate to the welfare of the child; in cases where allegations of child sexual abuse have been presented to the trial court and a preliminary protective order has been issued pursuant to those allegations, an alleged abuser's "right" to nonsuit must be subordinate to the welfare of the child, and the parties to an action under § 16.1-253 are not in the same positions as plaintiffs and defendants in a traditional action. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

CIRCUIT COURT OPINIONS

Construction. - Under Virginia law, the use of the term "shall" in § 16.1-253 concerning the five-day hearing period was generally construed as directory rather than mandatory, thus no specific, explicit, or distinct remedy applied because one was not mentioned in the statute. Commonwealth v. Mangio, 103 Va. Cir. 260, 2019 Va. Cir. LEXIS 609 (Orange County Oct. 22, 2019).

Voidable orders. - Order entered by the Juvenile and Domestic Relations District Court was potentially voidable not void ab initio because the court had power to enter the ex-parte order under § 16.1-253 and, although no hearing occurred within the five-day period, the legislature had left the court the decision of how to remedy the violation. Commonwealth v. Mangio, 103 Va. Cir. 260, 2019 Va. Cir. LEXIS 609 (Orange County Oct. 22, 2019).

OPINIONS OF THE ATTORNEY GENERAL

"Offensive conduct." - "Offensive conduct" includes the acts of harassing, stalking, threatening, or placing a person in reasonable fear of bodily injury. See opinion of Attorney General to Colonel W.S. (Steve) Flaherty, Superintendent, Department of State Police, 09-048, 2009 Va. AG LEXIS 39 (8/27/09).

§ 16.1-253.1. Preliminary protective orders in cases of family abuse; confidentiality.

  1. Upon the filing of a petition alleging that the petitioner is or has been, within a reasonable period of time, subjected to family abuse, the court may issue a preliminary protective order against an allegedly abusing person in order to protect the health and safety of the petitioner or any family or household member of the petitioner. The order may be issued in an ex parte proceeding upon good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer. If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 16.1-253.4 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings. Immediate and present danger of family abuse or evidence sufficient to establish probable cause that family abuse has recently occurred shall constitute good cause. Evidence that the petitioner has been subjected to family abuse within a reasonable time and evidence of immediate and present danger of family abuse may be established by a showing that (i) the allegedly abusing person is incarcerated and is to be released from incarceration within 30 days following the petition or has been released from incarceration within 30 days prior to the petition, (ii) the crime for which the allegedly abusing person was convicted and incarcerated involved family abuse against the petitioner, and (iii) the allegedly abusing person has made threatening contact with the petitioner while he was incarcerated, exhibiting a renewed threat to the petitioner of family abuse.

    A preliminary protective order may include any one or more of the following conditions to be imposed on the allegedly abusing person:

    1. Prohibiting acts of family abuse or criminal offenses that result in injury to person or property.
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons.
    3. Granting the petitioner possession of the premises occupied by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession shall affect title to any real or personal property.
    4. Enjoining the respondent from terminating any necessary utility service to a premises that the petitioner has been granted possession of pursuant to subdivision 3 or, where appropriate, ordering the respondent to restore utility services to such premises.
    5. Granting the petitioner and, where appropriate, any other family or household member of the petitioner, exclusive use and possession of a cellular telephone number or electronic device. The court may enjoin the respondent from terminating a cellular telephone number or electronic device before the expiration of the contract term with a third-party provider. The court may enjoin the respondent from using a cellular telephone or other electronic device to locate the petitioner.
    6. Granting the petitioner temporary possession or use of a motor vehicle owned by the petitioner alone or jointly owned by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession or use shall affect title to the vehicle.
    7. Requiring that the allegedly abusing person provide suitable alternative housing for the petitioner and any other family or household member and, where appropriate, requiring the respondent to pay deposits to connect or restore necessary utility services in the alternative housing provided.
    8. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
    9. Any other relief necessary for the protection of the petitioner and family or household members of the petitioner.
  2. The court shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court. A copy of a preliminary protective order containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the allegedly abusing person in person as provided in § 16.1-264 and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the allegedly abusing person in person as provided in § 16.1-264. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. The preliminary order shall specify a date for the full hearing. The hearing shall be held within 15 days of the issuance of the preliminary order, unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered. If the respondent fails to appear at this hearing because the respondent was not personally served, or if personally served was incarcerated and not transported to the hearing, the court may extend the protective order for a period not to exceed six months. The extended protective order shall be served forthwith on the respondent. However, upon motion of the respondent and for good cause shown, the court may continue the hearing. The preliminary order shall remain in effect until the hearing. Upon request after the order is issued, the clerk shall provide the petitioner with a copy of the order and information regarding the date and time of service. The order shall further specify that either party may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the preliminary protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 . Upon receipt of the return of service or other proof of service pursuant to subsection C of § 16.1-264, the clerk shall forthwith forward an attested copy of the preliminary protective order to the primary law-enforcement agency, and the agency shall forthwith verify and enter any modification as necessary into the Virginia Criminal Information Network as described above. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  3. The preliminary order is effective upon personal service on the allegedly abusing person. Except as otherwise provided in § 16.1-253.2, a violation of the order shall constitute contempt of court.
  4. At a full hearing on the petition, the court may issue a protective order pursuant to § 16.1-279.1 if the court finds that the petitioner has proven the allegation of family abuse by a preponderance of the evidence.
  5. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  6. As used in this section, "copy" includes a facsimile copy.
  7. No fee shall be charged for filing or serving any petition or order pursuant to this section.
  8. Upon issuance of a preliminary protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1984, c. 631; 1987, c. 497; 1988, c. 165; 1992, c. 886; 1994, c. 907; 1996, c. 866; 1997, c. 603; 1998, c. 684; 2000, cc. 34, 654; 2001, c. 101; 2002, cc. 508, 810, 818; 2006, c. 308; 2007, c. 205; 2008, cc. 73, 246; 2009, cc. 343, 732; 2011, cc. 445, 480; 2014, c. 346; 2018, cc. 38, 652; 2019, cc. 197, 718; 2020, c. 137.)

Editor's note. - Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment, in subsection B, substituted "Virginia criminal information network" for "Virginia crime information network" throughout, in the first paragraph, added the present second sentence and substituted "either party" for "the person served" in the present next-to-last sentence, and inserted "subsection C of" in the first sentence of the second paragraph; and added subsection E.

The 2000 amendments. - The 2000 amendments by cc. 34 and 654 are identical, and inserted "owned by the petitioner alone or" in subdivision A 5.

The 2001 amendments. - The 2001 amendment by c. 101 added the sixth and seventh sentences in subsection B.

The 2002 amendments. - The 2002 amendment by ch. 508, in subsection B, substituted "Upon" for "As soon as practicable after" at the beginning of the first paragraph and substituted "shall, upon receipt" for "shall, on the date of receipt" in the first sentence of the second paragraph; inserted present subsection E and redesignated former subsection E as present subsection F; and added subsection G.

The 2002 amendments by cc. 810 and 818 are identical, and in the first paragraph in subsection B, substituted "Upon" for "As soon as practicable after" in the first sentence and deleted "feasible and" preceding "practical" in the second sentence; and substituted "shall, upon" for "shall, on the date of" in the first sentence in the second paragraph in subsection B.

The 2006 amendments. - The 2006 amendment by c. 308 inserted subdivisions A 5 and A 8; redesignated subdivisions A 5 and A 6 as subdivisions A 6 and A 7; and inserted "requiring the respondent to pay deposits to connect or restore necessary utility services in the alternative housing provided" at the end of subdivision 7.

The 2007 amendments. - The 2007 amendment by c. 205 inserted the present sixth and seventh sentences of subsection B and made a minor stylistic change.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and rewrote subsection B and added subsection H.

The 2009 amendments. - The 2009 amendment by c. 343, in subsection A, in the first paragraph, added the last sentence; in subsection B, in the first paragraph, in the seventh sentence, inserted "or if personally served was incarcerated and not transported to the hearing."

The 2009 amendment by c. 732, in subsection B, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted "and addendum" preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection H, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and in subdivision A 1, added "or criminal offenses that result in injury to person or property"; rewrote subdivision A 2, which read: "Prohibiting such other contacts between the parties as the court deems appropriate"; and deleted subdivision A 3, which read: "Prohibiting such other contacts with the allegedly abused family or household member as the court deems necessary to protect the safety of such persons," redesignated the remaining subdivisions accordingly and made a related reference change.

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision A 7 and redesignated former A 7 as A 8.

The 2018 amendments. - The 2018 amendment by c. 38 added subdivision A 5, and redesignated remaining subdivisions accordingly.

The 2018 amendment by c. 652 added subsection H.

The 2019 amendments. - The 2019 amendment by c. 197 inserted "unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered" in the first paragraph of subsection B.

The 2019 amendment by c. 718, in subsection A, inserted "If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 16.1-253.4 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings."

The 2020 amendments. - The 2020 amendment by c. 137 added the last three sentences in the first paragraph of subsection B.

Law review. - For an article, "Domestic Relations," see 31 U. Rich. L. Rev. 1069 (1997).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For article, "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

CASE NOTES

Notice of order. - Since defendant received personal service of the preliminary protective order he was charged with notice of its contents, nothing required the document to be translated. Koroshev v. Commonwealth, No. 1235-13-4, 2014 Va. App. LEXIS 372 (Nov. 12, 2014).

Order properly entered. - Juvenile and domestic relations court's entry of a preliminary protective order was not void, as it as necessary for the court to completely adjudicate the matter and it triggered notification to law enforcement so the order could be enforced. Koroshev v. Commonwealth, No. 1235-13-4, 2014 Va. App. LEXIS 372 (Nov. 12, 2014).

Evidence was sufficient to prove that in stalking a mother and a child, a father committed an act of abuse against a family member, and, therefore, the circuit court was authorized to issue an order to protect the mother and the child; the father intended to cause fear or knew or should have known that his conduct would cause fear for the mother and child because he pursued the mother and child in a car chase, and he knew the mother had reported that the child feared him. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Proceeding seeking the issuance of a protective order. - Plea in bar was not proper in proceedings seeking the issuance of a protective order because (1) a protective order was solely a creature of statute, (2) a plea in bar responded to a complaint, but a petition for a protective order was not a complaint, and (3) a protective order was not a cause of action. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Sufficient evidence to support conviction for violating protective order. - Defendant's conviction for violating the terms of a preliminary protective order was proper because the evidence was sufficient to prove that defendant had adequate notice of the terms of the preliminary protective order prohibiting contact, pursuant to §§ 16.1-253.1 and 16.1-264, and that defendant acted intentionally in violation of those terms. Cardenas-Najarro v. Commonwealth, No. 0699-13-4, 2014 Va. App. LEXIS 64 (Mar. 4, 2014).

Settlement agreements. - In proceedings seeking the issuance of a protective order, it was error to sustain a plea in bar arguing a settlement agreement barred evidence of alleged abuse occurring before the agreement because the agreement did not affect the rights of the parties' children to a protective order, as the children were not parties to the agreement. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency.” - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10. See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 16.1-253.2. Violation of provisions of protective orders; penalty.

  1. In addition to any other penalty provided by law, any person who violates any provision of a protective order issued pursuant to § 16.1-253.1, 16.1-253.4, 16.1-278.14, or 16.1-279.1 or subsection B of § 20-103 , when such violation involves a provision of the protective order that prohibits such person from (i) going or remaining upon land, buildings, or premises; (ii) further acts of family abuse; or (iii) committing a criminal offense, or which prohibits contacts by the respondent with the allegedly abused person or family or household members of the allegedly abused person as the court deems appropriate, is guilty of a Class 1 misdemeanor. The punishment for any person convicted of a second offense of violating a protective order, when the offense is committed within five years of the prior conviction and when either the instant or prior offense was based on an act or threat of violence, shall include a mandatory minimum term of confinement of 60 days. Any person convicted of a third or subsequent offense of violating a protective order, when the offense is committed within 20 years of the first conviction and when either the instant or one of the prior offenses was based on an act or threat of violence is guilty of a Class 6 felony and the punishment shall include a mandatory minimum term of confinement of six months. The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence.
  2. In addition to any other penalty provided by law, any person who, while knowingly armed with a firearm or other deadly weapon, violates any provision of a protective order with which he has been served issued pursuant to § 16.1-253.1, 16.1-253.4, 16.1-278.14, or 16.1-279.1 or subsection B of § 20-103 is guilty of a Class 6 felony.
  3. If the respondent commits an assault and battery upon any party protected by the protective order resulting in bodily injury to the party or stalks any party protected by the protective order in violation of § 18.2-60.3 , he is guilty of a Class 6 felony. Any person who violates such a protective order by furtively entering the home of any protected party while the party is present, or by entering and remaining in the home of the protected party until the party arrives, is guilty of a Class 6 felony, in addition to any other penalty provided by law.
  4. Upon conviction of any offense hereunder for which a mandatory minimum term of confinement is not specified, the person shall be sentenced to a term of confinement and in no case shall the entire term imposed be suspended. Upon conviction, the court shall, in addition to the sentence imposed, enter a protective order pursuant to § 16.1-279.1 for a specified period not exceeding two years from the date of conviction.
  5. A violation of this section may be prosecuted in the jurisdiction where the protective order was issued or in any county or city where any act constituting the violation of the protective order occurred.

    (1987, c. 700; 1988, c. 501; 1991, cc. 534, 715; 1992, c. 886; 1996, c. 866; 2003, c. 219; 2004, cc. 972, 980; 2007, cc. 745, 923; 2012, c. 637; 2013, cc. 761, 774; 2016, cc. 583, 585, 638; 2020, c. 487; 2021, Sp. Sess. I, cc. 184, 529.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 . As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 529, cl. 2 provides: "That the provisions of this act shall supersede and control any provision of Chapter 184 of the Acts of Assembly of 2021, Special Session I."

The 2003 amendments. - The 2003 amendment by c. 219 substituted "is" for "shall be" preceding "guilty" in the first sentence, and added the last sentence.

The 2004 amendments. - The 2004 amendments by cc. 972 and 980 are identical, and inserted the second and third sentences.

The 2007 amendments. - The 2007 amendments by cc. 745 and 923 are nearly identical, and added the second and third sentences in the first paragraph; and inserted "of any offense hereunder for which a mandatory minimum term of confinement is not specified" in the beginning of the first sentence in the second paragraph.

The 2012 amendments. - The 2012 amendment by c. 637 rewrote the first sentence of the first paragraph.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the last sentence of the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 583, in subsection C, deleted "serious" preceding "bodily injury," inserted "or stalks any party protected by the protective order in violation of § 18.2-60.3 ," and made a minor stylistic change.

The 2016 amendment by cc. 585 and 638 are identical, and designated the formerly undesignated first, second and third paragraphs subsections A, C and D, respectively; and added subsection B.

The 2020 amendments. - The 2020 amendment by c. 487 added subsection E.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 184, effective July 1, 2021, deleted "16.1-253" preceding "16.1-253.1" in subsections A and B.

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

CASE NOTES

"Serious bodily injury." - Definition of "serious bodily injury" in subsection E of § 16.1-283 is inapplicable to a case under § 16.1-253.2. By its terms, it applies only to § 16.1-283. Nolen v. Commonwealth, 53 Va. App. 593, 673 S.E.2d 920, 2009 Va. App. LEXIS 138 (2009).

"Serious bodily injury" under § 16.1-253.2 is one that can fairly and reasonably be deemed not trifling, grave, giving rise to apprehension, giving rise to considerable care, and attended with danger. The victim's injuries satisfied this definition when she was bruised and lacerated, bore marks on her body, bled, missed several days of work, and suffered pain, requiring medication for an extended period of time. Nolen v. Commonwealth, 53 Va. App. 593, 673 S.E.2d 920, 2009 Va. App. LEXIS 138 (2009).

Specifications of "serious injury" in § 18.2-371.1 do not limit the court's consideration of the term "serious bodily injury" in a case under § 16.1-253.2. They relate to a specific legislative concern, the protection of children in custodial relationships; furthermore, the statute expressly provides that the term "serious injury" is not limited to the enumerated specifications. Nolen v. Commonwealth, 53 Va. App. 593, 673 S.E.2d 920, 2009 Va. App. LEXIS 138 (2009).

Construction of "contact." - Neither the plain language of the statute nor the plain meaning of the word limits a contact to a direct one, and there is nothing to suggest that the prohibited contact cannot be through a social media platform. Green v. Commonwealth, 72 Va. App. 193, 843 S.E.2d 389, 2020 Va. App. LEXIS 174 (2020).

Sufficient evidence of furtive entry. - Defendant was properly convicted of a felony violation of § 16.1-253.2 because sufficient evidence demonstrated that defendant "furtively entered" the home a victim protected by a protective order, as the noise caused when defendant broke a window to enter the home did not cause the entry not to be "furtive," as the noise and brazenness of defendant's subsequent assault was irrelevant, since the violation was complete as soon as defendant entered the home. Calloway v. Commonwealth, 62 Va. App. 253, 746 S.E.2d 72, 2013 Va. App. LEXIS 222 (2013).

Evidence of social media contact supported conviction. - Evidence was sufficient to support defendant's conviction for violation of a protective order, as he intentionally directed the communication to the victim by using the public forum available through the social media forum, Twitter; the post specifically instructed anyone reading it to relay the message to the victim, and once she learned of the post, she viewed it and felt intimidated and shocked. Defendant intentionally contacted the victim, albeit indirectly. Green v. Commonwealth, 72 Va. App. 193, 843 S.E.2d 389, 2020 Va. App. LEXIS 174 (2020).

Sufficient evidence to support conviction. - Circumstantial evidence was sufficient to demonstrate that defendant was on the complaining party's property in violation of a protective order because (1) the complaining party received a phone call, which informed the party that defendant was released from jail; (2) about an hour later the complaining party, after hearing knocking at the bedroom window and front door, saw defendant walking away from the party's house; (3) the complaining party's friend and neighbor then heard knocking at the front door and saw defendant leave; and (4) a responding police officer then encountered defendant a block from the complaining party's house. Wright v. Commonwealth, No. 0003-13-2, 2014 Va. App. LEXIS 47 (Feb. 18, 2014).

Rational trier of fact could have concluded that defendant was guilty beyond a reasonable doubt of violating a protective order because there was sufficient evidence to find that defendant was present in the victim's house and that he was barred from the house; the protective order barring defendant from the premises was admitted into evidence, and defendant pawned rings taken from the jewelry box in the victim's bedroom, the obvious inference being he obtained the rings by entering the house. Davis v. Commonwealth, 65 Va. App. 485, 778 S.E.2d 557, 2015 Va. App. LEXIS 341 (2015).

Defendant was properly convicted of violating a preliminary protective order because the evidence was sufficient to establish that defendant made contact with the victim in violation of a protective order in that defendant's proximity to the victim's home while taking pictures posed a threat to the victim's mental and physical health and the victim's safety. Wyant v. Commonwealth, No. 0726-14-3, 2015 Va. App. LEXIS 104 (Mar. 31, 2015).

Victim's testimony that defendant gestured her in a threatening manner and made the sign of a pistol with his hand and then pulled an imaginary trigger, and judicial notice of the fact that defendant would have been within 1,000 feet of the victim anywhere in the subject parking lot was sufficient to support defendant's conviction for violating a protective order. Lee v. Commonwealth, No. 1896-14-2, 2015 Va. App. LEXIS 234 (July 28, 2015).

Evidence was sufficient to convict defendant of violating a protective order by committing an assault and battery that resulted in bodily injury because the victim testified that defendant bit her on the leg or knee and that she screamed; although defendant had forcibly entered the victim's house without permission and in violation of the protective order, she did not scream until after defendant had bitten her; the timing of her scream evinced pain and hurt based on defendant's bite; and, although the evidence did not demonstrate that defendant left bite marks on the victim, the Commonwealth was not required to prove that she suffered any observable wounds, cuts, or breaking of the skin to sustain a conviction. McGowan v. Commonwealth, 72 Va. App. 513, 850 S.E.2d 376, 2020 Va. App. LEXIS 289 (2020).

Conviction for violating protective order reversed. - Because insufficient evidence showed that defendant had notice of the terms of a protective order entered against her, and the victim never testified that a judge verbally ordered defendant to have no further contact with him, defendant's conviction for disobeying the terms of said order, in violation of § 16.1-279.1, was reversed and the warrant was dismissed. Hsiu Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594, 2008 Va. App. LEXIS 187 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

Contempt proceedings. - A juvenile and domestic relations (JDR) court may enforce, through indirect contempt proceedings, a provision of an emergency protective order granting the petitioner the possession of a companion animal when a magistrate has issued the emergency protective order. The contempt proceedings may be initiated by a JDR court through the issuance of a show cause summons. A JDR court has discretion in imposing punishment for a violation of a companion animal provision in an emergency protective order, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury. See opinion of Attorney General to Honorable Anita D. Filson, Chief Judge, Juvenile and Domestic Relations District Court for the 25th Judicial District, No. 14-033, 2014 Va. AG LEXIS 62 (11/21/14).

§ 16.1-253.3.

Repealed by Acts 1992, c. 886.

§ 16.1-253.4. Emergency protective orders authorized in certain cases; penalty.

  1. Any judge of a circuit court, general district court, juvenile and domestic relations district court or magistrate may issue a written or oral ex parte emergency protective order pursuant to this section in order to protect the health or safety of any person.
  2. When a law-enforcement officer or an allegedly abused person asserts under oath to a judge or magistrate, and on that assertion or other evidence the judge or magistrate (i) finds that a warrant for a violation of § 18.2-57.2 has been issued or issues a warrant for violation of § 18.2-57.2 and finds that there is probable danger of further acts of family abuse against a family or household member by the respondent or (ii) finds that reasonable grounds exist to believe that the respondent has committed family abuse and there is probable danger of a further such offense against a family or household member by the respondent, the judge or magistrate shall issue an ex parte emergency protective order, except if the respondent is a minor, an emergency protective order shall not be required, imposing one or more of the following conditions on the respondent:
    1. Prohibiting acts of family abuse or criminal offenses that result in injury to person or property;
    2. Prohibiting such contacts by the respondent with the allegedly abused person or family or household members of the allegedly abused person, including prohibiting the respondent from being in the physical presence of the allegedly abused person or family or household members of the allegedly abused person, as the judge or magistrate deems necessary to protect the safety of such persons;
    3. Granting the family or household member possession of the premises occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property; and
    4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500. When the judge or magistrate considers the issuance of an emergency protective order pursuant to clause (i), he shall presume that there is probable danger of further acts of family abuse against a family or household member by the respondent unless the presumption is rebutted by the allegedly abused person.
  3. An emergency protective order issued pursuant to this section shall expire at 11:59 p.m. on the third day following issuance. If the expiration occurs on a day that the court is not in session, the emergency protective order shall be extended until 11:59 p.m. on the next day that the juvenile and domestic relations district court is in session. When issuing an emergency protective order under this section, the judge or magistrate shall provide the protected person or the law-enforcement officer seeking the emergency protective order with the form for use in filing petitions pursuant to § 16.1-253.1 and written information regarding protective orders that shall include the telephone numbers of domestic violence agencies and legal referral sources on a form prepared by the Supreme Court. If these forms are provided to a law-enforcement officer, the officer may provide these forms to the protected person when giving the emergency protective order to the protected person. The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order issued hereunder. The hearing on the motion shall be given precedence on the docket of the court.
  4. A law-enforcement officer may request an emergency protective order pursuant to this section and, if the person in need of protection is physically or mentally incapable of filing a petition pursuant to § 16.1-253.1 or 16.1-279.1, may request the extension of an emergency protective order for an additional period of time not to exceed three days after expiration of the original order. The request for an emergency protective order or extension of an order may be made orally, in person or by electronic means, and the judge of a circuit court, general district court, or juvenile and domestic relations district court or a magistrate may issue an oral emergency protective order. An oral emergency protective order issued pursuant to this section shall be reduced to writing, by the law-enforcement officer requesting the order or the magistrate on a preprinted form approved and provided by the Supreme Court of Virginia. The completed form shall include a statement of the grounds for the order asserted by the officer or the allegedly abused person.
  5. The court or magistrate shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court or magistrate. A copy of an emergency protective order issued pursuant to this section containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the respondent. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. One copy of the order shall be given to the allegedly abused person when it is issued, and one copy shall be filed with the written report required by subsection D of § 19.2-81.3. The judge or magistrate who issues an oral order pursuant to an electronic request by a law-enforcement officer shall verify the written order to determine whether the officer who reduced it to writing accurately transcribed the contents of the oral order. The original copy shall be filed with the clerk of the juvenile and domestic relations district court within five business days of the issuance of the order. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court. Upon request, the clerk shall provide the allegedly abused person with information regarding the date and time of service.
  6. The availability of an emergency protective order shall not be affected by the fact that the family or household member left the premises to avoid the danger of family abuse by the respondent.
  7. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
  8. As used in this section, "law-enforcement officer" means (i) any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; (ii) any member of an auxiliary police force established pursuant to § 15.2-1731 ; and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 . Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office.
  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. As used in this section:

    "Copy" includes a facsimile copy.

    "Physical presence" includes (i) intentionally maintaining direct visual contact with the petitioner or (ii) unreasonably being within 100 feet from the petitioner's residence or place of employment.

  11. No fee shall be charged for filing or serving any petition or order pursuant to this section.
  12. Except as provided in § 16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court.
  13. Upon issuance of an emergency protective order, the clerk of court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1991, c. 715; 1992, c. 742; 1994, c. 907; 1996, c. 866; 1997, c. 603; 1998, cc. 677, 684; 1999, c. 807; 2001, c. 474; 2002, cc. 508, 706, 810, 818; 2007, cc. 396, 661; 2008, cc. 73, 246; 2009, c. 732; 2011, cc. 445, 480; 2012, cc. 637, 827; 2014, cc. 346, 779, 797; 2016, c. 455; 2018, c. 652.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendments. - The 1998 amendment by c. 677, in subsection D, inserted the language beginning "and, if the person" following "to this section" in the first sentence and inserted the language beginning "The request" and ending "may be made" at the beginning of the present second sentence.

The 1998 amendment by c. 684, in subsection C, in the first sentence, deleted "at 5 p.m. on the next business day that the juvenile and domestic relations court is in session or" following "section shall expire" and deleted "which ever is later," and added the present second sentence; in subsection E, substituted "Virginia criminal information network" for "Virginia crime information network" in the first and second sentences and substituted "verified by" for "forwarded for verification to" in the fourth sentence; in subsection H, in the first sentence, inserted the clause (i) designation and inserted clause (ii); and added subsection I.

The 1999 amendment inserted "except if the respondent is a minor, an emergency protective order shall not be required" near the end of clause (ii) of subsection B.

The 2001 amendments. - The 2001 amendment by c. 474 added the second sentence in subsection E.

The 2002 amendments. - The 2002 amendment by c. 508 substituted "Upon" for "As soon as practicable after" at the beginning of subsection E; inserted present subsection I and redesignated former subsection I as subsection J; and added subsection K.

The 2002 amendment by c. 706, in subsection E, inserted the fifth sentence, deleted "verified by the judge or magistrate who issued the order and then" preceding "filed" in the sixth sentence, and substituted "shall be" for "shall also be attested" in the next-to-last sentence.

The 2002 amendments by cc. 810 and 818 are identical, and in subsection E, substituted "Upon" for "As soon as practicable after" in the first sentence and deleted "feasible and" preceding "practical" in the second sentence.

The 2007 amendments. - The 2007 amendment by c. 396, in subsection B, substituted "(i) finds that a warrant" for "finds that (i) a warrant" at the beginning and "issued or issues a warrant for violation of § 18.2-57.2 and finds that there" for "issued and there" near the end of clause (i), inserted "finds that" at the beginning of clause (ii), and added the last paragraph.

The 2007 amendment by c. 661, in subsection C, inserted the third and fourth sentences, and inserted "issued hereunder" at the end of the fifth sentence.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and, in subsection C, substituted "expire at the end of the third day following issuance" for "seventy-two hours after issuance" in the first sentence, and deleted "of the seventy-two hour period" following "If the expiration" and substituted "the end" for "5 p.m." near the beginning of the second sentence; substituted "three days" for "seventy-two hours" in the first sentence of subsection D; rewrote subsection E; and added subsection L.

The 2009 amendments. - The 2009 amendment by c. 732, in subsection C, in the first sentence, substituted "11:59 p.m. on" for "the end of," in the second sentence, substituted "on a day" for "at a time" and "11:59 p.m. on" for "the end of" and deleted "business" preceding "day that the"; in subsection E, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted 'and addendum" preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection L, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and added "or criminal offenses that result in injury to person or property" in subdivision B 1; deleted "of this subsection" following "clause (i)" in the last paragraph in subsection B; made a minor stylistic change in subsection D; and corrected the subsection reference near the middle in subsection E.

The 2012 amendments. - The 2012 amendment by c. 637 inserted "the allegedly abused person or" and substituted "of the allegedly abused person" for "of the respondent" in subdivision B 2.

The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " at the end of H (ii).

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision B 4, made related changes, and added subsection L.

The 2014 amendments by cc. 779 and 797 are identical and, in subsection H, substituted "(i) any" for "any (i)," inserted "any" following "(ii)," inserted "and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 ," and made stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 455, in subdivision B 2, inserted "including prohibiting the respondent from being in the physical presence of the allegedly abused person or family or household members of the allegedly abused person"; and in subsection J, added the definition of "Physical presence" and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection M.

Law review. - For an article relating to recent changes of formidable importance in major areas of domestic relations, both nationally and in Virginia, see 32 U. Rich. L. Rev. 1165 (1998).

For article, "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-203 Emergency Protective Order - Family Abuse.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 5; 3B M.J. Civil Rights, § 2; 9B M.J. Husband and Wife, § 87.

CASE NOTES

Police officer brandishing firearm at wife. - In the context of procedural due process protections, it was perfectly reasonable for an investigating officer to have obtained an emergency protective order from the magistrate judge who issued an arrest warrant for another police officer where the officer was charged with brandishing a firearm at his wife during a heated argument. Myers v. Shaver, 245 F. Supp. 2d 805, 2003 U.S. Dist. LEXIS 2547 (W.D. Va. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

Petition for protective orders by law enforcement on behalf of minors. - Law-enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse, stalking, sexual assault or other acts of criminal violence. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Contempt proceedings. - A juvenile and domestic relations (JDR) court may enforce, through indirect contempt proceedings, a provision of an emergency protective order granting the petitioner the possession of a companion animal when a magistrate has issued the emergency protective order. The contempt proceedings may be initiated by a JDR court through the issuance of a show cause summons. A JDR court has discretion in imposing punishment for a violation of a companion animal provision in an emergency protective order, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury. See opinion of Attorney General to Honorable Anita D. Filson, Chief Judge, Juvenile and Domestic Relations District Court for the 25th Judicial District, No. 14-033, 2014 Va. AG LEXIS 62 (11/21/14).

Meaning of "primary law-enforcement agency.” - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10. See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 16.1-254. Responsibility for and limitation on transportation of children.

  1. The detention home having custody or responsibility for supervision of a child pursuant to §§ 16.1-246, 16.1-247, 16.1-248.1, 16.1-249, and 16.1-250 shall be responsible for transportation of the child to all local medical appointments, dental appointments, psychological and psychiatric evaluations. Transportation of youth to special placements pursuant to § 16.1-286 shall be the responsibility of the court service unit.
  2. However, the chief judge of the juvenile and domestic relations district court, on the basis of guidelines approved by the Board, shall designate the appropriate agencies in each county, city and town, other than the Department of State Police, to be responsible for (i) the transportation of violent and disruptive children and (ii) the transportation of children to destinations other than those set forth in subsection A of this section, pursuant to §§ 16.1-246, 16.1-247, 16.1-248.1, 16.1-249, and 16.1-250, and as otherwise ordered by the judge.

    No child shall be transported with adults suspected of or charged with criminal acts.

    (Code 1950, § 16.1-196; 1956, c. 555; 1958, c. 344; 1971, Ex. Sess., c. 109; 1973, c. 440; 1974, c. 358; 1977, c. 559; 1979, c. 202; 1990, cc. 629, 673.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

OPINIONS OF THE ATTORNEY GENERAL

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-255. Limitation on issuance of detention orders for juveniles; appearance by juvenile.

No detention order shall be issued for any juvenile except when authorized by the judge or intake officer of a juvenile court or by a magistrate as provided in § 16.1-256.

In matters involving the issuance of detention orders each state or local court service unit shall ensure the capability of a prompt response by an intake officer who is either on duty or on call.

A child may appear before an intake officer either (i) by personal appearance before the intake officer or (ii) by the use of two-way electronic video and audio communication. All communications and proceedings shall be conducted in the same manner and the intake officer shall have the same powers as if the appearance were in person. Any documents filed may be transmitted by facsimile and the facsimile and any signatures thereon shall serve, for all purposes, as an original document. Any two-way electronic video and audio communication system used shall comply with the provisions of subsection B of § 19.2-3.1.

(1977, c. 559; 1985, c. 260; 1996, cc. 755, 914; 1997, c. 862; 2002, c. 700.)

Cross references. - As to the provision of court services and replacement intake officers, see § 16.1-235.1.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2 and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in the first paragraph, substituted "juvenile" for "child" and inserted "or by a magistrate as provided in § 16.1-256."

The 2002 amendments. - The 2002 amendment by c. 700 added the last paragraph.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

§ 16.1-256. Limitations as to issuance of warrants for juveniles; detention orders.

No warrant of arrest shall be issued for any juvenile by a magistrate, except as follows:

  1. As provided in § 16.1-260 on appeal from a decision of an intake officer to refuse to authorize a petition based solely upon a finding that no probable cause exists; or
  2. Upon a finding of probable cause to believe that the child is in need of services or is a delinquent, when (i) the court is not open and (ii) the judge and the intake officer of the juvenile and domestic relations district court are not reasonably available. For purposes of this section, the phrase "not reasonably available" means that neither the judge nor the intake officer of the juvenile and domestic relations district court could be reached after the appearance by the juvenile before a magistrate or that neither could arrive within one hour after he was contacted.

    When a magistrate is authorized to issue a warrant pursuant to subdivision 2, he may also issue a detention order, if the criteria for detention set forth in § 16.1-248.1 have been satisfied.

    Warrants issued pursuant to this section shall be delivered forthwith to the juvenile court.

    (Code 1950, § 16.1-195; 1956, c. 555; 1958, c. 344; 1973, c. 440; 1977, c. 559; 1979, c. 701; 1980, c. 234; 1981, c. 184; 1983, c. 349; 1986, c. 295; 1996, cc. 755, 914; 2021, Sp. Sess. I, c. 30.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendment by c. 755, in the first sentence, substituted "juvenile" for "child" in the introductory paragraph, redesignated former subdivision 3 as present subdivision 2, and in present subdivision 2, inserted "or" following "is not open," deleted "and" following "not reasonably available," and deleted clause (iii) which read: "the criteria for detention or shelter care set forth in § 16.1-248.1 have been satisfied," and in the second sentence, substituted "means" for "shall mean," inserted "neither" following "that," substituted "nor the intake officer" for "or the intake officer," deleted "not" following "court could," and deleted "not" following "or could" and added the second paragraph of subdivision 2.

The 1996 amendment by c. 914 substituted "juvenile" for "child" following "shall be issued for any" in the first paragraph, redesignated former subdivision 3 as present subdivision 2, and in the first sentence, inserted "and" following "is not open" in clause (i), deleted "and" following "are not reasonably available" in clause (ii), and deleted clause (ii) which read: "the criteria for detention or shelter care set forth in § 16.1-248.1 have been satisfied," in the second sentence, substituted "means that neither the judge nor the intake officer" for "shall mean that the judge or intake officer" following "'not reasonably available'," deleted "not" following "domestic relations district court could," and substituted "or that neither could arrive" for "or could not arrive" following "by the juvenile before a magistrate" and added the present second paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 30, effective July 1, 2021, inserted "to refuse to authorize a petition based solely upon a finding that no probable cause exists" in subdivision 1.

Law review. - For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

§ 16.1-257. Interference with or obstruction of officer; concealment or removal of child.

No person shall interfere with or obstruct any officer, juvenile probation officer or other officer or employee of the court in the discharge of his duties under this law, nor remove or conceal or cause to be removed or concealed any child in order that he or she may not be brought before the court, nor interfere with or remove or attempt to remove any child who is in the custody of the court or of an officer or who has been lawfully committed under this law. Any person willfully violating any provision of this section is guilty of a Class 1 misdemeanor.

(Code 1950, § 16.1-191; 1956, c. 555; 1977, c. 559.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 16.1-258. Bonds and forfeitures thereof.

All bonds and other undertakings taken and approved by any judicial officer as defined in § 19.2-119, either for the appearance of any person or for the performance of any other duty or undertaking set forth in the bond, shall be valid and enforceable even if the principal in the bond shall be a person under eighteen years of age. In the event of a failure upon the part of the principal or sureties in any bond taken in such court to faithfully carry out and discharge the undertakings of such bond, the judge shall have the right to declare the bond forfeited in accordance with § 19.2-143. The complainant in nonsupport cases shall not be required to furnish an indemnifying bond.

(Code 1950, § 16.1-189; 1956, c. 555; 1973, c. 440; 1977, c. 559; 1986, c. 26.)

Article 5. Intake, Petition and Notice.

§ 16.1-259. Procedure in cases of adults.

  1. In cases where an adult is charged with violations of the criminal law pursuant to subsection I or J of § 16.1-241, the procedure and disposition applicable in the trial of such cases in general district court shall be applicable to trial in juvenile court. The provisions of this law shall govern in all other cases involving adults.
  2. Proceedings in cases of adults may be instituted on petition by any interested party, or on a warrant issued as provided by law, or upon the court's own motion.
  3. Proceedings in cases of adults under the age of 21 who are alleged to have committed, before attaining the age of 18, an offense that would be a crime if committed by an adult shall be commenced by the filing of a petition.
  4. Proceedings for violations of probation or parole in cases of adults under the age of 21 where jurisdiction is retained pursuant to § 16.1-242 shall be commenced by the filing of a petition.

    (Code 1950, § 16.1-186; 1956, c. 555; 1977, c. 559; 1986, c. 95; 2016, c. 626.)

Cross references. - For provision on amendment of written pleadings, see Rule 8:8, Juvenile and Domestic Relations District Court Rules.

Editor's note. - In subsection A, "subsection I or J" was substituted for "subdivisions I or J" at the direction of the Virginia Code Commission.

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2016 amendments. - The 2016 amendment by c. 626 added subsections C and D.

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Applied in Burke v. Commonwealth, 29 Va. App. 183, 510 S.E.2d 743 (1999).

§ 16.1-260. Intake; petition; investigation.

  1. All matters alleged to be within the jurisdiction of the court shall be commenced by the filing of a petition, except as provided in subsection H and in § 16.1-259. The form and content of the petition shall be as provided in § 16.1-262. No individual shall be required to obtain support services from the Department of Social Services prior to filing a petition seeking support for a child. Complaints, requests, and the processing of petitions to initiate a case shall be the responsibility of the intake officer. However, (i) the attorney for the Commonwealth of the city or county may file a petition on his own motion with the clerk; (ii) designated nonattorney employees of the Department of Social Services may complete, sign, and file petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia with the clerk; (iii) designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause; and (iv) any attorney may file petitions on behalf of his client with the clerk except petitions alleging that the subject of the petition is a child alleged to be in need of services, in need of supervision, or delinquent. Complaints alleging abuse or neglect of a child shall be referred initially to the local department of social services in accordance with the provisions of Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2. Motions and other subsequent pleadings in a case shall be filed directly with the clerk. The intake officer or clerk with whom the petition or motion is filed shall inquire whether the petitioner is receiving child support services or public assistance. No individual who is receiving support services or public assistance shall be denied the right to file a petition or motion to establish, modify, or enforce an order for support of a child. If the petitioner is seeking or receiving child support services or public assistance, the clerk, upon issuance of process, shall forward a copy of the petition or motion, together with notice of the court date, to the Division of Child Support Enforcement. If a petitioner is seeking to establish child support, the intake officer shall provide the petitioner information on the possible availability of medical assistance through the Family Access to Medical Insurance Security (FAMIS) plan or other government-sponsored coverage through the Department of Medical Assistance Services.
  2. The appearance of a child before an intake officer may be by (i) personal appearance before the intake officer or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, an intake officer may exercise all powers conferred by law. All communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. The facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1. When the court service unit of any court receives a complaint alleging facts which may be sufficient to invoke the jurisdiction of the court pursuant to § 16.1-241, the unit, through an intake officer, may proceed informally to make such adjustment as is practicable without the filing of a petition or may authorize a petition to be filed by any complainant having sufficient knowledge of the matter to establish probable cause for the issuance of the petition. An intake officer may proceed informally on a complaint alleging a child is in need of services, in need of supervision, or delinquent only if the juvenile (a) is not alleged to have committed a violent juvenile felony or (b) has not previously been proceeded against informally or adjudicated delinquent for an offense that would be a felony if committed by an adult. A petition alleging that a juvenile committed a violent juvenile felony shall be filed with the court. A petition alleging that a juvenile is delinquent for an offense that would be a felony if committed by an adult shall be filed with the court if the juvenile had previously been proceeded against informally by intake or had been adjudicated delinquent for an offense that would be a felony if committed by an adult. If a juvenile is alleged to be a truant pursuant to a complaint filed in accordance with § 22.1-258 and the attendance officer has provided documentation to the intake officer that the relevant school division has complied with the provisions of § 22.1-258, then the intake officer shall file a petition with the court. The intake officer may defer filing the petition and proceed informally by developing a truancy plan, provided that (1) the juvenile has not previously been proceeded against informally or adjudicated in need of supervision on more than two occasions for failure to comply with compulsory school attendance as provided in § 22.1-254 and (2) the immediately previous informal action or adjudication occurred at least three calendar years prior to the current complaint. The juvenile and his parent or parents, guardian, or other person standing in loco parentis must agree, in writing, for the development of a truancy plan. The truancy plan may include requirements that the juvenile and his parent or parents, guardian, or other person standing in loco parentis participate in such programs, cooperate in such treatment, or be subject to such conditions and limitations as necessary to ensure the juvenile's compliance with compulsory school attendance as provided in § 22.1-254. The intake officer may refer the juvenile to the appropriate public agency for the purpose of developing a truancy plan using an interagency interdisciplinary team approach. The team may include qualified personnel who are reasonably available from the appropriate department of social services, community services board, local school division, court service unit, and other appropriate and available public and private agencies and may be the family assessment and planning team established pursuant to § 2.2-5207 . If at the end of the deferral period the juvenile has not successfully completed the truancy plan or the truancy program, then the intake officer shall file the petition. Whenever informal action is taken as provided in this subsection on a complaint alleging that a child is in need of services, in need of supervision, or delinquent, the intake officer shall (A) develop a plan for the juvenile, which may include restitution, the performance of community service, or on a complaint alleging that a child has committed a delinquent act other than an act that would be a felony or a Class 1 misdemeanor if committed by an adult and with the consent of the juvenile's parent or legal guardian, referral to a youth justice diversion program established pursuant to § 16.1-309.11, based upon community resources and the circumstances which resulted in the complaint, (B) create an official record of the action taken by the intake officer and file such record in the juvenile's case file, and (C) advise the juvenile and the juvenile's parent, guardian, or other person standing in loco parentis and the complainant that any subsequent complaint alleging that the child is in need of supervision or delinquent based upon facts which may be sufficient to invoke the jurisdiction of the court pursuant to § 16.1-241, or in the case of a referral to a youth justice diversion program established pursuant to § 16.1-309.11, that any subsequent report from the youth justice diversion program alleging that the juvenile failed to comply with the youth justice diversion program's sentence within 180 days of the sentencing date, may result in the filing of a petition with the court.
  3. The intake officer shall accept and file a petition in which it is alleged that (i) the custody, visitation, or support of a child is the subject of controversy or requires determination, (ii) a person has deserted, abandoned, or failed to provide support for any person in violation of law, (iii) a child or such child's parent, guardian, legal custodian, or other person standing in loco parentis is entitled to treatment, rehabilitation, or other services which are required by law, (iv) family abuse has occurred and a protective order is being sought pursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1, or (v) an act of violence, force, or threat has occurred, a protective order is being sought pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10, and either the alleged victim or the respondent is a juvenile. If any such complainant does not file a petition, the intake officer may file it. In cases in which a child is alleged to be abused, neglected, in need of services, in need of supervision, or delinquent, if the intake officer believes that probable cause does not exist, or that the authorization of a petition will not be in the best interest of the family or juvenile or that the matter may be effectively dealt with by some agency other than the court, he may refuse to authorize the filing of a petition. The intake officer shall provide to a person seeking a protective order pursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1 a written explanation of the conditions, procedures and time limits applicable to the issuance of protective orders pursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1. If the person is seeking a protective order pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10, the intake officer shall provide a written explanation of the conditions, procedures, and time limits applicable to the issuance of protective orders pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10.
  4. Prior to the filing of any petition alleging that a child is in need of supervision, the matter shall be reviewed by an intake officer who shall determine whether the petitioner and the child alleged to be in need of supervision have utilized or attempted to utilize treatment and services available in the community and have exhausted all appropriate nonjudicial remedies which are available to them. When the intake officer determines that the parties have not attempted to utilize available treatment or services or have not exhausted all appropriate nonjudicial remedies which are available, he shall refer the petitioner and the child alleged to be in need of supervision to the appropriate agency, treatment facility, or individual to receive treatment or services, and a petition shall not be filed. Only after the intake officer determines that the parties have made a reasonable effort to utilize available community treatment or services may he permit the petition to be filed.
  5. If the intake officer refuses to authorize a petition relating to an offense that if committed by an adult would be punishable as a Class 1 misdemeanor or as a felony, when such refusal is based solely upon a finding that no probable cause exists, the complainant shall be notified in writing at that time of the complainant's right to apply to a magistrate for a warrant. The application for a warrant to the magistrate shall be filed within 10 days of the issuance of the written notification. The written notification shall indicate that the intake officer made a finding that no probable cause exists and shall provide notice that the complainant has 10 days to apply for a warrant to the magistrate. The complainant shall provide the magistrate with a copy of the written notification upon application to the magistrate. If a magistrate determines that probable cause exists, he shall issue a warrant returnable to the juvenile and domestic relations district court. The warrant shall be delivered forthwith to the juvenile court, and the intake officer shall accept and file a petition founded upon the warrant. If the court is closed and the magistrate finds that the criteria for detention or shelter care set forth in § 16.1-248.1 have been satisfied, the juvenile may be detained pursuant to the warrant issued in accordance with this subsection. If the intake officer refuses to authorize a petition relating to a child in need of services or in need of supervision, a status offense, or a misdemeanor other than Class 1, his decision is final. If the intake officer refuses to authorize a petition relating to an offense that if committed by an adult would be punishable as a Class 1 misdemeanor or as a felony when such refusal is based upon a finding that (i) probable cause exists, but that (ii) the matter is appropriate for diversion, his decision is final and the complainant shall not have a right to apply to a magistrate for a warrant.

    Upon delivery to the juvenile court of a warrant issued pursuant to subdivision 2 of § 16.1-256, the intake officer shall accept and file a petition founded upon the warrant.

  6. The intake officer shall notify the attorney for the Commonwealth of the filing of any petition which alleges facts of an offense which would be a felony if committed by an adult.
  7. Notwithstanding the provisions of Article 12 (§ 16.1-299 et seq.), the intake officer shall file a report with the division superintendent of the school division in which any student who is the subject of a petition alleging that such student who is a juvenile has committed an act, wherever committed, which would be a crime if committed by an adult, or that such student who is an adult has committed a crime and is alleged to be within the jurisdiction of the court. The report shall notify the division superintendent of the filing of the petition and the nature of the offense, if the violation involves:
    1. A firearm offense pursuant to Article 4 (§ 18.2-279 et seq.), 5 (§ 18.2-288 et seq.), 6 (§ 18.2-299 et seq.), 6.1 (§ 18.2-307.1 et seq.), or 7 (§ 18.2-308.1 et seq.) of Chapter 7 of Title 18.2;
    2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
    3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
    4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
    5. Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
    6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
    7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2;
    8. Burglary and related offenses, pursuant to §§ 18.2-89 through 18.2-93 ;
    9. Robbery pursuant to § 18.2-58 ;
    10. Prohibited criminal street gang activity pursuant to § 18.2-46.2 ;
    11. Recruitment of other juveniles for a criminal street gang activity pursuant to § 18.2-46.3 ;
    12. An act of violence by a mob pursuant to § 18.2-42.1 ;
    13. Abduction of any person pursuant to § 18.2-47 or 18.2-48 ; or
    14. A threat pursuant to § 18.2-60 . The failure to provide information regarding the school in which the student who is the subject of the petition may be enrolled shall not be grounds for refusing to file a petition. The information provided to a division superintendent pursuant to this section may be disclosed only as provided in § 16.1-305.2.
  8. The filing of a petition shall not be necessary:
    1. In the case of violations of the traffic laws, including offenses involving bicycles, hitchhiking and other pedestrian offenses, game and fish laws, or a violation of the ordinance of any city regulating surfing or any ordinance establishing curfew violations, animal control violations, or littering violations. In such cases the court may proceed on a summons issued by the officer investigating the violation in the same manner as provided by law for adults. Additionally, an officer investigating a motor vehicle accident may, at the scene of the accident or at any other location where a juvenile who is involved in such an accident may be located, proceed on a summons in lieu of filing a petition.
    2. In the case of seeking consent to apply for the issuance of a work permit pursuant to subsection H of § 16.1-241.
    3. In the case of a misdemeanor violation of § 18.2-266 , 18.2-266.1 , or 29.1-738 or the commission of any other alcohol-related offense, provided that the juvenile is released to the custody of a parent or legal guardian pending the initial court date. The officer releasing a juvenile to the custody of a parent or legal guardian shall issue a summons to the juvenile and shall also issue a summons requiring the parent or legal guardian to appear before the court with the juvenile. Disposition of the charge shall be in the manner provided in § 16.1-278.8, 16.1-278.8:01, or 16.1-278.9. If the juvenile so charged with a violation of § 18.2-51.4 , 18.2-266 , 18.2-266.1 , 18.2-272 , or 29.1-738 refuses to provide a sample of blood or breath or samples of both blood and breath for chemical analysis pursuant to §§ 18.2-268.1 through 18.2-268.12 or 29.1-738.2 , the provisions of these sections shall be followed except that the magistrate shall authorize execution of the warrant as a summons. The summons shall be served on a parent or legal guardian and the juvenile, and a copy of the summons shall be forwarded to the court in which the violation is to be tried. When a violation of § 4.1-305 is charged by summons, the juvenile shall be entitled to have the charge referred to intake for consideration of informal proceedings pursuant to subsection B, provided that such right is exercised by written notification to the clerk not later than 10 days prior to trial. At the time such summons alleging a violation of § 4.1-305 is served, the officer shall also serve upon the juvenile written notice of the right to have the charge referred to intake on a form approved by the Supreme Court and make return of such service to the court. If the officer fails to make such service or return, the court shall dismiss the summons without prejudice.
    4. In the case of offenses which, if committed by an adult, would be punishable as a Class 3 or Class 4 misdemeanor. In such cases the court may direct that an intake officer proceed as provided in § 16.1-237 on a summons issued by the officer investigating the violation in the same manner as provided by law for adults provided that notice of the summons to appear is mailed by the investigating officer within five days of the issuance of the summons to a parent or legal guardian of the juvenile.
  9. Failure to comply with the procedures set forth in this section shall not divest the juvenile court of the jurisdiction granted it in § 16.1-241.

    (Code 1950, § 16.1-164; 1956, c. 555; 1972, cc. 672, 835; 1973, c. 440; 1977, c. 559; 1979, c. 701; 1982, c. 91; 1983, c. 349; 1985, c. 488; 1986, c. 381; 1987, cc. 203, 632; 1988, cc. 792, 803; 1990, c. 742; 1991, cc. 496, 511, 534; 1992, cc. 502, 527, 542; 1993, c. 981; 1995, cc. 347, 429; 1996, cc. 755, 914; 1997, c. 862; 1999, cc. 54, 526, 952; 2002, c. 747; 2003, c. 587; 2004, cc. 105, 255, 309, 416, 517, 558; 2006, c. 677; 2008, cc. 136, 845; 2009, cc. 385, 726; 2010, c. 742; 2011, cc. 384, 410, 825; 2012, c. 637; 2013, c. 746; 2014, cc. 674, 719; 2016, c. 704; 2018, cc. 281, 312; 2019, cc. 106, 206; 2020, cc. 753, 1285, 1286; 2021 Sp. Sess. I, cc. 30, 206, 457, 550, 551.)

Cross references. - As to the provision of court services and replacement intake officers, see § 16.1-235.1.

As to punishment for Class 3 and Class 4 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2008, cc. 136 and 845, cl. 2 provides: "That the provisions of this act amending subsection A of § 16.1-260 and the provisions of this act amending § 54.1-3900 are declarative of existing law."

Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2016, c. 704, cl. 2 provides: "That nothing in this bill shall be construed to invalidate prior filings or petitions by local departments of social services or by their employees on behalf of the local department prior to July 1, 2016."'

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and, substituted "juvenile" for "child" throughout the section, substituted "subsection H" for "subsection E" in the first sentence of subsection A, added present subsection B, inserted the subdivision B 1 designation, added the second and third paragraphs following subdivision B 1, redesignated former subsections C through G as present subsections D through I, substituted "subsection 2 of § 16.1-256" for "subsection 3 of § 16.1-256" near the middle of the second paragraph of present subsection E, and in present subdivision G 8, inserted "and related offenses" following "Burglary" and inserted "through 18.2-93 " following "18.2-89."

The 1999 amendments. - The 1999 amendment by c. 54, in subsection C, deleted "or" preceding clause (iii), added "or" at the end of clause (iii), and added clause (iv).

The 1999 amendment by c. 526, in subsection B, deleted the subdivision 1 designator from the second paragraph, in the third paragraph, deleted "However" at the beginning of the paragraph, substituted "(ii) has not previously been proceeded against informally or adjudicated in need of supervision or delinquent; or (iii) is not the subject of a complaint filed pursuant to § 22.1-258 and the attendance officer has provided documentation to the intake officer or magistrate that the relevant school division has complied with the provisions of § 22.1-258" for "or (ii) has not previously been adjudicated in need of supervision or delinquent," and inserted "been proceeded against informally by intake or had" in the last sentence; and deleted "is" preceding "in need of supervision" in the fourth paragraph.

The 1999 amendment by c. 952 rewrote subdivision G 1, which formerly read: "The unlawful purchase, possession or use of a weapon pursuant to Article 4 ( § 18.2-279 et seq.) of Chapter 7 of Title 18.2," and added subdivision G 9.

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, in subsection A, deleted "public welfare or" preceding "social services" and substituted "Chapter 15 ( § 63.2-1500 et seq.) of Title 63.2" for "Chapter 12.1 ( § 63.1-248.1 et seq.) of Title 63.1" in the fifth sentence.

The 2003 amendments. - The 2003 amendment by c. 587, in subsection B, in the third paragraph, inserted "or" preceding clause (ii), and deleted former clause (iii), which read: "is not the subject of a complaint filed pursuant to § 22.1-258 and the attendance officer has provided documentation to the intake officer or magistrate that the relevant school division has complied with the provisions of § 22.1-258," and added the present fourth paragraph.

The 2004 amendments. - The 2004 amendment by c. 105 added "or littering violations" at the end of the first sentence in subdivision H 1 and made a stylistic change.

The 2004 amendment by c. 255 added the last sentence in subsection C; and substituted "subsection" for "subdivision" in subdivision H 2.

The 2004 amendment by c. 309, in subsection B, in the third paragraph, substituted "in need of supervision or delinquent" for "delinquent for an offense that would be a felony if committed by an adult" in the first and third sentences, and deleted "in need of supervision of" preceding "delinquent" at the end of the third sentence.

The 2004 amendment by c. 416 added subdivision G 10 and made minor stylistic changes.

The 2004 amendment by c. 517 rewrote the introductory paragraph in subsection G, which read: "After a petition is filed alleging that a juvenile committed an act, which would be a crime if committed by an adult, the intake officer shall, as soon as practicable, provide notice by telephone of the filing of the petition and the nature of the offense to the superintendent of the school division in which the petitioner alleges the juvenile is or should be enrolled, provided the violation involves:"; inserted subdivisions G 11 and G 12, deleted the former first sentence of the first paragraph after subdivision G 13, which read: "Promptly after filing a petition the intake officer shall also mail notice, by first class mail, to the superintendent"; and substituted "subsection H" for "subdivision H" in subdivision H 2.

The 2004 amendment by c. 558 added subdivisions G 10 and G 13 and made a related change; and substituted "subsection" for "subdivision" in subdivision H 2.

The 2006 amendments. - The 2006 amendment by c. 677, in subdivision H 3, deleted " § " preceding "29.1-738" in the first sentence, in the fourth sentence, inserted "18.2-51.4" and "18.2-266.1, 18.2-272 " and made a minor sylistic change, and deleted "of § 18.2-266 or § 29.1-738 " preceding "is to be tried" in the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 136 and 845 are nearly identical, and substituted "designated nonattorney employees of the Department of Social Services may complete, sign and file petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia" for "the Department of Social Services may file support on its own motion" in clause (ii) of subsection A; and made minor stylistic changes.

The 2009 amendments. - The 2009 amendment by c. 385, in subsection G, deleted former subdivision G 10, which read: "Prohibited street gang participation pursuant to § 18.2-46.2 " and redesignated former subdivisions G 11 through G 13 as subdivisions G 10 and G 12; and substituted "An act of violence by a mob pursuant to § 18.2-42.1 " for "Recruitment of juveniles for criminal street gang pursuant to § 18.2-46.3 " in subdivision G 12.

The 2009 amendment by c. 726 added "for an offense that would be a felony if committed by an adult" at the end of the third paragraph of subsection B.

The 2010 amendments. - The 2010 amendment by c. 742 inserted "or that such student who is an adult has committed a crime and is alleged to be within the jurisdiction of the court" in the first sentence of subsection G; and substituted "student" for "juvenile" in the next-to-last paragraph of subsection G.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "or synthetic cannabinoids" in subdivision G 6.

The 2011 amendment by c. 825, in subdivision H 3, in the first sentence, inserted "misdemeanor," "18.2-250.1," and "18.2-266.1," in the third sentence, inserted "16.1-278.8:01," and added the last two sentences.

The 2012 amendments. - The 2012 amendment by c. 637, in subsection C, inserted clause (v) of the first sentence and added the last sentence, and made related and minor stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 746 substituted "6 ( § 18.2-299 et seq.), 6.1 ( § 18.2-307.1 et seq.), or 7 ( § 18.2-308.1 et seq.)" for "6 ( § 18.2-299 et seq.), or 7 ( § 18.2-308 et seq.)" in subdivision G 1.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in subdivision G 6.

The 2016 amendments. - The 2016 amendment by c. 704, in subsection A, added clause (iii) and redesignated former clause (iii) as clause (iv); and made minor stylistic changes throughout the section. For applicability provision, see Editor's note.

The 2018 amendments. - The 2018 amendment by c. 281 added subdivision G 13 and made related changes.

The 2018 amendment by c. 312, in the fourth paragraph of subsection B, substituted "provided that (a)" for "The intake officer may proceed informally only if," inserted "on more than two occasions" and added clause (b) in the second sentence; and made related changes.

The 2019 amendments. - The 2019 amendments by cc. 106 and 206 are identical, added subdivision G 14, and made related changes.

The 2020 amendments. - The 2020 amendment by c. 753, in subsection B in the fourth paragraph, substituted "petition" for "complaint for 90 days" in the introductory wording of the second sentence and "deferral" for "90-day" in the last sentence; and in the sixth and seventh sentences of subdivision H 3, inserted "4.1-305 or."

The 2020 amendments by cc. 1285 and 1286 are identical, and in subsection B, substituted "(a)" and "(b)" for "(i)" and "(ii)" in the third paragraph, "(1)" and "(2)" for "(a)" and "(b)" in the fourth paragraph, and "(A)," "(B)" and "(C)" for "(1)", "(2)" and "(3)" in the fifth paragraph; and in subdivision H 3, in the first sentence, deleted "18.2-250.1" preceding "18.2-266" and substituted "offense, or a violation of § 18.2-250.1 , provided that" for "offense, provided."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 30, effective July 1, 2021, in subsection E, inserted "when such refusal is based solely upon a finding that no probable cause exists," in the first sentence, inserted the second, third and fourth sentences, and added the last sentence.

The 2021 amendment by Sp. Sess. I, c. 206, effective July 1, 2021, added the last sentence in subsection A.

The 2021 amendment by Sp. Sess. I, c. 457, effective July 1, 2021, in subsection B in the last paragraph, substituted "restitution, the performance of community service, or on a complaint alleging that a child has committed a delinquent act other than an act that would be a felony or a Class 1 misdemeanor if committed by an adult and with the consent of the juvenile's parent or legal guardian, referral to a youth justice diversion program established pursuant to § 16.1-309.11" for "restitution and, the performance of community service" and inserted "or in the case of a referral to a youth justice diversion program established pursuant to § 16.1-309.11, that any subsequent report from the youth justice diversion program alleging that the juvenile failed to comply with the youth justice diversion program's sentence within 180 days of the sentencing date."

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subdivision H 3, deleted "or a violation of § 18.2-250.1 " preceding "provided that the juvenile is released" and twice deleted "or 18.2-250.1 " following " § 4.1-305 ."

Law review. - For comment, "Jury Trials for Juvenile Delinquents in Virginia," see 28 Wash. & Lee L. Rev. 135 (1971).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For article, "Legal Issues Involving Children," see 26 U. Rich. L. Rev. 797 (1992).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

For annual survey article, "Civil Practice and Procedure," see 44 U. Rich. L. Rev. 269 (2009).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attorney & Client, § 4; 9B M.J. Infants and Juveniles, § 84; 14A M.J. Parent and Child, § 1; 14B M.J. Pleading, § 13; 16 M.J. Schools, § 22.

CASE NOTES

This section, in pertinent part, requires filing of petition to invoke jurisdiction of juvenile court and subsection F of this section does not waive the requirement of the filing of a petition but, rather, addresses the duties of the intake officer and the actions taken in regard to the petition. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Separation of powers. - Because juvenile intake officers exercise only a limited judicial function, and the juvenile and domestic relations district court retains actual control over the juveniles, the intake officer's authority to issue criminal petitions does not violate the separation of powers guaranteed by the Virginia Constitution. Roach v. Commonwealth, 251 Va. 324 , 468 S.E.2d 98, cert. denied, 519 U.S. 951, 117 S. Ct. 365, 136 L. Ed. 2d 256 (1996), overruled in part on other grounds by Morrisette v. Warden of the Sussex I State Prison, 270 Va. 188 , 613 S.E.2d 551 (2005).

Procedural defects do not divest juvenile court of jurisdiction. - Juvenile and domestic relations district court acted on a petition of the guardian ad litem, and therefore exercised jurisdiction over residential placement proceedings notwithstanding any latent procedural defect. Comprehensive Servs. Act Office v. J.M., No. 1620-98-2, 1999 Va. App. LEXIS 473 (Ct. of Appeals Aug. 3, 1999).

Trial court had jurisdiction to terminate the father's parental rights and approve the goal of adoption pursuant to the petitions filed by the Department and the failure so sign an affidavit did not divest the court of jurisdiction. Beim v. Roanoke Cty. Dep't of Soc. Servs., No. 0506-18-3, 2018 Va. App. LEXIS 248 (Sept. 25, 2018).

Circuit court had jurisdiction to terminate a mother's parental rights and approve the goal of adoption pursuant to the separate petitions filed by the county department of social services where the department filed the requisite foster care plans and the petitions for termination of parental rights, and the mother had notice of, and participated in, the foster care proceedings, including the hearings regarding the termination of her parental rights. Musolff v. Roanoke Cty. Dep't of Soc. Servs., No. 0521-18-3, 2018 Va. App. LEXIS 247 (Sept. 25, 2018).

Designated nonattorney employees of the Department of Social Services. - Circuit court properly affirmed the juvenile and domestic relations court's termination of the parties' parental rights because the lower courts acquired active jurisdiction to adjudicate the matters where, while the emergency removal and permanency planning petitions were not signed by an attorney, the 2008 and 2016 statutory amendments clearly demonstrated the General Assembly's express agreement that certain nonattorney employees of local departments of social services could complete, file, and sign form petitions and motions and would not invalidate prior filings or petitions. Rudolph v. City of Newport News Dep't of Human Servs., 67 Va. App. 140, 793 S.E.2d 831, 2016 Va. App. LEXIS 355 (2016).

Proceeding seeking the issuance of a protective order. - Plea in bar was not proper in proceedings seeking the issuance of a protective order because (1) a protective order was solely a creature of statute, (2) a plea in bar responded to a complaint, but a petition for a protective order was not a complaint, and (3) a protective order was not a cause of action. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Settlement agreements. - In proceedings seeking the issuance of a protective order, it was error to sustain a plea in bar arguing a settlement agreement barred evidence of alleged abuse occurring before the agreement because the agreement did not affect the rights of the parties' children to a protective order, as the children were not parties to the agreement. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995); Burke v. Commonwealth, 29 Va. App. 183, 510 S.E.2d 743 (1999).

CIRCUIT COURT OPINIONS

Right to counsel. - There is no Virginia case deciding whether a petition obtained pursuant to § 16.1-260 charging a juvenile with a delinquent act is the equivalent of an indictment for the purposes of determining whether the Sixth Amendment right to counsel has attached. Commonwealth v. Malvo, 63 Va. Cir. 22, 2003 Va. Cir. LEXIS 188 (Fairfax County 2003).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 16.1-261. Statements made at intake or mental health screening and assessment.

Statements made by a child to the intake officer or probation officer during the intake process or during a mental health screening or assessment conducted pursuant to § 16.1-248.2 and prior to a hearing on the merits of the petition filed against the child, shall not be admissible at any stage of the proceedings.

(1977, c. 559; 1996, cc. 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and inserted "or during a mental health screening or assessment conducted pursuant to § 16.1-248.2" following "during the intake process" near the middle of the section.

Law review. - For 1991 survey on legal issues involving children, see 25 U. Rich. L. Rev. 773 (1991).

§ 16.1-262. Form and content of petition.

  1. The petition shall contain the facts below indicated:     "Commonwealth of Virginia, In re ____________ (name of child)" a child under eighteen years of age.     "In the Juvenile and Domestic Relations District Court of the county (or city) of ____________ "
    1. Statement of name, age, date of birth, if known, and residence of the child.
    2. Statement of names and residence of his parents, guardian, legal custodian or other person standing in loco parentis and spouse, if any.
    3. Statement of names and residence of the nearest known relatives if no parent or guardian can be found.
    4. Statement of the specific facts which allegedly bring the child within the purview of this law. If the petition alleges a delinquent act, it shall make reference to the applicable sections of the Code which designate the act a crime.
    5. Statement as to whether the child is in custody, and if so, the place of detention or shelter care, and the time the child was taken into custody, and the time the child was placed in detention or shelter care.
  2. If the subject of the petition is an adult, the petition shall not state or include the name of or any information concerning the parents, guardians, legal custodian, or person standing in loco parentis of the adult subject of the petition except as may be necessary to state the conduct alleged in the petition.
  3. If any of the facts herein required to be stated are not known by the petitioner, the petition shall so state. The petition shall be verified, except that petitions filed under § 63.2-1237 may be signed by the petitioner's counsel, and may be upon information. In accordance with § 16.1-69.32, the Supreme Court may formulate rules for the form and content of petitions in the juvenile court concerning matters related to the custody, visitation or support of a child and the protection, support or maintenance of an adult where the provisions of this section are not appropriate. (Code 1950, § 16.1-165; 1956, c. 555; 1977, c. 559; 1979, c. 615; 1984, c. 631; 1995, cc. 772, 826; 2000, c. 830; 2016, c. 626.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2000 amendments. - The 2000 amendment by c. 830 substituted " § 63.1-219.44" for " § 63.1-220.3" in the next-to-last paragraph.

The 2016 amendments. - The 2016 amendment by c. 626 designated the formerly undesignated first paragraph as subsection A and the formerly undesignated last two paragraphs as subsection C, and added subsection B.

CASE NOTES

Failure to comply with statutory requirements. - Father's motion to change the foster care plan's goal to adoption and terminate his parental rights did not comply with the statutory scheme to terminate his parental rights and approve a goal of adoption because the father only recited facts and argument as to why the court had to terminate his parental rights and change the foster care plan goal to adoption. Cisneros v. Arlington County Dep't of Human Servs., No. 0199-16-4, 2016 Va. App. LEXIS 261 (Ct. of Appeals Oct. 11, 2016).

Proceeding seeking the issuance of a protective order. - Plea in bar was not proper in proceedings seeking the issuance of a protective order because (1) a protective order was solely a creature of statute, (2) a plea in bar responded to a complaint, but a petition for a protective order was not a complaint, and (3) a protective order was not a cause of action. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Settlement agreements. - In proceedings seeking the issuance of a protective order, it was error to sustain a plea in bar arguing a settlement agreement barred evidence of alleged abuse occurring before the agreement because the agreement did not affect the rights of the parties' children to a protective order, as the children were not parties to the agreement. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

§ 16.1-263. Summonses.

  1. After a petition has been 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 at least one parent, 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.

    After a petition has been filed against an adult pursuant to subsection C or D of § 16.1-259, the court shall direct the issuance of a summons against the adult.

    The summons shall require them 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 a parent of the juvenile in question, a 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.

    Any such summons shall be deemed a mandate of the court, and willful failure to obey its requirements shall subject any person guilty thereof to liability for punishment for contempt. Upon the failure of any person to appear as ordered in the summons, the court shall immediately issue an order for such person to show cause why he should not be held in contempt.

    The parent, guardian, legal custodian, or other person standing in loco parentis shall not be summoned to appear or be punished for failure to appear in cases of adults who are brought before the court pursuant to subsection C or D of § 16.1-259 unless such person is summoned as a witness.

  2. 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, at least one parent or other person legally obligated to care for and support the juvenile may be required to pay a reasonable sum for 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.
  3. The judge may endorse upon the summons an order directing a parent or parents, guardian, or other custodian having the custody or control of the juvenile to bring the juvenile to the hearing.
  4. A party, other than the juvenile, may waive service of summons by written stipulation or by voluntary appearance at the hearing.
  5. No such summons or notification shall be required if the judge shall certify on the record that (i) the identity of a parent or guardian is not reasonably ascertainable or (ii) in cases in which it is alleged that a juvenile has committed a delinquent act, crime, status offense, or traffic infraction or is in need of services or supervision, the location, or in the case of a parent or guardian located outside of the Commonwealth the location or mailing address, 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. In cases referred to in clause (ii), an affidavit of a law-enforcement officer or juvenile probation officer that the location of a parent or guardian is not reasonably ascertainable shall be sufficient evidence of this fact, provided that there is no other evidence before the court which would refute the affidavit.

    (Code 1950, §§ 16.1-166, 16.1-172; 1956, c. 555; 1974, c. 620; 1975, c. 128; 1977, c. 559; 1978, cc. 613, 740; 1996, cc. 755, 914; 1997, c. 441; 1999, c. 952; 2004, c. 573; 2016, c. 626; 2021, Sp. Sess. I, c. 283.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile" for "child" throughout the section and added the present second sentence of subsection B.

The 1999 amendment, in subsection A, substituted "at least one parent" for "the parents" in the first sentence, and in the third sentence, substituted "a parent" for "the parent" twice; substituted "at least one parent" for "the parent" in the third sentence of subsection B; and substituted "a parent or parents" for "the parents" in subsection C.

The 2004 amendments. - The 2004 amendment by c. 573 added the last paragraph in subsection A.

The 2016 amendments. - The 2016 amendment by c. 626, in subsection A, added the second and last paragraphs.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, c. 283, effective July 1, 2021, deleted "support and" preceding "treatment of the juvenile" in the third sentence in subsection B.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, §§ 82, 84, 85.

CASE NOTES

Claim that § 16.1-263 was unconstitutionally vague was without sufficient substance to warrant the convening of a three-judge court. McGhee v. Moyer, 60 F.R.D. 578 (W.D. Va. 1973).

Proceedings jurisdictional. - The proceedings in the juvenile court are jurisdictional rather than procedural. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

This section establishes procedures only for the juvenile court and has no application once the case has been certified to the court of record. Ferguson v. Slayton, 340 F. Supp. 276 (W.D. Va. 1972).

And such procedures are mandatory. - The statutes relating to the procedure applicable to proceedings for cases tried in a juvenile court are mandatory and must be followed. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

Failure of the juvenile court to comply with the statutory provisions of procedure will render the certification to a court of record void. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971); Ferguson v. Slayton, 340 F. Supp. 276 (W.D. Va. 1972).

Identity of parent and guardian was required to be addressed on record. - Where the mother's testimony failed 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 identity of the father was "not reasonably ascertainable." Unknown Father of Baby Girl Janet v. Division of Social Servs., 15 Va. App. 110, 422 S.E.2d 407 (1992).

Juvenile court's failure to properly issue summons made transfer of jurisdiction ineffectual. - Where juvenile court had address of defendant's mother but issued a summons to a different jurisdiction and later issued another summons at a time which made mother's timely arrival at transfer hearing impossible, transfer of jurisdiction over defendant from juvenile to circuit court was ineffectual and subsequent convictions were void. Williams v. Commonwealth, 26 Va. App. 776, 497 S.E.2d 156 (1998).

Father held not entitled to notice where divested of parental rights. - Defendant's biological father was not his parent within the meaning of subsection A of this section as it read at the time of transfer proceedings and was not entitled to notice under this section, because an earlier final adoption order divested the defendant's biological parents of all legal rights with respect to him. Thomas v. Garraghty, 258 Va. 530 , 522 S.E.2d 865 (1999).

Failure to serve father required reversal of conviction. - Without either a certification on the record that the identity of a juvenile's father was not reasonably ascertainable or proof of service of a summons on the father by publication, the provisions of this section requiring service of process on the parents of a juvenile have not been met and noncompliance with these requirements necessitated reversal of the juvenile's conviction.See note below Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394 (1998), aff'd, 258 Va. 1 , 516 S.E.2d 219 (1999) (superseded by statute as stated in Smith v. Commonwealth, 38 Va. App. 840, 568 S.E.2d 462 (2002)).

Service of summons to both parents not required. - Trial court had subject matter jurisdiction over juvenile even though father was not notified of criminal proceedings, pursuant to subsection E of § 16.1-263, which allowed the trial court to rely upon an affidavit of the mother that the identity of the father was not reasonably ascertainable, and did not require that both parents be served with a summons. Smith v. Commonwealth, 38 Va. App. 840, 568 S.E.2d 462, 2002 Va. App. LEXIS 526 (2002).

Verbal notice to grandmother of illegitimate son of deceased mother and unknown father. - See Cradle v. Peyton, 208 Va. 243 , 156 S.E.2d 874 (1967), cert. denied, 392 U.S. 945, 88 S. Ct. 2296, 20 L. Ed. 2d 1407 (1968).

Waiver of parental notice. - Subsection D of this section, as it read at the time, referred only to the initial summons to be served on parties in interest and did not prescribe a method of notice for subsequent proceedings. Roach v. Director, Dep't of Cors., 258 Va. 537 , 522 S.E.2d 869 (1999).

Under subsection E of § 16.1-269.1, any objection based on an alleged failure to give notice to a juvenile's parent of a preliminary hearing, as required by this section, is waived if such objection is not made before an indictment is returned in circuit court if the offense was committed on or after July 1, 1996. Carter v. Commonwealth, 31 Va. App. 393, 523 S.E.2d 544 (2000).

Any defect in the manner of notice to juvenile defendant's father was cured by the father's appearances at the hearings, denoted in the court records, and the absence of any objection at the hearing to the adequacy of that notice. Howerton v. Commonwealth, 36 Va. App. 205, 548 S.E.2d 914, 2001 Va. App. LEXIS 425 (2001).

Actual notice to parent of hearing satisfies statutory requirements. - Where a defendant's mother had actual notice of the hearing in circuit court in which the defendant challenged the transfer of his case to such court, this notice satisfied any statutory notice requirements of subsection B of this section. Shackleford v. Commonwealth, 262 Va. 196 , 547 S.E.2d 899, 2001 Va. LEXIS 78 (2001).

Effect of actual notice. - Where a parent has actual notice of a transfer hearing, any departure from the statutory requirement of written notice is a procedural, rather than a jurisdictional, defect that may be cured or waived by the appearance of the parties and a failure to object to the adequacy of the notice. Roach v. Director, Dep't of Cors., 258 Va. 537 , 522 S.E.2d 869 (1999).

Notice of subsequent proceedings. - Failure to notify juvenile's mother of his appeal from transfer hearing did not constitute error, where she received notice of original proceedings, she had opportunity, following juvenile's appeal, to appear and be involved in subsequent proceedings, including de novo hearings in circuit court. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000).

Certification proceedings. - Juvenile defendant had no right to have a parent notified of the pendency of certification proceedings in juvenile court. Angel v. Commonwealth,, 2009 Va. App. LEXIS 125 (Mar. 24, 2009).

Custody inured to mother where court order relieved agency of custody. - Where the defendant's mother had been deprived of his custody in 1960, but a department of public welfare (now department of social services), which had obtained custody from the mother in 1960, had been relieved of his custody by court order in 1967, and no other person or agency was granted custody over the defendant, custody inured to the mother, and at the hearing four months after the order, the defendant's mother was a proper person under this section. Muse v. Slayton, 333 F. Supp. 1007 (W.D. Va. 1971).

Failure to serve biological parents cured by indictment in circuit court. - Juvenile's indictment in circuit court cured alleged defects in service of summonses. Souksengmany v. Commonwealth, No. 1641-99-4, 2000 Va. App. LEXIS 256 (Ct. of Appeals Apr. 4, 2000)(decided under prior version of § 16.1-263).

Any error from Commonwealth's failure to notify juvenile's biological parents of juvenile court proceedings was cured when grand jury returned indictments on offenses certified to it by juvenile court. Gilbert v. Commonwealth, No. 1515-99-1, 2000 Va. App. LEXIS 231 (Ct. of Appeals Mar. 28, 2000)(decided under prior version of § 16.1-263).

Indictment by grand jury cures any defect or error, except one regarding defendant's age, which occurred in juvenile and domestic relations district court proceeding, including Commonwealth's failure to comply with statutory notice requirements. Nelson v. Commonwealth, No. 0283-99-1, 2000 Va. App. LEXIS 245 (Ct. of Appeals Apr. 4, 2000)(decided under prior version of § 16.1-263).

Because juvenile failed to raise jurisdictional issue of lack of notice to his father before indictments were returned in circuit court, failure to comply with parental notification provisions did not deprive circuit court of jurisdiction. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000)(decided under prior version of § 16.1-263).

Applied in Spain v. Commonwealth, 35 Va. App. 431, 545 S.E.2d 583, 2001 Va. App. LEXIS 242 (2001).

CIRCUIT COURT OPINIONS

The primary purpose behind the requirements of notice to a child's parents in the initiation of proceedings involving a juvenile is to protect the juvenile from the critically important decision of trying the juvenile as an adult. Commonwealth v. Carter, 54 Va. Cir. 230, 2000 Va. Cir. LEXIS 583 (Norfolk 2000).

Notice requirements must be met. - The notice requirements of subsection E, requiring notice of juvenile proceedings to a child's parent, are jurisdictional rather than procedural and, more specifically, bear directly on whether a court has subject matter jurisdiction to hear a particular case, and failure to strictly adhere to the notice procedures results in the denial of a juvenile defendant's substantial right and constitutional guarantee of due process. Commonwealth v. Carter, 54 Va. Cir. 230, 2000 Va. Cir. LEXIS 583 (Norfolk 2000).

Where father of defendant, a juvenile, was not notified of the juvenile or transfer proceedings that were initiated against defendant as required by former § 16.1-263, the juvenile court never acquired jurisdiction over the case and the subsequent transfer to the circuit court for trial as an adult was void, as were the convictions rendered in the circuit court against defendant. Sampson v. Commonwealth, 56 Va. Cir. 287, 2001 Va. Cir. LEXIS 460 (Norfolk 2001).

And are not waivable. - The failure of a juvenile court to comply with statutory requirements of procedure, such as the notice requirements of this section, renders a certification to another court void, and any subsequent conviction in that court also void, and, since the notice requirement is considered to be jurisdictional, and particularly subject matter jurisdiction, it is not waivable despite the existence of waiver provisions. Commonwealth v. Carter, 54 Va. Cir. 230, 2000 Va. Cir. LEXIS 583 (Norfolk 2000).

Notice not required. - Notice to juvenile's father of the initiation of juvenile proceedings was not required where the father had had no involvement in the juvenile's life since birth and the mother, who was notified, had been awarded full custody of the juvenile. Commonwealth v. Carter, 54 Va. Cir. 230, 2000 Va. Cir. LEXIS 583 (Norfolk 2000).

Waiver of parental notice. - A juvenile's motion to vacate his convictions was denied. Because both the juvenile's parents appeared at an initial appearance and a certification hearing, an alleged failure by the State to properly notify both parents as required by §§ 16.1-263 and 16.1-264 was waived pursuant to § 16.1-263 D. Commonwealth v. Haskins, 56 Va. Cir. 373, 2001 Va. Cir. LEXIS 474 (Norfolk 2001).

§ 16.1-264. Service of summons; proof of service; penalty.

  1. If a party designated in subsection A of § 16.1-263 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 subdivision 2 of § 8.01-296 . If a party designated to be served in § 16.1-263 is without the Commonwealth but can be found or his address is known, or can with reasonable diligence be ascertained, service of summons may be made either by delivering a copy thereof to him personally or by mailing a copy thereof to him by certified mail return receipt requested. 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 . A1. Any person who is subject to an emergency protective order issued pursuant to § 16.1-253.4 or 19.2-152.8 shall have been personally served with the protective order if a law-enforcement officer, as defined in § 9.1-101 , personally provides to such person a notification of the issuance of the order, which shall be on a form approved by the Executive Secretary of the Supreme Court of Virginia, provided that all of the information and individual requirements of the order are included on the form. The officer making service shall enter or cause to be entered the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court.
  2. Service of summons may be made under the direction of the court by sheriffs, their deputies and police officers in counties and cities or by any other suitable person designated by the court. However, in any case in which custody or visitation of a minor child or children is at issue and a summons is issued for the attendance and testimony of a teacher or other school personnel who is not a party to the proceeding, if such summons is served on school property, it shall be served only by a sheriff or his deputy.
  3. Proof of service may be made by the affidavit of the person other than an officer designated in subsection B hereof who delivers a copy of the summons to the person summoned, but if served by a state, county or municipal officer his return shall be sufficient without oath.
  4. The summons shall be considered a mandate of the court and willful failure to obey its requirements shall subject any person guilty thereof to liability for punishment as for contempt.

    (Code 1950, §§ 16.1-167 to 16.1-170; 1956, c. 555; 1977, c. 559; 1984, c. 594; 1987, c. 632; 1991, c. 62; 2004, c. 588; 2011, c. 482.)

Cross references. - As to the Court-Appointed Special Advocate Program and notice of hearings and proceedings, see § 9.1-155 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2004 amendments. - The 2004 amendment by c. 588 added the last sentence in subsection B and made a minor stylistic change.

The 2011 amendments. - The 2011 amendment by c. 482 made a minor stylistic change in the first paragraph in subsection A; and added subsection A1.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 85, 14A M.J. Parent and Child, § 19.

CASE NOTES

Section 8.01-288 is not applicable to the service of a summons under this section, which provides for service in juvenile cases, since it excepts process commencing actions wherein service of process is specifically prescribed by statute. Garritty v. Virginia Dep't of Social Servs. ex rel. Sinift, 11 Va. App. 39, 396 S.E.2d 150 (1990).

Since there is no provision in this section for substituted service by "posting" a summons on the front door of the person's abode, the summons in a child support case was not properly served on the defendant because a copy was not sent to him by certified mail as required by this section. Service would be invalid even if it was shown that a copy of the summons was posted on the front door of his residence and a copy of the pleading was mailed to him less than 10 days prior to entry of the default judgment. Garritty v. Virginia Dep't of Social Servs. ex rel. Sinift, 11 Va. App. 39, 396 S.E.2d 150 (1990).

Waiver of objection based on failure to notify parent. - The legislature has provided in subsection E of § 16.1-269.1 that, as to offenses committed on or after July 1, 1996, once an indictment has been returned in the circuit court, any failure to comply with the parental notification provisions of § 16.1-263 and this section does not deprive the court of subject matter jurisdiction. Carter v. Commonwealth, 31 Va. App. 393, 523 S.E.2d 544 (2000).

Evidence sufficient to support conviction. - Defendant's conviction for violating the terms of a preliminary protective order was proper because the evidence was sufficient to prove that defendant had adequate notice of the terms of the preliminary protective order prohibiting contact, pursuant to §§ 16.1-253.1 and 16.1-264, and that defendant acted intentionally in violation of those terms. Cardenas-Najarro v. Commonwealth, No. 0699-13-4, 2014 Va. App. LEXIS 64 (Mar. 4, 2014).

Applied in Spain v. Commonwealth, 35 Va. App. 431, 545 S.E.2d 583, 2001 Va. App. LEXIS 242 (2001).

CIRCUIT COURT OPINIONS

Waiver of parental notice. - A juvenile's motion to vacate his convictions was denied. Because both the juvenile's parents appeared at an initial appearance and a certification hearing, an alleged failure by the State to properly notify both parents as required by §§ 16.1-263 and 16.1-264 was waived pursuant to subsection D of § 16.1-263. Commonwealth v. Haskins, 56 Va. Cir. 373, 2001 Va. Cir. LEXIS 474 (Norfolk 2001).

Posted witness subpoena not a substitute for service of process. - Because a posted witness subpoena was not a substitute for service of process in a juvenile court procedure pursuant to subsection A of § 16.1-264, and a summons was returned "not found," a father did not have adequate actual notice of a child support hearing. Hankins v. Hankins, 60 Va. Cir. 449, 2003 Va. Cir. LEXIS 2 (Spotsylvania County 2003).

§ 16.1-265. Subpoena; attorney-issued subpoena.

Upon application of a party and pursuant to the rules of the Supreme Court of Virginia for the issuance of subpoenas, the clerk of the court shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents or other tangible objects at any hearing.

Subpoenas duces tecum for medical records shall be subject to the provisions of §§ 8.01-413 and 32.1-127.1:03 except that no separate fee shall be imposed. A subpoena may also be issued in a civil proceeding by an attorney-at-law who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena shall be on a form approved by the Committee on District Courts, signed by the attorney as if a pleading and shall include the attorney's address. A copy, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas issued by a clerk shall apply mutatis mutandis, except that attorneys may not issue subpoenas in those cases in which they may not issue a summons as provided in § 8.01-407 . When an attorney-at-law transmits one or more subpoenas or subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in § 8.01-407 regarding such transmittals shall apply. A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date production of evidence is required.

If the time for compliance with a subpoena issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds therefor. If objection is made, the party on whose behalf the subpoena was issued and served shall not be entitled to compliance, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel compliance. Upon such timely motion, the court may quash, modify or sustain the subpoena.

(1977, c. 559; 2000, c. 813; 2004, c. 335.)

Editor's note. - Acts 2001, cc. 514 and 551, repealed Acts 2000, c. 813, cl. 2, which had provided: "That the provisions of this act shall expire on July 1, 2001, unless reenacted by the 2001 General Assembly. Any subpoena or subpoena duces tecum issued by an attorney in compliance with this act shall remain valid notwithstanding the expiration of this act."

Acts 2000, c. 813, cl. 3 provides: "That the Virginia Bar Association, with the support of the Virginia Sheriffs Association and such other organizations from which it may request assistance, shall conduct a study of the effectiveness of this act and report its findings to the General Assembly no later than January 1, 2001."

The 2000 amendments. - The 2000 amendment by c. 813 added the second and third paragraphs.

The 2004 amendments. - The 2004 amendment by c. 335, in the second paragraph, deleted "and may not issue a subpoena duces tecum less than five business days prior to the date that production of evidence is required" following " § 8.01-407 " and added the last sentence; and substituted "14" for "fourteen" in the first sentence of the last paragraph.

Law review. - For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 2-1401 Subpoena for Witness in District Court, et seq.

Article 6. Appointment of Counsel.

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 142; 5B M.J. Criminal Procedure, § 24; 9B M.J. Infants and Juveniles, § 84.

§ 16.1-266. Appointment of counsel and guardian ad litem.

  1. Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual parental rights or who is otherwise before the court pursuant to subdivision A 4 of § 16.1-241 or § 63.2-1230 , the court shall appoint a discreet and competent attorney-at-law as guardian ad litem to represent the child pursuant to § 16.1-266.1.
  2. Prior to the detention hearing held pursuant to § 16.1-250, the court shall appoint a qualified and competent attorney-at-law to represent the child unless an attorney has been retained and appears on behalf of the child. For the purposes of appointment of counsel for the detention hearing held pursuant to § 16.1-250 only, a child's indigence shall be presumed. Nothing in this subsection shall prohibit a judge from releasing a child from detention prior to appointment of counsel.
  3. Subsequent to the detention hearing, if any, and prior to the adjudicatory or transfer hearing by the court of any case involving a child who is alleged to be in need of services, in need of supervision or delinquent, such child and his parent, guardian, legal custodian or other person standing in loco parentis shall be informed by a judge, clerk or probation officer of the child's right to counsel and of the liability of the parent, guardian, legal custodian or other person standing in loco parentis for the costs of such legal services pursuant to § 16.1-267 and be given an opportunity to:
    1. Obtain and employ counsel of the child's own choice; or
    2. Request that the court appoint counsel, provided that before counsel is appointed or the court continues any appointment previously made pursuant to subsection B, the court shall determine that the child is indigent within the contemplation of the law pursuant to guidelines set forth in § 19.2-159 by requiring the child's parent, guardian, legal custodian or other person standing in loco parentis to complete a statement of indigence substantially in the form provided by § 19.2-159 and a financial statement, and upon determination of indigence the court shall appoint an attorney from the list maintained by the Indigent Defense Commission pursuant to § 19.2-163.01 to represent the child; or
    3. Waive the right to representation by an attorney, if the court finds the child and the parent, guardian, legal custodian or other person standing in loco parentis of the child consent, in writing, and such waiver is consistent with the interests of the child. Such written waiver shall be in accordance with law and shall be filed with the court records of the case. A child who is alleged to have committed an offense that would be a felony if committed by an adult, may waive such right only after he consults with an attorney and the court determines that his waiver is free and voluntary. The waiver shall be in writing, signed by both the child and the child's attorney and shall be filed with the court records of the case.
  4. A judge, clerk or probation officer shall inform the parent or guardian of his right to counsel prior to the adjudicatory hearing of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in subdivision A 2a of § 16.1-241 and prior to a hearing at which a parent could be subjected to the loss of residual parental rights. In addition, prior to the hearing by the court of any case involving any other adult charged with abuse or neglect of a child, this adult shall be informed of his right to counsel. This adult and the parent or guardian shall be given an opportunity to:
    1. Obtain and employ counsel of the parent's, guardian's or other adult's own choice; or
    2. If the court determines that the parent, guardian or other adult is indigent within the contemplation of the law pursuant to the guidelines set forth in § 19.2-159, a statement substantially in the form provided by § 19.2-159 and a financial statement shall be executed by such parent, guardian or other adult and the court shall appoint an attorney-at-law to represent him; or
    3. Waive the right to representation by an attorney in accordance with the provisions of § 19.2-160.

      If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-at-law to represent the interests of the absent parent or guardian, and the hearing may be held.

      Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to § 16.1-281, a foster care review hearing pursuant to § 16.1-282 and a permanency planning hearing pursuant to § 16.1-282.1, the court shall consider appointing counsel to represent the child's parent or guardian.

  5. In those cases described in subsections A, B, C and D, which in the discretion of the court require counsel or a guardian ad litem to represent the child or children or the parent or guardian or other adult party in addition to the representation provided in those subsections, a discreet and competent attorney-at-law may be appointed by the court as counsel or a guardian ad litem.
  6. In all other cases which in the discretion of the court require counsel or a guardian ad litem, or both, to represent the child or children or the parent or guardian, discreet and competent attorneys-at-law may be appointed by the court. However, in cases where the custody of a child or children is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child or children unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child or children are not otherwise adequately represented.
  7. Any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit a guardian ad litem or counsel for the child appointed pursuant to this section to inspect and copy, without the consent of the child or his parents, any records relating to the child whom the guardian or counsel represents upon presentation by him of a copy of the court order appointing him or a court order specifically allowing him such access. Upon request therefor by the guardian ad litem or counsel for the child made at least 72 hours in advance, a mental health care provider shall make himself available to conduct a review and interpretation of the child's treatment records which are specifically related to the investigation. Such a request may be made in lieu of or in addition to inspection and copying of the records.

    (Code 1950, §§ 16.1-173, 63.1-248.12; 1956, c. 555; 1966, c. 709; 1968, c. 581; 1970, c. 87; 1973, c. 440; 1974, c. 513; 1975, cc. 341, 465, 559; 1977, c. 559; 1980, c. 572; 1982, c. 451; 1984, c. 709; 1985, c. 260; 1987, c. 632; 1994, c. 36; 1997, c. 790; 2002, c. 687; 2003, c. 98; 2004, cc. 66, 437, 884, 921, 1014; 2005, c. 427.)

Cross references. - As to review of voluntary continuing services and support agreements for former foster youth, see § 16.1-283.3.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2004, c. 437, cl. 3, provides: "That the Office of the Executive Secretary of the Supreme Court, in conjunction with the Commonwealth's Attorneys' Service Council, the Public Defender Commission and the Department of Juvenile Justice, shall develop written guidelines and procedures for implementing subsections B and C of § 16.1-266 as amended by this act. The Executive Secretary shall submit a report of its findings and recommendations concerning the implementation of subsections B and C of § 16.1-266 to the Chairmen of the Senate Courts of Justice and House Courts of Justice Committees by December 1, 2004."

Acts 2005, c. 427, cl. 2, provides: "That to facilitate implementation of the requirements of Chapter 437 of the 2004 Acts of Assembly, the Office of the Executive Secretary, Supreme Court of Virginia is authorized to issue payments out of the Criminal Fund for the appointment of two attorneys, appointed consecutively, when such payment is authorized by the appointing court and such consecutive appointments are necessary to provide the juvenile with representation at the detention hearing as required by subsection B of § 16.1-266, and representation subsequently, by separate counsel, pursuant to subsection C of § 16.1-266. Such dual, consecutive representation shall be deemed to satisfy the standard for relieving and replacing counsel for cause when continuing representation of the juvenile beyond the detention hearing through all stages of the proceeding would be unreasonably burdensome to the detention hearing attorney due to lack of proximity to the subsequent proceeding."

The 2002 amendments. - The 2002 amendment by c. 687, in subsection A, substituted "seeking termination of" for "terminating," inserted "who" following "residual parental rights," and inserted "or § 63.1-219.37" following " § 16.1-241"; deleted "or her" preceding "parent, guardian" in the introductory language of subsection B and in subdivision B 2; and, in subsection C, rewrote the first paragraph and added the last two paragraphs.

The 2003 amendments. - The 2003 amendment by c. 98 inserted present subsection D and redesignated former subsections D and E as present subsections E and F; in the first sentence of subsection E, inserted "or both" following "ad litem," deleted "the interests of" following "represent," deleted "a" preceding "discreet," and substituted "attorneys-at-law" for "attorney-at-law"; and substituted "72" for "seventy-two" in subsection F.

The 2004 amendments. - The 2004 amendments by cc. 66 and 1014 are identical, and in subsection F [now G], inserted "or counsel for the child" in the first and next-to-last sentences and "or counsel" in the first sentence.

The 2004 amendment by c. 437, effective July 1, 2005, rewrote subsection B; redesignated former subsections B through F as subsections C through G; in subsection C, in the introductory paragraph, substituted "Subsequent" for "Prior," deleted "review" following "detention," and substituted "if any, and prior to" for "or"; rewrote subdivisions A 2 and A 3; and substituted "C and D" for "and C" in subsection E.

The 2004 amendments by cc. 884 and 921 are identical, and inserted "from the list maintained by the Indigent Defense Commission pursuant to § 19.2-163.01" in subdivision B 2 [now C 2].

The 2005 amendments. - The 2005 amendment by c. 427 substituted "would be a felony if committed by an adult" for "may result in commitment pursuant to subsection 14 of § 16.1-278.8" in the third sentence of subdivision C 3.

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979). For comment on termination of parental rights, see 15 U. Rich. L. Rev. 213 (1980). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

Research References. - Virginia Forms (Matthew Bender). No. 5-141 Order for Appointment of Guardian ad Litem.

CASE NOTES

Legislative intent. - The General Assembly did not intend to require a circuit court to appoint a guardian ad item whenever the court issues a subpoena to compel a juvenile's testimony or where the circuit court initiates criminal contempt proceedings against the juvenile where juvenile is represented by counsel. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

Purpose. - This section is a prophylactic device designed to ensure that before a child and his parent or legal guardian waives assistance of counsel, the child understands the consequences of waiver and waiver is in the best interest of the child. Grogg v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988).

Applicability. - Trial court did not err in allowing the guardian ad litem to remain on the child custody case even after the mother appealed the decision of the juvenile and domestic relations district court awarding primary custody to the father to the trial court. The mother could not use subsection F of § 16.1-266, which the mother cited, as a sword to remove the guardian ad litem. Lewis v. Hyman, No. 2133-07-4, 2008 Va. App. LEXIS 281 (June 10, 2008).

Counsel not required where loss of parental rights not sought. - A trial court erred in finding that counsel for the parents was required at the time of a hearing in which entrustment agreements were signed by the children's aunt and approved by the juvenile and domestic relations court, because no petition for termination of parental rights was either filed or pending at that time and, therefore, neither parent could be subjected to the loss of residual rights and responsibilities at the time of that hearing. Fredericksburg Dep't of Soc. Servs. v. Brown, 33 Va. App. 313, 533 S.E.2d 12 (2000).

Guardian ad litem fee not subject to fee limitations set forth in § 16.1-267. - The Attorney General of Virginia has opined that the fee of a guardian ad litem appointed to represent a minor child pursuant to subsection D [now subsection E] is not subject to the maximum fee limitations for court-appointed counsel set forth in § 16.1-267. Op. Va. Att'y Gen. 177 (Dec. 2, 1980); Op. Va. Att'y Gen. 153 (Oct. 27, 1986); see Patterson v. Old Dominion Trust Co., 156 Va. 763 , 775, 159 S.E. 168 , 172 (1931). Kaplan v. Kaplan, No. 0987-92-1, 1993 Va. App. LEXIS 420 (Ct. of Appeals Sept. 14, 1993).

Inquiry as to financial ability to pay fees applies only to appointments pursuant to subsection A or B. - That statutory mandate, to inquire as to financial ability to pay guardian ad litem fees as required by § 16.1-267 A applies only to a guardian ad litem appointed pursuant to subsection A or B of this section. Where, the guardian ad litem was appointed pursuant to subsection D [now subsection E] of this section; wife's claim is without merit. Kaplan v. Kaplan, No. 0987-92-1, 1993 Va. App. LEXIS 420 (Ct. of Appeals Sept. 14, 1993).

Reimbursement by parents of guardian ad litem fee. - Trial court did not abuse its discretion in ordering a mother to pay one-half of a guardian ad litem's fee, where the evidence presented demonstrated that the guardian was appointed to protect the interests of the children and favorably addressed an issue related to the mother's successful treatment for depression. Leake v. Leake, No. 3268-03-4, 2004 Va. App. LEXIS 491 (Ct. of Appeals Oct. 12, 2004).

Substantive rights and interests of child. - This section recognizes that the substantive rights and interests of the child are often separate and distinct from those of the other parties to the litigation, and that these rights and interests are best protected by an independent party. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Failure to appoint counsel for child. - In a termination of parental rights case, it was not an abuse of discretion not to appoint counsel for the subject child, in addition to the child's guardian ad litem, because (1) it was not alleged that the guardian ad litem did not comply with Va. Sup. Ct. R. 8:6, (2) the guardian ad litem disclosed the child's desire to live with the child's family, contrary to the guardian ad litem's position, and (3) the child so testified. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

Failure to appoint counsel to parent. - Circuit court did not err in declining to appoint a father new counsel on the day of trial because the father did not have a right to counsel in cases involving children in need of services. Hamilton v. Loudoun County Dep't of Family Servs.,, 2014 Va. App. LEXIS 421 (Dec. 30, 2014).

The preliminary hearing is a "critical stage" of the criminal process at which an accused is as much entitled to assistance of counsel as at the actual trial. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

The proceedings in the juvenile court are jurisdictional rather than procedural. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

And such procedures are mandatory. - The statutes relating to the procedure applicable to proceedings for cases tried in a juvenile court are mandatory and must be followed. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

These jurisdictional procedures apply to juvenile court hearings. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

And not to proceedings in a court of record. - See Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

Failure of the juvenile court to comply with the statutory provisions of procedure will render the certification to a court of record void. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971); Ferguson v. Slayton, 340 F. Supp. 276 (W.D. Va. 1972).

Failure of the juvenile court to appoint a guardian ad litem to represent the interest of a juvenile offender is violative of this section and is jurisdictional and not procedural, and renders void the subsequent proceedings in the court of record. Jones v. Commonwealth, 213 Va. 425 , 192 S.E.2d 775 (1972).

Counsel at transfer stage. - A juvenile is entitled to the assistance of counsel in having a court of proper jurisdiction determine, upon proper facts, whether he should be tried and sentenced as a juvenile. Cradle v. Cox, 327 F. Supp. 1169 (E.D. Va. 1971).

Counsel appointed over parent's objection. - A judge of the juvenile and domestic relations district court has jurisdiction to appoint counsel to represent a minor charged with assault and battery over the objections of one parent where the child's age and the parents' animosity towards each other and inability to agree on an attorney to represent their son lead the court to determine that such an appointment is in the child's best interests. Oxenham v. J.S.M., 256 Va. 180 , 501 S.E.2d 765 (1998).

Continuing authority to appoint guardian ad litem. - Trial court retained jurisdiction over child custody matters sufficient to empower it to order the continued appointment of a guardian ad litem until the children reached majority. Ferguson v. Grubb, 39 Va. App. 549, 574 S.E.2d 769, 2003 Va. App. LEXIS 5 (2003).

Appointment of guardian ad litem resulting in conflict of interest. - Trial court abused its discretion under §§ 16.1-266 and 8.01-9 in appointing counsel who was hired by a parent to act as the child's guardian ad litem in a parentage action as a conflict of interest was created. Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482, 2011 Va. App. LEXIS 414 (2011).

Guardian ad litem of unknown father has standing to appeal entrustment agreement. - In proceedings involving custody of the child of an unwed minor, the guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court. Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986).

Re-appointment of guardian ad litem. - Trial court did not err in involving and re-appointing a guardian ad litem after a mother filed a motion to enforce and modify custody order because the mother and father could not represent the best interests of the children when they were at odds with each other; the father admitted that he did not like the mother and did not communicate with her, and the father used the children as messengers. Sandhir v. Ahuja-Sandhir,, 2009 Va. App. LEXIS 265 (June 16, 2009).

Application to ensuring court proceedings. - This section applies to waiver of counsel at a detention hearing, and the waiver of counsel contemplated under the statute applies to ensuing court proceedings and prosecution without assistance of counsel. Grogg v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988).

Paramount concern of Commonwealth is child's best interest. - The strong public policy of this Commonwealth posits that the paramount concern where children are concerned is their best interests and this public policy would be thwarted if a child were bound by a paternity determination in which the child's independent rights and interests were not adequately protected. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787 (1989).

Power to file petition seeking termination of residual parental rights. - No specific statutory provision either grants or denies the guardian ad litem the power to file a petition seeking the termination of residual parental rights, but such action is implicit in the general charge of authority given the guardian ad litem in § 8.01-9 to represent faithfully the interests of the individual under disability for whom he or she is appointed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

A guardian ad litem has standing to file a petition for termination of residual parental rights. Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Failure to timely file notice of appeal naming guardian ad litem required dismissal. - Mother's appeal of the termination of her parental rights was dismissed due to her failure to timely name the children's guardian ad litem, an indispensable party under this section, as an appellee in either the notice of appeal or the accompanying certificate of service; the failure to name the guardian ad litem as an appellee meant that the appeal was not perfected under Rule 5A:16, and the appellate court never acquired jurisdiction over the guardian ad litem. Watkins v. Fairfax County Dep't of Family Servs., 42 Va. App. 760, 595 S.E.2d 19, 2004 Va. App. LEXIS 164 (2004).

Guardian ad litem not required. - Because case was properly characterized as one "where custody of a child or children is the subject of controversy," rather than one involving "a child who is alleged to be abused or neglected," trial court was not required to appoint a guardian ad litem for the child. Santoro v. Owens, No. 1801-99-1, 2000 Va. App. LEXIS 55 (Ct. of Appeals Feb. 8, 2000).

When a grandmother appealed the denial of her petition for visitation with her granddaughter, and her incarcerated son joined in her appeal, §§ 8.01-9 and 16.1-266 D [now § 16.1-266 E] did not require the appointment of a guardian ad litem for the son because he was not "a party defendant" to the appeal, and the case did not involve an entrustment agreement, a custody dispute, a termination of the father's parental rights, or any of the actions described in § 16.1-266. Harris v. Boxler, No. 0604-03-3, 2003 Va. App. LEXIS 461 (Ct. of Appeals Sept. 2, 2003).

Guardian ad litem who was appointed to represent the interests of a minor child in a suit filed by the child's grandfather, seeking visitation rights, was not an indispensable party to the action, and the appellate court held that it did not lack jurisdiction to hear the child's mother's appeal from the circuit court's judgment granting the child's grandparents visitation rights because the mother did not serve the guardian ad litem with notice that she was appealing. Yopp v. Hodges, 43 Va. App. 427, 598 S.E.2d 760, 2004 Va. App. LEXIS 310 (2004).

In a termination of parental rights case in which the mother was a 16-year-old minor, the trial court did not err by dismissing the mother's appeal because, contrary to mother's assertions, the trial court was not required to appoint a guardian ad litem for the mother as she was represented by counsel; it was within the trial court's discretion whether to appoint a guardian ad litem; and it was within the trial court's discretion to appoint an attorney and a guardian ad litem to represent a parent involved in an abuse or neglect case or a termination of parental rights matter. Scott v. City of Petersburg Dep't of Soc. Servs., No. 1368-16-2, 2017 Va. App. LEXIS 144 (June 6, 2017).

Guardian ad litem issue waived on appeal. - Award of primary physical custody of the children to the father was proper, in part because the mother was not permitted to complain on appeal of error in the circuit court where she herself failed to follow through with her motion to exclude the guardian ad litem and where she failed to properly notify the court of the statutory requirements for the appointment. The issue was waived. Gudino v. Gudino, No. 0068-11-2, 2011 Va. App. LEXIS 327 (Nov. 1, 2011).

CIRCUIT COURT OPINIONS

Guardian ad litem fee. - Guardian ad litem was not entitled to payment of fees for services rendered after entry of the final decree of divorce because the guardian ad litem, who was appointed pursuant to a pendente lite order, was without power to act following entry of the final decree and was, therefore, not entitled to bill for her services thereafter rendered. Hart v. Hart, 87 Va. Cir. 122, 2013 Va. Cir. LEXIS 158 (Chesapeake Sept. 24, 2013).

OPINIONS OF THE ATTORNEY GENERAL

Applicability of section. - Subsection D of this section is not applicable to proceedings within the purview of subsections A - C; further, a judge may appoint a guardian ad litem or counsel pursuant to subsection D, but not both. See opinion of Attorney General to The Honorable Robert N. Baldwin, Executive Secretary of the Supreme Court of Virginia, 02-046 (7/16/02).

No authority to appoint guardian ad litem in addition to legal counsel. - A juvenile and domestic relations district court does not have authority to appoint a guardian ad litem for a juvenile defendant, in addition to the appointment of legal counsel, to represent the child. See opinion of Attorney General to The Honorable W. Edward Meeks III, Commonwealth's Attorney for Amherst County, No. 00-106, 2001 Va. AG LEXIS 29 (12/14/01).

Reimbursement by parents of guardian ad litem fee. - The court may order reimbursement by the parents when the appointment of a guardian ad litem for the child is required in abuse or neglect cases. See opinion of Attorney General to The Honorable J. Dean Lewis, Judge, Fifteenth District Juvenile and Domestic Relations Court, 02-058 2002, Va. AG LEXIS 43 (7/16/02).

§ 16.1-266.1. Standards for attorneys appointed as guardians ad litem; list of qualified attorneys; attorneys appointed for parents or guardians.

  1. On or before January 1, 1995, the Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as guardians ad litem pursuant to § 16.1-266. The standards shall, insofar as practicable, take into consideration the following criteria: (i) license or permission to practice law in Virginia, (ii) current training in the roles, responsibilities and duties of guardian ad litem representation, (iii) familiarity with the court system and general background in juvenile law, and (iv) demonstrated proficiency in this area of the law.
  2. The Judicial Council shall maintain a list of attorneys admitted to practice law in Virginia who are qualified to serve as guardians ad litem based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his discretion may appoint any discreet and competent attorney who is admitted to practice law in Virginia.
  3. Counsel appointed for a parent or guardian pursuant to subsection D of § 16.1-266 shall be selected from the list of attorneys who are qualified to serve as guardians ad litem. If no attorney who is on the list is reasonably available or appropriate considering the circumstances of the parent or case, a judge in his discretion may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

    (1994, c. 36; 1995, c. 273; 2016, cc. 182, 509.)

The 2016 amendments. - The 2016 amendments by cc. 182 and 509 are identical, and added subsection C; and made a minor stylistic change.

CASE NOTES

Guardian ad litem's use of staff was proper. - Nothing prevented a guardian ad litem from using staff members to carry out his or her duties. Ferguson v. Grubb, 39 Va. App. 549, 574 S.E.2d 769, 2003 Va. App. LEXIS 5 (2003).

§ 16.1-266.2. Appointment of pro bono counsel by judges of the First and Second Judicial District in certain cases.

The judges of the juvenile and domestic relations district court of the First and Second Judicial District are authorized to appoint pro bono counsel for alleged victims in family abuse cases in which the court is authorized to issue a preliminary protective order under § 16.1-253.1, or an emergency protective order under § 16.1-253.4. Such counsel shall have no prosecutorial authority except as granted in writing by the attorney for the Commonwealth for the jurisdiction in which the representation is to occur.

Any attorney appointed under the provisions of this section shall be a volunteer and serve without compensation and shall be subject to any rules adopted by the court and approved by the Virginia Supreme Court providing for the establishment and conduct of a project providing pro bono services to victims of family abuse.

(1995, c. 806.)

Editor's note. - Acts 1995, c. 806, cl. 2, which provided for the expiration of § 16.1-266.2 on July 1, 1997, was repealed by Acts 1997, c. 151, cl. 1. Therefore, this section remains in effect.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

§ 16.1-267. Compensation of appointed counsel.

  1. When the court appoints counsel to represent a child pursuant to subsection A of § 16.1-266 and, after an investigation by the court services unit, finds that the parents are financially able to pay for the attorney and refuse to do so, the court shall assess costs against the parents for such legal services in the maximum amount of that awarded the attorney by the court under the circumstances of the case, considering such factors as the ability of the parents to pay and the nature and extent of the counsel's duties in the case. Such amount shall not exceed the maximum amount specified in subdivision 1 of § 19.2-163 if the action is in district court.

    When the court appoints counsel to represent a child pursuant to subsection B or C of § 16.1-266 and, after an investigation by the court services unit, finds that the parents are financially able to pay for the attorney in whole or in part and refuse to do so, the court shall assess costs in whole or in part against the parents for such legal services in the amount awarded the attorney by the court. Such amount shall not exceed $100 if the action is in circuit court or the maximum amount specified in subdivision 1 of § 19.2-163 if the action is in district court. In determining the financial ability of the parents to pay for an attorney to represent the child, the court shall utilize the financial statement required by § 19.2-159.

    In all other cases, except as provided in § 16.1-343, counsel appointed to represent a child shall be compensated for his services pursuant to § 19.2-163.

  2. When the court appoints counsel to represent a parent, guardian or other adult pursuant to § 16.1-266, such counsel shall be compensated for his services pursuant to § 19.2-163.
    1. In any proceeding in which the court appoints a guardian ad litem to represent a child pursuant to § 16.1-266, the court shall order the parent, or other party with a legitimate interest who has filed a petition in such proceeding, to reimburse the Commonwealth the costs of such services in an amount not to exceed the amount awarded the guardian ad litem by the court. If the court determines that such party is unable to pay, the required reimbursement may be reduced or eliminated. No party whom the court determines to be indigent pursuant to § 19.2-159 shall be required to pay reimbursement except where the court finds good cause to do so. The Executive Secretary of the Supreme Court shall administer the guardian ad litem program and shall report August 1 and January 1 of each year to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations on the amounts paid for guardian ad litem purposes, amounts reimbursed, savings achieved, and management actions taken to further enhance savings under this program. C. 1.  In any proceeding in which the court appoints a guardian ad litem to represent a child pursuant to § 16.1-266, the court shall order the parent, or other party with a legitimate interest who has filed a petition in such proceeding, to reimburse the Commonwealth the costs of such services in an amount not to exceed the amount awarded the guardian ad litem by the court. If the court determines that such party is unable to pay, the required reimbursement may be reduced or eliminated. No party whom the court determines to be indigent pursuant to § 19.2-159 shall be required to pay reimbursement except where the court finds good cause to do so. The Executive Secretary of the Supreme Court shall administer the guardian ad litem program and shall report August 1 and January 1 of each year to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations on the amounts paid for guardian ad litem purposes, amounts reimbursed, savings achieved, and management actions taken to further enhance savings under this program.
    2. For good cause shown, or upon the failure by the guardian ad litem to substantially comply with the standards adopted for attorneys appointed as guardians ad litem pursuant to § 16.1-266.1, the court may adjust the cost sought by the guardian ad litem of such services.
    3. For the purposes of this subsection, "other party with a legitimate interest" shall not include child welfare agencies or local departments of social services.

      (Code 1950, § 16.1-173; 1956, c. 555; 1966, c. 709; 1968, c. 581; 1970, c. 87; 1973, c. 440; 1974, c. 513; 1975, cc. 465, 559; 1977, c. 559; 1981, c. 213; 1984, c. 709; 1986, c. 425; 1993, c. 344; 2004, cc. 342, 437; 2017, c. 676; 2018, c. 688.)

Editor's note. - Acts 2017, c. 676, cl. 2 was codified as subdivision C 2 of this section at the direction of the Virginia Code Commission.

The Virginia Code Commission authorized the substitution of "Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations” for "Chairmen of the House Appropriations and Senate Finance Committees” in subdivision C 1. March 10, 2021.

The 2004 amendments. - The 2004 amendment by c. 342, in subsection A, in the first paragraph, substituted "subsection A of § 16.1-266" for " § 16.1-266 A" and "parents" for "parent" and inserted "maximum" and "of that" near the middle of the first sentence and deleted "$100 if the action is in circuit court or" following "shall not exceed" in the last sentence, and substituted "subsection B of § 16.1-266" for " § 16.1-266 B" in the first sentence of the second paragraph.

The 2004 amendment by c. 437, effective July 1, 2005, in subsection A, substituted "subsection A of § 16.1-266" for " § 16.1-266 A" in the first sentence of the first paragraph and substituted "subsection B or C of § 16.1-266" for " § 16.1-266 B" in the first sentence of the next-to-last paragraph.

The 2017 amendments. - The 2017 amendment by c. 676 added subsection C.

The 2018 amendments. - The 2018 amendment by c. 688 inserted subdivision C 2 and made related changes.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

CASE NOTES

Court erred in assessing transcript costs against Commonwealth. - The trial court erred in assessing to the Commonwealth the costs related to preparation of the trial transcript since subsection B expressly assures compensation only for appointed counsel's "services" not "expenses." Kerns v. Winchester Dep't of Social Servs., No. 2211-91-4 (Ct. of Appeals Sept. 15, 1992).

Inquiry as to financial ability to pay fees applies only to appointments pursuant to § 16.1-266 A and B [now § 16.1-266 A and C]. - That statutory mandate, to inquire as to financial ability to pay guardian ad litem fees as required by subsection A of this section, applies only to a guardian ad litem appointed pursuant to § 16.1-266 A or B [now § 16.1-266 A and C]. Where, the guardian ad litem was appointed pursuant to § 16.1-266 D [now § 16.1-266 E]; wife's claim is without merit. Kaplan v. Kaplan, No. 0987-92-1, 1993 Va. App. LEXIS 420 (Ct. of Appeals Sept. 14, 1993).

Guardian ad litem fee not subject to fee limitation. - The Attorney General of Virginia has opined that the fee of a guardian ad litem appointed to represent a minor child pursuant to § 16.1-266 D [now § 16.1-266 E] is not subject to the maximum fee limitations for court-appointed counsel set forth in this section. Op. Va. Att'y Gen. 177 (Dec. 2, 1980); Op. Va. Att'y Gen. 153 (Oct. 27, 1986); see Patterson v. Old Dominion Trust Co., 156 Va. 763 , 775, 159 S.E. 168 , 172 (1931). Kaplan v. Kaplan, No. 0987-92-1, 1993 Va. App. LEXIS 420 (Ct. of Appeals Sept. 14, 1993).

In a case in which the trial court properly denied the mother's motion to amend custody and visitation, §§ 16.1-267 and 19.2-163 were inapplicable to guardian ad litem compensation because § 16.1-267 granted authority to the juvenile and domestic relations district court to award guardian ad litem fees in cases originating in that court, but the present action took place entirely in circuit court, beginning with the 2010 divorce proceedings; and § 19.2-163 pertained to the cap for compensation of court-appointed counsel in criminal cases. The amount of the award to the guardian ad litem was clearly within the discretion of the trial court. Sims-Bernard v. Bernard, No. 0918-17-2, 2018 Va. App. LEXIS 13 (Jan. 23, 2018).

Guardian ad litem fees can be divided between parties. - Trial court did not err in dividing a guardian ad litem's fees equally between a mother and a father because nothing in Virginia jurisprudence indicated that allocating guardian ad litem costs equally amongst the parties was error. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

§ 16.1-268. Order of appointment.

The order of appointment of counsel pursuant to § 16.1-266 shall be filed with and become a part of the record of such proceeding. The attorney so appointed shall represent the child or parent, guardian or other adult at any such hearing and at all other stages of the proceeding unless relieved or replaced in the manner provided by law.

(1977, c. 559.)

CASE NOTES

Representation of child. - Trial court was authorized to allow the guardian ad litem to remain on the child custody case despite the mother seeking to remove the guardian ad litem after appealing an adverse decision from the juvenile and domestic relations district court to the trial court. This section authorized a properly appointed guardian ad litem to remain on such a case, and the mother did not show that the guardian ad litem was not properly appointed. Lewis v. Hyman, No. 2133-07-4, 2008 Va. App. LEXIS 281 (June 10, 2008).

Applied in Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986).

CIRCUIT COURT OPINIONS

Guardian ad litem fee. - Guardian ad litem was not entitled to payment of fees for services rendered after entry of the final decree of divorce because the guardian ad litem, who was appointed pursuant to a pendente lite order, was without power to act following entry of the final decree and was, therefore, not entitled to bill for her services thereafter rendered. Hart v. Hart, 87 Va. Cir. 122, 2013 Va. Cir. LEXIS 158 (Chesapeake Sept. 24, 2013).

Article 7. Transfer and Waiver.

§ 16.1-269.

Repealed by Acts 1994, cc. 859 and 949.

§ 16.1-269.1. Trial in circuit court; preliminary hearing; direct indictment; remand.

  1. Except as provided in subsections B and C, if a juvenile 14 years of age or older at the time of an alleged offense is charged with an offense which would be a felony if committed by an adult, the court shall, on motion of the attorney for the Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such juvenile for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction of such offenses if committed by an adult. Any transfer to the appropriate circuit court shall be subject to the following conditions:
    1. Notice as prescribed in §§ 16.1-263 and 16.1-264 shall be given to the juvenile and his parent, guardian, legal custodian or other person standing in loco parentis; or attorney;
    2. The juvenile court finds that probable cause exists to believe that the juvenile committed the delinquent act as alleged or a lesser included delinquent act which would be a felony if committed by an adult;
    3. The juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence; and
    4. The court finds by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court. In determining whether a juvenile is a proper person to remain within the jurisdiction of the juvenile court, the court shall consider, but not be limited to, the following factors:
      1. The juvenile's age;
      2. The seriousness and number of alleged offenses, including (i) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (ii) whether the alleged offense was against persons or property, with greater weight being given to offenses against persons, especially if death or bodily injury resulted; (iii) whether the maximum punishment for such an offense is greater than 20 years confinement if committed by an adult; (iv) whether the alleged offense involved the use of a firearm or other dangerous weapon by brandishing, threatening, displaying or otherwise employing such weapon; and (v) the nature of the juvenile's participation in the alleged offense;
      3. Whether the juvenile can be retained in the juvenile justice system long enough for effective treatment and rehabilitation;
      4. The appropriateness and availability of the services and dispositional alternatives in both the criminal justice and juvenile justice systems for dealing with the juvenile's problems;
      5. The record and previous history of the juvenile in this or other jurisdictions, including (i) the number and nature of previous contacts with juvenile or circuit courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses;
      6. Whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in this or any other jurisdiction;
      7. The extent, if any, of the juvenile's degree of intellectual disability or mental illness;
      8. The juvenile's school record and education;
      9. The juvenile's mental and emotional maturity; and
      10. The juvenile's physical condition and physical maturity.

        No transfer decision shall be precluded or reversed on the grounds that the court failed to consider any of the factors specified in subdivision 4.

  2. The juvenile court shall conduct a preliminary hearing whenever a juvenile 16 years of age or older is charged with murder in violation of § 18.2-31 , 18.2-32 or 18.2-40 , or aggravated malicious wounding in violation of § 18.2-51.2 . If the juvenile is 14 years of age or older, but less than 16 years of age, then the court may proceed, on motion of the attorney for the Commonwealth, as provided in subsection A.
  3. The juvenile court shall conduct a preliminary hearing whenever a juvenile 16 years of age or older is charged with murder in violation of § 18.2-33 ; felonious injury by mob in violation of § 18.2-41 ; abduction in violation of § 18.2-48 ; malicious wounding in violation of § 18.2-51 ; malicious wounding of a law-enforcement officer in violation of § 18.2-51.1 ; felonious poisoning in violation of § 18.2-54.1 ; adulteration of products in violation of § 18.2-54.2 ; robbery in violation of subdivision B 1 or 2 of § 18.2-58 or carjacking in violation of § 18.2-58.1 ; rape in violation of § 18.2-61 ; forcible sodomy in violation of § 18.2-67.1 ; object sexual penetration in violation of § 18.2-67.2 ; manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance in violation of § 18.2-248 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating § 18.2-248 provided the adjudications occurred after the juvenile was at least 16 years of age; manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine in violation of § 18.2-248.03 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating § 18.2-248.03 provided the adjudications occurred after the juvenile was at least 16 years of age; or felonious manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute anabolic steroids in violation of § 18.2-248.5 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating § 18.2-248.5 provided the adjudications occurred after the juvenile was at least 16 years of age, provided the attorney for the Commonwealth gives written notice of his intent to proceed pursuant to this subsection. Prior to giving written notice of his intent to proceed pursuant to this subsection, the attorney for the Commonwealth shall submit a written request to the director of the court services unit to complete a report as described in subsection B of § 16.1-269.2 unless waived by the juvenile and his attorney or other legal representative. The report shall be filed with the court and mailed or delivered to (i) the attorney for the Commonwealth and (ii) counsel for the juvenile, or, if the juvenile is not represented by counsel, to the juvenile and a parent, guardian, or other person standing in loco parentis with respect to the juvenile, within 21 days of the date of the written request. After reviewing the report, if the attorney for the Commonwealth still intends to proceed pursuant to this subsection, he shall then provide the written notice of such intent, which shall include affirmation that he reviewed the report. The notice shall be filed with the court and mailed or delivered to counsel for the juvenile or, if the juvenile is not then represented by counsel, to the juvenile and a parent, guardian or other person standing in loco parentis with respect to the juvenile at least seven days prior to the preliminary hearing. If the attorney for the Commonwealth elects not to give such notice, if he elects to withdraw the notice prior to certification of the charge to the grand jury, or if the juvenile is 14 years of age or older, but less than 16 years of age, he may proceed as provided in subsection A.
  4. Upon a finding of probable cause pursuant to a preliminary hearing under subsection B or C, the juvenile court shall certify the charge, and all ancillary charges, to the grand jury. Such certification shall divest the juvenile court of jurisdiction as to the charge and any ancillary charges. Nothing in this subsection shall divest the juvenile court of jurisdiction over any matters unrelated to such charge and ancillary charges which may otherwise be properly within the jurisdiction of the juvenile court.

    If the court does not find probable cause to believe that the juvenile has committed the violent juvenile felony as charged in the petition or warrant or if the petition or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth may seek a direct indictment in the circuit court. If the petition or warrant is terminated by nolle prosequi in the juvenile court, the attorney for the Commonwealth may seek an indictment only after a preliminary hearing in juvenile court.

    If the court finds that the juvenile was not (i) for the purposes of subsection A, 14 years of age or older or (ii) for purposes of subsection B or C, 16 years of age or older, at the time of the alleged commission of the offense or that the conditions specified in subdivision A 1, 2, or 3 have not been met, the case shall proceed as otherwise provided for by law.

  5. An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age. If an indictment is terminated by nolle prosequi, the Commonwealth may reinstate the proceeding by seeking a subsequent indictment.

    (1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 862; 2012, cc. 476, 507, 772; 2020, cc. 987, 988; 2021, Sp. Sess. I, c. 534.)

Cross references. - As to the one year deadline for claims of error or defect, see § 16.1-272.1.

As to Sex Offender and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to definition and effect of "sealing” criminal history record information, see § 19.2-392.5.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2021, Sp. Sess. I, c. 534, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and, in subsection A, in the first sentence, inserted "Except as provided in subsections B and C" preceding "if a juvenile fourteen years of age" and inserted "at the time of an alleged offense" preceding "is charged with an offense," deleted "Except as provided in subsection B" preceding "The court finds" in subdivision A 4, substituted "juvenile correctional centers" for "learning centers" in clause (iii) of subdivision A 4 e, rewrote subsection B, which formerly read: "The court may hold a transfer hearing and certify the juvenile for transfer to the appropriate circuit court without making the finding required by subdivision A 4 if a juvenile fourteen years of age or older is charged with: (B 1.) A Class 1 or 2 felony violation of Chapter 4 ( § 18.2-30 et seq.) of Title 18.2 or, if the juvenile is sixteen years of age or older, a Class 3 felony violation of Chapter 4 ( § 18.2-30 et seq.) of Title 18.2 for: (i) murder under Article 1; (ii) mob-related felony under Article 2; (iii) kidnapping or abduction under Article 3; or (iv) assault or bodily wounding under Article 4; or, (B 2.) Any unclassified felony violation of Chapter 4 ( § 18.2-30 et seq.) of Title 18.2 which carries a maximum penalty of imprisonment for life or a term of imprisonment of forty years if committed by an adult," and added subsections C through E.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "intellectual disability or mental illness" for "mental retardation or mental illness" in subdivision A 4 g; and made minor stylistic changes throughout the section.

The 2012 amendment by c. 772 inserted the language following " § 18.2-67.2 " and preceding "providing the attorney" in subsection C, and made minor stylistic changes throughout.

The 2020 amendments. - The 2020 amendments by cc. 987 and 988 are identical, and throughout subsections B and C substituted "16 years" for 14 years"; in subsection B, added the last sentence; in subsection C, in the first sentence; added the second through fourth sentences and in the last sentence, inserted "or if the juvenile is 14 years of age or older, but less than 16 years of age"; and, in subsection D, substituted "(i) for the purposes of subsection A, 14 years of age or older or (ii) for purposes of subsection B or C, 16 years of age or older" for "14 years of age or older."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 534, effective July 1, 2021, inserted "subdivision B 1 or 2 of" in subsection C in the first sentence.

Law review. - For article, "Legal Issues Involving Children," see 28 U. Rich. L. Rev. 1075 (1994).

For note, "Novak v. Commonwealth: Are Virginia Courts Providing Special Protection to Virginia's Juvenile Defendants?", see 30 U. Rich. L. Rev. 935 (1996).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For a review of Virginia legal issues involving children, see 33 U. Rich. L. Rev. 1001 (1999).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For note, "Let the Jury Do the Waive: How Apprendi v. New Jersey Applies to Juvenile Transfer Proceedings," see 48 Wm. & Mary L. Rev. 723 (2006).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants & Juveniles, §§ 13, 19, 82, 84; 10A M.J. Insane & Other Incompetent Persons, § 50.

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's note. - Some of the cases below were decided under former § 16.1-269.

Effect of section. - In effect, if not intent, this section and § 16.1-241 provide a chance for different, less rigorous treatment for certain persons whose immaturity at the time of the offense works not only to make special rehabilitation efforts more fitting but also decreases the moral blame attached to the act, and the punishment flowing from it. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

Effect of 1990 amendment. - A de novo hearing is required under subsection E of this section on the issue of transfer and the 1990 amendment to this section did not do away with the de novo hearing requirement, but merely prohibited the circuit court from redetermining the juvenile court's finding of probable cause. Broadnax v. Commonwealth, 16 Va. App. 36, 427 S.E.2d 741 (1993).

A juvenile is entitled to the protection of the juvenile system and the Commonwealth can only try the juvenile as an adult if the requirements for juvenile transfer proceedings under this section have been strictly followed; for without such an approach, there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. In re Baskins, 16 Va. App. 241, 430 S.E.2d 555 (1993), but see Jamborsky v. Baskins, 247 Va. 506 , 442 S.E.2d 636 (1994).

Interests of child and the public protected. - The authority of the juvenile court either to retain jurisdiction or to transfer jurisdiction in serious cases protects the interests of both the child and the public. Grogg v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988).

Indictment in circuit court cures failure to notify biological father. - The failure to notify a defendant's biological father of the initiation of juvenile proceedings was a defect but, under this section, that defect was cured when the grand jury returned indictments against the defendant on the offenses certified to it by the juvenile court and this section permitted the circuit court to exercise its subject matter jurisdiction and to try the defendant on the offenses set forth in the indictments. Moore v. Commonwealth, 259 Va. 405 , 527 S.E.2d 415 (2000), rev'd on other grounds, Pope v. Commonwealth, 37 Va. App. 451, 559 S.E.2d 388 (2002).

Unless competency of juvenile is challenged, explicit finding of competency is not required. Panameno v. Commonwealth, 255 Va. 473 , 498 S.E.2d 920 (1998).

The availability of appropriate services in the juvenile system does not render it improper to try a juvenile as an adult; such availability of services is only one of several relevant factors. Brown v. Commonwealth, No. 2858-97-2 (Ct. of Appeals Mar. 30, 1999).

The trial court properly authorized trial of a juvenile as an adult where: (1) several months prior to his 18th birthday, the juvenile was charged with six counts of distributing cocaine to his half-brother, who was a police informant; (2) over the preceding years, the juvenile had been found guilty of several crimes, including assault and battery; (3) at the time of the hearing, the juvenile was charged with an unrelated offense of brandishing a firearm; and (4) he had also been jailed because he failed to complete a community service requirement mandated by a court order. Brown v. Commonwealth, No. 2858-97-2 (Ct. of Appeals Mar. 30, 1999).

The transfer hearing, with or without evidence, is a vital and integral procedural step in the process of the juvenile court system. As such it is designed to achieve fairness both to the public and to the juvenile. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

Review of juvenile court record in making determination on transfer issue. - The critical requirement is that the circuit court make an independent determination on the issue of transfer but it is permissible for the circuit court to review the transcripts and written records from the juvenile court. Grogg v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988).

No appeal of transfer decision. - Trial court properly denied a juvenile's motion to quash the indictments because, while the trial court found substantial compliance with the transfer statute and advised the Commonwealth's attorney that he could seek an indictment, the court was not required to do so as the transfer decision had not been appealed. Waters v. Commonwealth, No. 1092-17-3, 2018 Va. App. LEXIS 175 (July 3, 2018).

Cameras in courtroom. - Once a juvenile is transferred to the circuit court pursuant to this section, he is thereafter prosecuted as an adult. In such circumstances, a decision to permit cameras in the courtroom rests with the sound discretion of the trial court, and absent a showing of prejudice of constitutional dimensions, the mere presence of cameras does not result in an unfair trial. Novak v. Commonwealth, 20 Va. App. 373, 457 S.E.2d 402 (1995).

Section prohibits trial of juvenile under fifteen as adult. - This section prohibits the indictment and trial of a child under the age of fifteen on a charge of murder and felonious assault. Lee v. Jones, 212 Va. 792 , 188 S.E.2d 102 (1972).

No authority to proceed against appellant as adult. - Where circuit court failed to conduct the required hearing to juvenile defendant, the Commonwealth lacked the authority to proceed against appellant as an adult and, accordingly, appellant's conviction for possession of cocaine with intent to distribute must be vacated and case to be remanded to the circuit court to provide the required hearing before determining whether the Commonwealth should be authorized to seek an indictment. Broadnax v. Commonwealth, No. 1458-91-2 (Ct. of Appeals Sept. 9, 1993).

Emancipation alone is not a sufficient reason to transfer a felony charge from a juvenile and domestic relations district court to a circuit court for trial. Kluis v. Commonwealth, 14 Va. App. 720, 418 S.E.2d 908 (1992).

Waiver based solely on seriousness of offense contemplated. - The attitude that a waiver of a juvenile court's jurisdiction over a child may be premised solely on the basis of the seriousness of the offense is reflected in this section. Pollard v. Riddle, 482 F. Supp. 260 (E.D. Va. 1979).

Right to different judge at adjudicatory hearing. - It would strain reason to hold that a juvenile is not afforded the right to a different circuit judge at an adjudicatory hearing following appeal of the transfer to circuit court, when the juvenile has that right pursuant to specific language in subsection D for the identical proceeding in juvenile court, and in subsection E for the identical proceeding in circuit court incident to the Commonwealth's appeal; therefore, the circuit court erred in failing to follow the procedure in this section for transfer hearings by denying defendant his right to a different judge at the adjudicatory hearing. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Sentencing. - When defendant appeared before a circuit court for sentencing on criminal charges under § 16.1-269.1, the jury was correctly allowed to sentence defendant because he was not a juvenile in that he had been previously convicted as an adult on an unrelated charge and given an adult sentence. Section 16.1-272 did not apply to youthful offenders who fell within the scope of § 16.1-271, while § 16.1-271 applied to any juvenile who was tried and convicted in a circuit court as an adult. Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995); Burke v. Commonwealth, 29 Va. App. 183, 510 S.E.2d 743 (1999); Bramblett v. Commonwealth, 257 Va. 263 , 513 S.E.2d 400 (1999); Roach v. Angelone, 176 F.3d 210 (4th Cir. 1999); Woodfork v. Commonwealth, 31 Va. App. 154, 521 S.E.2d 781 (1999); Brown v. Commonwealth, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

II. CONSTITUTIONAL CONSIDERATION.

All constitutional rights of adult need not be available to juvenile. - The United States Supreme Court has never held that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

Test. - The United States Supreme Court has enunciated the test for ascertaining to what extent constitutional requirements are to be "superimposed" on the juvenile process. That test is a two-fold one, namely, whether the application of the right is necessary to the achievement of "fundamental fairness" and whether it will disrupt the juvenile court system. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

Due process. - The juvenile hearing need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, but it must measure up to the essentials of due process and fair treatment. Cradle v. Cox, 327 F. Supp. 1169 (E.D. Va. 1971).

Juvenile waiver of jurisdiction hearings requires basic elements of procedural due process, including a hearing, effective assistance of counsel and a statement of reasons. The procedures under this section generally provide appropriate constitutional safeguards. Wansley v. Miller, 353 F. Supp. 42 (E.D. Va.), rev'd on other grounds, 487 F.2d 90 (4th Cir. 1973).

A juvenile is entitled to the assistance of counsel in having a court of proper jurisdiction determine, upon proper facts, whether he should be tried and sentenced as a juvenile. Cradle v. Cox, 327 F. Supp. 1169 (E.D. Va. 1971).

Juvenile charged with first degree murder was barred from claiming a deprivation of due process for not being allowed a preliminary hearing before being transferred for prosecution as an adult because this section did not mandate a preliminary hearing prior to a dismissal of the charges in juvenile court. Lampkins v. Commonwealth, 44 Va. App. 709, 607 S.E.2d 722, 2005 Va. App. LEXIS 22 (2005).

There was no reversible error in denying defendant's appeal of the order of the juvenile court certifying the charges against defendant to the grand jury pursuant to subsection B of § 16.1-269.1, because, while defendant's parents were not provided with notification of the advisement hearing or the transfer hearing, there was no violation of defendant's constitutional due process rights because no such rights exist with regard to non-adjudicatory hearings. Angel v. Commonwealth, 281 Va. 248 , 704 S.E.2d 386, 2011 Va. LEXIS 26 (2011), cert. denied, 2011 U.S. LEXIS 7091, 132 S. Ct. 344, 181 L. Ed. 2d 216 (U.S. 2011).

Violation of speedy trial statute. - When the district court certified and transferred defendant for trial as an adult in the circuit court, the district court necessarily found the requisite probable cause contemplated by the speedy trial statute. Because the transfer order directed that defendant be "remanded to jail," the prescribed five month limitation of § 19.2-243 commenced on October 4, 1995. It was immaterial that such custody coincided with detention of defendant incidental to an unrelated commitment. Irrespective of the trial court's order to quash, the initial indictments of defendant were a nullity, obtained without the benefit of the enabling order required by subsection B of § 16.1-269.6, and the court simply remedied of record an error or oversight in the proceedings, without disturbing the legal efficacy of the pending transfer order or effecting a nolle prosequi. Accordingly, defendant was held continuously in custody from the finding of probable cause in the district court on October 4, 1995, until trial on July 11, 1996, in violation of Section 19.2-243, and the court had to reverse and dismiss the convictions. Price v. Commonwealth, 25 Va. App. 655, 492 S.E.2d 447 (1997), aff'd, 256 Va. 373 , 506 S.E.2d 317 (1998).

Speedy trial rights attach upon determination by juvenile court that probable cause exists to believe that the juvenile committed the delinquent act as alleged. Jackson v. Commonwealth, 255 Va. 625 , 499 S.E.2d 538 (1998), cert. denied, 525 U.S. 1067, 119 S. Ct. 796, 142 L. Ed. 2d 658 (1999).

Transfer hearing. - Juvenile court's certification to the grand jury of the murder charge filed against defendant, a 14-year-old, did not violate defendant's constitutional rights even though defendant was not granted a transfer hearing as no constitutional right existed to a transfer hearing and the juvenile court had made the required statutory findings that defendant was 14 years old or older and probable cause existed to believe defendant committed the murder at issue. Rodriguez v. Commonwealth, 40 Va. App. 144, 578 S.E.2d 78, 2003 Va. App. LEXIS 153 (2003).

Capital murder. - A 16-year-old person who is convicted of capital murder may be subjected to capital punishment. Jackson v. Commonwealth, 255 Va. 625 , 499 S.E.2d 538 (1998), cert. denied, 525 U.S. 1067, 119 S. Ct. 796, 142 L. Ed. 2d 658 (1999).

III. NATURE AND REQUIREMENTS OF PROCEEDINGS GENERALLY.

Scope of hearing. - A hearing held under the Juvenile and Domestic Relations (District) Court Law is not as limited in its scope as a preliminary hearing under the criminal procedures applicable to an adult. The juvenile court judge is expressly empowered with the discretion of either retaining jurisdiction of the child charged with the commission of a felony or certifying the child for criminal proceedings in a proper court of record. Peyton v. French, 207 Va. 73 , 147 S.E.2d 739 (1966).

Distinction between transfer and adjudicatory proceedings. - Distinction should be made for double jeopardy purposes between the transfer or certification proceeding and an adjudicatory or dispositional proceeding. A confinement order "imposes a sentence of confinement" and will constitute jeopardy. On the other hand, a certification order transfers the case to another court for original determination whether the accused child shall be confined. In such order, the court makes no finding of innocence or guilt, only a finding that the juvenile should stand trial on the merits in another court. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

Minimum requirements needed when transfer is made to circuit court. - Circuit court is not required to conduct a de novo hearing in transfer or removal proceedings from juvenile court to the circuit court, nonetheless certain minimum requirements must be met, however there must be a hearing that gives meaningful review; the juvenile must be given notice of the hearing and afforded an opportunity to appear with counsel and argue his position. Russell v. Commonwealth, 16 Va. App. 660, 432 S.E.2d 12 (1993).

Hearing does not constitute jeopardy. - To hold that the transfer hearing constituted jeopardy, and to apply to it the rules applicable to the criminal trial on the merits of an adult, would effectively undermine the juvenile court system. There is no warrant for any such conclusion. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

The problem of double jeopardy has been eliminated from this section. Lewis v. Howard, 374 F. Supp. 446 (W.D. Va.), aff'd, 504 F.2d 426 (4th Cir. 1974), cert. denied, 421 U.S. 999, 95 S. Ct, 2396, 44 L. Ed. 2d 666 (1975).

The proceedings in the juvenile court are jurisdictional rather than procedural. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

Effect of significant defect in transfer proceeding. - If there be a significant defect in the transfer proceeding, the circuit court never gains jurisdiction over the juvenile and therefore has no authority to impose a sentence on the offender. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 495 (1979).

Failure of the juvenile court to comply with the statutory provisions of procedure will render the certification to a court of record void. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

The Virginia Supreme Court has consistently insisted upon strict compliance with the statutes governing transfer for adult trial. A failure to conduct an investigation before discretion is exercised, a failure to provide a hearing in a juvenile court, and a failure to notify a child's parents of a juvenile court certification hearing or to appoint a guardian ad litem, all render a decision to try a defendant as an adult invalid and ineffective to oust the original jurisdiction of the juvenile and domestic relations court. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

A preliminary hearing in a juvenile court is jurisdictional and not procedural, and before a circuit court can acquire jurisdiction to try petitioner there must be a compliance with the provisions of the Juvenile and Domestic Relations [District] Court Law. Peyton v. French, 207 Va. 73 , 147 S.E.2d 739 (1966).

Limited jurisdiction of juvenile court. - This section limits the juvenile court to conducting a preliminary hearing and certifying the charge to the grand jury; once the juvenile court finds probable cause and certifies the charge, it loses jurisdiction. Williams v. Commonwealth, 33 Va. App. 725, 536 S.E.2d 916, 2000 Va. App. LEXIS 734 (2000).

Defendant juvenile, tried as an adult on a charge of malicious wounding and convicted of the lesser included offense of unlawful wounding, could not have the case transferred back to the juvenile court, as once the juvenile court made a probable cause finding, the juvenile court had no further jurisdiction; subsection C of § 16.1-269.1 defined the class of "violent felonies" that mandated certification to the circuit court upon a finding of probable cause and limited the role of the juvenile court in those cases. Hughes v. Commonwealth, 39 Va. App. 448, 573 S.E.2d 324, 2002 Va. App. LEXIS 765 (2002).

Findings required by the transfer statute are jurisdictional and, because neither the juvenile court nor the circuit court made such findings, the circuit court was without jurisdiction to try defendant as an adult. Matthews v. Commonwealth, 216 Va. 358 , 218 S.E.2d 538 (1975).

To make a transfer, the transferring judge must have conducted a transfer hearing, and he must have made the findings in subdivision A 3. Absent such findings, the circuit court never gains jurisdiction over the minor to try him as an adult. United States v. Blevins, 802 F.2d 768 (4th Cir. 1986).

Transfer order void where findings not made. - Where at the conclusion of a hearing held pursuant to this section, the juvenile court judge transferred defendant to the circuit court for trial as an adult, but the transfer order failed to indicate that the juvenile court judge made the findings required by subdivisions (A) (3) (b), (c) and (d) as the appropriate boxes on the form order were not checked, the juvenile court order transferring defendant to the circuit court for trial as an adult was void since the findings required by this section are jurisdictional and if these findings are not made, the transfer order of the juvenile court is void and the circuit court is without jurisdiction to try the juvenile as an adult. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

If the juvenile and domestic relations district court fails to hold a transfer hearing or to make the required findings, then the circuit court proceedings against a juvenile are void for lack of jurisdiction to try him or her as an adult. Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).

Incomplete form transfer order rendered trial court without jurisdiction. - Where juvenile district court made some, but not all, of the required findings by checking some, but not all, of the boxes provided on a form transfer order used by the juvenile and domestic relations district court, the trial court had no jurisdiction to try the defendant as an adult on charges of first degree murder and use of a firearm while committing a felony. Harrell v. Commonwealth, No. 1308-91-1 (Ct. of Appeals Dec. 15, 1992).

Provisions mandatory. - The statutes relating to the procedure applicable to proceedings for cases tried in a juvenile court are mandatory and must be followed. Evans v. Cox, 327 F. Supp. 1057 (E.D. Va. 1971).

Where court referred to "violent felony," it was not addressing sentencing requirements - Where appellant correctly pointed out that neither of his offenses of conviction, attempted armed robbery and use of a firearm in the commission of a felony, was enumerated as a "violent juvenile felony" under this section, the court's reference to "violent felony" did not ineluctably lead to the conclusion that it was referring to the "violent juvenile felony" provision of this section when it stated its findings. Indeed, the record, taken as a whole, supported the conclusion that the court had before it and gave consideration to all the relevant factors under the juvenile sentencing provisions in determining whether appellant was more properly sentenced under the criminal law applicable to adults or that governing the disposition of juveniles, and that, in announcing its finding, it was not particularly addressing the requirements for sentencing under this section. Pressley v. Commonwealth, No. 3019-96-4 (Ct. of Appeals Jan. 13, 1998).

Waiver of objection based on failure to notify parent. - The legislature has provided in subsection E of this section that, as to offenses committed on or after July 1, 1996, once an indictment has been returned in the circuit court, any failure to comply with the parental notification provisions of § 16.1-263 and this section does not deprive the court of subject matter jurisdiction. Carter v. Commonwealth, 31 Va. App. 393, 523 S.E.2d 544 (2000).

Because the defendant failed to raise the jurisdictional issue of lack of notice to his father when he was certified for trial as an adult in another county before the indictments were returned in the circuit court in the instant case, failure to comply with the parental notification provisions of the statutes did not deprive the circuit court of jurisdiction in the instant case. Monteon v. Commonwealth, No. 2038-99-3, 2000 Va. App. LEXIS 316 (Ct. of Appeals May 2, 2000).

IV. STUDY AND REPORT.

Report as jurisdictional prerequisite. - The Supreme Court has held that the statute requiring that the juvenile court's investigation report be transmitted to the court of record laid down a jurisdictional prerequisite. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

The investigation required by this section is a prerequisite to the exercise of judicial discretion, informed and aided by the data compiled. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

The purpose of the investigation is to enable the court to reach a proper decision as to whether or not to transfer the defendant for trial to the juvenile court. Tilton v. Commonwealth, 196 Va. 774 , 85 S.E.2d 368 (1955)(decided under former § 16-172.42, corresponding to this section).

The juvenile court can rely on information previously supplied to itself in a subsequent case involving the same defendant. Muse v. Slayton, 333 F. Supp. 1007 (W.D. Va. 1971).

No requirement court must consider juvenile's prior treatment or rehabilitation. - Where judge, basing his decision on defendant's age and nature of offenses, transferred him to be tried in circuit court as adult pursuant to this section, finding of nonamenability did not require that juvenile must fail to respond to previously offered treatment or rehabilitation since plain language of former § 16.1-269 (A) (3) (b) authorizes juvenile court judge in determining nonamenability to look to either nature of offense or other factors set forth in statutes; use of word "or" in former § 16.1-269 (A) (3) (b) allows finding of nonamenability based solely on nature of offense. Hutcherson v. Commonwealth, 7 Va. App. 534, 375 S.E.2d 403 (1989).

Determination of nonamenability based solely on face of charge is only permissible when offense is one of those enumerated in statute. Hutcherson v. Commonwealth, 7 Va. App. 534, 375 S.E.2d 403 (1989).

Finding of nonamenability held proper. - Finding of nonamenability was permissible under statute and transfer was proper where defendant and two other boys were accused of luring 81-year-old man from his apartment, where they assaulted him and one held him there against his will while other two burglarized his apartment. Hutcherson v. Commonwealth, 7 Va. App. 534, 375 S.E.2d 403 (1989).

V. PRACTICE AND PROCEDURE.

If the decision to waive juvenile jurisdiction were not immediately appealable, those legislative protections afforded children under the juvenile justice system once lost, would be irretrievable. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

The defendant's failure to object to the circuit court's exercise of jurisdiction before arraignment cannot constitute a waiver of jurisdiction. Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).

Orders transferring juveniles are final, a contrary interpretation would contravene legislative intent, and such orders are immediately appealable to the circuit court and need not be preceded by a conviction under § 16.1-132. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Defendant properly transferred under subsection B. - The defendant was transferred under subsection B. Under that subsection, the court is not required to consider the factors under subsection A 4 if the offender is 14 or older and charged with an unclassified felony violation of Chapter 4 or Title 18.2 punishable by life imprisonment. The defendant was 17 at the time of the offense and charged with first-degree murder, an offense punishable by life imprisonment. She could thus be transferred upon a finding of probable cause without considering other factors. Dara v. Commonwealth, No. 2795-95-1, 1997 Va. App. LEXIS 74 (Ct. of Appeals Feb. 11, 1997).

Commonwealth may seek direct indictment in circuit court under subsection D. Even if juvenile court found evidence insufficient to establish probable cause to believe defendant committed aggravated malicious wounding and intended to certify only lesser offense of malicious wounding to grand jury, Commonwealth was free to proceed by direct indictment for the original offense, notwithstanding the order of the juvenile court certifying lesser offense. Nelson v. Commonwealth, No. 0283-99-1, 2000 Va. App. LEXIS 245 (Ct. of Appeals Apr. 4, 2000).

No requirement in subsection E that removal order be predicated on findings in subsection A. - The language of subsection E of this section is plain, and unambiguous, in its omission of any requirement that a removal order be predicated on the findings set forth in subsection A of this section. Green v. Commonwealth, No. 0524-89-4 (Ct. of Appeals Nov. 6, 1990)(decided under former §§ 16.1-269 A and 16.1-269 E).

Compliance with time period held directory and procedural. - This section contains no prohibitory or limiting language that prevents the circuit court from entering its order beyond the expiration date of the 21-day period; absent such limiting language, the provision at issue, compliance with the 21-day time period, is directory and procedural, rather than mandatory and jurisdictional. Jamborsky v. Baskins, 247 Va. 506 , 442 S.E.2d 636 (1994)(decided under former § 16.1-269 E).

The circuit court which hears an appeal of a juvenile court's transfer decision de novo pursuant to § 16.1-136 must, in the absence of any provision specifying a different procedure, follow the mandatory provisions that govern juvenile court transfer proceedings. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Failure to give written notice of transfer hearing as required by former § 16.1-176 (a) (3) held procedural defect cured or waived by appearance and failure to object. See Turner v. Commonwealth, 216 Va. 666 , 222 S.E.2d 517 (1976).

Failure to give notice to parent cured by indictment. - The provisions of subsection E apply to offenses committed on or after July 1, 1996, and clearly cured any deficiency in notice to a defendant's mother arising from charges certified as the result of a juvenile court proceeding. Nelson v. Commonwealth, No. 0283-99-1, 2000 Va. App. LEXIS 245 (Ct. of Appeals Apr. 4, 2000).

Because the defendant failed to raise the jurisdictional issue of lack of notice to his father before indictments were returned in the circuit court, failure to comply with the parental notification provisions of the code did not deprive the circuit court of jurisdiction. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000), aff'd, 262 Va. 196 , 547 S.E.2d 899 (2001).

Any error from Commonwealth's failure to notify juvenile's biological parents of juvenile court proceedings was cured when grand jury returned indictments on offenses certified to it by juvenile court. Gilbert v. Commonwealth, No. 1515-99-1, 2000 Va. App. LEXIS 231 (Ct. of Appeals Mar. 28, 2000).

Although a defendant timely raised his objection to the jurisdiction of the circuit court before his arraignment, the alleged defect based on the failure to comply with the parental notice requirements was cured by the indictment; in other words, the indictment cured the defect raised in the defendant's objection before he made the objection. Shackleford v. Commonwealth, 262 Va. 196 , 547 S.E.2d 899, 2001 Va. LEXIS 78 (2001).

Lack of parental notice of transfer appeal cured by indictment. - The rule established by subsection E that an indictment cures any error or defect in any proceeding held in the juvenile court applies to the lack of notice to a defendant's parent of a hearing to be held in circuit court appealing the transfer of the case; while subsection E speaks in terms of curing defects in the proceedings in the juvenile court, an appeal from a transfer decision is the final step in the transfer process, and the legislature intended for an indictment to cure any defects in that entire process. Shackleford v. Commonwealth, 262 Va. 196 , 547 S.E.2d 899, 2001 Va. LEXIS 78 (2001).

Error cured by indictment in circuit court. - Indictment by grand jury cures any defect or error, except one regarding defendant's age, which occurred in juvenile and domestic relations district court proceeding, including Commonwealth's failure to comply with statutory notice requirements. Nelson v. Commonwealth, No. 0283-99-1, 2000 Va. App. LEXIS 245 (Ct. of Appeals Apr. 4, 2000).

Because juvenile failed to raise jurisdictional issue of lack of notice to his father before indictments were returned in circuit court, failure to comply with parental notification provisions did not deprive circuit court of jurisdiction. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000).

Juvenile's indictment in circuit court cured alleged defects in service of summonses. Souksengmany v. Commonwealth, No. 1641-99-4, 2000 Va. App. LEXIS 256 (Ct. of Appeals Apr. 4, 2000).

Juvenile's indictment in circuit court cured any defect that may have occurred in his transfer proceedings in juvenile and domestic relations district court. Ballard v. Commonwealth, No. 0075-99-1, 2000 Va. App. LEXIS 201 (Ct. of Appeals Mar. 21, 2000).

Although defendant juvenile timely raised her objection to the jurisdiction of the circuit court, once the grand jury returned an indictment, the alleged defects in the transfer proceedings from the juvenile court to the circuit court were cured by the indictment; also, because any procedural errors in the appeal were cured by the indictment, the circuit court was not in any manner divested of its jurisdiction to try defendant on the charges set forth in the indictment. Thus, the circuit court did not err in exercising jurisdiction over the felony charges against defendant. Overdorff v. Commonwealth, 45 Va. App. 222, 609 S.E.2d 626, 2005 Va. App. LEXIS 81 (2005).

Confession of juvenile prior to certification and transfer. - If a juvenile has been fully advised of his constitutional rights, and it is apparent from the totality of the circumstances that a criminal prosecution might follow, his confession, if freely and voluntarily made, is admissible in a criminal trial in a circuit court notwithstanding the confession was made prior to certification and transfer of the juvenile case by the juvenile and domestic relations district court. Harris v. Commonwealth, 217 Va. 715 , 232 S.E.2d 751 (1977).

None of juvenile defendant's substantive rights was infringed as a result of the three-day delay in the circuit court's assumption of jurisdiction over his felony charges; in fact, at oral argument in this appeal, his counsel acknowledged that the 21-day requirement is procedural in that it does not convey a substantive right, and that the defendant did not suffer even minor prejudice because of the delay. Jamborsky v. Baskins, 247 Va. 506 , 442 S.E.2d 636 (1994)(decided under former § 16.1-269 E).

Any error made by the juvenile court in failing to make findings as to the defendant's mental retardation was cured by the return of indictments in the trial court. Scott v. Commonwealth, 31 Va. App. 461, 524 S.E.2d 162 (2000).

Failure to enter timely order corrected by nunc pro tunc order. - Where the nonentry of a timely order certifying a juvenile for trial as an adult under subsection E of this section was caused by the prosecutor's failure to follow directions, and that mistake was compounded by the failure of defense counsel to return the order either to the court or the prosecutor, a nunc pro tunc order correcting the error was proper. Harris v. Commonwealth, 222 Va. 205 , 279 S.E.2d 395 (1981).

Imposition of juvenile treatment requires full results of juvenile hearing. - Since, under this section, the reports of the juvenile court are certified to the court of record in the event of transfer, and the latter court may impose juvenile treatment rather than adult sentence under § 16.1-272, for consideration of that alternative the court of record needs the full results of a proper juvenile hearing. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

A writ of prohibition will lie where necessary to prevent a court of record from exercising jurisdiction to try indictments returned against a juvenile in violation of this section. Lee v. Jones, 212 Va. 792 , 188 S.E.2d 102 (1972).

Defects in juvenile court cured by indictment. - Under the plain language of this statute, an indictment by a grand jury cures any defect or error, except one regarding a juvenile's age, which has occurred in any juvenile court proceeding. Ballard v. Commonwealth, No. 0075-99-1, 2000 Va. App. LEXIS 201 (Ct. of Appeals Mar. 21, 2000).

Assuming that, in addition to notifying a juvenile's legal custodian, the Commonwealth was required to notify both of the juvenile's biological parents of the commencement of proceedings, any failure to do so was cured when the grand jury returned indictments on the charges against him. Gilbert v. Commonwealth, No. 1515-99-1, 2000 Va. App. LEXIS 231 (Ct. of Appeals Mar. 28, 2000).

Each case considered on own facts in determining remedy. - While ordinarily a reconstructed transfer hearing is the appropriate remedy where a prior transfer order of the juvenile court has been invalidated on procedural due process grounds and the juvenile court has lost jurisdiction of the defendant by reason of his age, each case must be considered on its own facts, and, if some other remedy or determination will not result in fundamental unfairness to the petitioner and is more appropriate under the facts of the case and will contribute to a more expeditious resolution of the issue, that procedure should be adopted. Brown v. Cox, 481 F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 761 (1976).

Certification of lesser offense not bar to indictment for greater offense. - Even if it was assumed that the juvenile court found the evidence insufficient to establish probable cause to believe a defendant committed a more serious offense and intended to certify a lesser offense to the grand jury, the Commonwealth was free to proceed by direct indictment for the original offense, notwithstanding such order. Nelson v. Commonwealth, No. 0283-99-1, 2000 Va. App. LEXIS 245 (Ct. of Appeals Apr. 4, 2000).

Evidence of date of receipt of case was properly a part of the record. - Testimony of deputy clerk of the circuit court as to date of receipt of case from juvenile court did not impeach the accuracy of the record but, rather, established a fact not evident on the face of the record therefore the date of the receipt of the juvenile court case by the circuit court was properly a part of the record in the proceedings to determine whether request to have juvenile be prosecuted as an adult was timely. In re Baskins, 16 Va. App. 241, 430 S.E.2d 555 (1993).

Discretion of trial court. - Whether, in addition to examining all papers, reports and orders of the juvenile court in transfer of case from juvenile court to circuit court, circuit court hears additional evidence is a matter addressed to the sound discretion of the trial court and will not be disturbed by Court of Appeals unless there has been an abuse of discretion. Russell v. Commonwealth, 16 Va. App. 660, 432 S.E.2d 12 (1993).

Transfer review. - When defendant sought de novo review in the circuit court of the order of the juvenile court transferring his prosecution for arson and related offenses to the circuit court, the record showed the circuit court properly conducted such a review by holding a hearing and taking substantial evidence on the issue, before finding defendant was not a proper person to remain within the jurisdiction of the juvenile court. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

CIRCUIT COURT OPINIONS

Request for transfer denied. - Commonwealth's request for transfer under subsection A of § 16.1-269.1 was denied as defendant, a juvenile, was considered at low risk for re-offense, had been compliant with the rules of supervision, actively participated in treatment, had no prior criminal history, performed well in school, and was engaged in extracurricular activities. Commonwealth v. T. D. S., 74 Va. Cir. 455, 2008 Va. Cir. LEXIS 63 (Loudoun County 2008).

OPINIONS OF THE ATTORNEY GENERAL

Appeal of transfer order. - The circuit court is not required to enter an enabling order where the transfer decision of the juvenile court has not been appealed. Furthermore, a Commonwealth's attorney may seek an indictment after the period for an appeal has expired, provided no appeal has been noted. See opinion of Attorney General to The Honorable V. Thomas Forehand, Jr., Chief Judge, First Judicial Circuit of Virginia, 09-031, 2009 Va. AG LEXIS 31 (6/26/09).

§ 16.1-269.2. Admissibility of statement; investigation and report; bail.

  1. Statements made by the juvenile at the transfer hearing provided for under § 16.1-269.1 shall not be admissible against him over objection in any criminal proceedings following the transfer, except for purposes of impeachment.
  2. Prior to a transfer hearing pursuant to subsection A of § 16.1-269.1 or a preliminary hearing pursuant to subsection C of § 16.1-269.1, a study and report to the court, in writing, relevant to the factors set out in subdivision A 4 of § 16.1-269.1, as well as an assessment of any affiliation with a criminal street gang as defined in § 18.2-46.1 , shall be made by the probation services or other qualified agency designated by the court. Upon motion of the attorney for the Commonwealth for a transfer hearing pursuant to subsection A of § 16.1-269.1, the attorney for the Commonwealth shall provide notice to the designated probation services or other qualified agency of the need for a transfer report. Counsel for the juvenile and the attorney for the Commonwealth shall have full access to the study and report and any other report or data concerning the juvenile which are available to the court. The court shall not consider the report until a finding has been made concerning probable cause. If the court so orders, the study and report may be expanded to include matters provided for in § 16.1-273, whereupon it may also serve as the report required by this subsection, but on the condition that it will not be submitted to the judge who will preside at any subsequent hearings except as provided for by law.
  3. After the completion of the hearing, whether or not the juvenile court decides to retain jurisdiction over the juvenile or transfer such juvenile for criminal proceedings in the circuit court, the juvenile court shall set bail for the juvenile in accordance with Chapter 9 (§ 19.2-119 et seq.) of Title 19.2, if bail has not already been set.

    (1994, cc. 859, 949; 1999, c. 350; 2005, cc. 590, 843; 2020, cc. 987, 988.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1999 amendment inserted "as well as an assessment of any affiliation with a youth gang as defined in § 16.1-299.2" in the first sentence of subsection B.

The 2005 amendments. - The 2005 amendment by c. 590 added the second sentence in subsection B.

The 2005 amendment by c. 843, in subsection B, substituted "criminal street" for "youth" and "18.2-46.1" for "16.1-299.2."

The 2020 amendments. - The 2020 amendments by cc. 987 and 988 are identical, and inserted "or a preliminary hearing pursuant to subsection C of § 16.1-269.1" in subsection B in the first sentence.

§ 16.1-269.3. Retention by juvenile court; appeal.

If a case is not transferred following a transfer hearing or is not certified following a probable cause hearing, the judge who conducted the hearing shall not, over the objection of any interested party, preside at the adjudicatory hearing on the petition, but rather it shall be presided over by another judge of that court. If the attorney for the Commonwealth deems it to be in the public interest, and the juvenile is fourteen years of age or older he may, within ten days after the juvenile court's final decision to retain the case in accordance with subsection A of § 16.1-269.1, file a notice of appeal of the decision to the appropriate circuit court. A copy of such notice shall be furnished at the same time to the counsel for the juvenile.

(1994, cc. 859, 949; 1996, cc. 755, 914.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and, in the first sentence, substituted "a case" for "the case" and inserted "following a transfer hearing or is not certified following a probable cause hearing" following "not transferred," and in the second sentence, deleted "and is charged with an offense which, if committed by an adult, would be punishable by death or confinement in a state correctional facility for life or a maximum period of twenty years or more," following "and the juvenile is fourteen years of age or older" and inserted "in accordance with subsection A of § 16.1-269.1" following "court's final decision to retain the case."

§ 16.1-269.4. Transfer to circuit court; appeal by juvenile.

If the juvenile court transfers the case pursuant to subsection A of § 16.1-269.1, the juvenile may, within ten days after the juvenile court's final decision, file a notice of appeal of the decision to the appropriate circuit court. A copy of the notice shall be furnished at the same time to the attorney for the Commonwealth.

(1994, cc. 859, 949; 1996, cc. 755, 914.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and inserted "pursuant to subsection A of § 16.1-269.1" following "court transfers the case."

§ 16.1-269.5. Placement of juvenile.

The juvenile court may order placement of the transferred juvenile in either a local correctional facility as approved by the State Board of Local and Regional Jails pursuant to the limitations of subsections D and E of § 16.1-249 or a juvenile detention facility.

(1994, cc. 859, 949; 1995, cc. 746, 798, 802; 2010, c. 739; 2020, c. 759.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2010 amendments. - The 2010 amendment by c. 739 substituted "subsections D and E" for "subsection E."

The 2020 amendments. - The 2020 amendment by c. 759 substituted "State Board of Local and Regional Jails" for "State Board of Corrections."

§ 16.1-269.6. Circuit court hearing; jury; termination of juvenile court jurisdiction; objections and appeals.

  1. Within seven days after receipt of notice of an appeal from the transfer decision pursuant to subsection A of § 16.1-269.1, by either the attorney for the Commonwealth or the juvenile, or if an appeal to such a decision to transfer is not noted, upon expiration of the time in which to note such an appeal, the clerk of the court shall forward to the circuit court all papers connected with the case, including any report required by subsection B of § 16.1-269.2, as well as a written court order setting forth the reasons for the juvenile court's decision. Within seven days after receipt of notice of an appeal, the clerk shall forward copies of the order to the attorney for the Commonwealth and other counsel of record.
  2. The circuit court, when practicable, shall, within 45 days after receipt of the case from the juvenile court pursuant to subsection A of § 16.1-269.1, (i) if either the juvenile or the attorney for the Commonwealth has appealed the transfer decision, examine all such papers, reports and orders and conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with subsection A of § 16.1-269.1, but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and (ii) enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment. A juvenile held continuously in secure detention shall be released from confinement if there is no hearing on the merits of his case within 45 days of the filing of the appeal. The circuit court may extend the time limitations for a reasonable period of time based upon good cause shown, provided the basis for such extension is recorded in writing and filed among the papers of the proceedings. However, in cases where a charge has been certified by the juvenile court to the grand jury pursuant to subsection B or C of § 16.1-269.1, the attorney for the Commonwealth may seek an indictment upon such charge and any ancillary charge without obtaining an order of the circuit court advising him that he may do so.
  3. The circuit court order advising the attorney for the Commonwealth that he may seek an indictment shall divest the juvenile court of its jurisdiction over the case as well as the juvenile court's jurisdiction over any other allegations of delinquency arising from the same act, transaction or scheme giving rise to the charge for which the juvenile has been transferred. In addition, upon conviction of the juvenile following transfer or certification and trial as an adult, the circuit court shall issue an order terminating the juvenile court's jurisdiction over that juvenile with respect to any future criminal acts alleged to have been committed by such juvenile and with respect to any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction. However, such an order terminating the juvenile court's jurisdiction shall not apply to any allegations of criminal conduct that would properly be within the jurisdiction of the juvenile and domestic relations district court if the defendant were an adult. Upon receipt of the order terminating the juvenile court's jurisdiction over the juvenile, the clerk of the juvenile court shall forward any pending petitions of delinquency for proceedings in the appropriate general district court.
  4. The judge of the circuit court who reviewed the case after receipt from the juvenile court shall not, over the objection of any interested party, preside over the trial of such charge or charges.
  5. Any objection to the jurisdiction of the circuit court pursuant to this article shall be waived if not made before arraignment.
  6. The time period beginning with the filing of a notice of appeal pursuant to § 16.1-269.3 or § 16.1-269.4 and ending with the order of the circuit court disposing of the appeal shall not be included as applying to the provisions of § 19.2-243.

    (1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 862; 2003, c. 144; 2004, c. 468; 2010, c. 739.)

Cross references. - As to the one year deadline for claims of error or defect, see § 16.1-272.1.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1 and Acts 1996, c. 616, cl. 3, provides that the contingent enactment of this section by Acts 1994, cc. 859 and 949, cl. 2, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendment by c. 755 inserted "pursuant to subsection A of § 16.1-269.1"' in two places, and, in subsection B, redesignated former clauses (ii) and (iii) as present clauses (i) and (ii), deleted former clause (i) which read: "examine all such papers, reports and orders," inserted "examine all such papers, reports and orders and" following "transfer decision," inserted "subsection A of" following "has been substantial compliance with," and added the last sentence.

The 1996 amendment by c. 914 inserted "pursuant to subsection A of § 16.1-269.1" in two places, in subsection B, redesignated former clauses (ii) and (iii) as present clauses (i) and (ii), deleted former clause (i) which read: "examine all such papers, reports and orders," inserted "examine all such papers, reports and orders and" following "transfer decision," inserted "subsection A of" following "has been substantial compliance with," added the last sentence, and inserted "or certification" following "transfer" in the second sentence of subsection C.

The 2003 amendments. - The 2003 amendment by c. 144 inserted the next-to-last sentence in subsection C.

The 2004 amendments. - The 2004 amendment by c. 468 added "Within seven days after receipt of notice of an appeal" at the beginning of the last sentence in subsection A; and in subsection B, in the first sentence, inserted "when practicable" and substituted "45 days" for "a reasonable time" near the beginning and inserted the present second and third sentences.

The 2010 amendments. - The 2010 amendment by c. 739 deleted the former fourth sentence of subsection B, which read: "Upon advising the attorney for the Commonwealth that he may seek an indictment, the circuit court may issue an order transferring the juvenile from the juvenile detention facility to an appropriate local correctional facility where the juvenile need no longer be entirely separate and removed from adults, unless, upon motion of counsel, good cause is shown for placement of the juvenile pursuant to the limitations of subdivision E (i), (ii), and (iii) of § 16.1-249."

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For note, "Let the Jury Do the Waive: How Apprendi v. New Jersey Applies to Juvenile Transfer Proceedings," see 48 Wm. & Mary L. Rev. 723 (2006).

CASE NOTES

The terms of subsection E establish a deadline before which any objections to the jurisdiction of the circuit court based on defects in the transfer process must be raised; the deadline for making such objections is the date of arraignment, and if objections are not raised before that date, the objections are waived. Shackleford v. Commonwealth, 262 Va. 196 , 547 S.E.2d 899, 2001 Va. LEXIS 78 (2001).

Defects in transfer to Circuit Court cured. - Although defendant juvenile timely raised her objection to the jurisdiction of the circuit court, once the grand jury returned an indictment, the alleged defects in the transfer proceedings from the juvenile court to the circuit court were cured by the indictment; also, because any procedural errors in the appeal were cured by the indictment, the circuit court was not in any manner divested of its jurisdiction to try defendant on the charges set forth in the indictment. Thus, the circuit court did not err in exercising jurisdiction over the felony charges against defendant. Overdorff v. Commonwealth, 45 Va. App. 222, 609 S.E.2d 626, 2005 Va. App. LEXIS 81 (2005).

Return to juvenile court no longer required. - The nolle prosequi in the instant case did not have the same effect as it would have if decided under the old statute. Under the new statute, the circuit court retains jurisdiction and the Commonwealth may, as it did, seek new indictments without having to return to the juvenile court. Dara v. Commonwealth, No. 2795-95-1, 1997 Va. App. LEXIS 74 (Ct. of Appeals Feb. 11, 1997).

Violation of speedy trial statute. - When the district court certified and transferred defendant for trial as an adult in the circuit court, the district court necessarily found the requisite probable cause contemplated by the speedy trial statute. Because the transfer order directed that defendant be "remanded to jail," the prescribed five month limitation of Section 19.2-243 commenced on October 4, 1995. It was immaterial that such custody coincided with detention of defendant incidental to an unrelated commitment. Irrespective of the trial court's order to quash, the initial indictments of defendant were a nullity, obtained without the benefit of the enabling order required by subsection B, and the court simply remedied of record an error or oversight in the proceedings, without disturbing the legal efficacy of the pending transfer order or effecting a nolle prosequi. Accordingly, defendant was held continuously in custody from the finding of probable cause in the district court on October 4, 1995, until trial on July 11, 1996, in violation of § 19.2-243, and the court had to reverse and dismiss the convictions. Price v. Commonwealth, 25 Va. App. 655, 492 S.E.2d 447 (1997), aff'd, 256 Va. 373 , 506 S.E.2d 317 (1998).

Waiver of defect. - The plain language of this section clearly manifests legislative intent that any defect in the transfer proceedings conducted in the juvenile court as provided in this article is waived unless the juvenile raises an objection based on a defect in the juvenile court transfer hearing prior to arraignment in the circuit court. It is beyond question that the legislature has the authority to provide for a waiver of a defect in the transfer proceeding in this manner. Moore v. Commonwealth, 259 Va. 405 , 527 S.E.2d 415 (2000), rev'd on other grounds, Pope v. Commonwealth, 37 Va. App. 451, 559 S.E.2d 388 (2002).

Review by circuit court. - The statute presently in effect does not require review if the transfer decision is not appealed; however, prior to the 1996 amendments, the statute clearly provided review, even if neither party filed an appeal to the juvenile court's transfer order. Jackson v. Commonwealth, 255 Va. 625 , 499 S.E.2d 538 (1998), cert. denied, 525 U.S. 1067, 119 S. Ct. 796, 142 L. Ed. 2d 658 (1999).

Applied in Willis v. Commonwealth, 37 Va. App. 224, 556 S.E.2d 60, 2001 Va. App. LEXIS 689 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Appeal of transfer order. - The circuit court is not required to enter an enabling order where the transfer decision of the juvenile court has not been appealed. Furthermore, a Commonwealth's attorney may seek an indictment after the period for an appeal has expired, provided no appeal has been noted. See opinion of Attorney General to The Honorable V. Thomas Forehand, Jr., Chief Judge, First Judicial Circuit of Virginia, 09-031, 2009 Va. AG LEXIS 31 (6/26/09).

§ 16.1-270. Waiver of jurisdiction of juvenile court in certain cases.

At any time prior to commencement of the adjudicatory hearing, a juvenile fourteen years of age or older charged with an offense which if committed by an adult could be punishable by confinement in a state correctional facility, with the written consent of his counsel, may elect in writing to waive the jurisdiction of the juvenile court and have his case transferred to the appropriate circuit court, in which event his case shall thereafter be dealt with in the same manner as if he had been transferred pursuant to this article.

(Code 1950, § 16.1-176.2; 1973, c. 440; 1977, c. 559; 1994, cc. 859, 949.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants & Juveniles, § 13.

CASE NOTES

Waiver ineffective where juvenile and domestic court without jurisdiction. - Although this section provides that a juvenile, with the written consent of his counsel, may elect in writing to waive the jurisdiction of the juvenile and domestic court and have his case transferred to the appropriate circuit court, such waiver provision relates to transfer and does not dispense with the statutory parental notice necessary to confer subject matter jurisdiction upon the juvenile and domestic court at the inception of the proceedings; manifestly, a waiver permitted by this section is predicated upon the existence of authority in the juvenile and domestic court to act, and cannot cure an antecedent and fatal defect in the underlying jurisdiction. Spain v. Commonwealth, 35 Va. App. 431, 545 S.E.2d 583, 2001 Va. App. LEXIS 242 (2001).

Equal protection not denied. - Defendant juvenile was not denied his equal protection rights under U.S. Const., amend. XIV, § 1 because he had no right in juvenile court to assert an insanity defense to attempting to poison his mother's tea with intent to kill or injure her in violation of § 18.2-54.1 as defendant suffered no disparate treatment as he had the same ability as an adult to assert an insanity defense under § 19.2-168 in the trial court, but he did not exercise his right under § 16.1-270 to be tried as adult and to assert the insanity defense available to him under the adult system. D.L.G. v. Commonwealth, 60 Va. App. 77, 724 S.E.2d 208, 2012 Va. App. LEXIS 123 (2012).

§ 16.1-271. Subsequent offenses by juvenile.

Conviction of a juvenile as an adult pursuant to the provisions of this chapter shall preclude the juvenile court from taking jurisdiction of such juvenile for subsequent offenses committed by that juvenile.

Any juvenile who is tried and convicted in a circuit court as an adult under the provisions of this article shall be considered and treated as an adult in any criminal proceeding resulting from any alleged future criminal acts and any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction.

All procedures and dispositions applicable to adults charged with such a criminal offense shall apply in such cases, including, but not limited to, arrest; probable cause determination by a magistrate or grand jury; the use of a warrant, summons, or capias instead of a petition to initiate the case; adult bail; preliminary hearing and right to counsel provisions; trial in a court having jurisdiction over adults; and trial and sentencing as an adult. The provisions of this article regarding a transfer hearing shall not be applicable to such juveniles.

(1977, c. 559; 1989, c. 675; 1990, c. 668; 1994, cc. 859, 949; 2007, c. 221.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

At the direction of the Virginia Code Commission, "from taking" has been substituted for "for taking" in the first sentence to correct an error in the 2007 act.

The 2007 amendments. - The 2007 amendment by c. 221 substituted "Conviction of a juvenile" for "The trial or treatment of a juvenile" at the beginning of the first paragraph.

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 84; 17 M.J. Statutes, § 47.

CASE NOTES

Effect of 1994 amendment. - Prior to 1994, the treatment of a juvenile as an adult specifically did not prohibit the juvenile court from exercising jurisdiction on subsequent charges. However, the 1994 amendment intentionally altered that procedure and now precludes the juvenile court from exercising jurisdiction over a juvenile once the juvenile has been tried or treated as an adult on an earlier charge. Broadnax v. Commonwealth, 24 Va. App. 808, 485 S.E.2d 666 (1997).

Conviction in circuit court divests juvenile court of jurisdiction. - A juvenile who has been convicted as an adult in circuit court under the provisions of this article is not entitled to a transfer hearing in juvenile court for any pending unrelated allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction. A prior conviction in the circuit court for unrelated offenses precludes the juvenile court from thereafter exercising jurisdiction regardless of the defendant's age at the time of the institution of the proceedings. Asby v. Commonwealth, 34 Va. App. 217, 539 S.E.2d 742, 2001 Va. App. LEXIS 4 (2001).

Although defendant was only 17 years old, jury sentencing was proper in his adult trial because pursuant to this section, § 16.1-272 did not apply where defendant had previously been tried and convicted as an adult on an unrelated charge. Saunders v. Commonwealth, 56 Va. App. 139, 692 S.E.2d 252, 2010 Va. App. LEXIS 169 (2010), aff'd, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

Probable cause finding divested juvenile court of jurisdiction for future offenses. - Defendant juvenile, tried as an adult on a charge of malicious wounding and convicted of the lesser included offense of unlawful wounding, could not have the case transferred back to the juvenile court, as once the juvenile court made a probable cause finding, the juvenile court had no further jurisdiction; the juvenile court was also precluded from taking jurisdiction subsequent offenses committed by that juvenile, pursuant to § 16.1-271. Hughes v. Commonwealth, 39 Va. App. 448, 573 S.E.2d 324, 2002 Va. App. LEXIS 765 (2002).

Applicability of statute. - Section 16.1-271 was not applicable because the events giving rise to defendant's prior convictions occurred chronologically after the shooting of the victim, so that the shooting of the victim was not an alleged future criminal act. Furthermore, the charges against defendant for the victim's shooting were not pending at the time of defendant's prior convictions. Robinson v. Commonwealth, 63 Va. App. 302, 756 S.E.2d 924, 2014 Va. App. LEXIS 150 (2014).

Prior conviction as adult renders transfer procedures inapplicable. - A defendant's argument that original indictments were void because the circuit court failed to review the transfer record from the juvenile court as required by statute before the indictments were obtained was without merit because the defendant previously had been tried and convicted as an adult in another circuit court for rape and such prior conviction as an adult eliminated the requirement that the circuit court review the transfer proceedings. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Juvenile procedures inapplicable to subsequent offense. - Where the defendant had previously been tried as an adult and convicted of a rape which occurred several days before the rape and capital murder with which he was presently charged, the later rape and capital murder constituted "alleged future criminal acts" for purposes of this section and rendered inapplicable the procedures for transferring a case so that a juvenile may be charged as an adult and for giving notice to the juvenile's parents. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Failure to challenge certification in other proceeding. - Because the defendant failed to raise the jurisdictional issue of lack of notice to his father when he was certified for trial as an adult in another county before the indictments were returned in the circuit court in the instant case, failure to comply with the parental notification provisions of the statutes did not deprive the circuit court of jurisdiction in the instant case. Monteon v. Commonwealth, No. 2038-99-3, 2000 Va. App. LEXIS 316 (Ct. of Appeals May 2, 2000).

Sentencing by a jury. - The fact that a defendant was convicted as an adult of crimes committed when he was a juvenile after he had previously been convicted of another crime as an adult did not mean he was entitled to be sentenced by a jury. The offenses for which he was to be sentenced occurred before the offense of which he had previously been convicted as an adult and were not, therefore, "future criminal acts," nor were they the subject of delinquency allegations pending in the juvenile court at the time of his first conviction as an adult. Ingram v. Commonwealth, No. 1791-01-1, 2002 Va. App. LEXIS 593 (Ct. of Appeals Oct. 8, 2002).

Jury sentencing was proper in a minor defendant's adult trial because § 16.1-271 permitted all adult sentencing procedures and dispositions, including jury sentencing. Saunders v. Commonwealth, 56 Va. App. 139, 692 S.E.2d 252, 2010 Va. App. LEXIS 169 (2010), aff'd, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

When defendant appeared before a circuit court for sentencing on criminal charges under § 16.1-269.1, the jury was correctly allowed to sentence defendant because he was not a juvenile in that he had been previously convicted as an adult on an unrelated charge and given an adult sentence. Section 16.1-272 did not apply to youthful offenders who fell within the scope of § 16.1-271, while § 16.1-271 applied to any juvenile who was tried and convicted in a circuit court as an adult. Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

Trial as an adult proper where previous charges ended by nolle prosequi. - Defendant was properly tried as an adult under § 16.1-271 on attempted murder, use of a firearm in the commission of attempted murder, robbery, and use of a firearm in the commission of robbery charges, where he had been certified as adult under subsection C of § 16.1-269.1 on previous charges of robbery and aggravated malicious wounding; although the previous charges terminated by nolle prosequi, defendant was treated as an adult during the pendency of the prior proceedings, which status continued pursuant to § 16.1-271.But see the 2007 amendment to this section which substituted "Conviction of a juvenile" for "The trial or treatment of a juvenile." Cook v. Commonwealth, No. 1968-02-2, 2003 Va. App. LEXIS 375 (Ct. of Appeals July 1, 2003), aff'd, 268 Va. 111 , 597 S.E.2d 84 (2004).

Applied in Willis v. Commonwealth, 37 Va. App. 224, 556 S.E.2d 60, 2001 Va. App. LEXIS 689 (2001).

CIRCUIT COURT OPINIONS

Juvenile court retained jurisdiction to enforce previous order. - Despite the fact that defendant had already been tried and convicted on unrelated charges as an adult in the circuit court, the juvenile court retained jurisdiction to enforce its previous order sentencing him to jail time, and the juvenile proceedings subsequent to his conviction were simply an exercise of the court's inherent authority to enforce its orders. Commonwealth v. Stewart, 71 Va. Cir. 313, 2006 Va. Cir. LEXIS 224 (Page County 2006).

§ 16.1-272. Power of circuit court over juvenile offender.

  1. In any case in which a juvenile is indicted, the offense for which he is indicted and all ancillary charges shall be tried in the same manner as provided for in the trial of adults, except as otherwise provided with regard to sentencing. Upon a finding of guilty of any charge, the court shall fix the sentence without the intervention of a jury. Nothing in this subsection shall be construed to require a court to review the results of an investigation completed pursuant to § 16.1-273.
    1. If a juvenile is convicted of a violent juvenile felony, for that offense and for all ancillary crimes the court may order that (i) the juvenile serve a portion of the sentence as a serious juvenile offender under § 16.1-285.1 and the remainder of such sentence in the same manner as provided for adults; (ii) the juvenile serve the entire sentence in the same manner as provided for adults; or (iii) the portion of the sentence to be served in the same manner as provided for adults be suspended conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case including, but not limited to, commitment under subdivision A 14 of § 16.1-278.8 or § 16.1-285.1.
    2. If the juvenile is convicted of any other felony, the court may sentence or commit the juvenile offender in accordance with the criminal laws of this Commonwealth or may in its discretion deal with the juvenile in the manner prescribed in this chapter for the hearing and disposition of cases in the juvenile court, including, but not limited to, commitment under § 16.1-285.1 or may in its discretion impose an adult sentence and suspend the sentence conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case.
    3. Notwithstanding any other provision of law, if the juvenile is convicted of any felony, the court may in its discretion depart from any mandatory minimum sentence required by law or suspend any portion of an otherwise applicable sentence.
    4. If the juvenile is not convicted of a felony but is convicted of a misdemeanor, the court shall deal with the juvenile in the manner prescribed by law for the disposition of a delinquency case in the juvenile court.
  2. If the circuit court decides to deal with the juvenile in the same manner as a case in the juvenile court and places the juvenile on probation, the juvenile may be supervised by a juvenile probation officer.
  3. Whether the court sentences and commits the juvenile as a juvenile under this chapter or under the criminal law, in cases where the juvenile is convicted of a felony in violation of § 18.2-61 , 18.2-63 , 18.2-64.1 , 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , 18.2-67.5 , 18.2-370 or 18.2-370.1 or, where the victim is a minor or is physically helpless or mentally incapacitated as defined in § 18.2-67.1 0, subsection B of § 18.2-361 or subsection B of § 18.2-366 , the clerk shall make the report required by § 19.2-390 to the Sex Offender and Crimes Against Minors Registry established pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1.
  4. In any case in which a juvenile is not sentenced as a juvenile under this chapter, the court shall, in addition to considering any other factor and prior to imposing a sentence, consider (i) the juvenile's exposure to adverse childhood experiences, early childhood trauma, or any child welfare agency and (ii) the differences between juvenile and adult offenders.
  5. A juvenile sentenced pursuant to clause (i) of subdivision A 1 shall be eligible to earn sentence credits in the manner prescribed by § 53.1-202.2 for the portion of the sentence served as a serious juvenile offender under § 16.1-285.1.
  6. If the court sentences the juvenile as a juvenile under this chapter, the clerk shall provide a copy of the court's final order or judgment to the court service unit in the same locality as the juvenile court to which the case had been transferred.

    (Code 1950, § 16.1-177; 1956, c. 555; 1977, c. 559; 1994, c. 362; 1996, cc. 755, 914; 2000, c. 793; 2002, c. 511; 2003, c. 584; 2005, c. 590; 2007, c. 460; 2008, c. 517; 2014, cc. 20, 249; 2020, c. 396.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2014, cc. 20 and 249, cl. 2 provides: "That the provisions of the first enactment of this act shall become effective on October 1, 2014."

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and rewrote subsection A, which formerly read: "In the hearing and disposition of felony cases properly before a circuit court having criminal jurisdiction of such offenses if committed by an adult, the court, after giving the juvenile the right to a trial by jury on the issue of guilt or innocence and upon a finding of guilty, may sentence or commit the juvenile offender in accordance with the criminal laws of this Commonwealth or may in its discretion deal with the juvenile in the manner prescribed in this law for the hearing and disposition of cases in the juvenile court," added subdivisions A 1 and A 3, inserted the subdivision A 2 designation, in present subdivision A 2, inserted "If the juvenile is convicted of any other felony the court" preceding "may sentence," substituted "this chapter" for "this law," and inserted "including, but not limited to, commitment under § 16.1-285.1" following "disposition of cases in the juvenile court" and, in subsections B and C, substituted "juvenile" for "child" in three places.

The 2000 amendments. - The 2000 amendment by c. 793 added "including, but not limited to, commitment under subdivision 14 of § 16.1-278.8 or § 16.1-285.1" at the end of subdivision A 1; and added the language following "under § 16.1-285.1" through the end of subdivision A 2.

The 2002 amendments. - The 2002 amendment by ch. 511, in subdivision A 1, substituted "for that offense . . . adults be suspended" for "the sentence for that offense and for all ancillary crimes shall be fixed by the court in the same manner as provided for adults, but the sentence may be suspended."

The 2003 amendments. - The 2003 amendment by c. 584 substituted "Sex Offender and Crimes Against Minors Registry established pursuant to Chapter 9 ( § 9.1-900 et seq.) of Title 9.1" for "Sex Offender Registry established pursuant to § 19.2-390.1" at the end of subsection C.

The 2005 amendments. - The 2005 amendment by c. 590 added subsection D; and made a stylistic change.

The 2007 amendments. - The 2007 amendment by c. 460 deleted "other than capital murder" near the middle of the second sentence in subsection A.

The 2008 amendments. - The 2008 amendment by c. 517 added subsection D and redesignated former subsection D as subsection E.

The 2014 amendments. - The 2014 amendments by cc. 20 and 249, effective October 1, 2014, are identical, and in subsection A, added the third sentence.

The 2020 amendments. - The 2020 amendment by c. 396 added subdivision A 3 and subsection D and made related redesignation changes.

Law review. - For a review of Virginia legal issues involving children, see 33 U. Rich. L. Rev. 1001 (1999).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 72; 6B M.J. Drugs & Druggists, § 5; 9B M.J. Infants and Juveniles, § 13.

CASE NOTES

Construction with § 18.2-53.1 . - The terms of § 18.2-53.1 , providing for a mandatory, unsuspended sentence for persons convicted of use of a firearm in the commission of certain felonies "notwithstanding any other provision of law," require a trial court to impose the mandatory, unsuspended sentence on a juvenile convicted of one of the enumerated felonies despite the provisions of this section. Green v. Commonwealth, 28 Va. App. 567, 507 S.E.2d 627 (1998).

Notwithstanding the 2004 amendment to § 18.2-53.1 , Green v. Commonwealth, 28 Va. App. 567, 507 S.E.2d 627 (1998), remains valid and precludes the courts from applying clause (iii) of subdivision A 1 of § 16.1-272 to suspend any part of a mandatory minimum sentence imposed under § 18.2-53.1 . Bullock v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334, 2006 Va. App. LEXIS 296 (2006), overruled in part by Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (Va. 2012).

Juvenile defendant who was charged as an adult and pled guilty to five counts of use of a firearm in the commission of a felony, in violation of § 18.2-53.1 , should have been sentenced to the mandatory minimum rather than sentenced to juvenile dispositions under § 16.1-272 because the statutes were in conflict, and § 18.2-53.1 was the more specific statute. Brown v. Commonwealth, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

Use of firearm in commission of felony. - Even after the 2004 statutory amendments, the mandatory sentencing provisions of § 18.2-53.1 control over the juvenile sentencing options contained in subdivision A 1 of § 16.1-272 that allow suspension of an adult sentence. Commonwealth v. Brown,, 2008 Va. App. LEXIS 517 (2008), aff'd in part and rev'd in part, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

Convictions for using a firearm in the commission of robbery were clearly "ancillary crimes" requiring sentencing under subdivision A 1 of § 16.1-272 rather than subdivision A 2 of § 16.1-272, and the mandatory sentencing provisions of § 18.2-53.1 controlled over the juvenile sentencing options in subdivision A 1 of § 16.1-272. Thus, defendants had to receive the mandatory minimum sentences. Commonwealth v. Brown,, 2008 Va. App. LEXIS 517 (2008), aff'd in part and rev'd in part, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

This statute places solely upon the trial judge the obligation to sentence the juvenile offender in accordance with the criminal laws or in the manner prescribed for juvenile court cases. Stephens v. Commonwealth, No. 1690-93-1, 1995 Va. App. LEXIS 295 (Ct. of Appeals March 28, 1995).

The word "or" in subdivision A 2 does not reflect a legislative intent to prohibit a judge from sentencing a juvenile both as an adult and as a juvenile "serious offender" pursuant to § 16.1-285.1. Jackson v. Commonwealth, 29 Va. App. 418, 512 S.E.2d 838 (1999).

Fixing of sentence by judge does not deprive juveniles of equal protection. - Juveniles are not deprived of equal protection by the Virginia procedure in criminal cases, whereby an adult tried by jury has his sentence fixed by the jury under § 19.2-295, while a juvenile transferred to circuit court and tried by jury has his sentence fixed by the judge under this section. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

Rational basis exists for different sentencing procedure for juveniles. - A rational basis does exist for the classification under which sentences of adults are fixed by juries but sentences of juveniles transferred to the circuit court are fixed by the judge. While, for the purpose of determining guilt or innocence, a transferred juvenile is treated as an adult, and although he may be subject to adult penalties in the sentencing phase of his case, this section permits a circuit court to treat him in all respects as a juvenile, with the full panoply of beneficent alternatives available in juvenile court, including the use of a juvenile probation officer. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

Purpose of having judge rather than jury set sentence. - In enacting this section, the General Assembly obviously opted for judge-sentencing for transferred juveniles because it perceived the inability of juries to adequately comprehend the differences in the sentencing of a juvenile defendant as an adult, and the treatment of that same child within the framework of the juvenile court laws. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

When child dealt with as adult. - This section recognizes that cases arise of such serious character as to require that the child be dealt with as an adult under the general criminal laws. Durrette v. Commonwealth, 201 Va. 735 , 113 S.E.2d 842 (1960).

Defendant who was convicted as an adult of crimes committed when he was a juvenile had to be sentenced by the court, without the intervention of a jury, because he was not convicted of capital murder. Ingram v. Commonwealth, No. 1791-01-1, 2002 Va. App. LEXIS 593 (Ct. of Appeals Oct. 8, 2002).

Although defendant was only 17 years old, jury sentencing was proper in his adult trial because pursuant to § 16.1-271, § 16.1-272 did not apply where defendant had previously been tried and convicted as an adult on an unrelated charge. Saunders v. Commonwealth, 56 Va. App. 139, 692 S.E.2d 252, 2010 Va. App. LEXIS 169 (2010), aff'd, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

Jurisdiction of juvenile court. - Trial court did not err in denying a juvenile's motion to quash a conspiracy indictment against him because once the juvenile court certified a first-degree murder charge, it was expressly divested of jurisdiction not only for the preliminary hearing, but also for the filing of subsequent charges, including any ancillary charges, jurisdiction was statutorily conferred on the circuit court to proceed on the murder charge and all ancillary charges, and the Commonwealth could proceed with direct indictments and trial in the circuit court. Holliday v. Commonwealth, 64 Va. App. 168, 766 S.E.2d 742, 2014 Va. App. LEXIS 420 (2014).

Probable cause finding divested juvenile court of jurisdiction. - Defendant juvenile, tried as an adult on a charge of malicious wounding and convicted of the lesser included offense of unlawful wounding, could not have the case transferred back to the juvenile court, as once the juvenile court made a probable cause finding, the juvenile court had no further jurisdiction; the trial court had express authority to impose sentence on defendant, under subsection A of § 16.1-272, as there was a felony conviction, even though the felony was not a violent juvenile felony, because the case was transferred to the circuit court following a probable cause determination. Hughes v. Commonwealth, 39 Va. App. 448, 573 S.E.2d 324, 2002 Va. App. LEXIS 765 (2002).

Sentencing by jury in capital murder case. - A juvenile who is convicted by a jury of capital murder should be sentenced by the jury pursuant to §§ 19.2-264.3 and 19.2-264.4. Thomas v. Commonwealth, 244 Va. 1 , 419 S.E.2d 606, cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 343 (1992).

Sentencing by jury. - When defendant appeared before a circuit court for sentencing on criminal charges under § 16.1-269.1, the jury was correctly allowed to sentence defendant because he was not a juvenile in that he had been previously convicted as an adult on an unrelated charge and given an adult sentence. Section 16.1-272 did not apply to youthful offenders who fell within the scope of § 16.1-271, while § 16.1-271 applied to any juvenile who was tried and convicted in a circuit court as an adult. Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

Discretion of court. - The discretion lodged in the court of record is a sound judicial discretion, to be exercised not arbitrarily or willfully, but based upon knowledge of facts upon which the discretion might properly operate. Tilton v. Commonwealth, 196 Va. 774 , 85 S.E.2d 368 (1955).

Where a juvenile was properly certified to a court of record in connection with offenses committed when he was sixteen and thereafter was tried as an adult when he was seventeen, there was no merit in the contention that the trial court erred in not trying him as a juvenile. It was not shown that there was abuse of the discretion given the court of record by this section. Holt v. City of Richmond, 204 Va. 364 , 131 S.E.2d 394 (1963), cert. denied, 376 U.S. 917, 84 S. Ct. 672, 11 L. Ed. 2d 613 (1964).

Defendant, a juvenile who was certified to be tried as adult, was properly sentenced to an adult facility because, his assertions to the contrary notwithstanding, the trial court was aware of its authority to allow him to serve part of his sentence in a juvenile facility; it simply elected not to do so. Bullock v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334, 2006 Va. App. LEXIS 296 (2006), overruled in part by Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (Va. 2012).

Circuit court's revocation of defendant's previously suspended sentence of incarceration in the Tennessee Department of Corrections was a proper exercise of both its discretion to impose conditions and to revoke a suspended sentence. Martinez v. Commonwealth, 71 Va. App. 318, 836 S.E.2d 1, 2019 Va. App. LEXIS 285 (2019).

Authority of court to amend sentence. - Trial court lacked authority to modify a sentencing order because the court's order to vacate, which was entered more than twenty-one days after the original sentencing order, came too late under Va. Sup. Ct. R. 1:1, and the court lacked jurisdiction to enter the second order because the original order was not void. McClease v. Commonwealth, No. 2209-13-1, 2014 Va. App. LEXIS 358 (Oct. 28, 2014).

Accommodation defense. - In a prosecution for distribution of cocaine, the trial court did not err by not allowing the jury to consider the juvenile's accommodation defense during the guilt phase of the trial; this defense was only relevant to sentencing, and the trial court, not the jury, determined sentence in a juvenile case. Foster v. Commonwealth, 38 Va. App. 549, 567 S.E.2d 547, 2002 Va. App. LEXIS 447 (2002).

Defendant who was convicted as an adult of crimes committed when he was a juvenile had to be sentenced by the court, without the intervention of a jury, because he was not convicted of capital murder. Ingram v. Commonwealth, No. 1791-01-1, 2002 Va. App. LEXIS 593 (Ct. of Appeals Oct. 8, 2002).

Court had authority to order combination of sentences which imposed a juvenile commitment and an adult prison sentence. Jackson v. Commonwealth, 29 Va. App. 418, 512 S.E.2d 838 (1999).

Imposition of juvenile treatment requires full results of juvenile hearing. - Since, under former § 16.1-269, the reports of the juvenile court are certified to the court of record in the event of transfer, and the latter court may impose juvenile treatment rather than adult sentence under this section, for consideration of that alternative the court of record needs the full results of a proper juvenile hearing. James v. Cox, 323 F. Supp. 15 (E.D. Va. 1971).

Question whether sentence is constitutionally excessive. - The question of whether the imposition of an aggregate sentence of 80 years upon a 17-year-old defendant following his pleas of guilty to three charges of robbery was constitutionally excessive should be initially litigated in the courts of Virginia. Saunders v. Cox, 470 F.2d 734 (4th Cir. 1972), cert. denied, 412 U.S. 951, 93 S. Ct. 3018, 37 L. Ed. 2d 1004 (1973).

Applied in Thomas v. Taylor, 170 F.3d 466 (4th. Cir. 1999).

CIRCUIT COURT OPINIONS

Sentencing by jury not permitted. - In a rape case, where defendant was 17 years of age at the time of the offense, but 20 at the time of trial, defendant was not entitled to have a jury determine his sentence because, as a juvenile offender, the court was to impose sentence without jury intervention. Commonwealth v. Smith,, 2021 Va. Cir. LEXIS 190 (Culpeper Sept. 12, 2021).

§ 16.1-272.1. Claim of error to be raised within one year.

In addition to any other curative provisions, waivers, procedural defaults, or requirements for timely objection, including but not limited to those in subsection J of § 16.1-241, subsection E of § 16.1-269.1 and subsection E of § 16.1-269.6, any claim of error or defect under this chapter, jurisdictional or otherwise, that is not raised within one year from the date of final judgment of the circuit court or one year from the effective date of this act, whichever is later, shall not constitute a ground for relief in any judicial proceeding.

(2000, c. 418.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the enactment of §§ 16.1-272.1 and 16.1-272.2 by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

CASE NOTES

Section did not intend to abrogate Va. Sup. Ct. R. 1:1. - As to appellant's motions to vacate his conviction for sexual battery filed ten months after entry of the conviction order, the language of § 16.1-272.1 was not susceptible to an interpretation that suggested it was intended to abrogate Va. Sup. Ct. R. 1:1 and other procedural requirements that had to be satisfied before asserting a claim of error, as appellant claimed. Locklear v. Commonwealth, 46 Va. App. 488, 618 S.E.2d 361, 2005 Va. App. LEXIS 361 (2005).

CIRCUIT COURT OPINIONS

Failure to timely file. - Because a circuit court had jurisdiction over defendant after defendant was certified as an adult for trial, because defendant's motion to vacate was untimely, and because defendant did not raise a Fourth Amendment challenge prior to filing the motion, pursuant to § 16.1-272.1, defendant's arguments were waived. Commonwealth v. Douglas, 72 Va. Cir. 385, 2007 Va. Cir. LEXIS 3 (Fairfax County 2007).

Article 8. Adjudication.

§ 16.1-273. Court may require investigation of social history and preparation of victim impact statement.

  1. When a juvenile and domestic relations district court or circuit court has adjudicated any case involving a child subject to the jurisdiction of the court hereunder, except for a traffic violation, a violation of the game and fish law, or a violation of any city ordinance regulating surfing or establishing curfew violations, the court before final disposition thereof may require an investigation, which (i) shall include a drug screening and (ii) may, and for the purposes of subdivision A 14 or 17 of § 16.1-278.8 shall, include a social history of the physical, mental, and social conditions, including an assessment of any affiliation with a criminal street gang as defined in § 18.2-46.1 , and personality of the child and the facts and circumstances surrounding the violation of law. However, in the case of a juvenile adjudicated delinquent on the basis of an act committed on or after January 1, 2000, which would be (a) a felony if committed by an adult, or (b) a violation under Article 1 (§ 18.2-247 et seq.) or Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2 and such offense would be punishable as a Class 1 or Class 2 misdemeanor if committed by an adult, the court shall order the juvenile to undergo a drug screening. If the drug screening indicates that the juvenile has a substance abuse or dependence problem, an assessment shall be completed by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Juvenile Justice or by a locally operated court services unit or by an individual employed by or currently under contract to such agencies and who is specifically trained to conduct such assessments under the supervision of such counselor.
  2. The court also shall, on motion of the attorney for the Commonwealth with the consent of the victim, or may in its discretion, require the preparation of a victim impact statement in accordance with the provisions of § 19.2-299.1 if the court determines that the victim may have suffered significant physical, psychological, or economic injury as a result of the violation of law.

    (Code 1950, § 16.1-164; 1956, c. 555; 1972, cc. 672, 835; 1973, c. 440; 1977, cc. 559, 627; 1993, c. 603; 1998, cc. 783, 840; 1999, cc. 350, 891, 913; 2000, cc. 1020, 1041; 2005, c. 843; 2007, c. 510; 2014, cc. 20, 249; 2020, cc. 1285, 1286; 2021 Sp. Sess. I, cc. 550, 551.)

Cross references. - For disposition of court-ordered studies and reports, see Rule 8:5, Juvenile and Domestic Relations District Court Rules.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 1999, cc. 891 and 913, cl. 2, provide: "That the Chief Justice of the Supreme Court may designate pilot sites to implement the provisions of this act prior to the effective date of this act [July 1, 1999]. The Interagency Drug Offender Screening and Assessment Committee established pursuant to § 2.1-51.18:3 shall make recommendations to the Chief Justice regarding pilot sites."

Acts 2000, cc. 1020 and 1041, cl. 2 provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $.

Acts 2000, cc. 1020 and 1041, cl. 3 provide: "That the Virginia Criminal Sentencing Commission shall review the minimum discretionary felony sentencing guideline midpoint and the sentencing recommendation for convictions related to possessing, manufacturing, selling, giving, distributing, or possessing with intent to distribute a Schedule I or II drug or marijuana when the defendant has previously been convicted of such an offense. The Commission's review shall include an examination of whether the minimum midpoint and the sentencing recommendation are adequate in deterring recidivism and insuring that substance abuse screening and assessment and criminal justice sanctions are integrated with substance abuse treatment services available through the Department of Corrections and local corrections agencies and facilities. The Commission's review shall be completed in time to make recommendations to the General Assembly on or before December 1, 2000."

Acts 2014, cc. 20 and 249, cl. 2 provides: "That the provisions of the first enactment of this act shall become effective on October 1, 2014."

Acts 2020, c. 1289, s amended by Acts 2021, Sp. Sess. I, c. 552, Item 421 A, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 16.1-273 of the Code of Virginia, the Department of Juvenile Justice, including locally-operated court services units, shall not be required to provide drug screening and assessment services in conjunction with investigations ordered by the courts."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 1998 amendments. - The 1998 amendments by cc. 783 and 840, effective July 1, 1999, are identical, and in subsection A, added clause (i), added the clause (ii) designation, and added the present last sentence.

The 1999 amendments. - The 1999 amendment by c. 350 inserted "including an assessment of any affiliation with a youth gang as defined in § 16.1-299.2" in the first sentence of subsection A.

The 1999 amendments by cc. 891 and 913 are identical, and in subsection A, deleted "and assessment by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Juvenile Justice" following "drug screening" in clause (i), substituted "January 1, 2000, which would be a felony if committed by an adult, or a violation under Article 1 ( § 18.2-247 et seq.) or Article 1.1 ( § 18.2-265.1 et seq.) of Chapter 7 of Title 18.2 and such offense would be punishable as a Class 1 or Class 2 misdemeanor if committed by an adult, the court shall order the juvenile to undergo a drug screening" for "July 1, 1999, which would be a Class 1 or 2 misdemeanor or a felony if committed by an adult, the court shall require an investigation, which shall include a drug screening and assessment by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Juvenile Justice," and added the last sentence.

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and in subsection A, substituted "individual employed by or currently under contract to such agencies and who is specifically trained to conduct such assessments under the" for "agency employee under the direct," and deleted "a" preceding "counselor" near the end of the subsection.

The 2005 amendments. - The 2005 amendment by c. 843, in subsection A, substituted "criminal street" for "youth" and "18.2-46.1" for "16.1-299.2."

The 2007 amendments. - The 2007 amendment by c. 510 inserted "and for the purposes of § 16.1-278.7 shall" near the beginning of clause (ii) in the first sentence of subsection A.

The 2014 amendments. - The 2014 amendments by cc. 20 and 249, effective October 1, 2014, are identical, and in subsection A, clause (ii), substituted "subdivision A 14 or A 17 of § 16.1-278.8" for " § 16.1-78.7" and inserted "a social history of" following "shall, include"; and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and in the second sentence, inserted "(a)," "(b)" and "or (c) a violation of § 18.2-250.1 " and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and deleted "or (c) a violation of § 18.2-250.1 " preceding "the court shall order" in subsection A.

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

Research References. - Virginia Forms (Matthew Bender). No. 5-278. Order for Investigation and Report.

§ 16.1-274. Time for filing of reports; copies furnished to attorneys; amended reports; fees.

  1. Whenever any court directs an investigation pursuant to subdivision A of § 16.1-237 or § 16.1-273 or 9.1-153 , or an evaluation pursuant to § 16.1-278.5, the probation officer, court-appointed special advocate, or other agency conducting such investigation shall file such report with the clerk of the court directing the investigation. The clerk shall furnish a copy of such report to all attorneys representing parties in the matter before the court no later than 72 hours, and in cases of child custody, 15 days, prior to the time set by the court for hearing the matter. If such probation officer or other agency discovers additional information or a change in circumstance after the filing of the report, an amended report shall be filed forthwith and a copy sent to each person who received a copy of the original report. Whenever such a report is not filed or an amended report is filed, the court shall grant such continuance of the proceedings as justice requires. All attorneys receiving such report or amended report shall return such to the clerk upon the conclusion of the hearing and shall not make copies of such report or amended report or any portion thereof. However, the chief judge of each juvenile and domestic relations district court may provide for an alternative means of copying and distributing reports or amended reports filed pursuant to § 9.1-153 .
  2. Notwithstanding the provisions of §§ 16.1-69.48:2 and 17.1-275 , when the court directs the appropriate local department of social services to conduct supervised visitation or directs the appropriate local department of social services or court services unit to conduct an investigation pursuant to § 16.1-273 or to provide mediation services in matters involving a child's custody, visitation, or support, the court shall assess a fee against the petitioner, the respondent, or both, in accordance with fee schedules established by the appropriate local board of social services when the service is provided by a local department of social services or by a court services unit. The fee schedules shall include (i) standards for determining the paying party's or parties' ability to pay and (ii) a scale of fees based on the paying party's or parties' income and family size and the actual cost of the services provided. The fee charged shall not exceed the actual cost of the service. The fee shall be assessed as a cost of the case and shall be paid as prescribed by the court to the local department of social services, locally operated court services unit or Department of Juvenile Justice, whichever performed the service, unless payment is waived. The method and medium for payment for such services shall be determined by the local department of social services, Department of Juvenile Justice, or the locally operated court services unit that provided the services.
  3. When a local department of social services or any court services unit is requested by another local department or court services unit in the Commonwealth or by a similar department or entity in another state to conduct an investigation involving a child's custody, visitation or support pursuant to § 16.1-273 or, in the case of a request from another state pursuant to a provision corresponding to § 16.1-273, or to provide mediation services, or for a local department of social services to provide supervised visitation, the local department or the court services unit performing the service may require payment of fees prior to conducting the investigation or providing mediation services or supervised visitation.
  4. In any matter in which the court appoints a guardian ad litem to represent a child, such guardian ad litem shall conduct an investigation in accordance with the Standards to Govern the Performance of Guardians Ad Litem for Children established by the Judicial Council of Virginia. Prior to the commencement of the dispositional hearing of any such matter, the guardian ad litem shall file with the court, with a copy to all attorneys representing parties to such matter and all parties proceeding pro se in such matter, a certification of the guardian ad litem's compliance with the Standards to Govern the Performance of Guardians Ad Litem for Children established by the Judicial Council of Virginia, specifically addressing compliance with such standards requiring face-to-face contact with the child in such certification. The guardian ad litem shall document the hours spent satisfying such face-to-face contact requirements in such certification, which shall be compensated at the same rate as that for in-court service.

    (Code 1950, § 16.1-208.1; 1972, c. 111; 1975, c. 286; 1977, c. 559; 1983, c. 174; 1987, c. 5; 1989, c. 725; 1990, c. 752; 1991, cc. 534, 618; 1992, c. 554; 1993, c. 975; 2001, c. 364; 2006, c. 675; 2012, cc. 164, 456; 2020, c. 21.)

Cross references. - For disposition of court-ordered studies and reports, see Rule 8:5, Juvenile and Domestic Relations District Court Rules.

For provision authorizing local boards to establish regulations and fee schedules and receive fees for services that a court directs a local department to perform pursuant to this section, see § 63.2-314 .

The 2001 amendments. - The 2001 amendment by c. 364, in subsection A, substituted "subsection A of § 16.1-237, § 16.1-273" for " §§ 16.1-237 A, 16.1-273," and added the last sentence.

The 2006 amendments. - The 2006 amendment by c. 675 substituted "15 days" for "five days" in the second sentence of subsection A.

The 2012 amendments. - The 2012 amendments by cc. 164 and 456 are identical, and substituted "pursuant to subdivision A of § 16.1-237 or § 16.1-273 or 9.1-153 , or" for "pursuant to subsection A of § 16.1-237, § 16.1-273, or § 9.1-153 , or" in the first sentence of subsection A; substituted "social services or by a court services unit" for "social services and by the State Board of Juvenile Justice when the service is provided by a court services unit" at the end of the first sentence of subsection B; and made a stylistic change.

The 2020 amendments. - The 2020 amendment by c. 21 added subsection D.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Preparation and filing of reports. - Statutory law permitted court-appointed special advocate to submit to the court a written report of the advocate's investigation into what was best for the child's welfare in a proceeding to terminate parental rights and directed the advocate to file that report with the clerk of the court directing the investigation, and, thus, the trial court did not err in admitting that report into evidence; accordingly, the father's objection that the report violated the hearsay rule had to be rejected. Holley v. Amherst County Dep't of Soc. Servs., No. 3397-02-3, 2003 Va. App. LEXIS 330 (Ct. of Appeals June 10, 2003).

§ 16.1-274.1. Admission of evidence of juvenile's age.

In any proceeding in a district court or circuit court where a juvenile is alleged to have committed a delinquent act, the Commonwealth shall be permitted to introduce evidence establishing the age of the juvenile at any time prior to adjudication of the case.

(1994, c. 913; 1996, cc. 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and deleted "delinquency" preceding "proceeding," inserted "in a district court or circuit court where a juvenile is alleged to have committed a delinquent act" preceding "the Commonwealth," and deleted "who is the subject of the delinquency petition" following "the juvenile."

§ 16.1-274.2. Certain education records as evidence.

  1. In any proceeding where (i) a juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult and whether such act was committed intentionally or willfully by the juvenile is an element of the delinquent act and (ii) such act was committed (a) during school hours, and during school-related or school-sponsored activities upon the property of a public or private elementary or secondary school or child day center; (b) on any school bus as defined in § 46.2-100 ; or (c) upon any property, public or private, during hours when such property is solely being used by a public or private elementary or secondary school for a school-related or school-sponsored activity, the juvenile shall be permitted to introduce into evidence as relevant to whether he acted intentionally or willfully any document created prior to the commission of the alleged delinquent act that relates to (a) an Individualized Education Program developed pursuant to the federal Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.; (b) a Section 504 Plan prepared pursuant to § 504 of the federal Rehabilitation Act of 1973, 29 U.S.C. § 794; (c) a behavioral intervention plan as defined in 8VAC20-81-10; or (d) a functional behavioral assessment as defined in 8VAC20-81-10. Any such document shall be admitted as evidence of the facts stated therein.
  2. At least 10 days prior to the commencement of the proceeding in which a document listed in subsection A will be offered as evidence, the juvenile intending to offer the document shall notify the attorney for the Commonwealth, in writing, of the intent to offer the document and shall provide or make available copies of the document to be introduced.
  3. Copies of documents listed in subsection A shall be received as evidence, provided that such copies are authenticated to be true and accurate copies by the custodian thereof, or by the person to whom the custodian reports if they are different. An affidavit signed by the custodian of such documents, or by the person to whom the custodian reports if they are different, stating that such documents are true and accurate copies of such documents shall be valid authentication for the purposes of this section.
  4. Upon motion of the juvenile, any document admitted pursuant to this section shall be placed under seal by the court.

    (2016, c. 726.)

§ 16.1-275. Physical and mental examinations and treatment; nursing and medical care.

The juvenile court or the circuit court may cause any juvenile within its jurisdiction under the provisions of this law to be physically examined and treated by a physician or to be examined and treated at a local mental health center. If no such appropriate facility is available locally, the court may order the juvenile to be examined and treated by any physician or psychiatrist or examined by a clinical psychologist. The Commissioner of Behavioral Health and Developmental Services shall provide for distribution a list of appropriate mental health centers available throughout the Commonwealth. Upon the written recommendation of the person examining the juvenile that an adequate evaluation of the juvenile's treatment needs can only be performed in an inpatient hospital setting, the court shall have the power to send any such juvenile to a state mental hospital for not more than 10 days for the purpose of obtaining a recommendation for the treatment of the juvenile. No juvenile sent to a state mental hospital pursuant to this provision shall be held or cared for in any maximum security unit where adults determined to be criminally insane reside; the juvenile shall be kept separate and apart from such adults. However, the Commissioner of Behavioral Health and Developmental Services may place a juvenile who has been certified to the circuit court for trial as an adult pursuant to § 16.1-269.6 or 16.1-270 or who has been convicted as an adult of a felony in the circuit court in a unit appropriate for the care and treatment of persons under a criminal charge when, in his discretion, such placement is necessary to protect the security or safety of other patients, staff or the public.

Whenever the parent or other person responsible for the care and support of a juvenile is determined by the court to be financially unable to pay the costs of such examination as ordered by the juvenile court or the circuit court, such costs may be paid according to procedures and rates adopted by the Department from funds appropriated in the general appropriation act for the Department.

The juvenile court or the circuit court may cause any juvenile within its jurisdiction who is found to be delinquent for an offense that is eligible for commitment pursuant to subdivision A 14 of § 16.1-278.8 or § 16.1-285.1 to be placed in the temporary custody of the Department of Juvenile Justice for a period of time not to exceed 30 days for diagnostic assessment services after the adjudicatory hearing and prior to final disposition of his or her case. Prior to such a placement, the Department shall determine that the personnel, services and space are available in the appropriate correctional facility for the care, supervision and study of such juvenile and that the juvenile's case is appropriate for referral for diagnostic services.

Whenever a juvenile concerning whom a petition has been filed appears to be in need of nursing, medical or surgical care, the juvenile court or the circuit court may order the parent or other person responsible for the care and support of the juvenile to provide such care in a hospital or otherwise and to pay the expenses thereof. If the parent or other person is unable or fails to provide such care, the juvenile court or the circuit court may refer the matter to the authority designated in accordance with law for the determination of eligibility for such services in the county or city in which such juvenile or his parents have residence or legal domicile.

In any such case, if a parent who is able to do so fails or refuses to comply with the order, the juvenile court or the circuit court may proceed against him as for contempt or may proceed against him for nonsupport.

(Code 1950, § 16.1-190; 1956, c. 555; 1972, c. 354; 1975, c. 430; 1976, c. 321; 1977, c. 559; 1978, c. 739; 1982, c. 636; 1983, c. 358; 1984, c. 44; 1988, cc. 47, 826; 1990, c. 975; 1994, cc. 859, 949; 2004, c. 321; 2009, cc. 813, 840; 2012, cc. 164, 456.)

Cross references. - For disposition of court-ordered studies and reports, see Rule 8:5, Juvenile and Domestic Relations District Court Rules.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2004 amendments. - The 2004 amendment by c. 321 substituted "10" for "ten" in the third sentence of subsection A; and substituted "who is found to be delinquent for an offense that is eligible for commitment pursuant to subdivision A 14 of § 16.1-278.8 or § 16.1-285.1 to" for "who is alleged to be delinquent or in need of services to" and "30" for "thirty" in the first sentence of the third paragraph.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the third and sixth sentences of the first paragraph.

The 2012 amendments. - The 2012 amendments by cc. 164 and 456 are nearly identical, and substituted "according to procedures and rates adopted by the Department from funds" for "according to standards, procedures and rates adopted by the State Board, from funds" near the end of the second paragraph. Chapter 164 also inserted " § " preceding "16.1-285.1" in the third paragraph.

Law review. - For article discussing the involuntary commitment of minors in Virginia, see 13 U. Rich. L. Rev. 695 (1979).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Michie's Jurisprudence. - For related discussion, see 10A M.J. Insane & Other Incompetent Persons, §§ 4, 43.

§ 16.1-276. Fees and travel expenses of witnesses.

The judge may authorize the payment of the fees and mileage provided by law in § 19.2-278 of any witness or person summoned or otherwise required to appear at the hearing of any case coming within the jurisdiction of the court, which sum shall be paid by the State Treasurer out of funds appropriated in the general appropriations act to the Supreme Court of Virginia.

(Code 1950, § 16.1-171; 1956, c. 555; 1977, c. 559; 1982, c. 636.)

§ 16.1-276.1.

Repealed by Acts 2002, c. 305.

§ 16.1-276.2. Transportation orders in certain proceedings.

In any proceeding (i) pursuant to subdivisions 2, 4 or 5 of subsection A of § 16.1-241, (ii) pursuant to subsections K or U of § 16.1-241, (iii) involving a child who is alleged to be abused or neglected, or (iv) involving a child who is before the court pursuant to §§ 16.1-281, 16.1-282 or § 16.1-282.1, if the judge finds that the presence at a hearing of a prisoner in a state, local or regional correctional institution is essential to the just adjudication and disposition of the proceeding, the judge may issue an order to the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver such witness to the sheriff of the jurisdiction of the court issuing the order. Such orders shall be executed in accordance with § 8.01-410 . Any such orders shall issue only upon consideration of the importance of the personal appearance of the person.

The party seeking the testimony of such prisoner shall advance a sum sufficient to defray the expenses and compensation of the officers, which the court shall tax as costs. When the party seeking the attendance of the prisoner is an agency of the Commonwealth or when the attendance is sought on motion of the court, no sum shall be advanced to defray the expenses or compensation of the correctional officers and sheriff nor shall any such sum be taxed as costs.

(2001, c. 513.)

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

§ 16.1-276.3. Use of telephonic communication systems or electronic video and audio communication systems to conduct hearing.

Notwithstanding any other provision of law, in any civil proceeding under this chapter in which a party or witness is incarcerated or when otherwise authorized by the court, the court may, in its discretion, conduct any hearing using a telephonic communication system or an electronic audio and video communication system to provide for the appearance of any parties and witnesses. Any electronic audio and video communication system used to conduct such a hearing shall meet the standards set forth in subsection B of § 19.2-3.1.

(2001, c. 513.)

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

§ 16.1-277.

Repealed by Acts 1999, c. 889.

§ 16.1-277.01. Approval of entrustment agreement.

  1. In any case in which a child has been entrusted pursuant to § 63.2-903 or 63.2-1817 to the local board of social services or to a child welfare agency, a petition for approval of the entrustment agreement by the board or agency:
    1. Shall be filed within a reasonable period of time, no later than 89 days after the execution of an entrustment agreement for less than 90 days, if the child is not returned to the caretaker from whom he was entrusted within that period;
    2. Shall be filed within a reasonable period of time, not to exceed 30 days after the execution of an entrustment agreement for 90 days or longer or for an unspecified period of time, if such entrustment agreement does not provide for the termination of all parental rights and responsibilities with respect to the child; and
    3. May be filed in the case of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child. The board or agency shall file a foster care plan pursuant to § 16.1-281 to be heard with any petition for approval of an entrustment agreement.
  2. Upon the filing of a petition for approval of an entrustment agreement pursuant to subsection A of § 16.1-241, the court shall appoint a guardian ad litem to represent the child in accordance with the provisions of § 16.1-266, and shall schedule the matter for a hearing to be held as follows: within 45 days of the filing of a petition pursuant to subdivision A 1, A 2 or A 3, except where an order of publication has been ordered by the court, in which case the hearing shall be held within 75 days of the filing of the petition. The court shall provide notice of the hearing and a copy of the petition to the following, each of whom shall be a party entitled to participate in the proceeding:
    1. The local board of social services or child welfare agency;
    2. The child, if he is 12 years of age or older;
    3. The guardian ad litem for the child; and
    4. The child's parents, guardian, legal custodian or other person standing in loco parentis to the child. No such notification shall be required, however, if the judge certifies on the record that the identity of the parent or guardian is not reasonably ascertainable. A birth father shall be given notice of the proceedings if he is an acknowledged father pursuant to § 20-49.1 , adjudicated pursuant to § 20-49.8 , or presumed pursuant to § 63.2-1202 , or has registered with the Virginia Birth Father Registry pursuant to Article 7 (§ 63.2-1249 et seq.). 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. Failure to register with the Virginia Birth Father Registry pursuant to Article 7 (§ 63.2-1249 et seq.) of Chapter 12 of Title 63.2 shall be evidence that the identity of the father is not reasonably ascertainable. The hearing shall be held and an order may be entered, although a parent, guardian, legal custodian or person standing in loco parentis fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. However, when a petition seeks approval of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child, a summons shall be served upon the parent or parents and the other parties specified in § 16.1-263. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights. Service shall be made pursuant to § 16.1-264. The remaining parent's parental rights may be terminated even though that parent has not entered into an entrustment agreement if the court finds, based upon clear and convincing evidence, that it is in the best interest of the child and that (i) the identity of the parent is not reasonably ascertainable; (ii) the identity and whereabouts of the parent are known or reasonably ascertainable, and the parent is personally served with notice of the termination proceeding pursuant to § 8.01-296 or 8.01-320 ; (iii) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings by certified or registered mail to the last known address and such parent fails to object to the proceedings within 15 days of the mailing of such notice; or (iv) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings through an order of publication pursuant to §§ 8.01-316 and 8.01-317 , and such parent fails to object to the proceedings.
  3. At the hearing held pursuant to this section, the court shall hear evidence on the petition filed and shall review the foster care plan for the child filed by the local board or child welfare agency in accordance with § 16.1-281.
  4. At the conclusion of the hearing, the court shall make a finding, based upon a preponderance of the evidence, whether approval of the entrustment agreement is in the best interest of the child. However, if the petition seeks approval of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child, the court shall make a finding, based upon clear and convincing evidence, whether termination of parental rights is in the best interest of the child. If the court makes either of these findings, the court may make any of the orders of disposition permitted in a case involving an abused or neglected child pursuant to § 16.1-278.2. Any such order transferring legal custody of the child shall be made in accordance with the provisions of subdivision A 5 of § 16.1-278.2 and shall be subject to the provisions of subsection D1. This order shall include, but need not be limited to, the following findings: (i) that there is no less drastic alternative to granting the requested relief; and (ii) that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to a local board of social services. At any time subsequent to the transfer of legal custody of the child pursuant to this section, a birth parent or parents of the child and the pre-adoptive parent or parents may enter into a written post-adoption contact and communication agreement in accordance with the provisions of § 16.1-283.1 and Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2. The court shall not require a written post-adoption contact and communication agreement as a precondition to entry of an order in any case involving the child. The effect of the court's order approving a permanent entrustment agreement is to terminate an entrusting parent's residual parental rights. Any order terminating parental rights shall be accompanied by an order (i) continuing or granting custody to a local board of social services or to a licensed child-placing agency or (ii) granting custody or guardianship to a person with a legitimate interest. Such an order continuing or granting custody to a local board of social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto. A final order terminating parental rights pursuant to this section renders the approved entrustment agreement irrevocable. Such order may be appealed in accordance with the provisions of § 16.1-296. D1. Any order transferring custody of the child to a person with a legitimate interest pursuant to subsection D shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who (i) after an investigation as directed by the court, is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a person with a legitimate interest should further provide for, as appropriate, any terms and conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.
  5. The local board or licensed child-placing agency to which authority is given to place the child for adoption and consent thereto after an order terminating parental rights is entered pursuant to this section shall file a written Adoption Progress Report with the juvenile court on the progress being made to place the child in an adoptive home. The report shall be filed with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.

    (1999, c. 889; 2000, c. 385; 2006, c. 825; 2009, cc. 98, 260; 2010, c. 331; 2017, c. 200; 2019, c. 434.)

Editor's note. - Acts 2006, c. 825, cl. 3 provides: "That the provisions of this act that establish the Putative Father Registry shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriation act passed by the 2006 Session of the General Assembly, which becomes law." The funding was provided in the 2006 appropriation act. See Acts 2006, Sp. Sess. I, c. 3.

The 2000 amendments. - The 2000 amendment by c. 385, in the introductory paragraph of subsection B, in the first sentence, inserted "to be held as follows," substituted "a" for "the" preceding the second occurrence of "petition," and added "pursuant to subdivision A 1, A 2 or A 3 of this section, except where an order of publication has been ordered by the court, in which case the hearing shall be held within seventy-five days of the filing of the petition" to the end; added "and shall be subject to the provisions of subsection D1 of this section" to the end of the fourth sentence of the first paragraph of subsection D; and added subsection D1.

The 2006 amendments. - The 2006 amendment by c. 825, effective July 1, 2007, in subsection B, in the last paragraph, inserted the second and fourth sentences and substituted "15 days" for "twenty-one days" in clause (iii) of the last sentence.

The 2009 amendments. - The 2009 amendments by cc. 98 and 260 are identical, and added the last two sentences in the first paragraph of subsection D.

The 2010 amendments. - The 2010 amendment by c. 331 substituted " § 16.1-283.1 and Article 1.1 ( § 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2" for " §§ 16.1-283.1 and 63.2-1228.1 " in the first paragraph of subsection D and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 200 substituted "Virginia Birth Father Registry" for "Putative Father Registry" twice in subdivision B 4.

The 2019 amendments. - The 2019 amendment by c. 434, in the second paragraph of subsection D, substituted "person with a legitimate interest" for "relative or other interested individual"; in subsection D1, substituted "person with a legitimate interest" for "relative or other interested individual" twice, and substituted "such person" for "the relative or other interested individual."

CASE NOTES

Termination pursuant to entrustment agreement. - Termination of the mother's parental rights pursuant to an entrustment agreement was proper, where the evidence showed that it was in the best interests of the child; the mother had inadequate coping skills and limited cognitive abilities, leading to impulsivity and poor decision-making, and despite an evaluator's recommendation, the mother stopped her individual therapy sessions and stopped taking her psychotropic medications. Ferrell v. Alexandria Dep't of Cmty. & Human Servs., No. 0155-12-4, 2012 Va. App. LEXIS 215 (Ct. of Appeals July 3, 2012).

§ 16.1-277.02. Petition for relief of care and custody.

  1. Requests for petitions for relief of the care and custody of a child shall be referred initially to the local department of social services for investigation and the provision of services, if appropriate, in accordance with the provisions of § 63.2-319 or Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2. Upon the filing of a petition for relief of a child's care and custody pursuant to subdivision A 4 of § 16.1-241, the court shall appoint a guardian ad litem to represent the child in accordance with the provisions of § 16.1-266, and shall schedule the matter for a hearing on the petition. Such hearing on the petition may include partial or final disposition of the matter. The court shall provide notice of the hearing and a copy of the petition to the following, each of whom shall be a party entitled to participate in the proceeding:
    1. The child, if he is 12 years of age or older;
    2. The guardian ad litem for the child;
    3. The child's parents, custodian or other person standing in loco parentis to the child. No such notification shall be required, however, if the judge certifies on the record that the identity of the parent 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. The hearing on the petition shall be held pursuant to this section although a parent fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. However, in the case of a hearing to grant a petition for permanent relief of custody and terminate a parent's residual parental rights, notice to the parent whose rights may be affected shall be provided in accordance with the provisions of §§ 16.1-263 and 16.1-264; and
    4. The local board of social services. Upon receiving notice of the hearing pursuant to this section, the local board of social services shall investigate the matter and provide services, as appropriate, in accordance with the provisions of § 63.2-319 or Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2.
  2. At the hearing, the local board of social services, the child, the child's parents, guardian, legal custodian or other person standing in loco parentis and any other family or household member of the child to whom notice was given shall have the right to confront and cross-examine all adverse witnesses and evidence and to present evidence on their own behalf.
  3. At the conclusion of the hearing on the petition, the court shall make a finding, based upon a preponderance of the evidence, whether there is good cause shown for the petitioner's desire to be relieved of the child's care and custody, unless the petition seeks permanent relief of custody and termination of parental rights. If the petition seeks permanent relief of custody and termination of parental rights, the court shall make a finding, based upon clear and convincing evidence, whether termination of parental rights is in the best interest of the child. If the court makes either of these findings, the court may enter:
    1. A preliminary protective order pursuant to § 16.1-253;
    2. An order that requires the local board of social services to provide services to the family as required by law;
    3. An order that is consistent with any of the dispositional alternatives pursuant to § 16.1-278.3; or
    4. Any combination of these orders. Any such order transferring legal custody of the child shall be made in accordance with the provisions of subdivision A 5 of § 16.1-278.2 and shall be subject to the provisions of subsection C1. This order shall include, but need not be limited to, the following findings: (i) that there is no less drastic alternative to granting the requested relief; and (ii) that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to a local board of social services. Any order terminating residual parental rights shall be accompanied by an order continuing or granting custody to a local board of social services or to a licensed child-placing agency or granting custody or guardianship to a person with a legitimate interest. Such an order continuing or granting custody to a local board of social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto. At any time subsequent to the transfer of legal custody of the child pursuant to this section, a birth parent or parents of the child and the pre-adoptive parent or parents may enter into a written post-adoption contact and communication agreement in accordance with the provisions of § 16.1-283.1 and Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2. The court shall not require a written post-adoption contact and communication agreement as a precondition to entry of an order in any case involving the child. The court shall schedule a subsequent hearing within 60 days of the hearing held pursuant to this section: (a) to enter a final order of disposition pursuant to § 16.1-278.3 or (b) if the child is placed in foster care, for review of the foster care plan filed pursuant to § 16.1-281. If a party is required to be present at the subsequent hearing, and (1) is present at the hearing on the petition, the party shall be given notice of the date set for the subsequent hearing; (2) if not present, shall be summoned as provided in § 16.1-263. C1. Any order transferring temporary custody of the child to a person with a legitimate interest pursuant to subsection C shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; and (iii) is willing and has the ability to protect the child from abuse and neglect. The court's order transferring temporary custody to a person with a legitimate interest should further provide for compliance with any preliminary protective order entered on behalf of the child in accordance with the provisions of § 16.1-253; and, as appropriate, ongoing provision of social services to the child and the child's custodian; and court review of the child's placement with such person with a legitimate interest. Any final order transferring custody of the child to a person with a legitimate interest pursuant to this section shall, in addition, be entered only after an investigation as directed by the court and upon a finding, stated in the court's order, that such person is one who satisfies clauses (i), (ii), and (iii) and is committed to providing a permanent, suitable home for the child.
  4. The local board or licensed child-placing agency to which authority is given to place the child for adoption and consent thereto after an order terminating parental rights is entered pursuant to this section shall file a written Adoption Progress Report with the juvenile court on the progress being made to place the child in an adoptive home. The report shall be filed with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.

    (1999, c. 889; 2000, c. 385; 2009, cc. 98, 260; 2010, c. 331; 2013, c. 130; 2019, c. 434.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

The 2000 amendments. - The 2000 amendment by c. 385 added "and shall be subject to the provisions of subsection C1 of this section" to the end of the first sentence of the next-to-last paragraph of subsection C; and added subsection C1.

The 2009 amendments. - The 2009 amendments by cc. 98 and 260 are identical, and added the last two sentences in the next-to-last paragraph of subsection C.

The 2010 amendments. - The 2010 amendment by c. 331 substituted " § 16.1-283.1 and Article 1.1 ( § 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2" for " §§ 16.1-283.1 and 63.2-1228.1 " in the next-to-last sentence of the second full paragraph of subsection C and made minor stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, in the last paragraph of subsection C, subsituted "60 days" for "75 days" and changed the clause (i) and (ii) designators to (a) and (b) in the first sentence, and changed the clause (i) and (ii) designators to (1) and (2) in the second sentence.

The 2019 amendments. - The 2019 amendment by c. 434, in the second paragraph of subsection C, substituted "services or to a licensed child-placing agency or granting custody or guardianship to a person with a legitimate interest" for "services, to a licensed child-placing agency or the granting of custody or guardianship to a relative or other interested individual"; in subsection C1, substituted "person with a legitimate interest" for "relative or other interested individual" three times, substituted "such person" for "the relative or other interested individual" twice, and substituted "such person with a legitimate interest" for "the relative or other individual."

Law review. - For comment, " 'In the Little World': Breaking Virginia's Foster-Care-to-Prison Pipeline Using Restorative Justice," see 54 U. Rich. L. Rev. 313 (2019).

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, § 11.

CASE NOTES

Statute provided no basis for father's petition to terminate his parental obligations. - Because a father was not the children's custodial parent, he provided no actual care and custody from which he could have been relieved, and, thus, § 16.1-278.3 provided him no basis for seeking termination of his parental rights and obligations; furthermore, subsection D of § 16.1-278.3 authorized consideration of the status and rights of a remaining parent only following the granting of a petition properly filed under § 16.1-277.02. No such petition was filed or granted, and a trial court properly dismissed the father's petition. Cartwright v. Cartwright, 49 Va. App. 25, 635 S.E.2d 691, 2006 Va. App. LEXIS 473 (2006).

§ 16.1-277.1. Time limitation.

  1. When a child is held continuously in secure detention, he shall be released from confinement if there is no adjudicatory or transfer hearing conducted by the court for the matters upon which he was detained within twenty-one days from the date he was first detained.
  2. If a child is not held in secure detention or is released from same after having been confined, an adjudicatory or transfer hearing on the matters charged in the petition or petitions issued against him shall be conducted within 120 days from the date the petition or petitions are filed.
  3. When a child is held in secure detention after the completion of his adjudicatory hearing or is detained when the juvenile court has retained jurisdiction as a result of a transfer hearing, he shall be released from such detention if the disposition hearing is not completed within thirty days from the date of the adjudicatory or transfer hearing.
  4. The time limitations provided for in this section shall be tolled during any period in which (i) the whereabouts of the child are unknown, (ii) the child has escaped from custody, (iii) the child has failed to appear pursuant to a court order, or (iv) a report is being prepared pursuant to the written request by the attorney for the Commonwealth in accordance with subsection C of § 16.1-269.1. The limitations also 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. For the purposes of this section, good cause includes extension of limitations necessary to obtain the presence of a witness to testify regarding the results of scientific analyses or examinations and good cause shown by the director of the court services unit completing a report pursuant to subsection C of § 16.1-269.1 that additional time is needed for the completion of the report.

    (1985, c. 260; 1988, c. 220; 1999, c. 58; 2009, Sp. Sess. I, cc. 1, 4; 2020, cc. 987, 988.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1999 amendment divided the former provisions of subsection D into two sentences by inserting "shall be tolled during any period in which (i) the whereabouts of the child are unknown, (ii) the child has escaped from custody, or (iii) the child has failed to appear pursuant to a court order. The limitations also."

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and added the last sentence of subsection D.

The 2020 amendments. - The 2020 amendments by cc. 987 and 988 are identical, and in subsection D in the first sentence, added "or (iv) a report is being prepared pursuant to the written request by the attorney for the Commonwealth in accordance with subsection C of § 16.1-269.1" at the end, and, in the last sentence, deleted "but is not limited to" preceding "extension" and added "and good cause shown by the director of the court services unit completing a report pursuant to subsection C of § 16.1-269.1 that additional time is needed for the completion of the report" at the end, and made stylistic changes.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

CASE NOTES

Section only applicable to juvenile detention. - This section applies when the juvenile court has authority to adjudicate the matter or decide whether to transfer it for trial under adult procedures; where a defendant has been transferred to jail after his first preliminary hearing and is no longer held in juvenile detention, this section does not apply. Williams v. Commonwealth, 33 Va. App. 725, 536 S.E.2d 916, 2000 Va. App. LEXIS 734 (2000).

Construction with other law. - Circuit court properly determined that the termination of a father's parental rights on grounds that he was unfit as a parent was in the best interest of the child, and that the child should be placed for adoption, as sufficient evidence was presented of the father's inability to provide for the welfare of his child due to his incarceration and status as a convicted felon, his lack of employment and a stable home, his past drug abuse, and a history of violence toward women. Wheless v. Commonwealth Catholic Charities, No. 2939-06-2, 2007 Va. App. LEXIS 401 (Ct. of Appeals Nov. 6, 2007).

Dismissal not required for failure to hold hearing within 120-day period. - Failure of the juvenile and domestic relations court to timely hold an adjudicatory or transfer hearing did not require dismissal of the charges against defendant, because subsection B of § 16.1-277.1 merely directed the mode of proceeding and did not expressly prohibit a hearing after 120 days. Harris v. Commonwealth, 52 Va. App. 735, 667 S.E.2d 809, 2008 Va. App. LEXIS 479 (2008).

§ 16.1-277.2. Rejection of plea agreement; recusal.

Upon rejecting a plea agreement in any delinquency matter, a judge shall immediately recuse himself from any further proceedings on the same matter unless the parties agree otherwise.

(2014, c. 165.)

Article 9. Disposition.

§ 16.1-278. Cooperation of certain agencies, officials, institutions and associations.

  1. The judge may order, after notice and opportunity to be heard, any state, county or municipal officer or employee or any governmental agency or other governmental institution 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 officer, employee, agency or institution may appeal such order to the circuit court in accordance with § 16.1-296. The circuit court shall advance such appeals on its docket and may stay the order of the juvenile court during the pendency of the appeal. The circuit court may affirm or reverse the order of the juvenile court. Upon reversal, the circuit court may remand the case to the juvenile court for an alternative disposition.

  2. The court is authorized to cooperate with and make use of the services of all public or private societies or organizations which seek to protect or aid children or families, in order that the court may be assisted in giving the children and families within its jurisdiction such care, protection and assistance as will best enhance their welfare.

    (Code 1950, § 16.1-156; 1956, c. 555; 1977, c. 559; 1980, c. 245.)

Cross references. - For the contents of petition in certain proceedings pursuant to this section, see Rule 8:3, Juvenile and Domestic Relations District Court Rules.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

For 1995 survey of legal issues involving children, see 29 U. Rich. L. Rev. 1117 (1995).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 32 Juvenile and Domestic Relations Courts; Family Courts; Small Claims Courts; Commissioners in Chancery: Local Rules of Court. § 32.02 Proceedings in Juvenile and Domestic Relations Courts. Friend.

Virginia Forms (Matthew Bender). No. 9-2508. Disposition Order- - Juvenile.

CASE NOTES

Appeals in accordance with § 16.1-296. - Comprehensive Services Act Office was entitled to an evidentiary hearing on order of juvenile and domestic relations district court directing it to provide residential placement for child found to be in need of supervision. Comprehensive Servs. Act Office v. J.M., No. 1620-98-2, 1999 Va. App. LEXIS 473 (Ct. of Appeals Aug. 3, 1999).

Applied in Fauquier County Dep't of Social Servs. v. Robinson, 20 Va. App. 142, 455 S.E.2d 734 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Noncustodial entrustment of child in need of services. - A juvenile court judge has the authority to order a local board of social services to accept noncustodial entrustment of a child found to be in need of services. See opinion of Attorney General to The Honorable Frank D. Hargrove, Sr., Member, House of Delegates, 04-012, 2004 Va. AG LEXIS 19 (3/22/04).

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-278.1. Definitions.

As used in this article, unless the context clearly indicates otherwise:

"Parent" includes parent, guardian, legal custodian, or other person standing in loco parentis.

"Public service project" means any governmental or quasi-governmental agency project or any project of a nonprofit corporation or association operated exclusively for charitable or community purposes.

(1991, c. 534.)

§ 16.1-278.2. Abused, neglected, or abandoned children or children without parental care.

  1. Within 60 days of a preliminary removal order hearing held pursuant to § 16.1-252 or a hearing on a preliminary protective order held pursuant to § 16.1-253, a dispositional hearing shall be held if the court found abuse or neglect and (i) removed the child from his home or (ii) entered a preliminary protective order. Notice of the dispositional hearing shall be provided to the child's parent, guardian, legal custodian, or other person standing in loco parentis in accordance with § 16.1-263. The hearing shall be held and a dispositional order may be entered, although a parent, guardian, legal custodian, or person standing in loco parentis fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. Notice shall also be provided to the local department of social services, the guardian ad litem and, if appointed, the court-appointed special advocate.

    If a child is found to be (a) abused or neglected; (b) at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in his care; or (c) abandoned by his parent or other custodian, or without parental care and guardianship because of his parent's absence or physical or mental incapacity, the juvenile court or the circuit court may make any of the following orders of disposition to protect the welfare of the child:

    1. Enter an order pursuant to the provisions of § 16.1-278;
    2. Permit the child to remain with his parent, subject to such conditions and limitations as the court may order with respect to such child and his parent or other adult occupant of the same dwelling;
    3. Prohibit or limit contact as the court deems appropriate between the child and his parent or other adult occupant of the same dwelling whose presence tends to endanger the child's life, health or normal development. The prohibition may exclude any such individual from the home under such conditions as the court may prescribe for a period to be determined by the court but in no event for longer than 180 days from the date of such determination. A hearing shall be held within 150 days to determine further disposition of the matter that may include limiting or prohibiting contact for another 180 days;
    4. Permit the local board of social services or a public agency designated by the community policy and management team to place the child, subject to the provisions of § 16.1-281, in suitable family homes, child-caring institutions, residential facilities, or independent living arrangements with legal custody remaining with the parents or guardians. The local board or public agency and the parents or guardians shall enter into an agreement which shall specify the responsibilities of each for the care and control of the child. The board or public agency that places the child shall have the final authority to determine the appropriate placement for the child.

      Any order allowing a local board or public agency to place a child where legal custody remains with the parents or guardians as provided in this section shall be entered only upon a finding by the court that reasonable efforts have been made to prevent placement out of the home and that continued placement in the home would be contrary to the welfare of the child; and the order shall so state.

    5. After a finding that there is no less drastic alternative, transfer legal custody, subject to the provisions of § 16.1-281, to any of the following:
      1. A person with a legitimate interest subject to the provisions of subsection A1;
      2. A child welfare agency, private organization or facility that is licensed or otherwise authorized by law to receive and provide care for such child; however, a court shall not transfer legal custody of an abused or neglected child to an agency, organization or facility out of the Commonwealth without the approval of the Commissioner of Social Services; or
      3. The local board of social services of the county or city in which the court has jurisdiction or, at the discretion of the court, to the local board of the county or city in which the child has residence if other than the county or city in which the court has jurisdiction. The local board shall accept the child for care and custody, provided that it has been given reasonable notice of the pendency of the case and an opportunity to be heard. However, in an emergency in the county or city in which the court has jurisdiction, the local board may be required to accept a child for a period not to exceed 14 days without prior notice or an opportunity to be heard if the judge entering the placement order describes the emergency and the need for such temporary placement in the order. Nothing in this section shall prohibit the commitment of a child to any local board of social services in the Commonwealth when the local board consents to the commitment. The board to which the child is committed shall have the final authority to determine the appropriate placement for the child.

        Any order authorizing removal from the home and transferring legal custody of a child to a local board of social services as provided in this section shall be entered only upon a finding by the court that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child; and the order shall so state.

        A finding by the court that reasonable efforts were made to prevent removal of the child from his home shall not be required if the court finds that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) on the basis of clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283.

        As used in this section:

        "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect (i) evinces a wanton or depraved indifference to human life or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.

        "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk.

        "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

        "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once but otherwise meets the definition of "aggravated circumstances."

    6. Transfer legal custody pursuant to subdivision 5 of this section and order the parent to participate in such services and programs or to refrain from such conduct as the court may prescribe; or
    7. Terminate the rights of the parent pursuant to § 16.1-283.

      A1. Any order transferring custody of the child to a person with a legitimate interest pursuant to subdivision A 5 a shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a person with a legitimate interest should further provide for, as appropriate, any terms or conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.

  2. If the child has been placed in foster care, at the dispositional hearing the court shall review the foster care plan for the child filed in accordance with § 16.1-281 by the local department of social services, a public agency designated by the community policy and management team which places a child through an agreement with the parents or guardians where legal custody remains with the parents or guardians, or child welfare agency.
  3. Any preliminary protective orders entered on behalf of the child shall be reviewed at the dispositional hearing and may be incorporated, as appropriate, in the dispositional order.
  4. A dispositional order entered pursuant to this section is a final order from which an appeal may be taken in accordance with § 16.1-296.

    (1991, c. 534; 1994, c. 865; 1997, c. 790; 2000, c. 385; 2002, c. 747; 2013, c. 130; 2017, c. 190; 2019, c. 434.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

As to child support for child placed in foster care where legal custody remains with the parent or guardian, see § 63.2-910 .

As to appointment of a guardian or commitment to a custodial agency of a child who is deemed to be without proper custody upon denial of an adoption petition, see § 63.2-1209 .

As to execution of consent for parental placement adoptions, and exceptions to consent requirements, see § 63.2-1233 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2013, c. 130, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2014."

The 2000 amendments. - The 2000 amendment by c. 385, in subdivision A 5 a, inserted "interested" and substituted "subject to the provisions of subsection A1 of this section" for "who, after study, is found by the court to be qualified to receive and care for the child"; added subsection A1; and in subsection B, inserted "in accordance with § 16.1-281" and substituted "a public agency designated by the community policy and management team which places a child through an agreement with the parents or guardians where legal custody remains with the parents or guardians, or child welfare agency" for "in accordance with § 16.1-281."

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, redesignated clauses (i) through (iii) as clauses (a) through (c) in the second paragraph of the introductory language of subsection A; deleted "public welfare or" following "local board of" three times in subdivision A 5 c; deleted "of subsection A of this section" following "subdivision A 5 a" in subsection A1; and made stylistic changes throughout subsection A.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, substituted "Within 60 days" for "Within seventy-five days" at the beginning of the first paragraph of subsection A, and substitued "14" for "fourteen" near the end of subdivision A 5 c.

The 2017 amendments. - The 2017 amendment by c. 190 added the third paragraph and the definitions at the end of subdivision A 5 c.

The 2019 amendments. - The 2019 amendment by c. 434, in subdivision A 5 a., substituted "person with a legitimate interest" for "relative or other interested individual," and deleted "of this section" from the end; and in subsection A1, substituted "person with a legitimate interest" for "relative or other interested individual" twice, and substituted "such person" for "the relative or other interested individual."

Law review. - For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978). For article discussing the involuntary commitment of minors in Virginia, see 13 U. Rich. L. Rev. 695 (1979). For comment on termination of parental rights, see 15 U. Rich. L. Rev. 213 (1980). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For article on termination of indigents' parental rights, see 16 U. Rich. L. Rev. 731 (1982). For article on the effect of subsection M of this section, see 16 U. Rich. L. Rev. 787 (1982). For comment on Doe v. Doe, 222 Va. 736 , 284 S.E.2d 799 (1981) as to fitness of homosexuals as parents, see 16 U. Rich. L. Rev. 851 (1982). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985). For 1987 survey of Virginia law as to children, see 21 U. Rich. L. Rev. 789 (1987).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For annual survey article, see "Family Law," 48 U. Rich. L. Rev. 135 (2013).

Editor's note. - Some of the cases below were decided under former § 16.1-279.

CASE NOTES

Court lacks jurisdiction to order permanent foster care absent petition. - The trial court lacked jurisdiction to order a placement in permanent foster care pursuant to this section where the trial court had no petition before it seeking a permanent foster care placement. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Where natural parent is not given specific notice by petition seeking specific placement, and where substantial parental rights are at stake, a trial court has no jurisdiction to enter sua sponte an order terminating or reducing those parental rights. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Remedies in subsection A of former § 16.1-279 designed for parent with potential for rehabilitation. - Remedies in subsection A of former § 16.1-279, which merely effected a transitory change in the child's custodial status without affecting other parental rights, were specifically designed for the case of a parent who showed extenuating circumstances and demonstrated potential for rehabilitation as a fit parent. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Applicability of subdivision A 3. - Father's argument that the trial court erred in issuing a protective order for a period of five years in contravention of subdivision A 3 of § 16.1-278.2 was without merit because that code section only limited the duration of a protective order excluding from the home parents or other adults living in the same dwelling with the abused child, and at the time the order was entered, the father was no longer living in the same home as the child; further, the five-year limitation on visitation was clearly within the trial court's discretion as appropriate to protect the child's life, health, and normal development, pursuant to § 16.1-253. Altice v. Roanoke County Dep't of Soc. Servs., 45 Va. App. 400, 611 S.E.2d 628, 2005 Va. App. LEXIS 154 (2005).

Factors rebutting presumption that custody of parent serves best interests. - The law presumes that the child's best interests will be served when in the custody of its parent unless that presumption is rebutted by clear and convincing evidence of certain facts. These factors are: (1) parental unfitness; (2) a previous order of divestiture; (3) voluntary relinquishment; (4) abandonment; and (5) special facts and circumstances constituting an extraordinary reason for taking a child from its parent. Ferris v. Underwood, 3 Va. App. 25, 348 S.E.2d 18 (1986).

Consideration of less drastic alternatives. - The trial court properly did not place the child at issue with other relatives, rather than terminating the mother's parental rights, where the social services district explored placement with other relatives, but found such placement to be unavailable or unadvisable, and the mother's past behavior did not demonstrate a strong potential for rehabilitation. Gentry v. Harrisonburg-Rockingham Social Services Dist., No. 1340-97-3, 1998 Va. App. LEXIS 156 (Ct. of Appeals March 17, 1998).

Continuation to allow further services to parent. - In addition to statutorily created alternatives to termination of residual parental rights, the trial court may use its discretion to continue a case on its docket in order to allow further services to be rendered to a parent in the hope that termination of the parent's residual parental rights would not be necessary. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Finality in litigation is only one of the factors used in determining a child's best interests. Since circumstances affecting a child's best interests may change periodically, finality is not a paramount consideration. Concerns for finality particularly diminish in comparison to concerns that a child may be at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in the care of the parent or custodian. Whether a child custody disposition should be reopened is, therefore, determined by the child's best interests. Accomack County Dep't of Social Servs. v. Muslimani, 12 Va. App. 220, 403 S.E.2d 1 (1991).

Dispositional hearings. - Mother's contention that the trial court erred by issuing dispositional orders without conducting separate dispositional hearings was rejected because she failed to show that there were no dispositional hearings, as the record showed that the trial court scheduled March 2, 2020, to make both determinations and then held both adjudicatory and dispositional hearings during the March 2 proceeding. Simms v. Alexandria Dep't of Cmty. & Human Servs., No. 0915-20-4, 2021 Va. App. LEXIS 93 (June 15, 2021).

Trial court abused its discretion by refusing to reopen a custody case in which the father, who admitted to having sexual relations with his 11-year-old stepdaughter, was awarded custody of three minor children; the motion to reopen the hearing was based on an affidavit by a psychiatrist which bore directly on the children's best interest, the credibility of the testimony relied upon by the trial court in the original hearing and the correctness of the earlier order. Accomack County Dep't of Social Servs. v. Muslimani, 12 Va. App. 220, 403 S.E.2d 1 (1991).

Waiver. - Because a parent did not appeal the juvenile and domestic relations district court's dispositional order to the circuit court, the parent waived any argument regarding the finding of abuse or neglect. Altamimi v. City of Alexandria Dep't of Cmty. & Human Servs., No. 0858-19-4, 2019 Va. App. LEXIS 218 (Oct. 1, 2019).

Appealability of juvenile court order. - Because the plain language of §§ 16.1-278.2 D, 16.1-252, and 16.1-296 A provided that a preliminary removal order was not a dispositional order and was not a final order, the trial court did not err in finding that it lacked jurisdiction to entertain a department of social services' appeal of a juvenile court's order. Richmond Dep't of Soc. Servs. v. Petersburg Dep't of Soc. Servs., No. 2261-05-2, 2006 Va. App. LEXIS 263 (June 13, 2006).

Appeals to circuit court. - Circuit court did not err in dismissing a mother's appeals of a juvenile and domestic relations district court's adjudicatory orders that her children were abused and neglected because the juvenile and domestic relations district court's dispositional orders, the final orders, were not entered until July 16, 2010, but the mother never appealed those orders, and the filing of the dispositional order appeal forms on June 1, 2010, was premature since there were no final orders from which the mother could appeal at that time; pursuant to subsection A of § 16.1-296, only final orders of the district court could be appealed to the circuit court, and adjudicatory orders entered by a district court in child abuse and neglect cases are not final orders for purposes of appeal because they are not entered pursuant to § 16.1-278.2 as required by the General Assembly. Chavis v. Hopewell Dep't of Soc. Servs., No. 1762-10-2, 2011 Va. App. LEXIS 118 (Apr. 5, 2011).

Court of appeals was not procedurally empowered to correct the error a mother alleged in her assignment of error because her opportunity to contest the finding of abuse or neglect had long since passed; in dispositional orders, the juvenile and domestic relations district court transferred custody of the children to the Department of Human Services, but the mother did not exercise her right to appeal those dispositional orders. Dilaura v. Norfolk Dep't of Human Servs., No. 0223-17-1, 2017 Va. App. LEXIS 289 (Nov. 21, 2017).

Final judgment. - Order at issue was a final order under subsection D of § 16.1-278.2 and subsection A of § 16.1-296 because it was captioned "dispositional order," transferred custody of a child to the department of social services, made the finding required by subdivision A 5 c. of § 16.1-278.2, established specific terms for visitation, authorized placement with the mother, and was entered after an adjudicatory order. Blevins v. Prince William County Dep't of Soc. Servs., 61 Va. App. 94, 733 S.E.2d 674, 2012 Va. App. LEXIS 347 (2012).

Court of Appeals lacked jurisdiction to hear a mother's appeal because the circuit court's orders, that her children were abused or neglected or were at risk of abuse or neglect, were not final orders where the orders were adjudicatory in nature, did not make any of the seven statutory dispositions, and did not make any final determinations regarding custody. Byrd v. Petersburg Dep't of Soc. Servs., No. 0782-15-2, 2016 Va. App. LEXIS 203 (Ct. of Appeals July 19, 2016).

Findings not required. - Circuit court was not required to make findings pursuant to subsection A1 and could not have erred in failing to do so because no "transfer" to a "relative" took place since the children remained with their fathers; the circuit court ordered that custody remain with the children's biological fathers, which was not a "transfer" of custody, and the children's fathers were not "relatives." Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Evidence sufficient to find child abused and neglected. - As the evidence established a mother either abandoned her 19-month-old daughter at her apartment building despite her neighbors' refusal to be responsible for the child, or she left the child with a person who was unable to remember she had agreed to care for the child, left the child with no provisions or emergency contact information, and did not return at the time she promised, the juvenile court properly found that the mother's irresponsible behavior rendered the child abused and neglected. MacLean v. Roanoke County Dep't of Soc. Servs., No. 1789-07-3, 2008 Va. App. LEXIS 37 (Jan. 22, 2008).

Circuit court properly entered a child protective order against a father that "required sight and sound visitation" because the father's untreated mental health situation endangered the child, especially considering the father's actions toward his own dog - slicing its neck - after the child's paternal great uncle and wife asked him to leave and it was unfair for a child to carry the responsibility of maintaining the stability of the father's behavior. Lambert v. Harrisonburg/Rockingham Soc. Servs. Dist., No. 1572-19-3, 2020 Va. App. LEXIS 62 (Mar. 10, 2020).

Sufficient evidence to support transfer of child to grandparent. - Public agency presented sufficient evidence to support transferring physical custody of a child, who had been abused and neglected, to a grandparent because the child's parent did not show the ability to care for the child, while the child's health and performance at school improved under the grandparent's care. Moreover, the court imposed appropriate conditions for the care of the child and preserved the parent's parental rights until the parent could demonstrate long-term change in the parent's parenting and living circumstances. Wisman v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0451-15-3, 2015 Va. App. LEXIS 317 (Nov. 10, 2015).

Paternal aunt properly given custody. - Trial court specifically found that the paternal aunt was a person who was willing and qualified to receive and care for the child, willing to have a continuous relationship with the child, was committed to providing a permanent, suitable home for the child, and was willing and has the ability to protect the child from abuse and neglect; the record supported the trial court's findings, and the trial court did not err in ordering that the paternal aunt have custody of the child. Carlos v. Va. Beach Dep't of Human Servs., No. 1060-15-1, 2016 Va. App. LEXIS 13 (Jan. 19, 2016).

Insufficient evidence to support transfer of custody. - Circuit court properly dismissed a grandfather's petitions for custody of his grandsons because, inter alia, the court considered the four statutory factors and found that the grandfather did not establish that he was willing or qualified to care for the grandsons or that he was willing to have a positive, continuous relationship with them, the living arrangement proposed by the grandfather was not suitable considering the grandsons' profound needs and a recommendation that they live separately, the grandfather did not establish that he could protect the grandsons from abuse and neglect, and the the grandfather's "barrier crimes" did not bar the court from placing the grandsons with him. Stayner v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0598-15-3, 2016 Va. App. LEXIS 82 (Ct. of Appeals Mar. 22, 2016).

Applied in Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

CIRCUIT COURT OPINIONS

Foster care plan rejected. - Court rejected a juvenile court's approval of a foster care plan with respect to a father's daughter as the plan's goal of relative placement instead of return to parent was not supported by the evidence within the meaning of §§ 16.1-278.2 and 16.1-281 and was not in the daughter's best interest. However, since the daughter had been in foster care for seven months and her relationship with her father was very strained, the court postponed the entry of an order for fifteen business days, giving the interested parties time to respond. In re Baxter, 73 Va. Cir. 520, 2007 Va. Cir. LEXIS 133 (Henrico County 2007).

OPINIONS OF THE ATTORNEY GENERAL

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

§ 16.1-278.3. Relief of care and custody.

  1. Within 60 days of a hearing on a petition for relief of the care and custody of any child pursuant to § 16.1-277.02 at which the court found (i) good cause for the petitioner's desire to be relieved of a child's care and custody or (ii) that permanent relief of custody and termination of residual parental rights is in the best interest of the child, a dispositional hearing shall be held, if a final order disposing of the matter was not entered at the conclusion of the hearing on the petition held pursuant to § 16.1-277.02.
  2. Notice of the dispositional hearing shall be provided to the local department of social services, the guardian ad litem for the child, the child if he is at least 12 years of age, and the child's parents, custodian or other person standing in loco parentis. However, if a parent's residual parental rights were terminated at the hearing on the petition held pursuant to § 16.1-277.02, no such notice of the hearing pursuant to this section shall be provided to the parent. The hearing shall be held and a dispositional order may be entered, although a parent, guardian, legal custodian or person standing in loco parentis fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that the person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. However, in the case of a hearing to grant a petition for permanent relief of custody and terminate a parent's residual parental rights, notice to the parent whose rights may be affected shall be provided in accordance with the provisions of §§ 16.1-263 and 16.1-264.
  3. The court may make any of the orders of disposition permitted in a case involving an abused or neglected child pursuant to § 16.1-278.2. Any such order transferring legal custody of the child shall be made in accordance with the provisions of subdivision A 5 of § 16.1-278.2 and shall be subject to the provisions of subsection D1. This order shall include, but need not be limited to, the following findings: (i) that there is no less drastic alternative to granting the requested relief; and (ii) that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to a local board of social services. Any preliminary protective orders entered on behalf of the child shall be reviewed at the dispositional hearing and may be incorporated, as appropriate, in the dispositional order. If the child has been placed in foster care, at the dispositional hearing the court shall review the foster care plan for the child filed by the local board of social services or child welfare agency in accordance with § 16.1-281.
  4. If the parent or other custodian seeks to be relieved permanently of the care and custody of any child and the court finds by clear and convincing evidence that termination of the parent's parental rights is in the best interest of the child, the court may terminate the parental rights of that parent. If the remaining parent has not petitioned for permanent relief of the care and custody of the child, the remaining parent's parental rights may be terminated in accordance with the provisions of § 16.1-283. Any order terminating parental rights shall be accompanied by an order (i) continuing or granting custody to a local board of social services or to a licensed child-placing agency or (ii) granting custody or guardianship to a person with a legitimate interest. Such an order continuing or granting custody to a local board of social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto. Proceedings under this section shall be advanced on the docket so as to provide for their earliest practicable disposition. At any time subsequent to the transfer of legal custody of the child pursuant to this section, a birth parent or parents of the child and the pre-adoptive parent or parents may enter into a written post-adoption contact and communication agreement in accordance with the provisions of § 16.1-283.1 and Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2. The court shall not require a written post-adoption contact and communication agreement as a precondition to entry of an order in any case involving the child. D1. Any order transferring custody of the child to a person with a legitimate interest pursuant to subsection C or D shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a person with a legitimate interest should further provide for, as appropriate, any terms or conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.
  5. The local board or licensed child-placing agency to which authority is given to place the child for adoption and consent thereto after an order terminating parental rights is entered pursuant to this section shall file a written Adoption Progress Report with the juvenile court on the progress being made to place the child in an adoptive home. The report shall be filed with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.
  6. A dispositional order entered pursuant to this section is a final order from which an appeal may be taken in accordance with § 16.1-296.

    (1991, c. 534; 1999, c. 889; 2000, c. 385; 2009, cc. 98, 260; 2010, c. 331; 2013, c. 130; 2019, c. 434.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

As to appointment of a guardian or commitment to a custodial agency of a child who is deemed to be without proper custody upon denial of an adoption petition, see § 63.2-1209 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2013, c. 130, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2014."

The 1999 amendment rewrote this section, which formerly read: "When a parent or other custodian seeks to be relieved of the care and custody of any child pursuant to subdivision A 4 of § 16.1-241 or when a public or private agency seeks to gain approval of an entrustment agreement pursuant to § 63.1-56 or § 63.1-204, the juvenile court or the circuit court may, after compliance with § 16.1-277, make any of the orders of disposition permitted in a case involving an abused or neglected child pursuant to § 16.1-278.2.

"If the parent or other custodian seeks to be relieved permanently of the care and custody of any child or when a public or private agency seeks to gain approval of a permanent entrustment agreement entered into pursuant to § 63.1-56 or § 63.1-204, the juvenile court or the circuit court may, after compliance with § 16.1-277, terminate the parental rights of the parent or other custodian and appoint a local board of public welfare or social services or a licensed child-placing agency as custodian of the child with the authority to place the child for adoption and consent thereto. The remaining parent's parental rights may be terminated even though that parent has not entered into an entrustment agreement if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that (i) the identity of the parent is not reasonably ascertainable; (ii) the identity and whereabouts of the parent are known or reasonably ascertainable, and the parent is personally served with notice of the termination proceeding pursuant to § 8.01-296 or § 8.01-320 ; (iii) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of termination proceedings by certified or registered mail to the last known address and such parent fails to object to the proceedings within twenty-one days of the mailing of such notice; or (iv) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of termination proceedings through an order of publication, published at least once per week in a newspaper having general circulation in the area for a period of four weeks, and such parent fails to object to the proceedings. Proceedings under this section shall be advanced on the docket so as to provide for their earliest practicable disposition. No order of disposition pursuant to this section shall be made over the objection of any party, if the disposition was not provided for or requested in the entrustment agreement or in the petition's prayer for relief."

The 2000 amendments. - The 2000 amendment by c. 385 inserted the present second and third sentences in subsection C and added subsection D1.

The 2009 amendments. - The 2009 amendments by cc. 98 and 260 are identical, and added the last two sentences in subsection D.

The 2010 amendments. - The 2010 amendment by c. 331 substituted " § 16.1-283.1 and Article 1.1 ( § 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2" for " §§ 16.1-283.1 and 63.2-1228.1 " in the next-to-last sentence of subsection D and made minor stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, substituted "Within 60 days" for "Within 75 days" at the beginning of subsection A.

The 2019 amendments. - The 2019 amendment by c. 434, in subsections D and D1, substituted "person with a legitimate interest" for "relative or other interested individual" three times; in subsection D1, substituted "such person" for "the relative or other interested individual" and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent & Child, § 11.

CASE NOTES

Identity "not reasonably ascertainable." - Where the mother's testimony failed 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 identity of the father was "not reasonably ascertainable." Unknown Father of Baby Girl Janet v. Division of Social Servs., 15 Va. App. 110, 422 S.E.2d 407 (1992) (decided under former § 16.1-279 B).

Statute provided no basis for father's petition to terminate his parental obligations. - Because a father was not the children's custodial parent, he provided no actual care and custody from which he could have been relieved, and, thus, § 16.1-278.3 provided him no basis for seeking termination of his parental rights and obligations; furthermore, subsection D of § 16.1-278.3 authorized consideration of the status and rights of a remaining parent only following the granting of a petition properly filed under § 16.1-277.02. No such petition was filed or granted, and a trial court properly dismissed the father's petition. Cartwright v. Cartwright, 49 Va. App. 25, 635 S.E.2d 691, 2006 Va. App. LEXIS 473 (2006).

OPINIONS OF THE ATTORNEY GENERAL

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

§ 16.1-278.4. Children in need of services.

If a child is found to be in need of services or a status offender, the juvenile court or the circuit court may make any of the following orders of disposition for the supervision, care and rehabilitation of the child:

  1. Enter an order pursuant to the provisions of § 16.1-278.
  2. Permit the child to remain with his parent subject to such conditions and limitations as the court may order with respect to such child and his parent.
  3. Order the parent with whom the child is living to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child and his parent.
  4. Beginning July 1, 1992, in the case of any child fourteen years of age or older, where the court finds that the child is not able to benefit appreciably from further schooling, the court may excuse the child from further compliance with any legal requirement of compulsory school attendance as provided under § 22.1-254 or authorize the child, notwithstanding the provisions of any other law, to be employed in any occupation which is not legally declared hazardous for children under the age of eighteen.
  5. Permit the local board of social services or a public agency designated by the community policy and management team to place the child, subject to the provisions of § 16.1-281, in suitable family homes, child caring-institutions, residential facilities, or independent living arrangements with legal custody remaining with the parents or guardians. The local board or public agency and the parents or guardians shall enter into an agreement which shall specify the responsibilities of each for the care and control of the child. The board or public agency that places the child shall have the final authority to determine the appropriate placement for the child.

    Any order allowing a local board or public agency to place a child where legal custody remains with the parents or guardians as provided in this section shall be entered only upon a finding by the court that reasonable efforts have been made to prevent placement out of the home and that continued placement in the home would be contrary to the welfare of the child, and the order shall so state.

  6. Transfer legal custody to any of the following:
    1. A relative or other individual who, after study, is found by the court to be qualified to receive and care for the child;
    2. A child welfare agency, private organization or facility that is licensed or otherwise authorized by law to receive and provide care for such child. The court shall not transfer legal custody of a child in need of services to an agency, organization or facility out of the Commonwealth without the approval of the Commissioner of Social Services; or
    3. The local board of social services of the county or city in which the court has jurisdiction or, at the discretion of the court, to the local board of the county or city in which the child has residence if other than the county or city in which the court has jurisdiction. The local board shall accept the child for care and custody, provided that it has been given reasonable notice of the pendency of the case and an opportunity to be heard. However, in an emergency in the county or city in which the court has jurisdiction, the local board may be required to accept a child for a period not to exceed fourteen days without prior notice or an opportunity to be heard if the judge entering the placement order describes the emergency and the need for such temporary placement in the order. Nothing in this subdivision shall prohibit the commitment of a child to any local board of social services in the Commonwealth when the local board consents to the commitment. The board to which the child is committed shall have the final authority to determine the appropriate placement for the child.

      Any order authorizing removal from the home and transferring legal custody of a child to a local board of social services as provided in this subdivision shall be entered only upon a finding by the court that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, and the order shall so state.

      A finding by the court that reasonable efforts were made to prevent removal of the child from his home shall not be required if the court finds that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) on the basis of clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283.

      As used in this section:

      "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect (i) evinces a wanton or depraved indifference to human life or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.

      "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk.

      "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

      "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once but otherwise meets the definition of "aggravated circumstances."

  7. Require the child to participate in a public service project under such conditions as the court prescribes.

    (1991, c. 534; 1994, c. 865; 1997, c. 463; 1999, cc. 488, 552; 2002, c. 747; 2017, c. 190.)

Cross references. - As to foster care plans, placement of child, permissible plan goals, and court review of foster children, see § 63.2-906 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1999 amendments. - The 1999 amendments by cc. 488 and 552 are identical, and substituted " § 22.1-254" for " § 22.1-257" in subdivision 4.

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, substituted "that" for "which"' following "agency" in the last sentence of the first paragraph of subdivision 5; substituted "that" for "which" following "facility" in the first sentence of subdivision 6 b; and deleted "public welfare or" following "local board of" three times in subdivision 6 c.

The 2017 amendments. - The 2017 amendment by c. 190 added the third paragraph and the definitions at the end of subdivision 6 c.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

CASE NOTES

Authority to order placement and cost of residential treatment. - A juvenile court judge may order Social Services to place a minor in a facility for treatment when custody of the child has been granted to Social Services pursuant to this section. S.G. ex rel. v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 488 S.E.2d 653 (1997).

The juvenile court judge had the authority to enter the decree ordering Social Services to provide treatment for the minor in a residential treatment facility. S.G. ex rel. v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 488 S.E.2d 653 (1997).

Appeal untimely. - Trial court properly dismissed the parents' appeal of the juvenile and domestic relations district court's order declaring their child in need of services as untimely because, although there were a number of previous dispositional orders in the case and services were ongoing, the order made a final disposition when it transferred custody of the child to the Department of Social Services. Brown v. Prince William Cty. Dep't of Soc. Servs., No. 0528-19-4, 2020 Va. App. LEXIS 17 (Jan. 14, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Noncustodial entrustment of child in need of services. - A juvenile court judge has the authority to order a local board of social services to accept noncustodial entrustment of a child found to be in need of services. See opinion of Attorney General to The Honorable Frank D. Hargrove, Sr., Member, House of Delegates, 04-012, 2004 Va. AG LEXIS 19 (3/22/04).

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-278.5. Children in need of supervision.

  1. If a child is found to be in need of supervision, the court shall, before final disposition of the case, direct the appropriate public agency to evaluate the child's service needs using an interdisciplinary team approach. The team shall consist of qualified personnel who are reasonably available from the appropriate department of social services, community services board, local school division, court service unit and other appropriate and available public and private agencies and may be the family assessment and planning team established pursuant to § 2.2-5207 . A report of the evaluation shall be filed as provided in § 16.1-274 A. In lieu of directing an evaluation be made, the court may consider the report concerning the child of an interdisciplinary team which met not more than ninety days prior to the court's making a finding that the child is in need of supervision.
  2. The court may make any of the following orders of disposition for the supervision, care and rehabilitation of the child:
    1. Enter any order of disposition authorized by § 16.1-278.4 for a child found to be in need of services;
    2. Place the child on probation under such conditions and limitations as the court may prescribe including suspension of the child's driver's license upon terms and conditions which may include the issuance of a restricted license for those purposes set forth in subsection E of § 18.2-271.1 ;
    3. Order the child and/or his parent to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child;
    4. Require the child to participate in a public service project under such conditions as the court may prescribe; or
      1. Beginning July 1, 1992, in the case of any child subject to compulsory school attendance as provided in § 22.1-254, where the court finds that the child's parent is in violation of §§ 22.1-254, 22.1-255, 22.1-265, or § 22.1-267, in addition to any penalties provided in § 22.1-263 or § 22.1-265, the court may order the parent with whom the child is living to participate in such programs, cooperate in such treatment, or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child and/or the parent. Upon the failure of the parent to so participate or cooperate, or to comply with the conditions and limitations that the court orders, the court may impose a fine of not more than $100 for each day in which the person fails to comply with the court order.
      2. If the court finds that the parent has willfully disobeyed a lawful process, judgment, decree, or court order requiring such person to comply with the compulsory school attendance law, in addition to any conditions or limitations that the court may order or any penalties provided by §§ 16.1-278.2 through 16.1-278.19, 22.1-263 or § 22.1-265, the court may impose the penalty authorized by § 18.2-371 .
  3. Any order entered pursuant to this section shall be provided in writing to the child, his parent or legal custodian, and to the child's attorney and shall contain adequate notice of the provisions of § 16.1-292 regarding willful violation of such order.

    (1991, c. 534; 1992, cc. 837, 880; 1996, c. 45; 1997, c. 210.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

CASE NOTES

Notice satisfactory. - Order which found a juvenile in need of supervision expressly informed the juvenile and the juvenile's parents that, if the juvenile violated the order, the judge had the authority to "order the child to be placed in a residential facility," or "to order the child detained in a secure facility." The order recited that "copies of this order were presented in open court" to the attorney for the parents and the juvenile and was served on the parents and the juvenile; thus, this order satisfied subsection C of § 16.1-278.5. Aylor v. Madison County Dep't of Soc. Servs., No. 3110-05-2, 2006 Va. App. LEXIS 496 (Oct. 31, 2006).

OPINIONS OF THE ATTORNEY GENERAL

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-278.6. Status offenders.

If a child is alleged to be a status offender, including but not limited to those cases in which the juvenile is alleged to have committed a curfew violation or a violation of the law regarding tobacco, the juvenile court or the circuit court may enter any order of disposition authorized by § 16.1-278.4.

(1991, c. 534; 1997, c. 463.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

OPINIONS OF THE ATTORNEY GENERAL

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

§ 16.1-278.7. Commitment to Department of Juvenile Justice.

Only a juvenile who is (i) adjudicated delinquent of an act enumerated in subsection B or C of § 16.1-269.1 and is 11 years of age or older or (ii) 14 years of age or older may be committed to the Department of Juvenile Justice. In cases where a waiver of an investigation has been granted pursuant to subdivision A 14 or A 17 of § 16.1-278.8, at the time a court commits a child to the Department of Juvenile Justice the court shall order an investigation pursuant to § 16.1-273 to be completed within 15 days. No juvenile court or circuit court shall order the commitment of any child jointly to the Department of Juvenile Justice and to a local board of social services or transfer the custody of a child jointly to a court service unit of a juvenile court and to a local board of social services. Any person sentenced and committed to an active term of incarceration in the Department of Corrections who is, at the time of such sentencing, in the custody of the Department of Juvenile Justice, upon pronouncement of sentence, shall be immediately transferred to the Department of Corrections.

(1991, c. 534; 2000, cc. 954, 981, 988; 2007, c. 510; 2014, cc. 20, 249; 2021, Sp. Sess. I, c. 115.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2000 amendments. - The 2000 amendments by cc. 954, 981, and 988 are identical, and substituted "Only a juvenile who is adjudicated as a delinquent and is eleven years of age or older may," for "Unless a child found to be abused, neglected, in need of services, in need of supervision or a status offender is also found to be delinquent and is older than ten years of age, he shall not" in the first sentence, deleted "public welfare or" preceding "social services" twice in the second sentence, and added the last sentence.

The 2007 amendments. - The 2007 amendment by c. 510 inserted the present second sentence and made a minor stylistic change.

The 2014 amendments. - The 2014 amendments by cc. 20 and 249, effective October 1, 2014, beginning of second sentence, substituted "In cases where a waiver of an investigation has been granted pursuant to subdivision A 14 or A 17 of § 16.1-278.8" for "Unless previously completed."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 115, effective July 1, 2021, substituted "(i) adjudicated delinquent of an act enumerated in subsection B or C of § 16.1-269.1 and is 11 years of age or older or (ii) 14 years of age or older" for "adjudicated as a delinquent and is 11 years of age or older."

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

CASE NOTES

Commitment limited to juveniles 11 or older. - Evidence was sufficient to convict defendant of possession of a firearm after having been convicted of a felony under § 18.2-308.2 , as an undated juvenile adjudication order stating that a "child" was found guilty of breaking and entry and larceny and was committed to the Virginia Department of Juvenile Justice (DJJ) was adequate proof that defendant, while a juvenile, committed two acts that would have been felonies if committed by an adult. Under § 16.1-228, "child" meant a person less than 18 years of age; and under § 16.1-278.7, only a juvenile 11 years or older could be committed to DJJ. Perez v. Commonwealth, 274 Va. 724 , 652 S.E.2d 95, 2007 Va. LEXIS 129 (2007).

§ 16.1-278.7:01. Department to give notice of the receipt of certain persons.

  1. At the time or receipt of any person, for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the Department shall obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police. A person required to register shall register and submit to be photographed as part of the registration. The Department shall forthwith forward the registration information and photograph to the Department of State Police on the date of the receipt of the person.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the Department shall promptly investigate or request the State Police promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or petition or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was received. The Department shall notify the State Police forthwith of such actions taken pursuant to this section. (2006, cc. 857, 914.)

§ 16.1-278.7:02. Department to give notice of Sex Offender and Crimes Against Minors Registry requirements to certain persons.

  1. Prior to the release or discharge of any persons for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the Department shall give notice to the persons of his duty to register with the State Police. A person required to register shall register, submit to be photographed as part of the registration, and provide information regarding place of employment, if available, to the Department. The Department shall also obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police; inform the person of his duties regarding reregistration and change of address; and inform the person of his duty to register. The Department of Juvenile Justice shall forward the registration information to the Department of State Police on the date of the person's release or discharge.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the Department shall promptly investigate or request the State Police promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was discharged. The Department shall notify the State Police forthwith of such actions taken pursuant to this section. (2006, cc. 857, 914.)

§ 16.1-278.8. Delinquent juveniles.

  1. If a juvenile is found to be delinquent, except where such finding involves a refusal to take a breath test in violation of § 18.2-268.2 or a similar ordinance, the juvenile court or the circuit court may make any of the following orders of disposition for his supervision, care and rehabilitation:
    1. Enter an order pursuant to the provisions of § 16.1-278;
    2. Permit the juvenile to remain with his parent, subject to such conditions and limitations as the court may order with respect to the juvenile and his parent;
    3. Order the parent of a juvenile living with him to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the juvenile and his parent;
    4. Defer disposition for a specific period of time established by the court with due regard for the gravity of the offense and the juvenile's history, after which time the charge may be dismissed by the judge if the juvenile exhibits good behavior during the period for which disposition is deferred; 4a. Defer disposition and place the juvenile in the temporary custody of the Department to attend a boot camp established pursuant to § 66-13 provided bed space is available for confinement and the juvenile (i) has been found delinquent for an offense that would be a Class 1 misdemeanor or felony if committed by an adult, (ii) has not previously been and is not currently being adjudicated delinquent or found guilty of a violent juvenile felony, (iii) has not previously attended a boot camp, (iv) has not previously been committed to and received by the Department, and (v) has had an assessment completed by the Department or its contractor concerning the appropriateness of the candidate for a boot camp. Upon the juvenile's withdrawal, removal or refusal to comply with the terms and conditions of participation in the program, he shall be brought before the court for a hearing at which the court may impose any other disposition as authorized by this section which could have been imposed at the time the juvenile was placed in the custody of the Department;
    5. Without entering a judgment of guilty and with the consent of the juvenile and his attorney, defer disposition of the delinquency charge for a specific period of time established by the court with due regard for the gravity of the offense and the juvenile's history, and place the juvenile on probation under such conditions and limitations as the court may prescribe. Upon fulfillment of the terms and conditions, the court shall discharge the juvenile and dismiss the proceedings against him. Discharge and dismissal under these provisions shall be without adjudication of guilt;
    6. Order the parent of a juvenile with whom the juvenile does not reside to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the juvenile where the court determines this participation to be in the best interest of the juvenile and other parties concerned and where the court determines it reasonable to expect the parent to be able to comply with such order;
    7. Place the juvenile on probation under such conditions and limitations as the court may prescribe; 7a. Place the juvenile on probation and order treatment for the abuse or dependence on alcohol or drugs in a program licensed by the Department of Behavioral Health and Developmental Services for the treatment of juveniles for substance abuse provided that (i) the juvenile has received a substance abuse screening and assessment pursuant to § 16.1-273 and that such assessment reasonably indicates that the commission of the offense was motivated by, or closely related to, the habitual use of alcohol or drugs and indicates that the juvenile is in need of treatment for this condition; (ii) the juvenile has not previously been and is not currently being adjudicated for a violent juvenile felony; and (iii) such facility is available. Upon the juvenile's withdrawal, removal, or refusal to comply with the conditions of participation in the program, he shall be brought before the court for a hearing at which the court may impose any other disposition authorized by this section. The court shall review such placements at 30-day intervals;
    8. Impose a fine not to exceed $500 upon such juvenile;
    9. Suspend the motor vehicle and driver's license of such juvenile or impose a curfew on the juvenile as to the hours during which he may operate a motor vehicle. Any juvenile whose driver's license is suspended may be referred for an assessment and subsequent referral to appropriate services, upon such terms and conditions as the court may order. The court, in its discretion and upon a demonstration of hardship, may authorize the use of a restricted permit to operate a motor vehicle by any juvenile who enters such program for any of the purposes set forth in subsection E of § 18.2-271.1 or for travel to and from school. The restricted permit shall be issued in accordance with the provisions of such subsection. However, only an abstract of the court order that identifies the juvenile and the conditions under which the restricted license is to be issued shall be sent to the Department of Motor Vehicles. If a curfew is imposed, the juvenile shall surrender his driver's license, which shall be held in the physical custody of the court during any period of curfew restriction. The court shall send an abstract of any order issued under the provisions of this section to the Department of Motor Vehicles, which shall preserve a record thereof. Notwithstanding the provisions of Article 12 (§ 16.1-299 et seq.) of this chapter or the provisions of Title 46.2, this record shall be available only to all law-enforcement officers, attorneys for the Commonwealth and courts. A copy of the court order, upon which shall be noted all curfew restrictions, shall be provided to the juvenile and shall contain such information regarding the juvenile as is reasonably necessary to identify him. The juvenile may operate a motor vehicle under the court order in accordance with its terms. Any juvenile who operates a motor vehicle in violation of any restrictions imposed pursuant to this section is guilty of a violation of § 46.2-301 . The Department of Motor Vehicles shall refuse to issue a driver's license to any juvenile denied a driver's license until such time as is stipulated in the court order or until notification by the court of withdrawal of the order imposing the curfew;
    10. Require the juvenile to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which the juvenile was found to be delinquent;
    11. Require the juvenile to participate in a public service project under such conditions as the court prescribes;
    12. In case of traffic violations, impose only those penalties that are authorized to be imposed on adults for such violations. However, for those violations punishable by confinement if committed by an adult, confinement shall be imposed only as authorized by this title;
    13. Transfer legal custody to any of the following:
      1. A relative or other individual who, after study, is found by the court to be qualified to receive and care for the juvenile;
      2. A child welfare agency, private organization or facility that is licensed or otherwise authorized by law to receive and provide care for such juvenile. The court shall not transfer legal custody of a delinquent juvenile to an agency, organization or facility outside of the Commonwealth without the approval of the Director; or
      3. The local board of social services of the county or city in which the court has jurisdiction or, at the discretion of the court, to the local board of the county or city in which the juvenile has residence if other than the county or city in which the court has jurisdiction. The board shall accept the juvenile for care and custody, provided that it has been given reasonable notice of the pendency of the case and an opportunity to be heard. However, in an emergency in the county or city in which the court has jurisdiction, such local board may be required to temporarily accept a juvenile for a period not to exceed 14 days without prior notice or an opportunity to be heard if the judge entering the placement order describes the emergency and the need for such temporary placement in the order. Nothing in this subdivision shall prohibit the commitment of a juvenile to any local board of social services in the Commonwealth when such local board consents to the commitment. The board to which the juvenile is committed shall have the final authority to determine the appropriate placement for the juvenile. Any order authorizing removal from the home and transferring legal custody of a juvenile to a local board of social services as provided in this subdivision shall be entered only upon a finding by the court that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the juvenile, and the order shall so state;
    14. Unless waived by an agreement between the attorney for the Commonwealth and the juvenile and his attorney or other legal representative, upon consideration of the results of an investigation completed pursuant to § 16.1-273, commit the juvenile to the Department of Juvenile Justice, but only if (i) he is 11 years of age or older and has been adjudicated delinquent of an act enumerated in subsection B or C of § 16.1-269.1 or (ii) he is 14 years of age or older and the current offense is (a) an offense that would be a felony if committed by an adult, (b) an offense that would be a Class 1 misdemeanor if committed by an adult and the juvenile has previously been found to be delinquent based on an offense that would be a felony if committed by an adult, or (c) an offense that would be a Class 1 misdemeanor if committed by an adult and the juvenile has previously been adjudicated delinquent of three or more offenses that would be a Class 1 misdemeanor if committed by an adult, and each such offense was not a part of a common act, transaction or scheme;
    15. Impose the penalty authorized by § 16.1-284;
    16. Impose the penalty authorized by § 16.1-284.1;
    17. Unless waived by an agreement between the attorney for the Commonwealth and the juvenile and his attorney or other legal representative, upon consideration of the results of an investigation completed pursuant to § 16.1-273, impose the penalty authorized by § 16.1-285.1;
    18. Impose the penalty authorized by § 16.1-278.9; or
    19. Require the juvenile to participate in a gang-activity prevention program including, but not limited to, programs funded under the Virginia Juvenile Community Crime Control Act pursuant to § 16.1-309.7, if available, when a juvenile has been found delinquent of any of the following violations: § 18.2-51 , 18.2-51.1 , 18.2-52 , 18.2-53 , 18.2-55 , 18.2-56 , 18.2-57 , 18.2-57.2 , 18.2-121 , 18.2-127 , 18.2-128 , 18.2-137 , 18.2-138 , 18.2-146 , or 18.2-147 , or any violation of a local ordinance adopted pursuant to § 15.2-1812.2 .
  2. If the court finds a juvenile delinquent of any of the following offenses, the court shall require the juvenile to make at least partial restitution or reparation for any property damage, for loss caused by the offense, or for actual medical expenses incurred by the victim as a result of the offense: § 18.2-51 , 18.2-51.1 , 18.2-52 , 18.2-53 , 18.2-55 , 18.2-56 , 18.2-57 , 18.2-57.2 , 18.2-121 , 18.2-127 , 18.2-128 , 18.2-137 , 18.2-138 , 18.2-146 , or 18.2-147 ; or for any violation of a local ordinance adopted pursuant to § 15.2-1812.2 . The court shall further require the juvenile to participate in a community service project under such conditions as the court prescribes. (1991, c. 534; 1992, c. 830; 1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 318; 1999, cc. 350, 622; 2000, cc. 954, 978, 981, 988, 1020, 1041; 2004, cc. 325, 462; 2005, c. 810; 2009, cc. 813, 840; 2014, cc. 20, 249; 2017, c. 623; 2021, Sp. Sess. I, c. 115.)

Cross references. - As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and added subdivision 4a.

The 1999 amendments. - The amendment by c. 350, in present subdivision A 13 c, in the first, fourth and last sentences, deleted "public welfare or" preceding "social services," deleted "or" at the end of subdivision 17, inserted "or" at the end of subdivision 18, and added subdivision 19.

The 1999 amendment by c. 622 added the subsection A designator and added subsection B.

The 2000 amendments. - The 2000 amendments by cc. 954, 981, and 988 are identical, and in subdivision A 14, substituted "eleven" for "older than ten" and inserted "or older" and deleted "either" preceding "a felony" and "or Class 1 misdemeanor" thereafter, and added language beginning "or (iii) an offense" and ending "by an adult" and in subdivision A 19 and subsection B, deleted "18.2-57.1" preceding "18.2-57.2."

The 2000 amendment by c. 978, in subdivision A 4a, rewrote clause (i), which formerly read: "(i) is otherwise eligible for commitment to the Department," and substituted "eleven years of age or older" for "older than ten years of age" in subdivision A 14.

The 2000 amendments by cc. 1020 and 1041 are identical, and added subdivision A 7a.

The 2004 amendments. - The 2004 amendment by c. 325 substituted "12" for "twelve" in subddivision A 4 and and in the first sentence of subdivision A 5; substituted "30" for "thirty" in the last sentence of subdivision A 7a; substituted "14" for "fourteen" in the third sentence of paragraph A 13 c; in subdivision A 14, substituted "11" for "eleven" and "of three or more offenses that would be a Class 1 misdemeanor if committed by an adult, and each such offense was not a part of a common act, transaction or scheme" for "on three occasions for offenses which would be a Class 1 misdemeanors if committed by an adult" in clause (iii); and made minor stylistic changes.

The 2004 amendment by c. 462 substituted "15.2-1812.2" for "18.2-138.1" in subdivision A 19 and in the first sentence of subsection B and made minor stylistic changes.

The 2005 amendments. - The 2005 amendment by c. 810 substituted "established by the court with due regard for the gravity of the offense and the juvenile's history" for "not to exceed 12 months" in subdivision A 4; substituted "of time established by the court with due regard for the gravity of the offense and the juvenile's history" for "not to exceed 12 months" in subdivision A 5; and made minor stylistic changes.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services" in subdivision A 7a.

The 2014 amendments. - The 2014 amendments by cc. 20 and 249, effective October 1, 2014, are identical, and in subdivisions A 14 and A 17 added "Unless waived by an agreement between the attorney for the Commonwealth and the juvenile and his attorney or other legal representative, upon consideration of the results of an investigation completed pursuant to § 16.1-273."

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection A, deleted "blood or" preceding "breath test" in the introductory paragraph; and in subdivision A 9, substituted "is" for "shall be" in the third paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 115, effective July 1, 2021, substituted "(i) he is 11 years of age or older and has been adjudicated delinquent of an act enumerated in subsection B or C of § 16.1-269.1 or (ii) he is 14 years of age or older" for "he is 11 years of age or older" and redesignated former clauses (i) through (iii) as clauses (a) through (c) in subdivision A 14.

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 19.

CASE NOTES

Commitment for probation violation. - Because defendant juvenile did not provide a transcript or refer to it in the appellate brief, as required by Va. Sup. Ct. R. 5A:8(b) and 5A:20(c), the appellate court was unable to consider whether the proper underlying offense was present to commit defendant to the Department of Juvenile Justice. Williams v. Commonwealth,, 2005 Va. App. LEXIS 378 (Oct. 4, 2005).

Commitment for probation violation improper. - Because the plain language of subdivision A 14 of this section bars the commitment of a juvenile absent a delinquency finding on either a felony or a second Class 1 misdemeanor, a probation violation is insufficient to commit a juvenile to the Department of Juvenile Justice. Salvatierra v. City of Falls Church, 35 Va. App. 453, 546 S.E.2d 214, 2001 Va. App. LEXIS 265 (2001).

Commitment to Department of Juvenile Justice. - Trial court did not err in finding, upon determining that the juvenile violated the juvenile's probation, that the juvenile should be committed to the Department of Juvenile Justice for an indeterminate period; although the juvenile argued that the "original disposition" and "current offense" for such a disposition had to be a felony or Class 1 misdemeanor and the juvenile's case merely involved a probation violation, the underlying offense on which the juvenile received probation was a felony robbery, and, thus, commitment to the Department of Juvenile Justice was permissible because it could have been made in originally deciding the juvenile's punishment even though the juvenile's proceeding was indeed a probation revocation proceeding. Kerns v. Commonwealth, No. 0230-06-4, 2007 Va. App. LEXIS 175 (May 1, 2007).

Trial court had authority pursuant to §§ 16.1-278.8 and 16.1-291 to impose a suspended Department of Juvenile Justice commitment upon defendant juvenile's violation of the conditions of his probation because defendant's underlying offense, larceny of animals, was a form of grand larceny, and it remained a felony each time defendant came before the trial court on a probation violation; the term, "original disposition" in subsection B of § 16.1-291 plainly refers to the dispositional proceeding for the larceny of animals offense held under subsection A of § 16.1-278.8, in which the original conditions of probation were imposed. Rivas v. Commonwealth, 51 Va. App. 507, 659 S.E.2d 524, 2008 Va. App. LEXIS 173 (2008).

Juvenile court could maintain custody of child. - Because a mother did not comply with subsection A of § 16.1-296 and § 16.1-133.1 by appealing a dispositional order within 10 days of its entry or applying to reopen the case within 60 days, pursuant to Va. Sup. Ct. R. 1:1, the juvenile court lost jurisdiction of a charge and its dismissal of that charge had no force; therefore, since the juvenile court had authority under clause c of subdivision A 13 of § 16.1-278.8 to maintain custody of the child with the social services department, the circuit court properly denied the mother's motion to dismiss proceedings and return custody of her son. Lee v. Frederick County Dep't of Soc. Servs., No. 2693-07-4, 2008 Va. App. LEXIS 370 (Aug. 5, 2008).

Effect of adjudication of guilt. - Sufficient evidence of a prior adjudication of delinquency supported defendant's conviction of possession of a firearm after having been adjudicated delinquent of an act which would be a felony if committed by an adult under § 18.2-308.2 where; (1) an adjudication order was admitted that described an adjudicatory hearing based on a § 18.2-308.2 A felony charge and stated that defendant pled guilty and that the juvenile court accepted the plea; (2) the adjudication order tended to prove that defendant had been previously adjudicated delinquent; and (3) although the disposition order was not admitted, there was no evidence that defendant's conviction changed after the adjudication hearing, and the juvenile court could not have dismissed the prior charge under subdivision A 5 of § 16.1-278.8 because an adjudication of guilt had been made. Perry v. Commonwealth, 61 Va. App. 502, 737 S.E.2d 922, 2013 Va. App. LEXIS 66 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of juvenile. - A juvenile who has been issued a summons but is not taken into custody may not be fingerprinted. See opinion of Attorney General to The Honorable Edward DeJ. Berry, Judge, Juvenile and Domestic Relations District Court, 01-093 (6/19/01).

This statute does not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding. However, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear. See opinion of Attorney General to The Honorable Gayl Branum Carr, Juvenile and Domestic Relations District Court, 19th Judicial District, 12-027, 2012 Va. AG LEXIS 19 (5/25/12).

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

ICE detainer is merely a request. - It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency's receipt of an ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may exercise its discretion to hold the juvenile until ICE officials assume custody, provided the Department does not hold the juvenile longer than thirty-six continuous months or past his twenty-first birthday. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15).

§ 16.1-278.8:01. Juveniles found delinquent of first drug offense; screening; assessment; drug tests; costs and fees; education or treatment programs.

Whenever any juvenile who has not previously been found delinquent of any offense under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2 or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant or hallucinogenic drugs, or has not previously had a proceeding against him for a violation of such an offense dismissed as provided in § 4.1- 1120 or 18.2-251 , is found delinquent of any offense concerning the use, in any manner, of drugs, controlled substances, narcotics, marijuana, noxious chemical substances and like substances, the juvenile court or the circuit court shall require such juvenile to undergo a substance abuse screening pursuant to § 16.1-273 and to submit to such periodic substance abuse testing, to include alcohol testing, as may be directed by the court. Such testing shall be conducted by a court services unit of the Department of Juvenile Justice, or by a locally operated court services unit or by personnel of any program or agency approved by the Department. The cost of such testing ordered by the court shall be paid by the Commonwealth from funds appropriated to the Department for this purpose. The court shall also order the juvenile to undergo such treatment or education program for substance abuse, if available, as the court deems appropriate based upon consideration of the substance abuse assessment. The treatment or education shall be provided by a program licensed by the Department of Behavioral Health and Developmental Services or by a similar program available through a facility or program operated by or under contract to the Department of Juvenile Justice or a locally operated court services unit or a program funded through the Virginia Juvenile Community Crime Control Act (§ 16.1-309.2 et seq.).

(2000, cc. 1020, 1041; 2009, cc. 813, 840; 2011, cc. 384, 410; 2014, cc. 674, 719; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services" in the last sentence.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and twice inserted "synthetic cannabinoids" in the first sentence.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids" twice following "marijuana" in the first sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, effective July 1, 2021, are identical, and inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1 or" and "4.1-1120 or."

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

§ 16.1-278.9. Delinquent children; loss of driving privileges for alcohol, firearm, and drug offenses; truancy.

  1. If a court has found facts which would justify a finding that a child at least 13 years of age at the time of the offense is delinquent and such finding involves (i) a violation of § 18.2-266 or of a similar ordinance of any county, city, or town; (ii) a refusal to take a breath test in violation of § 18.2-268.2 ; (iii) a felony violation of Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-248 , 18.2-248.1 , or 18.2-250 ; (iv) a misdemeanor violation of Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-248 , 18.2-248.1 , or 18.2-250 ; (v) the unlawful purchase, possession, or consumption of alcohol in violation of § 4.1-305 or the unlawful drinking or possession of alcoholic beverages in or on public school grounds in violation of § 4.1-309 ; (vi) public intoxication in violation of § 18.2-388 or a similar ordinance of a county, city, or town; (vii) the unlawful use or possession of a handgun or possession of a "streetsweeper" as defined below; or (viii) a violation of § 18.2-83 , the court shall order, in addition to any other penalty that it may impose as provided by law for the offense, that the child be denied a driver's license. In addition to any other penalty authorized by this section, if the offense involves a violation designated under clause (i) and the child was transporting a person 17 years of age or younger, the court shall impose the additional fine and order community service as provided in § 18.2-270 . If the offense involves a violation designated under clause (i), (ii), (iii), or (viii), the denial of a driver's license shall be for a period of one year or until the juvenile reaches the age of 17, whichever is longer, for a first such offense or for a period of one year or until the juvenile reaches the age of 18, whichever is longer, for a second or subsequent such offense. If the offense involves a violation designated under clause (iv), (v), or (vi) the denial of driving privileges shall be for a period of six months unless the offense is committed by a child under the age of 16 years and three months, in which case the child's ability to apply for a driver's license shall be delayed for a period of six months following the date he reaches the age of 16 and three months. If the offense involves a first violation designated under clause (v) or (vi), the court shall impose the license sanction and may enter a judgment of guilt or, without entering a judgment of guilt, may defer disposition of the delinquency charge until such time as the court disposes of the case pursuant to subsection F. If the offense involves a violation designated under clause (iii) or (iv), the court shall impose the license sanction and shall dispose of the delinquency charge pursuant to the provisions of this chapter or § 18.2-251 . If the offense involves a violation designated under clause (vii), the denial of driving privileges shall be for a period of not less than 30 days, except when the offense involves possession of a concealed handgun or a striker 12, commonly called a "streetsweeper," or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding 12 shotgun shells, in which case the denial of driving privileges shall be for a period of two years unless the offense is committed by a child under the age of 16 years and three months, in which event the child's ability to apply for a driver's license shall be delayed for a period of two years following the date he reaches the age of 16 and three months. A1. If a court finds that a child at least 13 years of age has failed to comply with school attendance and meeting requirements as provided in § 22.1-258, the court shall order the denial of the child's driving privileges for a period of not less than 30 days. If such failure to comply involves a child under the age of 16 years and three months, the child's ability to apply for a driver's license shall be delayed for a period of not less than 30 days following the date he reaches the age of 16 and three months. If the court finds a second or subsequent such offense, it may order the denial of a driver's license for a period of one year or until the juvenile reaches the age of 18, whichever is longer, or delay the child's ability to apply for a driver's license for a period of one year following the date he reaches the age of 16 and three months, as may be appropriate. A2. If a court finds that a child at least 13 years of age has refused to take a blood test in violation of § 18.2-268.2 , the court shall order that the child be denied a driver's license for a period of one year or until the juvenile reaches the age of 17, whichever is longer, for a first such offense or for a period of one year or until the juvenile reaches the age of 18, whichever is longer, for a second or subsequent such offense.
  2. Any child who has a driver's license at the time of the offense or at the time of the court's finding as provided in subsection A1 or A2 shall be ordered to surrender his driver's license, which shall be held in the physical custody of the court during any period of license denial.
  3. The court shall report any order issued under this section to the Department of Motor Vehicles, which shall preserve a record thereof. The report and the record shall include a statement as to whether the child was represented by or waived counsel or whether the order was issued pursuant to subsection A1 or A2. Notwithstanding the provisions of Article 12 (§ 16.1-299 et seq.) or the provisions of Title 46.2, this record shall be available only to all law-enforcement officers, attorneys for the Commonwealth and courts. No other record of the proceeding shall be forwarded to the Department of Motor Vehicles unless the proceeding results in an adjudication of guilt pursuant to subsection F.

    The Department of Motor Vehicles shall refuse to issue a driver's license to any child denied a driver's license until such time as is stipulated in the court order or until notification by the court of withdrawal of the order of denial under subsection E.

  4. If the finding as to the child involves a violation designated under clause (i), (ii), (iii) or (vi) of subsection A or a violation designated under subsection A2, the child may be referred to a certified alcohol safety action program in accordance with § 18.2-271.1 upon such terms and conditions as the court may set forth. If the finding as to such child involves a violation designated under clause (iii), (iv), (v), (vii) or (viii) of subsection A, such child may be referred to appropriate rehabilitative or educational services upon such terms and conditions as the court may set forth. The court, in its discretion and upon a demonstration of hardship, may authorize the use of a restricted permit to operate a motor vehicle by any child who has a driver's license at the time of the offense or at the time of the court's finding as provided in subsection A1 or A2 for any of the purposes set forth in subsection E of § 18.2-271.1 or for travel to and from school, except that no restricted license shall be issued for travel to and from home and school when school-provided transportation is available and no restricted license shall be issued if the finding as to such child involves a violation designated under clause (iii) or (iv) of subsection A, or if it involves a second or subsequent violation of any offense designated in subsection A, a second finding by the court of failure to comply with school attendance and meeting requirements as provided in subsection A1, or a second or subsequent finding by the court of a refusal to take a blood test as provided in subsection A2. The issuance of the restricted permit shall be set forth within the court order, a copy of which shall be provided to the child, and shall specifically enumerate the restrictions imposed and contain such information regarding the child as is reasonably necessary to identify him. The child may operate a motor vehicle under the court order in accordance with its terms. Any child who operates a motor vehicle in violation of any restrictions imposed pursuant to this section is guilty of a violation of § 46.2-301 .
  5. Upon petition made at least 90 days after issuance of the order, the court may review and withdraw any order of denial of a driver's license if for a first such offense or finding as provided in subsection A1 or A2. For a second or subsequent such offense or finding, the order may not be reviewed and withdrawn until one year after its issuance.
  6. If the finding as to such child involves a first violation designated under clause (vii) of subsection A, upon fulfillment of the terms and conditions prescribed by the court and after the child's driver's license has been restored, the court shall or, in the event the violation resulted in the injury or death of any person or if the finding involves a violation designated under clause (i), (ii), (v), or (vi) of subsection A, may discharge the child and dismiss the proceedings against him. Discharge and dismissal under these provisions shall be without an adjudication of guilt but a record of the proceeding shall be retained for the purpose of applying this section in subsequent proceedings. Failure of the child to fulfill such terms and conditions shall result in an adjudication of guilt. If the finding as to such child involves a violation designated under clause (iii) or (iv) of subsection A, the charge shall not be dismissed pursuant to this subsection but shall be disposed of pursuant to the provisions of this chapter or § 18.2-251 . If the finding as to such child involves a second violation under clause (v), (vi) or (vii) of subsection A, the charge shall not be dismissed pursuant to this subsection but shall be disposed of under § 16.1-278.8. (1991, cc. 534, 696; 1992, cc. 701, 736, 830; 1993, cc. 482, 866, 972; 1994, c. 338; 2000, c. 835; 2001, cc. 248, 266; 2002, cc. 519, 755; 2003, c. 118; 2005, c. 895; 2007, c. 731; 2010, cc. 522, 569, 570; 2017, c. 623; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 36 D, effective for the biennium ending June 30, 2022, provides: "The Executive Secretary of the Supreme Court of Virginia shall encourage training of Juvenile and Domestic Relations District Court judges regarding the options available for court-ordered services for families in truancy cases prior to the initiation of other remedies."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 29 ( § 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3, 19.2-392.1, 19.2-392.4, and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1, 19.2-392.2:2, and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2000 amendments. - The 2000 amendment by c. 835 added "truancy" in the section catchline; added subsection A1; inserted "or at the time of the court's finding as provided in subsection A1" in subsection B; added "or whether the order was issued pursuant to subsection A1 of this section" in the second sentence of subsection C; in subsection D, in the first sentence of the second paragraph, inserted "or at the time of the court's finding as provided in subsection A1" near the beginning, and added "or a second finding by the court of failure to comply with school attendance and meeting requirements as provided in subsection A1"; and in subsection E, added "or finding as provided in subsection A1" at the end of the first sentence and inserted "or finding" in the second sentence.

The 2001 amendments. - The 2001 amendments by cc. 248 and 266 are identical, and in subsection A, deleted "or" at the end of clause (vi), inserted "or (viii) a violation of § 18.2-83 ," and substituted "(i), (ii), (iii) or (viii)" for "(i), (ii) or (iii)"; and substituted "(v), (vii) or (viii)" for "(v) or (vii) in subsection D.

The 2002 amendments. - The 2002 amendment by ch. 519 added the second paragraph in subsection A1.

The 2002 amendment by c. 755, in subsection A, inserted "years and three months" following "age of sixteen," and substituted "the date he reaches the age of sixteen and three months" for "his sixteenth birthday" in the fourth and last sentences; and in subsection A1, inserted "years and three months" following "age of sixteen," and substituted "the date he reaches the age of sixteen and three months" for "his sixteenth birthday."

The 2003 amendments. - The 2003 amendment by c. 118 substituted "12" for "twelve," "13" for "thirteen," "16" for "sixteen," "17" for "seventeen," "18" for "eighteen," "30" for "thirty," and "90" for "ninety" throughout; deleted "(i), (ii)" following "clause" in the fifth sentence of subsection A; and in the first sentence of subsection F, deleted "(i), (ii)" following "clause," and inserted "or if the finding involves a violation designated under clause (i) or (ii) of subsection A."

The 2005 amendments. - The 2005 amendment by c. 895 inserted "or consumption" in subsection A; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 731 inserted "in addition to any other penalty that it may impose as provided by law for the offense," in clause (viii) in subsection A.

The 2010 amendments. - The 2010 amendment by c. 522 inserted "no restricted license shall be issued for travel to and from home and school when school-provided transportation is available and" in the second paragraph of subsection D.

The 2010 amendment by c. 569 substituted "and may enter a judgment of guilt or, without entering a judgment of guilt, may" for "without entering a judgment of guilt and shall," in the fifth sentence of subsection A; and in subsection F, substituted "clause (vii)" for "clause (v), (vi) or (vii)" and "clause (i), (ii), (v), or (vi)" for "clause (i) or (ii)."

The 2010 amendment by c. 570, in subsection A, inserted "first" in the fifth sentence; and in subsection F, inserted "first" in the first sentence and inserted the last sentence.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection A, deleted "blood or" preceding "breath test" in clause (ii); added subsection A2; in subsection C, substituted "A2" for "of this section"; in subsection D, inserted "or a violation designated under subsection A2" in the first paragraph, inserted "or A2" following "A1" and "or a second or subsequent finding by the court of a refusal to take a blood test as provided in subsection A2" and substituted "is" for "shall be" in the second paragraph; and in subsection E, inserted "or A2."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subsection A, in clauses (iii) and (iv), inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1 or"; in clause (iv), deleted "or a violation of § 18.2-250.1 " following "18.2-250"; and in the third-to-last sentence, deleted "of this section" at the end; deleted "of this chapter" following "Article 12 ( § 16.1-299 et seq.)" in subsection C; and made stylistic changes.

Law review. - For a book review, "Random Violence and the Transformation of the Juvenile Justice Debate," see 86 Va. L. Rev. 1095 (2000).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

OPINIONS OF THE ATTORNEY GENERAL

Despite the appearance of conflict between § 4.1-305 and this section, this section is the only statute applicable to juveniles: therefore, a juvenile court must dispose of charges of unlawful possession of alcohol by juveniles pursuant thereto. See opinion of Attorney General to The Honorable J. Dean Lewis, Judge, Fifteenth District Juvenile and Domestic Relations Court, 02-102 (10/29/02).

§ 16.1-278.10. Traffic infractions.

In cases involving a child who is charged with a traffic infraction, the court may impose only those penalties which are authorized to be imposed on adults for such infractions.

(1991, c. 534.)

Cross references. - As to restrictions on licenses issued to persons less than 18 years old, see § 46.2-334.01 .

CIRCUIT COURT OPINIONS

License suspension. - Court-imposed penalties for traffic infractions were penal in nature and served to deter and punish drivers who violated the rules of the road, while an administrative license suspension by the Commissioner was primarily remedial in nature and was a reflection of the legislature's concern for young drivers and the public safety. Thus, the juvenile's petition to have the court review the suspension of her operator's license was denied because there was no conflict between the permitted punishment that could be imposed by the court and the administrative action of the Commissioner. Commonwealth v. Dimuzio, 58 Va. Cir. 63, 2001 Va. Cir. LEXIS 391 (Loudoun County 2001).

Administrative suspension of juvenile's license did not conflict with juvenile court's action. - Where a juvenile motorist committed a traffic infraction, the decision of the juvenile and domestic relations court, in accordance with § 16.1-278.10, not to suspend the juvenile's operator's license did not conflict with the decision of the Commissioner of the Department of Motor Vehicles to suspend the juvenile's license pursuant to a separate legislative mandate, and was not manifestly unjust, as court-imposed penalties for traffic infractions were penal in nature and served to deter and punish drivers who violated the rules of the road, where, the administrative license suspension in issue was mainly remedial and reflected concern for young drivers and the public safety. Commonwealth v. Dimuzio, 58 Va. Cir. 63, 2001 Va. Cir. LEXIS 391 (Louisa County 2001).

§ 16.1-278.11. Mental illness and intellectual disability.

In cases involving a person who is involuntarily admitted because of a mental illness or is judicially certified as eligible for admission to a training center for persons with intellectual disability, disposition shall be in accordance with the provisions of Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. A child shall not be committed pursuant to §§ 16.1-278.2 through 16.1-278.8 or the provisions of Title 37.2 to a maximum security unit within any state hospital where adults determined to be criminally insane reside.

(1991, c. 534; 2005, c. 716; 2012, cc. 476, 507.)

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, rewrote the section.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "persons with intellectual disability" for "persons with mental retardation" and "Chapter 8 ( § 37.2-800 et seq.) of Title 37.2" for "Chapters 1 ( § 37.2-100 et seq.) and 8 ( § 37.2-800 et seq.) of Title 37.2" in the first sentence.

§ 16.1-278.12. When judicial consent in lieu of parental consent authorized.

In cases involving judicial consent to the matters set out in subsections C and D of § 16.1-241, the juvenile court or the circuit court providing consent may also make any appropriate order to protect the health and welfare of the child.

(1991, c. 534.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-278.13. Work permits; petitions for treatment, etc.

In cases involving judicial consent to apply for a work permit for a child, the juvenile court shall enter an order either granting, in whole or in part, consent to such application or withholding such consent as is appropriate to protect the health and welfare of the child.

In cases involving petitions filed by or on behalf of a child or such child's parent to obtain treatment, rehabilitation or other services required by law to be provided for such persons, the juvenile court or the circuit court may enter an order in accordance with § 16.1-278.

(1991, cc. 511, 534.)

Editor's note. - Acts 1991, c. 511 purported to amend § 16.1-279, which was repealed by Acts 1991, c. 534. At the direction of the Code Commission, the amendment by c. 511 has been incorporated into § 16.1-278.13 by substituting the present first paragraph for the former paragraph which related to the juvenile or circuit court granting a special work permit.

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-278.14. Criminal jurisdiction; protective orders; family offenses.

In cases involving the violation of any law, regulation or ordinance for the education, protection or care of children or involving offenses committed by one family or household member against another, the juvenile court or the circuit court may impose a penalty prescribed by applicable sections of the Code and may impose conditions and limitations upon the defendant to protect the health or safety of family or household members, including, but not limited to, a protective order as provided in § 16.1-279.1, treatment and counseling for the defendant and payment by the defendant for crisis shelter care for the complaining family or household member.

(1991, c. 534; 1992, c. 742; 1996, c. 866.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

CASE NOTES

Order authorized. - Where the evidence showed that husband grabbed, pushed, and elbowed his former wife during a verbal argument relating to visitation schedule, evidence was sufficient to show that husband committed an act of abuse against a family member, and the trial court was authorized to issue a protective order. Lord v. Lord, No. 0049-02-4, 2002 Va. App. LEXIS 362 (Ct. of Appeals June 25, 2002).

Issuing a protective order was not error where the wife's testimony about the events, her injuries, and her fear of her husband were found more credible. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Petition denied. - Denial of a wife's petition for a protective order against her husband was not error under circumstances in which the parties presented different versions of the extent and content of the argument which led to the petition, and the trial court heard testimony from both parties and announced it found the wife's testimony less than credible; the trial court disbelieved the wife's version of the events and repeatedly admonished the wife during the hearing for interrupting the court with her outbursts and erratic behavior. Blake v. Blake,, 2007 Va. App. LEXIS 306 (Aug. 14, 2007).

The section did not preclude the trial judge from sentencing defendant in the criminal matter after another judge had issued a protective order based on the same act of assault and battery. Goodwin v. Commonwealth, 23 Va. App. 475, 477 S.E.2d 781 (1996).

§ 16.1-278.15. Custody or visitation, child or spousal support generally.

  1. In cases involving the custody, visitation or support of a child pursuant to subdivision A 3 of § 16.1-241, the court may make any order of disposition to protect the welfare of the child and family as may be made by the circuit court. The parties to any petition where a child whose custody, visitation, or support is contested shall show proof that they have attended within the 12 months prior to their court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court. The court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause. The seminar or other program shall be a minimum of four hours in length and shall address the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. Once a party has completed one educational seminar or other like program, the required completion of additional programs shall be at the court's discretion. Parties under this section shall include natural or adoptive parents of the child, or any person with a legitimate interest as defined in § 20-124.1 . The fee charged a party for participation in such program shall be based on the party's ability to pay; however, no fee in excess of $50 may be charged. Whenever possible, before participating in mediation or alternative dispute resolution to address custody, visitation or support, each party shall have attended the educational seminar or other like program. The court may grant an exemption from attendance of such program for good cause shown or if there is no program reasonably available. Other than statements or admissions by a party admitting criminal activity or child abuse or neglect, no statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding. If support is ordered for a child, the order shall also provide that support will continue to be paid for a child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the parent seeking or receiving child support, until the child reaches the age of 19 or graduates from high school, whichever occurs first. The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support. Upon request of either party, the court may also order that support payments be made to a special needs trust or an ABLE savings trust account as defined in § 23.1-700 .
  2. In any case involving the custody or visitation of a child, the court may award custody upon petition to any party with a legitimate interest therein, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members. The term "legitimate interest" shall be broadly construed to accommodate the best interest of the child. The authority of the juvenile court to consider a petition involving the custody of a child shall not be proscribed or limited where the custody of the child has previously been awarded to a local board of social services.
  3. In any determination of support obligation under this section, the support obligation as it becomes due and unpaid creates a judgment by operation of law. Such judgment becomes a lien against real estate only when docketed in the county or city where such real estate is located. Nothing herein shall be construed to alter or amend the process of attachment of any lien on personal property.
  4. Orders entered prior to July 1, 2008, shall not be deemed void or voidable solely because the petition or motion that resulted in the order was completed, signed and filed by a nonattorney employee of the Department of Social Services.
  5. In cases involving charges for desertion, abandonment or failure to provide support by any person in violation of law, disposition shall be made in accordance with Chapter 5 (§ 20-61 et seq.) of Title 20.
  6. In cases involving a spouse who seeks spousal support after having separated from his spouse, the court may enter any appropriate order to protect the welfare of the spouse seeking support.
  7. In any case or proceeding involving the custody or visitation of a child, the court shall consider the best interest of the child, including the considerations for determining custody and visitation set forth in Chapter 6.1 (§ 20-124.1 et seq.) of Title 20. G1. In any case or proceeding involving the custody or visitation of a child, as to a parent, the court may, in its discretion, use the phrase "parenting time" to be synonymous with the term "visitation."
  8. In any proceeding before the court for custody or visitation of a child, the court may order a custody or a psychological evaluation of any parent, guardian, legal custodian or person standing in loco parentis to the child, if the court finds such evaluation would assist it in its determination. The court may enter such orders as it deems appropriate for the payment of the costs of the evaluation by the parties.
  9. When deemed appropriate by the court in any custody or visitation matter, the court may order drug testing of any parent, guardian, legal custodian or person standing in loco parentis to the child. The court may enter such orders as it deems appropriate for the payment of the costs of the testing by the parties.
  10. In any custody or visitation case or proceeding wherein an order prohibiting a party from picking the child up from school is entered pursuant to this section, the court shall order a party to such case or proceeding to provide a copy of such custody or visitation order to the school at which the child is enrolled within three business days of such party's receipt of such custody or visitation order.

    If a custody determination affects the school enrollment of the child subject to such custody order and prohibits a party from picking the child up from school, the court shall order a party to provide a copy of such custody order to the school at which the child will be enrolled within three business days of such party's receipt of such order. Such order directing a party to provide a copy of such custody or visitation order shall further require such party, upon any subsequent change in the child's school enrollment, to provide a copy of such custody or visitation order to the new school at which the child is subsequently enrolled within three business days of such enrollment.

    If the court determines that a party is unable to deliver the custody or visitation order to the school, such party shall provide the court with the name of the principal and address of the school, and the court shall cause the order to be mailed by first class mail to such school principal.

    Nothing in this section shall be construed to require any school staff to interpret or enforce the terms of such custody or visitation order.

    (1991, c. 534; 1992, cc. 585, 716, 742; 1994, c. 769; 1996, cc. 767, 879, 884; 2000, c. 586; 2002, c. 300; 2003, cc. 31, 45; 2004, c. 732; 2008, cc. 136, 845; 2015, cc. 653, 654; 2017, cc. 46, 95, 509.)

Cross references. - As to visitation of child placed in foster care, see § 63.2-912 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2000, c. 586, cl. 4 provides: "That the provisions of this act shall expire on July 1, 2003, unless reenacted by the General Assembly." The section is set out above without the changes by Acts 2000, c. 586.

Acts 2015, cc. 653 and 654, cl. 2 provides: "That an individual denied support under § 16.1-278.15, 20-60.3 , or 20-124.2 prior to July 1, 2015, who otherwise meets the requirements for support under this act, shall be eligible to petition the court for support under the provisions of this act. In such cases, liability shall be determined according to subsection B of § 20-108.1 , and the date of the new petition shall be the date that the proceeding was commenced for purposes of subsection B of § 20-108.1 ."

The 2002 amendments. - The 2002 amendment by c. 300 added subsections G and H.

The 2003 amendments. - The 2003 amendments by cc. 31 and 45 are identical, and in subsection A, rewrote the first paragraph, and in the second paragraph, substituted "18" for "eighteen," and twice substituted "19" for "nineteen."

The 2004 amendments. - The 2004 amendment by c. 732, in subsection A, substituted "is contested" for "is at issue for an original decision, whether contested or by agreement" in the second sentence and added the third sentence.

The 2008 amendments. - The 2008 amendments by cc. 136 and 845 are identical, and inserted subsection D and redesignated former subsections D through H as subsections E through I.

The 2015 amendments. - The 2015 amendments by cc. 653 and 654 are identical, and in the last sentence of subsection A, substituted "that support be paid or continue to be paid" for "the continuation of support," inserted "and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii)" and substituted "residing" for "resides."

The 2017 amendments. - The 2017 amendment by c. 46 inserted subsection G1.

The 2017 amendment by c. 95 added the last sentence in subsection A.

The 2017 amendment by c. 509 added subsection J.

Law review. - For article, "Considering Religion As a Factor in Foster Care in the Aftermath of Employment Division, Department of Human Resources v. Smith and the Religious Freedom Restoration Act," see 28 U. Rich. L. Rev. 53 (1994).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, § 1.

CASE NOTES

Best interests of the child. - Court of appeals erred when the court upheld a circuit court's decision awarding custody of a child who had been adjudicated as abused and neglected and removed the child from the child's parents, pursuant to §§ 16.1-251 and 16.1-252, giving custody to the child's grandparents, based on the court's conclusion that language in subsection A of § 16.1-241 and subsection B of § 16.1-278.15 subordinated Virginia statutes on foster care to Virginia's general custody statutes. The only interpretation of Titles 16.1 and 20 that gave effect to both statutory schemes and the intent of the Virginia General Assembly was that a trial court had to make the specific factual findings required by the foster care statutes in a custody case involving a child who was subject to a foster care plan. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 , 666 S.E.2d 361, 2008 Va. LEXIS 97 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Juvenile and domestic relations courts have original exclusive jurisdiction to determine custody matters. See opinion of Attorney General to The Honorable, Frank D. Hargrove, Sr., Member, House of Delegates, 07-015 (6/14/07).

While there is a presumption in favor of parents, a court may award custody to a nonparent when clear and convincing evidence shows that such determination is in the best interests of the child. See opinion of Attorney General to The Honorable, Frank D. Hargrove, Sr., Member, House of Delegates, 07-015 (6/14/07).

§ 16.1-278.16. Failure to comply with support obligation; payroll deduction; commitment.

In cases involving (i) the custody, visitation, or support of a child arising under subdivision A 3 of § 16.1-241, (ii) spousal support arising under subsection L of § 16.1-241, (iii) support, maintenance, care, and custody of a child or support and maintenance of a spouse transferred to the juvenile and domestic relations district court pursuant to § 20-79 , or (iv) motions to enforce administrative support orders entered pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2, when the court finds that the respondent (a) has failed to perform or comply with a court order concerning the custody and visitation of a child or a court or administrative order concerning the support and maintenance of a child or a court order concerning the support and maintenance of a spouse or (b) under existing circumstances, is under a duty to render support or additional support to a child or pay the support and maintenance of a spouse, the court may order a payroll deduction as provided in § 20-79.1 , or the giving of a recognizance as provided in § 20-114 . If the court finds that the respondent has failed to perform or comply with such order, and personal or substitute service has been obtained, the court may issue a civil show cause summons or a capias pursuant to this section. The court also may order the commitment of the person as provided in § 20-115 or the court may, in its discretion, impose a sentence of up to 12 months in jail, notwithstanding the provisions of §§ 16.1-69.24 and 18.2-458 , relating to punishment for contempt. If the court finds that an employer, who is under a payroll deduction order pursuant to § 20-79.1 , has failed to comply with such order after being given a reasonable opportunity to show cause why he failed to comply with such order, then the court may proceed to impose sanctions on the employer pursuant to subdivision B 9 of § 20-79 .3.

(1991, c. 534; 2003, cc. 929, 942; 2004, c. 219; 2020, c. 722.)

Cross references. - As to coordinated arrests of delinquent parents by Division of Child Support Enforcement in conjunction with state and local criminal justice agencies, see § 63.2-1940.1 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2020, c. 722, cl. 3 provides: "That nothing in this act shall be construed to define or redefine 'independent contractor' under the common law or for any purpose other than the withholding of income of an independent contractor for the payment of a support obligation."

The 2003 amendments. - The 2003 amendments by cc. 929 and 942 are identical, and inserted "upon petition" and "and personal or substitute service has been obtained, the court may issue a civil show cause summons or a capias pursuant to this section" in the second sentence.

The 2004 amendments. - The 2004 amendment by c. 219 deleted "upon petition" preceding "finds that the respondent" in the second sentence; and substituted "12" for "twelve" in the third sentence.

The 2020 amendments. - The 2020 amendment by c. 722 substituted "(a)" and "(b)" for the second instances of "(i)" and "(ii)" in the first sentence and "B 9" for "A 9" in the last sentence.

CASE NOTES

Imprisonment for civil contempt served consecutively. - Where an inmate provided no evidence that he was unable to make "good faith payments" towards child support arrearages while incarcerated, the inmate did not show that he would be unable to purge the inmate's contempt; thus, there was no error in the trial court's sentence of imprisonment for civil contempt to be served consecutively to the inmate's current imprisonment. Thompson v. Commonwealth ex rel. Hornes, No. 0390-01-2, 2003 Va. App. LEXIS 42 (Ct. of Appeals Feb. 4, 2003).

Appeal from contempt order dismissed. - Father's appeal from a contempt order for the father's failure to provide support, was properly dismissed, as the father failed to raise the issues contained in the opening brief, and § 16.1-278.16 authorized the trial court to punish for contempt anyone who failed to perform or comply with an order of support. Switzer v. Smith, No. 0779-02-3, 2002 Va. App. LEXIS 648 (Ct. of Appeals Oct. 29, 2002).

CIRCUIT COURT OPINIONS

Contempt proceedings held civil, allowing an appeal. - Because the purpose of a contempt hearing was remedial in nature, seeking compliance with the court order regarding child support payments, the contempt was not filed to punish a husband for his past transgressions, and no sanctions would be issued if he complied with the court-ordered payments, the proceeding was deemed civil in nature, allowing the wife to appeal from an order rendered therein and have a trial de novo. Zaret v. Zaret, 68 Va. Cir. 241, 2005 Va. Cir. LEXIS 236 (Norfolk July 8, 2005).

§ 16.1-278.17. Pendente lite support.

In cases involving (i) the custody, visitation or support of a child arising under subdivision A 3 of § 16.1-241, (ii) spousal support arising under subsection L of § 16.1-241, or (iii) support, maintenance, care, and custody of a child or support and maintenance of a spouse transferred to the juvenile and domestic relations district court pursuant to § 20-79 , the court may enter support orders in pendente lite proceedings, provided such proceedings are not ex parte.

(1991, c. 534.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Law review. - For casenote & comment, "A Privilege for 'Mommy Dearest'? Criticizing Virginia's Mental Health Records Privilege in Custody Disputes and the Court's Application in Schwartz v. Schwartz," see 13 Geo. Mason L. Rev. 1341 (2006).

§ 16.1-278.17:1. Formula for determination of pendente lite spousal support.

  1. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.
  2. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.
  3. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 26 percent of the payor spouse's monthly gross income and 58 percent of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 27 percent of the payor spouse's monthly gross income and 50 percent of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in § 20-108.2 .
  4. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances or the impact of any tax exemption and any credits resulting from such exemption that indicates the presumptive amount is inappropriate.
  5. The presumptive formula set forth in this section shall only apply to cases where the parties' combined monthly gross income does not exceed $10,000.

    (2007, c. 909; 2020, c. 651.)

Editor's note. - Acts 2020, c. 651, cl. 2 provides: "That the provisions of this act shall apply only to suits commenced on or after July 1, 2020, and that the provisions of this act shall not be construed to create a material change in circumstances for the purposes of modifying an existing support order."

The 2020 amendments. - The 2020 amendment by c. 651, in subsection C, substituted "26 percent" for "28%" in the first sentence and substituted "27 percent" for "30%," in the second sentence and deleted "as amended" at the end of the last sentence; in subsection D, inserted "or the impact of any tax exemption and any credits resulting from such exemption"; in subsection E, inserted "presumptive"; and made stylistic changes. For applicability, see Editor's note.

Law review. - For 2007 annual survey article, "Family and Juvenile Law," see 42 U. Rich. L. Rev. 417 (2007).

§ 16.1-278.18. Money judgments.

  1. Each juvenile and domestic relations district court may enter judgment for money in any amount for arrears of support and maintenance of any person in cases in which (i) the court has previously acquired personal jurisdiction over all necessary parties or a proceeding in which such jurisdiction has been obtained has been referred or transferred to the court by a circuit court or another juvenile and domestic relations district court and (ii) payment of such money has been previously ordered by the court, a circuit court, or another juvenile and domestic relations district court. Such judgment shall include reasonable attorneys' fees in cases where the total arrearage for support and maintenance, excluding interest, is equal to or greater than three months of support and maintenance. However, no judgment shall be entered unless the motion of a party, a probation officer, a local director of social services, or the court's own motion is duly served on the person against whom judgment is sought, in accordance with the applicable provisions of law relating to notice when proceedings are reopened. The motion shall contain a caption stating the name of the court, the title of the action, the names of all parties and the address of the party against whom judgment is sought, the amount of arrearage for which judgment is sought, and the date and time when such judgment will be sought. No support order may be retroactively modified. It may, however, be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party.
  2. The judge or clerk of the court shall, upon written request of the obligee under a judgment entered pursuant to this section, certify and deliver an abstract of that judgment to the obligee or Department of Social Services, who may deliver the abstract to the clerk of the circuit court having jurisdiction over appeals from juvenile and domestic relations district court. The clerk shall issue executions of the judgment.
  3. If the judgment amount does not exceed the jurisdictional limits of subdivision (1) of § 16.1-77, exclusive of interest and any attorneys' fees, an abstract of any such judgment entered pursuant to this section may be delivered to the clerk of the general district court of the same judicial district. The clerk shall issue executions upon the judgment.
  4. Arrearages accumulated prior to July 1, 1976, shall also be subject to the provisions of this section.

    (1991, c. 534; 2002, c. 747; 2004, c. 204; 2005, c. 880.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, substituted "local director of social services" for "superintendent of public welfare" in the second sentence of subsection A; and substituted "subdivision (1) of § 16.1-77" for " § 16.1-77 (1)" in subsection C.

The 2004 amendments. - The 2004 amendment by c. 204 inserted "in any court" in the last sentence of subsection A.

The 2005 amendments. - The 2005 amendment by c. 880 inserted the second sentence in subsection A.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

§ 16.1-278.19. Attorney fees.

In any matter properly before the court, the court may award attorney fees and costs on behalf of any party as the court deems appropriate based on the relative financial ability of the parties and any other relevant factors to attain equity.

(1991, c. 534; 2020, c. 185.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the enactment of § 16.1-278.20 by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Effect of amendment. - The 2020 amendment by c. 185 substituted "attorney fees" for "attorneys' fees" and added "and any other relevant factors to attain equity."

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 37; 14A M.J. Parent and Child, § 7.

CASE NOTES

Time limitations. - In the present case, where the appeal was not taken within ten days from the district court's final order, the circuit court was without jurisdiction, and the matter was not properly before the circuit court; thus the circuit court lacked authority to award attorney's fees. Fairfax County Dep't of Human Dev. v. Donald, 251 Va. 227 , 467 S.E.2d 803 (1996); Vokes v. Vokes, 28 Va. App. 349, 504 S.E.2d 865 (1998).

Ability to pay. - Trial court erred in imposing attorney's fees on a mother under subsection E of § 16.1-279.1 and § 16.1-278.19 as it failed to consider the mother's ability to pay in awarding the fees. Jaouni v. Said Samir Ibrahim Salah, Nos. 0168-11-4, 0378-11-4, 2012 Va. App. LEXIS 15 (Jan. 24, 2012).

Party represented by nonprofit legal organization. - Circuit court, which denied a mother's request to assess attorney fees against the father after his unsuccessful attempt to modify custody and visitation of the parties' children, erroneously determined that § 16.1-278.19 precludes an award of fees when a party is represented by a nonprofit legal organization that does not charge for its services. An award of fees would compensate the organization for the resources expended on behalf of the mother, which accorded with the plain meaning of the statute. Bahta v. Mohammed, No. 1625-18-4, 2019 Va. App. LEXIS 150 (June 25, 2019).

Attorney fees award authorized. - Trial court was authorized to award costs and attorney's fees to the mother in a case brought by a father seeking to terminate his parental obligations; additionally, the appellate court awarded the mother attorney's fees for an appeal of the dismissal of the father's petition. Cartwright v. Cartwright, 49 Va. App. 25, 635 S.E.2d 691, 2006 Va. App. LEXIS 473 (2006).

Circuit court erred in awarding a father attorney's fees in his child custody action because it denied the mother a de novo review on appeal and used the attorney's fees award as a punitive measure to punish the mother for pursuing her right to a trial de novo; the circuit court's action imposed upon the mother the burden of proving that the juvenile and domestic relations court judge had decided the parties' custody dispute wrongly and/or had weighed the evidence incorrectly, and the circuit court abdicated its responsibility to independently weigh the evidence, make its own credibility determinations, and decide in the exercise of its sound discretion in which parent custody would be vested so as to serve the best interest of the child. Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355, 2008 Va. App. LEXIS 139 (2008).

Since a divorce matter did not arise from the juvenile and domestic relations district court, § 16.1-278.19 did not govern the award of attorney's fees. Boisseau v. Boisseau,, 2008 Va. App. LEXIS 473 (Oct. 21, 2008).

In a child support modification case, an award of appellate attorney's fees to the mother was appropriate because the father only prevailed on one of essentially twenty-seven assignments of error. Barrett v. Commonwealth, Dep't of Soc. Servs., Div. of Child Support Enforcement ex rel. Barrett,, 2011 Va. App. LEXIS 245 (July 26, 2011).

Pursuant to § 16.1-278.19, a mother was entitled to an award of appellate attorney's fees because the father's appeal of an order finding him in contempt for failing to pay his child support obligation only added to the complexity, expense, and delay of the litigation, with no effect on the outcome. Barrett v. Commonwealth, No. 1381-10-3, 2011 Va. App. LEXIS 246 (July 26, 2011).

In a child support dispute, a circuit court did not abuse its discretion in ordering a father to pay $13,930.60 of the mother's attorney's fees and $15,000 of her expert fees because the father had a greater ability to pay than the mother, the case was long and intricate and required detailed testimony, and the father's less than desirable record keeping abilities caused the mother's expert to have to "reconstruct invoices and payments." James v. Owens, No. 1830-12-1, 2013 Va. App. LEXIS 203 (Ct. of Appeals July 16, 2013).

Mother was properly awarded attorney fees because (1) the mother's pro bono representation did not bar an award, and (2) a father's ability to pay the award was considered. Barrett v. Minor, No. 1250-16-3, 2018 Va. App. LEXIS 284 (Oct. 23, 2018), appeal dismissed, mot. denied, sanctions allowed, 843 S.E.2d 749, 2020 Va. LEXIS 63 (2020).

Appellate mandate directing an award of attorney fees was proper because (1) the award was statutorily authorized, and (2) a failure to raise the issue in a prior appeal barred relitigation under the law of the case doctrine. Barrett v. Minor, No. 1250-16-3, 2018 Va. App. LEXIS 284 (Oct. 23, 2018), appeal dismissed, mot. denied, sanctions allowed, 843 S.E.2d 749, 2020 Va. LEXIS 63 (2020).

Use of wrong standard meant attorney fees award reconsidered. - Court of appeals erred when the court denied a request for an award of attorney's fees under § 16.1-278.19 that was filed by grandparents who were sued by a social services division after they were awarded custody of their grandchild. The court erred as a matter of law when the court denied the grandparents' request for attorney's fees because the statute required the court to evaluate the request based on the relative financial abilities of the parties, but the court based the decision on a non-statutory standard, namely, that the grandparents were not entitled to attorney's fees because the division's claims were not unreasonable. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 , 666 S.E.2d 361, 2008 Va. LEXIS 97 (2008).

Denial of attorney fees appropriate. - On the husband's appeal from the parties' final decree of divorce, because the husband was not able to provide evidence of the amount of attorney fees he owed, and because he engaged in conduct that negatively impacted the trial proceedings, it was not unreasonable for the circuit court to deny his request for attorney fees. Leake v. Taylor, No. 0737-09-4, 2010 Va. App. LEXIS 126 (Mar. 30, 2010).

Legislature's use of the word "may" indicates that § 16.1-278.19 is non-compulsory, as the trial court may award attorney's fees and costs, and similarly, the phrase "on behalf of any party" clearly indicates that fees and costs must first be incurred by the party before the trial court may make the award; thus, § 16.1-278.19 is clearly designed to give the trial court authority to shift the burden of attorney's fees and costs from one party to another and does not set out a requirement that a guardian ad litem's fees must be divided among the parties based on their relative financial abilities. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

Circuit court did not abuse its discretion in declining to award fees to a mother because the trial court could not award attorney's fees to the mother given the opposing party was the department of social servies, a government agency protected by sovereign immunity. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Circuit court did not abuse its discretion in declining to award fees to a mother because she failed to preserve the issue; the mother did not file any motion before the circuit court and solely made a perfunctory reference to it during closing arguments. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Guardian ad litem fees. - Trial court did not err in dividing a guardian ad litem's fees equally between a mother and a father because nothing in Virginia jurisprudence indicated that allocating guardian ad litem costs equally amongst the parties was error. Anonymous C v. Anonymous B, No. 2232-09-2, 2011 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2011).

Sovereign immunity. - Trial court did not err in sustaining a special plea of sovereign immunity filed by a county department of social services in a father's action seeking attorney's fees pursuant to § 16.1-278.19 because the General Assembly did not waive the Department's sovereign immunity under §§ 17.1-600 and 17.1-629 , in suits in equity where a party sought an award of costs; section 17.1-600 speaks of the courts' "discretion" in equity, but Virginia courts did not have discretion to award attorney's fees in any case, whether legal or equitable, absent a specific grant of such authority, and because § 17.1-600 did not specifically allow the award of attorney's fees, the trial court could not award attorney's fees to the father, especially since the opposing party was the department, a government agency protected by sovereign immunity. Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

Trial court did not err in sustaining a special plea of sovereign immunity filed by a county department of social services in a father's action seeking attorney's fees because § 16.1-278.19 did not expressly and specifically waive the department's protection of sovereign immunity; the General Assembly did not specify that "any party," as stated in § 16.1-278.19, referred to the Commonwealth and its subdivisions. Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

§ 16.1-279.

Repealed by Acts 1991, c. 534.

Cross references. - For current provisions relating to court disposition of certain children, see §§ 16.1-278.2 through 16.1-278.19.

For service of process of motion to reduce support arrearages to judgment, see Rule 8:4, Juvenile and Domestic Relations District Court Rules.

§ 16.1-279.1. (Effective until January 1, 2022) Protective order in cases of family abuse.

  1. In cases of family abuse, including any case involving an incarcerated or recently incarcerated respondent against whom a preliminary protective order has been issued pursuant to § 16.1-253.1, the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the petitioner. A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
    1. Prohibiting acts of family abuse or criminal offenses that result in injury to person or property;
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
    3. Granting the petitioner possession of the residence occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property;
    4. Enjoining the respondent from terminating any necessary utility service to the residence to which the petitioner was granted possession pursuant to subdivision 3 or, where appropriate, ordering the respondent to restore utility services to that residence;
    5. Granting the petitioner and, where appropriate, any other family or household member of the petitioner, exclusive use and possession of a cellular telephone number or electronic device. The court may enjoin the respondent from terminating a cellular telephone number or electronic device before the expiration of the contract term with a third-party provider. The court may enjoin the respondent from using a cellular telephone or other electronic device to locate the petitioner;
    6. Granting the petitioner temporary possession or use of a motor vehicle owned by the petitioner alone or jointly owned by the parties to the exclusion of the respondent and enjoining the respondent from terminating any insurance, registration, or taxes on the motor vehicle and directing the respondent to maintain the insurance, registration, and taxes, as appropriate; however, no such grant of possession or use shall affect title to the vehicle;
    7. Requiring that the respondent provide suitable alternative housing for the petitioner and, if appropriate, any other family or household member and where appropriate, requiring the respondent to pay deposits to connect or restore necessary utility services in the alternative housing provided;
    8. Ordering the respondent to participate in treatment, counseling or other programs as the court deems appropriate;
    9. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500; and
    10. Any other relief necessary for the protection of the petitioner and family or household members of the petitioner, including a provision for temporary custody or visitation of a minor child. A1. If a protective order is issued pursuant to subsection A, the court may also issue a temporary child support order for the support of any children of the petitioner whom the respondent has a legal obligation to support. Such order shall terminate upon the determination of support pursuant to § 20-108.1 .
  2. The protective order may be issued for a specified period of time up to a maximum of two years. The protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Prior to the expiration of the protective order, a petitioner may file a written motion requesting a hearing to extend the order. Proceedings to extend a protective order shall be given precedence on the docket of the court. If the petitioner was a family or household member of the respondent at the time the initial protective order was issued, the court may extend the protective order for a period not longer than two years to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made. The extension of the protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued.
  3. A copy of the protective order shall be served on the respondent and provided to the petitioner as soon as possible. The court, including a circuit court if the circuit court issued the order, shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court and shall forthwith forward the attested copy of the protective order containing any such identifying information to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  4. Except as otherwise provided in § 16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court.
  5. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
  6. Any judgment, order or decree, whether permanent or temporary, issued by a court of appropriate jurisdiction in another state, the United States or any of its territories, possessions or Commonwealths, the District of Columbia or by any tribal court of appropriate jurisdiction for the purpose of preventing violent or threatening acts or harassment against or contact or communication with or physical proximity to another person, including any of the conditions specified in subsection A, shall be accorded full faith and credit and enforced in the Commonwealth as if it were an order of the Commonwealth, provided reasonable notice and opportunity to be heard were given by the issuing jurisdiction to the person against whom the order is sought to be enforced sufficient to protect such person's due process rights and consistent with federal law. A person entitled to protection under such a foreign order may file the order in any juvenile and domestic relations district court by filing with the court an attested or exemplified copy of the order. Upon such a filing, the clerk shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which shall, upon receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. Where practical, the court may transfer information electronically to the Virginia Criminal Information Network. Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
  7. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to dissolve or modify a protective order shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 .
  8. As used in this section:

    "Copy" includes a facsimile copy; and

    "Protective order" includes an initial, modified or extended protective order.

  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. No fee shall be charged for filing or serving any petition or order pursuant to this section.
  11. Upon issuance of a protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1984, c. 631; 1987, c. 497; 1992, c. 886; 1994, cc. 360, 521, 739, 907; 1996, cc. 866, 900, 945; 1997, c. 603; 1998, c. 684; 2000, cc. 34, 654; 2002, cc. 508, 810, 818; 2004, cc. 972, 980; 2006, c. 308; 2008, cc. 73, 246; 2009, cc. 343, 732; 2010, cc. 425, 468; 2011, cc. 445, 480; 2012, cc. 152, 261; 2014, cc. 318, 346, 613; 2016, c. 102; 2018, cc. 38, 652; 2020, c. 137.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 16.1-279.1.

Editor's note. - Acts 2012, cc. 152 and 261, cl. 2 provides: "That beginning July 1, 2013, any circuit court clerk who does not use the Statewide Case Management System operated and maintained by the Executive Secretary of the Supreme Court shall provide protective orders directly to the Virginia Criminal Information Network in an electronic format approved by the Department of State Police; and that until July 1, 2013, such clerks shall forthwith forward the protective order to the primary law-enforcement agency providing service and entry of protective orders for entry into the Virginia Criminal Information Network."

Acts 2014, cc. 318 and 613, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment, in subsection B, inserted the present second sentence, substituted "criminal" for "crime" in the present third sentence and added the present fourth sentence; in subsection E, in the first paragraph, substituted "criminal" for "crime" in the present next to last sentence and added the present last sentence; added the present last sentence in subsection F; and added subsection G.

The 2000 amendments. - The 2000 amendments by cc. 34 and 654 are identical, and inserted "owned by the petitioner alone or" in subdivision A 4.

The 2002 amendments. - The 2002 amendment by ch. 508, substituted "shall, upon receipt, enter" for "shall, on the date of receipt, enter" in the third sentence of subsections B and E; and added subsections H and I.

The 2002 amendments by cc. 810 and 818 are identical, and in subsection B, inserted "upon receipt" following "The clerk shall" and substituted "upon receipt, enter" for "on the date of receipt, enter" in the third sentence, and deleted "feasible and" preceding "practical" in the fourth sentence; and in subsection E, deleted "or family court" following "district court" in the second sentence, substituted "upon" for "on the date of" in the third sentence, and deleted "feasible and" preceding "practical" in the fourth sentence.

The 2004 amendments. - The 2004 amendments by cc. 972 and 980 are identical, and added subsection A1.

The 2006 amendments. - The 2006 amendment by c. 308 added subdivision A 4; redesignated former subdivisions A 4 through A 7 as subdivisions A 5 through A 8; and added the language beginning "and where appropriate" in subdivision A 6.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and rewrote subsection B; in subsection E, substituted "shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which" for "shall forward forthwith an attested copy of the order to the local police department or sheriff's office which" in the third sentence, and deleted "system" following "Virginia Criminal Information Network" in the third and fourth sentences; and added subsection J.

The 2009 amendments. - The 2009 amendment by c. 343 inserted "including any case involving an incarcerated or recently incarcerated respondent against whom a preliminary protective order has been issued pursuant to § 16.2-2531" in subsection A. The reference was changed to 16.1-253.1 at the direction of the Virginia Code Commission.

The 2009 amendment by c. 732, in subsection B, in the second sentence, substituted "11:59 p.m. on" for "the end of" and "specified or at 11:59 p.m. on the last day of the two-year period" for "identified for the two-year period and" and "specified" for "identified, it shall expire at the end of the two years following the date of issuance," in the fourth sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," deleted "electronically to the Virginia Criminal Information Network" preceding "and shall forthwith" and "and an addendum" preceding "containing any such," in the fourth sentence, deleted "and addendum" following "receipt of the order," in the fifth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection J, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2010 amendments. - The 2010 amendments by cc. 425 and 468 are nearly identical, and divided former subsection B into subsections B and C by inserting the C designation following the second sentence; redesignated former subsections C through I as subsections D through J; in subsection B, substituted "of time up to a maximum of" for "however, unless otherwise authorized by law, a protective order may not be issued under this section for a period longer than" at the end of the first sentence, and added the last five sentences; added the definition of "Protective order" in subsection H; and made stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and added "or criminal offenses that result in injury to person or property" in subdivision A 1.

The 2012 amendments. - The 2012 amendments by cc. 152 and 261 are identical, and in subsection C, inserted "including a circuit court if the circuit court issued the order" in the second sentence, and deleted the former fourth sentence; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendments by cc. 318 and 613 are identical, and in subdivision A 5 inserted "and enjoining the respondent from terminating any insurance, registration, or taxes on the motor vehicle and directing the respondent to maintain the insurance, registration, and taxes, as appropriate."

The 2014 amendment by c. 346 added subdivision A 8, redesignated former A 8 as A 9, and made related changes.

The 2016 amendments. - The 2016 amendment by c. 102 substituted "family or household member of the respondent" for "member of the respondent's family or household" in the fifth sentence of subsection B.

The 2018 amendments. - The 2018 amendment by c. 38 added subdivision A 5, and redesignated remaining subdivisions accordingly.

The 2018 amendment by c. 652 added subsection K.

The 2020 amendments. - The 2020 amendment by c. 137 added the last three sentences in subsection G.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

CASE NOTES

Evidence of stalking to support protective order. - Issuance of a protective order in a divorce action was upheld where the evidence showed that after the parties' separation the wife was stalked and harassed by the husband and was afraid for her personal safety to the extent that she saw a counselor, who diagnosed the wife as suffering from post-traumatic stress disorder. McBride v. McBride, No. 3258-03-4, 2004 Va. App. LEXIS 640 (Ct. of Appeals Dec. 28, 2004).

Because there was evidence of a father's previous physical abuse against a mother, his pursuit of the mother and child in a car chase, his contact with the child and the mother at the child's sporting events despite the court order prohibiting him from attending, and his assault of a family friend in a parking lot at night in the mother and child's presence, the father's actions in stalking the mother and the child placed both in a reasonable apprehension of serious bodily injury. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Evidence was sufficient to prove that in stalking a mother and a child, a father committed an act of abuse against a family member, and, therefore, the circuit court was authorized to issue an order to protect the mother and the child; the father intended to cause fear or knew or should have known that his conduct would cause fear for the mother and child because he pursued the mother and child in a car chase, and he knew the mother had reported that the child feared him. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Failure of proof. - Where wife, who sought a permanent protective order after receiving from her former husband a CD on which two songs containing threatening lyrics had been burned, described no reasonable fear of immediate, serious bodily harm, the evidence supported the trial court's finding that she did not prove an actual threat or that her former husband's conduct was abuse within the meaning of § 16.1-279.1. Martin v. Martin, No. 2740-01-2, 2002 Va. App. LEXIS 350 (Ct. of Appeals June 18, 2002).

Denial of a wife's petition for a protective order against her husband was not error under circumstances in which the parties presented different versions of the extent and content of the argument which led to the petition, and the trial court heard testimony from both parties and announced it found the wife's testimony less than credible; the trial court disbelieved the wife's version of the events and repeatedly admonished the wife during the hearing for interrupting the court with her outbursts and erratic behavior. Blake v. Blake,, 2007 Va. App. LEXIS 306 (Aug. 14, 2007).

In a mother's application for a protective order for her daughter, the trial court did not err in finding that child abuse was not proven as the father's witnesses amply corroborated the father's testimony that abuse did not occur, and the bruises on child were not so frequent nor were the injuries so grave that a pattern of abuse emerged as the only possible explanation. Jaouni v. Said Samir Ibrahim Salah, Nos. 0168-11-4, 0378-11-4, 2012 Va. App. LEXIS 15 (Jan. 24, 2012).

Sufficient evidence of family abuse. - In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to show that the mother committed an act of family abuse because she admitted that she locked her son - who had had heat-induced seizures in the past - in the backseat of a car with only one window slightly open and left him there alone for an extended period of time while she continued shopping. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

Reasonable apprehension of family abuse. - In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to prove that the daughter had a reasonable apprehension of facing the same form of family abuse as her brother because a child could reasonably expect to face treatment from her parent similar to that received by her twin sibling. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

Order authorized. - Where the evidence showed that husband grabbed, pushed, and elbowed his former wife during a verbal argument relating to visitation schedule, evidence was sufficient to show that husband committed an act of abuse against a family member, and the trial court was authorized to issue a protective order. Lord v. Lord, No. 0049-02-4, 2002 Va. App. LEXIS 362 (Ct. of Appeals June 25, 2002).

Grant of exclusive use and possession of the marital residence to the wife was affirmed even though the parties had a prenuptial agreement given the court's discretion under subsection B of § 16.1-279.1. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Trial court did not abuse its discretion in issuing the protective order for two years given the discretion provided in subsection B of § 16.1-279.1. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Issuing a protective order was not error where the wife's testimony about the events, her injuries, and her fear of her husband were found more credible. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Circuit court properly granted a two-year family abuse protective order because the decision of the juvenile and domestic relations district court denying the protective order was a final order for purposes of appeal where the statutory protective order language was expansive rather than limiting. Jacobs v. Wilcoxson, 71 Va. App. 521, 838 S.E.2d 63, 2020 Va. App. LEXIS 42 (Feb. 18, 2020).

Proceeding seeking the issuance of a protective order. - Plea in bar was not proper in proceedings seeking the issuance of a protective order because (1) a protective order was solely a creature of statute, (2) a plea in bar responded to a complaint, but a petition for a protective order was not a complaint, and (3) a protective order was not a cause of action. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Failure to serve order. - Since a father had actual notice of the protective order preventing him from having contact with his children, the trial court properly held that it remained in effect, even though he was not served with a permanent protective order by the juvenile and domestic relations district court as required by this section. Grant v. Quigley, No. 0999-14-4, 2015 Va. App. LEXIS 3 (Ct. of Appeals Jan. 13, 2015).

Failure to include child in protective order. - Trial court did not err when it failed to include the parties' child in a protective order that was issued by that court. While plenty of testimony was provided concerning the hostility of the mother towards the father, aside from a denied allegation concerning a threat to burn down the father's house, the father made no other allegation that was in the record that demonstrated hostility on the part of the mother towards the child since she was born. Armstrong v. Roadcap, No. 0141-18-3, 2018 Va. App. LEXIS 297 (Oct. 30, 2018).

Implicit findings in protective order. - Whether a finding that defendant represented a credible threat was explicit in the protective order's language or not, it was a necessary step in the state court's decision to issue the injunctive order under subdivision A 2 of § 16.1-279.1, and the district court, in connection with defendant's conviction under 18 U.S.C.S. § 922(g)(8), thus properly found that the injunction against defendant to refrain from committing further acts of abuse was necessarily based on a finding that the defendant represented a credible threat to the physical safety of his wife. United States v. Mahin, 668 F.3d 119, 2012 U.S. App. LEXIS 2083 (4th Cir. 2012).

Conviction for violating protective order reversed. - Because insufficient evidence showed that defendant had notice of the terms of a protective order entered against her, and the victim never testified that a judge verbally ordered defendant to have no further contact with him, defendant's conviction for disobeying the terms of said order, in violation of § 16.1-279.1, was reversed and the warrant was dismissed. Hsiu Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594, 2008 Va. App. LEXIS 187 (2008).

Sufficient evidence of contact. - Defendant was properly convicted of violating a preliminary protective order because the evidence was sufficient to establish that defendant made contact with the victim in violation of a protective order in that defendant's proximity to the victim's home while taking pictures posed a threat to the victim's mental and physical health and the victim's safety. Wyant v. Commonwealth, No. 0726-14-3, 2015 Va. App. LEXIS 104 (Mar. 31, 2015).

Sufficient evidence to support conviction. - Sufficient evidence was presented to support defendant's conviction for violation of a protective order under § 16.1-279.1 as to a first occurrence in which defendant telephoned the mother of his minor child and asked to speak to the child because although defendant denied making the call, credibility issues were for the finder of fact; the protective order had prohibited contact of any type. Elliott v. Commonwealth, 277 Va. 457 , 675 S.E.2d 178, 2009 Va. LEXIS 54 (2009).

Circumstantial evidence was sufficient to demonstrate that defendant was on the complaining party's property in violation of a protective order because (1) the complaining party received a phone call, which informed the party that defendant was released from jail; (2) about an hour later the complaining party, after hearing knocking at the bedroom window and front door, saw defendant walking away from the party's house; (3) the complaining party's friend and neighbor then heard knocking at the front door and saw defendant leave; and (4) a responding police officer then encountered defendant a block from the complaining party's house. Wright v. Commonwealth, No. 0003-13-2, 2014 Va. App. LEXIS 47 (Feb. 18, 2014).

Insufficient evidence to support conviction. - Insufficient evidence was presented to support defendant's conviction for violation of a protective order as to a second occurrence because the protective order was intended to safeguard the health and physical safety of the mother of defendant's minor child under subdivision A 2 of § 16.1-279.1 and defendant, although making himself openly visible to the mother from her residence, was parked a block away and thus posed no threat of harm to the mother; the evidence was insufficient to establish that defendant intended to visually communicate with the mother. Elliott v. Commonwealth, 277 Va. 457 , 675 S.E.2d 178, 2009 Va. LEXIS 54 (2009).

Settlement agreements. - In proceedings seeking the issuance of a protective order, it was error to sustain a plea in bar arguing a settlement agreement barred evidence of alleged abuse occurring before the agreement because the agreement did not affect the rights of the parties' children to a protective order, as the children were not parties to the agreement. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Reasonable reliance jury instruction. - Trial court erred in denying defendant's request for a reasonable reliance instruction because it improperly found that the juvenile and domestic relations district court judge could not be a government official since a protective order was entered in the juvenile and domestic relations district court and was subject to enforcement and modification there; the judge, who was making a statement about the status of the protective order, was therefore a source legally sufficient to implicate due process concerns. Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547, 2018 Va. App. LEXIS 135 (2018).

Trial court erred in denying defendant's request for a reasonable reliance instruction because defendant's undisputed evidence of an affirmative assurance was legally sufficient to support giving an instruction; in response to defendant's wife request for dismissal of the protective order, the juvenile and domestic relations district court judge responded that all matters were dropped, and defendant relied on that order and on the verbal dismissal of all matters. Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547, 2018 Va. App. LEXIS 135 (2018).

Attorney fees. - Trial court erred in imposing attorney's fees on a mother under subsection E of § 16.1-279.1 and § 16.1-278.19 as it failed to consider the mother's ability to pay in awarding the fees. Jaouni v. Said Samir Ibrahim Salah, Nos. 0168-11-4, 0378-11-4, 2012 Va. App. LEXIS 15 (Jan. 24, 2012).

As evidence in child custody disputes. - The existence of a protective order against one of the parties does not make contact between the parties a legal impossibility. Armstrong v. Armstrong, 71 Va. App. 97, 834 S.E.2d 473, 2019 Va. App. LEXIS 253 (Ct. of Appeals Nov. 12, 2019).

CIRCUIT COURT OPINIONS

Evidence of stalking to support protective order. - Petitioner was not entitled to reconsideration of the court's denial of a protective order against the respondent because the petitioner did not prove that, on more than one occasion, she was in reasonable fear of death, criminal sexual assault, or bodily injury, as required for stalking, the court did not limit the evidence it considered, and the instances recounted in the petitioner's motion were not sufficient to prove that the respondent intended to place her in reasonable fear of death, criminal sexual assault, or bodily injury or that he knew or reasonably should have known that he placed her in reasonable fear of death, criminal sexual assault, or bodily injury. Ewer v. Jayson,, 2021 Va. Cir. LEXIS 181 (Fairfax County Aug. 26, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10. See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 16.1-279.1. (Effective January 1, 2022) Protective order in cases of family abuse.

  1. In cases of family abuse, including any case involving an incarcerated or recently incarcerated respondent against whom a preliminary protective order has been issued pursuant to § 16.1-253.1, the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the petitioner. A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
    1. Prohibiting acts of family abuse or criminal offenses that result in injury to person or property;
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
    3. Granting the petitioner possession of the residence occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property;
    4. Enjoining the respondent from terminating any necessary utility service to the residence to which the petitioner was granted possession pursuant to subdivision 3 or, where appropriate, ordering the respondent to restore utility services to that residence;
    5. Granting the petitioner and, where appropriate, any other family or household member of the petitioner, exclusive use and possession of a cellular telephone number or electronic device. The court may enjoin the respondent from terminating a cellular telephone number or electronic device before the expiration of the contract term with a third-party provider. The court may enjoin the respondent from using a cellular telephone or other electronic device to locate the petitioner;
    6. Granting the petitioner temporary possession or use of a motor vehicle owned by the petitioner alone or jointly owned by the parties to the exclusion of the respondent and enjoining the respondent from terminating any insurance, registration, or taxes on the motor vehicle and directing the respondent to maintain the insurance, registration, and taxes, as appropriate; however, no such grant of possession or use shall affect title to the vehicle;
    7. Requiring that the respondent provide suitable alternative housing for the petitioner and, if appropriate, any other family or household member and where appropriate, requiring the respondent to pay deposits to connect or restore necessary utility services in the alternative housing provided;
    8. Ordering the respondent to participate in treatment, counseling or other programs as the court deems appropriate;
    9. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500; and
    10. Any other relief necessary for the protection of the petitioner and family or household members of the petitioner, including a provision for temporary custody or visitation of a minor child. A1. If a protective order is issued pursuant to subsection A, the court may also issue a temporary child support order for the support of any children of the petitioner whom the respondent has a legal obligation to support. Such order shall terminate upon the determination of support pursuant to § 20-108.1 .
  2. The protective order may be issued for a specified period of time up to a maximum of two years. The protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Prior to the expiration of the protective order, a petitioner may file a written motion requesting a hearing to extend the order. Proceedings to extend a protective order shall be given precedence on the docket of the court. If the petitioner was a family or household member of the respondent at the time the initial protective order was issued, the court may extend the protective order for a period not longer than two years to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made. The extension of the protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued.
  3. A copy of the protective order shall be served on the respondent and provided to the petitioner as soon as possible. The court, including a circuit court if the circuit court issued the order, shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court and shall forthwith forward the attested copy of the protective order containing any such identifying information to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  4. Except as otherwise provided in § 16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court.
  5. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
  6. Any judgment, order or decree, whether permanent or temporary, issued by a court of appropriate jurisdiction in another state, the United States or any of its territories, possessions or Commonwealths, the District of Columbia or by any tribal court of appropriate jurisdiction for the purpose of preventing violent or threatening acts or harassment against or contact or communication with or physical proximity to another person, including any of the conditions specified in subsection A, shall be accorded full faith and credit and enforced in the Commonwealth as if it were an order of the Commonwealth, provided reasonable notice and opportunity to be heard were given by the issuing jurisdiction to the person against whom the order is sought to be enforced sufficient to protect such person's due process rights and consistent with federal law. A person entitled to protection under such a foreign order may file the order in any juvenile and domestic relations district court by filing with the court an attested or exemplified copy of the order. Upon such a filing, the clerk shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which shall, upon receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. Where practical, the court may transfer information electronically to the Virginia Criminal Information Network. Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
  7. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to dissolve or modify a protective order shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 .
  8. As used in this section:

    "Copy" includes a facsimile copy; and

    "Protective order" includes an initial, modified or extended protective order.

  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. No fee shall be charged for filing or serving any petition or order pursuant to this section.
  11. Upon issuance of a protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.
  12. An appeal of a protective order issued pursuant to this section shall be given expedited review by the Court of Appeals.

    (1984, c. 631; 1987, c. 497; 1992, c. 886; 1994, cc. 360, 521, 739, 907; 1996, cc. 866, 900, 945; 1997, c. 603; 1998, c. 684; 2000, cc. 34, 654; 2002, cc. 508, 810, 818; 2004, cc. 972, 980; 2006, c. 308; 2008, cc. 73, 246; 2009, cc. 343, 732; 2010, cc. 425, 468; 2011, cc. 445, 480; 2012, cc. 152, 261; 2014, cc. 318, 346, 613; 2016, c. 102; 2018, cc. 38, 652; 2020, c. 137; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 16.1-279.1.

Editor's note. - Acts 2012, cc. 152 and 261, cl. 2 provides: "That beginning July 1, 2013, any circuit court clerk who does not use the Statewide Case Management System operated and maintained by the Executive Secretary of the Supreme Court shall provide protective orders directly to the Virginia Criminal Information Network in an electronic format approved by the Department of State Police; and that until July 1, 2013, such clerks shall forthwith forward the protective order to the primary law-enforcement agency providing service and entry of protective orders for entry into the Virginia Criminal Information Network."

Acts 2014, cc. 318 and 613, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 1998 amendment, in subsection B, inserted the present second sentence, substituted "criminal" for "crime" in the present third sentence and added the present fourth sentence; in subsection E, in the first paragraph, substituted "criminal" for "crime" in the present next to last sentence and added the present last sentence; added the present last sentence in subsection F; and added subsection G.

The 2000 amendments. - The 2000 amendments by cc. 34 and 654 are identical, and inserted "owned by the petitioner alone or" in subdivision A 4.

The 2002 amendments. - The 2002 amendment by ch. 508, substituted "shall, upon receipt, enter" for "shall, on the date of receipt, enter" in the third sentence of subsections B and E; and added subsections H and I.

The 2002 amendments by cc. 810 and 818 are identical, and in subsection B, inserted "upon receipt" following "The clerk shall" and substituted "upon receipt, enter" for "on the date of receipt, enter" in the third sentence, and deleted "feasible and" preceding "practical" in the fourth sentence; and in subsection E, deleted "or family court" following "district court" in the second sentence, substituted "upon" for "on the date of" in the third sentence, and deleted "feasible and" preceding "practical" in the fourth sentence.

The 2004 amendments. - The 2004 amendments by cc. 972 and 980 are identical, and added subsection A1.

The 2006 amendments. - The 2006 amendment by c. 308 added subdivision A 4; redesignated former subdivisions A 4 through A 7 as subdivisions A 5 through A 8; and added the language beginning "and where appropriate" in subdivision A 6.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and rewrote subsection B; in subsection E, substituted "shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which" for "shall forward forthwith an attested copy of the order to the local police department or sheriff's office which" in the third sentence, and deleted "system" following "Virginia Criminal Information Network" in the third and fourth sentences; and added subsection J.

The 2009 amendments. - The 2009 amendment by c. 343 inserted "including any case involving an incarcerated or recently incarcerated respondent against whom a preliminary protective order has been issued pursuant to § 16.2-2531" in subsection A. The reference was changed to 16.1-253.1 at the direction of the Virginia Code Commission.

The 2009 amendment by c. 732, in subsection B, in the second sentence, substituted "11:59 p.m. on" for "the end of" and "specified or at 11:59 p.m. on the last day of the two-year period" for "identified for the two-year period and" and "specified" for "identified, it shall expire at the end of the two years following the date of issuance," in the fourth sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," deleted "electronically to the Virginia Criminal Information Network" preceding "and shall forthwith" and "and an addendum" preceding "containing any such," in the fourth sentence, deleted "and addendum" following "receipt of the order," in the fifth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection J, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2010 amendments. - The 2010 amendments by cc. 425 and 468 are nearly identical, and divided former subsection B into subsections B and C by inserting the C designation following the second sentence; redesignated former subsections C through I as subsections D through J; in subsection B, substituted "of time up to a maximum of" for "however, unless otherwise authorized by law, a protective order may not be issued under this section for a period longer than" at the end of the first sentence, and added the last five sentences; added the definition of "Protective order" in subsection H; and made stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and added "or criminal offenses that result in injury to person or property" in subdivision A 1.

The 2012 amendments. - The 2012 amendments by cc. 152 and 261 are identical, and in subsection C, inserted "including a circuit court if the circuit court issued the order" in the second sentence, and deleted the former fourth sentence; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendments by cc. 318 and 613 are identical, and in subdivision A 5 inserted "and enjoining the respondent from terminating any insurance, registration, or taxes on the motor vehicle and directing the respondent to maintain the insurance, registration, and taxes, as appropriate."

The 2014 amendment by c. 346 added subdivision A 8, redesignated former A 8 as A 9, and made related changes.

The 2016 amendments. - The 2016 amendment by c. 102 substituted "family or household member of the respondent" for "member of the respondent's family or household" in the fifth sentence of subsection B.

The 2018 amendments. - The 2018 amendment by c. 38 added subdivision A 5, and redesignated remaining subdivisions accordingly.

The 2018 amendment by c. 652 added subsection K.

The 2020 amendments. - The 2020 amendment by c. 137 added the last three sentences in subsection G.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, added subsection L.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

CASE NOTES

Evidence of stalking to support protective order. - Issuance of a protective order in a divorce action was upheld where the evidence showed that after the parties' separation the wife was stalked and harassed by the husband and was afraid for her personal safety to the extent that she saw a counselor, who diagnosed the wife as suffering from post-traumatic stress disorder. McBride v. McBride, No. 3258-03-4, 2004 Va. App. LEXIS 640 (Ct. of Appeals Dec. 28, 2004).

Failure of proof. - Where wife, who sought a permanent protective order after receiving from her former husband a CD on which two songs containing threatening lyrics had been burned, described no reasonable fear of immediate, serious bodily harm, the evidence supported the trial court's finding that she did not prove an actual threat or that her former husband's conduct was abuse within the meaning of § 16.1-279.1. Martin v. Martin, No. 2740-01-2, 2002 Va. App. LEXIS 350 (Ct. of Appeals June 18, 2002).

Denial of a wife's petition for a protective order against her husband was not error under circumstances in which the parties presented different versions of the extent and content of the argument which led to the petition, and the trial court heard testimony from both parties and announced it found the wife's testimony less than credible; the trial court disbelieved the wife's version of the events and repeatedly admonished the wife during the hearing for interrupting the court with her outbursts and erratic behavior. Blake v. Blake,, 2007 Va. App. LEXIS 306 (Aug. 14, 2007).

In a mother's application for a protective order for her daughter, the trial court did not err in finding that child abuse was not proven as the father's witnesses amply corroborated the father's testimony that abuse did not occur, and the bruises on child were not so frequent nor were the injuries so grave that a pattern of abuse emerged as the only possible explanation. Jaouni v. Said Samir Ibrahim Salah, Nos. 0168-11-4, 0378-11-4, 2012 Va. App. LEXIS 15 (Jan. 24, 2012).

Sufficient evidence of family abuse. - In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to show that the mother committed an act of family abuse because she admitted that she locked her son - who had had heat-induced seizures in the past - in the backseat of a car with only one window slightly open and left him there alone for an extended period of time while she continued shopping. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

Reasonable apprehension of family abuse. - In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the evidence was sufficient to prove that the daughter had a reasonable apprehension of facing the same form of family abuse as her brother because a child could reasonably expect to face treatment from her parent similar to that received by her twin sibling. Walker v. Pierce, No. 0452-02-2, 2020 Va. App. LEXIS 297 (Dec. 8, 2020).

Order authorized. - Where the evidence showed that husband grabbed, pushed, and elbowed his former wife during a verbal argument relating to visitation schedule, evidence was sufficient to show that husband committed an act of abuse against a family member, and the trial court was authorized to issue a protective order. Lord v. Lord, No. 0049-02-4, 2002 Va. App. LEXIS 362 (Ct. of Appeals June 25, 2002).

Grant of exclusive use and possession of the marital residence to the wife was affirmed even though the parties had a prenuptial agreement given the court's discretion under subsection B of § 16.1-279.1. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Trial court did not abuse its discretion in issuing the protective order for two years given the discretion provided in subsection B of § 16.1-279.1. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Issuing a protective order was not error where the wife's testimony about the events, her injuries, and her fear of her husband were found more credible. Ward v. Baig-Ward, No. 0708-17-4, 2017 Va. App. LEXIS 328 (Dec. 19, 2017).

Circuit court properly granted a two-year family abuse protective order because the decision of the juvenile and domestic relations district court denying the protective order was a final order for purposes of appeal where the statutory protective order language was expansive rather than limiting. Jacobs v. Wilcoxson, 71 Va. App. 521, 838 S.E.2d 63, 2020 Va. App. LEXIS 42 (Feb. 18, 2020).

Proceeding seeking the issuance of a protective order. - Plea in bar was not proper in proceedings seeking the issuance of a protective order because (1) a protective order was solely a creature of statute, (2) a plea in bar responded to a complaint, but a petition for a protective order was not a complaint, and (3) a protective order was not a cause of action. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Failure to serve order. - Since a father had actual notice of the protective order preventing him from having contact with his children, the trial court properly held that it remained in effect, even though he was not served with a permanent protective order by the juvenile and domestic relations district court as required by this section. Grant v. Quigley, No. 0999-14-4, 2015 Va. App. LEXIS 3 (Ct. of Appeals Jan. 13, 2015).

Failure to include child in protective order. - Trial court did not err when it failed to include the parties' child in a protective order that was issued by that court. While plenty of testimony was provided concerning the hostility of the mother towards the father, aside from a denied allegation concerning a threat to burn down the father's house, the father made no other allegation that was in the record that demonstrated hostility on the part of the mother towards the child since she was born. Armstrong v. Roadcap, No. 0141-18-3, 2018 Va. App. LEXIS 297 (Oct. 30, 2018).

Implicit findings in protective order. - Whether a finding that defendant represented a credible threat was explicit in the protective order's language or not, it was a necessary step in the state court's decision to issue the injunctive order under subdivision A 2 of § 16.1-279.1, and the district court, in connection with defendant's conviction under 18 U.S.C.S. § 922(g)(8), thus properly found that the injunction against defendant to refrain from committing further acts of abuse was necessarily based on a finding that the defendant represented a credible threat to the physical safety of his wife. United States v. Mahin, 668 F.3d 119, 2012 U.S. App. LEXIS 2083 (4th Cir. 2012).

Conviction for violating protective order reversed. - Because insufficient evidence showed that defendant had notice of the terms of a protective order entered against her, and the victim never testified that a judge verbally ordered defendant to have no further contact with him, defendant's conviction for disobeying the terms of said order, in violation of § 16.1-279.1, was reversed and the warrant was dismissed. Hsiu Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594, 2008 Va. App. LEXIS 187 (2008).

Sufficient evidence of contact. - Defendant was properly convicted of violating a preliminary protective order because the evidence was sufficient to establish that defendant made contact with the victim in violation of a protective order in that defendant's proximity to the victim's home while taking pictures posed a threat to the victim's mental and physical health and the victim's safety. Wyant v. Commonwealth, No. 0726-14-3, 2015 Va. App. LEXIS 104 (Mar. 31, 2015).

Sufficient evidence to support conviction. - Sufficient evidence was presented to support defendant's conviction for violation of a protective order under § 16.1-279.1 as to a first occurrence in which defendant telephoned the mother of his minor child and asked to speak to the child because although defendant denied making the call, credibility issues were for the finder of fact; the protective order had prohibited contact of any type. Elliott v. Commonwealth, 277 Va. 457 , 675 S.E.2d 178, 2009 Va. LEXIS 54 (2009).

Circumstantial evidence was sufficient to demonstrate that defendant was on the complaining party's property in violation of a protective order because (1) the complaining party received a phone call, which informed the party that defendant was released from jail; (2) about an hour later the complaining party, after hearing knocking at the bedroom window and front door, saw defendant walking away from the party's house; (3) the complaining party's friend and neighbor then heard knocking at the front door and saw defendant leave; and (4) a responding police officer then encountered defendant a block from the complaining party's house. Wright v. Commonwealth, No. 0003-13-2, 2014 Va. App. LEXIS 47 (Feb. 18, 2014).

Insufficient evidence to support conviction. - Insufficient evidence was presented to support defendant's conviction for violation of a protective order as to a second occurrence because the protective order was intended to safeguard the health and physical safety of the mother of defendant's minor child under subdivision A 2 of § 16.1-279.1 and defendant, although making himself openly visible to the mother from her residence, was parked a block away and thus posed no threat of harm to the mother; the evidence was insufficient to establish that defendant intended to visually communicate with the mother. Elliott v. Commonwealth, 277 Va. 457 , 675 S.E.2d 178, 2009 Va. LEXIS 54 (2009).

Settlement agreements. - In proceedings seeking the issuance of a protective order, it was error to sustain a plea in bar arguing a settlement agreement barred evidence of alleged abuse occurring before the agreement because the agreement did not affect the rights of the parties' children to a protective order, as the children were not parties to the agreement. Baldwin v. Baldwin, No. 0310-19-4, 2019 Va. App. LEXIS 290 (Dec. 10, 2019).

Reasonable reliance jury instruction. - Trial court erred in denying defendant's request for a reasonable reliance instruction because it improperly found that the juvenile and domestic relations district court judge could not be a government official since a protective order was entered in the juvenile and domestic relations district court and was subject to enforcement and modification there; the judge, who was making a statement about the status of the protective order, was therefore a source legally sufficient to implicate due process concerns. Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547, 2018 Va. App. LEXIS 135 (2018).

Trial court erred in denying defendant's request for a reasonable reliance instruction because defendant's undisputed evidence of an affirmative assurance was legally sufficient to support giving an instruction; in response to defendant's wife request for dismissal of the protective order, the juvenile and domestic relations district court judge responded that all matters were dropped, and defendant relied on that order and on the verbal dismissal of all matters. Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547, 2018 Va. App. LEXIS 135 (2018).

Attorney fees. - Trial court erred in imposing attorney's fees on a mother under subsection E of § 16.1-279.1 and § 16.1-278.19 as it failed to consider the mother's ability to pay in awarding the fees. Jaouni v. Said Samir Ibrahim Salah, Nos. 0168-11-4, 0378-11-4, 2012 Va. App. LEXIS 15 (Jan. 24, 2012).

As evidence in child custody disputes. - The existence of a protective order against one of the parties does not make contact between the parties a legal impossibility. Armstrong v. Armstrong, 71 Va. App. 97, 834 S.E.2d 473, 2019 Va. App. LEXIS 253 (Ct. of Appeals Nov. 12, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10. See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 16.1-280. Commitment of juveniles with mental illness or intellectual disability.

When any juvenile court has found a juvenile to be in need of services or delinquent pursuant to the provisions of this law and reasonably believes such juvenile has mental illness or intellectual disability, the court may commit him to an appropriate hospital or order mandatory outpatient treatment in accordance with the provisions of Article 16 (§ 16.1-335 et seq.) or admit him to a training center in accordance with the provisions of § 37.2-806 for observation as to his mental condition. No juvenile shall be committed pursuant to this section or Article 16 (§ 16.1-335 et seq.) to a maximum security unit within any state hospital where adults determined to be criminally insane reside. However, the Commissioner of Behavioral Health and Developmental Services may place a juvenile who has been certified to the circuit court for trial as an adult pursuant to § 16.1-269.6 or 16.1-270 or who has been convicted as an adult of a felony in the circuit court in a unit appropriate for the care and treatment of persons under a criminal charge when, in his discretion, such placement is necessary to protect the security or safety of other patients, staff, or the public. The Commissioner shall notify the committing court of any placement in such unit. The committing court shall review the placement at 30-day intervals.

(Code 1950, § 16.1-178.2; 1960, c. 103; 1974, cc. 44, 45; 1977, c. 559; 1978, c. 739; 1981, c. 487; 1988, c. 826; 1990, c. 975; 1994, cc. 859, 949; 2009, cc. 813, 840; 2010, cc. 778, 825; 2012, cc. 476, 507.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "has mental illness or mental retardation" for "is mentally ill or mentally retarded" in the first sentence; and in the third sentence, substituted "Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services" and deleted " § " preceding "16.1-270."

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and inserted "or order mandatory outpatient treatment" and substituted "Article 16 ( § 16.1-335 et seq.) of this chapter" for " §§ 16.1-338 through 16.1-345" twice.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "mental illness or intellectual disability" for "mental illness or mental retardation" in the first sentence, and made minor stylistic changes throughout the section.

Michie's Jurisprudence. - For related discussion, see 10A M.J. Insane & Other Incompetent Persons, § 4.

CASE NOTES

Insanity relevant to disposition after juvenile found delinquent. - Although an insanity defense may not be raised in juvenile delinquency proceedings, the general assembly elected to make a juvenile's mental illness or insanity a factor to be considered during disposition after the juvenile has been adjudicated delinquent. Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304, 2000 Va. LEXIS 131 (2000).

§ 16.1-281. Foster care plan.

  1. In any case in which (i) a local board of social services places a child through an agreement with the parents or guardians where legal custody remains with the parents or guardian, or (ii) legal custody of a child is given to a local board of social services or a child welfare agency, the local department of social services or child welfare agency shall prepare a foster care plan for such child, as described hereinafter. The individual family service plan developed by the family assessment and planning team pursuant to § 2.2-5208 may be accepted by the court as the foster care plan if it meets the requirements of this section. The representatives of such department or agency shall involve in the development of the plan the child's parent(s), except when parental rights have been terminated or the local department of social services or child welfare agency has made diligent efforts to locate the parent(s) and such parent(s) cannot be located, relatives and fictive kin who are interested in the child's welfare, and any other person or persons standing in loco parentis at the time the board or child welfare agency obtained custody or the board placed the child. The representatives of such department or agency shall involve a child who is 12 years of age or older in the development of the plan and, at the option of such child, up to two members of the case planning team who are chosen by the child and who are not a foster parent of, or caseworker for, the child. A child under 12 years of age may be involved in the development of the plan if such involvement is consistent with the best interests of the child. In cases where either the parent(s) or child is not involved in the development of the plan, the department or agency shall include in the plan a full description of the reasons therefor. The department or child welfare agency shall file the plan with the juvenile and domestic relations district court within 45 days following the transfer of custody or the board's placement of the child unless the court, for good cause shown, allows an extension of time, which shall not exceed an additional 60 days. However, a foster care plan shall be filed in accordance with the provisions of § 16.1-277.01 with a petition for approval of an entrustment agreement. A foster care plan need not be prepared if the child is returned to his prior family or placed in an adoptive home within 45 days following transfer of custody to the board or agency or the board's placement of the child.
  2. The foster care plan shall describe in writing (i) the programs, care, services and other support which will be offered to the child and his parents and other prior custodians; (ii) the participation and conduct which will be sought from the child's parents and other prior custodians; (iii) the visitation and other contacts which will be permitted between the child and his parents and other prior custodians, and between the child and his siblings; (iv) the nature of the placement or placements which will be provided for the child; (v) for school-age children, the school placement of the child; (vi) for children 14 years of age and older, the child's needs and goals in the areas of counseling, education, housing, employment, and money management skills development, along with specific independent living services that will be provided to the child to help him reach these goals; and (vii) for children 14 years and older, an explanation of the child's rights with respect to education, health, visitation, court participation, and the right to stay safe and avoid exploitation. The foster care plan shall include all documentation specified in 42 U.S.C. § 675(5)(l) and § 63.2-905.3 . If the child in foster care is placed in a qualified residential treatment program as defined in § 16.1-228, the foster care plan shall also include the report and documentation set forth in subsection A of § 63.2-906.1 . If the child in foster care is pregnant or is the parent of a child, the foster care plan shall also include (a) a list of the services and programs to be provided to or on behalf of the child to ensure parental readiness or capability and (b) a description of the foster care prevention strategy for any child born to the child in foster care. In cases in which a foster care plan approved prior to July 1, 2011, identifies independent living as the goal for the child, and in cases involving children admitted to the United States as refugees or asylees who are 16 years of age or older and for whom the goal is independent living, the plan shall also describe the programs and services which will help the child prepare for the transition from foster care to independent living. If consistent with the child's health and safety, the plan shall be designed to support reasonable efforts which lead to the return of the child to his parents or other prior custodians within the shortest practicable time which shall be specified in the plan. The child's health and safety shall be the paramount concern of the court and the agency throughout the placement, case planning, service provision and review process. For a child 14 years of age and older, the plan shall include a signed acknowledgment by the child that the child has received a copy of the plan and that the rights contained therein have been explained to the child in an age-appropriate manner. If the department or child welfare agency concludes that it is not reasonably likely that the child can be returned to his prior family within a practicable time, consistent with the best interests of the child, the department, child welfare agency or team shall (1) include a full description of the reasons for this conclusion; (2) provide information on the opportunities for placing the child with a relative or in an adoptive home; (3) design the plan to lead to the child's successful placement with a relative or fictive kin for the purpose of establishing eligibility for the Federal-Funded Kinship Guardianship Assistance program established pursuant to § 63.2-1305 or the State-Funded Kinship Guardianship Assistance program established pursuant to § 63.2-1306 or in an adoptive home within the shortest practicable time; and (4) if neither of such placements is feasible, explain why permanent foster care is the plan for the child or independent living is the plan for the child in cases involving children admitted to the United States as refugees or asylees who are 16 years of age or older and for whom the goal is independent living. The local board or other child welfare agency having custody of the child shall not be required by the court to make reasonable efforts to reunite the child with a parent if the court finds that (A) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (B) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred or the other parent of the child; (C) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (D) based on clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances which would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283. As used in this section: "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect: (i) evinces a wanton or depraved indifference to human life, or (ii) has resulted in the death of such a child or in serious bodily injury to such a child. "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk. "Independent living" has the meaning set forth in § 63.2-100 . "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty. "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once, but otherwise meets the definition of "aggravated circumstances." Within 30 days of making a determination that reasonable efforts to reunite the child with the parents are not required, the court shall hold a permanency planning hearing pursuant to § 16.1-282.1.
  3. A copy of the entire foster care plan shall be sent by the court to the child, if he is 12 years of age or older; the guardian ad litem for the child, the attorney for the child's parents or for any other person standing in loco parentis at the time the board or child welfare agency obtained custody or the board placed the child, to the parents or other person standing in loco parentis, and such other persons as appear to the court to have a proper interest in the plan. However, a copy of the plan shall not be sent to a parent whose parental rights regarding the child have been terminated. A copy of the plan shall be sent by the court to the foster parents. A hearing shall be held for the purpose of reviewing and approving the foster care plan. The hearing shall be held within 60 days of (i) the child's initial foster care placement, if the child was placed through an agreement between the parents or guardians and the local department of social services or a child welfare agency; (ii) the original preliminary removal order hearing, if the child was placed in foster care pursuant to § 16.1-252; (iii) the hearing on the petition for relief of custody, if the child was placed in foster care pursuant to § 16.1-277.02; or (iv) the dispositional hearing at which the child was placed in foster care and an order was entered pursuant to § 16.1-278.2, 16.1-278.3, 16.1-278.4, 16.1-278.5, 16.1-278.6, or 16.1-278.8. However, the hearing shall be held in accordance with the provisions of § 16.1-277.01 with a petition for approval of an entrustment agreement. If the judge makes any revision in any part of the foster care plan, a copy of the changes shall be sent by the court to all persons who received a copy of the original of that part of the plan.

    C1. Any order transferring custody of the child to a relative other than the child's prior family shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a relative should further provide for, as appropriate, any terms or conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.

    C2. Any order entered at the conclusion of the hearing that has the effect of achieving a permanent goal for the child by terminating residual parental rights pursuant to § 16.1-277.01, 16.1-277.02, 16.1-278.3, or 16.1-283; by placing the child in permanent foster care pursuant to clause (iv) of subsection A of § 16.1-282.1; or, in cases in which independent living was identified as the goal for a child in a foster care plan approved prior to July 1, 2011, or in which a child has been admitted to the United States as a refugee or asylee and is over 16 years of age and independent living has been identified as the permanency goal for the child, by directing the board or agency to provide the child with services to achieve independent living status, if the child has attained the age of 16 years, pursuant to clause (v) of subsection A of § 16.1-282.1 shall state whether reasonable efforts have been made to place the child in a timely manner in accordance with the foster care plan and to complete the steps necessary to finalize the permanent placement of the child.

  4. The court in which the foster care plan is filed shall be notified immediately if the child is returned to his parents or other persons standing in loco parentis at the time the board or agency obtained custody or the board placed the child.
    1. In cases in which a child is placed by the local board of social services or a licensed child-placing agency in a qualified residential treatment program as defined in § 16.1-228, a hearing shall be held within 60 days of such placement. Prior to such hearing, the qualified residential treatment program shall file with the court the assessment report prepared pursuant to clause (viii) of the definition of qualified residential treatment program set forth in § 16.1-228. The court shall (i) consider the assessment report prepared by a qualified individual pursuant to clause (viii) of the definition of qualified residential treatment program set forth in § 16.1-228 and submitted pursuant to this subsection; (ii) consider the report and documentation required under subsection A of § 63.2-906.1 and filed with the foster care or permanency plan; (iii) determine whether the needs of the child can be met through placement in a foster home or, if not, whether placement in the qualified residential treatment program would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short-term and long-term goals established for the child in his foster care or permanency plan; and (iv) approve or deny the placement of the child in the qualified residential treatment program. The hearing required by this subsection may be held in conjunction with a dispositional hearing held pursuant to subsection C, a foster care review hearing held pursuant to § 16.1-282, a permanency planning hearing held pursuant to § 16.1-282.1, or an annual foster care review hearing held pursuant to § 16.1-282.2, provided that such hearing has already been scheduled by the court and is held within 60 days of the child's placement in the qualified residential treatment program. E. 1.  In cases in which a child is placed by the local board of social services or a licensed child-placing agency in a qualified residential treatment program as defined in § 16.1-228, a hearing shall be held within 60 days of such placement. Prior to such hearing, the qualified residential treatment program shall file with the court the assessment report prepared pursuant to clause (viii) of the definition of qualified residential treatment program set forth in § 16.1-228. The court shall (i) consider the assessment report prepared by a qualified individual pursuant to clause (viii) of the definition of qualified residential treatment program set forth in § 16.1-228 and submitted pursuant to this subsection; (ii) consider the report and documentation required under subsection A of § 63.2-906.1 and filed with the foster care or permanency plan; (iii) determine whether the needs of the child can be met through placement in a foster home or, if not, whether placement in the qualified residential treatment program would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short-term and long-term goals established for the child in his foster care or permanency plan; and (iv) approve or deny the placement of the child in the qualified residential treatment program. The hearing required by this subsection may be held in conjunction with a dispositional hearing held pursuant to subsection C, a foster care review hearing held pursuant to § 16.1-282, a permanency planning hearing held pursuant to § 16.1-282.1, or an annual foster care review hearing held pursuant to § 16.1-282.2, provided that such hearing has already been scheduled by the court and is held within 60 days of the child's placement in the qualified residential treatment program.
    2. If the child remains placed in the qualified residential treatment program during any subsequent hearings held pursuant to subsection C or § 16.1-282, 16.1-282.1, or 16.1-282.2, the local board of social services or licensed child-placing agency shall present evidence at such hearing that demonstrates (i) that the ongoing assessment of the child's strengths and needs continues to support the determination that the child's needs cannot be met through placement in a foster home and that the child's placement in the qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and is consistent with the short-term and long-term goals established for the child in his foster care or permanency plan; (ii) the specific treatment or service needs of the child that will be met in the qualified residential treatment program and the length of time the child is expected to need such treatment or services; and (iii) the efforts made by the local board of social services to prepare the child to return home or to be placed with a fit and willing relative, legal guardian, or adoptive parent, or in a foster home. The court shall review such evidence and approve or deny the continued placement of the child in the qualified residential treatment program.
  5. At the conclusion of the hearing at which the initial foster care plan is reviewed, the court shall schedule a foster care review hearing to be held within four months in accordance with § 16.1-282. However, if an order is entered pursuant to subsection C2, the court shall schedule a foster care review hearing to be held within 12 months of the entry of such order in accordance with the provisions of § 16.1-282.2. Parties who are present at the hearing at which the initial foster care plan is reviewed shall be given notice of the date set for the foster care review hearing and parties who are not present shall be summoned as provided in § 16.1-263.
  6. Nothing in this section shall limit the authority of the juvenile judge or the staff of the juvenile court, upon order of the judge, to review the status of children in the custody of local boards of social services or placed by local boards of social services on its own motion. The court shall appoint an attorney to act as guardian ad litem to represent the child any time a hearing is held to review the foster care plan filed for the child or to review the child's status in foster care.

    (1977, c. 559; 1978, cc. 732, 740; 1982, c. 171; 1984, c. 373; 1985, c. 210; 1991, c. 98; 1994, cc. 604, 865; 1997, c. 790; 1998, c. 550; 2000, c. 385; 2002, cc. 397, 512, 664, 729, 747; 2005, c. 653; 2008, cc. 397, 475, 483, 678; 2009, c. 80; 2011, cc. 154, 730; 2013, c. 130; 2015, c. 120; 2016, c. 631; 2019, cc. 282, 688; 2021, Sp. Sess. I, c. 535.)

Cross references. - As to appointment of counsel for parent or guardian of minor child, see § 16.1-266.

As to exceptions for certain motor carriers under the Virginia Public Procurement Act to hearings on applications for a license or certificate, see § 46.2-2005 .

As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

As to visitation of child placed in foster care, see § 63.2-912 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2005, c. 653, cl. 2 provides: "That the State Board of Social Services shall amend its home study regulations to allow homes to be dually approved as both foster and adoptive homes."

The 1998 amendment, in subsection B, in the the second sentence, added "If consistent with the child's health and safety" at the beginning and inserted "support reasonable efforts which" following "designed to," inserted the present third sentence, deleted "However" at the beginning of the former third sentence, redesignated the former third through fifth sentences as the second paragraph, and added the third paragraph; and in subsection C, in the first sentence, substituted "the attorney for the child's parents or for any" for "the child's parents or any" and inserted "to the parents or other person standing in loco parentis," and in the next-to-last sentence, substituted " § 16.1-252" for " § 16.1-253" and inserted "16.1-278.2."

The 2000 amendments. - The 2000 amendment by c. 385 inserted the present next to the last sentence in subsection A; in subsection C, substituted "child, if he is twelve years of age or older; the guardian ad litem" for "attorney" in the first sentence, in the fifth sentence, deleted "or" preceding the clause (iii) designation, redesignated the former clause (iii) language as clause (iv), inserted "the hearing on the petition for relief of custody, if the child was placed in foster care pursuant to § 16.1-277.02; or" following the clause (iii) designation, and inserted "16.1-278.3" in clause (iv), and inserted the next to the last sentence; and added subsection C1.

The 2002 amendments. - The 2002 amendment by c. 397, in subsection A, deleted "public welfare or" preceding the second and third appearances of "social services" in the first sentence, and in the third sentence substituted "child's parent(s)" for "child's parents" and inserted "or the local department of social services or other designated agency has made diligent efforts to locate the parent(s) and such parent(s) cannot be located"; and deleted "public welfare or" preceding the first appearance of "social services" in the first sentence in subsection E (now subsection F).

The 2002 amendment by ch. 512 deleted "public welfare or" preceding the second and third appearances of "social services" in the first sentence in subsection A; in the second paragraph in subsection B, in the first sentence substituted "team concludes" for "team determines," substituted "provide information on" for "determine" in clause (ii), and deleted "permanent foster care" preceding "or continued foster care" in clause (iv), and substituted "petition" for proper pleading" in the last sentence; inserted subsection C 2; redesignated former subsection E as present subsection F and redesignated former subsection F as present subsection E; in present subsection E, inserted the present second sentence and substituted "at which the initial foster care plan is reviewed" for "pursuant to this section" in the third sentence; and deleted "public welfare or" preceding the first appearance of "social services" in the first sentence in present subsection F.

The 2002 amendments by cc. 664 and 729 are virtually identical, and in subsection B, in the third paragraph, substituted "that" for "which" following "jurisdiction" in clauses (ii) and (iii), deleted "or" preceding clause (iii), inserted "or" at the end of clause (iii) and added clause (iv), and added the definitions of "Aggravated circumstances," "Chronic abuse," and "Severe abuse." In addition, the amendment by c. 664 substituted "that" for "which" in the definition of "serious bodily injury."

The 2002 amendment by c. 747, effective October 1, 2002, in clause A (ii), deleted "public welfare or" preceding "social services" and substituted "local department of social services" for "department of public welfare or social services"; in subsection B, redesignated former clauses (i) to (iv) as present clauses (a) to (d) in the second paragraph, and redesignated former clauses (i) to (iii) as present clauses (1) to (3) in the third paragraph; and deleted "public welfare or" following the first appearance of "local boards of" in subsection E.

The 2005 amendments. - The 2005 amendment by c. 653, in the first sentence in the second paragraph of subsection A, substituted "shall involve the child's parent(s) in the development of the plan" for "shall consult with the child's parent(s)" and deleted "concerning the matters which should be included in such plan" following "child" and added the last two sentences; and made minor stylistic changes.

The 2008 amendments. - The 2008 amendment by c. 397 inserted "and between the child and his siblings" in clause (iii) of subsection B.

The 2008 amendments by cc. 475 and 483 are identical, and in subsection B, inserted "in writing" preceding the clause (i) designation, inserted clause (v), redesignated former clause (v) as clause (vi), and deleted "in writing and" at the beginning of clause (vi); deleted the former second and third sentences in the second paragraph of subsection B, which read: "'Independent living' includes the services and programs needed to assist the child in making a transition from foster care to self-sufficiency. The department or agency may include with such proposed plan a petition seeking the termination of residual parental rights pursuant to § 16.1-283" and added the present second sentence.

The 2008 amendment by c. 678, in subsection A, in the first paragraph, deleted "or a public agency designated by the community policy and management team" following "board of social services" in clause (i), substituted "or child welfare agency" for "the public agency designated or child welfare agency or the family assessment and planning team established pursuant to § 2.2-5207 " in clause (ii); in the second paragraph, substituted "department or agency" for "department, agency, or team" three times, substituted "child welfare" for "other designated" following "social services or," deleted "or the public agency" preceding "placed the child" in the first sentence; in the third paragraph, substituted "department or child welfare agency" for "department, public agency, child welfare agency or team" near the beginning of the first sentence, deleted "or public agency's" preceding "placement of the child" twice; in subsection B, in the second paragraph, substituted "department or child welfare agency" for "department, child welafare agency or team" near the beginning of the first sentence; in subsection C, deleted "or public agency" preceding "placed the child" in the first sentence, deleted "other public agency" preceding "or a child welfare agency" in clause (i); in subsection D, deleted "or public agency" preceding "placed the child"; and in subsection F, deleted "or the public agency designated by the community policy and management team" preceding "on its own motion" in the first sentence.

The 2009 amendments. - The 2009 amendment by c. 80, in clause (d) of the second paragraph in subsection B, inserted "or" following "permanent foster care" and deleted "or continued foster care" following "16 years of age or older."

The 2011 amendments. - The 2011 amendment by c. 154, in subsection B, added clause (v) and redesignated the remaining clauses accordingly.

The 2011 amendment by c. 730, in subsection B, deleted "and (vi) where appropriate for children age 16 or over" at the end of the first sentence, added the language beginning "In cases in which a foster care plan approved prior to July 1, 2011" and ending "whom the goal is independent living, the plan shall also describe" in the second sentence of the first paragraph; rewrote subdivision B(d) in the second paragraph; and rewrote subdivision C 2.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, substituted "45 days" for "60 days" twice in the third paragraph of subsection A; substituted "60 days" for "75 days" in the third sentence of subsection C; and substituted "four months" for "six months" in subsection E.

The 2015 amendments. - The 2015 amendment by c. 120 in the second paragraph in subsection B, deleted "in a separate section of the plan" following "consistent with the best interests of the child"; and deleted "excluding the section of the plan describing the reasons why the child cannot be returned home and the alternative chosen" following "A copy of the plan" in the third sentence in subsection C.

The 2016 amendments. - The 2016 amendment by c. 631, in the second paragraph of subsection A, rewrote the former second sentence, which read: "The representatives of such department or agency shall involve the child in the development of the plan, if such involvement is consistent with the best interests of the child" and divided it into the present second and third sentences; and in the first paragraph of subsection B, added clauses (vii) and (viii) and made a related change, and added the last sentence.

The 2019 amendments. - The 2019 amendments by cc. 282 and 688 are identical, and in the first paragraph of subsection B, divided the first sentence into two sentences by substituting "The foster care plan shall include" for "and (viii)," inserted the third and fourth sentences and transferred the definition of "Independent living" from the third paragraph of subsection B to its current location; added subsection E and redesignated former subsections E and F as subsections F and G; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 535, effective July 1, 2021, in subsection A in the second paragraph, moved "in the development of the plan" from following to preceding "the child's parent(s)," inserted "relatives and fictive kin who are interested in the child's welfare," and substituted "12" for "14" twice; and substituted "or fictive kin for the purpose of establishing eligibility for the Federal-Funded Kinship Guardianship Assistance program established pursuant to § 63.2-1305 or the State-Funded Kinship Guardianship Assistance program established pursuant to § 63.2-1306 " for "if a subsequent transfer of custody to the relative is planned" in subsection B, second paragraph, clause (3).

Law review. - For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978). For survey of developments in Virginia domestic relations law for year 1979-1980, see 67 Va. L. Rev. 351 (1981).

For an article concerning parents as fiduciaries, see 81 Va. L. Rev. 2401 (1995).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, §§ 7, 11; 17 M.J. Statutes, § 36.

CASE NOTES

Permanent foster care is distinct and secondary alternative to adoption. - A petition for permanent foster care is not a less drastic alternative to termination of parental rights. The court can only consider permanent foster care after it has determined that adoption, upon termination of residual parental rights, is not an alternative in a given case. Given this statutory preference, permanent foster care is a distinct and secondary alternative to adoption. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Court lacks jurisdiction to order permanent foster care absent petition. - The trial court lacked jurisdiction to order a placement in permanent foster care pursuant to this section where the trial court had no petition before it seeking a permanent foster care placement. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

The juvenile court judge retained authority to "review the status" of the minor even after she was placed in the custody of Social Services. S.G. ex rel. v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 488 S.E.2d 653 (1997).

Authority to order placement and payment of residential treatment. - The juvenile court judge had the authority to enter the decree ordering Social Services to provide treatment for the minor in a residential treatment facility. S.G. ex rel. v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 488 S.E.2d 653 (1997).

Natural parent entitled to notice. - It is implicit in the statutory scheme of this section and § 16.1-282 that the natural parent, at subsequent hearings concerning that child, is entitled to prior and specific notice of the disposition sought by the agency in whose custody a child has been placed. Due process demands it. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Where natural parent is not given specific notice by petition seeking specific placement, and where substantial parental rights are at stake, a trial court has no jurisdiction to enter sua sponte an order terminating or reducing those parental rights. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Initiating termination petition and foster care plan. - Section 16.1-283 does not restrict the guardian ad litem from initiating a termination petition as long as the required foster care plan recommending termination has also been filed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Termination petition presented with foster care plan recommending termination. - Under § 16.1-283, no termination petition can be accepted by the court unless the local board of public welfare or social services (now local board of social services), or other child welfare agency, which has custody of the child, presents the court with a foster care plan recommending termination as being in the best interests of the child. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Where the Department of Social Services did not file a foster care plan that recommended termination of both parents' parental rights to their five children, the circuit judge was not authorized to terminate the parents' parental rights; moreover, if the Department wished to pursue termination of the parental rights, it had a duty to first file a foster care plan in the district court with the goal of terminating parental rights, and absent such, it failed to follow its obligations under both §§ 16.1-281 and 16.1-283. Strong v. Hampton Dep't of Soc. Servs., 45 Va. App. 317, 610 S.E.2d 873, 2005 Va. App. LEXIS 125 (2005).

Court of appeals found that it could not provide relief to a father who appealed a circuit court's decision affirming a juvenile and domestic relations (JDR) district court's order approving a foster care plan for his child because the father had not appealed a separate order issued by the JDR district court that terminated his residual parental rights. As such, nothing the court could do in the father's appeal - even if it reversed the foster care plan recommendations - would change the fact that the father had no parental rights left to protect. Najera v. Chesapeake Div. of Soc. Servs., 48 Va. App. 237, 629 S.E.2d 721, 2006 Va. App. LEXIS 219 (2006).

Rehabilitation services not prerequisite to termination under § 16.1-283. - Subsection B of § 16.1-283 required only that a circuit court consider whether rehabilitation services, if any, had been provided to a parent, but nothing in § 16.1-283 or the larger statutory scheme required that such services be provided in all cases as a prerequisite to termination; because the evidence supported the trial court's decision that reunification was inconsistent with children's health and safety, the department's failure to provide rehabilitation services in aid of reunification was not a viable ground for reversal of a termination order. Toms v. Hanover Dep't of Soc. Servs., 46 Va. App. 257, 616 S.E.2d 765, 2005 Va. App. LEXIS 308 (2005).

Because a mother had just been through a prior involuntary termination proceeding, the circuit court had no authority to order additional services be provided to her; hence, the circuit court did not err in approving the adoption foster care plan for the mother's oldest son without first insisting that the Department of Social Services provide remedial services in aid of reunification. Slade v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 10 (Jan. 10, 2006).

Parental refusal to agree to plan. - Under subsection A, the department of family services was required to consult with a mother about its foster care plan, not to alter it to meet her demands; her refusal to agree with the plan after it was approved by the juvenile court was not a basis for avoiding termination of her residual parental rights. Redditt v. Fairfax County Dep't of Family Servs., Nos. 0770-04-4, 0771-04-4, 0772-04-4, 0773-04-4, 2005 Va. App. LEXIS 3 (Ct. of Appeals Jan. 11, 2005).

De facto permanent foster care plan. - Trial court's denial of a petition to terminate a mother's parental rights to be followed by adoption did not result in an impermissible de facto permanent foster care placement, since the division of social services never presented the court with a petition for permanent foster care. Norfolk Div. of Soc. Servs. v. Hardy, 42 Va. App. 546, 593 S.E.2d 528 (2004).

Sufficient evidence to change foster care to adoption and terminate parental visitation. - Change of foster care permanency plan to adoption and termination of parental visitation was upheld because a city department of human services met the statutory deadlines, and there was sufficient evidence supporting the ruling, particularly as the department had made reasonable efforts to correct the underlying objectionable parental behavior, but there had been no improvement, and adoption and termination of parental visits were in the child's best interests. Derr v. Va. Beach Dep't of Human Servs.,, 2009 Va. App. LEXIS 528 (Dec. 1, 2009).

Meaning of "felony assault." - Although the elements of assault and the elements of child abuse and neglect, as defined by § 40.1-103 , are not the same, the Legislature did not intend to limit the definition of "felony assault" found in § 16.1-281 to those crimes that only include the elements of common law assault; rather, the term "felony assault" in § 16.1-281 means any crime which results in serious bodily injury to the child. Thus, where defendant had pled guilty to and was convicted of child abuse and neglect of another child living in his home in violation of § 40.1-103 , the department of social services was no longer required to make reasonable efforts to reunite the father with his son before seeking to terminate his parental rights to the son. Brown v. Spotsylvania Dep't of Soc. Servs., 43 Va. App. 205, 597 S.E.2d 214, 2004 Va. App. LEXIS 273 (2004).

"Aggravated circumstances." - Trial court did not err in finding that it was in the children's best interests for the Department of Social Services to proceed with the adoption, as the mother left the children, who were approximately two years old and seven months old, padlocked in a trailer alone, without electricity or water, which subjected the children to "aggravated circumstances," and thus, the Department was not required to make any reasonable efforts to reunite mother with the children. Wilson v. City of Hampton Dep't of Soc. Servs., No. 0488-16-1, 2016 Va. App. LEXIS 236 (Ct. of Appeals Sept. 6, 2016).

Serious bodily injury is determinative factor. - Legislature's overarching concern in adopting subsection B was the physical health of the child, made evident in subdivision B 3 of § 16.1-281, which establishes "serious bodily injury" to the child as a determinative factor in applying the statute. Brown v. Spotsylvania Dep't of Soc. Servs., 43 Va. App. 205, 597 S.E.2d 214, 2004 Va. App. LEXIS 273 (2004).

Mother held not to have maintained contact with or provided for child. - There was clear and convincing evidence in the record to support the finding of the trial court that the mother, without good cause, failed to maintain contact with and to provide or substantially plan for the future of the child for a period of 12 months after the child's placement in foster care, notwithstanding the reasonable and appropriate efforts of the agencies to communicate with the mother and to strengthen the parent-child relations, where the foster care plan provided for the mother to visit her son bimonthly, she did not maintain contact with the child or the agency on a regular basis, and visited the child only three times within the 12-month period, and there were ample services offered and available to the mother, but she chose not to take advantage of them. The law does not require the division to force its services upon an unwilling or disinterested parent. Barkey v. Commonwealth, Alexandria Dep't of Human Servs., 2 Va. App. 662, 347 S.E.2d 188 (1986).

Court dismissed petition where failure to comply with section. - Where no plan documenting termination of parental rights as being in the best interests of the child was filed until the day following the first day of trial on appeal to the circuit court, the Department of Social Services' failure to comply with the requirements of this section and § 16.1-283 gave the circuit court no choice but to refuse to entertain further evidence on the matter and to dismiss the petition as legally and factually flawed. Campbell County Dep't of Social Servs. v. Wright, No. 1448-89-3 (Ct. of Appeals July 24, 1990).

Department of family services letters are official records. - Letters sent to a mother by department of family services relating to the execution of foster care plans were admissible in a termination of parental rights proceeding under § 8.01-390 , the official records exception to the hearsay rule, as the department social worker who authenticated them was the custodian of these documents and the records contained facts within her personal knowledge. Redditt v. Fairfax County Dep't of Family Servs., Nos. 0770-04-4, 0771-04-4, 0772-04-4, 0773-04-4, 2005 Va. App. LEXIS 3 (Ct. of Appeals Jan. 11, 2005).

Illustrative cases. - Trial court did not err in approving a foster care plan and a mother's custody where there was sufficient evidence that this was in her daughter's best interest. Green v. Richmond Dep't of Soc. Servs., No. 1694-01-2, 2002 Va. App. LEXIS 9 (Ct. of Appeals Jan. 8, 2002).

Where a mother, without good cause, failed to respond to extensive rehabilitative efforts, the Department of Social Services properly determined adoption and parental rights termination was proper after the mother had a reasonable time to correct problems. Chandler v. Staunton-Augusta County Dep't of Soc. Servs., Nos. 2853-02-3 through 2856-02-3, 2003 Va. App. LEXIS 295 (Ct. of Appeals May 13, 2003).

Trial court's approval of a change in the foster care plan goal to adoption for five children was summarily affirmed where: (1) the children were returned to the parents' custody after being in foster care for two years, but were removed two months later due to abuse and neglect, (2) the conditions in the family home had not improved, despite the provision of extensive services, (3) a relative who had been willing to care for some of the children withdrew her offer because she felt threatened by the father, (4) the foster care worker agreed with changing the goal to adoption, and (5) an expert witness testified to the father's lack of parenting capacity and to his resistance to treatment. Strong v. Hampton Dep't of Soc. Servs., No. 2383-03-1, 2004 Va. App. LEXIS 201 (Ct. of Appeals Apr. 27, 2004).

Mother's claim that a city department of social services did not provide her with reasonable services following the removal of her child from her care was rejected as the mother's conviction for felony child abuse constituted a finding of aggravated circumstances. Wimmer v. Roanoke City Dep't of Soc. Servs., No. 1478-04-3, 2004 Va. App. LEXIS 470 (Ct. of Appeals Oct. 5, 2004).

Department of Human Services (DHS) complied with § 16.1-281 by filing foster care plan, there was no requirement for DHS to re-file such a plan. Bailey v. City of Alexandria Dep't of Human Servs.,, 2007 Va. App. LEXIS 244 (June 19, 2007).

Mother's residual parental rights were properly terminated where she failed to comply with the terms of a foster care service plan that required her to secure proper legal immigration status, find gainful employment, find suitable housing and daycare, accept referrals to appropriate housing resources, complete psychological and parent-child evaluations, and follow through with any recommended treatment. The mother did not meet any of the stated goals with the exception of obtaining psychological and parenting evaluations. Sangwan v. Fairfax County Dep't of Family Servs.,, 2008 Va. App. LEXIS 41 (Jan. 29, 2008).

In a case in which a father argued that the trial court erred by determining that his parental rights should be terminated under clause (iii) of subsection E of § 16.1-283 because his conviction under § 40.1-103 for cruelty or injury to a child was not an offense that constituted felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault within the meaning of clause (iii) of subsection E of § 16.1-283; a conviction under § 40.1-103 is a felony assault for the purposes of § 16.1-283(E)(iii) as well as subdivision B 3 of § 16.1-281. Kilby v. Culpeper County Dep't of Soc. Servs., 55 Va. App. 106, 684 S.E.2d 219, 2009 Va. App. LEXIS 483 (2009).

Circuit court did not improperly fail to consider a foster care plan on appeal of a termination of parental rights because the court followed Va. Code Ann. §§ 16.1-281 and 16.1-283 when the court found the plan had been filed and approved. Boatright v. Wise County Dep't of Soc. Servs., 64 Va. App. 71, 764 S.E.2d 724 (2014).

Circuit court correctly determined that the adoption could proceed because the adoptive parents originally received custody of the children as foster parents, and the statute's other conditions were satisfied; nothing in the statute provides that foster parents cease to be foster parents when they petition for, and are awarded, child custody. Harvey v. Flockhart, 65 Va. App. 131, 775 S.E.2d 427 (2015).

Parent's rights not violated. - Father's rights under § 16.1-281 were not violated, as the father received all of the Department of Social Services' plans and participated in the juvenile court proceedings where the plans were approved. Newton v. Bristol Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 519 (Nov. 25, 2008).

Incarcerated parent's rights were not violated because the Virginia Department of Social Services complied with its statutory obligation to involve the parent in a foster care plan. Sturgill v. Wise County Dep't of Soc. Servs., No. 0336-14-3, 2014 Va. App. LEXIS 255 (July 8, 2014).

Applied in Robinette v. Keene, 2 Va. App. 578, 347 S.E.2d 156 (1986); Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

CIRCUIT COURT OPINIONS

Minimal efforts at reunification were required given the parent's long-term incarceration. - A notification letter on the foster care plan and the child's difficulties was sufficient. Tellez v. Dss,, 2003 Va. Cir. LEXIS 207 (Roanoke Oct. 17, 2003).

Placement with relative not supported by evidence. - Court rejected a juvenile court's approval of a foster care plan with respect to a father's daughter as the plan's goal of relative placement instead of return to parent was not supported by the evidence within the meaning of §§ 16.1-278.2 and 16.1-281 and was not in the daughter's best interest. However, since the daughter had been in foster care for seven months and her relationship with her father was very strained, the court postponed the entry of an order for fifteen business days, giving the interested parties time to respond. In re Baxter, 73 Va. Cir. 520, 2007 Va. Cir. LEXIS 133 (Henrico County 2007).

§ 16.1-282. Foster care review.

  1. In the case of a child who was the subject of a foster care plan filed with the court pursuant to § 16.1-281, a foster care review hearing shall be held within four months of the dispositional hearing at which the foster care plan pursuant to § 16.1-281 was reviewed if the child (i) was placed through an agreement between the parents or guardians and the local board of social services where legal custody remains with the parents or guardians and such agreement has not been dissolved by court order or (ii) is under the legal custody of a local board of social services or a child welfare agency and has not had a petition to terminate parental rights granted, filed or ordered to be filed on the child's behalf; has not been placed in permanent foster care; or is age 16 or over and the plan for the child is not independent living.

    Any interested party, including the parent, guardian or person who stood in loco parentis prior to the board's placement of the child or the board's or child welfare agency's assumption of legal custody, may file with the court the petition for a foster care review hearing hereinafter described at any time after the initial foster care placement of the child. However, the board or child welfare agency shall file the petition within three months of the dispositional hearing at which the foster care plan was reviewed pursuant to § 16.1-281.

  2. The petition shall:
    1. Be filed in the court in which the foster care plan for the child was reviewed and approved. Upon the order of such court, however, the petition may be filed in the court of the county or city in which the board or child welfare agency having legal custody or having placed the child has its principal office or where the child resides;
    2. State, if such is reasonably obtainable, the current address of the child's parents and, if the child was in the custody of a person or persons standing in loco parentis at the time the board or child welfare agency obtained legal custody or the board placed the child, of such person or persons;
    3. Describe the placement or placements provided for the child while in foster care and the services or programs offered to the child and his parents and, if applicable, the persons previously standing in loco parentis;
    4. Describe the nature and frequency of the contacts between the child and his parents and, if applicable, the persons previously standing in loco parentis;
    5. Set forth in detail the manner in which the foster care plan previously filed with the court was or was not complied with and the extent to which the goals thereof have been met; and
    6. Set forth the disposition sought and the grounds therefor; however, in the case of a child who has attained age 16 and for whom the plan is independent living, the foster care plan shall be included and shall address the services needed to assist the child to transition from foster care to independent living.
  3. Upon receipt of the petition filed by the board, child welfare agency, or any interested party as provided in subsection B of this section, the court shall schedule a hearing to be held within 30 days if a hearing was not previously scheduled. The court shall provide notice of the hearing and a copy of the petition to the following, each of whom shall be a party entitled to participate in the proceeding:
    1. The child, if he is 12 years of age or older;
    2. The attorney-at-law representing the child as guardian ad litem;
    3. The child's parents and, if the child was in the custody of a person standing in loco parentis at the time the department obtained custody, such person or persons. No such notification shall be required, however, if the judge certifies on the record that the identity of the 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. If the parent or guardian of the child did not appear at the dispositional hearing and was not noticed to return for the foster care review hearing in accordance with subsection F of § 16.1-281, the parent or guardian shall be summoned to appear at the foster care review hearing in accordance with § 16.1-263. The review hearing shall be held pursuant to this section although a parent or guardian fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent or guardian, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort;
    4. The foster parent or foster parents or other care providers of the child;
    5. The petitioning board or child welfare agency; and
    6. Such other persons as the court, in its discretion, may direct. The local board of social services or other child welfare agency shall identify for the court such other persons as have a legitimate interest in the hearing, including, but not limited to, preadoptive parents for a child in foster care.
  4. In cases in which a child is placed by the local board of social services or a licensed child-placing agency in a qualified residential treatment program as defined in § 16.1-228, the provisions of subsection E of § 16.1-281 shall apply to any hearing held pursuant to this section.
  5. At the conclusion of the hearing, the court shall, upon the proof adduced in accordance with the best interests of the child and subject to the provisions of subsection F, enter any appropriate order of disposition consistent with the dispositional alternatives available to the court at the time of the original hearing. The court order shall state whether reasonable efforts, if applicable, have been made to reunite the child with his parents, guardian or other person standing in loco parentis to the child. Any order entered at the conclusion of this hearing that has the effect of achieving a permanent goal for the child by terminating residual parental rights pursuant to § 16.1-277.01, 16.1-277.02, 16.1-278.3, or 16.1-283; by placing the child in permanent foster care pursuant to clause (iv) of subsection A of § 16.1-282.1; or, if the child has attained the age of 16 years and the plan for the child is independent living, directing the board or agency to provide the necessary services to transition from foster care, pursuant to clause (v) of subsection A of § 16.1-282.1 shall state whether reasonable efforts have been made to place the child in a timely manner in accordance with the foster care plan and to complete the steps necessary to finalize the permanent placement of the child.
  6. Any order transferring custody of the child to a relative other than the child's prior family shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a relative should further provide for, as appropriate, any terms and conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.
  7. The court shall possess continuing jurisdiction over cases reviewed under this section for so long as a child remains in a foster care placement or, when a child is returned to his prior family subject to conditions imposed by the court, for so long as such conditions are effective. After the hearing required pursuant to subsection C, the court shall schedule a permanency planning hearing on the case to be held five months thereafter in accordance with § 16.1-282.1 or within 30 days upon the petition of any party entitled to notice in proceedings under this section when the judge determines there is good cause shown for such a hearing. However, in the case of a child who is the subject of an order that has the effect of achieving a permanent goal for the child by terminating residual parental rights pursuant to § 16.1-277.01, 16.1-277.02, 16.1-278.3, or 16.1-283; by placing the child in permanent foster care pursuant to clause (iv) of subsection A of § 16.1-282.1; or by directing the board or agency to provide the child with services to achieve independent living status, if the child has attained the age of 16 years, pursuant to clause (v) of subsection A of § 16.1-282.1, a permanency planning hearing within five months shall not be required and the court shall schedule a foster care review hearing to be held within 12 months of the entry of such order in accordance with the provisions of § 16.1-282.2.

    (1977, c. 559; 1978, c. 740; 1982, c. 171; 1984, c. 71; 1987, c. 250; 1991, c. 98; 1992, c. 869; 1994, cc. 223, 604, 865; 1997, c. 790; 1998, c. 550; 1999, c. 889; 2000, c. 385; 2002, c. 512; 2008, cc. 475, 483, 678; 2009, c. 80; 2011, c. 730; 2013, c. 130; 2019, cc. 282, 688.)

Cross references. - As to appointment of counsel for parent or guardian of minor child, see § 16.1-266.

As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

The 1998 amendment added the second sentence in subdivision C 6 and substituted "five months" for "six months" in the second sentence of subsection E.

The 1999 amendment, in subsection A, deleted "public welfare or" following "local board of," and in subsections A and B, substituted " § 16.1-277.01" for " § 16.1-278.3," deleted former subdivision B 2, which read: "Include a copy of the foster care plan previously filed for such child," and redesignated former subdivisions B 3 through B 7 as subdivisions B 2 through B 6, and deleted "public welfare or" following "The local board of" in the second sentence of subdivision C 6.

The 2000 amendments. - The 2000 amendment by c. 385 deleted "the court's approval of (i) the entrustment agreement pursuant to § 16.1-277.01 which placed the child in foster care or (ii)" following "five months of" in subsection A; in the first sentence of subsection D, deleted "and" following "adduced" and inserted "and subject to the provisions of subsection D1 of this section"; and added subsection D1.

The 2002 amendments. - The 2002 amendment by ch. 512 rewrote subsection A; deleted the former first paragraph of subsection B; in the introductory language of subsection C, deleted "pursuant to subsection F of § 16.1-281" at the end of the first sentence and deleted the former second sentence, which read: "A review hearing shall be held within six months of the dispositional hearing at which the foster care plan was reviewed"; in subsection D, deleted "of this section" following "subsection D1" in the first sentence and added the third sentence; and in subsection E, in the second sentence, deleted "hereof" following "subsection C" and deleted "except in the case of a child placed in permanent foster care after a hearing held pursuant to § 63.1-206.1" following " § 16.1-282.1," and added the third sentence.

The 2008 amendments. - The 2008 amendments by cc. 475 and 483 are almost identical, and substituted "is age 16 or over and the plan for the child is not independent living" for "is not receiving services to achieve independent living status" at the end of subsection A; in subdivision B 6, inserted "and for whom the plan is independent living" following "has attained age 16" near the beginning and deleted "and programs" preceding "needed to assit" and "make a" preceding "transition from foster care" in clause (ii); in subsection D, deleted "by directing the board or agency to provide the child with services to achieve independent living status" following " § 16.1-282.1; or" and inserted "and the plan for the child is independent living, directing the board or agency to provide the necessary services to transition from foster care" following "the age of 16 years" in the third sentence; and made minor stylistic changes.

The 2008 amendment by c. 678, in subsection A, in the first paragraph, deleted "or a public agency designated by the community policy and management team" following "board of social services" in clause (a); in the second paragraph, deleted "or public agency's" preceding "placement of the child" in the first sentence, deleted "public agency" following "However, the board" in the second sentence; in subdivision B 2, deleted "or public agency" preceding "placed the child"; in subsection C, deleted "public agency" preceding "child welfare agency" in the first sentence; in subdivision C 5, deleted "public agency" preceding "or child welfare agency"; and made stylistic changes.

The 2009 amendments. - The 2009 amendment by c. 80, in subdivision B 6, deleted "if a continuation of foster care is recommended, a foster care plan for such period of continued foster care shall also be included and shall address (i) the role the current foster parents or other care providers will play in the future planning for the child and (ii)" preceding "in the case of a child" and inserted "the foster care plan shall be included and shall address."

The 2011 amendments. - The 2011 amendment by c. 730 reenacted the section without change.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, in subsection A, substituted "four months" for "six months" in the introductory language of the first paragraph and "three months" for "five months" in the second paragraph.

The 2019 amendments. - The 2019 amendments by cc. 282 and 688 are identical, and added subsection D and redesignated remaining subsections accordingly; updated statutory references; and made stylistic changes.

Law review. - For article, "Considering Religion As a Factor in Foster Care in the Aftermath of Employment Division, Department of Human Resources v. Smith and the Religious Freedom Restoration Act," see 28 U. Rich. L. Rev. 53 (1994).

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, § 7.

CASE NOTES

Natural parent entitled to notice. - It is implicit in the statutory scheme of § 16.1-281 and this section that the natural parent, at subsequent hearings concerning that child, is entitled to prior and specific notice of the disposition sought by the agency in whose custody a child has been placed. Due process demands it. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Where natural parent is not given specific notice by petition seeking specific placement, and where substantial parental rights are at stake, a trial court has no jurisdiction to enter sua sponte an order terminating or reducing those parental rights. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Termination petition presented with foster care plan recommending termination. - Where the Department of Social Services did not file a foster care plan that recommended termination of both parents' parental rights to their five children, the circuit judge was not authorized to terminate the parents' parental rights; moreover, if the Department wished to pursue termination of the parental rights, it had a duty to first file a foster care plan in the district court with the goal of terminating parental rights, and absent such, it failed to follow its obligations under both §§ 16.1-281 and 16.1-283. Strong v. Hampton Dep't of Soc. Servs., 45 Va. App. 317, 610 S.E.2d 873, 2005 Va. App. LEXIS 125 (2005).

Challenge to order amending foster care plan subsumed by affirmance of termination order. - Circuit court's order terminating a mother's parental rights to her oldest son was upheld on appeal, based upon her concession that her residual parental rights to her youngest child were previously terminated, and her ability to parent her oldest son was impaired by her history of drug abuse, criminal and incarceration record, exposing son to a convicted child molester, and failure to respond to prior rehabilitation efforts; moreover, this decision to affirm the termination of parental rights necessarily subsumed the mother's appeal of the circuit court's companion order amending the Department of Social Service's foster care plan to authorize adoption because a preponderance of the evidence standard governed judicial modifications of foster care plans. Slade v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 10 (Jan. 10, 2006).

Challenge to order amending foster care plan. - Because a mother failed to stay drug and alcohol free, which was the most significant responsibility required of her by a foster care plan, the trial court properly found that adoption would be in the best interest of the mother's child. Green v. Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 169 (May 2, 2006).

Department of Social Services (DSS) proved by a preponderance of the evidence under § 16.1-282, that changing the goal of a foster care service plan to "adoption" was in the best interests of a child as: (1) a father continued to use illegal drugs; (2) DSS had referred the father to a substance abuse treatment program on several occasions, and he never completed the treatment; (3) the father stated that he planned to use marijuana unless a court required him to stop; (4) the father failed to finish a parenting class, and failed to complete other recommended services despite being referred to the services by DSS; and (5) the father did not maintain regular visitation with the child, and failed to sustain contact with DSS or to involve himself in planning for the child. Chappell v. City of Newport News Dep't of Soc. Servs., No. 0890-07-1, 2007 Va. App. LEXIS 404 (Nov. 6, 2007).

Reasonable efforts at reunification made. - Reasonable efforts had been made to reunite the children with the mother where she had completed parenting classes, a psychological evaluation, she had visited the children until she continued to make inappropriate comments, she participated in two interviews and one visitation with a family reunification agency, but the services were stopped after the other continued to deny that abuse occurred and threatened legal action, and she did not participate in recommended therapy and medication management services. Curtin v. Spotsylvania Cty. Dep't of Soc. Servs., No. 0709-18-2, 2018 Va. App. LEXIS 354 (Dec. 18, 2018).

A preponderance of the evidence standard in abuse and neglect proceedings is constitutionally sufficient in the determination of whether to place a child in temporary foster care placement rather than permanent termination of residual parental rights in abuse of neglect cases. Wright v. Arlington County Dep't of Social Servs., 9 Va. App. 411, 388 S.E.2d 477 (1990).

The appropriate standard of proof for an abuse and neglect hearing is proof by a preponderance of the evidence. Padilla v. Norfolk Div. of Social Servs., 22 Va. App. 643, 472 S.E.2d 648 (1996).

Preponderance of the evidence met. - Where the mother did not address the responsibilities identified by the department of social services to regain custody of her daughter, the department of social services proved by a preponderance of the evidence that the mother did not comply with the foster care plan; therefore, the trial court did not err in affirming an order changing the goal of the foster care plan to adoption. Williams v. Hampton Dep't of Soc. Servs., No. 1017-02-1, 2002 Va. App. LEXIS 647 (Ct. of Appeals Oct. 29, 2002).

Hampton Department of Social Services met its burden to show that it was in the best interests of the child to have her services plan have a goal of adoption where: (1) the child's father was periodically incarcerated while the child was in foster care and failed to address the responsibilities identified by DSS in order to regain custody of his child; (2) the child was thriving in foster care; (3) the father had no bond with the child; and (4) the father failed to regularly visit the child. Perry v. Hampton Dep't of Soc. Servs., No. 1102-02-1, 2002 Va. App. LEXIS 649 (Ct. of Appeals Oct. 29, 2002).

Evidence supported a change in the goal of a permanent foster care service plan for two children to adoption where one child had suffered from shaken baby syndrome, the mother had been convicted of felony child abuse, and the mother had not complied with all of the requirements of the foster care plan, inlcluding that she maintain stable housing, maintain financial stability, and secure employment. Wimmer v. Roanoke City Dep't of Soc. Servs., No. 1478-04-3, 2004 Va. App. LEXIS 470 (Ct. of Appeals Oct. 5, 2004).

Error to apply clear and convincing evidence standard. - The standard of proof in a proceeding for the establishment or modification of a foster care plan requires proof by a preponderance of the evidence and it is grounds for reversal where the court errs by applying the more exacting evidentiary requirement of clear and convincing evidence. Richmond Dep't of Soc. Servs. v. Carter, 28 Va. App. 494, 507 S.E.2d 87 (1998).

Applied in Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

§ 16.1-282.1. Permanency planning hearing for children in foster care.

  1. In the case of a child who was the subject of a foster care plan filed with the court pursuant to § 16.1-281, a permanency planning hearing shall be held within 10 months of the dispositional hearing at which the foster care plan pursuant to § 16.1-281 was reviewed if the child (a) was placed through an agreement between the parents or guardians and the local board of social services where legal custody remains with the parents or guardians and such agreement has not been dissolved by court order; or (b) is under the legal custody of a local board of social services or a child welfare agency and has not had a petition to terminate parental rights filed on the child's behalf, has not been placed in permanent foster care, or is age 16 or over and the plan for the child is not independent living. The board or child welfare agency shall file a petition for a permanency planning hearing 30 days prior to the date of the permanency planning hearing scheduled by the court. The purpose of this hearing is to establish a permanent goal for the child and either to achieve the permanent goal or to defer such action through the approval of an interim plan for the child. To achieve the permanent goal, the petition for a permanency planning hearing shall seek to (i) transfer the custody of the child to his prior family, or dissolve the board's placement agreement and return the child to his prior family; (ii) transfer custody of the child to a relative other than the child's prior family or to fictive kin for the purpose of establishing eligibility for the Federal-Funded Kinship Guardianship Assistance program pursuant to § 63.2-1305 or the State-Funded Kinship Guardianship Assistance program pursuant to § 63.2-1306 , subject to the provisions of subsection A1; (iii) terminate residual parental rights pursuant to § 16.1-277.01 or 16.1-283; (iv) place a child who is 16 years of age or older in permanent foster care pursuant to § 63.2-908 ; (v) if the child has been admitted to the United States as a refugee or asylee and has attained the age of 16 years or older and the plan is independent living, direct the board or agency to provide the child with services to transition from foster care; or (vi) place a child who is 16 years of age or older in another planned permanent living arrangement in accordance with the provisions of subsection A2. If the child has been in the custody of a local board or child welfare agency for 15 of the most recent 22 months and no petition for termination of parental rights has been filed with the court, the local board or child welfare agency shall state in its petition for a permanency planning hearing (a) the reasons, pursuant to subdivision A 1, 2, or 3 of § 63.2-910.2 , why a petition for termination of parental rights has not been filed and (b) the reasonable efforts made regarding reunification or transfer of custody to a relative and the timeline of such efforts. In cases in which a foster care plan approved prior to July 1, 2011, includes independent living as the goal for a child who is not admitted to the United States as an asylee or refugee, the petition shall direct the board or agency to provide the child with services to transition from foster care. For approval of an interim plan, the petition for a permanency planning hearing shall seek to continue custody with the board or agency, or continue placement with the board through a parental agreement; or transfer custody to the board or child welfare agency from the parents or guardian of a child who has been in foster care through an agreement where the parents or guardian retains custody. Upon receipt of the petition, if a permanency planning hearing has not already been scheduled, the court shall schedule such a hearing to be held within 30 days. The permanency planning hearing shall be held within 10 months of the dispositional hearing at which the foster care plan was reviewed pursuant to § 16.1-281. The provisions of subsection B of § 16.1-282 shall apply to this petition. The procedures of subsection C of § 16.1-282 and the provisions of subsection G of § 16.1-282 shall apply to the scheduling and notice of proceedings under this section. A1. The following requirements shall apply to the transfer of custody of the child to a relative other than the child's prior family or to fictive kin for the purpose of establishing eligibility for the Federal-Funded Kinship Guardianship Assistance program pursuant to § 63.2-1305 or the State-Funded Kinship Guardianship Assistance program pursuant to § 63.2-1306 in accordance with the provisions of clause (ii) of subsection A. Any order transferring custody of the child to a relative other than the child's prior family shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a relative should further provide, as appropriate, for any terms or conditions which would promote the child's interest and welfare. A2. The following requirements shall apply to the selection and approval of placement in another planned permanent living arrangement as the permanent goal for the child in accordance with clause (vi) of subsection A:
    1. The board or child welfare agency shall petition for alternative (vi) of subsection A only if the child has a severe and chronic emotional, physical or neurological disabling condition for which the child requires long-term residential treatment; and the board or child welfare agency has thoroughly investigated the feasibility of the alternatives listed in clauses (i) through (v) of subsection A and determined that none of those alternatives is in the best interests of the child. In a foster care plan filed with the petition pursuant to this section, the board or agency shall document the following: (i) the investigation conducted of the placement alternatives listed in clauses (i) through (v) of subsection A and why each of these is not currently in the best interest of the child; (ii) at least one compelling reason why none of the alternatives listed in clauses (i) through (v) is achievable for the child at the time placement in another planned permanent living arrangement is selected as the permanent goal for the child; (iii) the identity of the long-term residential treatment service provider; (iv) the nature of the child's disability; (v) the anticipated length of time required for the child's treatment; and (vi) the status of the child's eligibility for admission and long-term treatment. The court shall ensure that the local department has documentation of the intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made to return the child home or secure a placement for the child with a fit and willing relative, including adult siblings, or an adoptive parent, including through efforts that utilize search technology, including social media, to find the child's biological family members. The court shall ask the child about the child's desired permanency outcome and make a judicial determination, accompanied by an explanation of the reasons that the alternatives listed in clauses (i) through (iii) of subsection A continue to not be in the best interest of the child.
    2. Before approving alternative (vi) of subsection A as the plan for the child, the court shall find (i) that the child has a severe and chronic emotional, physical or neurological disabling condition; (ii) that the child requires long-term residential treatment for the disabling condition; and (iii) that none of the alternatives listed in clauses (i) through (v) of subsection A is achievable for the child at the time placement in another planned permanent living arrangement is approved as the permanent goal for the child. If the board or agency petitions for alternative (vi), alternative (vi) may be approved by the court for a period of six months at a time.
    3. At the conclusion of the permanency planning hearing, if alternative (vi) of subsection A is the permanent plan, the court shall schedule a hearing to be held within six months to review the child's placement in another planned permanent living arrangement in accordance with subdivision A2 4. All parties present at the hearing at which clause (vi) of subsection A is approved as the permanent plan for the child shall be given notice of the date scheduled for the foster care review hearing. Parties not present shall be summoned to appear as provided in § 16.1-263. Otherwise, this subsection A2 shall govern the scheduling and notice for such hearings.
    4. The court shall review a foster care plan for any child who is placed in another planned permanent living arrangement every six months from the date of the permanency planning hearing held pursuant to this subsection, so long as the child remains in the legal custody of the board or child welfare agency. The board or child welfare agency shall file such petitions for review pursuant to the provisions of § 16.1-282 and shall, in addition, include in the petition the information required by subdivision A2 1. The petition for foster care review shall be filed no later than 30 days prior to the hearing scheduled in accordance with subdivision A2 3. At the conclusion of the foster care review hearing, if alternative (vi) of subsection A remains the permanent plan, the court shall enter an order that states whether reasonable efforts have been made to place the child in a timely manner in accordance with the permanency plan and to monitor the child's status in another planned permanent living arrangement. However, if at any time during the six-month approval periods permitted by this subsection, a determination is made by treatment providers that the child's need for long-term residential treatment for the child's disabling condition is eliminated, the board or agency shall immediately begin to plan for post-discharge services and shall, within 30 days of making such a determination, file a petition for a permanency planning hearing pursuant to subsection A. Upon receipt of the petition, the court shall schedule a permanency planning hearing to be held within 30 days. The provisions of subsection B of § 16.1-282 shall apply to this petition. The procedures of subsection C of § 16.1-282 and the provisions of subsection G of § 16.1-282 shall apply to proceedings under this section. A3. The following requirements shall apply to the selection and approval of permanent foster care pursuant to clause (iv) of subsection A: 1. The court shall ensure that the local department has documentation of the intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made to return the child home or secure a placement for the child with a fit and willing relative, including adult siblings, or an adoptive parent, including through efforts that utilize search technology, including social media, to find the child's biological family members. 2. The court shall ask the child about the child's desired permanency outcome and make a judicial determination, accompanied by an explanation of the reasons that the alternatives listed in clauses (i) through (iii) of subsection A continue to not be in the best interest of the child.
  2. The following requirements shall apply to the selection and approval of an interim plan for the child in accordance with subsection A:
    1. The board or child welfare agency shall petition for approval of an interim plan only if the board or child welfare agency has thoroughly investigated the feasibility of the alternatives listed in clauses (i) through (v) of subsection A and determined that none of those alternatives is in the best interest of the child. If the board or agency petitions for approval of an interim plan, such plan may be approved by the court for a maximum period of six months. The board or agency shall also file a foster care plan that (i) identifies a permanent goal for the child that corresponds with one of the alternatives specified in clauses (i) through (v) of subsection A; (ii) includes provisions for accomplishing the permanent goal within six months; and (iii) summarizes the investigation conducted of the alternatives listed in clauses (i) through (v) of subsection A and why achieving each of these is not in the best interest of the child at this time. The foster care plan shall describe the child's placement, including the in-state and out-of-state placement options and whether the child's placement is in state or out of state. If the child's placement is out of state, the foster care plan shall provide the reason why the out-of-state placement is appropriate and in the best interests of the child.
    2. Before approving an interim plan for the child, the court shall find:
      1. When returning home remains the plan for the child, that the parent has made marked progress toward reunification with the child, the parent has maintained a close and positive relationship with the child, and the child is likely to return home within the near future, although it is premature to set an exact date for return at the time of this hearing; or
      2. When returning home is not the plan for the child, that marked progress is being made to achieve the permanent goal identified by the board or child welfare agency and that it is premature to set an exact date for accomplishing the goal at the time of this hearing. The court shall consider the in-state and out-of-state placement options, and if the child has been placed out of state, determine whether the out-of-state placement is appropriate and in the best interests of the child.
    3. Upon approval of an interim plan, the court shall schedule a hearing to be held within six months to determine that the permanent goal is accomplished and to enter an order consistent with alternative (i), (ii), (iii), (iv), or (v) of subsection A. All parties present at the initial permanency planning hearing shall be given notice of the date scheduled for the second permanency planning hearing. Parties not present shall be summoned to appear as provided in § 16.1-263. Otherwise, subsection A shall govern the scheduling and notice for such hearings.
  3. In each permanency planning hearing and in any hearing regarding the transition of the child from foster care to independent living, the court shall consult with the child in an age-appropriate manner regarding the proposed permanency plan or transition plan for the child, unless the court finds that such consultation is not in the best interests of the child.
  4. In cases in which a child is placed by the local board of social services or a licensed child-placing agency in a qualified residential treatment program as defined in § 16.1-228, the provisions of subsection E of § 16.1-281 shall apply to any hearing held pursuant to this section.
  5. At the conclusion of the permanency planning hearing held pursuant to this section, whether action is taken or deferred to achieve the permanent goal for the child, the court shall enter an order that states whether reasonable efforts have been made to reunite the child with the child's prior family, if returning home is the permanent goal for the child; or whether reasonable efforts have been made to achieve the permanent goal identified by the board or agency, if the goal is other than returning the child home.

    In making this determination, the court shall give consideration to whether the board or agency has placed the child in a timely manner in accordance with the foster care plan and completed the steps necessary to finalize the permanent placement of the child.

    (1997, c. 790; 1998, c. 550; 1999, c. 889; 2000, c. 385; 2002, c. 512; 2008, cc. 475, 483, 678; 2011, c. 730; 2013, c. 130; 2016, c. 631; 2017, c. 190; 2019, cc. 282, 688; 2020, cc. 224, 366, 934; 2021, Sp. Sess. I, c. 254.)

Cross references. - As to appointment of counsel for parent or guardian of minor child, see § 16.1-266.

As to foster care plans, permissible plan goals, and court review of foster children, see § 63.2-906 .

Editor's note. - Acts 2020, c. 934, cl. 2 provides: "That the Board of Social Services shall promulgate regulations that (i) establish clear guidance for local boards of social services (local boards) and child-placing agencies regarding acceptable reasons for not filing a petition for termination of parental rights, case planning protocols, and applicable timelines; (ii) require local boards and child-placing agencies to consult with the Commissioner of Social Services (the Commissioner) or his designee regarding case planning for children who have been in the custody of the local board or agency for 12 months and for whom reunification remains a goal; (iii) require local boards and child-placing agencies to (a) conduct independent living needs assessments and develop transition plans within 30 days of a child in foster care reaching 14 years of age or within 30 days of a child who is 14 years of age or older entering foster care and (b) update such assessments and plans annually; and (iv) require local boards and child-placing agencies to report to the Commissioner or his designee all instances in which a petition for termination of parental rights has not been filed for a child who has been in the custody of a local board or child-placing agency for 15 of the most recent 22 months, which shall include a clear description of the reasons why such petition has not been filed and the reasonable efforts made regarding reunification or placement of the child with a relative. The Commissioner shall compile the information set forth in clause (iv) into a de-identified annual report and provide such report to all local boards and child-placing agencies. The Commissioner shall use the information contained in the report to establish a training program that educates local boards and child-placing agencies regarding common errors made by local boards and child-placing agencies when declining to file a petition for termination of parental rights."

Acts 2020, c. 934, cl. 3 provides: "That the Commissioner of Social Services shall develop clear guidance documents for local boards of social services and child-placing agencies that explain the process through which a parent may voluntarily terminate parental rights and the manner in which such information should be relayed to the parent."

Acts 2020, c. 934, cl. 4 provides: "That the Commissioner of Social Services (the Commissioner) shall establish a work group to review the feasibility and costs of establishing a standard for supervisory spans of control that would limit the number of caseworkers that a foster care supervisor may oversee. The Commissioner shall report the findings and recommendations of the work group to the Chairmen of the Senate Committee on Finance and the House Committee on Appropriations by November 30, 2020."

Acts 2021, Sp. Sess. I, c. 254, cl. 2 provides: "The Board of Social Services (the Board) shall promulgate regulations to implement the provisions of this act. Such regulations shall include conditions for establishing a kinship guardianship, requirements for the development and amendment of a kinship guardianship assistance agreement, and circumstances that qualify a prospective kinship guardian for exemption from the relative foster home approval process. The Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption."

The 1998 amendment substituted "ten months" for "eleven months" in subsection A and substituted "eleven months" for "twelve months" in the second sentence of the second paragraph in subsection B.

The 1999 amendment, in subsection A, substituted "is not receiving services to achieve independent living status or is not" for "an independent living arrangement or," substituted " § 16.1-277.01" for " § 16.1-278.3" in clause (i) and substituted "direct the board or agency to provide the child with services to achieve independent living status" for "place the child in an independent living arrangement" in clause (iii); in subsection B, in the first paragraph, substituted "subsection A" for "this section" in two places, and substituted "1 through 6" for "1 through 7" in the second paragraph; in subsection C, inserted "of subsection A" in the introductory language, and in the second paragraph of subdivision 2, inserted "enter an order that states whether reasonable efforts have been made to reunite the child with his or her family, if returning home remains the plan for the child; or whether reasonable efforts have been made to achieve the permanent goal identified by the board, when returning home is not the plan for the child. The court shall," and deleted "the" preceding "such hearings" near the end of the paragraph; and in subsection D, substituted "receiving services to achieve independent living status" for "placed in an independent living arrangement," and added the last two sentences.

The 2000 amendments. - The 2000 amendment by c. 385, in subsection A, deleted "(i) the court's approval of the entrustment agreement pursuant to § 16.1-277.01 or (ii)" following "ten months of," inserted "subject to the provisions of subsection A1 of this section" in clause (ii), redesignated former clauses (vi) and (vii) as present clauses (vii) and (viii), and inserted "place the child in another planned permanent living arrangement in accordance with the provisions of subsection A2 of this section" following the clause (vi) designation; added subsections A1 and A2; in subsection B, in the first sentence, substituted "(vii) or (viii)" for "(vi) or (vii)" and inserted "of this section," in the second sentence, substituted "alternative (vii) or (viii)" for "alternatives (vi) or (vii)," substituted "(vii) or (viii)" for "(vi) or (vii)," and substituted "each of these is" for "they are" in the last sentence; substituted "(vii) or (viii)" for "(vi) or (vii)" in the introductory language and the last paragraph of subsection C; and in subsection D, substituted "for whom a final order of adoption has not been entered" for "who has not been placed for adoption" in clause (ii), and in the third sentence, deleted "or § " following "16.1-277.02" and deleted "subsection F of" preceding " § 16.1-283."

The 2002 amendments. - The 2002 amendment by ch. 512 rewrote the section.

The 2008 amendments. - The 2008 amendments by cc. 475 and 483 are almost identical, and substituted "age 16 or over and the plan for the child is not independent living" for "not receiving services to achieve independent living status" at the end of clause (b) in subsection A; in the second paragraph of subsection A, in clause (v), deleted "direct the board or agency to provide the child with services to achieve independent living status," at the beginning and inserted "or over and the plan is independent living, direct the board or agency to provide the child with services to transition from foster care" at the end; and made minor stylistic changes.

The 2008 amendment by c. 678, in subsection A, in the first paragraph, deleted "or a public agency designated by the community policy and management team" following "board of social services" in clause (a), deleted "public agency" preceding "or child welfare" near the beginning of the second sentence; in the second paragraph, deleted "or public agency's" preceding "placement agreement" in clause (i); in the third paragraph, deleted "or public agency" following "placement with the board"; in subdivision A2 1, deleted "public agency" following "the board" twice in the first sentence; in subdivision A2 4, deleted "public agency" following "the board" twice in the first paragraph; in subdivision B 1, deleted "public agency" following "the board" twice in the first sentence; and in subdivision B 2 b, deleted "public agency" following "the board"; and made minor stylistic changes.

The 2011 amendments. - The 2011 amendment by c. 730, in the second paragraph of subsection A, inserted "been admitted to the United States as a refugee or asylee and has" in the first sentence and added the last sentence.

The 2013 amendments. - The 2013 amendment by c. 130, effective July 1, 2014, in subsection A, substituted "10 months" for "11 months" in the first sentence of the first paragraph and in the second sentence of the fourth paragraph, and substituted "30 days prior to the date of the permanency planning hearing scheduled by the court" for "within 10 months of the dispositional hearing at which the foster care plan was reviewed pursuant to § 16.1-281" at the end of the second sentence of the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 631, in the second paragraph of subsection A, substituted "a child who is 16 years of age or older" for "the child" twice in the first sentence; and added the last two sentences in subdivision A2 1; added subsection A3; and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 190 added the last two sentences in subdivision B 1 and the last sentence in subdivision B 2 b; inserted subsection C, and redesignated former subsection C as subsection D; and made minor stylistic changes.

The 2019 amendments. - The 2019 amendments by cc. 282 and 688 are identical, and added subsection D and redesignated former subsection D as subsection E, updated statutory references, and made stylistic changes.

The 2020 amendments. - The 2020 amendment by cc. 224 and 366 are identical, and in the second paragraph in subsection A and in subsection A1, inserted "or to fictive kin for the purpose of establishing eligibility for the Kinship Guardianship Assistance program pursuant to § 63.2-1305 ."

The 2020 amendment by c. 934 inserted the penultimate sentence in subsection A, second paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 254, effective July 1, 2021, inserted "Federal-Funded" preceding "Kinship Guardianship Assistance program" and inserted "or the State-Funded Kinship Guardianship Assistance program pursuant to § 63.2-1306 " in clause (ii) in the first sentence in the second paragraph in subsection A and in the first sentence in subsection A1.

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

CASE NOTES

Petition for permanency planning. - Because the petition for permanency planning was filed prior to the petition for termination of parental rights, the appellate court did not have to reach the proper interpretation of subsection A of Section 16.1-283; even if that statute requires a petition for permanency planning to be filed as a prerequisite to a petition for termination of parental rights, that was done here. Culpeper Cty. Dep't of Soc. Servs. v. Caison, Nos. 0867-19-4, 0900-19-4, 0901-19-4, 0902-19-4, 2020 Va. App. LEXIS 21 (Jan. 28, 2020).

Goal of adoption. - It was not error to adopt a permanency goal of adoption for a child whose grandmother had been appointed as the child's guardian, before the child was placed in foster care, because the grandmother failed to comply with a foster care service plan to improve the grandmother's circumstances to take care of the child, and the grandmother demonstrated failure to properly care for the child in the past. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

Because the circuit court did not err in terminating a mother's parental rights, it also did not err in approving the permanency goal of adoption. Johnson v. Loudoun Cty. Dep't of Family Servs., No. 1616-18-4, 2019 Va. App. LEXIS 123 (May 21, 2019).

Revised foster care plan. - Trial court did not err in denying a father's motion to strike on the ground that the local social services agency did not present sufficient evidence to support the approval of a revised foster care plan given the allegations of abuse and neglect prior to his arrest, his refusal to engage in recommended services, his inability to provide a stable home, and transferring the children to another foster home would have undermined the stability and continuity that they currently had. Essenmacher v. Lynchburg Dep't of Soc. Servs., Nos. 0086-17-3, 0087-17-3, 2018 Va. App. LEXIS 54 (Mar. 6, 2018).

Termination petition presented with foster care plan. - Statutory framework of the statute was followed because the juvenile and domestic relations district (JDR) court held a separate hearing related to the petitions for termination and entered orders terminating a mother's parental rights to the children on that date; the mother filed notices of appeal for the JDR court orders terminating her parental rights, and the prior appeals of the permanency planning orders did not affect the jurisdiction of the JDR court to consider termination petitions. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

Preservation for review. - Because a father did not make a contemporaneous objection at the trial level to the trial court's alleged lack of findings under subsection C of § 16.1-282.1 to support the termination of his parental rights, Va. Sup. Ct. R. 5A:18 barred consideration of his questions on appeal. Wright v. Lynchburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 92 (Mar. 10, 2009).

Applied in Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

§ 16.1-282.2. Annual foster care review.

  1. The court shall review a foster care plan annually for any child who remains in the legal custody of a local board of social services or a child welfare agency and (i) on whose behalf a petition to terminate parental rights has been granted, filed or ordered to be filed, (ii) who is placed in permanent foster care, or (iii) who is age 16 or over and for whom the plan is independent living. The foster care review hearing shall be scheduled at the conclusion of a hearing held pursuant to § 16.1-281, 16.1-282, or 16.1-282.1 at which the order is entered: terminating parental rights, directing the filing of a petition for termination of parental rights by the board or agency, placing the child in permanent foster care, or directing the board or agency to provide the child who is age 16 or over and for whom the plan is independent living with services to transition from foster care. The foster care review hearing shall be held within 12 months of the date of such order, so long as the child remains in the custody of the board or agency.

    The board or agency shall file the petition for a foster care review hearing, and the court shall provide notice of the foster care review hearing in accordance with the provisions of § 16.1-282. The board or agency shall file a written Adoption Progress Report with the juvenile court pursuant to § 16.1-277.01, 16.1-277.02, 16.1-278.3, or 16.1-283, if applicable, with the petition required by this section. The court order entered at the conclusion of the hearing held on the petition shall state whether reasonable efforts have been made to place the child in a timely manner in accordance with the approved foster care plan that established a permanent goal for the child and to complete the steps necessary to finalize the permanent placement of the child.

  2. At the foster care review hearing in the case of a child who is placed in permanent foster care, the court shall give consideration to the appropriateness of the services being provided to the child and permanent foster parents, to any change in circumstances since the entry of the order placing the child in permanent foster care, and to such other factors as the court deems proper.
  3. At the foster care review hearing in the case of a child who meets the criteria of subdivisions A 1 through 4 of § 16.1-283.2, the court shall inquire of the guardian ad litem and the local board of social services whether the child has expressed a preference that the possibility of restoring the parental rights of his parent or parents be investigated. If the child expresses or has expressed such a preference, the court shall direct the local board of social services or the child's guardian ad litem to conduct an investigation of the parent or parents. If, following such investigation, the local board of social services or the child's guardian ad litem deems it appropriate to do so, either may file a petition for the restoration of parental rights. A hearing on such petition shall be held as provided by § 16.1-283.2.
  4. In cases in which a child is placed by the local board of social services or a licensed child-placing agency in a qualified residential treatment program as defined in § 16.1-228, the provisions of subsection E of § 16.1-281 shall apply to any hearing held pursuant to this section.

    (2002, c. 512; 2008, cc. 475, 483; 2018, c. 104; 2019, cc. 282, 688.)

The 2008 amendments. - The 2008 amendments by cc. 475 and 483 are almost identical, and, in subsection A, substituted "who is age 16 or over and for whom the plan is independent living" for "who is receiving services to achieve independent living status" in clause (iii) and substituted "who is age 16 or over and for whom the plan is independent living with services to transition from foster care" for "with services to achieve independent living status" at the end of the second sentence; and made minor stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 104 added subsection C.

The 2019 amendments. - The 2019 amendments by cc. 282 and 688 are identical, and added subsection D.

Law review. - For essay, "Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth," see 53 U. Rich. L. Rev. 255 (2018).

CASE NOTES

Challenge to order amending foster care plan subsumed by affirmance of termination order. - Circuit court's order terminating a mother's parental rights to her oldest son was upheld on appeal, based upon her concession that her residual parental rights to her youngest child were previously terminated, and her ability to parent her oldest son was impaired by her history of drug abuse, criminal and incarceration record, exposure of that son to a convicted child molester, and failure to respond to prior rehabilitation efforts; moreover, this decision to affirm the termination of parental rights necessarily subsumed the mother's appeal of the circuit court's companion order amending the Department of Social Service's foster care plan to authorize adoption because a preponderance of the evidence standard governed judicial modifications of foster care plans. Slade v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 10 (Jan. 10, 2006).

Applied in Murphy v. Charlotte County Dep't of Soc. Servs., 57 Va. App. 784, 706 S.E.2d 546, 2011 Va. App. LEXIS 97 (2011).

§ 16.1-283. Termination of residual parental rights.

  1. The residual parental rights of a parent or parents may be terminated by the court as hereinafter provided in a separate proceeding if the petition specifically requests such relief. No petition seeking termination of residual parental rights shall be accepted by the court prior to the filing of a foster care plan, pursuant to § 16.1-281, which documents termination of residual parental rights as being in the best interests of the child. The court may hear and adjudicate a petition for termination of parental rights in the same proceeding in which the court has approved a foster care plan which documents that termination is in the best interests of the child. The court may terminate the residual parental rights of one parent without affecting the rights of the other parent. The local board of social services or a licensed child-placing agency need not have identified an available and eligible family to adopt a child for whom termination of parental rights is being sought prior to the entry of an order terminating parental rights.

    Any order terminating residual parental rights shall be accompanied by an order continuing or granting custody to a local board of social services or to a licensed child-placing agency or transferring custody to a person with a legitimate interest,. However, in such cases the court shall give a consideration to granting custody to a person with a legitimate interest, and if custody is not granted to a person with a legitimate interest, the judge shall communicate to the parties the basis for such decision either orally or in writing. An order continuing or granting custody to a local board of social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto.

    The summons shall be served upon the parent or parents and the other parties specified in § 16.1-263. Written notice of the hearing shall also be provided to the foster parents of the child, a relative providing care for the child, and any preadoptive parents for the child informing them that they may appear as witnesses at the hearing to give testimony and otherwise participate in the proceeding. The persons entitled to notice and an opportunity to be heard need not be made parties to the proceedings. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights. Service shall be made pursuant to § 16.1-264.

    A1. Any order transferring custody of the child to a person with a legitimate interest pursuant to subsection A shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a person with a legitimate interest should further provide, as appropriate, for any terms and conditions that would promote the child's interest and welfare.

  2. The residual parental rights of a parent or parents of a child found by the court to be neglected or abused and placed in foster care as a result of (i) court commitment; (ii) an entrustment agreement entered into by the parent or parents; or (iii) other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:
    1. The neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development; and
    2. It is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his parent or parents within a reasonable period of time. In making this determination, the court shall take into consideration the efforts made to rehabilitate the parent or parents by any public or private social, medical, mental health or other rehabilitative agencies prior to the child's initial placement in foster care.

      Proof of any of the following shall constitute prima facie evidence of the conditions set forth in subdivision B 2:

      1. The parent or parents have a mental or emotional illness or intellectual disability of such severity that there is no reasonable expectation that such parent will be able to undertake responsibility for the care needed by the child in accordance with his age and stage of development;
      2. The parent or parents have habitually abused or are addicted to intoxicating liquors, narcotics or other dangerous drugs to the extent that proper parental ability has been seriously impaired and the parent, without good cause, has not responded to or followed through with recommended and available treatment which could have improved the capacity for adequate parental functioning; or
      3. The parent or parents, without good cause, have not responded to or followed through with appropriate, available and reasonable rehabilitative efforts on the part of social, medical, mental health or other rehabilitative agencies designed to reduce, eliminate or prevent the neglect or abuse of the child.
  3. The residual parental rights of a parent or parents of a child placed in foster care as a result of court commitment, an entrustment agreement entered into by the parent or parents or other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:
    1. The parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child's placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition; or
    2. The parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child's foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Proof that the parent or parents, without good cause, have failed or been unable to make substantial progress towards elimination of the conditions which led to or required continuation of the child's foster care placement in accordance with their obligations under and within the time limits or goals set forth in a foster care plan filed with the court or any other plan jointly designed and agreed to by the parent or parents and a public or private social, medical, mental health or other rehabilitative agency shall constitute prima facie evidence of this condition. The court shall take into consideration the prior efforts of such agencies to rehabilitate the parent or parents prior to the placement of the child in foster care.
  4. The residual parental rights of a parent or parents of a child found by the court to be neglected or abused upon the ground of abandonment may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:
    1. The child was abandoned under such circumstances that either the identity or the whereabouts of the parent or parents cannot be determined; and
    2. The child's parent or parents, guardian, or relatives have not come forward to identify such child and claim a relationship to the child within three months following the issuance of an order by the court placing the child in foster care; and
    3. Diligent efforts have been made to locate the child's parent or parents, guardian, or relatives without avail.
  5. The residual parental rights of a parent or parents of a child who is in the custody of a local board or licensed child-placing agency may be terminated by the court if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) the parent has subjected any child to aggravated circumstances.

    As used in this section:

    "Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or a child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect: (i) evinces a wanton or depraved indifference to human life, or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.

    "Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse which place the child's health, safety and well-being at risk.

    "Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

    "Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once, but otherwise meets the definition of "aggravated circumstances."

    The local board or other child welfare agency having custody of the child shall not be required by the court to make reasonable efforts to reunite the child with a parent who has been convicted of one of the felonies specified in this subsection or who has been found by the court to have subjected any child to aggravated circumstances.

  6. The local board or licensed child-placing agency to which authority is given to place the child for adoption and consent thereto after an order terminating parental rights is entered shall file a written Adoption Progress Report with the juvenile court on the progress being made to place the child in an adoptive home. The report shall be filed with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first written Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.
  7. Notwithstanding any other provisions of this section, residual parental rights shall not be terminated if it is established that the child, if he is 14 years of age or older or otherwise of an age of discretion as determined by the court, objects to such termination. However, residual parental rights of a child 14 years of age or older may be terminated over the objection of the child, if the court finds that any disability of the child reduces the child's developmental age and that the child is not otherwise of an age of discretion.

    (1977, c. 559; 1978, c. 340; 1979, c. 281; 1980, c. 295; 1985, c. 584; 1987, c. 6; 1988, c. 791; 1998, c. 550; 1999, c. 889; 2000, c. 385; 2002, cc. 664, 729; 2012, cc. 476, 507; 2019, c. 434; 2021, Sp. Sess. I, c. 535.)

Cross references. - As to testimony of child by use of two-way closed-circuit television in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1521 . As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

As to meaning of child and related terms, see § 64.2-102 .

The 1998 amendment rewrote this section.

The 1999 amendment, in subsection A, deleted "public welfare or" following "local board of," and substituted "child-placing" for "care placing," and in the second paragraph deleted "public welfare or" following "local board of" in two places; inserted "of time" in subdivision C 2; deleted former subsection F, which read: "The residual parental rights of a parent or parents of a child may be terminated by the court if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that the residual parental rights of the parent to a sibling of the child have previously been involuntarily terminated;" redesignated former subsection G as present subsection F, inserted "Adoption Progress," and inserted "in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first written Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child" in said subsection; and redesignated former subsection H as present subsection G.

The 2000 amendments. - The 2000 amendment by c. 385 added "subject to the provisions of subsection A1 of this section" at the end of the first sentence of the second paragraph of subsection A; added subsection A1; and added the last sentence of subsection G.

The 2002 amendments. - The 2002 amendments by cc. 664 and 729 are identical, and in subsection E, substituted "that" for "which" following "jurisdiction" in clauses (ii) and (iii), deleted "or" preceding clause (iii), added clause (iv), added definitions for "aggravated circumstances," "chronic abuse," and "severe abuse," and added "or who has been found by the court to have subjected any child to aggravated circumstances" at the end of the last paragraph.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "The parent or parents have a mental or emotional illness or intellectual disability" for "The parent or parents are suffering from a mental or emotional illness or mental deficiency" in subdivision B 2 a; and made minor stylistic changes throughout the section.

The 2019 amendments. - The 2019 amendment by c. 434, substituted "person with a legitimate interest" for "relative or other interested individual" throughout; in the second paragraph of subsection A, substituted "person with a legitimate interest" for "relatives of the child, including grandparents"; in subsection A1, substituted "such person" for "the relative or other interested individual"; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 535, effective July 1, 2021, in subsection A in the second paragraph, substituted "or transferring custody to a person with a legitimate interest" for "or granting custody or guardianship to a person with a legitimate interest, subject to the provisions of subsection A1," and added "and if custody is not granted to a person with a legitimate interest, the judge shall communicate to the parties the basis for such decision either orally or in writing; and made a stylistic change.

Law review. - For survey of Virginia law on domestic relations for the year 1976-1977, see 63 Va. L. Rev. 1418 (1977). For comment on termination of parental rights, see 15 U. Rich. L. Rev. 213 (1980). For overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981). For survey of developments in Virginia domestic relations law for year 1979-1980, see 67 Va. L. Rev. 351 (1981). For article on termination of indigents' parental rights, see 16 U. Rich. L. Rev. 731 (1982). For comment on Doe v. Doe, 222 Va. 736 , 284 S.E.2d 799 (1981) as to fitness of homosexuals as parents, see 16 U. Rich. L. Rev. 851 (1982).

For essay, see "Terminating Parental Rights through a Backdoor in the Virginia Code: Adoptions Under section 63.2-1202 (H)," 48 U. Rich. L. Rev. 371 (2013).

For essay, "Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth," see 53 U. Rich. L. Rev. 255 (2018).

For comment, " 'In the Little World': Breaking Virginia's Foster-Care-to-Prison Pipeline Using Restorative Justice," see 54 U. Rich. L. Rev. 313 (2019).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 2; 6A M.J. Divorce and Alimony, § 53.1; 14A M.J. Parent and Child, §§ 4, 7, 11.

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - This section does not violate the provisions of the Va. Const., Art. I, §§ 1 and 11. Knox v. Lynchburg Div. of Social Servs., 223 Va. 213 , 288 S.E.2d 399 (1982).

This section is not void for vagueness, since the statute contains clear and specific guidelines for its application in particular cases. Helen W. v. Fairfax County Dep't of Human Dev., 12 Va. App. 877, 407 S.E.2d 25 (1991).

Nothing in the Constitution guarantees continuation of the parent-child relationship once fundamentally fair procedures have been followed to prove parental unfitness. Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 433 S.E.2d 500 (1993), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).

Due process requirement. - Due process requires the trial courts to comply strictly with the statutory scheme for disposition of child custody cases. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Before a state may sever completely and irrevocably the rights of a parent in his or her natural child, due process requires that the state support its allegations of parental unfitness by at least clear and convincing evidence. Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 433 S.E.2d 500 (1993), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).

Due process rights held not violated. - Where no evidence was presented that less drastic measures were available to the trial court, and the statutory requirements for termination of parental rights were met, the trial court's order terminating the parents' residual parental rights did not violate the parents' fourteenth amendment due process rights. Helen W. v. Fairfax County Dep't of Human Dev., 12 Va. App. 877, 407 S.E.2d 25 (1991).

Mother's due process rights were not violated by terminating her parental rights to her son where the Department of Social Services (DSS) provided her with one-on-one assistance from a therapeutic foster mother, mental retardation services, psychiatric treatment, employment counseling, and mentoring services; and there were no other services that DSS could provide. Given the son's cerebral palsy, seizure disorder, developmental delays, astigmatism, hearing problem, eczema, a tear duct deformity requiring several therapies and medications, and the mother's cognitive limitations, it was unlikely she would ever be able to parent the son. Porter v. Roanoke City Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 58 (Feb. 5, 2008).

Father had adequate notice of a termination proceeding because credible evidence supported the trial court's finding that a county department of social services made adequate efforts to give the father notice of the proceedings in the case; the department issued an order of publication in a local newspaper, and the father's due process rights were not violated when the order of publication was published in English because he would have been put on notice to seek a translation of the document. Perez-Velasquez v. Culpeper County Dep't of Soc. Servs., No. 0360-09-4, 2009 Va. App. LEXIS 293 (Ct. of Appeals June 30, 2009).

Court properly denied a mother's motion to dismiss a petition to terminate her parental rights based on alleged noncompliance with the notice requirements of subsection A of § 16.1-283, as the petitions, summonses, and notices provided her with notice sufficient to satisfy the threshold constitutional standard of fundamentally fair procedures, and she never expressed any doubt as to the nature of the proceedings. Burch v. Alexandria Dep't of Human Servs.,, 2012 Va. App. LEXIS 70 (Mar. 13, 2012).

Since the termination hearing began almost two years after the child entered foster care, the 12-month time period in this section was not arbitrary or capricious and resulted in a deprivation of due process. Hough v. Mathews Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 306 (Sept. 9, 2014).

In a parental rights termination case, a father's due process rights were not violated because the trial court ruled consistent with any applicable due process requirements. Rucker v. Alexandria Dep't of Cmty. & Human Servs., No. 0931-17-4, 2018 Va. App. LEXIS 110 (Apr. 24, 2018).

When the father appeared before the circuit court, the Juvenile and Domestic Relations District Court's ruling had been annulled, and, at that point, the father had approximately eight months' notice of the intention of the Department of Social Services to change the goal to adoption and termination of his parental rights; thus, the father had sufficient notice of the change, and his due process rights were not violated. Sabir v. Roanoke City Dep't of Soc. Servs., No. 1866-18-3, 2019 Va. App. LEXIS 126 (May 28, 2019).

Actual notice received. - In a parental rights termination case, the circuit court did not abuse its discretion in denying a mother's motion for a continuance because the evidence supported the circuit court's factual findings that the mother had actual notice of the termination hearing but did not appear. Santos v. Bedford Cty. Dep't of Soc. Servs., No. 0727-18-3, 2018 Va. App. LEXIS 292 (Oct. 30, 2018).

Construction of termination statutes. - Statutes terminating the legal relationship between parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982); Banes v. Pulaski Dep't of Social Servs., 1 Va. App. 463, 339 S.E.2d 902 (1986); Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Statutory scheme for constitutionally valid termination of residual parental rights in this Commonwealth is primarily embodied in this section. This scheme provides detailed procedures designed to protect the rights of the parents and their child and these procedures must be strictly followed before the courts are permitted to sever the natural and legal bond between parent and child. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Section provides new standards and safeguards. - This section provides standards and procedural safeguards for the termination of residual parental rights which were not present in the former statutory scheme. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Where natural parent is not given specific notice by petition seeking specific placement, and where substantial parental rights are at stake, a trial court has no jurisdiction to enter sua sponte an order terminating or reducing those parental rights. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Timing of decision. - Circuit court's ultimate termination decision regarding one child rendered moot any justiciable challenge to the delay in making that decision, and because the circuit court decided to deny the petition to terminate, it no longer mattered how much time it took to do so, but this did not leave the parties without a remedy in future cases, as they could seek relief by filing a complaint under the statute. Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 764 S.E.2d 284, 2014 Va. App. LEXIS 365 (Nov. 4, 2014).

Trial courts have broad discretion. - In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests. Reid v. Loudoun County Dep't of Soc. Servs., No. 3074-99-4, 2000 Va. App. LEXIS 515 (Ct. of Appeals July 18, 2000).

Standard for termination of parental rights. - Circuit court erred in denying a petition filed against a mother and a father terminating their parental rights by holding that both parents were victims of their poverty, as such was an incorrect standard to its review of the evidence; both the statutes and the case law governing termination of parental rights did not support the conclusion that severe poverty, per se, mitigated against termination. Dep't of Soc. Servs. v. Woodruff, No. 0416-04-3, 2004 Va. App. LEXIS 487 (Ct. of Appeals Oct. 12, 2004).

Standard of proof. - In order to deprive a parent of the custody of her children, proof of unfitness of the parent must be shown by clear, cogent, and convincing evidence. Robinette v. Keene, 2 Va. App. 578, 347 S.E.2d 156 (1986).

The department must present that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

There is a strong presumption in controversies between a parent and third parties that the best interests of children will be served by placing them in the custody of the natural parent. Robinette v. Keene, 2 Va. App. 578, 347 S.E.2d 156 (1986).

Burden of proof for restoring custodial rights. - Where a court has entered a final order divesting a parent of custodial rights, the burden is on the parent seeking custody to show that circumstances have so changed that it would be in the children's best interests to restore custody to the parent. Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921 , 265 S.E.2d 692 (1980); Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Where a prior order formally has divested a parent of custody, the presumption that in custody cases involving a controversy between parent and nonparent, the best interests of the child will be served when the child is placed in the custody of a fit parent is not applicable, and the burden rests on the parent to show that circumstances have so changed that it is in the best interests of the child to return custody to the parent. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Burden of proof on trial de novo. - On trial de novo in the circuit court of a juvenile and domestic court order terminating residual parental rights pursuant to this section, the burden rests upon the department to prove by clear and convincing evidence that such termination is in the best interests of the child and that: (1) the neglect or abuse suffered by such child presents a serious and substantial threat to his life, health, or development; and (2) it is not reasonably likely that the conditions which resulted in such neglect or abuse could be substantially corrected or eliminated so as to allow the child's safe return to his parents within a reasonable period of time. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

On appeal to circuit court brought by parents under § 16.1-136 from orders of the juvenile and domestic relations district court terminating their residual parental rights pursuant to this section, the circuit court erred in placing the burden of proof on the parents rather than the department, as should have occurred in a trial de novo. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

The burden is on the party petitioning for termination of parental rights to demonstrate by clear and convincing evidence that it is in the child's best interest for those rights to be terminated. Banes v. Pulaski Dep't of Social Servs., 1 Va. App. 463, 339 S.E.2d 902 (1986).

The burden is on the party petitioning for termination to prove by clear and convincing evidence that parental abuse or neglect threatens the child's life or well being, that the situation cannot be reasonably corrected after appropriate rehabilitative services have been offered, and that termination is in the child's best interest. Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 433 S.E.2d 500 (1993), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).

Should a proceeding be brought to terminate the parental rights of the plaintiff, the "clear and convincing" burden of proof standard and the elements set forth in this section will then apply. Padilla v. Norfolk Div. of Social Servs., 22 Va. App. 643, 472 S.E.2d 648 (1996).

Burden on Department of Social Services to establish compliance. - There is nothing in the statutory scheme which removes the burden on Department of Social Services to establish compliance with the statutes, which places the burden on the parents to protect their interests, or which operates as a waiver of their rights. To the contrary due process prohibits such procedure. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

This section provides the statutory framework for a court in this Commonwealth to terminate residual parental rights. Willis v. Gamez, 20 Va. App. 75, 455 S.E.2d 274 (1995).

This section embodies the statutory scheme for the termination of residual parental rights in this commonwealth, which provides detailed procedures designed to protect the rights of the parents and their child, balancing their interests while seeking to preserve the family. Patterson v. Nottoway County Dep't of Social Servs., No. 2528-99-2, 2000 Va. App. LEXIS 234 (Ct. of Appeals Mar. 28, 2000); Tibbitts v. Department of Soc. Servs., No. 2487-99-2, 2000 Va. App. LEXIS 274 (Ct. of Appeals Apr. 11, 2000); Pennybacker v. Spotsylvania County Dep't of Social Servs., No. 2599-99-2, 2000 Va. App. LEXIS 273 (Ct. of Appeals Apr. 11, 2000); Ripley v. Charlottesville Dep't of Social Servs., No. 2879-99-2, 2000 Va. App. LEXIS 307 (Ct. of Appeals Apr. 25, 2000).

Burden of proof. - Department of Social Services, not the mother, bore the burden of proving that parental rights should be terminated; thus, the argument that the mother did not present certain evidence supporting her ability to parent the child was irrelevant, and she was entitled to rely on the strong presumption that it was in the child's best interests to ultimately be returned to his parent. Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 764 S.E.2d 284, 2014 Va. App. LEXIS 365 (Nov. 4, 2014).

Burden of proof in this termination case remained with the department of family services, contrary to the mother's claim. Aijaz v. Fairfax County Dep't of Family Servs., No. 2247-14-4, 2015 Va. App. LEXIS 275 (Sept. 29, 2015).

Application of exclusionary rule to proceedings to terminate parental rights. - Even if a child was seized pursuant to an emergency removal order issued by a court without jurisdiction, dismissal of a related proceeding to terminate the mother's parental rights was not required because the Fourth Amendment exclusionary rule did not extend to civil cases. Paris v. City of Va. Beach Dep't of Soc. Servs., No. 2009-04-1, 2005 Va. App. LEXIS 30 (Ct. of Appeals Jan. 25, 2005).

Sufficient notice of consequences of proceeding. - Mother was sufficiently put on notice of the consequences of the termination proceedings as required by this section. When read together, the petitions, summonses, and notices provided sufficient notice, as the petitions clearly stated that the Department of Social Services was seeking the termination of mother's parental rights, including her right to visitation, right to consent to adoption, responsibility to support said child and all other rights and responsibilities remaining with her. Camp v. Fredericksburg Dep't of Soc. Servs., No. 1526-15-2, 2016 Va. App. LEXIS 231 (Ct. of Appeals Aug. 23, 2016).

No jurisdictional ambiguity. - Nothing in this section creates ambiguity concerning the court's jurisdiction. Willis v. Gamez, 20 Va. App. 75, 455 S.E.2d 274 (1995).

Trial court did not err when it denied a mother's motion to dismiss the Virginia Beach Department of Social Services' action to terminate the mother's parental rights based upon a petition filed in Norfolk because, even if a Virginia Beach juvenile and domestic relations court lacked jurisdiction to issue an emergency removal order pursuant to which the child was removed from the mother, the mother lost her parental rights through a petition that originated out of Norfolk, which was the proper venue and which had jurisdiction under § 16.1-241. Paris v. City of Va. Beach Dep't of Soc. Servs., No. 2009-04-1, 2005 Va. App. LEXIS 30 (Ct. of Appeals Jan. 25, 2005).

Court lacked jurisdiction. - As a mother had properly and timely executed written revocations of five permanent entrustment agreements with a charity, under subdivision C 2 of § 16.1-283, the court lacked jurisdiction to adjudicate the charity's petitions requesting termination of the mother's residual parental rights as to her five children. Norton v. Catholic Charities of the Diocese of Arlington, Inc., No. 1815-06-4, 2007 Va. App. LEXIS 407 (Ct. of Appeals Nov. 13, 2007).

Trial court erred in holding that a mother lacked a legitimate interest to seek visitation with her child and in denying her motion to reinstate because it lacked jurisdiction to terminate her parental rights under § 16.1-283 based on the parties' agreement to terminate the mother's parental rights, which was void as against public policy and unenforceable as a matter of law. Layne v. Layne, 61 Va. App. 32, 733 S.E.2d 139, 2012 Va. App. LEXIS 337 (2012).

With her petitions, the mother sought to terminate her parental rights to the girls, but she did not follow the statutory scheme, and thus the circuit court did not have jurisdiction to rule on the mother's requests and correctly held that it did not have the statutory authority to dissolve the adoptions; contrary to mother's argument, the circuit court did not have to cite legal authority for its ruling. Chand v. Chand, No. 0421-16-4, 2016 Va. App. LEXIS 253 (Ct. of Appeals Oct. 4, 2016).

Separate proceeding needed. - Where petition specifically sought the termination of parental rights, subsection A of this section required a separate proceeding as part of the procedure necessary to terminate residual parental rights. Cogan v. Fairfax County Dep't of Human Dev., No. 0019-93-4 (Ct. of Appeals Feb. 22, 1994).

The term "separate proceeding," as used in this section, means a hearing separate and distinct from an abuse and neglect adjudication, entrustment disposition, or foster care placement; the term does not mean that a totally separate case must be initiated in the juvenile court. Rather, the statute requires that initially, a petition must be filed specifically requesting termination of parental rights so that proper notice is given. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621 (1991).

Trial court did not err in hearing petitions for termination and custody simultaneously in a case where the mother was mentally retarded and the trial court was searching for a placement of her child because the mother was unable to care for the child; the term "separate proceeding" meant that the termination hearing had to be separate and distinct from an abuse and neglect adjudication, entrustment disposition, or foster care placement and review, and not necessarily a custody hearing. Rouse v. Russell County Dep't of Soc. Servs., No. 0944-04-3, 2005 Va. App. LEXIS 69 (Ct. of Appeals Feb. 15, 2005).

Because the term, "separate proceeding" in § 16.1-283 only required the trial court to hold a separate hearing to ensure that the termination issue was not confused with other issues to be resolved under the statutory scheme, and the trial court did hold separate hearings for the abused and neglected determination and the termination decision, the court did not err by dismissing the petitions for termination as premature. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 375, 719 S.E.2d 329, 2012 Va. App. LEXIS 1 (2012).

Motion to intervene. - Assuming that the circuit court erred in denying great-grandparents' motion to intervene in a mother's parental rights termination case, the error was harmless. Regardless of whether the great-grandparents intervened, the circuit court determined whether the great-grandparents were an appropriate placement according to subsection A1 of § 16.1-283, which was what the great-grandparents requested when they explained to the circuit court why they wanted to intervene. Harris v. Clarke Cnty. Dep't of Soc. Servs., No. 0262-16-4, 2016 Va. App. LEXIS 247 (Ct. of Appeals Sept. 27, 2016).

Moot argument. - Father's failure to challenge the circuit court's decision to terminate his parental rights to his three children under subsection B of § 16.1-283 rendered moot his argument that the evidence was insufficient to terminate his parental rights under subdivision C 2 of § 16.1-283. Allen v. Prince Edward Cty. Dep't of Soc. Servs., No. 0476-20-2, 2020 Va. App. LEXIS 238 (Oct. 6, 2020).

Termination and placement orders to be issued concurrently. - Subsection A requires two orders, issued concurrently: one terminating parental rights and the other placing custody of the child in a relative or a third party. Hawthorne v. Smyth County Dep't of Social Servs., 33 Va. App. 130, 531 S.E.2d 639, 2000 Va. App. LEXIS 570 (2000).

Final conviction order. - Final conviction order, in light of the other evidence presented, provided sufficient grounds for the circuit court to terminate a father's residual parental rights and rendered harmless its decision to combine the appeals of the dispositional and termination orders into a single proceeding. Castillo v. Loudoun Cty. Dep't of Family Servs., 68 Va. App. 547, 811 S.E.2d 835, 2018 Va. App. LEXIS 87 (2018).

Section silent as to who may initiate termination petition. - While § 16.1-282 specifies what parties, including the guardian ad litem, may request a review of a foster care plan, this section is silent as to who may initiate a termination petition. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621 (1991).

Power to file petition seeking termination of residual parental rights. - No specific statutory provision either grants or denies the guardian ad litem the power to file a petition seeking the termination of residual parental rights, but such action is implicit in the general charge of authority given the guardian ad litem in § 8.01-9 to represent faithfully the interests of the individual under disability for whom he or she is appointed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

A guardian ad litem has standing to file a petition for termination of residual parental rights. Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Petition under this section does not encompass petition for permanent foster care. - A petition for termination of parental rights pursuant to this section does not encompass a petition for permanent foster care. The latter is not a less drastic form of the former, but rather is a different and distinct alternative. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Guardian ad litem's petition incorporated into Department of Social Services' petition. - After the Department of Social Services's motion for a nonsuit in a termination of parental rights case was granted, the trial court erred in proceeding on a prior petition by a guardian ad litem (GAL) that had been incorporated into the Department's petition. The GAL's petition had become part of the Department's petition, and the nonsuit left no petition remaining. Lewis v. Sharman,, 2006 Va. App. LEXIS 557 (Dec. 12, 2006).

Appeal bond is not required from orders terminating parental rights. Casey v. Hopewell Dep't of Social Servs., 14 Va. App. 222, 415 S.E.2d 878 (1992).

Failure to name guardian ad litem, a necessary party, in notice of appeal required dismissal. - Because a mother failed to name an indispensable party in her notice of appeal from an order terminating her parental rights, or accompanying certificate of service, pursuant to Va. Sup. Ct. R. 5A:6(d), specifically, the guardian ad litem, and there was no evidence that the mother mailed or delivered a copy of the notice to the guardian ad litem within thirty days after entry of the final order, the appeals court never obtained personal jurisdiction over that party, resulting in the dismissal of her appeal. Powell v. Arlington County Dep't of Human Servs.,, 2008 Va. App. LEXIS 207 (Apr. 29, 2008).

Failure to grant continuance long enough to allow mother to be transported from federal custody was error. - In a termination of parental rights action, the trial court erred in not continuing the hearing long enough so that the mother could be transported from federal custody to the hearing; the mother was prejudiced because the mother was unable to participate in the proceeding that rendered the mother a legal stranger to the mother's biological children. Mabe v. Wythe County Dep't of Soc. Servs., 53 Va. App. 325, 671 S.E.2d 425, 2009 Va. App. LEXIS 35 (2009).

A final order terminating parental custodial rights does not sever residual parental rights. Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921 , 265 S.E.2d 692 (1980); Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Effect of extended imprisonment. - While long-term incarceration does not, per se, authorize termination of parental rights or negate the Department of Social Services' obligation to provide services which would strengthen the parent/child relationship, 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 of parental rights. Ferguson v. Stafford County Dep't of Social Servs., 14 Va. App. 333, 417 S.E.2d 1 (1992).

Although a parent's long-term incarceration does not, per se, warrant termination of parental rights, it is nevertheless a factor which may be considered in deciding the question. Stergiou v. Frederick County Dep't of Social Servs., No. 0156-99-4 (Ct. of Appeals Mar. 21, 2000).

While a parent's long-term incarceration is a factor for the court to consider, along with other evidence concerning the parent/child relationship, it does not, per se, authorize termination of parental rights or negate the obligation of the Department of Social Services to provide services. Fairfax County Dep't of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 Va. App. LEXIS 824 (Ct. of Appeals Dec. 19, 2000).

A parent who is incarcerated may not have her punishment enhanced by terminating her parental rights because of her imprisonment; any order terminating parental rights must be based on her prior neglectful treatment of her children and a failure to remedy the conditions in her home. Harris v. Lynchburg Div. of Social Servs., 223 Va. 235 , 288 S.E.2d 410 (1982).

While it may be occasionally necessary to sever the legal relationship between parent and child, those circumstances are rare. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Standard of review. - Trial court decision terminating one's parental rights, when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it. Inskeep v. Roanoke City Dep't of Soc. Servs., No. 1736-04-3, 2005 Va. App. LEXIS 55 (Ct. of Appeals Feb. 8, 2005).

Parent's challenge to sufficiency not reviewable. - Mother's challenge to the sufficiency of the evidence supporting the termination of the mother's parental rights was precluded by Va. Sup. Ct. R. 5A:18 because the mother made no motion to strike, to set aside, or to reconsider based on sufficiency grounds before the trial court. Brazell v. Fairfax County Dep't of Family Servs.,, 2008 Va. App. LEXIS 388 (Aug. 12, 2008).

Appellate review not necessary where termination was not challenged under all subsections upon which order was based. - Because the circuit court terminated the mother's parental rights based upon multiple subsections of this statute, it was unnecessary for the appellate court to examine mother's arguments regarding termination under other subsections. Green v. Halifax Cty .Dep't of Soc. Servs.,, 2018 Va. App. LEXIS 241 (Sept. 18, 2018).

Construction with adoption statutes. - Mother's equal protection rights were not violated when the circuit court granted an applicant's petition to adopt a child without the mother's consent pursuant to subsection H of § 63.2-1202 because the mother was not similarly situated to a person whose parental rights were involuntarily terminated by the state under § 16.1-283, where children were in the custody of the state and parental rights were in jeopardy of being terminated under the Virginia foster care statutes; unlike the foster care context, the government did not remove the child from the mother's custody, but rather, by entering into an entrustment agreement with the applicant, the mother voluntarily relinquished custody of the child. Copeland v. Todd, 282 Va. 183 , 715 S.E.2d 11 (2011), cert. denied, 132 S. Ct. 1918, 182 L. Ed. 2d 773 (U.S. 2012).

Goal of adoption approved. - Record supported the circuit court's decision to approve the goal of adoption in the permanency planning orders, given that the parents made no progress in improving their circumstances despite having received services for over two years, and the children were thriving in foster care. McGhee v. Henrico Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 272 (July 29, 2014).

Applied in Ward v. Commonwealth, Dep't of Social Servs., 13 Va. App. 144, 408 S.E.2d 921 (1991); Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 409 S.E.2d 16 (1991); Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 409 S.E.2d 460 (1991); Cage v. Harrisonburg Dep't of Social Servs., 13 Va. App. 246, 410 S.E.2d 405 (1991).

II. FOSTER CARE PLAN.

Permanent foster care not less drastic alternative to parental rights termination. - A petition for permanent foster care is not a less drastic alternative to termination of parental rights. The court can only consider permanent foster care after it has determined that adoption, upon termination of residual parental rights, is not an alternative in a given case. Given this statutory preference, permanent foster care is a distinct, and secondary, alternative to adoption. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621 (1991).

Legislative intent in foster care plan filing requirement. - In providing a foster care plan filing requirement in this section, the legislature contemplated that the most recent plan of record would recommend termination of parental rights. Thus this section implicitly requires that the petition seeking termination of parental rights be directly preceded or accompanied by a foster care plan documenting that termination of parental rights is in the best interests of the child. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621 (1991).

Initiating termination petition and foster care plan. - This section does not restrict the guardian ad litem from initiating a termination petition as long as the required foster care plan recommending termination has also been filed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621 (1991).

Termination petition presented with foster care plan recommending termination. - Under this section, no termination petition can be accepted by the court unless the local board of public welfare or social services (now local board of social services), or other child welfare agency, which has custody of the child, presents the court with a foster care plan recommending termination as being in the best interests of the child. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Where the Department of Social Services did not file a foster care plan that recommended termination of both parents' parental rights to their five children, the circuit judge was not authorized to terminate the parents' parental rights; moreover, if the Department wished to pursue termination of the parental rights, it had a duty to first file a foster care plan in the district court with the goal of terminating parental rights, and absent such, it failed to follow its obligations under both §§ 16.1-281 and 16.1-283. Strong v. Hampton Dep't of Soc. Servs., 45 Va. App. 317, 610 S.E.2d 873, 2005 Va. App. LEXIS 125 (2005).

Court of appeals found that it could not provide relief to a father who appealed a circuit court's decision affirming a juvenile and domestic relations (JDR) district court's order approving a foster care plan for his child because the father had not appealed a separate order issued by the JDR district court that terminated his residual parental rights. As such, nothing the court could do in the father's appeal - even if it reversed the foster care plan recommendations - would change the fact that the father had no parental rights left to protect. Najera v. Chesapeake Div. of Soc. Servs., 48 Va. App. 237, 629 S.E.2d 721, 2006 Va. App. LEXIS 219 (2006).

Statutory framework of the statute was followed because the juvenile and domestic relations district (JDR) court held a separate hearing related to the petitions for termination and entered orders terminating a mother's parental rights to the children on that date; the mother filed notices of appeal for the JDR court orders terminating her parental rights, and the prior appeals of the permanency planning orders did not affect the jurisdiction of the JDR court to consider termination petitions. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

Statute does not require the approval of a foster care plan with the goal of adoption before a court can consider a petition to terminate residual parental rights; rather, the statute requires the filing of the requisite foster care plan before a court can consider a petition to terminate residual parental rights. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

Because the department of human resources filed foster care plans in the juvenile and domestic relations district court court on April 30, 2013 and the petitions to terminate a mother's parental rights on May 13, 2013, the filings complied with the terms of the statute. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

Foster care plan is mandatory even though child was not in foster care. - Where natural parents appealed court order terminating their rights to their child, where no foster care plan was filed, and where adoptive mother argued that requirement of statute to fill foster care plan was not applicable since child was not in foster care, custody of child having been granted to adoptive mother by juvenile court prior to adoption proceedings, argument ignored intent of statute to provide wide array of services to parents and their children, and record showed mandatory provision of this section regarding termination of parental rights was not followed. Brown v. Ferguson, No. 0273-88-2 (Ct. of Appeals, Mar. 21, 1989).

Foster care plan need not be refiled in circuit court on appeal. - "The court" referred to in this section is the juvenile and domestic relations district court. Although the appeal to the circuit court requires a trial de novo, a refiling of the foster care plan in the circuit court, while perhaps advisable, is not required. Todaro v. Alexandria Dep't of Social Servs., 226 Va. 307 , 309 S.E.2d 303 (1983).

Circuit court did not improperly fail to consider a foster care plan on appeal of a termination of parental rights because the court followed Va. Code Ann. §§ 16.1-281 and 16.1-283 when the court found the plan had been filed and approved. Boatright v. Wise County Dep't of Soc. Servs., 64 Va. App. 71, 764 S.E.2d 724 (2014).

Court dismissed petition where failure to comply with section. - Where no plan documenting termination of parental rights as being in the best interests of the child was filed until the day following the first day of trial on appeal to the circuit court, the Department of Social Services' failure to comply with the requirements of this section and § 16.1-281 gave the circuit court no choice but to refuse to entertain further evidence on the matter and to dismiss the petition as legally and factually flawed. Campbell County Dep't of Social Servs. v. Wright, No. 1448-89-3 (Ct. of Appeals July 24, 1990).

Father's motion to change the foster care plan's goal to adoption and terminate his parental rights did not comply with the statutory scheme to terminate his parental rights and approve a goal of adoption because a foster care plan had to first be filed that recommended the termination of the father's parental rights, but no such foster care plan had been filed. Cisneros v. Arlington County Dep't of Human Servs., No. 0199-16-4, 2016 Va. App. LEXIS 261 (Ct. of Appeals Oct. 11, 2016).

Timely filing of foster care plan. - Where a mother argued that, pursuant to subsection A, a department of family services failed to timely file its foster care plans before filing a termination petition, the circuit court properly took judicial notice of the juvenile court's date stamp reflecting that the plans were timely filed. Upon the mother's appeal, the juvenile court's entire record went to the circuit court for retrial de novo as though the case had been originally brought there. Redditt v. Fairfax County Dep't of Family Servs., Nos. 0770-04-4, 0771-04-4, 0772-04-4, 0773-04-4, 2005 Va. App. LEXIS 3 (Ct. of Appeals Jan. 11, 2005).

Challenge to foster care plan subsumed in termination petition. - When a father claimed it was error to change the goal of the child's foster care plan from reunification to adoption, the claim was subsumed in a decision terminating the father's parental rights because the requirements for termination had to be shown by clear and convincing evidence, while a challenge to a foster care plan was considered under the less demanding preponderance-of-the-evidence standard. Martinez v. City of Portsmouth Dep't of Soc. Servs., No. 0739-13-1, 2013 Va. App. LEXIS 265 (Ct. of Appeals Sept. 24, 2013).

Former § 63.1-206.1 (see now § 63.2-908 ) not a vehicle for terminating parental rights. - Former § 63.1-206.1 (see now § 63.2-908 ) provides the statutory scheme for permanent foster care placement. That scheme is intended to provide a more permanent placement for a child in a particular foster home than is generally obtained in regular foster care, and yet does not, as in the case of adoption proceedings, serve as a vehicle for terminating parental rights. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Licensed social worker did not have to sign petition. - Claim that only a licensed social worker may sign a termination of parental rights petition under § 16.1-283 on behalf of the Alexandria Department of Human Services (DHS) is not supported either by a statute or the caselaw; instead, in cases where the actual authority of the signor is contested, the trial court should take evidence to determine whether the individual signing the petition did so with the express authority of DHS. Clayton v. Alexandria Dep't of Human Servs., No. 2819-07-4, 2008 Va. App. LEXIS 339 (July 22, 2008).

Foster care plan approved. - Order approving foster care plans with goal of adoption, as opposed to placement with the paternal grandmother, was supported by evidence that the grandmother's home was dirty and cluttered, the grandmother had a history of violence, the grandmother had her own children placed in foster care, and the grandmother needed help in parenting the children, despite having attended parenting classes. Saifi v. Fairfax County Dep't of Family Servs.,, 2010 Va. App. LEXIS 328 (Aug. 10, 2010).

III. FAMILY MEMBER OR INTERESTED INDIVIDUAL.

Duty to investigate placement with relatives. - The Department of Social Services has a duty to investigate placement of a child with relatives before the court terminates the parents' parental rights and this duty was not affected by the 1998 revision of this section. Hawthorne v. Smyth County Dep't of Social Servs., 33 Va. App. 130, 531 S.E.2d 639, 2000 Va. App. LEXIS 570 (2000).

Before termination of parental rights by the court, the agency seeking termination has an affirmative duty to investigate all reasonable options for placement with immediate relatives, but the agency does not have a duty to investigate the home of every relative of the children, however remote, as a potential placement. Carmon v. Richmond Dep't of Soc. Servs., No. 0036-01-2, 2001 Va. App. LEXIS 243 (Ct. of Appeals May 8, 2001).

A county department of social services (DSS) is mandated to produce sufficient evidence so that the court may properly determine whether there are relatives willing and suitable to take custody of the child, and to consider such relatives in comparison to other placement options; thus, where DSS investigated a father's mother as a possible placement for the father's child at the time of the child's removal and presented the facts to the trial court for its consideration, DSS complied with the mandate of § 16.1-283, and the court could not say that the trial court's decision to deny the petition of the father's mother for custody of the child was plainly wrong. Brown v. Spotsylvania Dep't of Soc. Servs., 43 Va. App. 205, 597 S.E.2d 214, 2004 Va. App. LEXIS 273 (2004).

Record showed that county social services agency did not adequately seek out and discover family members who might be interested in custody of the mother's child, especially since the record showed that the mother, who was mentally retarded, informed the county social services agency that the child had an aunt and uncle in South Carolina who might be interested in caring for the child; accordingly, the trial court's termination of the mother's parental rights was premature. Rouse v. Russell County Dep't of Soc. Servs., No. 0944-04-3, 2005 Va. App. LEXIS 69 (Ct. of Appeals Feb. 15, 2005).

Trial court exercised reasonable diligence in investigating five family members with whom the court sought to place a child prior to terminating the parent's residual parental rights as required by subsection A of § 16.1-283. There was no evidence any of the relatives the parent proffered for placement were suitable or willing to care for the child, particularly in light of the child's developmental delays. Adams v. Richmond Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 346 (July 8, 2008).

Where the Department of Social Services investigated the maternal grandmother, as identified by the mother, as a possible relative placement for the child, but found that the grandmother was not a suitable custodian based on the grandmother's health issues and other obligations, the Department made reasonable efforts and was not required to go in search of other possible relative placements not proffered by the mother. Goree v. Culpeper County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 326 (July 21, 2009).

Trial court did not err in rejecting the mother's sister as a suitable candidate for relative placement without further investigation by the Department of Social Services because the sister's testimony at the ore tenus hearing provided the trial court with sufficient evidence to determine whether the sister was a relative willing and suitable to take custody of the children. Dunn v. Commonwealth,, 2011 Va. App. LEXIS 17 (Jan. 18, 2011).

Trial court did not err in concluding that the Department of Social Services satisfactorily investigated possible relative placements pursuant to subsection A of § 16.1-283 because the department presented sufficient evidence to the trial court regarding the relatives offered by the parents as possible placements; the department was not required to undergo a vain and useless undertaking by investigating a Georgia aunt who was elderly and did not want custody of the children, and another aunt did not have suitable housing for the children. Harden v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 30 (Feb. 7, 2012).

Trial court did not err in concluding that the Department of Social Services satisfactorily investigated possible relative placements for children pursuant to subsection A of § 16.1-283 because the department presented sufficient evidence to the trial court regarding the relatives offered by the parents as possible placements; the department was not required to undergo a vain and useless undertaking by investigating a Georgia aunt who was elderly and did not want custody of the children, and another aunt did not have suitable housing for the children. Saunders v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 28 (Feb. 7, 2012).

In a termination of parental rights case, because the city's department of community and human services investigated the father's mother, aunt, and cousin as potential placement options under subsection A of § 16.1-283, but found them unsuitable, the trial court did not err in concluding that the department satisfactorily investigated possible relative placements. Alvarenga v. Alexandria Dep't of Cmty. & Human Servs.,, 2013 Va. App. LEXIS 86 (Mar. 19, 2013).

Contrary to mother's arguments, the social services department investigated several of the mother's relatives for placement, but her sister did not pick up the child from the hospital, the mother's brother had custody for three weeks, then returned the child, the grandmother was unable to care for the child, and although an aunt expressed interest in custody, she did not pursue it. Lindsey v. Stafford Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 14 (Jan. 20, 2015).

It was the responsibility of the department of social services to investigate all reasonable potential relative placements, but there was no evidence that the father's aunt was suitable or willing to care for the child, plus the father did not suggest the aunt and the department was not required to investigate the home of every relative; the department sent letters to relatives but received no responses, evaluating and investigating alternative placement is a very important part of the process when considering whether to terminate parental rights, and the trial court did not err in finding that the requirements were met in this case. Lafia v. Roanoke City Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 16 (Jan. 20, 2015).

Circuit court was not plainly wrong in finding that a county department of social services made reasonable efforts to investigate a mother's relatives and to place the children with relatives because department of social services was not required to consider a family member as a placement option after that individual was incarcerated or to make further efforts to investigate non-immediate family members; the great-aunt and great-uncle were not immediate relatives and never became engaged in the placement process. Lane-Alvis v. Richmond Dep't of Soc. Servs., No. 0609-17-2, 2018 Va. App. LEXIS 53 (Mar. 6, 2018).

Department of Social Services satisfied its duty to consider placement of the child with a relative prior to terminating the father's parental rights, finding that the grandmother had not attempted to forge a relationship with the child, while the child was in a stable and secure environment with foster parents, with whom she had a healthy relationship and her siblings, with whom she had a close bond. Desper v. Shenandoah Valley Dep't of Soc. Servs., No. 0634-18-3, 2018 Va. App. LEXIS 218 (Aug. 7, 2018).

Record supported the finding that the department sufficiently investigated possible relative placements where the maternal grandmother had not completed the paperwork and expressed doubt as to her husband's willingness to go through the process, and the department had not received positive responses from any possible relatives. Musolff v. Roanoke Cty. Dep't of Soc. Servs., No. 0521-18-3, 2018 Va. App. LEXIS 247 (Sept. 25, 2018).

Trial court did not err in finding that the Department of Social Services had no duty to investigate a person as a possible relative placement because there was no evidence to suggest that the person named in the note was a person with a legitimate interest, as the father could not recall her name or where she lived, and he had not asked her to come to any of the court hearings. Huff v. City of Fredericksburg Dep't of Soc. Servs., No. 0843-20-2, 2021 Va. App. LEXIS 16 (Feb. 2, 2021).

Termination of incarcerated parent's rights. - Trial court properly terminated incarcerated father's residual parental rights under subdivision C 2 of this section, as evidence was clear and convincing that beyond the biological fact of parentage, no relational history existed between the father and child, that father was not aware that he was child's father until the Department of Social Services contacted him, and that he never developed any type of relationship with the child; child's need for stability and proof that direct contact with father would be detrimental provided additional support that termination was in the child's best interest. Shaw v. City of Newport News Dep't of Soc. Servs., No. 2670-00-1, 2001 Va. App. LEXIS 456 (Ct. of Appeals July 31, 2001).

The Department of Social Services does not have a duty in every case to investigate the home of every relative of the children, however remote, as a potential placement. Sauer v. Franklin County Dep't of Social Servs., 18 Va. App. 769, 446 S.E.2d 640 (1994).

When investigation of grandparents for potential placement necessary. - A grandparent with whom a parent resides is obviously a potential option for placement of the children contemplated by subsection A of this section before resorting to the extreme measure of terminating ties between a parent and child. That the grandmother did not present herself to the Department of Social Services or the trial court as an alternative placement for the children to the termination of parental rights was not material. The Department had the duty to investigate her for that purpose; she did not have a duty to present herself as an alternative. Sauer v. Franklin County Dep't of Social Servs., 18 Va. App. 769, 446 S.E.2d 640 (1994).

Findings of adequacy of alternative placement options investigation. - Circuit court was not required to make an express finding as to the completion or adequacy of the department's investigation of maternal grandparents as an alternative placement option; the circuit court is only required to consider granting custody to persons with a legitimate interest, and the record showed that the circuit court considered placement with the grandparents, found that they had not done what was required to meet the child's needs, and dismissed their petitions for custody and visitation, which ruling was not plainly wrong. Harris v. Carroll Cty. Dep't of Soc. Servs., No. 0356-20-3, 2021 Va. App. LEXIS 26 (Feb. 23, 2021).

Maternal grandmother, as a former foster parent, did not have the right to ask the trial court to exercise its discretion to allow her to participate in termination proceedings as a party. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

When a child's maternal grandmother had been granted guardianship of the child, who was subsequently placed in foster care, it was not error to adopt a permanency goal of the child's adoption because, as a matter of Virginia law, the guardianship terminated when the child's mother's parental rights were terminated. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

Authority to grant grandparent's adoption petition, but not termination of parental rights petition. - Trial court did not have the authority to grant the grandmother's petition to terminate the father's parental rights, and the fact that the petition to terminate was attached to the grandmother's petition for adoption did not affect the trial court's ability to consider the petition for adoption; the trial court followed the statutory scheme when it granted the petition for adoption, and the trial court did not err in proceeding with the adoption petition after granting the motion to strike on the termination petition. Hardy v. Poston, No. 0869-14-3, 2014 Va. App. LEXIS 368 (Ct. of Appeals Nov. 4, 2014).

Placement with relatives. - Department of Social Services presented sufficient evidence for the trial court to consider the suitability of placing the child with relatives prior to terminating a father's parental rights. Giles v. Richmond Dep't of Soc. Servs., No. 0445-03-2, 2003 Va. App. LEXIS 400 (Ct. of Appeals July 15, 2003).

Social services agency satisfied its duty to investigate and present evidence of the suitability of children's relatives as suitable custodians for the children prior to an order terminating parental rights; the agency was not required to investigate the home of every relative, especially those whom the parents failed to suggest to the agency. Baker v. Frederick County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 26 (Jan. 24, 2006).

Trial court gave adequate consideration to the aunt as a potential custodian before determining that it would not be proper to place the two children with the aunt because the aunt was only 18-years-old, did not have a long employment history, and lived with a boyfriend at a location where she had resided less than six months; accordingly, the mother's parental rights in her two children were properly terminated. Holmes v. Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 17 (Jan. 17, 2006).

Because there was no relative with whom a father's child could be placed, the trial court properly found that it was in the child's best interests to change the goal of a permanency planning order from return to parent to adoption. Horton v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 76 (Feb. 28, 2006).

Court did not abuse its discretion in failing to consider the child's relative as alternatives to foster care where, the maternal grandmother was 79 years old, resided half the year in assisted living that did not allow children, had suffered a series of minor strokes, was a cancer survivor, and was unable to identify anyone to help the grandmother if the grandmother was unable to care for the child. Hey v. Arlington County Dep't of Human Servs.,, 2008 Va. App. LEXIS 572 (Dec. 30, 2008).

Paternal grandmother was not a reasonable or viable option for relative placement for the mother's older child, because the grandmother had little understanding of the child's needs and had the potential for abusive or neglectful behavior. Rivera v. Fairfax County Dep't of Family Servs.,, 2009 Va. App. LEXIS 101 (Mar. 10, 2009).

Because the circuit court considered granting custody of a mother's children to relatives and because there was sufficient evidence to support its decision to approve the goal of adoption, the circuit court did not err in terminating the mother's residual parental rights pursuant to subdivision C 2 of § 16.1-283. Summers v. Alexandria Dep't of Human Servs.,, 2009 Va. App. LEXIS 281 (June 23, 2009).

Trial court did not err in failing to investigate relative placement with the father's brother as required by § 16.1-283, but the brother was reluctant to ask for custody, did not have the enthusiasm or willingness to do what was necessary to undertake responsibility for the girls, and failed to file a petition for custody, despite testifying that he wanted custody. Osorio v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2010 Va. App. LEXIS 430 (Nov. 9, 2010).

While the Department of Social Services did investigate relative placement prior to terminating the mother's parental rights, none of the possibilities worked out, as one relative had health problems and would have needed help caring for the children and another failed to follow through with the home study. Wingo v. Tazewell County Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 66 (Feb. 22, 2011).

Because the Department of Human Services exhausted all reasonable options for placement of a child with known relatives, it satisfied the mandate of subsection A of § 16.1-283; therefore, the trial court had sufficient evidence to determine that relative placement was not appropriate and to terminate a father's residual parental rights. Romero v. Alexandria Dep't of Human Servs.,, 2011 Va. App. LEXIS 412 (Dec. 28, 2011).

Because a couple was not related to a child by blood, marriage, or adoption, they were not the child's "relatives" under subsection A of § 16.1-283; therefore, they did not qualify as "immediate relatives" entitled to consideration for custody of the child after the mother's parental rights were terminated. Bagley v. City of Richmond Dep't of Soc. Servs., 59 Va. App. 522, 721 S.E.2d 21, 2012 Va. App. LEXIS 23 (2012).

Trial court did not err in determining that there were no suitable relatives for placement as, although the Department of Social Services was aware of relatives, none were suitable, or came forward, that were worthy of study. Gibson v. Wise County Dep't of Soc. Servs., No. 2309-12-3, 2013 Va. App. LEXIS 181 (Ct. of Appeals June 11, 2013).

Evidence showed that the department investigated relative placement and found no suitable relative placement for the children, and the mother's argument to the contrary was without merit. Harper v. Alexandria Dep't of Cmty. & Human Servs., No. 2237-14-4, 2015 Va. App. LEXIS 203 (June 23, 2015).

In a termination of parental rights case, the trial court did not err in placing the child with the mother's cousin because placement with the paternal grandmother was not in the child's best interests as she would allow the father, who had been convicted of the rape and aggravated sexual battery of one of his biological children, to live with her and to contact his children if he were released from prison, and another living adjustment would be damaging in itself and not in the child's best interest considering that the child was happy where she was and doing well; and the mother's cousin testified that the child was doing very well at his home, and that he was willing and qualified to care for and provide a suitable home for the child. Bishop v. Albemarle Cty. Dep't of Soc. Servs., No. 1635-17-2, 2018 Va. App. LEXIS 234 (Aug. 28, 2018).

Termination of a mother's parental rights was appropriate because there were no suitable relative placements as it was not in the child's best interests to be sent to another state to live with an uncle whom the child did not know well when the child had a local support system that was actively addressing the child's special needs. Baldwin v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1994-19-3, 2020 Va. App. LEXIS 203 (July 14, 2020).

Termination of a father's parental rights to the father's children, and approval of foster care goal of adoption, was appropriate because the circuit court did not abuse its discretion by finding that the county department of social services satisfactorily investigated relative placement options and by concluding that placement with the paternal aunt whom the father told the department was interested in custody was not appropriate. Wade v. Amherst Cty. Dep't of Soc. Servs., No. 0183-20-3, 2020 Va. App. LEXIS 257 (Oct. 27, 2020).

Placement with relatives not viable. - Record supported the finding that the father's sister was not a viable relative placement, as she appeared to have had limited contact with the children and had little knowledge about their needs, plus she had no experience in raising children and the evidence did not show she was qualified to care for the children, who had significant issues. Hensley v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 103 (Mar. 18, 2014).

Trial court did not err in finding that a mother's sister was not a suitable relative placement because it detailed its concerns with placing the children with the sister, stating that the sister and her boyfriend were not aware of the special needs of the mother's children. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

In giving consideration to granting custody to relatives, the maternal grandparents failed to comply with department goals so they could be considered a viable placement, and they did not maintain adequate housing, provide certain documentation, or demonstrate an ability to meet the children's needs; as there were no other suitable relatives willing to care for the children, the trial court did not err in approving the foster care plans with the goal of adoption. Dennis v. York-Poquoson Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 267 (July 29, 2014).

Trial court did not abuse its discretion in determining that there were no suitable relatives for placement of the children where the testimony of the maternal grandmother and maternal aunt was sufficient to evaluate them as possible placements, and both had been involved in incidents that caused concern. Cromartie v. Hopewell Dep't of Soc. Servs., No. 1943-15-2, 2016 Va. App. LEXIS 179 (Ct. of Appeals May 31, 2016).

Evidence supported the decision that certain relatives were not a proper placement for the children, as one relative had several health issues, was 66 years old, and was rarely observed standing, and the other relative worked outside the home and indicated that he saw no signs of neglect prior the children's removal from the parents' home. Wooddell v. Harrisonburg-Rockingham Soc. Servs. Dist., Nos. 0316-16-3, 0338-16-3, 2016 Va. App. LEXIS 262 (Ct. of Appeals Oct. 11, 2016).

In a case where grandparents were seeking custody, the evidence showed that they were unqualified to care for the children and uncommitted to maintaining a continuous relationship with them; They unaware of the special needs of the children and how to effectively address them. Moreover, the few visits that the grandparents had with the children went poorly. Campbell v. Lynchburg Dep't of Soc. Servs., Nos. 0882-16-3, 1401-16-3, 1402-16-3, 1403-16-3, 2017 Va. App. LEXIS 73 (Mar. 14, 2017).

Circuit court did not err in finding that no reasonable alternatives existed to termination because it implicitly gave sufficient consideration to granting custody to relatives of the child; the circuit court stated that the maternal grandmother was not an appropriate placement because she had not gone through the process and that the department of social services had not gone through the investigative process since the grandmother withdrew her petition for custody. Stanley v. Bristol Dep't of Soc. Servs., Nos. 1189-16-3, 1449-16-3, 2017 Va. App. LEXIS 92 (Mar. 28, 2017).

Trial court did not err in finding that the Social Services District investigated possible relative placements but found they were not suitable, as one set of possible placements had children previously removed from their care and the other did not complete the paperwork, were not in good health, and one had some sort of inappropriate touching with a child. Daywalt v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0399-18-3, 2018 Va. App. LEXIS 187 (July 10, 2018).

Termination of a father's parental rights instead of placement of the child with the paternal grandfather was appropriate because the court found that it was not in the child's best interest to grant custody to the grandfather as the child had significant physical and mental issues which required therapy and it would have been difficult for the elderly grandfather to have raised the child. The child needed a permanent home, which the grandfather was unable to provide in the long term, while the foster parents wanted to adopt the child. Sonberg v. City of Virginia Beach Dep't of Human Servs., No. 1655-18-1, 2019 Va. App. LEXIS 149 (June 25, 2019).

Circuit court clearly considered relative placement before it terminated a mother's parental rights, and credible evidence supported its decision not to place the child with the paternal grandfather because the child had significant physical and mental issues; the paternal grandfather was seventy-five years old and not in the best condition; and the circuit court found that it would be really difficult for the grandfather to raise the child. Hobson v. City of Virginia Beach Dep't of Human Servs., Nos. 1980-18-1, 0260-19-1, 2019 Va. App. LEXIS 146 (June 25, 2019).

Trial court did not err in finding that the children's maternal aunt was not a suitable relative placement because it found that the aunt gave incomplete and evasive answers at the hearing, it was concerned that she had untreated psychological issues, she refused to disclose information about her boyfriend, the trial court found that the aunt's home presented conflict and the potential for violence between her oldest child and the children, and the trial court found that there was a possibility that the aunt would allow unsanctioned and unsupervised visitation with the mother. Thompson v. Richmond Dep't of Soc. Servs., No. 1599-19-2, 2020 Va. App. LEXIS 141 (May 5, 2020).

Circuit court did not err in terminating the father's parental rights because the maternal aunt was not a suitable relative placement as she was not able to adequately provide a suitable home for the children or protect the children from abuse and neglect; the aunt's home presented conflict and the potential for violence between the aunt's oldest child and the children; and there was a possibility that the aunt would allow unsanctioned and unsupervised visitation to the mother. Further, termination was proper as the parents had stipulated that the factors in this statute had been met; the children were doing well in foster care; and it was in their best interests. Hughes v. Richmond Dep't of Soc. Servs., No. 2017-19-2, 2020 Va. App. LEXIS 137 (May 5, 2020).

Circuit court did not err in terminating father's parental rights and approving the goal of adoption; although the circuit court found that grandmother was a person with a legitimate interest for placement purposes, after examining the statutory factors, the circuit court determined she could not provide a permanent, suitable home for the child. Grandmother's home had limited space for the child, grandmother did not work and relied on her husband to provide for her, and she lacked the ability to make sure the child was not neglected. Higgins v. Bedford Cty. Dep't of Soc. Servs., No. 0359-21-3, 2021 Va. App. LEXIS 162 (Aug. 31, 2021).

Standing to appeal. - Maternal grandparents only had standing to appeal the circuit court's denial of their petitions for custody and visitation, which they did not assign as error; they did not have any legal right to assert that the mother's parental rights should not have been terminated. Harris v. Carroll Cty. Dep't of Soc. Servs., No. 0356-20-3, 2021 Va. App. LEXIS 26 (Feb. 23, 2021).

IV. REHABILITATIVE EFFORTS.

Failure of DSS to offer services. - When there is undisputed evidence that the Department of Social Services has not offered a parent reasonable and appropriate services, reversal of a termination order is required. Fairfax County Dep't of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 Va. App. LEXIS 824 (Ct. of Appeals Dec. 19, 2000).

Failure of a petitioning agency to offer assistance to a parent, a condition precedent to the termination of parental rights, prohibited the termination of parental rights. Jenkins v. Richmond Dep't of Soc. Servs., No. 1224-01-2, 2002 Va. App. LEXIS 41 (Ct. of Appeals Jan. 29, 2002).

Trial court did not err in entering a judgment that terminated the father's parental rights in the two children he had with the wife; even though it was true that the county social services department did not offer him rehabilitative services, the termination of his parental rights were due to his abuse of other children residing with the father and his incarceration, and, thus, the county social services department was not required to provide reasonable and necessary social services, as it was not reasonably likely that the conditions which led to the abuse could be substantially corrected or eliminated so as to allow the safe return of the children to the father within a reasonable period of time. King v. Carroll County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 124 (Apr. 4, 2006).

Incarceration alone does not meet evidentiary requirements for termination of residual parental rights. Cain v. Commonwealth ex rel. Dep't of Social Servs. ex rel. City of Roanoke, 12 Va. App. 42, 402 S.E.2d 682 (1991).

Father's incarceration, standing alone, was insufficient to support the termination of his parental rights, but it was a valid and proper circumstance which, when combined with other evidence about the parent/child relationship, supported the termination of the father's rights; the father had no bond with his three year old child, and had seen her once, while he was in prison. Scott v. Spotsylvania Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 321 (Aug. 23, 2005).

Because a trial court's decisions to change a goal from return home to adoption and to terminate a father's parental rights were based solely upon the father's incarceration, the trial court erred in denying the father's motion to rehear upon his early release from prison. Watkins v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 419 (Sept. 19, 2006).

Because a mother's incarceration was the only factor supporting termination of her parental rights and the only reason that the mother was unable to timely remedy the conditions that led to her child's placement in foster care, the trial court erred in finding that termination of the mother's parental rights was in her child's best interest; the mother had shown a willingness and ability to take advantage of all the parenting and skill development classes offered to her during her incarceration, had continual contact with her child during her incarceration by having visits with him once or twice a month and by sending him notes, cards, and worksheets, and upon her release, planned to pay off her debts, provide stable housing, and provide stable care for her child. Before incarceration the mother ably parented her child. Wooten v. County of Henrico Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 96 (Mar. 13, 2007).

In a case in which a mother appealed from an order terminating her parental rights to her child, the record provided sufficient evidence to prove that a county department of social services provided reasonable and appropriate services, but the mother was reluctant to use the services. Lambert v. Appomattox Cnty. Dep't of Soc. Servs., No. 1926-15-2, 2016 Va. App. LEXIS 144 (Ct. of Appeals May 3, 2016).

Record must demonstrate that all appropriate, available and reasonable efforts were taken by social agencies to remedy the conditions leading to the infant's foster care placement. Banes v. Pulaski Dep't of Social Servs., 1 Va. App. 463, 339 S.E.2d 902 (1986).

The evidence must show that "reasonable and appropriate efforts" were made by social agencies to remedy the conditions leading to foster care by less severe means of intervention and through rehabilitative services. Only after the failure of those efforts to remedy the conditions leading to foster care may the state sever the parental rights. Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 433 S.E.2d 500 (1993), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).

Department of Human Services (DHS) made reasonable and appropriate efforts to assist a parent, considering the circumstances of the parent's situation, as the DHS tried to meet with the parent before the parent was incarcerated, but the parent did not show up for the appointment. The parent did not contact the DHS when the parent was released. Welch v. Newport News Dep't of Human Servs.,, 2008 Va. App. LEXIS 397 (Aug. 19, 2008).

Provision of services to parent. - There was no merit to father's contention that department failed to provide him with appropriate services to address his underlying problem with alcohol. Eckley v. City of Va. Beach Dep't of Social Servs., No. 1863-99-1 (Ct. of Appeals Feb. 8, 2000).

Father failed to demonstrate department's failure to meet its statutory obligation to provide him with services, where department was unable to contact father because his whereabouts were unknown, and father made no attempt to contact child throughout years child was in custody of department. Fields v. Hopewell Dep't of Social Servs., No. 1936-99-2 (Ct. of Appeals Feb. 8, 2000).

Subsection B does not require the same level of effort on its part to provide assistance as does subdivision C 2. Richmond Dep't of Soc. Servs. v. Enriquez, No. 1650-03-2, 2004 Va. App. LEXIS 341 (Ct. of Appeals July 13, 2004).

Record contained evidence from which the trial court could find that the Henrico County, Virginia, Department of Social Services made reasonable and appropriate efforts to communicate with a child's parent and to strengthen the parent's limited relationship with the child. A foster care worker called and wrote letters to the parent and encouraged the parent to write cards and letters to the child to establish a relationship with the child. McDonald v. Henrico County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 125 (Mar. 11, 2008).

Evidence supported the trial court's finding that a county department of family services provided sufficient rehabilitative services to a mother because the department provided the mother with information regarding housing, arranged for her to have psychological evaluations, provided home-based services, and arranged for visitations between the mother and the children; the trial court found that the department's efforts were significant and meaningful. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

Department offered the mother services while she was incarcerated, including encouraging her to take parenting classes, keeping her informed of the child's progress and health, and updating her on the foster care plans and participating with her in family partnership meetings; the department offered reasonable and appropriate services. Lindsey v. Stafford Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 14 (Jan. 20, 2015).

Department of community and human services was not required to provide a father services prior to the child's placement in foster care. Regarding the services that were provided to the father while the child was in foster care, the trial court had credible evidence to support its finding and was not plainly wrong in its determination. Rucker v. Alexandria Dep't of Cmty. & Human Servs., No. 0931-17-4, 2018 Va. App. LEXIS 110 (Apr. 24, 2018).

Clear and convincing evidence supported the finding that the Department of Human Services made reasonable efforts to help the mother, including offering services to improve her parenting skills, marital and family dynamics, resiliency, and relationships with her children. Thrasher v. Newport News Dep't of Human Servs., No. 1323-17-1, 2018 Va. App. LEXIS 221 (Aug. 14, 2018).

County department of family services provided reasonable and appropriate services to parents to help remedy the conditions that led to, and required the continuation of, foster care, because the department provided the family numerous services, but the father refused all the services. Accordingly, the termination of the father's parental rights and the approval of the goal of adoption was appropriate because the father had not substantially corrected the conditions that led to the findings of neglect and abuse. Rivas v. Fairfax Cty. Dep't of Family Servs., No. 1828-18-4, 2019 Va. App. LEXIS 84 (Apr. 9, 2019).

Parent's mental deficiency does not excuse failure to correct causes for placement. - A parent's mental deficiency that is of such severity that there is no reasonable expectation that such parent will be able within a reasonable period of time befitting the child's best interests to undertake responsibility for the care needed by the child in accordance with the child's age and stage of development does not constitute "good cause" under subdivision C 2 so as to constitute a valid legal excuse for that parent's inability to timely cure the circumstances that led to the child's foster care placement. Richmond Dep't of Soc. Servs. v. L.P., 35 Va. App. 573, 546 S.E.2d 749, 2001 Va. App. LEXIS 298 (2001).

Nor does mother's developmental disorder. - Termination of the mother's parental rights based on a failure to remedy the conditions that led to the child's removal was supported by evidence that the mother had a developmental disorder that prevented the mother from responding to the child's needs; while the mother was able to learn to feed and diaper the child, the mother would not have been able to master other skills before the child's development entered its next stage. Hey v. Arlington County Dep't of Human Servs.,, 2008 Va. App. LEXIS 572 (Dec. 30, 2008).

Mother's depression and mild mental retardation supported termination of her parental rights where she had poor insight into dangers and was not able to protect her child, she did not recognize how to overcome conflict and did not know the logical consequences of her acts, she had made no progress in implementing the parenting skills taught her, and her daughter was difficult to manage. Kenny v. Richmond Dept. of Social Services, No. 1483-97-2 (Ct. of Appeals June 30, 1998).

Mother's mental illness. - Social services district proved by clear and convincing evidence that termination of the mother's parental rights was proper and in the children's best interests, given that: (1) the mother was a paranoid schizophrenic and had a depressive disorder, for which the mother failed to follow through with recommended treatment; (2) the mother did not confront or manage her mental illness during the year after the children's removal and the mental illness presented a serious threat to the children's well-being; and (3) contrary to the mother's assertion, the termination was based on the mother's inability to control her mental illness, not on her refusal to take medication. Willis v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2006 Va. App. LEXIS 77 (Feb. 28, 2006).

Child with health and developmental problems. - Mother's expressed plans were insufficient to meet best interests of child with health and developmental problems, and willingness of mother and her aunt to care for child was not based on an informed assessment of their ability to meet child's needs. Marlowe v. Chesterfield/Colonial Heights Dep't of Social Servs., No. 1913-99-2 (Ct. of Appeals Feb. 15, 2000).

Trial court did not abuse its discretion in concluding that a minor child, although chronologically fourteen years of age, had a disability that reduced her developmental age and that she was not otherwise of an age of discretion. Accordingly, the trial court did not err in denying the mother's motion that the trial judge talk to the child in chambers during the mother's termination of parental rights hearing. Brown v. Norfolk Div. of Soc. Servs.,, 2005 Va. App. LEXIS 302 (Aug. 2, 2005).

Continuation to allow further services to parent. - In addition to statutorily created alternatives to termination of residual parental rights, the trial court may use its discretion to continue a case on its docket in order to allow further services to be rendered to a parent in the hope that termination of the parent's residual parental rights would not be necessary. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Inpatient treatment not offered. - Social services department paid off the mother's balance so she could continue with certain classes, and even though the department failed to offer her inpatient treatment for her drug issues, such treatment was not suggested by the assessors and her counselors did not believe that such treatment would have been successful, as she denied she had a drug problem; the trial court, which also had concerns about the mother's domestic violence history and her inability to provide a safe environment for the children, did not err in terminating the mother's rights even though she was not offered inpatient treatment. Blocker v. Lynchburg Dep't of Soc. Servs., No. 1226-15-3, 2016 Va. App. LEXIS 77 (Ct. of Appeals Mar. 15, 2016).

Department of Social Services did not unlawfully transfer mandate to provide services. - County department of social services did not unlawfully transfer its mandate to provide services to a mother to a third party because the statute permitted the use of private service providers for certain functions, such as attempting to address a parent's mental health problems; the statute contemplates the provision of some services by private entities. Lane-Alvis v. Richmond Dep't of Soc. Servs., No. 0609-17-2, 2018 Va. App. LEXIS 53 (Mar. 6, 2018).

The evidence supported the trial court's finding that the Department of Human Development met its statutory obligation to make reasonable and appropriate efforts to assist mother to remedy the circumstances which led to the foster care placement of her children. Rudin v. Fairfax County Dep't of Human Dev., No. 1658-93-4 (Ct. of Appeals, Apr. 19, 1994).

Record demonstrated that social services agency provided adequate services to mother following her release from prison, and that termination of her parental rights was in her child's best interests. Murphy v. Norfolk Div. of Social Servs., No. 1474-99-1 (Ct. of Appeals Dec. 7, 1999).

Where over an 18-month period the Department of Social Services provided the mother with 23 different services in order to teach the mother skills to care for the infant, and the efforts did not improve the mother's care, the evidence supported the termination of the mother's parental rights under subdivision C 2 of § 16.1-283, as the mother, for a period exceeding 12 months, failed to substantially remedy those conditions that led to the child's foster care placement, notwithstanding the department's reasonable efforts to assist the mother. Taylor v. Wash. County Dep't of Soc. Servs., No. 1074-02-3, 2002 Va. App. LEXIS 677 (Ct. of Appeals Nov. 12, 2002).

Under subdivision C 2 of § 16.1-283, a department of social services, is not required to force its services upon an unwilling or uninterested parent, unable within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions that led to or required continuation of the child's foster care placement, notwithstanding the reasonable and appropriate efforts of the department. Kirby v. Richmond Dep't of Soc. Servs., No. 1126-03-2, 2003 Va. App. LEXIS 487 (Ct. of Appeals Sept. 30, 2003).

County department of social services went to extraordinary efforts to offer remedial services before and after the goal of its permanency planning orders was changed to "placement with relative"; the termination of a mother's parental rights resulted from: (1) her refusal to admit her drug dependency; (2) her refusal to follow through with counseling; (3) her continued abusive relationship with her partner; and (4) the fact that the children had been in foster care from 10 to 17 months. Hogue v. Alexandria Dep't of Soc. Servs., No. 3063-03-4, 2004 Va. App. LEXIS 466 (Ct. of Appeals Oct. 5, 2004).

Evidence showed that Wythe County Department of Social Services (DSS) made reasonable and appropriate efforts to reunite the father and the child, where DSS offered parenting skills classes to the father, but the father failed to take advantage of the opportunities presented, and the reduction in the length of the father's visits with the child resulted from the father's unwillingness to preclude the father's mother from attending the visits. Weaver v. Wythe County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 117 (Mar. 17, 2009).

Evidence sufficiently showed that reasonable and appropriate services were provided to the mother before the mother's parental rights were terminated. Beginning in 1992, the social services department offered the mother a slew of counseling services and psychological assessments. Hernandez v. Chesterfield-Colonial Heights Dep't of Soc. Servs., No. 2203-08-2, 2009 Va. App. LEXIS 221 (May 12, 2009).

Trial court did not err in terminating the father's parental rights under subdivision C 2 of § 16.1-283 because the Virginia Department of Human Services clearly made reasonable and appropriate efforts to assist the father, but he was not cooperative; the Department informed the father about the child's situation and encouraged him to stay in contact with it, but the father did not do so and did not notify the Department when he moved, and the Department arranged visitation between the child and the father, yet the father visited the child only twice while she was in foster care. Lannigan v. Va. Beach Dep't of Human Servs., No. 2503-10-1, 2011 Va. App. LEXIS 231 (Ct. of Appeals July 12, 2011).

Termination of the mother's parental rights was appropriate pursuant to subdivision C 1 of § 16.1-283 because the Department of Social Services provided reasonable and appropriate services to the mother. The Department set a schedule of supervised visits in response to the mother's desire for visitation and the Department referred the mother to employment services. Huffman v. Roanoke City Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 226 (July 5, 2011).

Sufficient evidence supported a trial court's determination that a department of human services made reasonable and appropriate efforts to strengthen a mother's relationship with the mother's child because (1) the mother was offered a referral for a psychological evaluation in order to have unsupervised visitation with the child but did not complete the evaluation, and (2) it was reasonable to not provide further efforts or services for the mother based on the mother's inconsistent involvement and consistent representation that the mother was not a placement option, so it was not an abuse of discretion to find the department extended reasonable and appropriate efforts to communicate with the mother and to strengthen the parent-child relationship, and reasonable and appropriate efforts to remedy the conditions that led to or required the child's continuation in foster care. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

Circuit court was not plainly wrong in finding that the county department of social services made reasonable efforts to rehabilitate a mother prior to terminating her residual parental rights because the evidence showed that the mother received numerous rehabilitative services; the circuit court also considered the fact that the mother was using marijuana during the time two of her children were in foster care and at the time that she was pregnant with another child. Lane-Alvis v. Richmond Dep't of Soc. Servs., No. 0609-17-2, 2018 Va. App. LEXIS 53 (Mar. 6, 2018).

Consideration of rehabilitation services. - Because a mother had just been through a prior involuntary termination proceeding, the circuit court had no authority to order additional services be provided to her; hence, the circuit court did not err in approving the adoption foster care plan for the mother's oldest son without first insisting that the Department of Social Services provide remedial services in aid of reunification. Slade v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 10 (Jan. 10, 2006).

Father's parental rights were properly terminated under subsection B of § 16.1-283 as subsections B and C provided individual bases upon which a county department of social services could seek to terminate residual parental rights, and rehabilitative services were not prerequisite to termination under subsection B; the father's destructive pattern of alcohol abuse and domestic violence, and his inability to meet the basic needs of his children, provided clear and convincing evidence that the neglect or abuse suffered by the children presented a serious and substantial threat to their lives, health, or development, and made it not reasonably likely that the conditions that resulted in such neglect or abuse could be substantially corrected or eliminated so as to allow the children's safe return to the father within a reasonable period of time. Rothgeb v. Harrisonburg Rockingham Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 583 (Dec. 28, 2006).

Failure to remedy conditions. - Under § 16.1-283 C 2, an agency made reasonable efforts to help a mother remedy the conditions causing the placement of her children and she, without good cause, did not substantially remedy those conditions, where the agency helped her obtain parenting instruction and a psychological evaluation, as well as in-home therapy assistance, but she did not show, when a trial return of the children home was attempted, an ability to control their deteriorating behavior or supervise them and she placed her eldest child in a caretaking role as to the other three, and showed an inability to control her anger. Van Buren v. City of Richmond Dep't of Soc. Servs., Nos. 2622-02-2, 2623-02-2, 2624-02-2, 2625-02-2, 2003 Va. App. LEXIS 222 (Ct. of Appeals Apr. 15, 2003).

Trial court did not err in terminating parental rights where the parent's violent behavior both inside and outside the home, and the parent's refusal to take required medication, thereby exacerbating anger management problems, established by clear and convincing evidence that the parent's willful failure to remedy the conditions led to and required the continued foster care placement of the children. Wright v. Roanoke City Dep't of Soc. Servs., No. 1030-03-3, 2003 Va. App. LEXIS 688 (Ct. of Appeals Dec. 23, 2003).

Termination of the mother's parental rights was supported by evidence that 3 1/2 years after their placement in foster care, the mother was still unable to provide for the children, and the mother failed to progress to the point where she could protect her children from harm. K.H. v. Newport News Dep't of Soc. Servs., No. 1800-03-1, 2004 Va. App. LEXIS 51 (Ct. of Appeals Feb. 3, 2004).

Termination of the mother's parental rights was supported by evidence that 18 months after their placement in foster care the mother was still unable to provide for the children, the mother failed to maintain a safe and stable living environment, she inconsistently participated in visitation, she did not demonstrate an ability to put her children's physical and emotional needs ahead of her own, and she failed to maintain contact with the Department; thus, demonstrating that the mother failed to make significant progress on most of her goals and responsibilities under the foster care service plan. K.R. v. York County Dep't of Soc. Servs., No. 1837-03-1, 2004 Va. App. LEXIS 53 (Ct. of Appeals Feb. 3, 2004).

Termination of mother's rights was in the children's best interests and there was no error in failing to continue the case. The mother did not follow the treatment recommendations as required under the foster care plans, she continued to live with her boyfriend, a convicted sex offender, even though she was warned that doing so would place the children at risk, and she failed to: maintain adequate housing, follow through on counseling, and obtain adequate and regular employment. McCutcheon v. Warren County Dep't of Soc. Servs., No. 0174-03-4, 2004 Va. App. LEXIS 134 (Ct. of Appeals Mar. 30, 2004).

Where a mother failed to take advantage of extensive opportunities and housing, utilities, medical supplies, social services, substance abuse counseling, parenting classes, clothing and other household items, and the acceptance of money, clothes, baby supplies, and payment of utilities failed to get her to the point where she could parent her child, clear and convincing evidence was presented to establish that she was unable or unwilling to remedy the conditions which caused placement of the child with the Division of Social Services; thus, the appeals court summarily affirmed the the trial court's decision. Featherstone v. Div. of Soc. Servs. of Danville, No. 2151-03-3, 2004 Va. App. LEXIS 237 (Ct. of Appeals May 25, 2004).

Record supported trial court's judgments that father and mother who had a history of drug abuse and domestic violence were unwilling or unable to develop the skills they needed to provide proper care for their children and that it was in children's best interests to terminate their parental rights. Carr v. James City County Div. of Soc. Servs., Nos. 0339-04-1, 0499-04-1, 2004 Va. App. LEXIS 389 (Ct. of Appeals Aug. 17, 2004).

Termination of the mother's residual parental rights was upheld where the court found that she failed to meaningfully avail herself of the offered services and failed to remedy the conditions that resulted in foster care placement; the evidence showed that the mother failed to maintain any one job for more than a few weeks, failed to make and keep appointments, failed to follow treatment plans, failed to acknowledge that she displayed erratic behavior during visitation, failed to acknowledge that she was involved in an abusive relationship for which she would not seek assistance, and failed to improve any areas identified by the Department of Social Services. Wood v. Henrico Dep't of Soc. Servs., No. 0999-04-2, 2004 Va. App. LEXIS 559 (Ct. of Appeals Nov. 16, 2004).

Father's parental rights were terminated where he failed to meaningfully improve the conditions that resulted in foster care placement; the father attended parenting classes and received intensive services from Family Preservation Services, but failed to implement the skills and proved to be unable to apply what they taught him, he failed to follow through with counseling, he discontinued marital counseling, he floated from job to job, he failed to pay utility bills despite having adequate income, and he failed to respond to recommendations for rectifying his circumstances. Foster v. Roanoke City Dep't of Soc. Servs., No. 1336-04-3, 2004 Va. App. LEXIS 616 (Ct. of Appeals Dec. 14, 2004).

The mother failed to complete a nutrition and safety program, failed to attend a second mental health appointment, and failed to appear for a scheduled psychiatric evaluation; in addition, the mother was required to obtain stable housing independent of her mother, but she leased an apartment only three days prior to the termination hearing and there was no furniture in the apartment, and the mother was required to obtain stable employment, but the evidence proved she worked at one job for approximately one month prior to the termination hearing and had another job for a short period of time. Cooper v. Va. Beach Dep't of Soc. Servs., No. 2693-04-1, 2005 Va. App. LEXIS 100 (Ct. of Appeals Mar. 15, 2005).

Trial court properly terminated a mother's parental rights, as the evidence indicated that the mother had failed to deal with her drug problem after the agency offered ample services to assist her in reunifying her with the child. Woodward v. City of Hampton Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 229 (June 14, 2005).

Trial court properly terminated the father's parental rights, as the city social services department showed by the required clear and convincing evidence that the father failed to remedy the conditions that caused his two minor children to be placed into foster care and the two minor children were not required to wait indefinitely for him to remedy those conditions, especially since his failure to do so resulted from his frequent incarceration. Butler v. City of Hampton Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 234 (June 14, 2005).

Record supported a trial court's finding that the best interests of a father's children would be served by terminating the father's parental rights, because the evidence was clear and convincing that the father had failed to substantially remedy his unstable and unsafe home environment by maintaining a job and a safe home for six months, as required by the social services department, and although he had participated in parenting classes required by the department, he completed neither of the programs that he attended. Blair v. Hampton Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 187 (May 10, 2005).

Clear and convincing evidence supported the termination of a mother's parental rights to her children, because although she was offered assistance and services, she failed to make any progress in addressing the sexual abuse of her children by their father. Rather, the mother threatened to kidnap the children from their caregivers and threatened to harm those caring for her children. Williams v. Buckingham Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 295 (July 26, 2005).

Trial court did not err in terminating a mother's parental rights, giving due weight to the efforts she made to remedy the concerns that led to the foster care placement of her minor children, and notwithstanding the reasonable efforts made by the Department of Social Services, as the record evidence showed that the mother failed to remedy the problems that led to foster care placement in the first place, she lacked stable housing, and had a history of domestic violence and alcohol addiction. Viar v. Chesterfield-Colonial Heights Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 59 (Feb. 14, 2006).

Clear and convincing evidence supported the termination of the mother's parental rights; the neglect and abuse suffered by the child presented a substantial threat to the child's life, health, and development, and the mother failed to substantially remedy the conditions that resulted in removal within a reasonable amount of time not to exceed 12 months, despite the services offered by the Harrisonburg Rockingham Social Services District. Harris v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2006 Va. App. LEXIS 363 (Aug. 8, 2006).

Termination of the father's parental rights was upheld based on the court's finding that, at time of the termination hearing, the father had failed to remedy the conditions that led to the child's foster care placement; the father had not maintained stable housing or employment, had not received the recommended psychiatric treatment, had not completed parenting classes, and had not maintained regularly scheduled visits with the child. Epps v. City of Newport News Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 384 (Aug. 15, 2006).

Mother's parental rights were properly terminated under subdivision C 2 of § 16.1-283, as the evidence established that she failed to sufficiently improve the living conditions in her home that led to the removal of her special needs child, and that she failed to maintain contact with the child, whose condition had significantly improved while in foster care and whose foster mother wanted to adopt her. Fauncher-Whitney v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 449 (Oct. 10, 2006).

Termination of a mother's parental rights was affirmed where the mother cooperated with the county department of social services and took advantage of the services offered, but the mother's mental capacity rendered her unable to remedy the conditions that led to the children's placement in foster care; one child was not bonded to the mother and resisted visitation with her, but had dramatically improved while in foster care, and both children had evolved from "wild animals" to wonderful, well behaved children. Ratcliff v. Dickenson County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 432 (Sept. 26, 2006).

Trial court properly terminated a mother's parental rights to her son pursuant to subdivision C 2 of § 16.1-283, because a county department of social services presented clear and convincing evidence that the mother failed to seek substance abuse treatment or mental health counseling, and failed to provide for the child's needs. Buchanan v. Bedford County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 30 (Jan. 30, 2007).

Termination of the mother's parental rights was supported by evidence that the mother was unable to remedy the conditions that led to the child's removal; despite 18 months of intensive services, the mother's home was still not safe for the children, having stacked dishes in the sink, open box cutters in multiple rooms, mattresses without sheets, laundry strewn about the house, and food in the bedrooms. Bailey v. City of Alexandria Dep't of Human Servs.,, 2007 Va. App. LEXIS 244 (June 19, 2007).

As reasonable and appropriate efforts were expended by the Department of Social Services (DSS) to assist a mother in remedying the conditions that led to the removal of her minor child from her custody, and the mother consistently frustrated those efforts, by: (1) providing false information; (2) missing scheduled appointments; (3) not communicating with the DSS; (4) missing most visitations with the minor child; and (5) attending visits with that child immediately after she had abused drugs, the trial court did not err in terminating her residual parental rights to said child. Tywanda v. Fredericksburg Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 416 (Nov. 20, 2007).

Where a mother asserted that cultural reasons and her 25-year-old illegal immigration status were good cause for her failure to remedy a situation that led to her son's foster care placement, a fact finder was entitled to reject those reasons and conclude that the mother failed to show good cause for the delay in remedying the situation and that termination of her residual parental rights was in her son's best interests under § 16.1-283. Sangwan v. Fairfax County Dep't of Family Servs.,, 2008 Va. App. LEXIS 41 (Jan. 29, 2008).

Record supported a trial court's finding that the evidence proved by clear and convincing evidence that the father's parental rights to his children had to be terminated pursuant to subsection B and subdivision C 2 of § 16.1-283 and that the termination of his parental rights was in the children's best interests because despite all of the services and interventions that were provided, the father was unable to maintain a clean house and safe environment for the children; the father failed to follow through on many of the requirements of the department of social services, including counseling, medication management, and obtaining his GED [now the High school equivalency examination], and one of the children had profound developmental delays when he was removed from the father's care, but after time with his foster family, he improved dramatically. Rose v. Roanoke City Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 270 (June 16, 2009).

Circuit court did not err in terminating the mother's parental rights because the evidence proved that the mother had significant substance abuse problems that presented a serious threat to the child; despite the fact that the child was in foster care for approximately three years, the mother was unable to substantially remedy the problems that led to the child being placed, and remaining, in foster care. Biby v. Shenandoah Valley Dep't of Soc. Servs., Nos. 0266-16-3, 0267-16-3, 2016 Va. App. LEXIS 230 (Ct. of Appeals Aug. 23, 2016).

V. TERMINATION UNDER SUBSECTION B.
A. GENERALLY.

Child in foster care. - Subsection B of this section did not expressly impose any jurisdictional or evidentiary requirement that father have custody of child when foster care began. Eckley v. City of Va. Beach Dep't of Social Servs., No. 1863-99-1 (Ct. of Appeals Feb. 8, 2000).

Language in clause (i) of subsection B implicitly contemplates valid court commitment. - Without a custody petition the juvenile court does not have jurisdiction originally to place children in foster care and, accordingly, such placement would not be a valid commitment. Without a valid court commitment, the provisions of this section do not grant jurisdiction to either the juvenile or the circuit court to terminate residual parental rights. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Special needs. - Inasmuch as the evidence proved that a mother's two children had special needs and required counseling, the circuit court did not err in terminating the mother's parental rights under subsection B of § 16.1-283 and finding that the termination was in the children's best interests. Smith v. City of Roanoke Dep't of Soc. Servs., No. 1317-18-3, 2019 Va. App. LEXIS 131 (June 4, 2019).

Grounds for termination under subsection B. - Under subsection B, the residual rights of a parent of a child placed in foster care because of parental neglect or abuse may be terminated only if the court finds by clear and convincing evidence that (1) termination is in the best interests of the child; (2) the neglect or abuse suffered by the child presented a serious and substantial threat to the child's life, health or development and (3) it is not reasonably likely that the conditions which resulted in the neglect or abuse can be substantially corrected or eliminated to allow the child's safe return to his parent within a reasonable period of time. Walker v. Virginia Beach Dep't of Social Servs., No. 0505-00-1, 2000 Va. App. LEXIS 825 (Ct. of Appeals Dec. 19, 2000).

Mother's residual parental rights to her son were properly terminated where evidence of her psychological problems and her exposing the child to an abusive boyfriend clearly and convincingly established that the abuse or neglect suffered by her son presented a serious threat to his life, health, or development; that she failed to remedy the conditions that led to his placement in foster care; and that termination was in his best interest. Arthur v. Campbell County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 50 (Feb. 7, 2006).

Social services department proved by clear and convincing evidence that termination of parental rights was in a minor child's best interests and that it was not reasonably likely that the conditions that resulted in the child's neglect or abuse were to be substantially corrected or eliminated so as to allow the child's safe return to the parent within a reasonable period of time pursuant to subdivision B 2. The department's evidence was sufficient to clearly and convincingly prove that the parent was suffering from a mental or emotional illness or mental deficiency of such severity that there was no reasonable expectation that the parent would be able to undertake responsibility for the care needed by the child in accordance with the child's age and stage of development. Robeson v. Roanoke City Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 553 (Dec. 23, 2008).

Termination of mother's parental rights under subsection B of § 16.1-283 was supported by evidence that the mother allowed an older child, who had previous sexual contact with a younger child, to have contact with the younger children and did not recognize there to be a problem. Mayanes v. Shenandoah Valley Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 37 (Feb. 8, 2011).

Evidence supported termination of parental rights as it showed that the father failed to complete most of the requirements established by the agency to return his child home, he could not feed the child properly and frequently became frustrated, the father was diagnosed with mental health issues and was involuntarily hospitalized for these issues, and he never completed counseling sessions. Masch v. Roanoke City Dep't of Soc. Servs., No. 0222-13-3, 2013 Va. App. LEXIS 208 (Ct. of Appeals July 23, 2013).

Termination of the father's parental rights was proper because the father's mental illness prevented him from being able to take care of his child as he was diagnosed with paranoid schizophrenia; he had very little insight regarding keeping the child safe; the child had several delays and needed ongoing therapy; and there was no evidence that the father was able to meet the child's mental health needs. Perry v. Prince George Dep't of Soc. Servs., No. 2350-14-2, 2015 Va. App. LEXIS 194 (June 9, 2015).

Trial court did not err in terminating the father's parental rights, as the evidence showed that the children had tested positive for methamphetamine and marijuana and suffered various side effects from such exposure, the father had abused alcohol and illegal drugs, received disability for a back injury, was not employed, had a history of domestic violence, and had complaints of abuse and neglect regarding his other children, and the father did not take advantage of the services offered to him. Mason v. Harrisonburg Rockingham Soc. Servs. Dist., Nos. 1422-17-3, 1423-17-3, 1424-17-3, 2018 Va. App. LEXIS 173 (July 3, 2018).

Termination of a father's parental rights and approval of foster care goal of adoption was appropriate because the father sexually abused one of the children and neglected all of the children, the father had anger management issues and reluctantly participated in rehabilitation services, and the children required extensive counseling. Further, the 17-year-old child expressed a desire to be in permanent foster care in the same foster home, while the younger children were doing very well in foster care and had bonded with their foster mother. Darby v. City of Roanoke Dep't of Soc. Servs., No. 0611-19-3, 2019 Va. App. LEXIS 280 (Dec. 3, 2019).

Before residual parental rights can be terminated under subsection B of this section, a court must find by clear and convincing evidence that termination is in the child's best interests, that the neglect and abuse suffered by the child present a serious and substantial threat to his life, health, or development under subdivision B 1 of this section, and that it is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his parent within a reasonable period of time, under subdivision B 2 of this section. Lowe v. Department of Pub. Welfare, 231 Va. 277 , 343 S.E.2d 70 (1986); Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

B. ABUSED OR NEGLECTED CHILD.

Requirements of subdivision B 1 met. - Finding that the child was abused within the meaning of subdivision B 1 of § 16.1-2863 was supported by the testimony of numerous witnesses describing the child's emotional, psychological, and developmental problems, in combination with the testimony of an expert as to her interaction with the child. Anderson v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 288 (July 31, 2007).

In a case in which a trial court terminated a mother's parental rights to her four children pursuant to subsection B of § 16.1-283, and the mother appealed, the Petersburg Department of Social Services presented clear and convincing evidence that her neglect of her four children presented a serious and substantial threat to their life, health or development, and it was not reasonably likely that the conditions could be substantially corrected within a reasonable period of time. After the father was convicted of felony child abuse of one of her children and accused of molesting two of her children, the mother continued to maintain a relationship with him. Strother v. Petersburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 455 (Oct. 13, 2009).

Termination of the father's parental rights under subsection B of § 16.1-283 was upheld as the evidence supported the trial court's findings that the father abused and neglected the three minor children prior to incarceration, failed to maintain regular employment prior to the most recent incarceration, failed to provide for the children, and violated probation by the repeated use of illegal drugs. Wingo v. Tazewell County Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 62 (Feb. 22, 2011).

Best interest of child. - Termination was in the best interest of a child due to a mother's inability to remedy the conditions that led to the removal and the child's wish to be adopted by the "right family." The trial court considered the child's age, the length of time she resided in an agency's placement, and the mother's failure to remedy the conditions that caused the child to be placed in foster care in 2005. Eaton v. Wash. Cnty. Dep't of Soc. Servs., 66 Va. App. 317, 785 S.E.2d 231 (2016).

Termination of the mother's parental rights was in the children's best interests as it was not reasonably likely that the conditions which resulted in neglect or abuse could be substantially corrected or eliminated because she had a history of mental illness; in February and July 2017, she was hospitalized for attempting suicide and, in January 2019, for having suicidal thoughts; she did not regularly attend counseling; she did not visit with the children for months; she did not show that she had developed coping skills and was capable of parenting the children safely; and the parents had habitually abused intoxicating drugs and liquors, to the point where it made it difficult or impossible to care for the children. Taylor v. City of Alexandria Dep't of Cmty. & Human Servs., No. 0518-19-4, 2019 Va. App. LEXIS 217 (Oct. 1, 2019).

Services provided. - Language of this statute is not limited to the petitioning agency or even to agencies within Virginia; therefore, the evidence was sufficient to support a termination of a mother's parental rights because it was proper to consider the nature and breadth of services that had been provided to the mother in Tennessee when the child was originally removed from her care in 2005. The trial court also considered the fact that a Tennessee agency assumed custody of the child because there was clear and convincing evidence of on-going and substantial harm if the child was returned to the mother's custody, and the mother could not remedy the conditions that led to removal in a reasonable amount of time. Eaton v. Wash. Cnty. Dep't of Soc. Servs., 66 Va. App. 317, 785 S.E.2d 231 (2016).

Evidence sufficient to terminate parental rights. - Evidence was sufficient to terminate a mother's parental rights on the basis that the children were abused or neglected because the mother's continued drug use created an unsafe environment, and the mother's failure to adequately address one child's medical needs created an unsafe environment for all the children because a doctor expressed concerns regarding the child's weight and malnourishment. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 342, 719 S.E.2d 313, 2012 Va. App. LEXIS 4 (2012).

Mother's parental rights were properly terminated because she had sexually abused her oldest child, violated a safety plan by assuming care of the children when she knew she was only allowed supervised visitation, left the children unsupervised and alone when they were locked out of the house, did not participate or take advantage of the services offered, and it was not reasonably likely that the conditions that resulted in such neglect or abuse could be substantially corrected or eliminated. Holder v. Portsmouth Dep't of Soc. Servs., No. 0445-13-1, 2013 Va. App. LEXIS 305 (Oct. 29, 2013).

Sufficient evidence supported terminating a mother's parental rights to six children on grounds of neglect or abuse because the mother was diagnosed with major depressive disorder and moderate adjustment disorder with anxiety, stopped participating in counseling sessions, and was not compliant with her medication. Dewberry v. Winchester Dep't of Soc. Servs., Nos. 0923-13-4, 0960-13-4, 2013 Va. App. LEXIS 365 (Dec. 10, 2013).

Sufficient evidence supported terminating a father's parental rights to six children on grounds of neglect or abuse because the father had a physical altercation with the oldest child, had anger issues, threatened social service workers, was diagnosed with bipolar disorder and antisocial personality disorder, and was not compliant with his medication. Dewberry v. Winchester Dep't of Soc. Servs., Nos. 0923-13-4, 0960-13-4, 2013 Va. App. LEXIS 365 (Dec. 10, 2013).

Clear and convincing evidence supported terminating a father's residual parental rights to three children on grounds the children were abused or neglected because the children were affected by the father's substance abuse and incarceration, and the father beat the children, failed to complete any of the required conditions in the service plan, did not maintain contact with the Department of Social Services, and failed to appear at all court proceedings after June 2011. Rodriguez v. Franklin County Dep't of Soc. Servs., No. 0847-13-3, 2013 Va. App. LEXIS 369 (Dec. 10, 2013).

Termination of a mother's residual parental rights on grounds of abuse or neglect was in the best interest of three children because the mother failed to maintain housing, tested positive for illegal substances, did not maintain employment, failed to complete any course of psychological, parenting, or substance abuse counseling, and the children's behavior deteriorated after an unsupervised visit; the mother discontinued all contact with the Department of Social Services. Maul v. Franklin County Dep't of Soc. Servs., No. 0817-13-3, 2013 Va. App. LEXIS 363 (Dec. 10, 2013).

Trial court did not err in terminating a mother's parental rights to her children because it found that they were neglected and that the mother did not substantially remedy her situation, despite the numerous services provided to her; the mother did not resolve the issues of housing, parenting skills, and mental health, and she was not in a position to care for the children and meet their needs. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

Trial court did not err in terminating a mother's residual parental rights because she did not protect her seven-year-old child against the long-standing sexual abuse by the mother's boyfriend, the mother placed her own needs above those of the child, and, despite counseling, was unwilling and unable to substantially remedy the conditions that resulted in the child's neglect or abuse. Aguilar v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 330 (Sept. 30, 2014).

Evidence was sufficient to support the termination of residual parental rights because, despite a panoply of services provided to the father over the years, he continued to abuse or neglect his children, lapse into substance abuse, or engage in violence or other criminal activities. After stating he had plans to find appropriate housing, the father was incarcerated. Williams-Kemp v. Prince Edward County Dep't of Soc. Servs., No. 1979-14-2, 2015 Va. App. LEXIS 41 (Ct. of Appeals Feb. 10, 2015).

Trial court did not err in terminating parental rights because a county department of social services considered more than the parent's imprisonment when it decided to file petitions to terminate the parental rights, as it also considered the children's situation prior to their removal. Moreover, while the trial court considered the parent's reduction in prison time, it was concerned that the children would be placed back in the environment from which they were removed. Moore v. Lee Cnty. Dep't of Soc. Servs., No. 0756-15-3, 2015 Va. App. LEXIS 322 (Nov. 10, 2015).

Mother's parental rights were terminated because she did not substantially remedy the situation that would have returned the children to her care, the children had been in foster care for 23 months, and termination was in the best interest of the children. Moreover, the department of social services had been involved with the family for years before a termination petition was filed. Stanton v. Alexandria Dep't of Cmty. & Human Servs., No. 1452-15-4, 2016 Va. App. LEXIS 103 (Ct. of Appeals Apr. 5, 2016).

Termination of the mother's parental rights was proper and in the child's best interests because the child only weighed 33 pounds at 15; the mother did not address the issues concerning his health and nutritional needs; a doctor testified that when the child was admitted to the hospital the child's condition was critical in that his severity of hypothyroidism was life-threatening; the doctor opined that the child's total long-term height would be lower than if he had been offered adequate nutrition throughout his life and his severe hypothyroidism long-term would affect what his ultimate cognitive potential was; and, while in foster care, the child gained weight, grew taller, and started attending school and interacting with others. Harwood v. Buckingham Cnty. Dep't of Soc. Servs., No. 1732-15-2, 2016 Va. App. LEXIS 202 (Ct. of Appeals July 19, 2016).

Record supported the circuit court's decision to terminate the parents' parental rights, as there was an abundance of evidence that the children suffered neglect; poor conditions were repeatedly pointed out to the parents but they failed to remedy them, the children often had serious medical issues, yet the parents failed to follow through with necessary treatment, and the parents were unable to effectively improve their parenting skills, despite any education and training that could be provided. Moreland v. Lynchburg Dep't of Soc. Servs., Nos. 1970-15-3, 2000-15-3, 2016 Va. App. LEXIS 364 (Ct. of Appeals Dec. 27, 2016).

Evidence was sufficient to find that it was not reasonably likely that the mother could substantially correct or eliminate the conditions so as to allow the children to return given that her severe intellectual disabilities significantly impaired her cognitive and emotional functioning, as well as her life skills, and while she now lived in her own home, she was unable to provide consistent basic necessities. Malone v. Dinwiddie Dep't of Soc. Servs., No. 0472-17-2, 2017 Va. App. LEXIS 271 (Oct. 31, 2017).

Evidence was sufficient to support the finding that the neglect and abuse the children suffered presented a serious and substantial threat to their life, health, or development where although the mother had moved since their removal, the new home contained similar unsanitary and unsafe conditions, and the mother still was not in control of her finances. Malone v. Dinwiddie Dep't of Soc. Servs., No. 0472-17-2, 2017 Va. App. LEXIS 271 (Oct. 31, 2017).

Circuit court did not err in terminating the father's parental rights because the family had a history of domestic violence, the Department of Social Services had previously removed the children and provided services to the parents, but after the children were returned to the father's custody they had to be removed again after he was arrested for a road rage incident. The children were at risk in the father's care as evidenced by his convictions for assault and battery, reckless driving, and hit and run, one child revealed that the father had hit him with his hand and a belt, and the father chose not to participate in anger management classes, psychological testing, or counseling. Smith v. Chesterfield-Colonial Heights Dep't of Soc. Servs., No. 1821-19-2, 2020 Va. App. LEXIS 155 (May 19, 2020).

Termination of the mother's parental rights was proper, as the conditions that resulted in the abuse or neglect could not have been substantially corrected to allow the children to return home, and in the children's best interests because the mother had a major drug problem and no treatment was ever followed through on; she did not participate in other required services, other than a six-week parenting class that took her six months to complete; she did not apply what she had learned in the parenting class; the children had been in foster care for almost 22 months; and the mother had not completed the Department of Social Services' requirements and was not in a position to care for the children. Jenkins v. Tazewell Cty. Dep't of Soc. Servs., No. 0789-20-3, 2020 Va. App. LEXIS 317 (Dec. 29, 2020).

Termination of the mother's parental rights was proper and in the child's best interest because the Department of Social Services presented extensive evidence regarding the family's history of domestic violence and the mother's mental illness; the child had a history of emotional and behavioral concerns that the parents could not handle; the Department previously had provided numerous services to the parents; the child had spent almost half of her life in foster care; and a doctor feared that the mother could not keep the child safe and opined that the mother should not be the primary custodian of the child. Sawyers v. Roanoke City Dep't of Soc. Servs., No. 1320-20-3, 2021 Va. App. LEXIS 85 (June 1, 2021).

Complaints of abuse disregarded by parent. - In a case in which a mother's residual parental rights to her two children had been terminated, she unsuccessfully argued that the circuit court erred in finding the evidence sufficient to terminate her parental rights under subsection B of § 16.1-283. The Hopewell Department of Social Services established that the mother's children were removed from mother's care after the department learned the children had been abused while in mother's care by a male with whom mother and the children lived; the mother had a long history of ignoring and permitting the abuse the children suffered at the hands of the male, and she disregarded her daughter's repeated complaints and made no attempt to stop the abuse or help her children. Kelly v. Hopewell Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 551 (Dec. 15, 2009).

C. MENTAL ILLNESS, ADDICTION, ETC.

Substance abuse by parent. - Because the record contained ample credible evidence to support the trial judge's finding under § 16.1-283 that a father's substance abuse rendered his residence unsafe for his child, the "ends of justice" exception to Va. Sup. Ct. R. 5A:18 did not require consideration of the father's argument on appeal. Ridley v. Chesapeake Dep't of Human Servs.,, 2007 Va. App. LEXIS 167 (Apr. 24, 2007).

Agency proved by clear and convincing evidence that termination of a parent's parental rights was in the child's best interests, as the parent's continuous use of cocaine led to the parent's inability to maintain a stable and safe home for the child. Although the parent remedied the situation several times, the parent was unable to continue these remedied conditions for more than a few months before relapsing, despite receiving a variety of ongoing services. Staples v. Chesapeake Dep't of Human Servs.,, 2008 Va. App. LEXIS 116 (Mar. 11, 2008).

Court properly terminated a father's parental rights because the father admitted that he smoked marijuana after the department removed the children the second time, and an expert noted that the father suffered from alcohol dependence, a history of polysubstance abuse, along with a narcissistic personality disorder with antisocial traits. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 375, 719 S.E.2d 329, 2012 Va. App. LEXIS 1 (2012).

Termination of the mother's parental rights was proper; the Department of Social Services presented proof that mother had a long history of substance abuse, she used heroin during her pregnancy, she did not participate in a substance abuse assessment, she refused to be drug screened 11 times, and she continued to use drugs after the Department placed the child in foster care. Smith v. Winchester Dep't of Soc. Servs., No. 1310-17-4, 2018 Va. App. LEXIS 23 (Feb. 6, 2018).

Alcoholism. - Facts and circumstances were sufficient to prove the condition contained in subdivision B 2 of § 16.1-283 regarding a child's mother, as the mother, an admitted alcoholic, made no effort to follow treatment recommendations, and after her child entered foster care, continued to drink and to engage in behavior resulting in criminal convictions. The mother was incarcerated for a significant portion of time while the child was in foster care. Shallcross v. Hanover County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 93 (Mar. 13, 2007).

Assessment of parental capacity. - Trial court, which terminated a father's parental rights, did not abuse its discretion when it admitted an assessment of the mother's parental capacity; even if it did, the error was harmless. Rucker v. Alexandria Dep't of Cmty. & Human Servs., No. 0931-17-4, 2018 Va. App. LEXIS 110 (Apr. 24, 2018).

Circuit court did not err in terminating a mother's parental rights because the mother had a severe intellectual disability that prevented her from undertaking responsibility for the care of her child; the city department of social services provided the mother with numerous services, but she was unable to meet the child's needs, and a doctor opined that the mother was likely to experience difficulty with her role of a caretaker. Hurst v. City of Roanoke Dep't of Soc. Servs., No. 0657-18-3, 2018 Va. App. LEXIS 298 (Oct. 30, 2018).

Termination of rights upheld. - Where the evidence established that the parent is schizophrenic, psychotic and mentally deficient, experiences visual and auditory hallucinations, is a chronic alcoholic, and these conditions have existed for a number of years, and no appreciable improvement was detected at the time of trial, it is apparent, therefore, that the parent's infirmities are of such severity that there is no reasonable expectation that she will be able to undertake responsibility for the care needed by her son. Lowe v. Department of Pub. Welfare, 231 Va. 277 , 343 S.E.2d 70 (1986).

Father's residual parental rights to his two daughters were properly terminated pursuant to subsection B of § 16.1-283 because his history of alcohol abuse and addiction, and his inability to rehabilitate himself, made him unable to adequately parent his children, who had been removed from their mother's care due to abuse and neglect while he was incarcerated. Wright v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2010 Va. App. LEXIS 85 (Mar. 9, 2010).

Father's parental rights were properly terminated under subsection B of § 16.1-283 as the evidence showed that the conditions resulting in the neglect or abuse of the children had not been eliminated in the two years that the children had been removed from the father's household. The father had failed to follow through with the requirements of the foster service plan, he had not completed individual counseling or obtained psychiatric care, he had not been treated for substance abuse, and he had continued to use marijuana, despite the fact that his substance abuse was one basis for the children's removal. Taylor v. City of Roanoke Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 471 (Dec. 7, 2010).

As a mother had a substance abuse addiction that seriously impaired her parenting abilities and she, without good cause, had not responded to or followed through with recommended and available treatment, which could have improved the capacity for adequate parental functioning, the evidence supported the decision that she was unlikely to eliminate the conditions leading to the child's neglect. Callender v. Petersburg Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 53 (Feb. 28, 2012).

Termination of the mother's parental rights was affirmed; she had a history of significant mental health and substance abuse problems, she failed to complete numerous substance abuse treatment programs, and the trial court properly found that she lied about her treatment progress. Howe v. Albemarle Cnty. Dep't of Soc. Servs., Nos. 0703-15-2, 0704-15-2, 2016 Va. App. LEXIS 46 (Feb. 16, 2016).

Circuit court did not err in finding that it was in the child's best interests to terminate the mother's parental rights because no effort on the mother's part would correct her mental deficits within a reasonable period of time,and the child would be in significant danger if left in her custody; a doctor recommended that the mother not be the child's primary caregiver because she did not have the ability to be a full-time parent and custodian and keep herself and her child safe. Hurst v. City of Roanoke Dep't of Soc. Servs., No. 0657-18-3, 2018 Va. App. LEXIS 298 (Oct. 30, 2018).

Termination of a father's parental rights and approval of foster care goal of adoption for father's child were appropriate because the circuit court found by clear and convincing evidence that termination due to abuse and neglect was in the best interests of the child as the father had a history of domestic violence and substance abuse, the father did not show that the father could remain sober and was capable of caring for the child, and the child had been in foster care for approximately two years. Altamimi v. City of Alexandria Dep't of Cmty. & Human Servs., No. 0858-19-4, 2019 Va. App. LEXIS 218 (Oct. 1, 2019).

Termination of the mother's parental rights was proper and in the children's best interests because the children's living conditions were deplorable; the mother suffered from such a severe mental deficiency that she could only participate in the parenting of her children if they were in the custody of others; that structure of parenting could be reduced, but likely never eliminated; the City of Manassas Park Department of Social Services had provided every conceivable support mechanism to the mother and she failed to follow through; the children thrived in their foster home; and the children were medically healthy, had healthy relationships with each other and their foster parents, and were learning academically and socially. Glass v. City of Manassas Park Dep't of Soc. Servs., No. 0593-20-4, 2021 Va. App. LEXIS 33 (Mar. 2, 2021).

D. FAILURE TO FOLLOW THROUGH WITH REHABILITATIVE EFFORTS.

Consideration of rehabilitation services. - Subsection B required only that a circuit court consider whether rehabilitation services, if any, had been provided to a parent, but nothing in this section or the larger statutory scheme required that such services be provided in all cases as a prerequisite to termination; because the evidence supported the trial court's decision that reunification was inconsistent with children's health and safety, the department's failure to provide rehabilitation services in aid of reunification was not a viable ground for reversal of a termination order. Toms v. Hanover Dep't of Soc. Servs., 46 Va. App. 257, 616 S.E.2d 765, 2005 Va. App. LEXIS 308 (2005).

Trial court properly terminated a mother's residual parental rights to her newborn child pursuant to subdivision B 2 a of § 16.1-283 because there was no requirement that a department of social services provide rehabilitative services to the mother; termination pursuant to subsection B only required that the trial court consider whether any rehabilitative services were provided to the mother. Napper v. Petersburg Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 296 (June 24, 2008).

Termination of the mother's parental rights under subsection B, was supported by evidence that the mother failed to take advantage of the services that the county provided to address the mother's parenting skills and substance abuse issues. Wingo v. Tazewell County Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 66 (Feb. 22, 2011).

Failure to assist mother following initial neglect voided subsequent parental rights termination. - Where social services department simply sought termination of parental rights without first offering rehabilitation or other programs which would have assisted mother to regain custody of her children when and if released from police custody following her robbery arrest, it could not be determined whether in fact mother was unwilling or unable, if given the opportunity, to correct or eliminate the conditions which resulted in the initial neglect; thus, trial court's termination of her parental rights was reversed. Cain v. Commonwealth ex rel. Dep't of Social Servs. ex rel. City of Roanoke, 12 Va. App. 42, 402 S.E.2d 682 (1991).

Social services need not be provided in all cases. - Nothing required that services be provided in all cases as a prerequisite to termination under subsection B of § 16.1-283; a child was abused and neglected when she was left alone with the father, because this violated the father's probation and parole. Credible evidence supported a trial court's order of termination of the father's parental rights. Seibert v. Alexandria Div. of Soc. Servs., No. 1158-06-4, 2006 Va. App. LEXIS 521 (Nov. 21, 2006).

Requirements of subdivision B 2 met. - Showing by Department of Social Services that mother of three infant daughters without good cause failed to respond to its rehabilitative efforts was prima facie evidence of the conditions set forth in subdivision B 2 of this section, and where the mother did not go forward with sufficient evidence to the contrary, the requirements of subdivision B 2 were proven. Richardson v. Henry County Dep't of Social Servs., 223 Va. 670 , 292 S.E.2d 342 (1982).

Evidence was sufficient to prove that father was not reasonably likely to correct or eliminate conditions that resulted in abuse and neglect of his children, so as to allow their safe return to his custody. Baker v. Fredericksburg Dep't of Social Servs., No. 1089-99-2 (Ct. of Appeals Mar. 21, 2000).

Proof that mentally ill parents did not follow through with rehabilitative efforts, without good cause, was prima facie evidence of the condition of § 16.1-283 B 2, allowing termination of parental rights. Marston v. Fairfax County Dep't of Family Servs., No. 1336-01-4, 2002 Va. App. LEXIS 26 (Ct. of Appeals Jan. 22, 2002).

Evidence supported the termination of a father's parental rights to his two daughters under subsection B of § 16.1-283 where, in addition to the fact that the father was incarcerated and would not be released until after the girls reached the age of majority, the evidence showed that the girls had been removed from their mother's custody due to abuse, the father had very little contact with the girls, and the father had failed to present any plan for care of the girls during their lengthy period of foster care. Barnes v. Norfolk Div. of Soc. Servs., No. 0916-03-1, 2003 Va. App. LEXIS 440 (Ct. of Appeals Aug. 19, 2003).

Where the record was replete with evidence that a mother failed to maintain proper housing, placed her children in danger by driving with them while intoxicated, dated someone with a criminal record and a drinking problem, caused abuse and neglect to her children while they were in her custody, the children's cognitive health and development was stunted by her failures, and the mother's depression and anxiety problems continued to render her unable to parent her children, the trial court's order terminating her residual parental rights was upheld. McGuire v. Frederick County Dep't of Soc. Servs., No. 0209-04-4, 2004 Va. App. LEXIS 505 (Ct. of Appeals Oct. 26, 2004).

Termination of a mother's rights to her two minor children was appropriate under subdivision B 2 because the children had significant special needs that could not be addressed with the mother's limited parenting skills and visitation with the mother had resulted in a founded complaint of physical abuse; evidence indicated that it was not reasonably likely that the conditions that resulted in the children's neglect or abuse could be substantially corrected or eliminated. Kasey v. Roanoke City Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 147 (Apr. 10, 2007).

Termination of a parents' rights to a son under § 16.1-283 B 2 a was supported by clear and convincing evidence that termination was in the son's best interests based on the fact that the parent's prior neglect had heightened the possibility the son would commit suicide, the parent's current inability to parent, and the son's special parenting needs; there was no reasonable expectation that the parent would be able to undertake responsibility for the care needed by the son in accordance with the son's age and stage of development. Bowman v. Roanoke City Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 348 (July 8, 2008).

Evidence that a father's children were in foster care for 18 months; that, due to parental abuse and neglect, they needed long-term continued and specialized treatment; and that removing them from foster care and returning them to their parents would be detrimental to their health, safety, and recovery, supported termination of the father's parental rights under subdivision B 2 of § 16.1-283. Oliver v. City of Roanoke Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 421 (Sept. 19, 2006).

Mother's parental rights were properly terminated under subdivision B 2 of § 16.1-283 as: (1) although the mother participated in a substance abuse class in jail, she was unable to remedy her underlying substance abuse problems; (2) she was unable to provide a stable home environment for the child as she did not have an independent home for the child or a job to support the child; and (3) the mother was a slave to substance abuse and had never been able to take care of herself, much less her child. Owens v. Winchester Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 369 (Nov. 20, 2012).

Mother's residual parental rights were properly terminated as the mother's continued substance abuse and refusal to address her alcohol abuse was prima facie evidence it was not reasonably likely she would correct the conditions that resulted in the children's neglect or abuse so the children could be safely returned to her custody; although the mother had made progress addressing her phencyclidine addiction and had made some attempts to follow the child services agency's recommendations, she failed to remedy the conditions that resulted in the children's neglect or abuse and subsequent removal during the 15 months the children were in foster care. Farmer v. Alexandria Dep't of Cmty. & Human Servs., No. 0606-13-4, 2013 Va. App. LEXIS 327 (Nov. 12, 2013).

Circuit court properly terminated the parent's parental rights because both parents abused drugs and/or alcohol, did not get a letter or certificate to show their progress in counseling, the father was arrested for domestic violence, and the evidence regarding the parents' previous terminations was not unduly prejudicial where the circuit court recognized that they improved their housing situation, which was an issue with their previous children. Ragsdale v. Lunenburg Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 335 (Oct. 7, 2014).

Considering the totality of the evidence, the circuit court did not err in terminating the parental rights of a mother and a father pursuant to Va. Code Ann. § 16.1-283(B)(2), as the evidence supported the trial court's rulings that the parents did not substantially remedy their underlying problems, which included mental or emotional issues. Carwile v. Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 6 (Jan. 13, 2015).

Trial court did not err in terminating a mother's parental rights where she failed to appear for and complete scheduled parenting and anger management classes following her release from jail, she tested positive for drug use, her living arrangements were unclear, and the child had been in and out of foster care. Fields v. Russell Cnty. Dep't of Soc. Servs., No. 0526-15-3, 2016 Va. App. LEXIS 92 (Ct. of Appeals Mar. 29, 2016).

Evidence supported a circuit court's finding that termination of a mother's parental rights was in the children's best interest because the mother did not participate in various evaluations and meetings in a meaningful manner when one of the mother's children had an acute outbreak of genital herpes, which the mother and the father of three of the four children contracted prior to the child becoming infected. Moreover, the mother never demonstrated the ability to provide a safe environment for the children. Velazquez v. Prince Edward Cnty. Dep't of Soc. Servs., No. 0800-16-2, 2016 Va. App. LEXIS 289 (Ct. of Appeals Nov. 1, 2016).

Circuit court properly terminated a mother's parental rights because, while her child suffered from neglect or abuse, it was also in the child's best interests to terminate the mother's parental rights for failure to remedy substantially the conditions that led to or required continuation of the child's foster care placement where the mother had inadequate housing, was inconsistent with services, had substance abuse and mental health issues, and failed to improve her own inconsistent behaviors when she was informed that the child became dysregulated when she was not sure that the mother would follow through, and would decompensate, cry, be angry, and be aggressive in programming if the mother did not come. Davis v. Lynchburg Dep't of Soc. Servs., No. 0951-17-3, 2018 Va. App. LEXIS 33 (Feb. 13, 2018).

Termination of a mother's parental rights to the mother's minor children was appropriate because, although the mother did make some efforts to correct the conditions that led to the children's removal and foster care placement, it was not reasonably likely that the mother would remedy the issues within a reasonable time. Furthermore, a county department of social services provided the mother with a number of services, but the mother declined to take advantage of them. Willoughby v. Albemarle Cty. Dep't of Soc. Servs., No. 1619-17-2, 2018 Va. App. LEXIS 235 (Aug. 28, 2018).

Circuit court did not err by finding that termination of a mother's parental rights was in the children's best interests because it properly evaluated all of the mother's efforts to substantially correct or eliminate the conditions leading to the children's placement in foster care and concluded that she still did not have a stable living situation, her employment history was sporadic, and she had not completed therapy for domestic violence. Johnson v. Loudoun Cty. Dep't of Family Servs., No. 1616-18-4, 2019 Va. App. LEXIS 123 (May 21, 2019).

Circuit court did not err in terminating mother's parental rights because the Department of Social Services presented extensive evidence of the family's history of domestic violence and the mother's mental illness, the Department had previously removed the children from the parents' custody and provided numerous services to the parents, the mother did not comply with the services offered and was never in a position to care for the children, the mother remained unstable and tested positive for drug use, and the children spent the majority of their lives in foster care. Koch v. Chesterfield-Colonial Heights Dep't of Soc. Servs., No. 1833-19-2, 2020 Va. App. LEXIS 151 (May 19, 2020).

Circuit court did not err in finding that it was in the children's best interests to terminate the mother's parental rights and that the evidence was sufficient to support termination under subsection B of § 16.1-283 where the evidence proved that the department of social services had provided numerous services to mother over the years, but she had not availed herself of those services, the children were doing well in foster care with their paternal grandmother, but continued to need services, and the mother acknowledged that she was not able to care for them at the time of the circuit court hearing. Hall v. Lynchburg Dep't of Soc. Servs., No. 0859-20-3, 2020 Va. App. LEXIS 310 (Dec. 22, 2020).

Circuit court did not err by finding that termination of the parents' rights was in the children's best interest because they had been in foster care for two and a half years, they were receiving treatment and therapy to help them cope with their neglect, and the parents had made no serious attempts to regain custody even after a protective order expired. Whitmer v. Spotsylvania Cty. Dep't of Soc. Servs., No. 0903-20-2, 2021 Va. App. LEXIS 46 (Mar. 30, 2021).

Circuit court did not err in terminating the parents' rights because the evidence showed that when given the chance by the Department of Social Services to address the underlying substance abuse the parents refused, the Department offered supervised visitations but the parents attended less than a third of the possible visits, and they did not substantially remedy the conditions that led to the children's neglect. Whitmer v. Spotsylvania Cty. Dep't of Soc. Servs., No. 0903-20-2, 2021 Va. App. LEXIS 46 (Mar. 30, 2021).

Requirements of subdivision B 2 not met. - Trial court erred when it determined that it was not reasonably likely that the conditions that resulted in the abuse could not be substantially corrected or eliminated so as to allow the child's return to the mother within a reasonable period of time because there was no evidence tending to suggest that the mother had an opportunity to demonstrate the mother was willing to eliminate the cause of the abuse; there was no evidence that the mother was offered any services or given any chance to demonstrate a willingness to eliminate the cause of the sexual abuse during the fewer than eight weeks after the mother denied the allegations, once the mother denied the sexual abuse allegations, no effort to work with the mother was made by the Department of Social Services. Anderson v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 288 (July 31, 2007).

Rehabilitation services not required. - There was no merit to a father's argument that the Department of Human Services did not provide him with reasonable rehabilitative efforts to reduce or eliminate the neglect or abuse of the child and did not attempt to reunite him with the child. Subsection B of § 16.1-283 required only that the circuit court consider whether rehabilitation services, if any, had been provided to a parent; nothing in § 16.1-283 or the larger statutory scheme required that such services be provided in all cases as a prerequisite to termination under subsection B of § 16.1-283. Stewart v. Norfolk Dep't of Human Servs.,, 2009 Va. App. LEXIS 131 (Mar. 24, 2009).

VI. TERMINATION UNDER SUBSECTION C.
A. IN GENERAL.

Standard for termination of parental rights. - Residual parental rights may be terminated if it is in the children's best interest and the parent has not remedied substantially the conditions that led to their foster care placement within one year of their placement. Dimauro v. Virginia Beach Dep't of Social Servs., No. 1533-99-1, 2000 Va. App. LEXIS 267 (Ct. of Appeals Apr. 11, 2000).

To terminate the parental rights under subdivision C 2, the trial court must find by clear and convincing evidence: (1) that termination is in the best interests of the child; (2) that the parent failed to remedy substantially the conditions leading to, or requiring continuation of, foster care; and (3) that the parent failed to remedy the conditions despite receiving reasonable and appropriate services. Fairfax County Dep't of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 Va. App. LEXIS 824 (Ct. of Appeals Dec. 19, 2000).

Where the evidence showed that a child's mother was a heroin abuser, was unable to stop using heroin, was occasionally incarcerated, was often discovered having left her son unattended, and was unable to remedy her heroin addiction or provide her son with a stable environment, and where her son had been in foster care for 29.5 months, was returned to her mother's care, and was soon after removed from her care because the mother was using heroin within a week, the Department of Family Services proved by clear and convincing evidence that statutory grounds for termination of the mother's parental rights existed and that the child's best interests would be served through adoption. Foster v. Fairfax County Dep't of Family Servs., No. 0026-04-4, 2004 Va. App. LEXIS 346 (Ct. of Appeals July 20, 2004).

Subdivision C 2 of this section protects the family unit and attendant rights of both parents and child, while assuring resolution of the parent/child relationship without interminable delay. It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming responsibilities. Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995).

Enactment of this section eliminated the necessity for a specific finding of parental unfitness in termination proceedings between parents and social agencies. A finding that the factors listed in subdivision C 2 of this section exist is tantamount to a finding of parental unfitness. Harris v. Lynchburg Div. of Social Servs., 223 Va. 235 , 288 S.E.2d 410 (1982).

Enactment of this section modified the rule enunciated in Rocka v. Roanoke County Dep't of Pub. Welfare, 215 Va. 515 , 211 S.E.2d 76 (1975), and in Berrien v. Greene County Dep't of Pub. Welfare, 216 Va. 241 , 217 S.E.2d 854 (1975), that, in a contest between a parent and a social service agency, the rights of the parent may not be terminated absent a specific finding of parental unfitness. As this section requires that the termination of parental rights promote the best interests of the child and that certain factors be present, a determination that these factors are present is tantamount to a finding of parental unfitness and renders a separate finding of parental unfitness unnecessary. Knox v. Lynchburg Div. of Social Servs., 223 Va. 213 , 288 S.E.2d 399 (1982).

Once the trial court determined that the factors listed in subdivision C 2 existed, this became tantamount to a finding of parental unfitness and no separate finding of unfitness was necessary. Helen W. v. Fairfax County Dep't of Human Dev., 12 Va. App. 877, 407 S.E.2d 25 (1991).

Determination of parental unfitness. - When a trial court determines that the requirements of subdivision C 2 have been met, this is tantamount to a determination of parental unfitness with respect to residual parental rights in the child subject to the petition. At that point no further finding of parental unfitness is required by the court. Kessler v. Department of Social Servs., No. 0452-94-3 (Ct. of Appeals Feb. 14, 1995).

The presence of one or more additional children in the home not subject to a petition to terminate residual parental rights, while a factor the trial court may consider prior to making its determination, does not preclude the court's finding that the requirements of subdivision C 2 are met nor does it require a further, specific determination of general parental unfitness. Kessler v. Department of Social Servs., No. 0452-94-3 (Ct. of Appeals Feb. 14, 1995).

Conjunctive requirement. - Subsection C of § 16.1-283, regarding termination of parental rights, spoke in the conjunctive, as a court had to find, upon clear and convincing evidence: (1) that termination was in the best interests of the child; and (2) that the parent or parents, without good cause, had been unwilling or unable within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child's foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. L.G. v. Amherst County Dep't of Soc. Servs., 41 Va. App. 51, 581 S.E.2d 886, 2003 Va. App. LEXIS 333 (2003).

No constructive notice where identity of parent "not reasonably ascertainable." - Where the identity of the parent whose parental rights are to be terminated is unknown and not reasonably ascertainable based on the statutory standard in former § 63.1-204 (see now § 63.2-902 ) for making that determination, subsection C does not require constructive notice to such parent. Rather, where the court finds upon clear and convincing evidence that it is in the best interests of the child, and that the child has been in foster care for a period of 12 months without contact by the unknown parent, the parental rights of such parent may be terminated. Unknown Father of Baby Girl Janet v. Division of Social Servs., 15 Va. App. 110, 422 S.E.2d 407 (1992).

Termination of rights upheld. - Subdivisions C 1 and C 2 provide that proof of the failure of the parents without good cause to communicate on a continuing or planned basis with the child for a period of 12 months, or proof of the failure or inability of the parents to make reasonable progress toward the elimination of the conditions that led to the child's foster care placement, constitutes prima facie evidence of the required conditions for termination. Jewell v. Stafford County Dep't of Pub. Welfare, No. 0774-85 (Ct. of Appeals Apr. 7, 1986).

There was clear and convincing evidence in the record to support the finding of the trial court that the mother, without good cause, failed to maintain contact with and to provide or substantially plan for the future of the child for a period of 12 months after the child's placement in foster care, notwithstanding the reasonable and appropriate efforts of the agencies to communicate with the mother and to strengthen the parent-child relations, where the foster care plan provided for the mother to visit her son bimonthly, she did not maintain contact with the child or the agency on a regular basis, and visited the child only three times within the 12-month period, and there were ample services offered and available to the mother, but she chose not to take advantage of them. The law does not require the division to force its services upon an unwilling or disinterested parent. Barkey v. Commonwealth, Alexandria Dep't of Human Servs., 2 Va. App. 662, 347 S.E.2d 188 (1986).

Termination of the father's parental rights was appropriate pursuant to subdivisions C 1 and C 2 of § 16.1-283 because he failed to have continuing contact with his children, he failed to participate in the planning for his children, and he failed to take the Department of Social Services' offer of monetary help for a rental deposit and child care. Winn v. Chesterfield County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 82 (Mar. 2, 2010).

Termination of parental rights was proper under subdivision C 2 of § 16.1-283 where a mother suffered from major depression, mild mental retardation, and was a recovering alcoholic, the child had severe developmental and behavioral problems, and, despite years of services, the mother was unable to remedy the conditions that had prompted removal. Perez v. Fairfax County Dep't of Family Servs.,, 2010 Va. App. LEXIS 56 (Feb. 16, 2010).

Termination of the mother's parental rights under subsection C of § 16.1-283 was proper, where the trial court applied the "clear and convincing standard evidence" standard of proof and the trial court's reliance on factual stipulations from the permanency planning hearing did not undermine its ruling, particularly where the mother's counsel did not object and conceded that the Department of Social Service's witness would have established those facts if they were to testify. Dunn v. Commonwealth,, 2011 Va. App. LEXIS 17 (Jan. 18, 2011).

Trial court did not abuse its discretion in terminating a mother's parental rights to her children under subdivisions C 1 and C 2 of § 16.1-283 because the mother was unable to complete in a timely manner the requirements of the Department of Social Services to go to parenting classes, maintain stable housing, and stay in contact with the department; during the time that the children were in foster care, the mother had at least seven addresses, she was admitted to psychiatric facilities four times over the course of seventeen months, and she did not consistently participate in mental health services and give the name of her mental health provider to the department. Saunders v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 28 (Feb. 7, 2012).

Orders terminating parental rights pursuant to subdivision C 2 of § 16.1-283 were proper, as the subject child, who was almost three years old at the time of the trial court hearing, had spent the majority of the child's life in foster care where the child was thriving, and both parents failed to take advantage of all of the services offered by an agency. Davies v. Prince Edward County Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 182 (May 29, 2012).

Termination of the mother's parental rights under subsection C of § 16.1-283 was supported by evidence that the mother had failed to obtain and maintain adequate housing, did not go to job training, did not participate in the CHIPS program, did not attend all the child's medical appointments, and did not maintain contact with the child's foster mother. Thomas v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 192 (June 12, 2012).

Evidence was sufficient to terminate the father's parental rights under subdivisions C 1 and C 2 of § 16.1-283 as the father did not maintain contact with his child, he did not comply with the services provided by the Bristol, Virginia Department of Social Services before his incarceration, and the child needed permanency the father could not provide. Hatcher v. Bristol,, 2012 Va. App. LEXIS 311 (Oct. 9, 2012).

Decision terminating a parent's residual parental rights to the parent's child pursuant to subdivision C 2 of § 16.1-283 was proper, as the parent had a long history of criminal behavior and substance abuse and had been incarcerated for a significant portion of the child's life; the child was thriving in foster care. Ellis v. Harrisonburg-Rockingham Soc. Servs. Dist.,, 2012 Va. App. LEXIS 304 (Oct. 2, 2012).

Evidence was sufficient to support termination of the father's parental rights under subdivisions C 1 and 2 of § 16.1-283 because the father had been incarcerated since before his child's birth; the father had had no contact with his son and provided no evidence regarding how the conditions that led to the foster placement of his child had been remedied; and, at the time of the termination hearing, the child had already been in foster care for more than 12 months and would be nearly four years old before the father's release from incarceration. Alvarenga v. Alexandria Dep't of Cmty. & Human Servs.,, 2013 Va. App. LEXIS 86 (Mar. 19, 2013).

While the mother had achieved some of the goals identified for reunification, such as completing a parenting assessment and psychological assessment, and visiting the children, the termination of the mother's parental rights was supported by evidence that the mother continued her lifestyle of drugs, dealing drugs, and remaining involved with convicted felons. The mother also faced child abuse charges in Virginia and drug charges in Tennessee resulting in her being unable to resume her parenting duties. Welch v. Bristol Dep't of Soc. Servs., No. 2076-12-3, 2013 Va. App. LEXIS 158 (Ct. of Appeals May 21, 2013).

Both of the mother's older children were in need of special care that the mother could not provide, while the youngest child was progressing normally at a regular foster care home and was reported to be happy and healthy, and thus the circuit court had credible factual basis for distinguishing the youngest child from his siblings. Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 764 S.E.2d 284, 2014 Va. App. LEXIS 365 (Nov. 4, 2014).

Trial court based its decision on the fact that mother could not care for her child, or arrange for acceptable care for her child, within 12 months of the department receiving custody, and thus the trial court's decision to terminate mother's parental rights was not based solely on her incarceration, and the termination ruling was affirmed. Lindsey v. Stafford Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 14 (Jan. 20, 2015).

Termination of the father's parental rights under subdivision C 1 of § 16.1-283, was supported by evidence that the father continued to use drugs rather then care for the child, the father had not bonded with the child, the child would not recognize the father, the child was in a stable loving environment, and separating the child from his half-brother would be devastating to the child. Eskridge v. Wash. County Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 67 (Mar. 3, 2015).

Although a mother contended the evidence was insufficient to support the termination of her parental rights to two of her children pursuant to subdivision C 2 of § 16.1-283, the mother did not challenge the termination pursuant to subsection B of § 16.1-283. The mother's failure to challenge the termination under subsection B rendered moot her claim regarding the termination under subdivision C 2, and the appellate court did not need to consider it. Gilley v. Patrick Cnty. Dep't of Soc. Servs., No. 1601-16-3, 2017 Va. App. LEXIS 23 (Ct. of Appeals Jan. 31, 2017).

Father was unable to plan for the future of the children during the six months after they entered foster care, as required, and the termination of the father's residual parental rights was proper; he did not avail himself of the department's referrals during the time the children were in foster care, and he was unable to establish that he had suitable housing for the children or stable employment by the time of the trial. Burton v. Norfolk Dep't of Human Servs., No. 0958-16-1, 2017 Va. App. LEXIS 53 (Ct. of Appeals Feb. 28, 2017).

Termination of the father's parental rights was proper as he had failed to provide or substantially plan for the future of his daughter for a period of six months after the child's placement in foster care because, in light of the father's history and the protective orders in existence because of his previous violent outbursts, the circuit court's determination that the father failed, without good cause, to communicate with his child was not plainly wrong; and, although the father testified that he recently obtained a two-bedroom apartment and furnished a bedroom for his child, no information relating to his new apartment was disclosed until the trial as he chose to cease communicating with the Bristol Department of Social Services. Tallman v. Bristol Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 185 (Aug. 1, 2017).

Mother's brief did not support her assignment of error to the trial court's decision to terminate her parental rights because it failed to present an argument supported by principles of law or authorities; the mother did not make any reference to the code section under which termination occurred, and the trial court's findings that the mother failed to maintain contact with her children and failed to remedy the conditions that led to their foster care placement corresponded to that section. Dilaura v. Norfolk Dep't of Human Servs., No. 0223-17-1, 2017 Va. App. LEXIS 289 (Nov. 21, 2017).

Circuit court's decision to terminate a mother's parental rights to her children was supported by clear and convincing evidence, was in the best interests of the children, and was not plainly wrong because termination was warranted under subdivisions C 1 and 2; the mother failed to maintain contact with the children for six months after they entered foster care, and she failed to remedy within twelve months the conditions that led to foster care placement. Dilaura v. Norfolk Dep't of Human Servs., No. 0223-17-1, 2017 Va. App. LEXIS 289 (Nov. 21, 2017).

Circuit court properly terminated a father's parental rights to his child and approved the foster care plan's goal of adoption because he had not maintained contact for the past six months or planned for the child's future, last saw the child when he was six months old, indicated that he wanted a paternity test to insure that the child was his, yet did not go to any of the appointments for paternity testing, had not visited the child, did not provide financial support for the child, did not come to any of the hearings until the termination hearing, and the child was thriving and doing very well in foster care and had a close relationship with his half-brother, who lived in the same foster home. Cooks v. Albemarle Cty. Dep't of Soc. Servs., No. 1270-17-2, 2018 Va. App. LEXIS 2 (Jan. 9, 2018).

Trial court did not err in terminating the father's parental rights, because the father had never met the child and had been incarcerated the child's entire life, had issues regarding substance abuse, was a violent sex offender and had not been at liberty long enough to establish that his treatment had been effective, and had been in jail, prison, or a motel room for years. Strother v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1229-17-3, 2018 Va. App. LEXIS 179 (July 3, 2018).

Circuit court's termination decision was not plainly wrong or without evidence to support it because the mother had not demonstrated that she could remain sober outside of a sober-living residence, there was a lack of evidence the mother successfully completed domestic violence therapy, and she had not demonstrated an ability to maintain stable housing or employment outside of a sober-living residence. Johnson v. Loudoun Cty. Dep't of Family Servs., No. 1616-18-4, 2019 Va. App. LEXIS 123 (May 21, 2019).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283 was proper; the children were removed from the father's care in 2015 and 2017 after police conducted drug raids at his home, the father failed to take advantage of the services offered to him, the children were aware that he was using and distributing drugs, and at the time of termination, the father had no home for the children and they had been in foster care for 30 months. Weller v. Spotsylvania Cty. Dep't of Soc. Servs., No. 2020-18-2, 2019 Va. App. LEXIS 137 (June 11, 2019).

Evidence was sufficient to support the termination of a father's parental rights because the father's child was in foster care for approximately three years, the father was incarcerated multiple times, and the record did not indicate when the father expected to be released, the father did not comply with requirements of the county department of social services, and the father had very little contact with the child. Furthermore, the county department was not required to offer the father services while the father was incarcerated. Whitener v. Pulaski Cty. Dep't of Soc. Servs., No. 0523-19-3, 2019 Va. App. LEXIS 201 (Sept. 10, 2019).

Circuit court properly terminated a mother's parental rights and found that termination was in the children's best interests because, inter alia, the Department of Social Services started offering services to the family in 2016 due to concerns about the family's living situation, the children's hygiene problems, and lack of supervision, the situation did not improve, the mother never progressed to the point of having unsupervised visitations, the parents refused to cooperate with family stabilization services, the children had not been in the mother's care for approximately three years, and while in foster care, they received counseling, went to the doctor and dentist, and improved in school. Darr v. Spotsylvania Cty. Dep't of Soc. Servs., No. 0803-19-2, 2020 Va. App. LEXIS 38 (Feb. 11, 2020).

Trial court did not err in finding that the Department of Social Services made reasonable and appropriate efforts and that it was in the best interests of the child to terminate mother's parental rights, as the child had been in foster care for more than two years, the mother was still incarcerated, and the mother had no definitive plan for the child upon her release from incarceration. Spicer v. Cumberland Cty. Dep't of Soc. Servs., No. 2077-19-2, 2020 Va. App. LEXIS 230 (Sept. 22, 2020).

Circuit court properly terminated the mother's parental rights because the child had not lived with mother since she was five years old, and, at the time of the circuit court hearing, the child was 11 years old; the child had been in foster care for approximately 15 months; the child had serious mental health problems that required hospitalization, she was in a residential treatment center, and there was evidence that she was expected to remain there for several months; the mother did not remove herself from an abusive relationship; the mother could not take care of herself and did not have stable living; and the mother was not in a position to care for the child, especially considering the child's special needs. Rayne v. Franklin Cty. Dep't of Soc. Servs., No. 0879-20-3, 2021 Va. App. LEXIS 40 (Mar. 16, 2021).

Circuit court did not err in terminating a mother's parental rights and in finding that termination was in the children's best interests because, although a social services department attempted to provide services for years, ongoing abuse by the mother led to one child attempting suicide several times and criminal charges against the mother; the mother continued to deny abuse and the mother's role in the children's placement in foster care; and the mother was not in a position to visit the children, much less to resume custody of the children. Jaffar v. City of Fredericksburg Dep't of Soc. Servs., No. 1002-20-2, 2021 Va. App. LEXIS 76 (May 11, 2021).

Circuit court did not err in terminating the father's parental rights and finding that termination was in the children's best interests, as the father's visits never progressed to unsupervised or overnight visits, the children's therapist testified that the children suffered from post-traumatic stress disorder and would need continued therapy in the future, and the father was not in a position to care for the children and their special needs. Clark v. Culpeper Cty. Dep't of Soc. Servs., No. 0301-21-4, 2021 Va. App. LEXIS 155 (Aug. 17, 2021).

Termination of rights denied. - Trial court's denial of a petition to terminate the residual parental rights was appropriate because evidence supported the trial court determinations that the parent was making sufficient progress and that it was not in the children's best interest to terminate the parent's parental rights. There was significant evidence that the parent had done everything that was requested by an administrative agency, was employed, had a stable residence, had completed at least two parenting classes, was in group therapy, and was keeping regular appointments with a psychiatrist. Fredericksburg Dep't of Soc. Servs. v. Washington,, 2011 Va. App. LEXIS 257 (Aug. 2, 2011).

Waiver of arguments. - Although a mother argued the circuit court erred in terminating her parental rights to her children because the city department of social services had not made reasonable efforts to reunite the children with her and had not provided her with reasonable and appropriate services, the mother did not develop these arguments. Therefore, the arguments were waived. Smith v. City of Roanoke Dep't of Soc. Servs., No. 1317-18-3, 2019 Va. App. LEXIS 131 (June 4, 2019).

Failure to present argument. - Father's argument that the Department of Social Services failed to make reasonable and appropriate efforts to assist him was not properly preserved because the written statement of facts did not indicate that a timely objection was made in the circuit court; the written statement of facts only stated that father's attorney moved to strike the evidence on the reasoning that it was not in the best interests of the children and did not object to the final order. Davis v. City of Hampton Dep't of Soc. Servs., No. 0272-17-1, 2018 Va. App. LEXIS 17 (Jan. 30, 2018).

Although a mother raised specific arguments on appeal that she did not raise in the circuit court, the circuit court was aware that the mother opposed the termination of her parental rights and the goal of adoption; therefore, the mother sufficiently preserved her arguments for appeal, and the circuit court did not err in terminating her parental rights to her children and approving the goal of adoption. Weiford v. City of Hampton Dep't of Soc. Servs.,, 2019 Va. App. LEXIS 52 (Mar. 5, 2019).

B. BEST INTERESTS OF CHILD.

The child's best interest is the paramount concern, keeping in mind the familial bonds and the rights of both the parents and child to maintain that bond where it can be done without substantial threat to the child's well being. Wright v. Alexandria Div. of Social Servs., 16 Va. App. 821, 433 S.E.2d 500 (1993), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).

When addressing matters concerning a child, including the termination of a parent's residual parental rights, the paramount consideration of a trial court is the child's best interests. Tibbitts v. Department of Soc. Servs., No. 2487-99-2, 2000 Va. App. LEXIS 274 (Ct. of Appeals Apr. 11, 2000); Pennybacker v. Spotsylvania County Dep't of Social Servs., No. 2599-99-2, 2000 Va. App. LEXIS 273 (Ct. of Appeals Apr. 11, 2000); Ripley v. Charlottesville Dep't of Social Servs., No. 2879-99-2, 2000 Va. App. LEXIS 307 (Ct. of Appeals Apr. 25, 2000).

Factors bearing on best interests of child. - In determining what is in the best interests of the child, a court must evaluate and consider many factors, including; the age and physical and mental condition of the child or children, the age and physical and mental condition of the parents, the relationship existing between each parent and each child, the needs of the child or children, the role which each parent has played, and will play in the future, in the upbringing and care of the child or children, and such other factors as are necessary. Harmon v. Richmond County Dep't of Social Servs., No. 0895-00-2, 2001 Va. App. LEXIS 74 (Ct. of Appeals Feb. 20, 2001).

Appellate court could not review father's challenge to the termination of his parental rights, as the father did not make any specific objections to the trial court's ruling; since the trial court's ruling could have been based on any number if factors, it was not narrow enough for the appellate court to make obvious the basis for the father's objection and did not permit the appellate court to properly review the trial court's ruling. Rivera v. City of Hampton Dep't of Soc. Servs., No. 1857-03-1, 2004 Va. App. LEXIS 221 (Ct. of Appeals May 11, 2004).

Despite evidence that a mother loved her children and a bond existed between them, because she was unable to provide them with the stable home and care necessary to meet their needs, the trial court did not err in terminating her parental rights pursuant to subdivision C 2 of § 16.1-283. McCoy v. Grayson County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 473 (Dec. 7, 2010).

Because the identity of a child's father was not at issue in the termination proceedings, and because there was no indication that the father had any type of bond with the child, termination of the father's parental rights was in the child's best interests under subdivision C 1 of § 16.1-283. Brown v. Charlottesville Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 271 (Aug. 23, 2011).

Termination of the mother's parental rights was appropriate pursuant to subdivision C 2 of § 16.1-283 because the trial court did not err in finding that the Department of Social Services proved by clear and convincing evidence that the mother had failed, without good cause, to make substantial progress towards eliminating the conditions requiring the continuation of the child's foster care within 12 months of the child's placement, and that termination of mother's residual parental rights was in the child's best interests. Huffman v. Roanoke City Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 226 (July 5, 2011).

While the children were put in two different placements, that was in their best interests, given that the older son was aggressive with the older daughter, and the two sons had behavioral issues. Wooddell v. Harrisonburg-Rockingham Soc. Servs. Dist., Nos. 0316-16-3, 0338-16-3, 2016 Va. App. LEXIS 262 (Ct. of Appeals Oct. 11, 2016).

Circuit court properly terminated the parental rights of a mother and father and approved the foster care goal of adoption because contrary to their arguments, the evidence supported the circuit court's finding that language was not a barrier, in spite of all of the services provided to the parents over the years, the mother and the father had not determined how to apply what they learned to interacting with their children, they repeatedly focused on how the placement of the children had affected them, as opposed to how their actions affected the children, and the children had been in foster care for almost two years, were doing well in foster care, and were either in an adoptive placement or a possible adoptive placement. De Jesus Martinez v. Harrisonburg Rockingham Soc. Servs. Dist., Nos. 0090-18-3, 0097-18-3, 0578-18-3, 0579-18-3, 0580-18-3, 2018 Va. App. LEXIS 271 (Oct. 16, 2018).

Termination of parental rights must promote best interests of child, and where a determination is made that the factors enumerated in this section are present, such a determination in a given case is tantamount to a finding of parental unfitness. No further finding of parental unfitness is required by the court. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986).

Failure to make explicit finding regarding child's best interests. - Although the Department of Social Services established that a mother neglected her children and, without good cause, failed to respond to the department's rehabilitative efforts, these findings standing alone were insufficient as a matter of law to support the termination of the mother's parental rights in the absence of an explicit finding that such a drastic action would be in the best interests of the children. Harmon v. Richmond County Dep't of Social Servs., No. 0895-00-2, 2001 Va. App. LEXIS 74 (Ct. of Appeals Feb. 20, 2001).

Termination in best interest of child. - Termination of parental rights pursuant to subdivision C 2 of § 16.1-283 was in the children's best interests as the special needs of the children required that they be placed in a structured environment, and the evidence showed that the children's continued contact with their parents clearly was detrimental to their progress in managing their behavioral issues. Taylor v. City of Roanoke Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 471 (Dec. 7, 2010).

Clear and convincing evidence showed that termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was in the best interests of her son because the son was thriving in the care of his foster family, who wanted to adopt him and for more than two years while the son was in foster care the mother did nothing to substantially remedy the conditions that required the continuation of his placement. The evidence showed that: (1) the mother's employment status was unclear; (2) her housing situation was unstable; (3) the mother had not obtained the therapy that a psychologist opined was necessary; (4) she failed to complete parenting classes; and (5) she failed to participate fully in the visitation opportunities provided to her. Fauber v. Shenandoah Valley Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 38 (Feb. 8, 2011).

Evidence was sufficient to support the trial court's decision to terminate a parent's parental rights to two children pursuant to subdivision C 2 of § 16.1-283, as termination was in the best interests of both children; the children were thriving in the care of their foster families, and the mother's parenting skills had not progressed. Haskins v. Lynchburg Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 200 (June 7, 2011).

Termination of the parental rights of a mother and father was in the children's best interests because, while both parents testified to their love for the children and took steps to become better parents, the record fully supported the finding that the parents had been unable within a reasonable period of time to remedy substantially the conditions that led to the placement of the children in foster care. The mother and the children lived in unsanitary conditions, she did not have steady employment, she was unable to provide necessary care, both parents had significant personality disorders, the father continued to abuse marijuana, and the children were thriving with their foster families, who wished to adopt them. Jackson v. Lynchburg Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 279 (Sept. 6, 2011).

Because clear and convincing evidence that termination of a father's parental rights was in the children's best interest was adequately supported by the record, and because the father had not timely availed himself of the services offered to him within 12 months, termination was proper under subsection C. Lee v. Fredericksburg Dep't of Soc. Servs., No. 2217-10-2, 2011 Va. App. LEXIS 252 (Aug. 2, 2011).

Clear and convincing evidence proved that termination of a mother's parental rights under subdivision C 2 of § 16.1-283 was in the best interests of the children as the record showed that the children had been in foster care for more than three years, that the children were happy and thriving in their foster home, that they had bonded with the foster parents, that the mother was unemployed and unequipped to provide a suitable home for the children, and that the mother was unwilling to separate from her husband, whose parental rights to the children had been terminated. Kent v. Va. Beach Dep't of Human Servs.,, 2012 Va. App. LEXIS 6 (Jan. 17, 2012).

Evidence was sufficient to show that termination of parental rights under subdivision C 2 of § 16.1-283 was in the best interest of each of the parties' children, as the parents had both failed to complete individual therapy despite opportunities to do so, and both parents presented a risk of physical or sexual abuse to the children. Tyson v. City of Va. Beach Dep't of Human Servs.,, 2012 Va. App. LEXIS 83 (Mar. 20, 2012).

Clear and convincing evidence proved the factors required for termination under subdivision C 2 of § 16.1-283, including that termination was in the best interests of the children, as they had been in foster care for more than one and one-half years, they were thriving in their foster home, and their parent was incarcerated at the time of termination hearing and was not expected to be released for more than three years, at the earliest. Burnette v. Bristol Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 283 (Aug. 28, 2012).

It was in the children's best interest that the parents' residual parental rights be terminated pursuant to subsection C of § 16.1-283 because the parents were unwilling or unable to respond to or follow through with the rehabilitative efforts that were offered to them, made no effort to maintain contact with the children for over one and one-half years, and failed to plan for the children's future, and a great-grandmother and aunt did not take the necessary steps to ensure placement in their homes. Logan v. Fairfax County Dep't of Family Servs.,, 2012 Va. App. LEXIS 296 (Sept. 11, 2012).

Termination of a mother's parental rights was proper as the evidence showed the mother had been unwilling or unable to remedy the conditions that led to or required continuation of the children's foster care placement and that termination was in the best interests of the children. The children had been in and out of foster care since 2002, she had supervisory issues with the children for years and showed little improvement in that area, she continued to use alcohol and had not completed recommended substance abuse treatment, she failed to complete treatment for her mental health issues, she was unemployed at the time of the hearing, she continued to have a relationship with her boyfriend despite the fact that he had abused two of her children and also had substance abuse issues, and the children were improving in foster care. Witt v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2012 Va. App. LEXIS 375 (Nov. 20, 2012).

Trial court did not err in finding that termination of a father's parental rights under subdivision C 2 of § 16.1-283 was in the children's best interests because, although the father visited with the children while they were in foster care, he did not participate in any parenting classes or obtain suitable housing. Parker v. Va. Beach Dep't of Human Servs.,, 2012 Va. App. LEXIS 350 (Nov. 6, 2012).

Trial court's finding that it was in a child's best interests to terminate his parents' rights under subsections C and E of § 16.1-283 was supported where: (1) the child was thriving in the foster family's care; (2) his behavior was significantly improved, and he had a strong bond with his siblings who had been adopted by the foster parents; and (3) although the parents were engaging in a more positive manner with the child and his foster parents, they did not show they had improved their circumstances sufficiently to maintain their parental rights. Thaxton v. Halifax County Dep't of Soc. Servs.,, 2013 Va. App. LEXIS 84 (Mar. 19, 2013).

Clear and convincing proof demonstrated the conditions required for termination of a mother's residual parental rights under subdivision C 2 of § 16.1-283, and termination of the mother's parental rights was in the best interests of the children because the evidence proved that the children, who lived together in a foster home, were thriving since removal from the mother's custody, and the foster parents desired to adopt the children. Orum v. Buckingham County Dep't of Soc. Servs., No. 2350-12-2, 2013 Va. App. LEXIS 166 (Ct. of Appeals June 4, 2013).

Termination of parental rights was in the child's best interest as the child had been in foster care for almost three years, the mother was not making sufficient progress to remedy the conditions that precipitated foster care placement, the child was continuing to thrive with his foster parents, and none of the service providers and specialists who observed the mother and the child could recommend returning the child to the mother. Gibson v. Wise County Dep't of Soc. Servs., No. 2309-12-3, 2013 Va. App. LEXIS 181 (Ct. of Appeals June 11, 2013).

Termination of a mother's parental rights was in the child's best interests as the child was doing well in foster care, he had become attached to his foster parents, the mother continued to struggle with anger issues despite treatment, and she was unable to show that she could meet the child's emotional needs. Mikhail v. Fairfax County Dep't of Family Servs., No. 0215-13-4, 2013 Va. App. LEXIS 209 (Ct. of Appeals July 23, 2013).

Trial court did not abuse its discretion in terminating the mother's residual parental rights because clear and convincing evidence proved that termination of the mother's rights was in the child's best interests because, at the time of the termination hearing, the child had already been in foster care for well over twelve months, and the mother was unwilling or unable to remedy the conditions that led to the child's placement in foster care by failing to maintain safe, stable, and adequate housing for the child. Hale v. Russell County Dep't of Soc. Servs., No. 0483-13-3, 2013 Va. App. LEXIS 238 (Ct. of Appeals Aug. 20, 2013).

Trial court did not err in terminating mother's and father's parental rights, and approving the goal of adoption, because, although the parents had made improvements in their lives, it took them a long time and they were not in a position to care for the children. The children, who both had serious issues, were doing well in foster care, needed stability, and it was not in their best interest to wait. McDorman v. Harrisonburg Rockingham Soc. Servs. Dist., Nos. 0885-13-3, 0886-13-3, 2013 Va. App. LEXIS 320 (Nov. 5, 2013).

Termination of a mother's parental rights was in the best interests of her children because the county department of family services satisfied its duty to investigate the children's available relatives as placement options, the relatives either failed to cooperate with the investigation or indicated they did not want to be considered as placement options, and the trial court considered all viable alternatives. Luseni v. Fairfax County Dep't of Family Servs., No. 1003-13-4, 2013 Va. App. LEXIS 309 (Oct. 29, 2013).

Children were more stable and improving in their foster homes, both potential adoption homes, and the guardian ad litem opined that returning the children to the father's custody would cause the children to regress, and the record contained sufficient evidence that termination was in the children's best interests. Hensley v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 103 (Mar. 18, 2014).

Termination of a mother's parental rights for failing to remedy conditions was in the best interest of two children because the mother never sought visitation after it was suspended in July 2011, the mother never acknowledged one child's leg was broken by her boyfriend, and the children were doing well in foster care. Sullivan v. Fredericksburg Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 119 (Apr. 1, 2014).

Evidence showed that a father was often absent, failed to protect his two children from neglect, and failed to make sure the children made it to their medical appointments; the circuit court did not err in finding that it was in the best interests of the children to terminate the father's residual parental rights pursuant to subdivision C 2 of § 16.1-283. Cerda v. Fairfax County Dep't of Family Servs.,, 2014 Va. App. LEXIS 253 (July 1, 2014).

Evidence was sufficient to show that termination of the mother's parental rights was in her children's best interests because they had extensive medical and physical needs and they thrived in foster care, and the mother had no understanding of her children's medical needs given her significant cognitive difficulties from her extensive drug abuse. Fabian-Cerda v. Fairfax County Dep't of Family Servs.,, 2014 Va. App. LEXIS 254 (July 1, 2014).

Trial court did not err in finding that termination of the mother's parental rights was in the child's best interests because the mother demonstrated she was unable to care for the child as she had a history of substance abuse and mental health problems and was incarcerated for a domestic violence conviction; she did not complete all the treatment programs required of her and failed to maintain stable housing upon her release from the hospital for a heroin overdose; she admitted using drugs after her release from the hospital, and the doctor's testimony indicated the mother was at a high risk of relapsing; at the time of the trial, the child had been in foster care for more than two years; and the child was doing well in foster care. McKie v. Richmond Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 296 (Sept. 2, 2014).

Clear and convincing evidence supported the trial court's conclusion that termination of a mother's parental rights was in the best interests of the child and that the requirements of subsection C 2 were met because the mother failed to obtain suitable independent housing for herself and the child, who was in foster care; the child was thriving in his foster home, and the foster family was a potential adoptive family for him. Hareford v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 346 (Oct. 21, 2014).

Record supported the conclusion that termination of the mother's parental rights was in the best interest of two of the children, as the children had been in foster care for over two years, the mother had not completed parenting classes and remained behind on rent and utility payments despite receiving financial assistance, and the mother had mental health issues. Holmes v. City of Richmond Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 369 (Nov. 4, 2014).

Because the circuit court relied on appropriate factors and pointed to some evidence supporting its decision, the circuit court's best interests determination was not plainly wrong or without evidence to support it. Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 764 S.E.2d 284, 2014 Va. App. LEXIS 365 (Nov. 4, 2014).

Appellants could not prevail simply by proving that the mother failed to comply with the requirements of the third subsection of the statute; appellants had to show that as a matter of law, the circuit court erred in finding that termination was not in the best interests of the child, but appellants failed to do so. Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 764 S.E.2d 284, 2014 Va. App. LEXIS 365 (Nov. 4, 2014).

Although the mother claimed the trial court erred in finding that it was in the child's best interests to terminate the mother's parental rights, the trial court did not err in terminating her rights, given in part that there was no evidence that the mother would be able to care for the child when she was released from prison, which was more than one year away, she did not have a relationship with the child, who had bonded with her foster family, the mother was not capable of providing a safe home for the child, and no relatives were available to take custody. Lindsey v. Stafford Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 14 (Jan. 20, 2015).

Trial court did not err in denying a father's request for a continuance and in terminating his parental rights because the father failed to show he was prejudiced by the denial of the continuance where he had more than one year to provide relative placement names prior to the trial court hearing and admitted that he was responsible for the lack of communication that resulted in his failure to provide additional names, the Department of Social Services sent letters to 42 relatives of the child's parents looking for a suitable relative placement for the child, the father had not completed the services offered by the Department, and the child had been in foster care for over two years. Andrews v. Roanoke County Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 154 (May 5, 2015).

Trial court did not abuse its discretion in finding that termination of the mother's parental rights was in the best interests of the children, given in part that the mother was unable to provide the children with a stable home and the care required to meet their needs, and the children were doing well in foster care. Harper v. Alexandria Dep't of Cmty. & Human Servs., No. 2237-14-4, 2015 Va. App. LEXIS 203 (June 23, 2015).

Circuit court did not err in finding that terminating the mother's rights was in the child's best interests, given that the child was thriving in foster care, the mother only visited him on seven occasions during the first two years he was in foster care, and prior to his removal, the child was not enrolled in school and the mother displayed alarming behavior in the child's presence. Aijaz v. Fairfax County Dep't of Family Servs., No. 2247-14-4, 2015 Va. App. LEXIS 275 (Sept. 29, 2015).

Clear and convincing evidence supported the termination of the father's parental rights under subdivision C 2 of § 16.1-283 where an unstable home environment led to the child's removal at the age of two months, the father had only one visit with her due to either his continued drug use or incarceration, the child was thriving in her foster home, which was a potential adoptive placement for her, and the father faced years of incarceration and had no ability to provide a home for the child in the foreseeable future. Guill v. Campbell Cnty. Dep't of Soc. Servs., No. 1028-15-3, 2015 Va. App. LEXIS 366 (Dec. 8, 2015).

Circuit court properly terminated a father's residual parental rights to his two children because termination was in the best interests of the children where the father's involvement in the distribution of drugs ultimately led to the children's removal from his care, the father was subsequently convicted and faced years of incarceration, he had no ability to provide a home for his children for the foreseeable future, the father admitted to drug use and addiction, and the children had special needs. Borden v. Roanoke Cnty. Dep't of Soc. Servs., No. 1548-15-3, 2016 Va. App. LEXIS 60 (Feb. 23, 2016).

Trial court did not err in determining that adoption was in the best interests of the child, as the mother failed to remedy the circumstances that led to the child's placement in foster care for almost two years, the mother lacked stable housing and employment, she failed to maintain her sobriety or treat her mental health conditions, and the foster parents wanted to adopt the child. Howe v. Albemarle Cnty. Dep't of Soc. Servs., Nos. 0703-15-2, 0704-15-2, 2016 Va. App. LEXIS 46 (Feb. 16, 2016).

Termination of parental rights was in a child's best interest because the parent had not substantially remedied the conditions that led to the child being in, and remaining in, foster care as the parent had a history of drug abuse, did not have stable housing at the time of the trial court hearing, and had an employment situation that was questionable at best. In addition, the child was doing well in foster care and had bonded with the foster family who wanted to adopt the child, while the parent had not visited the child in more than a year. Allen v. Henrico Dep't of Soc. Servs., No. 1746-15-2, 2016 Va. App. LEXIS 161 (Ct. of Appeals May 17, 2016).

Trial court did not err by determining that the requirements of this section were met and that termination of the mother's parental rights was in her child's best interests where it showed that Newport News Department of Human Services offered numerous services designed to reunify the mother with her child, the mother exhibited uncooperative behavior, she did not obtain a psychiatric evaluation, she was unemployed and had no stable housing, the child had been in foster care for almost two years, and his foster home was a potential adoptive placement. Mooney v. Newport News Dep't of Human Servs., No. 0439-16-1, 2016 Va. App. LEXIS 244 (Ct. of Appeals Sept. 20, 2016).

Termination of the father's rights was justified; the children had special needs that required consistency and structure that the father could not give, he could not establish that he had regular employment or a stable residence, and he failed to accept assistance from the department. Burton v. Norfolk Dep't of Human Servs., No. 0958-16-1, 2017 Va. App. LEXIS 53 (Ct. of Appeals Feb. 28, 2017).

Because the circuit court relied on appropriate factors and pointed to evidence supporting its decision, its best interests determination was not plainly wrong or without evidence to support it; the circuit court discussed the mother's inability to meet the children's special needs and their necessity for permanency, and given that the best interests analysis was highly fact-sensitive and discretionary, overturning its decision would improperly substitute the circuit court's judgment. Stanley v. Bristol Dep't of Soc. Servs., Nos. 1189-16-3, 1449-16-3, 2017 Va. App. LEXIS 92 (Mar. 28, 2017).

Termination of a father's parental rights was appropriate because termination was in the child's best interest as the father, who was incarcerated, was not able to care for the child, and there was no indication of when, or if, the father would be able to care for the child. Furthermore, the evidence proved that the father did not take advantage of the services offered to the father prior to the father's incarceration. Mason v. Harrisonburg-Rockingham Soc. Servs. Dist., No. 0149-17-3, 2017 Va. App. LEXIS 176 (July 25, 2017).

Circuit court properly terminated a father's parental rights because the evidence showed ample support for its determination that termination was in the best interests of the children; the children were in a household where drug use and domestic violence appeared frequent and prevalent, the family had difficulty in finding stable housing, and the father had past difficulty providing a stable and safe household for the children. Davis v. City of Hampton Dep't of Soc. Servs., No. 0272-17-1, 2018 Va. App. LEXIS 17 (Jan. 30, 2018).

Circuit court did not err in terminating parental rights pursuant to subdivision C 2 of § 16.1-283 where although the parents had cleaned up their home, the autistic child had been removed for a multitude of reasons, the father continued to have physical limitations and depression that impacted his ability to care for the child, the mother's limited cognitive disability affected her decision-making and problem-solving skills, especially as related to the child's needs, and the child was doing well and improving. Dorr v. Lynchburg Dep't of Soc. Servs., Nos. 0966-17-3, 1529-17-3, 2018 Va. App. LEXIS 29 (Feb. 6, 2018).

Evidence supported the trial court's ruling that it was in the child's best interests to terminate the mother's parental rights and approving the foster care plan's goal of adoption because despite counseling and testing she refused to acknowledge that she had a mental illness and would not take medication, she planned to move out of the area with the child, her housing situation was precarious, her income was insufficient to cover her living expenses, and the child had been in foster care 12 months, he had been improving, and he needed a stable home. Moses v. Alexandria Dep't of Cmty. & Human Servs., No. 1749-17-4, 2018 Va. App. LEXIS 44 (Feb. 20, 2018).

Local social services agency presented sufficient evidence to support termination of the father's parental rights where he chose to reoffend multiple times rather than engaging in recommended services or remedying the agency's concerns as to housing and stability, and although he had found employment and asserted he was currently drug-free, the efforts were simply too late. Essenmacher v. Lynchburg Dep't of Soc. Servs., Nos. 0086-17-3, 0087-17-3, 2018 Va. App. LEXIS 54 (Mar. 6, 2018).

In upholding a circuit court's decision to terminate a father's parental rights pursuant to subdivision C 2 of § 16.1-283, the appellate court found that the county department of social services presented sufficient evidence to support the foster care goal of adoption and that the circuit court did not err in approving the goal and finding that adoption was in the child's best interest. Irvin v. Roanoke Cty. Dep't of Soc. Servs., No. 1719-17-3, 2018 Va. App. LEXIS 155 (June 12, 2018).

It was in the best interests of a child to terminate the father's parental rights as the father was incarcerated and had a history of criminal behavior and the child, who had behavioral, educational, emotional, and medical needs, had been in foster care for approximately 20 months and had bonded with the foster mother Whiting v. Gloucester Cty. Dep't of Soc. Servs., No. 0401-18-1, 2018 Va. App. LEXIS 195 (July 17, 2018).

Trial court did not err in finding that it was in the child's best interests to terminate the father's parental rights where the evidence showed that the father did not have any contact with the child for six months, the father had not developed a plan for the child's care until a few months earlier, and the father had a criminal history, failed to attend the required individual counseling, had numerous addresses, and had an unstable relationship with the mother. Lowery v. Halifax Cty. Dep't of Soc. Servs., No. 1540-17-2, 2018 Va. App. LEXIS 242 (Sept. 18, 2018).

Evidence was sufficient to prove that it was in a child's best interest to terminate the father's parental rights and to approve the goal of adoption because the father did not complete recommended counseling; the father did not have appropriate housing for the child and all of the child's medical equipment; the child was improving in foster care, but still had numerous medical issues; and the father, despite a social services agency's efforts, was not prepared to care for the child at the time of the circuit court hearing. Gannon v. City of Roanoke Dep't of Soc. Servs., No. 1083-18-3, 2018 Va. App. LEXIS 345 (Dec. 11, 2018).

Circuit court did not err in finding that the evidence was sufficient to terminate a father's parental rights under subdivision C 1 of § 16.1-283 and termination of parental rights was in the child's best interests where he contacted the county department of family services only once while the child was in foster care, he had no plans for the child other than the rejected plan to live with the child's mother or grandmother, and it was unclear how long he was to be incarcerated on his pending charges. Johnson v. Fairfax Cty. Dep't of Family Servs., No. 0628-18-4, 2019 Va. App. LEXIS 4 (Jan. 8, 2019).

The circuit court properly terminated a mother's residual because termination was in the best interests of the children where the mother had not substantially remedied the conditions leading to the children's removal, they were doing well in foster care, and movement toward permanency and safety was in their best interests, which meant termination of parental rights to facilitate adoption. Ansell v. Harrisonburg/Rockingham Soc. Servs. Dist., No. 0765-18-3, 2019 Va. App. LEXIS 13 (Jan. 15, 2019).

Circuit court properly terminated a father's parental rights and approved the foster care goal of adoption because the father's arguments at trial focused solely on the request for the mother's parental rights not to be terminated, the father never presented any evidence or any argument regarding the termination of his parental rights or that the Department of Social Services failed to meet the statutory criteria for the permanency plan. Walker v. City of Hampton Dep't of Soc. Servs.,, 2019 Va. App. LEXIS 50 (Mar. 5, 2019).

Circuit court did not err in finding that the termination of the mother's parental rights was in the best interests of the children because the children had been in foster care for seventeen months, and the evidence proved that the children had significant behavioral issues; the mother was not in a position to care for them and their special needs. Rasheed v. Roanoke City Dep't of Soc. Servs., No. 1569-18-3, 2019 Va. App. LEXIS 88 (Apr. 16, 2019).

Circuit court did not err in finding that it was in the best interests of the child to terminate a mother's parental rights under subdivision C 2 because the mother did not comply with any of the requirements of the department of human services with respect to the child, the mother had no contact with the child the entire time the child was in foster care, and the mother had never had custody of the child. Hobson v. City of Virginia Beach Dep't of Human Servs., Nos. 1980-18-1, 0260-19-1, 2019 Va. App. LEXIS 146 (June 25, 2019).

Termination of a mother's parental rights was in the children's best interests because the mother was unable to remedy the conditions that led to the children being placed in foster care as the mother's significant cognitive limitations and lack of insight into how to provide for the children's needs could not be remediated through parent training, in-home services, or medication. Furthermore, the children improved significantly while in foster care for 17 months and were in a potentially adoptive home. Lephew v. Roanoke Cty. Dep't of Soc. Servs., No. 1822-18-3, 2019 Va. App. LEXIS 180 (July 30, 2019).

Termination of the father's parental rights was in the children's best interests, as the children had been in foster care for 24 months, they had special needs and were doing well in their current home, and the father was not in a position to assume custody at the time of the hearing. Hammock v. Halifax Cty. Dep't of Soc. Servs., No. 0161-19-2, 2020 Va. App. LEXIS 57 (Mar. 3, 2020).

Circuit court did not err in finding that termination was in the children's best interests because the father had not demonstrated that he could provide for and safely parent the children, and both children were doing well and thriving in foster care. Dorestal v. City of Fredericksburg Dep't of Soc. Servs., No. 0123-20-2, 2020 Va. App. LEXIS 210 (July 21, 2020).

Termination of the father's parental rights was proper and in the child's best interests because the circuit court adopted the guardian ad litem's recommendations, including that it would be detrimental if the child were placed back in the father's care; the circuit court found that the child had grown, done well, and made progress over the 19 months she had been in foster care; the father admittedly did not complete the anger management classes and participated in only a few counseling sessions; and he never demonstrated that he could provide for the child and care for her in a safe, healthy manner. Khadi v. Wythe Cty. Dep't of Soc. Servs., No. 0174-20-3, 2020 Va. App. LEXIS 235 (Sept. 29, 2020).

Termination of the mother's parental rights to four of her children and approving the foster care goal of adoption was proper and in the children's best interests because the mother failed to obtain and maintain suitable housing for her and the children; she had tested positive for methamphetamines and amphetamines in December 2018, nine months after the children entered foster care; she had not completed substance abuse counseling; the Buchanan County Department of Social Services presented evidence that the children were doing well in foster care, but they had special needs, which required counseling and other services; and the mother had not demonstrated that she was capable of caring for the children. Potts v. Buchanan Cty. Dep't of Soc. Servs., No. 1067-20-3, 2021 Va. App. LEXIS 32 (Mar. 2, 2021).

Trial court did not err in finding that termination of the father's parental rights was in the child's best interest because the child had been in foster care for all but a few weeks of his life and the father admittedly was not in a position to care for the child at the time of the circuit court hearing. Huff v. City of Fredericksburg Dep't of Soc. Servs., No. 0843-20-2, 2021 Va. App. LEXIS 16 (Feb. 2, 2021).

Circuit court properly terminated a father's parental rights to his children because the ends of justice exception did not apply where there was sufficient evidence to prove that termination of his parental rights was in the children's best interests since the family had been involved with social services since 2006, received "extensive services" over the years, an evaluator opined that the prognosis for reunification was "extremely poor" and that the father's failure to protect was as "damaging" to the children as mother's abuse, and an expert in forensic psychology also opined that reunification efforts would be futile and found that the children would not be safe with the father. Saeed v. City of Fredericksburg Dep't of Soc. Servs., No. 1292-20-2, 2021 Va. App. LEXIS 79 (May 11, 2021).

C. NO CONTACT.

Requirements of subdivision C 1 met. - Prima facie case for termination of parental rights under subdivision C 1 § 16.1-283 was established by evidence that although transportation had been offered and visitations had been scheduled, a father failed without good cause to communicate on a continuing and planned basis with his child for a period of six months. Campbell County Dep't of Soc. Servs. v. Roberts,, 2008 Va. App. LEXIS 225 (May 6, 2008).

Parental rights of a parent were properly terminated under subdivision C 1 of § 16.1-283 as: (1) the parent failed to find appropriate housing, to comply with the services offered by an independent contractor working with the department of social services (DSS), and to complete a parenting class or anger management program; (2) despite the contractor's extraordinary efforts to provide the parent with income and transportation, the parent refused to perform readily available work and failed to abide by the conditions established for the use of the contractor's vehicle; and (3) the parent had an anger management issue, and admitted to DSS that the parent was afraid of "losing it" in the child's presence. Clark v. Orange County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 442 (Sept. 30, 2008).

Because a father had no contact with his child for 15 months, demonstrated no ability to live independently, completed none of the programs and services required by his foster care service plan or recommended by a doctor, the trial court properly found that termination of the father's parental rights under subdivision C 1 of § 16.1-283 was in his child's best interests. Miller v. Harrisonburg-Rockingham Soc. Servs. Dist.,, 2009 Va. App. LEXIS 128 (Mar. 24, 2009).

In a case in which a mother had not been in contact with her four-and-one-half-year-old son for more than two years, sufficient evidence supported the circuit court's order terminating her residual parental rights under subdivision C 1 of § 16.1-283. Fortuna v. Harrisonburg/Rockingham Soc. Servs. Dist.,, 2009 Va. App. LEXIS 418 (Sept. 22, 2009).

Considering all the facts and circumstances, there was clear and convincing evidence to prove the factors required for termination of a mother's parental rights, pursuant to subdivision C 1 of § 16.1-283, where at the time of the termination hearing, the mother, who was incarcerated on a forgery conviction in Florida, had maintained no contact with the child for fourteen months and where the child was thriving in a foster home and the child's ongoing medical condition was being managed successfully. Hamilton v. City of Roanoke Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 260 (June 29, 2010).

Because a father failed to maintain contact with his children and never accepted the reasonable and appropriate efforts for reunification made by the Department of Human Services, the father's parental rights were properly terminated pursuant to subsection C. Lannigan v. Va. Beach Dep't of Human Servs.,, 2011 Va. App. LEXIS 59 (Feb. 22, 2011).

It was not error to terminate a father's parental rights under subdivision C 1 of § 16.1-283 because clear and convincing evidence showed (1) the father had no contact with the child since the child was placed in foster care, despite visits being arranged, (2) the father refused further recommended treatment, and (3) the child was thriving in foster care. Martinez v. City of Portsmouth Dep't of Soc. Servs., No. 0739-13-1, 2013 Va. App. LEXIS 265 (Ct. of Appeals Sept. 24, 2013).

Termination of the mother's parental rights was not error because the mother's future plans for the children were not viable since they involved the live-in boyfriend. Although there was evidence that they intended to marry and raise the children together, the protective order prohibited the mother from allowing the children to have contact with the boyfriend. Alcazar v. Harrisonburg Rockingham Soc. Servs. Dist., Nos. 1189-13-3, 1190-13-3, 2014 Va. App. LEXIS 2 (Jan. 7, 2014).

Trial court properly terminated a the mother's parental rights because the termination was in the children's best interests where the mother had the opportunity to present evidence and argument at trial, but did not do so, she had had no contact with her children from December 2013 to February 2015, and the social services department did not know her whereabouts except that she was supposedly in Florida. Burkett v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2015 Va. App. LEXIS 231 (July 28, 2015).

Evidence demonstrated that a father made no effort to contact his child or establish a relationship and that the father had failed to provide or substantially plan for his child's future. The trial court did not err in terminating the father's parental rights pursuant to subdivision C 1 of § 16.1-283. Harris v. Henrico Cnty. Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 333 (Nov. 17, 2015).

Circuit court did not err in terminating a father's parental rights because there was clear and convincing evidence in the record to support the finding that the father, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child's placement in foster care, notwithstanding the reasonable and appropriate efforts of the agencies. Stanley v. Bristol Dep't of Soc. Servs., Nos. 1189-16-3, 1449-16-3, 2017 Va. App. LEXIS 92 (Mar. 28, 2017).

Social services department provided evidence that a mother had not had contact with her child for more than one year, as well as evidence indicating that the mother was uncooperative; because the evidence established a prima facie case for termination of the mother's parental rights under subdivision C 1 of § 16.1-283, the trial court did not err in terminating her parental rights and approving the goal of adoption. Brown v. Shenandoah Valley Dep't of Soc. Servs., No. 1226-17-3, 2018 Va. App. LEXIS 69 (Mar. 20, 2018).

Father, without good cause, failed to maintain contact with the child or to provide for or substantially plan for her future for six months after her foster care placement where his contact with the county department of social services (DSS) was sporadic and only in response to outreach by DSS, and he moved after a home study without informing DSS. Roane v. Halifax Cty. Dep't of Soc. Servs., No. 0058-18-2, 2018 Va. App. LEXIS 337 (Dec. 4, 2018).

Termination of a father's rights was in the child's best interests, § 16.1-283 C 1, where clear and convincing evidence showed a lack of physical contact, and the child needed stability, counseling, and parents equipped to manage her issues. Roane v. Halifax Cty. Dep't of Soc. Servs., No. 0058-18-2, 2018 Va. App. LEXIS 337 (Dec. 4, 2018).

Termination of the father's parental rights was proper; the social services department was not required to offer him services while he was incarcerated, the department met with him three times and reviewed the foster care plan before he was incarcerated again, he did not visit the children when he had a chance to do so, he had not seen them in two years, and he did not contact the department or the children while he was incarcerated for 17 months. Hammock v. Halifax Cty. Dep't of Soc. Servs., No. 0161-19-2, 2020 Va. App. LEXIS 57 (Mar. 3, 2020).

Subdivision C 2 of this section does not require parental visitation in every case where a social service agency assumes responsibility for the foster care of a child. The question must be resolved in light of the facts of each case, with the best interests of the child as the guiding principle. Toombs v. Lynchburg Div. of Social Servs., 223 Va. 225 , 288 S.E.2d 405 (1982).

Subdivision C 2 does not require parental visitation in every case where a social service agency assumes responsibility for the foster care of a child. Helen W. v. Fairfax County Dep't of Human Dev., 12 Va. App. 877, 407 S.E.2d 25 (1991).

No proof of lack of contact. - Refusal to terminate the mother's parental rights was appropriate because the Department of Social Services did not meet its burden of proof under subdivision C 1 of § 16.1-283 to show that the mother failed to keep in contact with the children while they were in foster care. In fact, the evidence indicated that the mother actively pursued visitation with the children, and on some occasions, she even contacted the Department of Social Services rather than waiting for them to contact her. Sharman v. Diaz-Mendes,, 2010 Va. App. LEXIS 78 (Mar. 2, 2010).

Effect of extended imprisonment. - Evidence was sufficient to support the conclusion that the county welfare agency provided the father with all reasonable and appropriate services as required by § 16.1-283 prior to terminating his parental rights in his son; the trial court had to determine under the facts and circumstances what efforts were reasonable and appropriate, and the fact that the father was incarcerated or hospitalized for mental illness for most of the son's life had to be taken into account because it hampered most of the county welfare agency's efforts to provide any services to father at all. Holley v. Amherst County Dep't of Soc. Servs., No. 3397-02-3, 2003 Va. App. LEXIS 330 (Ct. of Appeals June 10, 2003).

Services while incarcerated. - Circuit court did not err in finding that termination of the father's parental rights under subdivision C 2 of § 16.1-283 was in the child's best interests. Contrary to the father's arguments, the city's department of social services was not required to offer him services while he was incarcerated. McNeil v. City of Roanoke Dep't of Soc. Servs.,, 2019 Va. App. LEXIS 192 (Aug. 20, 2019).

Incarceration. - In a case where the father was incarcerated awaiting execution pursuant to a death sentence entered following a conviction for murder, the termination of the father's parental rights was upheld where the court determined that the Department of Social Service's actions were reasonable under the circumstances and that the father's incarceration limited the agency's capacity to remedy his deficiencies as a parent; thus, the Department fulfilled its duties under subsdivision C 2 of § 16.1-283. Walker v. Chesterfield County Dep't of Soc. Servs., No. 1175-03-2, 2003 Va. App. LEXIS 521 (Ct. of Appeals Oct. 14, 2003).

Based on a father's failure to maintain contact with his child since the child was placed in foster care, notwithstanding the department's reasonable and appropriate efforts to communicate with him, the father's ongoing incarceration, including the fact that the father would be incarcerated for five or six additional years, and the child's progress and status in his pre-adoptive home, an order terminating the father's parental rights was proper; further, notwithstanding the father's testimony to the contrary, the trial court, as fact finder, was entitled to conclude that the father received at least some of the foster care service plans sent to him, and yet made no contact with the child or the department until about three years later when he sent one letter to the child. Varrick v. Newport News Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 472 (Oct. 24, 2006).

Termination of a parental rights pursuant to subdivision C 1 of § 16.1-283 was appropriate, as the child needed consistent parenting and special therapies to address aggressive and sexualized behaviors, and the parent would not be able to participate constructively in the child's treatment until the parent was released from prison in 2013. McDonald v. Henrico County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 125 (Mar. 11, 2008).

Termination of the father's parental rights under subdivision C 1 of § 16.1-283 was proper, where evidence introduced by the Department of Social Services showed that the father, who was in prison, had not contacted the children for about two years and there was a major concern as to the father's history of domestic violence involving the mother, with whom the father hoped to be reunited upon being released from prison. Newton v. Bristol Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 519 (Nov. 25, 2008).

Termination of a father's parental rights was proper; the department's records showed a lack of contact for over one year, and, while the father claimed that the records were suspect, the father's testimony was conflicting. The father also claimed that his incarceration affected his ability to seek rehabilitative services, but the father made no efforts to contact the department before his incarceration, and, after he was incarcerated, the father further hindered his ability to obtain any services by incurring several disciplinary infractions and being transferred to solitary confinement. Parker v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2010 Va. App. LEXIS 435 (Nov. 9, 2010).

Termination of a father's parental rights was in the best interests of the father's children pursuant to subdivisions C 1 and 2 of § 16.1-283, as the father had not seen the children since the father's incarceration in 2003 and had been unwilling or unable to remedy the conditions that led to the children's placement in foster care. Tillman v. Halifax County Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 199 (June 7, 2011).

Termination of a mother's parental rights was proper under subdivision C 1 of § 16.1-283 where the trial court's findings that the mother failed to maintain any contact with her child during her incarceration, that there had been no communication, and that the mother had no plan for the future of the child were supported; the mother, without good cause, failed to maintain contact with her child or to provide or plan for her child's future for a period of over six months after the child's placement in foster care, and the Roanoke City Department of Social Services made reasonable and appropriate efforts to communicate with the mother and to strengthen the parent-child relationship. Leftwich v. Roanoke City Dep't of Soc. Servs.,, 2013 Va. App. LEXIS 87 (Mar. 19, 2013).

Termination of the father's parental rights was supported by evidence that the father was incarcerated the entire time the children were in foster care and while the father was denied visitation while incarcerated, the father was encouraged to contact the children but failed to do so. Edebiri Temitope Aihevba v. Fairfax County Dep't of Family Servs., No. 1004-13-4, 2013 Va. App. LEXIS 310 (Oct. 29, 2013).

Circuit court did not err by terminating the father's parental rights because the evidence showed that he made no attempts to see the child either before or after his incarceration, he repeatedly told the Department of Social Services to consider the paternal grandmother, not him, as a possible placement, he had not seen the child in over five years, and he had not spoken to her in months. Epps v. Portsmouth Dep't of Soc. Servs., No. 0030-21-1, 2021 Va. App. LEXIS 104 (June 29, 2021).

Appeal. - Father's argument on appeal that the evidence was insufficient to support the terminations of his parental rights pursuant to subdivision C 2 of § 16.1-283 was moot because the father failed to challenge his terminations pursuant to subdivision C 1. Keith v. Roanoke City Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 363 (Oct. 2, 2007).

D. FAILURE TO REMEDY CONDITIONS.

Grounds for termination under subdivision C 2. - Under subdivision C 2, the residual parental rights of a parent of a child placed in foster care may be terminated only if the court finds by clear and convincing evidence that: (1) termination is in the best interests of the child; (2) the parent, without good cause, has been unwilling or unable within a reasonable period not exceeding twelve months to substantially remedy the conditions that led to or required the continuation of the child's foster care placement; and (3) the parent failed to remedy the conditions notwithstanding the reasonable and appropriate efforts of rehabilitative agencies. Walker v. Virginia Beach Dep't of Social Servs., No. 0505-00-1, 2000 Va. App. LEXIS 825 (Ct. of Appeals Dec. 19, 2000).

Order terminating a mother's residual parental rights in four of her children was upheld, despite the mother's contentions that she made substantial progress to remedy the conditions which led to the foster care placement of the children, where the evidence established that the Department of Social Services made reasonable and appropriate efforts to help mother remedy her 20-year drug addiction, obtain and remain susceptive to counseling, and cease a violent relationship she had with a man despite a protective order prohibiting contact between the children and the man. Sales v. Alexandria Dep't of Soc. Servs., No. 0250-03-4, 2003 Va. App. LEXIS 407 (Ct. of Appeals July 22, 2003).

Evidence established that the teenage mother pursued an unstable lifestyle, incompatible with the child's needs and reflective of an indifference to the child's interests, that conduct spanning the child's entire life, despite the best efforts and substantial resources of the Department of Social Services, to assist and redirect the mother in the mother's behavior and parenting skills with numerous case plans and foster care placements, thus, the department proved by clear and convincing evidence, that termination was the appropriate remedy. DeHart v. Richmond Dep't of Soc. Servs., No. 0057-03-2, 2003 Va. App. LEXIS 538 (Ct. of Appeals Oct. 28, 2003).

Where the evidence presented by the Department of Social Services demonstrated that a father remedied many of the conditions required of him in order to be reunited with his children, including finding appropriate housing, maintaining employment, and increasing his income, despite his need for individual therapy, the trial court's order granting his motion to strike and dismissing petitions to terminate his parental rights were both supported by sufficient evidence. Newport News Dep't of Soc. Servs. v. Cooper, No. 1230-04-1, 2004 Va. App. LEXIS 499 (Ct. of Appeals Oct. 26, 2004).

Because a mother was unwilling or unable to follow through with services provided to her prior to her incarceration, her incarceration, expert opinions, and the child's current status in a pre-adoptive home, termination of the mother's parental rights pursuant to subdivision C 2 of § 16.1-283 was in the child's best interests. Harder v. Campbell County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 425 (Sept. 19, 2006).

Termination of mother's residual parental rights under subdivision C 2 of § 16.1-283 was in son's best interests where there was clear and convincing evidence that: (1) the son was almost three years old at the time of the termination hearing; (2) he had been in foster care for approximately one and one-half years; (3) the mother refused offers of the Department of Family Services (DFS) to assist her with obtaining legal immigration status and appropriate housing; (4) she had not obtained legal status during the 25 years that she had lived in the United States; (5) she consistently refused to reveal the address where she was living, preventing DFS from assisting her to obtain appropriate housing and from checking on the suitability of her housing; and (6) she remained unemployed, and had no means of self-support or support for the child. Sangwan v. Fairfax County Dep't of Family Servs.,, 2008 Va. App. LEXIS 41 (Jan. 29, 2008).

Record contained credible evidence to support a finding that termination of a parent's residual parental rights was in the best interests of each of the parent's children and that the requirements of subdivision C 2 of § 16.1-283 had been proven. The trial court heard extensive testimony from Alexandria Department of Human Services personnel, the foster parents, a therapist, and psychologists, revealing the special needs and circumstances of each child, and the parent's inability to effectively parent them without substantial and ongoing assistance. Chappell v. Alexandria Dep't of Human Servs.,, 2008 Va. App. LEXIS 267 (June 3, 2008).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that, inter alia, the mother failed to remedy the mother's shelter problem; while the mother outlined four housing options, all relied on the children's stepfather and maternal grandmother, neither of whom indicated they were willing to provide help to the mother. Angel v. Prince George Dep't Soc. Servs.,, 2008 Va. App. LEXIS 436 (Sept. 23, 2008).

Mother's parental rights to her seven children were properly terminated under subdivision C 2 of § 16.1-283 because she failed to substantially remedy the situation that placed the children in foster care since she was unable to maintain adequate and stable housing and employment, and she was unable to assess and care for her children's needs. Dodson v. Fairfax County Dep't of Family Servs.,, 2010 Va. App. LEXIS 86 (Mar. 9, 2010).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283, was supported by the fact that for 12 months following the children's removal, the mother did virtually nothing to remedy the circumstances of neglect, domestic violence, and substance abuse, and mother failed to provide evidence of permanent plans with regard to the children's care. Harlow v. Louisa County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 283 (June 23, 2009).

Although termination of a mother's parental rights under subsection B of § 16.1-283 was improper because there was no allegation of abuse or neglect, termination under subdivision C 2 was proper because the mother was unable to substantially remedy the conditions that led to the child's placement in foster care and the mother did not live up to her obligations as set forth in the foster care plan filed by the court. Disher v. Dinwiddie County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 62 (Feb. 23, 2010).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283 was supported by clear and convincing evidence that the father did not have a permanent physical space to house the children, did not have adequate means to provide food, clothing, and supervision to the children, and did not have a plan to protect children from further sexual abuse. Ortega v. Fairfax County Dep't of Family Servs.,, 2010 Va. App. LEXIS 240 (June 15, 2010).

Mother's parental rights were properly terminated under subdivision C 2 of § 16.1-283 as: (1) the mother had a history of being unable to maintain stable housing and employment; (2) she was unable to control the children, who had special needs; (3) the children had been in foster care for approximately 22 months at the time of the hearing; (4) during that time, the mother showed that she could not meet the children's needs; and (5) the mother had not substantially remedied the conditions that led to removal for subdivision C 2 purposes as she had been living with her boyfriend for about two months at the time of the hearing, and only had a job for about two weeks. Nelson v. Wash. County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 248 (June 22, 2010).

Termination of the mother's parental rights to the two daughters under subdivision C 2 of § 16.1-283, was supported by evidence that the mother repeatedly failed to meet with the social services district's social workers, failed to schedule much needed therapy sessions for the daughters, and had the daughters conceal existence of the mother's boyfriend from the social services district. Davila v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0387-10-3, 2010 Va. App. LEXIS 434 (Ct. of Appeals Nov. 9, 2010).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the mother had been evicted from two different homes for failure to pay rent during the 12 months prior to the termination hearing, did not always have food in her home for the child during visitation, struggled with mental health issues, was sporadic in attending mental health counseling, and was the victim and perpetrator of domestic violence. Williams v. Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 33 (Feb. 1, 2011).

Termination of mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the mother was unable to apply what she learned in parenting classes and a psychiatrist opined that the mother needed two more years of intensive therapy to resolve her issues. Mayanes v. Shenandoah Valley Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 37 (Feb. 8, 2011).

Father's parental rights to two children were properly terminated under subdivision C 2 of § 16.1-283 as the evidence showed that the agency had been involved with the family intermittently for over five years, that the agency had offered numerous services to the father to no avail, that the father refused to cooperate with the agency, that he had problems with alcoholism and anger toward others, that he claimed to suffer from numerous physical ailments that affected his ability to provide stability for the children, that he did not regularly visit the children, and that he refused to accept any responsibility for his actions that led to the children being placed in foster care. On the other hand, the children were doing well in foster care; the two younger children expressed their wish that the father's parental rights be terminated, and the oldest expressed his wish that he be placed in permanent foster care. Lee v. Lynchburg Div. of Soc. Servs., No. 2364-10-3, 2011 Va. App. LEXIS 131 (Apr. 19, 2011).

Termination of the parents' parental rights was appropriate pursuant to subdivision C 2 of § 16.1-283 because the parents continued to live in a hotel, they never applied their knowledge of caring for children with special needs, the foster mothers' testimony proved that the children's needs were great, and the father continued to have anger issues. Wilson v. James City County Div. of Soc. Servs.,, 2011 Va. App. LEXIS 123 (Apr. 12, 2011).

Termination of the mother's parental rights was appropriate because, despite the efforts of the Department of Social Services, the mother was unwilling or unable to remedy substantially the conditions that led to and required the continuation of the children's foster care placement. The Department had been involved with mother's family for about eight years; a social worker testified the family had a history of physical and medical neglect, lack of supervision, drug use, criminal charges, and issues of instability and improper boundaries between the parents and children; and the mother had repeatedly failed to complete drug treatment opportunities before and after the children were removed from her care. McMillian v. Chesterfield Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 143 (May 3, 2011).

Because a father was incarcerated, did not seek services to address his alcohol issues on his own, and refused to sign a service plan offered by the Department of Social Services, and because the children were doing well in foster care, the father's parental rights were properly terminated pursuant to § 16.1-283. Williams v. Chesterfield Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 145 (May 3, 2011).

Trial court did not err in terminating the father's parental rights under subdivision C 2 of § 16.1-283 because the father never provided, or realistically offered to provide, the most basic necessity for a child, a physical place to live; the father failed to cooperate with the Interstate Compact for the Placement of Children home study, which was required under § 63.2-1000 in order for the Virginia Department of Human Services to consider placing the child with him. Lannigan v. Va. Beach Dep't of Human Servs., No. 2503-10-1, 2011 Va. App. LEXIS 231 (Ct. of Appeals July 12, 2011).

Termination of the mother's parental rights to the oldest child was appropriate, because, although the mother met many of the department's requirements, the mother failed to meet the housing requirement, the employment requirement, and, most importantly, failed to demonstrate an ability to effectively parent the oldest child and keep that child safe and secure. The greatest weight was placed on the oldest child's special needs and the mother's inability to parent him, where that child had been sexually abused and exhibited sexually aggressive behavior and inappropriate sexual knowledge for a nine-year-old, which the mother was unable to deal with. Fauquier County Dep't of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811, 2011 Va. App. LEXIS 381 (2011).

Termination of the father's parental rights under subdivision C 2 was supported by evidence that father did not follow through with family therapy recommended by parenting capacity evaluation, the father missed a substantial number of visitation appointments, and on the occasions the father did appear, the father did not interact with child and often fell asleep. In addition, despite extensive services from the Department of Human Services, the father failed to secure stable employment or housing due to his failure to obtain identification and his felony record. Copeland v. Newport News Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 404 (Dec. 20, 2011).

Evidence was sufficient to terminate a mother's parental rights on the basis of failure to remedy conditions because the mother continued to abuse illegal substances despite the services she received, and the evidence at trial demonstrated the mother's pattern of lying to doctors and Department personnel. The mother specifically admitted that she did not tell a doctor about the child's fall down the stairs, and the trial court made a prospective judgment about the mother's ability to remedy the conditions leading to the children's removal. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 342, 719 S.E.2d 313, 2012 Va. App. LEXIS 4 (2012).

Evidence was sufficient to terminate appellant mother's parental rights under subdivision C 2 of § 16.1-283, because she had not remedied the conditions that led to the child being placed in foster care. Appellee department of human services provided adequate services through supervised visitation, individual therapy, and parenting classes; however, the mother continued to struggle, remained unemployed and relied on her boyfriend for financial assistance. Saenz-Romero v. Arlington County Dep't of Human Servs.,, 2012 Va. App. LEXIS 61 (Mar. 6, 2012).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the mother missed scheduled counseling sessions and failed to maintain housing, and that the children exhibited negative and aggressive behaviors that the counselor described as being potentially dangerous to themselves and others after being with mother for 10 days. Anderson v. Lynchburg Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 93 (Mar. 27, 2012).

Agency presented clear and convincing evidence to support the termination of the mother's parental rights pursuant to subdivision C 2 of § 16.1-283 as the uncontroverted evidence showed that, despite sexual abuse counseling where the mother learned the signs of sexual abuse, she continued to allow the father to interact with the children; she failed to protect her children from him; she continued to have a sexual relationship with him; and she violated a court order prohibiting the father from being in the residence when she allowed him to sleep at the residence, left him alone with the children, permitted him to bathe the children he had sexually abused, and permitted him to sleep in the same bed as one of the children. The agency provided various counseling services and offered other services for assistance with food, medical care, and daycare for the children, but the mother failed to follow through with the offered services. Beard v. Halifax County Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 252 (Aug. 7, 2012).

Mother's parental rights were properly terminated under subdivision C 2 of § 16.1-283 as: (1) the Winchester Department of Social Services had offered the mother several opportunities to participate in substance abuse treatment, but she did not attend the outpatient program, and she left the inpatient program twice against therapeutic advice; (2) the mother had tested positive for cocaine, opiates, and marijuana, and was charged with numerous drug-related offenses after the child was in foster care; and (3) the mother did not show that she had remedied her situation and was capable of taking care of the child. Owens v. Winchester Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 369 (Nov. 20, 2012).

Evidence was sufficient to terminate the mother's parental rights under subdivision C 2 of § 16.1-283 because, despite 225 hours of supervised visits between the mother and the children, she was not able to bond with the children, and the children's therapists testified that the mother did not have an attachment relationship with the children. Washington v. Fredericksburg Dep't of Soc. Servs.,, 2013 Va. App. LEXIS 14 (Jan. 15, 2013).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the Department of Family Services offered the mother significant services but the mother failed to advance to unsupervised visitation, failed to adequately address substance abuse issues, and was unable to organize, provide stability, or place the child's needs first. Pinto v. Fairfax County Dep't of Family Servs.,, 2013 Va. App. LEXIS 58 (Feb. 26, 2013).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the mother lost her job at a restaurant and was babysitting at her parents' house, the mother had rented a room so that she could tell the court she had a separate residence, and the mother was having difficulty obtaining her G.E.D. because the classes were "hard." She faced additional problems because she was an undocumented immigrant. Benitez v. Arlington County Dep't of Human Servs., No. 1839-12-4, 2013 Va. App. LEXIS 157 (Ct. of Appeals May 21, 2013).

Trial court was not plainly wrong in determining that the mother had been afforded a reasonable amount of time to remedy the conditions as the record showed that the child was continuously in foster care for almost three years. Gibson v. Wise County Dep't of Soc. Servs., No. 2309-12-3, 2013 Va. App. LEXIS 181 (Ct. of Appeals June 11, 2013).

Trial court did not err by terminating the mother's residual parental rights based on her failure to substantially remedy the conditions that led to foster placement of the child as the mother showed that she could not consistently apply what she learned in anger management, substance abuse, and counseling nor could she maintain a stable household. Gibson v. Wise County Dep't of Soc. Servs., No. 2309-12-3, 2013 Va. App. LEXIS 181 (Ct. of Appeals June 11, 2013).

There was sufficient evidence to prove that the mother was unable to remedy the conditions that led to the child's placement in foster care and that the Department of Family Services had provided appropriate services to mother as the evidence showed that the mother continued to struggle with anger issues and uncontrolled rage despite being provided anger management services and that she had a history of being hostile toward the social worker. Mikhail v. Fairfax County Dep't of Family Servs., No. 0215-13-4, 2013 Va. App. LEXIS 209 (Ct. of Appeals July 23, 2013).

Sufficient evidence supported termination of a mother's parental rights pursuant to subdivision C 2 of § 16.1-283 because (1) the mother's claims of insufficient notice of the proceedings lacked merit, (2) the mother was infrequently involved in the case and, in the beginning, the mother's involvement was too inconsistent for visitation, and (3) the evidence supported the trial court's finding that the mother failed to maintain continuing contact with and substantially plan for the future of the child within the six months after the child's placement in foster care, despite the mother's alleged present ability to care for the child. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

It was not error to terminate a father's parental rights under subdivision C 2 of § 16.1-283 because clear and convincing evidence showed (1) the father refused further recommended treatment for unresolved anger issues, (2) the child was thriving in foster care, (3) the father did not maintain stable housing and employment, and (4) the father committed crimes while the child was in foster care. Martinez v. City of Portsmouth Dep't of Soc. Servs., No. 0739-13-1, 2013 Va. App. LEXIS 265 (Ct. of Appeals Sept. 24, 2013).

Father's parental rights were properly terminated due to his failure to remedy the conditions that led to the children's removal in a reasonable time since the child services agency made reasonable and appropriate efforts to assist the father, including by supplying him with services to help him obtain and maintain appropriate housing, yet he became homeless and he was incarcerated at the time of the hearing, and by assisting him with therapeutic visitation and counseling, yet he made no progress toward appropriate interaction or behavior with his children. Daniels v. Culpeper County Dep't of Soc. Servs., No. 1133-13-4, 2013 Va. App. LEXIS 328 (Nov. 12, 2013).

Court did not abuse its discretion in terminating the father's parental rights, because there was sufficient evidence to prove that the father was unable to remedy the conditions that led to the child's placement in foster care and that termination of the father's parental rights was in the child's best interests; despite having twenty-seven months, the father had been unable to remedy the situation that led to the child being placed in foster care. Elyass v. Fairfax County Dep't of Family Servs., Nos. 0667-13-4, 0684-13-4, 2013 Va. App. LEXIS 345 (Nov. 26, 2013).

Sufficient evidence supported terminating a mother's and a father's parental rights to six children on grounds of failing to remedy conditions because the parents were unable to maintain adequate housing, the father lacked stable employment and could not provide sufficient financial support for the family, the mother was unemployed, and neither parent was able to adequately address their mental health needs; the children had been in foster care for twenty-five months. Dewberry v. Winchester Dep't of Soc. Servs., Nos. 0923-13-4, 0960-13-4, 2013 Va. App. LEXIS 365 (Dec. 10, 2013).

Father was provided with multiple services, but lacked appropriate parenting skills and failed to exhibit much change in his ability to care for the children, and thus the father failed to demonstrate his ability within a reasonable time to remedy the conditions that led to placement. Hensley v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 103 (Mar. 18, 2014).

Trial court did not err in terminating a parent's parental rights because the court did not err in finding that the evidence was clear and convincing that the parent, who was incarcerated, had been unable or unwilling to substantially remedy the conditions that led to the placement of the children in foster care, that an additional six months would not change the situation, and that it was in the best interests of the children to terminate the parent's parental rights. Sexton v. Dickenson County Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 144 (Apr. 15, 2014).

Trial court did not err in terminating a mother's parental rights because the children needed permanency; the children had physical and mental health problems, and the mother refused many services that would have improved her situation. Redd v. Loudoun County Dep't of Family Servs., Nos. 1915-13-4, 1991-13-4, 2014 Va. App. LEXIS 156 (Apr. 29, 2014).

Father's actions in the almost two years following his children's placement in foster care demonstrated the father's inability or unwillingness to substantially remedy the conditions that led to the placement. The trial court did not err by terminating the father's residual parental rights to the children pursuant to this section. Douglas v. Lynchburg Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 167 (May 6, 2014).

Department provided reasonable and appropriate services to mother and father and there was clear evidence that they were unwilling or unable to remedy the problems during the period in which they were offered services, including visitation; there was sufficient evidence supporting the circuit court's decision to terminate the parental rights of mother and father. McGhee v. Henrico Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 272 (July 29, 2014).

During the months the mother was on bond prior to her incarceration, she missed various meetings and her visitations with the children were sporadic, and the children had been in foster care for approximately two years; the evidence proved that the mother was unable to remedy substantially the conditions that led to or required continuation of the children's foster care placement within a reasonable period of time, and the trial court did not err in terminating her parental rights. Dennis v. York-Poquoson Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 267 (July 29, 2014).

Evidence was sufficient to support the trial court's decision to terminate a mother's parental rights to her children because the department of human resources provided reasonable and appropriate services to the mother, but she was unwilling or unable to remedy the problems; the children had been in foster care for two years and nine months at the time of the hearing, and the mother had several issues with unsupervised visitation and failed to maintain stable housing and employment. Amirah Alfarqui v. Newport News Dep't of Human Servs., Nos. 0469-14-1, 0470-14-1, 0471-14-1, 0473-14-1, 2014 Va. App. LEXIS 324 (Sept. 23, 2014).

Trial court properly terminated a mother's parental rights because the county department of social services provided reasonable and appropriate efforts to assist her in remedying the conditions that led to the child's foster care placement, and the mother was incarcerated, had a history of drug abuse, had been diagnosed with traumatic stress disorder and manic depression, was unemployed, homeless, unable to care for her other children, and was unwilling or unable to comply with the department's plan. Maxson v. Stafford County Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 411 (Dec. 16, 2014).

Evidence proved that the mother had not substantially remedied the situation that led to the children being placed in foster care, she was not ready to care for the children, despite the services provided, and the children had been in foster care for 17 months at the time of the final hearing and needed a stable environment; the circuit court did not err in terminating the mother's rights and finding that it was in the children's best interests to do so. Showers v. Shenandoah Valley Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 9 (Jan. 20, 2015).

Trial court did not err in terminating a father's parental rights because he was unable to remedy the conditions that led to or required continuation of the child's foster care placement; the father's extensive criminal record, his lengthy incarceration, and his potential incarceration on pending charges, coupled with his inability to provide a specific plan for the child's care, provided sufficient evidence to conclude he was unable to provide the child with a stable home and necessary care. Flora v. Shenandoah County Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 70 (Mar. 3, 2015).

Parent's residual parental rights to the child were terminated because the parent, due to the parent's intellectual and psychological limitations, was unable to provide the proper medical care for the special needs child within a reasonable amount of time despite the reasonable and appropriate efforts of a county department of human services to help the parent remedy the situation. Glover v. Louisa Cnty. Dep't of Human Servs.,, 2015 Va. App. LEXIS 143 (Apr. 28, 2015).

Trial court did not err by terminating the mother's parental rights to her child under this section where the evidence showed that the child had been in foster care for 15 months and the mother had not substantially remedied the conditions that led to the child being placed and remaining in foster care, as at the time of the hearing the mother was unemployed, her rental assistance was expiring, her lease was ending, and she had no plan for where she was going to live or how she was going to pay for it. Bangura v. Alexandria Dep't of Cmty. & Human Servs.,, 2015 Va. App. LEXIS 193 (June 9, 2015).

Termination of the father's parental rights was proper, as the finding that he was unable to remedy the conditions that led to the child's foster care placement was supported by evidence that the father failed to provide verification of stable housing and income, and failed to participate in mental health treatment, substance abuse counseling, or parenting classes. Woodard v. Dinwiddie Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 198 (June 16, 2015).

Although the mother participated in the services offered, she did not demonstrate an ability to safely parent the children, and the trial court could have found that she had been unwilling or unable to remedy the problems that resulted in the removal of the children, such that the trial court did not err in terminating the mother's parental rights. Harper v. Alexandria Dep't of Cmty. & Human Servs., No. 2237-14-4, 2015 Va. App. LEXIS 203 (June 23, 2015).

Trial court did not err in terminating a father's parental rights because the evidence proved that the father was unable to remedy substantially the conditions that led to the child being placed and remaining in foster care. Taylor v. Roanoke County Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 266 (Sept. 15, 2015).

The trial court did not err in terminating the mother's parental rights, based on the mother's failure to failure to find suitable housing, her mental health issues, her lack of cooperation, and her admission that after 42 months of the child being in foster care she was not in a position to take care of the child. Earls v. Va. Beach Dep't of Human Servs.,, 2016 Va. App. LEXIS 40 (Feb. 9, 2016).

Trial court did not err in terminating the mother's parental rights after finding that she was still in a drug court program that could take more than one year to complete, she could not prove she had overcome her substance abuse problems, she did not follow the advice of the substance abuse counselor, she did not have a job and was dependent on father, and she and father were having marital difficulty but stopped counseling. Spruill v. Chesapeake Dep't of Human Servs.,, 2016 Va. App. LEXIS 50 (Feb. 16, 2016).

Trial court did not err in terminating the father's parental rights to his three minor children; the father had not made much effort to regain custody of them, the children had special needs and there was no evidence that the father was capable of meeting their needs, he had been absent from the children's lives for several years, and the children had been in foster care for approximately two years, and yet the father still was not in a position to have custody of them. Spruill v. Chesapeake Dep't of Human Servs.,, 2016 Va. App. LEXIS 43 (Feb. 16, 2016).

Trial court did not err in terminating parental rights pursuant to subdivision C 2 where consideration of the father's period of incarceration was properly considered, the county social services department was not required to offer services while he was incarcerated, the father did not appear for scheduled appointments following his release, the father's stability as to housing was in question, and the child had been in foster care multiple times. Hale v. Russell Cnty. Dep't of Soc. Servs., No. 0510-15-3, 2016 Va. App. LEXIS 94 (Ct. of Appeals Mar. 29, 2016).

Although a father had taken some steps to comply with the requirements of the department of social services, he was unable to substantially remedy the conditions that led to the removal of the children and them remaining in foster care; therefore, termination of his parental rights was proper. Inter alia, the father was unable to demonstrate what he had learned in parenting classes, and he was also unable to meet the children's special needs. Cabanez v. Prince William Cnty. Dep't of Soc. Servs., No. 0878-15-4, 2016 Va. App. LEXIS 109 (Ct. of Appeals Apr. 5, 2016).

In terminating a mother's parental rights to her child, the trial court did not err in finding that the mother had not substantially remedied the conditions which led to her child being placed in, and remaining in, foster care. Lambert v. Appomattox Cnty. Dep't of Soc. Servs., No. 1926-15-2, 2016 Va. App. LEXIS 144 (Ct. of Appeals May 3, 2016).

Termination of the mother's parental rights was supported by evidence Harrisonburg Rockingham Social Services District offered the mother numerous services, including assisting her with temporary shelters, drug counseling, and parenting classes, but mother failed to follow through or complete services offered. Feaster v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0140-16-3, 2016 Va. App. LEXIS 171 (Ct. of Appeals May 24, 2016).

Termination of the father's parental rights was supported by evidence that the father did not have stable housing, had a history of substance abuse, failed to complete substance abuse treatment, failed to complete parenting classes to which he had been referred, and violated his probation, leading to an order of further detention and diversion. Mongold v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1796-15-3, 2016 Va. App. LEXIS 173 (Ct. of Appeals May 24, 2016).

Trial court did not err in terminating a parent's residual parental rights because clear and convincing evidence proved that the parent failed to make substantial progress towards elimination of the conditions which led to the child's placement in a foster family, with whom the child had bonded and was doing well with an older sibling, and that termination of the parental rights was in the child's best interests. The parent failed to secure employment or suitable housing and was to be incarcerated for years due to using and selling drugs. Redman v. Roanoke City Dep't of Soc. Servs., No. 1900-15-3, 2016 Va. App. LEXIS 181 (Ct. of Appeals June 7, 2016).

Termination of the mother's parental rights was proper because, although she participated in a psychological assessment, substance abuse assessment, counseling, and parenting classes, and she regularly attended visitations with her child, the trial court noted that the mother's participation had to be more than just going to the assessments, counseling, and classes, as she had to listen, understand, and show some changed behavior; although the counselor saw glimpses or moments of improvement from the mother, she also found that there was no substantial or sustained progress; and the mother did not see marijuana as a problem and, until she did, she had not substantially remedied a very important condition for termination. Ayers v. Lynchburg Dep't of Soc. Servs., No. 0124-16-3, 2016 Va. App. LEXIS 200 (Ct. of Appeals July 19, 2016).

Circuit court properly terminated the parents' rights, given that there was no improvement in the area of substance abuse by the parents, who also failed to complete counseling, and there was domestic violence that had not significantly improved. Wooddell v. Harrisonburg-Rockingham Soc. Servs. Dist., Nos. 0316-16-3, 0338-16-3, 2016 Va. App. LEXIS 262 (Ct. of Appeals Oct. 11, 2016).

Evidence supported a circuit court's finding that termination of a mother's parental rights was in the children's best interest because the mother did not participate in various evaluations and meetings in a meaningful manner when one of the mother's children had an acute outbreak of genital herpes, which the mother and the father of three of the four children contracted prior to the child becoming infected. Moreover, the mother never demonstrated the ability to provide a safe environment for the children. Velazquez v. Prince Edward Cnty. Dep't of Soc. Servs., No. 0800-16-2, 2016 Va. App. LEXIS 289 (Ct. of Appeals Nov. 1, 2016).

Trial court also did not err in terminating the father's rights, given that during the 30 months from when the children were placed in foster care to the trial, the father was unable to remedy the conditions that led to their placement, despite efforts of various agencies, and he chose not to avail himself of their assistance. Burton v. Norfolk Dep't of Human Servs., No. 0958-16-1, 2017 Va. App. LEXIS 53 (Ct. of Appeals Feb. 28, 2017).

Trial court's decision that termination was in the children's best interests was neither plainly wrong nor without evidence to support it because the mother was residing with the father and "engaging in" drug use with him, despite having attended various drug counseling and treatment programs; since the children were placed in the custody of the department of social services, the mother never achieved stable housing or resolved her drug problem, despite participating in substance abuse programs. Gregory v. City of Hampton Dep't of Soc. Servs., No. 0657-16-1, 2017 Va. App. LEXIS 100 (Apr. 11, 2017).

Trial court's decision to terminate the father's parental rights was supported by evidence that the father stopped participating in therapy, refused to admit he harmed his third child, and the children were in a stable, relative placement that wished to adopt the children. Houston v. City of Newport News Dep't of Human Servs., No. 1532-16-1, 2017 Va. App. LEXIS 166 (July 11, 2017).

Trial court's decision to terminate the mother's parental rights was supported by evidence that the mother stopped participating in therapy, the mother posed an ongoing risk to the children, and the children were in a stable, relative placement that wished to adopt the children. Houston v. City of Newport News Dep't of Human Servs., No. 1532-16-1, 2017 Va. App. LEXIS 165 (July 11, 2017).

Circuit court properly terminated a mother's parental rights because it was in the child's best interests to do so where the mother admittedly did not complete any of the required services or remedied any of the conditions that led to the child's placement in foster care, the mother continued to have substance abuse problems and did not seek substance abuse treatment or obtain individual counseling, did not complete parenting classes, did not have stable employment or housing, and did not see the child, who had been in foster care for approximately 15 months, in almost one year. Custis v. Harrisonburg-Rockingham Soc. Servs. Dist., No. 0229-17-3, 2017 Va. App. LEXIS 197 (Aug. 8, 2017).

Termination of parental rights was appropriate because a circuit court did not err by determining that a municipal department of social services offered reasonable and appropriate services to a parent, specifically designed to address the parent's mental health and parenting needs, to remedy the conditions that led to the placement of the parent's child in foster care, but the parent was unable to remedy the conditions. Franklin v. City of Lynchburg Dep't of Soc. Servs., No. 2030-16-3, 2017 Va. App. LEXIS 239 (Sept. 26, 2017).

Trial court's decision terminating the mother's parental rights was not plainly wrong or without evidence to support it, as the evidence showed that the mother lacked stable employment and housing, finding only seasonal employment being unemployed at the time of the trial, grew increasingly uncooperative, refused drug tests, and ignored attempts by the Virginia Beach Department of Human Services to reach her to provide services. Gay v. Va. Beach Dep't of Human Servs., No. 0887-17-1, 2017 Va. App. LEXIS 254 (Oct. 10, 2017).

Circuit court properly terminated a mother's parental rights to her children and concluded that adoption was in their best interests because, even if a caseworker's opinion was improperly admitted, it was cumulative and clearly harmless, the circuit court appropriately weighed the credibility of the conflicting expert witnesses at issue, and concluded that one was more credible than the other, and, although the mother obtained employment, adequate housing, and consistently took her psychiatric medication, her failure to participate in therapy posed a risk to the children, and due to their special needs, she could not safely or independently parent them in the foreseeable future. Longerbeam v. Fauquier Cty. Dep't of Soc. Servs., No. 2126-16-4, 2017 Va. App. LEXIS 274 (Oct. 31, 2017).

Circuit court did not err in terminating a mother's parental rights to the mother's children because the circuit court found that a county department of human services made reasonable and appropriate efforts to provide the mother with services, but the mother refused to participate in the necessary substance abuse treatment. Furthermore, the court found that it was not in the children's best interests to return home because, at the time of the hearing, mother was not in a position to care for the children. Jones v. Arlington Cty. Dep't of Human Servs., No. 0569-17-4, 2017 Va. App. LEXIS 315 (Dec. 12, 2017).

Although the mother attended 13 of 18 parenting classes, found employment, and completed some court-ordered services, termination of the mother's rights was proper, as the mother failed to substantially remedy the conditions that existed when the child was placed in foster care, as she did not graduate from the parenting class because she did not meet the 80% attendance bench mark, she lived with a domestic abuser, and she had not prepared to care for the child. Rios v. Fairfax Cty. Dep't of Family Servs., No. 0385-16-4, 2017 Va. App. LEXIS 326 (Dec. 19, 2017).

At the time of the circuit court hearing, the two youngest children had been in foster care for approximately 30 months, while the mother was not in a position to have the children live with her. Accordingly, the circuit court did not err in terminating the mother's parental rights pursuant to subdivision C 2 of § 16.1-283. Reddick v. Va. Beach Dep't of Human Servs., No. 1321-17-1, 2018 Va. App. LEXIS 35 (Feb. 13, 2018).

Trial court found that a mother had not complied with a social services department's very reasonable requirements, and that the mother was unable to remedy the conditions that led to her children being placed, and remaining, in foster care. Based on the totality of the record, the trial court did not err in finding that the evidence was sufficient to terminate the mother's parental rights pursuant to subdivision C 2 of § 16.1-283 and that termination was in her children's best interests. Reed v. Roanoke City Dep't of Soc. Servs., No. 1514-17-3, 2018 Va. App. LEXIS 99 (Apr. 17, 2018).

Evidence supported termination of a father's parental rights because (1) the father was currently incarcerated, (2) by the time the father was released the child would have spent one-third of the child's life in foster care, (3) the father's post-release plan was not reasonable, and (4) restrictions on the father's ability to address the child's needs were of the father's own making, due to the father's criminal conviction and probation violation. Davis v. Charlotte Cty. Dep't of Soc. Servs., No. 1777-17-2, 2018 Va. App. LEXIS 167 (June 26, 2018).

Mother's parental rights were properly terminated because the mother did not adequately address problems leading to the children's removal, as (1) the mother's housing was unstable, (2) the mother stopped going to counseling after being hospitalized for depression, anxiety, and suicidal thoughts, and (3) the mother tested positive for drugs, so, despite improvements, the mother was not in a position to care for the children, two of whom had special needs requiring therapy. Watkins v. City of Roanoke Dep't of Soc. Servs., No. 0020-18-3, 2018 Va. App. LEXIS 168 (June 26, 2018).

Trial court did not err in terminating the mother's parental rights, as the evidence showed that the mother's cognitive abilities affected her ability to parent and live independently and the Social Services District offered reasonable and appropriate services based on what testing the mother completed. Daywalt v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0399-18-3, 2018 Va. App. LEXIS 187 (July 10, 2018).

Termination of a father's parental rights was appropriate because a county department of social services made reasonable efforts to assist the father, the father was incarcerated and had a history of criminal behavior, and it was in the best interests of the child to terminate the father's parental rights. Whiting v. Gloucester Cty. Dep't of Soc. Servs., No. 0401-18-1, 2018 Va. App. LEXIS 195 (July 17, 2018).

It was no error to terminate a father's parental rights under subdivision C 2 because (1) during the almost two years between original and final termination hearings, the father did not correct the conditions leading to the child's removal, (2) the father's housing and income were not stable, (3) the father was incarcerated for months while the child was in foster care, and, (4) once the father was released, the father did not complete reunification requirements, including parenting classes. Branch v. Richmond City Dep't of Soc. Servs., No. 0211-18-2, 2018 Va. App. LEXIS 202 (July 24, 2018).

Circuit court did not err in terminating a father's parental rights pursuant to subdivision C 2 where he had not completed a court-ordered home study, did not participate in counseling, failed to attend most of the scheduled visitations, and the child, who had been in foster care for more than two years, was doing better and was in a possible adoptive placement. Jones v. City of Lynchburg Dep't of Soc. Servs., No. 0334-18-3, 2018 Va. App. LEXIS 201 (July 24, 2018).

Termination of the mother's parental rights was supported by evidence that the children had been physically abused, neither the mother nor the father could provide an explanation for the non-accidental injuries, and the mother would not divulge the name of the family member she believed responsible, evidencing her inability to remedy the conditions at issue. Thrasher v. Newport News Dep't of Human Servs., No. 1323-17-1, 2018 Va. App. LEXIS 221 (Aug. 14, 2018).

Circuit court properly terminated a mother's parental rights to her children because at the time of the circuit court hearing, the children had been in foster care for approximately 16 months, the mother had not substantially remedied the conditions that led to their continued placement in foster care, and, although she was in remission and counseling, the mother had a high lifetime probability of a moderate to severe substance use disorder. King v. King George Dep't of Soc. Servs., No. 0179-18-2, 2018 Va. App. LEXIS 220 (Aug. 14, 2018).

Trial court did not err in finding that the father did not substantially remedy the conditions that led to the children's foster care placement because he moved to New York City and did not participate in counseling or parenting classes and made it so the Department of Social Services could not verify his employment and housing status. Beim v. Roanoke Cty. Dep't of Soc. Servs., No. 0506-18-3, 2018 Va. App. LEXIS 248 (Sept. 25, 2018).

Circuit court did not err in terminating the mother's parental rights pursuant to subdivision C 2 of § 16.1-283; the social services department made reasonable and appropriate efforts to assist the mother in remedying the conditions that led to the children's continued placement in foster care, yet the mother chose not to take full advantage of the services provided, and the children had been in foster care for 17 months and had special needs, and the mother had not substantially complied with the department's requirements. Dawson v. City of Roanoke Dep't of Soc. Servs., No. 0510-18-3, 2018 Va. App. LEXIS 263 (Oct. 9, 2018).

Mother's argument that she had substantially complied with the imposed requirements was rejected where she acknowledged that she had not met several of the requirements, at the time of the ore tenus hearing she was not in compliance with some of the requirement with which she may have previously been in compliance, and she could not pick and choose previous points of time in which to comply. Horton v. Petersburg Dep't of Soc. Servs., No. 0275-18-2, 2018 Va. App. LEXIS 336 (Dec. 4, 2018).

Circuit court properly terminated a mother's parental rights pursuant to subsection C of § 16.1-283 where the conditions that led to or required continuation of the child's foster care placement included a number of circumstances put in place, at least in part, by the mother, including her drug use, her incarceration, and her failure to provide adequate housing and care for the child. Horton v. Petersburg Dep't of Soc. Servs., No. 0275-18-2, 2018 Va. App. LEXIS 336 (Dec. 4, 2018).

Decision to terminate a father's residual parental rights pursuant to subdivision C 2 of § 16.1-283 was affirmed where he failed to comply with virtually any of the foster care plan requirements, such as maintaining stable, independent housing, having verified employment, completing substance abuse treatment, staying in contact with the county department of social services, and visiting the child. Lancaster v. Petersburg Dep't of Soc. Servs.,, 2018 Va. App. LEXIS 338 (Dec. 4, 2018).

Based on the totality of the circumstances, a circuit court did not err in finding that there was clear and convincing evidence to support the termination of a mother's parental rights to a child because, at the time of the circuit court hearing, the child had been in foster care for approximately 23 months, and, despite the efforts of the county department of social services during that extended period, the mother had failed to remedy the mother's substance abuse issues, and the mother's relationship with the child had caused the child significant mental anguish. Ross v. Fairfax Cty. Dep't of Family Servs.,, 2019 Va. App. LEXIS 8 (Jan. 8, 2019).

Trial court did not err by terminating the mother's parental rights to her five children because her uncertain housing and unstable employment over a prolonged period made it unlikely that she would be able to provide the necessary stability and structure for the children, all of whom had special needs. The mother's inability to comply with her medications caused concern over whether she could manage the children's medication. Randolph v. Roanoke Cty. Dep't of Soc. Servs.,, 2019 Va. App. LEXIS 30 (Feb. 12, 2019).

Termination of a mother's parental rights and foster care goal of adoption was appropriate as the mother did not follow up on programs and services, which a social services agency offered, the mother had not remedied the problems that led to the children's placement in foster care, the mother did not demonstrate the skills necessary to care for the special needs children and was not in a position to be a mother to the children, and the children's needs were being met and they were thriving after being in foster care for approximately 16 months. Herrera v. City of Roanoke Dep't of Soc. Servs., No. 0617-19-3, 2019 Va. App. LEXIS 213 (Oct. 1, 2019).

Termination of a father's parental rights was appropriate because the father failed to participate in required services despite ample opportunities, the father's move to Delaware did not create an excusable delay for the failure to complete services, the father did not maintain continuous contact with a social services agency and never provided the agency with documentation to visit with the child, and the father did not remedy the conditions that led to the child's continued foster care placement. Harris v. Danville Dep't of Soc. Servs., No. 0534-19-3, 2019 Va. App. LEXIS 233 (Ct. of Appeals Oct. 22, 2019).

Circuit court did not err in terminating a mother's parental rights under subdivision C 2 because despite numerous services over an extended period, the mother had not made any progress in her ability to manage her life or care for the children; the mother had a long history of mental health and emotional issues, and she admitted that she was not in a position to have all five children come home. Lynn v. Campbell Cty. Dep't of Soc. Servs., No. 0958-19-3, 2020 Va. App. LEXIS 1 (Jan. 7, 2020).

Circuit court did not err in terminating a father's parental rights because, while the evidence supported the court's finding that a county department of social services had provided reasonable services to the parents, the court was concerned that the father's anger management and attachment issues had never been resolved throughout the entire process. Furthermore, the court noted that the children already had been in foster care for almost two years with services being provided. Wall v. Giles Cty. Dep't of Soc. Servs., No. 1072-19-3, 2020 Va. App. LEXIS 20 (Jan. 28, 2020).

Termination of a father's parental rights was appropriate because the child had been in foster care for approximately two years and because the father - who was incarcerated several times while the child was in foster care and had pending criminal charges, did not have stable housing until shortly before the hearing, and never provided documentary proof of being able to provide financially for the child - was not in a position to care for the child. Furthermore, the child reportedly was improving and doing well in foster care. Tyler v. Culpeper Cty. Dep't of Soc. Servs., No. 1840-19-4, 2020 Va. App. LEXIS 157 (May 26, 2020).

Circuit court did not err in terminating the father's parental rights because he failed to participate in psychological and parenting assessments, he refused to attend parenting classes, individual therapy, family counseling, and anger management classes that he had been referred to, and the child had been in foster care for approximately 16 months and the father was not cooperative. Karnes v. Campbell Cty. Dep't of Soc. Servs., No. 1694-19-3, 2020 Va. App. LEXIS 172 (June 9, 2020).

Termination of a mother's parental rights was appropriate because the child had been in foster care for approximately twenty months and the mother had made almost no progress on the domestic violence and substance abuse issues that were the basis of the child's removal and placement into foster care. Furthermore, the child was doing well in a foster home, the foster family was suited to meet the child's special needs, and there were no suitable relative placements. Baldwin v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1994-19-3, 2020 Va. App. LEXIS 203 (July 14, 2020).

Termination of the mother's parental rights was proper and was in the child's best interests because, at the time of the circuit court hearing, the child was 15 years old and had been in foster care for approximately 20 months; once the mother decided to revoke the entrustment agreement and asked the Department of Social Services to provide her with services, the Department informed her that she needed to participate in a psychological evaluation, but the mother refused to cooperate, which prevented the circuit court from being able to determine whether the mother could care for the child; and the circuit court found that the child needed some consistency and a chance to have some normalcy. Roebuck v. Lynchburg Dep't of Soc. Servs., No. 0667-20-3, 2020 Va. App. LEXIS 274 (Nov. 4, 2020).

Termination of a father's parental rights was appropriate because the father's children had been in foster care for over a year, the local department of social services had been unable to verify that the father had completed the required services after the children entered foster care, and the circuit court concluded from the court's observations of the father during the hearing that the father's anger issues had not been addressed. Macias v. Hopewell Dep't of Soc. Servs., No. 0395-20-2, 2020 Va. App. LEXIS 267 (Nov. 4, 2020).

Termination of mother's parental rights was appropriate because the mother's children, who were placed in foster care due to the parents' history of domestic violence and drug abuse, had been in foster care for over a year; the department of social services could not verify the mother's participation and completion of substance abuse treatment, a domestic violence program, and counseling after the children entered foster care; and the mother had not taken steps to remedy the conditions leading to the children's placement in foster care. Johnson v. Hopewell Dep't of Soc. Servs., No. 0567-20-2, 2020 Va. App. LEXIS 268 (Nov. 4, 2020).

Trial court did not err by terminating the mother's parental rights because the evidence showed that she had not been able to obtain and maintain stable housing, she had been employed in her new job for only two weeks at the time of the hearing, the child had been in and out of foster care since 2015, he had behavioral and mental health concerns that required constant supervision and structure, and the evidence showed that the mother was not ready or able to meet the child's needs. Wilson v. Norfolk Dep't of Human Servs., No. 0475-20-1, 2020 Va. App. LEXIS 276 (Nov. 10, 2020).

Termination of the mother's parental rights was proper because the Department of Social Services offered the mother numerous services, including referrals for a psychological evaluation and a parenting mentor, but mother did not complete the services; she never complied with the Department's requirement that she obtain and maintain stable housing; at the time of the circuit court hearing, the children had been in foster care for approximately three years, both children were in adoptive homes and receiving necessary services, and the mother was not in a position to resume custody of the children; and the mother was unable and lacked the capacity to remedy the conditions that led to the children's continued placement in foster care. Tinsley v. Albemarle Cty. Dep't of Soc. Servs., No. 0677-20-2, 2020 Va. App. LEXIS 280 (Nov. 17, 2020).

Circuit court did not err by terminating the mother's parental rights to the child and finding that termination was in the child's best interest because the mother had not obtained safe and stable housing, the Norfolk Department of Human Services was unable to verify her attendance in individual counseling, the child was two years old and had been in foster care for most of his life, and the mother was not in a position to care for him. Silver v. Norfolk Dep't of Human Servs., No. 0830-20-1, 2021 Va. App. LEXIS 25 (Feb. 23, 2021).

Circuit court did not err in terminating the mother's parental rights because the Department of Human Services repeatedly reviewed with mother the services that she needed to complete before she could be reunited with her children, the mother acknowledged that she knew what was expected of her, and the mother continually refused to participate in all the services and claimed that she did not need them. Shelton v. Norfolk Dep't of Human Servs., No. 0990-20-1, 2021 Va. App. LEXIS 14 (Feb. 2, 2021).

Circuit court did not err in terminating the father's parental rights and approving the foster care goal of adoption because the father did not show financial stability; he admittedly engaged in panhandling for months; despite participating in a program, the father did not have a plan in place for the child; at the time of the circuit court hearing, the child had been living with the same foster family for approximately 22 months; by all accounts, the child was especially attached to his foster mother, who had been his primary caregiver since he was five days old; and, even though the Department of Human Services had offered numerous services to the father, he still was not in a position to care for the child. LaFlamme v. Va. Beach Dep't of Human Servs., No. 1155-20-1, 2021 Va. App. LEXIS 59 (Apr. 13, 2021).

Circuit court did not err in finding that it was in the children's best interests to terminate the mother's parental rights and that the evidence was sufficient to support termination because one of the main reasons that the children entered foster care was the mother's substance abuse but she did not avail herself of the treatment services offered. Gee v. City of Newport News Dep't of Human Servs., No. 1349-20-1, 2021 Va. App. LEXIS 96 (June 15, 2021).

Termination of the mother's parental rights was proper and in the best interests of the children because she cut off her relationship with the older two children and had shown herself unable to provide stable housing for all the children as the house only had enough bedrooms for two of the four children, and she and her partner were behind on the rent; the Department of Human Services provided reasonable and appropriate assistance on behalf of the mother's efforts; a clinical psychologist testified that the mother's current mental health situation was a barrier to her ability to successfully parent the children; and the mother never graduated from supervised visitation to unsupervised visitation with the children. Reinbold v. City of Newport News Dep't of Human Servs., No. 0093-21-1, 2021 Va. App. LEXIS 167 (Sept. 21, 2021).

Termination of the mother's rights was proper because the Department of Family Services offered the mother numerous services, and although she completed some of the services, she continually denied any substance abuse problems, did not participate in individual therapy, and had not demonstrated an ability to meet the children's needs; and the children needed stability and consistency, and the mother was not in a position to provide that for them. Smith v. Fairfax Cty. Dep't of Family Servs., No. 0268-21-4, 2021 Va. App. LEXIS 165 (Sept. 21, 2021).

Termination of a father's parental rights was appropriate because the local social services department offered numerous services to the father, including grief counseling, but the father did not complete all of the department's required services, including the psychological and parenting capacity evaluations. Furthermore, the circuit court found that the father, who had addiction and depression issues, had been unable to remedy the conditions that led to the placement and continuation of the father's child in foster care. Harris v. Suffolk Dep't of Soc. Servs., No. 0494-21-1, 2021 Va. App. LEXIS 164 (Sept. 14, 2021).

Circuit court did not err in terminating the mother's parental rights and approving the foster care goal of adoption because, although she completed the psychological and parenting evaluation, the substance abuse treatment, and parenting classes, she stopped participating in the services that provided her with parent coaching and mental health support services; she admitted that she had continued engaging in prostitution as recently as January 2020; she had not completed the treatment for her sex addiction; and the child had been in foster care for almost three years. Filyaw v. City of Va. Beach Dep't of Human Servs., No. 0113-21-1, 2021 Va. App. LEXIS 153 (Aug. 10, 2021).

In the absence of evidence indicating that reasonable and appropriate efforts were taken by social agencies to remedy the conditions leading to foster care, residual parental rights cannot be terminated under subdivision C 2 of this section. Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921 , 265 S.E.2d 692 (1980).

Where there is undisputed evidence that a parent has not been offered or provided services, the rendering of which is a prerequisite to a termination of parental rights under subdivision C 2 of this section, the prima facie case is overcome, and the party moving for termination is put to the burden of proving the factors listed in subdivision C 2. In the absence of such proof, reversal of a termination order is required. Harris v. Lynchburg Div. of Social Servs., 223 Va. 235 , 288 S.E.2d 410 (1982).

Weight given parent age. - While age of the parent or parents is doubtless an appropriate consideration in assessing "good cause" in the context of subsection C of this section, it is not a circumstance which prevails over the best interests of the child. Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995).

Nothing in the record attributed mother's parental deficiencies to her age or suggested that the mere passage of time would resolve her difficulties; further delay would prolong child's familial instability without the promise of benefit to him, a result clearly contrary to the child's best interests. Under such circumstances, mother's age did not alone constitute good cause to excuse her failure to resolve the conditions which prompted child's foster care in accordance with statute. Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995).

Mental illness not "good cause." - Mother's schizoaffective disorder did not constitute "good cause" under subdivision C 2 to prevent her from remedying the conditions that led to her child's foster care placement. DeJesus v. Richmond Dep't of Soc. Servs., No. 1061-01-2, 2001 Va. App. LEXIS 529 (Ct. of Appeals Sept. 25, 2001).

Parent's mental deficiency that is of such severity that there is no reasonable expectation that such parent will be able within a reasonable period of time befitting a child's best interests to undertake responsibility for the care needed by the child in accordance with the child's age and stage of development does not constitute good cause under subdivision C 2 of § 16.1-283. Van Buren v. City of Richmond Dep't of Soc. Servs., Nos. 2618-02-2 through 2621-02-2, 2003 Va. App. LEXIS 250 (Ct. of Appeals Apr. 29, 2003).

Although a mother suffered from mental problems, her mental deficiencies alone did not constitute good cause to excuse her from remedying the conditions which led to foster placement of her children, and evidence which showed that the mother had not obtained stable housing, steady employment, or completed the requirements of foster care service plans which were approved by a juvenile and domestic relations district court after her children were placed in foster care was sufficient to sustain the circuit court's judgment terminating her parental rights. Arnold v. Winchester Dep't of Soc. Servs., No. 1600-03-4, 2004 Va. App. LEXIS 65 (Ct. of Appeals Feb. 10, 2004).

Parent's mental deficiency does not excuse failure to remedy conditions. - Because a mother's limited intellectual functioning made her unable to care for her special needs child, and her attempts to meet those needs were insufficient to establish her ability to remedy the conditions which led to the child's placement in the first place, the trial court properly terminated her parental rights under subdivision C 2 of § 16.1-283; moreover, the mother's mental deficiency did not constitute good cause under subdivision C 2. Porterfield v. Roanoke City Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 551 (Dec. 12, 2006).

Termination of a mother's parental rights was in the children's best interests because the mother was unable to remedy the conditions that led to the children being placed in foster care as the mother's significant cognitive limitations and lack of insight into how to provide for the children's needs could not be remediated through parent training, in-home services, or medication. Furthermore, the children improved significantly while in foster care for 17 months and were in a potentially adoptive home. Lephew v. Roanoke Cty. Dep't of Soc. Servs., No. 1822-18-3, 2019 Va. App. LEXIS 180 (July 30, 2019).

Mother's mental retardation not "good cause." - A mother's mental retardation did not constitute "good cause" so as to constitute a valid legal excuse for her inability to timely cure the circumstances that led to her child's foster care placement, where there was nothing in the record to suggest that the mother would ever be able to assume responsibility for the care of her child and waiting indefinitely to find out if the mother might someday remedy the conditions that resulted in the child's foster care placement would only prolong the lack of stability and permanency in his life, with no guarantee or even reasonable likelihood that the mother would ever be able to adequately care for him in the future. Richmond Dep't of Soc. Servs. v. L.P., 35 Va. App. 573, 546 S.E.2d 749, 2001 Va. App. LEXIS 298 (2001).

Mother's mild mental retardation did not constitute "good cause" which prevented her from remedying the conditions which led to child's foster care placement. Brown v. Caroline County Dep't of Social Servs., No. 0567-89-2 (Ct. of Appeals July 31, 1990).

Consideration of steps taken by parents beyond 12-month period. - While subsection C of this section grants a parent 12 months to substantially remedy the conditions which led to the child's placement in foster care, steps taken by the parent even after this period may be relevant to the determination of whether termination of the parent's parental rights would be in the child's best interests. Roanoke City Dep't of Soc. Servs. v. Heide, 35 Va. App. 328, 544 S.E.2d 890, 2001 Va. App. LEXIS 217 (2001).

When subsection C of § 16.1-283 provided that a trial court could terminate a parent's parental rights if the parent did not, within 12 months of his or her child's placement in foster care, substantially remedy the problems which caused the child to be placed in foster care, this did not temporally restrict the evidence the trial court could consider, in evaluating whether the parent achieved this goal, to events occurring in that specific 12-month period, as this would deprive the factfinder of the ability to consider the child's present best interests, which also had to be weighed in determining a request to terminate the parent's parental rights. L.G. v. Amherst County Dep't of Soc. Servs., 41 Va. App. 51, 581 S.E.2d 886, 2003 Va. App. LEXIS 333 (2003).

Parent's progress more than twelve months from placement properly considered. - A father's apparent progress in overcoming the conditions that resulted in the placement of his children in foster care was properly considered by the trial court in determining that termination of the father's parental rights would not be in the children's best interests, even though such progress was not made until more than 12 months from the date the children were placed in foster care. Roanoke City Dep't of Soc. Servs. v. Heide, 35 Va. App. 328, 544 S.E.2d 890, 2001 Va. App. LEXIS 217 (2001).

Department of Social Services did not delay or deny a mother reasonable or appropriate services because while the mother obtained housing in March 2012 after her two children had been in foster care for almost one year, the department was willing to extend the time frame under the statute to see if the children could be reunited with the mother, but after the department received the home study, it was apparent the mother would be unable to remedy her circumstances in a reasonable period of time. Sullivan v. Fredericksburg Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 119 (Apr. 1, 2014).

Purpose of time limit. - Twelve-month time limit established by subdivision C 2 of § 16.1-283, regarding termination of parental rights, was designed to prevent an indeterminate state of foster care "drift" and to encourage timeliness by the courts and social services in addressing the circumstances that resulted in the foster care placement, and this provision protected the family unit and attendant rights of both parents and child, while assuring resolution of the parent/child relationship without interminable delay, as the legislation established a reasonably presumptive time frame of 12 months for parents to receive rehabilitative services to enable them to correct the conditions that led to foster care placement. L.G. v. Amherst County Dep't of Soc. Servs., 41 Va. App. 51, 581 S.E.2d 886, 2003 Va. App. LEXIS 333 (2003).

Parent's efforts constrained by time. - Subsection C of 16.1-283 clearly contemplated that a parent's efforts to resolve the "conditions" leading to a child's foster care placement were constrained by time as, if a parent failed to substantially remedy those conditions within 12 months the court could act to prevent the child from lingering in foster care, and, absent "good cause," a parent or parents receiving the "reasonable and appropriate" services of "rehabilitative agencies" had to "remedy substantially" the conditions which led to foster care of the child in a reasonable period not to exceed 12 months. L.G. v. Amherst County Dep't of Soc. Servs., 41 Va. App. 51, 581 S.E.2d 886, 2003 Va. App. LEXIS 333 (2003).

Extension of time limitation. - Circuit court did not err by refusing to give a parent additional time, beyond the statutory twelve-month deadline, to manage the parent's mental health issues with the assistance of psychiatric medication because the circumstances of the case suggested that the parent was unlikely to remedy within a reasonable time the conditions that led to the foster care placement of the parent's child, even with the assistance of the medication. Franklin v. City of Lynchburg Dep't of Soc. Servs., No. 2030-16-3, 2017 Va. App. LEXIS 239 (Sept. 26, 2017).

Requirements of subdivision C 2 met. - Termination of the father's parental rights pursuant to subdivision C 2 of § 16.1-283 was upheld where father had been repeatedly incarcerated, had physically abused the child's older half-brothers and assaulted and abducted the child's mother, failed to undergo psychiatric counseling for bipolar disorder, and failed to complete a substance abuse evaluation. Logan v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 541 (Dec. 5, 2006).

In a mother's termination of parental rights action pursuant to subdivision C 2 of § 16.1-283, sufficient evidence supported the termination of the mother's parental rights as being in the child's best interest because the mother's parenting skills were affected by her battles with depression, drug addiction, and bipolar disorder, which resulted in inconsistent care for the child, the child needed stability and had improved in foster care; the mother's history of drug abuse, mental health disorders, and her refusal to seek help form the Department of Social Services indicated that her parenting skills would not improve soon. Green v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 510 (Nov. 7, 2006).

Because there was clear and convincing evidence to support termination of a father's residual parental rights to his minor son under subdivisions C 1 and C 2 of § 16.1-283 as being in the child's best interests, the trial court's decision was not plainly wrong or without evidence to support it. Sprouse v. Orange County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 79 (Mar. 6, 2007).

Appellant's residual parental rights to her daughter were properly terminated pursuant to subdivision C 2 of § 16.1-283, as the evidence established that the child was abused and neglected as defined in § 16.1-228, because appellant was not prepared to care for the child at home, and because of her mental retardation and mental health issues, appellant did not understand how to feed an infant or the frequency of feedings, and the evidence established that appellant did not have the cognitive ability to care for the child, and that further time would not remedy appellant's cognitive functioning. Sylvia v. Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 109 (Mar. 20, 2007).

Because a father made no effort to change his current living arrangement, failed to participate in and/or complete the offered programs and services, and suffered from mental conditions requiring treatment and management, termination of his parental rights under subdivision C 2 of § 16.1-283 was in the child's best interests. Luciano v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 169 (Apr. 24, 2007).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283, was supported by evidence that the father failed to maintain contact with the children while incarcerated, failed to participate in substance abuse counseling and job training while incarcerated, failed to secure employment upon release, and was arrested and convicted on a new charge following the father's release. Watkins v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 268 (June 26, 2007).

Agency proved by clear and convincing evidence that termination of a parent's parental rights to the child pursuant to subdivision C 2 of § 16.1-283 was in the child's best interests. The parent abandoned the child when the child was twelve days old and the parent continued to have drug abuse issues. Blackard v. Danville Div. of Soc. Servs.,, 2007 Va. App. LEXIS 398 (Oct. 30, 2007).

Termination of parental rights under § 16.1-283 was proper, where the foster care plans were timely filed, the parents refused to take anger management classes and failed to follow through with referrals to determine if additional services were necessary to support the family, the Department of Social Services (DSS) provided reasonable and appropriate services, and the DSS timely pursued the termination petitions. Hensley v. Culpeper County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 426 (Dec. 4, 2007).

As conditions of reunification with her child, a mother was ordered, but failed, to remain chemically free, comply with a visitation order, complete parenting classes, and maintain suitable housing and stable employment for six months. As the department of social services made reasonable efforts to rehabilitate her, but she failed to cooperate, her parental rights were properly terminated pursuant to subdivision C 2 of § 16.1-283. MacLean v. Roanoke County Dep't of Soc. Servs., No. 1789-07-3, 2008 Va. App. LEXIS 37 (Jan. 22, 2008).

Termination of a mother's parental rights to four children was upheld under subdivision C 2 of § 16.1-283 because: (1) the mother could not protect the children from further abuse by the mother's older children; (2) termination was in the best interests of the children; (3) the mother had not progressed to the point where the mother was capable of adequately parenting the children and providing them a safe and secure home environment; and (4) nothing in the record suggested continued services would alleviate the mother's deficits. Andrews v. Roanoke City Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 33 (Jan. 22, 2008).

Prima facie case for termination of parental rights under subdivision C 2 of § 16.1-283 was established by evidence that although a county Department of Social Services offered a father assistance in finding employment and suitable housing, he failed to avail himself of those services. While the Department could offer the services, it was not required to force them on the father. Campbell County Dep't of Soc. Servs. v. Roberts,, 2008 Va. App. LEXIS 225 (May 6, 2008).

Because the evidence, including that of a parent's ongoing substance abuse, was sufficient to establish a prima facie case sufficient for the termination of the parent's residual parental rights to the parent's children under subdivision C 2 of § 16.1-283, the trial court erred in granting a motion to strike at the conclusion of the Norfolk Division of Social Services' case-in-chief. Norfolk Div. of Soc. Servs. v. Monroe,, 2008 Va. App. LEXIS 209 (Apr. 29, 2008).

Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was proper where the evidence showed that the mother persisted in the refusal of mental health services despite a doctor's opinion that the mother suffered from a delusional disorder and a dependent personality disorder, the mother had lost the mother's housing at a shelter, and the mother had no permanent job. Douglas v. Alexandria Dep't of Human Servs.,, 2008 Va. App. LEXIS 407 (Aug. 26, 2008).

Because a mother failed to address her mental health and dependency issues, failed to make a reasonable and stable plan to care for the child, who had been doing well in foster care for nearly three years, termination of the mother's residual parental rights under subdivision C 2 of § 16.1-283 was in the child's best interests. Covington v. Lynchburg Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 527 (Dec. 9, 2008).

Evidence that the father failed to secure stable housing or employment, and refused mental health therapy and medication despite suffering from bipolar disorder and anger management issues, was sufficient to support the termination of the father's parental rights under subdivision C 2 of § 16.1-283. Messiha v. Alexandria Dep't of Human Servs.,, 2009 Va. App. LEXIS 32 (Jan. 27, 2009).

Termination of a mother's parental rights pursuant to subdivision C 2 of § 16.1-283 was proper as the mother's long history of substance abuse, which was not remedied despite the social services department's efforts to help the mother work through those issues, rendered the mother unable to care for her son. Meanwhile, the child had improved greatly, and the son's foster parents wanted to adopt him. Whitt v. Gloucester Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 63 (Feb. 10, 2009).

Finding that the mother was unwilling or unable within a reasonable period of time to remedy substantially the conditions that led to the placement of her child into foster care was supported by evidence that the mother failed to complete a substance abuse program, failed to obtain stable and suitable housing or employment, and failed to attend individual counseling. Vaughan v. Richmond Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 156 (Mar. 31, 2009).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the children were removed based on sexual abuse allegations against the father, the father denied such abuse, and the father left the children in the care of a person with an extensive criminal record and allowed the childrens' mother, with a history of violence and substance abuse, to remain in the home when the mother was not in jail. Faulk v. Richmond Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 254 (June 9, 2009).

Termination of a mother's parental rights under subdivision C 2 was supported by substantial evidence because the mother was provided with mental health, parenting, and anger management classes, but she did not make any progress within 12 months to remedy the conditions that had brought her children into foster care. Sponaugle-Cantrell v. Wise County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 400 (Sept. 8, 2009).

In a case in which a trial court terminated a mother's parental rights pursuant to subdivision C 2 of § 16.1-283, the mother argued unsuccessfully that the evidence was insufficient to support the decision. While the mother had worked on many of the Newport News Department of Human Services' requirements, she failed to maintain stable housing, failed to complete a parenting class, did not participate in individualized therapy, and continued to abuse drugs. McGee v. Newport News Dep't of Human Servs.,, 2009 Va. App. LEXIS 452 (Oct. 6, 2009).

In a case in which a father appealed the termination of his parental rights to his two minor children, asserting that the trial court erred in finding that there was sufficient evidence to terminate his parental rights, the trial court, terminating the father's parental rights based on subdivision C 2 of § 16.1-283, explained that the children were aging and needed proper medical care and developmental care and stability, but after two years, the father still had not resolved the housing issue, and the father had not shown signs of improvement to offer the children the stability that they needed. Copeland v. Newport News Dep't of Human Servs.,, 2009 Va. App. LEXIS 445 (Oct. 6, 2009).

In a case in which a trial court terminated a mother's parental rights to her four children pursuant to subdivision C 2 of § 16.1-283, and the mother appealed, the Petersburg Department of Social Services (DSS) presented clear and convincing evidence that the mother was unwilling or unable within a reasonable period of time to remedy substantially the conditions which led to the placement of her four children into foster care. She failed to comply with the recommended psychological therapy, and she failed to provide DSS with verification of employment or housing. Strother v. Petersburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 455 (Oct. 13, 2009).

Order terminating the mother's parental rights and approving foster care plans with goal of adoption, rather than return to parent/relative was supported by evidence that neither grandmother was a suitable placement for the child and the mother was unable to maintain stable housing and employment, and failed to follow up with the recommended individual therapy or parenting classes. Carr v. Fairfax County Dep't of Family Servs.,, 2010 Va. App. LEXIS 322 (Aug. 10, 2010).

Termination of the mother's parental rights was appropriate pursuant to subdivision C 2 of § 16.1-283, in part because she expressed ambivalence about seeking custody of the child, she had not petitioned for custody of the child, she failed to complete the criminal background check, and she failed to satisfy the conditions of the child's return to her by attending visitation with the child. Huffman v. Roanoke City Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 226 (July 5, 2011).

Termination of parental rights was proper under subdivision C 2 of § 16.1-283 because the father did not comply with the requirement that the mother have only supervised visitation; the father failed to maintain contact with the Department of Social Services for several weeks; the mother did not participate in anger-management classes; and the father had pled guilty to a felony and two misdemeanors. Birchfield v. Scott County Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 376 (Nov. 29, 2011).

Trial court did not err in terminating a mother's parental rights because the record supported the trial court's findings that the Department of Social Services offered reasonable services, that the mother failed to timely remedy the conditions that led to the removal of the child, that clear and convincing evidence proved the mother's parental rights had to be terminated pursuant to subdivision C 2 of § 16.1-283, and that the termination of her parental rights was in the child's best interests; the mother suffered from abnormal personality traits that would not change over time, she exhibited poor parenting skills during supervised visitations, she was dismissed from psychological treatment for noncompliance and poor behavior, and she failed to maintain steady employment. Sutton v. Shenandoah Valley Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 27 (Feb. 7, 2012).

Evidence was sufficient to support the court's orders terminating a mother's parental rights pursuant to subdivision C 2 of § 16.1-283, as the record established that 1) she would place the children in the care of their great-grandmother without providing food, diapers, or other necessities for them; 2) after she disabled a smoke detector in her residence, it was destroyed by a fire believed to have been caused by her negligent disposal of a cigarette; 3) despite extensive services offered by the department of human services, she appeared unable to cope with basic parenting responsibilities. Burch v. Alexandria Dep't of Human Servs.,, 2012 Va. App. LEXIS 70 (Mar. 13, 2012).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283, was supported by evidence that the children had been in foster care for six months, the father completed parenting, anger management, substance abuse, and counseling services, yet he was ordered to repeat many of these same services and still issues of domestic violence and substance abuse existed. Barnett v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 198 (June 12, 2012).

Mother's parental rights were properly terminated because the mother did not substantially remedy major issues contributing to the mother's children's removal, mainly the mother's mental health, housing, and employment issues, within a reasonable time, despite an agency's remedial efforts, when the mother refused recommended mental health services, was uncooperative with parenting education services, struggled in supervised visitation with the children, and acted inappropriately with professionals providing services to the children, and it was not in the children's best interests to wait to find out if the mother would be able to resume the mother's responsibilities. Penna v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0586-13-3, 2013 Va. App. LEXIS 257 (Ct. of Appeals Sept. 17, 2013).

After considering a mother's recent attempts to obtain housing and employment, a trial court did not err in finding that termination of the mother's parental rights on grounds of failing to remedy conditions was in the best interests of three children because the children had been in foster care for four years, the mother engaged in criminal activity and used drugs during that time, and the mother made inappropriate comments to the children during visitations. Hoyle v. Chesapeake Dep't of Human Servs., No. 1274-13-1, 2013 Va. App. LEXIS 366 (Dec. 10, 2013).

Trial court did not err in terminating mother's parental rights because the mother did not substantially remedy the situation that led to the children being placed in and continuing in foster care. The mother did not take English classes and refused to separate from her live-in boyfriend who would not cooperate, could not be investigated, and the children feared, and none of the housing was found to be suitable. Alcazar v. Harrisonburg Rockingham Soc. Servs. Dist., Nos. 1189-13-3, 1190-13-3, 2014 Va. App. LEXIS 2 (Jan. 7, 2014).

Although a parent had made some progress, termination of parental rights was warranted since the parent's child had been in foster care for approximately sixteen months and was doing well, and the parent did not have housing or stable employment, still needed to address mental health issues, and had pending criminal charges. Taylor v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2014 Va. App. LEXIS 27 (Feb. 4, 2014).

Trial court did not err in terminating a mother's parental rights to her three children because she failed to substantially remedy her situation within 12 months of the children being placed in foster care where she failed to complete her substance abuse counseling - a key component of the foster care plan - never completed her treatment program, did not obtain stable housing, and had not contacted the Department of Social Services since March 2013. Husar-Journigan v. Fredericksburg Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 77 (Mar. 11, 2014).

Evidence was sufficient to support the termination of the mother's parental rights because it showed that she was unable to remedy the conditions that prompted her children's removal during the 36 months they were in foster care, as the mother had significant cognitive difficulties from her extensive drug abuse, she had no understanding of her children's medical disabilities, she missed their medical appointments and school, she was unable to ensure that food and diapers were available, she ceased substance abuse counseling, and she had no residence of her own. Fabian-Cerda v. Fairfax County Dep't of Family Servs.,, 2014 Va. App. LEXIS 254 (July 1, 2014).

Trial court did not err in terminating parental rights for failure to remedy the conditions that led to the foster care placement. The mother had not recognized the children's problems, including their hygiene issues and their need for medical and dental care, and she had not been able to meet their needs despite the fact that social services had been involved with the family since 2011. Henley v. Bristol Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 325 (Sept. 23, 2014).

Father did not substantially remedy the conditions that led to or required continuation of foster care for the child, given in part that he failed to cooperate with the social services department and follow through with recommended services, and he displayed a near total lack of interest in the means of improvement available to him; the evidence showed the father was unable to meet the child's needs before he entered foster care, and the father did not improve his situation while the child was in foster care, and thus the circuit court did not err in terminating the father's parental rights. Jones v. Bristol Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 43 (Feb. 10, 2015).

Termination of a parent's residual parental rights was appropriate because there was clear and convincing evidence that the conditions that led to foster placement could not be substantially remedied to allow for the children's return to the parent, despite the parent's efforts to complete services, and that the parent had been unable or unwilling to substantially remedy the conditions within a reasonable period of time. Moreover, all of the children were thriving in foster care. Carlos v. City of Virginia Beach Dep't of Human Servs.,, 2015 Va. App. LEXIS 65 (Mar. 3, 2015).

Termination of the father's parental rights was proper because he had not substantially remedied the situation that led to the child being placed and remaining in foster care as he did not provide proof of his housing and payment of utilities; he was not on the lease where he lived; he relied on others to assist him with his finances; and the child had been in foster care for approximately 21 months. Perry v. Prince George Dep't of Soc. Servs., No. 2350-14-2, 2015 Va. App. LEXIS 194 (June 9, 2015).

Circuit court did not err in terminating a mother's parental rights pursuant to subdivision C 2 and in approving the goals of adoption because although the mother met some of the goals of the Department of Social Services, she did not substantially remedy the situation that led to the children being placed, and remaining, in foster care. Davis v. Isle of Wight Cnty. Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 239 (Aug. 4, 2015).

There was clear evidence that the mother was unable or unwilling to remedy the conditions that led to the child's removal during the 30 months he remained in foster care, as the mother did not secure stable housing and she continued to reject the services offered to her to address her mental health issues. Aijaz v. Fairfax County Dep't of Family Servs., No. 2247-14-4, 2015 Va. App. LEXIS 275 (Sept. 29, 2015).

Termination of the mother's parental rights was supported by clear and convincing evidence that the mother failed to remedy the conditions leading to the child's removal, notwithstanding the reasonable and appropriate efforts of rehabilitative agencies, as the mother refused to recognize the need for intense substance abuse therapy or address mental health issues, and termination was in the best interest of the child, who bonded with her foster parents and had no relationship with the mother. Grindle v. Va. Beach Dep't of Human Servs.,, 2016 Va. App. LEXIS 3 (Jan. 12, 2016).

Trial court did not err in finding that it was in a child's best interests to terminate a parent's parental rights because the parent had not addressed the parent's own mental health issues, despite the services provided by a county department of social services and, at the time of the trial, the parent was not in a position to address the child's needs. Moreover, the trial court did not err in approving the goal of adoption because there were no relatives available for placement. Williams v. Prince George Dep't of Soc. Servs., Nos. 1582-15-2, 1752-15-2, 2016 Va. App. LEXIS 135 (Ct. of Appeals Apr. 26, 2016).

Circuit court did not err in terminating a mother's parental rights on the ground that she had not maintained a relationship with the child or remedied the conditions that led to foster care placement because it relied on appropriate factors and pointed to some evidence supporting its decision that the mother failed to stabilize her mental health condition or living arrangements to the point it would not be in the children's best interests to return home. Stanley v. Bristol Dep't of Soc. Servs., Nos. 1189-16-3, 1449-16-3, 2017 Va. App. LEXIS 92 (Mar. 28, 2017).

Termination of the mother's parental rights was proper because the evidence proved that she did not remedy her mental health and substance abuse issues, which were the conditions that had led to the children's placement in foster care, as she did not attend counseling sessions to address her mental health issues as recommended by her counselor, and told her social worker that she did not need therapy, despite evidence to the contrary; the mother did not address her long-standing substance abuse issues; and the Alexandria Department of Community and Human Services provided the mother with numerous services to remedy the conditions that led to the children's placement in foster care, but she did not fully participate in those services. Richards v. Alexandria Dep't of Cmty. & Human Servs., No. 1702-16-4, 2017 Va. App. LEXIS 188 (Aug. 1, 2017).

Termination of the mother's parental rights was proper because she moved out of state and acknowledged that the consequences included her leaving her employment and her residence, complicating her ability to regain custody of her children, and a significant reduction in her visits; she was homeless, or, at best, living with a man whose name she did not know, and for a period she could not project; and she failed to keep the Department of Social Services adequately informed of her whereabouts, did not obtain adequate psychiatric treatment or psychological counseling, did not complete a parenting program, remained unemployed throughout the majority of the time the case was pending, and was sporadic in her visitation. Cogar v. Shenandoah Valley Dep't, No. 0673-17-3, 2017 Va. App. LEXIS 334 (Dec. 27, 2017).

Termination of a mother's residual parental rights to the mother's minor child was appropriate because the mother failed to substantially remedy the conditions that led to the child's placement in foster care for 23 months despite the reasonable efforts of a county department of family services to help the mother. Witnesses for the department testified as to the mother's lack of suitable housing, failure to deal with the mother's own mental health problems, and failure to address the medical and mental health needs of the mother's children. McKinney v. Fairfax Cty. Dep't of Family Servs., No. 0897-17-4, 2018 Va. App. LEXIS 20 (Jan. 30, 2018).

Termination of the mother's rights was proper, as the child had been in foster care for approximately 21 months and was doing well, the mother failed to confirm she would attend visits with the child after missing several visits, resulting in several future visits being cancelled, and she did show she had resolved any of the issues that led to the child being placed in foster care and remaining there. Smith v. Winchester Dep't of Soc. Servs., No. 1310-17-4, 2018 Va. App. LEXIS 23 (Feb. 6, 2018).

Termination of a father's residual parental rights under subdivision C 2 was not a miscarriage of justice because the father failed to remedy the conditions that led to the child's continued placement in foster care within a reasonable time despite the services offered to him by county department of social services, and termination was in the child's best interests; therefore, the court of appeals declined to apply the ends of justice exception to address the merits of the father's arguments. Moore v. Dickenson Cty. Dep't of Soc. Servs., No. 1167-17-3, 2018 Va. App. LEXIS 62 (Mar. 13, 2018).

Due to the testimony provided by a police officer describing a father's arrest, the admission of a body camera video of the arrest into evidence would have constituted, at most, harmless error because the officer testified at the termination hearing about the events that occurred prior to and during the father's arrest. Moore v. Dickenson Cty. Dep't of Soc. Servs., No. 1167-17-3, 2018 Va. App. LEXIS 62 (Mar. 13, 2018).

Circuit court did not err by admitting into evidence a body camera video of a father's arrest because the video was highly relevant in the termination proceedings; the video documented the father's criminal conduct and general instability, conditions which at least partially led to the continuation of the child's placement in foster care; the events depicted in the video took place in the home where the father intended for the child to live and reflected his ability to safely parent the child. Moore v. Dickenson Cty. Dep't of Soc. Servs., No. 1167-17-3, 2018 Va. App. LEXIS 62 (Mar. 13, 2018).

Trial court did not err in terminating a mother's parental rights pursuant to subdivision C 2 and approving the goal of adoption because the children had been in foster care for almost two years, and the mother was not able to take care of them since she remained incarcerated; the children had special needs that demanded significant time and attention, and they needed consistency and stability, which the mother was unable to provide. Groffel v. New Kent Dep't of Soc. Servs., No. 1427-17-2, 2018 Va. App. LEXIS 70 (Mar. 20, 2018).

Trial court did not err in terminating a father's parental rights pursuant to subdivision C 2 and approving the goal of adoption because the children had been in foster care for almost two years, and the father was not able to take care of them since he was incarcerated; the father did not have a place to live or a job upon his release, and he had not addressed his mental health issues. Groffel v. New Kent Dep't of Soc. Servs.,, 2018 Va. App. LEXIS 68 (Mar. 20, 2018).

Regardless of whether the September 7, 2017, evaluation was admitted, there was sufficient evidence to support the decision to terminate the mother's parental rights as she had not complied with the requests of the Alexandria Department of Community and Human Services in obtaining mental health counseling and substance abuse treatment because, in May 2017, the mother attended the first two appointments for substance abuse treatment, but did not appear for any additional appointments, the therapist testified that two visits were not enough time to provide substance abuse treatment, and the mother tested positive for PCP in June 2017; and she lacked the ability to provide basic care, such as taking the children to medical appointments. Simms v. Alexandria Dep't of Cmty. & Human Servs., No. 1852-17-4, 2018 Va. App. LEXIS 111 (Apr. 24, 2018).

Circuit court erred in terminating a mother's parental rights because the evidence was insufficient to establish that she failed to remedy the condition leading to the son's placement in foster care notwithstanding the services provided by the county department of social services; even if the court of appeals assumed the evidence was sufficient to terminate parental rights based on the department's "parenting skills" theory, the evidence was contested and in conflict. Sternberg v. Spotsylvania Cty. Dep't of Soc. Servs., No. 1506-17-2, 2018 Va. App. LEXIS 131 (May 8, 2018).

Circuit court properly terminated a father's parental rights because the child had special needs, the father acknowledged that he had not been involved in the child's life for a number of years and was not aware of the trauma that he had experienced, the father admitted that he did not comply with all of the Department's requests, and by not doing so, the father had not substantially remedied the conditions that required the continuation of foster care for the child and was not in a position to care for the child at the time of the circuit court hearings. McGriff v. City of Roanoke Dep't of Soc. Servs., No. 0872-18-3, 2018 Va. App. LEXIS 346 (Dec. 11, 2018).

Father's parental rights were properly terminated because the father did not substantially remedy the conditions leading to the child's foster care placement after having at least 12 months to address the problem, as the father (1) did not obtain housing and still lived at the father's mother's house, who had been found not to be a suitable placement for the child, (2) became employed only four months before the hearing despite being told over a year earlier to get a job, and (3) did not participate in domestic violence counseling or parenting classes. Bentley v. City of Roanoke Dep't of Soc. Servs.,, 2019 Va. App. LEXIS 48 (Mar. 5, 2019).

Mother's parental rights were properly terminated because, (1) despite the Department of Family Services' reasonable and appropriate services, the mother was unable to apply what the mother learned or control the mother's mental illness, as the mother could not identify the illness or recognize the importance of medication, and (2) the mother's failings with three children were adequate to find, after one month, an inability to care for a fourth child. De Cordon v. Fairfax Cty. Dep't of Family Servs., No. 1536-18-4, 2019 Va. App. LEXIS 83 (Apr. 9, 2019).

Circuit court did not err in terminating a mother's parental rights because the mother did not complete required services and, accordingly, did not substantially remedy the conditions that led to the children's placement in foster care; the county department of social services arranged for her to visit weekly with her children, but she missed several visitations, and the department referred the mother to a parenting class, which the mother did not complete. Rasheed v. Roanoke City Dep't of Soc. Servs., No. 1569-18-3, 2019 Va. App. LEXIS 88 (Apr. 16, 2019).

Termination of the father's parental rights was proper because the condition of the home when the child was removed was horrible; the circuit court found the County Department of Social Services' witnesses to be credible and was persuaded by the multiple witnesses, who testified that the parents had made minimal progress in remedying the conditions which led to the removal of the child; at the time of the hearing, the child had been in foster care for approximately 18 months, and the parents admitted that they were not in a position to have all five children, the parents' child and the mother's other four children, come home; and the parents had never progressed to the point of having unsupervised or overnight visitations with the child. Lynn v. Campbell Cty. Dep't of Soc. Servs., No. 0954-19-3, 2020 Va. App. LEXIS 4 (Jan. 7, 2020).

Circuit court did not err in terminating a father's parental rights because the city department of social services presented evidence that it had provided the father with numerous services for years, yet he was unable to improve his parenting skills; throughout the department's involvement with the family, several professionals had expressed concern about the father's ability to parent the children safely, and the father was unable to demonstrate that he could care for the children. Dorestal v. City of Fredericksburg Dep't of Soc. Servs., No. 0123-20-2, 2020 Va. App. LEXIS 210 (July 21, 2020).

Termination of the mother's parental rights was proper because the mother had a substance abuse issue; the children had been in foster care for approximately two years; the children were doing well in foster care; and the mother admittedly was not in a position to care for the children, as she had not complied with the Department of Social Services' requirements, had no plans for childcare, and anticipated enrolling in a rehabilitation program. Noblin v. Halifax Cty. Dep't of Soc. Servs., No. 1252-20-2, 2021 Va. App. LEXIS 137 (July 27, 2021).

Termination of the mother's parental rights was proper because the mother's housing situation remained a concern while the children were in foster care; one child was diagnosed with reactive detachment disorder due to severe neglect and the prognosis for him would be devastating if he were returned to his parents; all three children participated in therapy while in foster care, yet the mother never contacted the children's counselors or therapists; the children had been in the same foster care home for 13 months and were making progress; and the mother was not in a position to have custody of the children. Quesenberry v. Giles Cty. Dep't of Soc. Servs., No. 1340-20-3, 2021 Va. App. LEXIS 134 (July 27, 2021).

Termination of the father's parental rights was proper and in the children's best interests because the father had issues with drug abuse; since the children entered foster care, the father had tested positive for methamphetamines several times; one child was diagnosed with reactive detachment disorder due to severe neglect and the prognosis for him would be devastating if he were returned to his parents; all three children participated in therapy while in foster care; the father never contacted the children's counselors or therapists; the children had been in the same foster care home for 13 months and were making progress; and the father was not in a position to resume custody of the children. Quesenberry v. Giles Cty. Dep't of Soc. Servs., No. 1297-20-3, 2021 Va. App. LEXIS 139 (July 27, 2021).

Inability to provide adequate day care arrangements does not warrant termination. - Where the only then-existing barrier to the return of the children was mother's inability to come up with a less cumbersome day care arrangement, termination of mother's parental rights was not warranted under subsection C. Kane v. Commonwealth, No. 1579-87-3 (Ct. of Appeals July 5, 1989).

Requirements of subdivision C 2 not met. - Termination of the mother's parental rights under subdivision C 2 of § 16.1-283 was not supported by the record because there was no evidence that anyone from appellee Department of Social Services confronted the mother and told the mother what the child accused the mother of doing, nor did the record show the mother was offered any rehabilitative services. Anderson v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 288 (July 31, 2007).

Insufficient evidence was presented to terminate parental rights under subdivision C 2 of § 16.1-283 because after the mother had to be hospitalized following a psychotic breakdown, leading to the child's removal from the home, the mother began taking anti-psychosis medication, and the father became educated about the mother's condition, so he knew what to do in case of another breakdown. Brooks v. Spotsylvania Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 221 (May 6, 2008).

Father was not required to overcompensate for the mother's parental deficiencies, and the decision to terminate his rights should have been an independent evaluation; he had completed services, speculation that he might not be able to provide for the child was premature, and while the circuit court appropriately expressed concern about his stability and delayed involvement, alone those concerns were insufficient to establish by clear and convincing evidence that his rights were to be terminated for failure to remedy conditions. Thach v. Arlington County Dep't of Human Servs., 63 Va. App. 157, 754 S.E.2d 922, 2014 Va. App. LEXIS 104 (Mar. 18, 2014).

Trial court properly terminated a mother's parental rights because she abused alcohol and drugs, suffered from serious mental health problems where she heard voices and was sometimes in a delusional state, was unemployed, conceded that she had not remedied the conditions leading to her child's removal and that she was unable to provide him with the stable home and care necessary to meet his needs, and the mother's counselor offered no time frame by which the mother would recover. Torres-Lara v. Accomack County Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 409 (Dec. 16, 2014).

Circuit court properly terminated a father's residual parental rights pertaining to his child because, during the four months of the child's life that the father was at liberty, he was dismissed from parenting classes due to his lack of attendance, DSS ceased scheduled visitation because the father stopped attending, the father further failed to provide DSS with proof of stable employment, took conflicting positions on his housing status, and did not avail himself of the arranged services when he was released from jail and had the opportunity to do so. Burnette v. Roanoke City Dep't of Soc. Servs., No. 2049-17-3, 2018 Va. App. LEXIS 207 (July 31, 2018).

Burden not on parent. - Termination of parental rights for failure to remedy conditions amounts to a last resort to protect children when all other reasonable remedies have been attempted and failed and requires that the department of human services establish by clear and convincing evidence that termination of a parent's rights is the only reasonable and appropriate recourse; it does not require a parent to prove by clear and convincing evidence that he should retain his fundamental liberty interest in the custody of his child. Thach v. Arlington County Dep't of Human Servs., 63 Va. App. 157, 754 S.E.2d 922, 2014 Va. App. LEXIS 104 (Mar. 18, 2014).

VII. TERMINATION UNDER SUBSECTION D (ABANDONMENT).

Parental unfitness may be established by proof of abandonment of a child without justification. Robinette v. Keene, 2 Va. App. 578, 347 S.E.2d 156 (1986).

Abandonment statutory scheme procedures. - In the case of abandonment and where the identity of the parents cannot be determined, the statutory scheme for the constitutionally valid termination of residual parental rights provides that after the filing of a foster care plan which documents termination of residual parental rights as being in the best interests of the child, and after proper notice to the parents and an opportunity to be heard, the courts may terminate residual parental rights based on specified statutory factors, such as abuse, neglect or failure to provide for essential needs of the child. Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988).

Guardian ad litem of unknown father has standing to appeal entrustment agreement. - In proceedings involving custody of the child of an unwed minor, the guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court. Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986).

VIII. TERMINATION UNDER SUBSECTION E.

Termination in absentia. - Father did not preserve his claim that he was deprived of his right to due process under the Fifth and Fourteenth Amendments, U.S. Const. amends. V and XIV, and Va. Const. Art. I, § 11 when his parental rights were terminated under clause (i) of subsection E of § 16.1-283, in absentia, as required by Va. Sup. Ct. R. 5A:18 where: (1) the order was signed "seen and objected to" by the father's counsel; (2) no grounds for the objection were given; (3) the father's endorsement of the order terminating his parental rights gave no indication of a due process argument; (4) the father and the mother were given proper notice of the termination proceedings; and (5) counsel for both parties appeared at the hearing. Dolak v. Va. Beach Dep't of Human Servs., No. 0065-12-1, 2012 Va. App. LEXIS 245 (July 31, 2012).

Parent convicted of felony child abuse. - Termination of the father's parental rights was proper because the Department of Social Services was not required to make reasonable and appropriate efforts to reunite the father's younger child with him after his conviction for felony child abuse of the child's half-brother; and because the father subjected the child to aggravated circumstances as the record contained extensive evidence of the horrific child abuse suffered by the half-brother at the hands of the father, who was one of the primary caretakers, and it was while the half-brother was residing with the father that the half-brother sustained his injuries. Yafi v. Stafford Dep't of Soc. Servs., 69 Va. App. 539, 820 S.E.2d 884, 2018 Va. App. LEXIS 327 (2018).

Parent convicted of felony sexual assault on a child. - Parental rights of a mother were properly terminated where the mother was convicted in federal court of abusive sexual contact, a felony, as felony sexual assault in Virginia included all felonies proscribed by the article within the Virginia Code captioned "Criminal Sexual Assault"; subsection E of § 16.1-283 required proof by clear and convincing evidence not only that the parent was convicted of felony sexual assault of a child of the parent or a child with whom the parent resided but also that the termination of parental rights was in the best interests of the specific child or children regarding whom termination was sought. M. G. v. Albemarle County Dep't of Soc. Servs., 41 Va. App. 170, 583 S.E.2d 761, 2003 Va. App. LEXIS 406 (2003).

Under subsection E, after the Department of Social Services proves that the father was convicted of felony sexual assault upon a child with whom he lived, the trial court is authorized to terminate the father's parental rights if it finds by clear and convincing evidence that termination is in the child's best interest; subsection E does not require a finding that the child was abused or neglected by the father in order to support a finding that it is in the child's best interests to terminate his parental rights. Pennybacker v. Spotsylvania County Dep't of Social Servs., No. 2599-99-2, 2000 Va. App. LEXIS 273 (Ct. of Appeals Apr. 11, 2000).

Parent convicted of aggravated sexual battery on a child. - Termination of the father's parental rights to the daughters under subsection E of § 16.1-283, was supported by evidence that the father had been convicted of aggravated sexual battery of the father's girlfriend's children, who were about the same age as the father's daughters, and testimony that the daughters exhibited hypersexualized behavior toward each other as well as toward their foster father and when talking about sleeping with the father in his bed while they lived with the father. Osorio v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2010 Va. App. LEXIS 430 (Nov. 9, 2010).

Where abuse standard not met, aggravated abuse standard not met. - Trial court properly refused to terminate a mother's parental rights for subjecting a child to aggravated circumstances under subsection E as the trial court properly refused to terminate the mother's parental rights under the abuse standard of subsection B; logically, the evidence, which did not support a termination under subsection B, could not support a termination under the more aggravated abuse standard of subsection E. Richmond Dep't of Soc. Servs. v. Enriquez, No. 1650-03-2, 2004 Va. App. LEXIS 341 (Ct. of Appeals July 13, 2004).

"Serious bodily injury." - Definition of "serious bodily injury" in subsection E of § 16.1-283 is inapplicable to a case under § 16.1-253.2. By its terms, it applies only to § 16.1-283. Nolen v. Commonwealth, 53 Va. App. 593, 673 S.E.2d 920, 2009 Va. App. LEXIS 138 (2009).

Trial court did not err in terminating a father's parental rights to his two children pursuant to subsection E, where the older child at different times suffered from a fractured tibia and fractured clavicles while in his parents' care. Since the older child was subjected to aggravated circumstances, subsection E also applied to the younger child. Curry v. Hopewell Dep't of Soc. Servs., No. 1930-15-2, 2016 Va. App. LEXIS 121 (Ct. of Appeals Apr. 12, 2016).

Effect of convictions for felony abuse and neglect or felony cruelty and injury to children. - Trial court did not err in entering a judgment that terminated the parental rights of the mother in her two minor children and found in was in the best interests of the children to do so; the mother pled guilty to one count of felony abuse and neglect in violation of subsection A of § 18.2-371.1 and one count of felony cruelty and injury to children in violation of § 40.1-103 , which was sufficient to establish that the mother committed a felony assault causing serious bodily injury and served as a ground fro terminating her parental rights in the two minor children. Canter v. City of Bristol Dep't of Soc. Servs., No. 0507-05-3, 2005 Va. App. LEXIS 501 (Ct. of Appeals Dec. 13, 2005).

Trial court properly considered order terminating parental rights to sibling. - Trial court did not improperly consider documentary evidence in during a hearing regarding the termination of a father's parental rights to his child because a circuit court order terminating the father's parental rights to the child's sibling was properly considered as a basis for termination pursuant to subsection E of § 16.1-283; all documentary evidence was made part of the record by operation of the law because under § 16.1-296, an appeal from a juvenile and domestic relations district court to a circuit court necessarily transferred the entire record to the circuit court for retrial as though the case had been originally brought there. Ridgley v. Fairfax County Dep't of Family Servs., 2560-09-4, 2010 Va. App. LEXIS 465 (Nov. 30, 2010).

Sufficient evidence supported terminating a mother's parental rights under Va. Code Ann. § 16.1-283(E)(i) because (1) the children were in an agency's custody, (2) the mother's rights to siblings were involuntarily terminated, and (3) clear and convincing evidence showed termination was in the children's best interests. Garcia v. Dep't of Family Servs. Loudoun County,, 2014 Va. App. LEXIS 373 (Nov. 12, 2014).

Termination of the father's parental rights was proper because the father's parental rights previously were terminated to four of his children; the father had received numerous services since the Department of Social Services first became involved with his family in 2005; despite all of the services provided over the years, the father continued to have problems with the same issues, namely substance abuse and domestic violence; and it was in the child's best interests that the father's parental rights be terminated. Brooks v. Roanoke City Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 196 (Aug. 8, 2017).

Because the Department of Human Services presented evidence that the mother's parental rights to two siblings were terminated involuntarily on August 6, 2019, and the mother did not appeal the court's rulings regarding those children, her parental rights could be terminated to her two children in the current case. Witcher v. City of Newport News Dep't of Human Servs., No. 0244-20-1, 2020 Va. App. LEXIS 237 (Oct. 6, 2020).

Stepchild subjected to aggravated circumstances. - Termination of the mother's rights to her child was proper as the evidence proved she subjected her stepchild to aggravated circumstances when she failed to address abuse he suffered at the hands of his father and demonstrated a wanton or depraved indifference to his life; the stepchild's injuries rendered him permanently blind with a permanent loss of brain tissue, the mother was aware of his injuries days before he obtained medical attention, and the mother's child could not be safely returned to her. Benfaraj v. Stafford Dep't of Soc. Servs., No. 0597-18-4, 2018 Va. App. LEXIS 325 (Nov. 27, 2018).

Parent convicted of involuntary manslaughter. - Circuit court did not err in terminating the father's parental rights as a result of his conviction for involuntary manslaughter; because the father's conviction for involuntary manslaughter was a conviction for a felonious crime that results in serious bodily injury to a child, the conviction constituted a felony assault resulting in serious bodily injury. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Felonious assault on other child. - By its express language, this section does not limit the authority of the trial court to terminate parental rights only to children who are the direct victims of the parent's felonious assault; the express language of the statute permits the termination of parental rights of other children who would be endangered where a parent has maliciously wounded one of his or her children. Johnson v. Roanoke City Dep't of Soc. Servs., No. 0604-00-3, 2000 Va. App. LEXIS 471 (Ct. of Appeals June 27, 2000).

Involuntary manslaughter is felony assault under termination statute. - Clause (iii) of subsection E of § 16.1-283 subsumes into subsection E all the crimes that fit the definition of a felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault that are not already listed in clause (ii) of subsection E of § 16.1-283; involuntary manslaughter is a felony assault for purposes of clause (ii) of subsection E. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

No time restraints as to when convictions committed. - Father claimed his parental rights should not be terminated based on his conviction for involuntary manslaughter because the conviction was six years prior to the removal of the children; However, subsection E of § 16.1-283 does not impose any time restraints as to when the convictions had to occur in connection with the removal of the children. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Due process. - Agency's decision to seek termination of a mother's parental rights under Va. Code Ann. § 16.1-283 E did not violate due process because, on de novo appeal of a juvenile court order terminating the mother's parental rights under that statute, the mother had notice the agency sought termination under that statute. Garcia v. Dep't of Family Servs. Loudoun County,, 2014 Va. App. LEXIS 373 (Nov. 12, 2014).

Termination in best interest of child. - Where medical evidence showed that child had been seriously abused and injured to the point that his life was in danger, trial judge did not err in finding that the best interest of the child would be served by terminating the parent-child relationship and that the neglect or abuse suffered by the child presented a substantial threat to his life, health and development. Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 394 S.E.2d 492 (1990).

Where a mother only contested error in the involuntary termination of her parental rights, but failed to assert error in the court's determination that her rights should be terminated under subsection E of this section as she had previously had her parental rights terminated as to four other minor children, the court could not consider whether the evidence sufficiently supported termination under § 16.1-283 E (i). Tarrance v. Catholic Charities of the Diocese of Arlington, Inc.,, 2006 Va. App. LEXIS 339 (July 25, 2006).

Termination of mother's parental rights in the minor child was justified pursuant to subsection E of § 16.1-283. The undisputed evidence showed that the mother's parental rights in the minor child's sibling had been terminated and that termination was in the best interests of the minor child because the mother was unable to provide the proper care for the minor child's substantial medical needs despite intensive training on how to do so. Branch v. Petersburg Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 75 (Feb. 12, 2008).

Termination of the mother's parental rights was appropriate under clause (i) of subsection E of § 16.1-283 because she was noncompliant with substance abuse treatment, she failed to address mental health issues, she requested shorter visits or cancelled visits with her two children while pregnant with another child, and it was not in the best interests of the children to spend a lengthy period of time waiting to find out when, or even if, their mother would be capable of resuming her responsibilities. Champagne v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2010 Va. App. LEXIS 346 (Aug. 24, 2010).

Because a mother provided no evidence of permanent plans with regard to her child's care, had a history of drug abuse, and her parental rights to the child's sibling had previously been terminated, termination of the mother's parental rights was warranted in the best interests of the child under clause (i) of subsection E of § 16.1-283. Stilley v. Newport News Dep't of Human Servs.,, 2012 Va. App. LEXIS 26 (Jan. 31, 2012).

Where a mother's children were neglected, abused, and improperly supervised prior to removal, they thrived since being placed in foster care, the mother continued to abuse alcohol and have psychological problems, which she failed to acknowledge or correct, and her parental rights to another child had previously been terminated, clear and convincing evidence supported the trial court's finding that termination of her parental rights was in the children's best interest. Scott v. Roanoke City Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 103 (Apr. 3, 2012).

Decision terminating a mother's parental rights to the mother's children pursuant to subsection E of § 16.1-283 was proper, based on the evidence regarding the mother's treatment of the children, which included evidence of abuse and torture, and an agency's numerous attempts and inability to locate suitable relatives willing and able to assume custody. Gore v. Gloucester County Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 173 (May 22, 2012).

Circuit court did not err in terminating a mother's parental rights, as the circuit court had an opportunity to see and hear all of the witnesses, including the medical examiner and a physician who treated the mother's stepdaughter, and found the state agency's witnesses to be more credible than mother's witnesses. Wallach v. Prince George Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 20 (Jan. 28, 2014).

Termination of an incarcerated parent's parental rights and a foster care plan of adoption was appropriate because a child's foster parents wanted to adopt the child and it was not in the best interests of the child to spend a lengthy period of time waiting to find out when, or even if, the parent would be capable of resuming the parent's parental responsibilities. Sturgill v. Wise County Dep't of Soc. Servs., No. 0336-14-3, 2014 Va. App. LEXIS 255 (July 8, 2014).

Termination of a mother's parental rights was in the children's best interests because (1) siblings were abused, (2) the children were at risk for abuse, (3) the mother said neither the mother nor family members could support another child, (4) the mother was convicted of concealing abuse, and (5) the mother's relationship with the children improved little in foster care. Garcia v. Dep't of Family Servs. Loudoun County,, 2014 Va. App. LEXIS 373 (Nov. 12, 2014).

Clear and convincing evidence proved that termination was in the best interests of the child, as the father has sustained a closed head injury and lacked the skills needed to meet the child's needs, the child had serious medical issues that required ongoing medical care, and the father was also unable to care for the child's older sibling, to which the father's rights had been terminated; the child had already been in foster care for seven months and nothing suggested that the mere passage of time would resolve the father's parental difficulties. Lafia v. Roanoke City Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 16 (Jan. 20, 2015).

Trial court did not err in finding that it was in the best interests of the children to terminate a mother's parental rights pursuant to subsection E where the evidence supported the findings that the older child was physically abused while in the mother's care, and the children, who had been in foster care for 22 months, were doing well. Cromartie v. Hopewell Dep't of Soc. Servs., No. 1943-15-2, 2016 Va. App. LEXIS 179 (Ct. of Appeals May 31, 2016).

Termination of the mother's parental rights was in the best interests of the children because the mother entered an Alford plea to felony child endangerment as one of the children found his two-week-old sister lying under her mother in the mother's bed, the two-week-old child sustained a significant neurological injury due to lack of oxygen and subsequently died, and the mother was intoxicated at the time of the child's injury; the children had been in the custody of the city's Department of Community and Human Services for approximately 20 months; the Department had tried to place some of the children with the mother, but the children were returned to foster care; and the children were doing well in foster care. Robinson v. City of Alexandria Dep't of Cmty. & Human Servs., No. 1397-16-4, 2017 Va. App. LEXIS 3 (Ct. of Appeals Jan. 10, 2017).

Termination of a father's parental rights to one child was appropriate because a county social services department presented sufficient evidence to prove that the father's parental rights previously were terminated to three of the father's other children. Furthermore, the father was convicted of felony child abuse with respect to two of the father's other children and the father's child at issue suffered broken ribs without any accidental explanation of the injury. Crews v. Halifax Cnty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 50 (Feb. 28, 2017).

Trial court did not err in terminating the mother's rights to her three children, as, despite the services offered to the mother, she as unable to meet the needs of the children and substantially remedy the situation that led to the children being placed in and remain in foster care. While the mother emphasized that she separated from father, who was abusive, addressed her substance abuse issues, and participated in counseling and parenting classes, the mother lacked any plan for housing or child care. Cruse v. Alexandria Dep't of Cmty. & Human Servs., No. 0643-17-4, 2017 Va. App. LEXIS 168 (July 18, 2017).

It was in a child's best interests to terminate the mother's parental rights because the mother's parental rights previously were terminated to other children and the child was doing well in foster care with a family that was adopting a sibling. Despite the services which an agency provided to the mother while the child was in foster care, the mother continued to have mental health issues, chronic substance abuse issues, homelessness, instability in housing, lack of employment, and financial instability. Feaster v. Harrisonburg-Rockingham Soc. Servs. Dist., No. 0135-17-3, 2017 Va. App. LEXIS 179 (July 25, 2017).

Trial court did not err by granting the Department of Social Services' petition for termination of the mother's parental rights, as the mother's parental rights to two other child were previously terminated and the trial court's order found termination in the child's best interests. Dorestal v. Spotsylvania County Dep't of Soc. Servs., No. 0128-17-2, 2017 Va. App. LEXIS 253 (Oct. 10, 2017).

Termination of the mother's parental rights was proper because the Department of Social Services presented evidence that the mother's parental rights to her three older children had been terminated on July 28, 2016, and that she had a history of mental illness and refused to take her medication; this statute did not require the Department to offer services to the mother, but, nevertheless, the circuit court found that after the child's birth, the Department went to the mother and tried to get her to cooperate and had a safety plan, but the mother refused to cooperate; and the child's best interest was to remain in the care of the paternal grandmother as the child was doing well there. Mason v. Stafford Cty. Dep't of Soc. Servs., No. 0218-19-4, 2019 Va. App. LEXIS 129 (June 4, 2019).

Circuit court did not err in finding that it was in the best interests of the child to terminate the mother's parental rights under subsection E because the mother had seven other children but did not have custody of any of them, and her parental rights were terminated to one of her children. Hobson v. City of Virginia Beach Dep't of Human Servs., Nos. 1980-18-1, 0260-19-1, 2019 Va. App. LEXIS 146 (June 25, 2019).

Circuit court did not err in terminating a mother's parental rights and finding that termination of the mother's parental rights was in the best interests of her child, where the department of community and human services presented evidence that the child had been in foster care for approximately eleven months and was doing well in an adoptive home with his maternal great aunt. In contrast, the mother had not been compliant with her medication and had stopped seeing her substance abuse counselor. Simms v. Alexandria Dep't of Cmty. & Human Servs., No. 1357-19-4, 2020 Va. App. LEXIS 30 (Feb. 4, 2020).

Circuit court did not err in terminating a mother's parental rights to a child because the child was doing well in foster care with the mother's older child who also had been removed and had become attached to the foster parents. Furthermore, termination of parental rights was in the best interest of the child given the mother's mental health issues and lack of progress in parenting skills training. Pilenza v. Nelson Cty. Dep't of Soc. Servs., No. 0291-20-3, 2020 Va. App. LEXIS 229 (Sept. 8, 2020).

Circuit court did not err in finding that it was in the best interests of the children to terminate the mother's parental rights because the mother had just started to comply with some of the requirements to be reunited with the children; and the children had been in foster care for more than two years based on the mother's failure to comply as instructed. Witcher v. City of Newport News Dep't of Human Servs., No. 0244-20-1, 2020 Va. App. LEXIS 237 (Oct. 6, 2020).

Appeal. - Mother's motion for leave to amend her opening bried to add an assignment of error challenging the trial court's termination of her parental rights under subsection E was denied because the mother provided no explanation for her failure to timely assign error to the termination of her parental rights under subsection E. Clyburn v. Campbell Cty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 346 (Aug. 15, 2017).

Failure to challenge termination under subsection E rendered moot challenge under B and C. - Mother's failure to challenge the circuit court's decision to terminate her residual parental rights to her children under subsection E rendered moot her claim regarding the termination under subsection B or C because regardless of the merits of her arguments regarding the rulings related to subsection B and C, termination of her parental rights would occur in any event under subsection E. Clyburn v. Campbell Cty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 346 (Aug. 15, 2017).

IX. TERMINATION UNDER MORE THAN ONE SUBSECTION.

The Department of Social Services may proceed under more than one subsection. - Subsection B and subsection C address substantially similar grounds for the termination of parental rights and, while subsection B places a "reasonable time" limitation to remedy the conditions causing foster care placement, subsection C requires that the conditions be remedied within "a reasonable time not to exceed twelve months;" despite this minor distinction, the Department of Social Services is not barred from proceeding under both of these subdivisions. Sawyers v. Tazewell County Dep't of Soc. Servs., No. 1605-99-3 CHIEF, 2000 Va. App. LEXIS 346 (Ct. of Appeals May 9, 2000).

Because there was sufficient evidence supporting a trial court's finding that a child suffered neglect or abuse by the mother's continued illegal drug abuse, the trial court properly found that it was in the child's best interests to terminate the mother's parental rights under § 16.1-283(B)(2)(b), (C)(2). Oxley v. Fairfax County Dep't of Family Servs.,, 2006 Va. App. LEXIS 422 (Sept. 19, 2006).

Fact that a mother complied with the Department of Social Services' requirements that she complete a parenting class, attended counseling, and submit to testing, such that there was no basis to terminate her parental rights under subdivision C 2 of § 16.1-283, did not preclude the court from terminating her parental rights under subsection B of § 16.1-283, based on the neglect and abuse suffered by the children while in her care. Oliver v. Roanoke City Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 446 (Oct. 10, 2006).

Alternative decisions. - Circuit court's judgment terminating a mother's parental rights was affirmed where she did not challenge the alternative decision to terminate under subsection B of § 16.1-283, that statute provided a distinct and individual basis for terminating parental rights, and thus, the mother had waived any claim of error related to that decision. O'Reilly v. Norfolk Dep't of Human Servs.,, 2014 Va. App. LEXIS 138 (Apr. 8, 2014).

Because a circuit court terminated a father's parental rights based upon subdivision C 1 and clause (iii) of subsection E of § 16.1-283, those alternate holdings made it unnecessary for the appellate court to examine the father's arguments regarding termination under subdivision C 2 of § 16.1-283. Smith v. City of Norfolk Dep't of Human Servs., No. 0883-18-1, 2018 Va. App. LEXIS 342 (Dec. 11, 2018).

Grounds arguable on appeal from juvenile court. - Circuit court properly terminated a mother's parental rights pursuant to subsection C of § 16.1-283; in an appeal de novo from a juvenile court, an agency was not limited to the evidence and arguments presented in an earlier abuse and neglect action in the juvenile court pursuant to § 16.1-228, and thus the agency was not limited to seeking termination pursuant to subsection B of § 16.1-283. Nguyen v. Fairfax County Dep't of Family Servs., No. 0938-04-4, 2004 Va. App. LEXIS 465 (Ct. of Appeals Sept. 28, 2004).

Termination of rights upheld. - Trial court did not err in terminating a mother's parental rights pursuant to subsections B and C of § 16.1-283, because termination was in the child's best interest where the mother was unwilling or unable to remedy the problems that caused the child to be removed, namely, to take required medications and avoid relapses, and where the mother had never met or visited the child, the mother had no permanent employment, the grandmother handled the mother's finances, the mother resided in an efficiency apartment, which was too small, and the mother was expecting another child. Adkins v. Winchester Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 138 (Apr. 13, 2010).

Termination of the father's parental rights under subsection B and subdivision C 1 of § 16.1-283, was supported by evidence that, despite parenting and anger management classes, the father yelled and cursed at the children during visitation, showed no physical affection toward the children, refused to change the youngest children's diapers, and did not follow Department of Social Services' recommendations. Gardner v. Washington County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 253 (June 22, 2010).

Sufficient evidence supported the termination of a mother's parental rights, pursuant to subsections B and C § 16.1-283, as in the best interests of her thirteen-year-old child because the mother: (1) physically and mentally abused the child; (2) was psychiatrically and cognitively limited; (3) did not complete a psychological evaluation or participate in counseling; (4) did not complete substance abuse assessment and cooperated with only one out of three drug screens; and (5) did not maintain stable housing. Donahue v. Roanoke City Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 436 (Nov. 9, 2010).

Trial court did not err in finding the evidence sufficient to terminate a father's parental rights pursuant to subsections C and E of § 16.1-283 because at the time of the termination hearing, the trial court did not know when the father would be released from jail; according to the foster care plan, the father's eventual release date remained uncertain more than a year after the child was taken into the custody of the county department of family services, and the father's long incarceration prevented him from caring for his son. Ridgley v. Fairfax County Dep't of Family Servs., 2560-09-4, 2010 Va. App. LEXIS 465 (Nov. 30, 2010).

Termination of the mother's and the father's parental rights under subsections B and C of § 16.1-283 was supported by evidence that the Department of Social Services offered services to both parents, including parenting classes, visitation, housing assistance, and counseling, but they were unable or unwilling to comply with the Department's efforts and two years was more than a reasonable period of time to remedy the conditions leading to foster care. Guynn v. Pulaski County Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 499 (Dec. 28, 2010).

Trial court did not abuse its discretion in terminating a father's parental rights to his children under subdivisions C 1 and C 2 of § 16.1-283 because the father was unable to complete in a timely manner the requirements of the Department of Social Services to go to parenting classes, maintain stable housing, and stay in contact with the department; during the time the children were in foster care, the father had at least three addresses, he failed to stay in contact with the department, and he visited the children one time while they were in foster care despite offers from the epartment to transport him to visitations. Harden v. Richmond Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 30 (Feb. 7, 2012).

Trial court did not err by terminating a mother's parental rights on different grounds than did the juvenile and domestic relations district court, from which the mother appealed to the circuit court; by citing § 16.1-283 generally, the petitions provided the mother with notice that the mother's parental rights could be terminated under any subsection of that provision, and the circuit court was in no way limited in its options by any actions of the juvenile and domestic relations district court. Loftin v. City of Lynchburg Dep't of Soc. Servs.,, 2011 Va. App. LEXIS 132 (Apr. 19, 2011).

Because a father had little capability of making concrete plans for the future and was not able to correct or eliminate the neglect problems that led to foster care placement, it was in the children's best interests to terminate his residual parental rights under subsection B and subdivision C 2 of § 16.1-283. Rojas v. Roanoke City Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 180 (May 29, 2012).

Terminating a mother's parental rights and changing the foster care plan goal to adoption were in her child's best interests because, while she participated in a psychological evaluation, she did not complete the other offered services, missed and/or refused to participate in numerous scheduled drug screenings, the child's life, health, or development was threatened, and it was not likely that the conditions could be substantially corrected or eliminated within a reasonable period of time. Tusing v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1465-13-3, 2013 Va. App. LEXIS 396 (Dec. 27, 2013).

Trial court did not err by terminating a parent's residual parental rights to a child because the evidence supported the court's factual findings that the parent, despite parenting classes and substance abuse counseling, could not substantially correct or eliminate the conditions that resulted in neglect or abuse and that the parent was unwilling or unable within a reasonable period of time to substantially remedy the conditions, which required continued foster care of the child. Gomez v. Loudoun County Dep't of Family Servs.,, 2014 Va. App. LEXIS 142 (Apr. 15, 2014).

Mother's failure to challenge the termination of her parental rights under one subsection of this section, rendered moot her claim regarding termination under another subsection, because termination of her rights would occur in any event under the unchallenged subsection. Hough v. Mathews Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 306 (Sept. 9, 2014).

Trial court did not err when it terminated the mother's parental rights because the county department of social services removed the child from the home because of substance abuse issues; drugs were found in the mother's home; the mother had pending drug charges; the trial court found that the mother had not substantially remedied her substance abuse problems; there was no evidence that the mother completed the services offered by the department, including parenting classes, parenting coach, and the domestic violence alternatives program; and the child was doing well in his foster care home, which was an adoptive placement, and deserved permanency. McNeil v. Pulaski County Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 401 (Dec. 9, 2014).

Trial court did not err in terminating the mother's parental rights pursuant to two subsections, given that the mother demonstrated an inability to care for the child, the child had been in foster care for approximately 22 months, the mother did not have suitable housing, she stopped therapy and her medications and was dating a sex offender, and she had not substantially remedied the conditions that led to the child being in and remaining in foster care. Shadley v. Norfolk Dep't of Human Servs.,, 2015 Va. App. LEXIS 56 (Feb. 24, 2015).

Circuit court did not err in terminating a mother's parental rights pursuant to subsection B and subdivision C 2 because the mother had a reasonable period of time to substantially correct the conditions that resulted in her children being placed in foster care, and she did not substantially remedy the problems even though by the time of the hearing, one of her children had been in foster care for more than eighteen months. Cole v. Henry-Martinsville Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 240 (Aug. 4, 2015).

Termination of the mother's parental rights was supported by evidence that, after being involved in a service plan because of drug and alcohol use, the mother attempted suicide in the children's presence, the mother was unable to maintain stable housing or employment, the mother struggled with serious mental health issues, and the children had been in foster care for over 21 months. McKiver v. Portsmouth Dep't of Soc. Servs.,, 2015 Va. App. LEXIS 392 (Dec. 22, 2015).

Termination of parental rights and approval of foster care plans with the goal of adoption were in the best interest of a parent's children because, despite all of the services provided by a social services department toward the goal of returning the children home from foster care, the parent was not able to provide and care for the children and eliminate the conditions that led to the neglect or abuse. Moreover, the children had been in foster care for more than twelve months and were benefitting from the care that they received. Bellflower v. Hopewell Dep't of Soc. Servs., No. 1464-15-2, 2016 Va. App. LEXIS 75 (Ct. of Appeals Mar. 15, 2016).

Termination of the mother's residual parental rights to her son was proper because, although the mother argued that the evidence was insufficient to support termination under one subsection of this statute, she did not challenge the sufficiency of the evidence to support termination under another subsection of this statute; and the mother's failure to challenge the circuit court's termination decision under one subsection rendered moot her claim regarding the termination under the other subsection of this statute as termination of her rights would have occurred in any event under the unchallenged subsection. Brown v. Petersburg Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 45 (Ct. of Appeals Feb. 21, 2017).

Because a parent failed even to challenge the termination of the parent's parental rights for failure to remedy substantially the conditions which led to or required continuation of the child's foster care placement, this failure rendered moot the parent's claim challenging the termination of parental rights on grounds of neglect or abuse. Therefore, the appellate court did not need to reach that claim as the parent's parental rights were terminated in any event. Pagans v. Franklin Cnty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 47 (Ct. of Appeals Feb. 21, 2017).

Circuit court properly terminated a mother's parental rights, found that the termination was in the child's best interests, and approved the goal of returning the child to the father because the department of community and human services provided her with reasonable services, there was no evidence that she had remedied the conditions that led to the child's foster care placement, the child had not bonded with the mother, but was very attached to father, and it was uncertain whether the mother would be capable of developing the tools and resources and education to be a good, caring and loving parent to the child. Light v. Alexandria Dep't of Cmty. & Human Servs., No. 1996-18-4, 2019 Va. App. LEXIS 128 (June 4, 2019).

X. CHILD'S AGE.

Definition of "age of discretion." - The test is whether the child is sufficiently mature to have intelligent views and wishes on the subject. Deahl v. Winchester Dep't of Social Servs., 224 Va. 664 , 299 S.E.2d 863 (1983).

Court not required to interview child. - This section does not require that the trial court personally interview the child when determining whether a parent's residual parental rights should be terminated. Harmon v. Richmond County Dep't of Social Servs., No. 0895-00-2, 2001 Va. App. LEXIS 74 (Ct. of Appeals Feb. 20, 2001).

When child must be given opportunity to object. - The child must be afforded a meaningful opportunity to object if he is 14 or over or has attained the "age of discretion." The trial judge is uniquely qualified to appraise the effect of interrogation in each individual setting, including psychological and emotional factors. The methods of approaching and resolving this ultimate issue are in his discretion. Deahl v. Winchester Dep't of Social Servs., 224 Va. 664 , 299 S.E.2d 863 (1983).

A child has reached the "age of discretion" if evidence proves that he or she is sufficiently mature to have intelligent views and wishes on subject of termination proceeding. Cook v. Petersburg Dep't of Social Servs., No. 1385-99-2, 2000 Va. App. LEXIS 165 (Ct. of Appeals Mar. 7, 2000).

Evidence that a nine year-old child was not of the age of discretion, under § 16.1-283(G), supported the trial court's decision not to allow her to testify in opposition to the petition for termination of her parents' parental rights. Marston v. Fairfax County Dep't of Family Servs., No. 1336-01-4, 2002 Va. App. LEXIS 26 (Ct. of Appeals Jan. 22, 2002).

The trial record should be devoid of any possible ambiguities as to whether child objected to termination. Deahl v. Winchester Dep't of Social Servs., 224 Va. 664 , 299 S.E.2d 863 (1983).

Determination not required where children not of age of discretion. - The trial court was not required to make any further determination with regard to subsection E, where the record clearly demonstrated that the children were not of the age of discretion and that the mother made no attempt to establish this fact. Spencer v. County of Arlington Dep't of Human Resources, No. 0111-85 (Ct. of Appeals Mar. 19, 1986).

Court not required to interview child before concluding she was not of age of discretion. - Where the child was six years old and there was ample evidence in the record consisting of numerous social service's reports and testimony from which the trial judge was able to determine that she was not sufficiently mature to have intelligent views and wishes on the subject of her custody, the court was not required to personally interview the child before concluding that she was not of the age of discretion. Buckland v. Buckland, No. 0954-85 (Ct. of Appeals Apr. 23, 1986).

Child properly found not to be of age of discretion. - Trial court did not err in finding that a 13-year-old child was not of the age of discretion under subsection G of § 16.1-283 where: (1) the child had the maturity level of a nine or 10-year-old; (2) his I.Q. was borderline functional; and (3) he had significant impairment of his cognitive functioning. R. W. v. Chesapeake Dep't of Human Servs., No. 1313-03-1, 2003 Va. App. LEXIS 603 (Ct. of Appeals Nov. 25, 2003).

In a case in which a mother's residual parental rights to her two children had been terminated pursuant to § 16.1-283, the mother argued unsuccessfully that the trial court abused its discretion by determining that one child was not of the age of discretion under subsection G of § 16.1-283. The court based its ruling after having observed the child testify at two prior hearings and having been familiar with the background of this case; the court had the opportunity to observe the child and assess her emotional stability and psychological development, and the child's guardian ad litem informed the court that the child's position on the termination of mother's parental rights changed with every conversation, indicating that the child was not sufficiently mature to have an intelligent view on the subject of the termination. Kelly v. Hopewell Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 551 (Dec. 15, 2009).

In proceedings to terminate a mother's parental rights, a trial court properly found a thirteen-year-old child was not competent to testify, pursuant to subsection G of § 16.1-283, because the child suffered from post-traumatic stress disorder, suffered from oppositional defiant disorder, and was a victim of sexual and physical abuse and neglect; the trial court also noted the child lacked problem solving skills, had low intelligence, was impulsive, and feared for her own safety. Donahue v. Roanoke City Dep't of Soc. Servs.,, 2010 Va. App. LEXIS 436 (Nov. 9, 2010).

In a termination of parental rights case, it was not error to hold the subject child did not have sufficient discretion to veto a termination of the child's mother's parental rights because the evidence demonstrated that the mother and the child's grandmother had manipulated the child and that the child was not otherwise of an age of discretion. Tackett v. Arlington County Dep't of Human Servs., 62 Va. App. 296, 746 S.E.2d 509, 2013 Va. App. LEXIS 226 (2013).

Circuit court did not err in terminating the mother's parental rights because the child's wishes were not the deciding factor since the child was under the age of fourteen; instead, the circuit court correctly focused on the child's best interest and whether the department of social services proved that the mother did not substantially remedy the conditions that led to the child being placed in foster care. Biby v. Shenandoah Valley Dep't of Soc. Servs., Nos. 0266-16-3, 0267-16-3, 2016 Va. App. LEXIS 230 (Ct. of Appeals Aug. 23, 2016).

Child found to have consented to termination. - Mother's parental rights to her 14-year-old son were properly terminated pursuant to subsection G of § 16.1-283, because after the trial court explained to him what termination entailed, his inability to be placed for adoption if he objected to termination, and the possibility that he could still have telephone contact with his mother, he voiced no objection to termination. Scott v. Roanoke City Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 103 (Apr. 3, 2012).

There was sufficient evidence that a mother's two oldest children consented to the termination of her parental rights, as both a supervisor of foster care and the guardian ad litem were unequivocal that the children agreed that termination was in their best interests Henley v. Bristol Dep't of Soc. Servs.,, 2014 Va. App. LEXIS 325 (Sept. 23, 2014).

Circuit court did not err in terminating a mother's parental rights to a child because the evidence did not establish the child's objection to the termination; the mother did not present any evidence regarding the child's wishes once he turned fourteen years old, so the circuit court was unable to consider his wishes. Biby v. Shenandoah Valley Dep't of Soc. Servs., Nos. 0266-16-3, 0267-16-3, 2016 Va. App. LEXIS 230 (Ct. of Appeals Aug. 23, 2016).

There was no miscarriage of justice because the circuit court did not fail to consider the 14-year-old child's age and her preference to live with the foster mother, as reported by the guardian ad litem. Smith v. Fairfax Cty. Dep't of Family Servs., No. 0268-21-4, 2021 Va. App. LEXIS 165 (Sept. 21, 2021).

Objection. - Mother waived her objection to the circuit court not speaking with her child regarding his opinion on the termination of the mother's parental rights because the mother waited until she submitted her written closing argument to the circuit court; at that point, it was too late because both parties had rested their case. Biby v. Shenandoah Valley Dep't of Soc. Servs., Nos. 0266-16-3, 0267-16-3, 2016 Va. App. LEXIS 230 (Ct. of Appeals Aug. 23, 2016).

XI. TERMINATION OF RIGHTS GENERALLY.

Trial court relied on improper subsection in considering a mother's motion to strike. - The trial court erred in striking, pursuant to § 8.01-276 , an agency's evidence in a proceeding to terminate a mother's residual parental rights; the trial court improperly relied on subsection B of § 16.1-283, as opposed to subdivision C 2 of § 16.1-283, in considering the motion to strike, as the agency which brought the termination petition clearly based the petition upon subdivision C 2 of § 16.1-283, and pointed out the basis of the motion to the trial court, and therefore the trial court improperly applied the law to the facts in this case, as the criteria cited by the trial court in granting the mother's motion to strike were pertinent to a finding pursuant to subsection B of § 16.1-283, not to a finding pursuant to subdivision C 2 of § 16.1-283. City of Newport News Dep't of Soc. Servs. v. Winslow, 40 Va. App. 556, 580 S.E.2d 463, 2003 Va. App. LEXIS 304 (2003).

Effective assistance of counsel. - There was not enough information in the record to determine that a father was, in fact, denied effective assistance of counsel during a termination of parental rights proceeding, and there was no colorable claim of ineffective assistance of counsel in the record because the trial transcript, which was imperative to assessing trial counsel's representation, was not timely filed; the father was not ipso facto denied effective assistance based on counsel's failure to timely file the transcript on appeal because the father could not establish that had the transcripts been timely filed, the court of appeals would have found a colorable claim of ineffective assistance. Ridgley v. Fairfax County Dep't of Family Servs., 2560-09-4, 2010 Va. App. LEXIS 465 (Nov. 30, 2010).

Reviewability. - In a termination of parental rights case against a mother, Va. Sup. Ct. R. 5A:18 barred the mother from raising on appeal sufficiency of evidence and due process claims that she had not raised at trial. As she had not asked that the court invoke the exceptions for good cause or to meet the ends of justice, the court would not consider such arguments sua sponte. Young v. Chesapeake Dep't of Human Servs.,, 2006 Va. App. LEXIS 395 (Aug. 22, 2006).

In a case in which a mother appealed the trial court's termination of her parental rights to her four children, arguing that the trial court erred because it was the children's father who was convicted of felony child neglect and he was the individual accused of molesting two of her children, pursuant to Va. Sup. Ct. R. 5A:18, the appellate court was barred from hearing that claim since there was no evidence in the statement of facts that the mother presented that argument to the trial court. Strother v. Petersburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 455 (Oct. 13, 2009).

Mother failed to specify a basis for her challenge to the trial court's decision to terminate her parental rights because the agreed statement of facts the parties submitted pursuant to Va. Sup. Ct. R. 5A:8(c) did not recite the mother's arguments, if any, or any objections she made to the trial court's rulings; the record fell far short of affirmatively demonstrating a miscarriage of justice. Sutton v. Shenandoah Valley Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 27 (Feb. 7, 2012).

Claim that the trial court erred in finding that the Department of Human Resources failed to meet its burden of proof under this section was outside the bounds of appellate review, because the appellate court could not substitute its judgment for the trier of fact. City of Norfolk v. Person, No. 0936-13-1, 2014 Va. App. LEXIS 9 (Jan. 14, 2014).

Mother and father jointly appealed the decision to terminate their rights, but as they only assigned error to the termination of the father's rights, the court did not consider the mother's arguments regarding the termination of her rights. Thach v. Arlington County Dep't of Human Servs., 63 Va. App. 157, 754 S.E.2d 922, 2014 Va. App. LEXIS 104 (Mar. 18, 2014).

Because the petition for permanency planning was filed prior to the petition for termination of parental rights, the appellate court did not have to reach the proper interpretation of subsection A of § 16.1-283; even if that statute requires a petition for permanency planning to be filed as a prerequisite to a petition for termination of parental rights, that was done here. Culpeper Cty. Dep't of Soc. Servs. v. Caison, Nos. 0867-19-4, 0900-19-4, 0901-19-4, 0902-19-4, 2020 Va. App. LEXIS 21 (Jan. 28, 2020).

Termination in child's best interest. - Evidence that the minor child had been in foster care for over two and one-half years, had been making perfect grades in school, had bonded with the foster mother, and was engaged with friends and activities, in conjunction with evidence that the father suffered from a major depressive disorder provided a sufficient basis for concluding that termination of the father's parental rights was in the child's best interest. Otey v. Roanoke City Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 324 (July 18, 2006).

Father's parental rights were properly terminated based on the children's best interests under § 16.1-283 C 2 and § 16.1-283 E (iii), because the evidence indicated that the father, who was incarcerated, admitted that he was guilty of the sexual crimes involving his stepson of which he was convicted and extensive alcohol and marijuana use. Caddell v. Spotsylvania Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 92 (Mar. 13, 2007).

Trial court's order terminating a mother's parental rights under subsection B of § 16.1-283 was affirmed, as termination was in the subject child's best interests. The child had spent 41 months in foster care, and following a weekend visitation the mother returned the child with a third-degree burn, inflicted during the visitation period. Trent v. Prince Edward County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 168 (Apr. 24, 2007).

Because a mother made no progress towards the goals set out for her to be reunited with her daughter, other than completing a psychological evaluation; she had no contact with her for almost two years; she completely failed to avail herself to the assistance provided to her; and the child had been thriving in foster care during this time, clear and convincing evidence showed that termination of the mother's residual parental rights was in the child's best interest. Jackson v. City of Portsmouth Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 206 (May 15, 2007).

Termination of father's parental rights was in his child's best interests under circumstances in which the child had lived with his mother until the mother was no longer able to care for him, during this time, the father's whereabouts were unknown, about a month after the child went into foster care, the father requested custody of the child, but the father's extensive criminal history included "barrier crimes" that prevented placement of the child in the father's care, after the child went to live with his mother, the father arrived for a visit under the influence of drugs and offered drugs to the mother, and, thereafter, the father had no contact with his child or with the department. The father testified that his "plan" for his child was that "hopefully" one of his sisters-in-law would care for his child while he furthered his recovery; it was not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his responsibilities. Hart v. Arlington County Dep't of Human Servs.,, 2007 Va. App. LEXIS 200 (May 15, 2007).

Evidence that it was in the child's best interest to remain with the child's foster parents, that the Department of Social Services had made "reasonable and appropriate" efforts to communicate with the father and strengthen the father's relationship with the child, and that the father failed to maintain communication with the child and plan for the child's future supported the termination of the father's parental rights under subdivision C 1 of § 16.1-283. It was in the child's best interest to remain with the child's foster parents because the child considers them the child's natural parents, the child's sister lived there, the foster parents wished to adopt both children, the developmentally disabled child had made significant progress with the foster parents, and the child would likely regress if removed from the foster parents' home. Shepard v. City of Portsmouth Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 380 (Oct. 9, 2007).

Trial court properly terminated a father's residual parental rights to his child pursuant to subdivisions C 1 and C 2 of § 16.1-283 because the record supported the trial court's finding that the conditions contained in subdivision C 1 of § 16.1-283 were proven by clear and convincing evidence and that termination of the father's parental rights was in the child's best interests; the father did not seek custody of the child after his birth, he only visited the child a few times, and he was incarcerated for the majority of the child's life. Anderson v. Alexandria Dep't of Human Servs.,, 2008 Va. App. LEXIS 179 (Apr. 15, 2008).

Clear and convincing evidence proved that the termination of a mother's residual parental rights to her children under subsection B of § 16.1-283 was in their best interests, including evidence that: (1) she failed to protect one child from sexual abuse; (2) she seriously neglected them both; (3) in 2 years, she had made little progress towards the goals precedent to reunification; and (4) the children had made significant progress since being placed with a foster family that wanted to adopt them. Knight v. City of Suffolk Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 8 (Jan. 13, 2009).

In a case in which a father argued that the trial court did not find that he was an unfit parent and that, in the absence of that finding, the law presumed the best interest of the child would be served when in the custody of the natural parent, since the trial court found that the factors listed in § 16.1-283 were present, it did not have to make a further finding of parental unfitness, and a finding that the factors existed was tantamount to a finding that the father was an unfit parent. Kilby v. Culpeper County Dep't of Soc. Servs., 55 Va. App. 106, 684 S.E.2d 219, 2009 Va. App. LEXIS 483 (2009).

Trial court did not err in terminating a mother's residual parental rights because the record supported the trial court's finding that the evidence proved by clear and convincing evidence that the mother's parental rights to the child had to be terminated and that the termination of her parental rights was in the child's best interests; while the mother participated in some of the foster care plan requirements and services, the evidence clearly proved that she had been unwilling or unable to remedy substantially the conditions that led to or required the continuation of the child's foster care placement during the period in which she had been offered rehabilitation services. Ayers v. Buckingham County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 526 (Dec. 1, 2009).

Decision to terminate the mother's parental rights to her two sons was in the best interests of the children because during the time the mother had custody of the children, she did not attend to their basic needs or take advantage of the services offered to her, and the mother deliberately violated a court order not to remove the children from Virginia. Seiwell v. Harrisonburg Rockingham Soc. Servs. Dist.,, 2009 Va. App. LEXIS 506 (Nov. 10, 2009).

It was in a child's best interests to terminate her mother's parental rights where: (1) the mother was unable to care for the child due to her substance abuse problems; (2) the Winchester Department of Social Services had provided opportunities for the mother to enter substance abuse treatment programs, but she did not attend an outpatient program and twice left the inpatient program against therapeutic advice; (3) the mother repeatedly tested positive for drugs; and (4) the child had been in foster care for more than 12 months, and it was not in her best interests to wait longer to find out whether the mother would be able to resume her responsibilities. Owens v. Winchester Dep't of Soc. Servs.,, 2012 Va. App. LEXIS 369 (Nov. 20, 2012).

Trial court's best interest determination was not plainly wrong or without evidence to support it, as a rational fact finder could have determined that cognitively impaired parent with anger management issues and a heightened propensity for violence was unfit to address the unique special needs of three children with whom he had relatively little interaction over the past four years, and thus, the termination of the father's parental rights was proper. Davis v. Stafford Cty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 217 (Aug. 22, 2017).

Trial court did not err in determining that it was in the child's best interest to terminate the mother's parental rights, as the mother had not had any contact with the child due to her incarceration, the child had special needs that were being met by the foster family that has had the child since he was two days old, the child would be three years old when the mother is released from prison, and the mother had no plans for employment or housing when released and did not have a driver's license. Crump v. Portsmouth Dep't of Soc. Servs., No. 0898-17-1, 2017 Va. App. LEXIS 275 (Nov. 7, 2017).

As the circuit court did not foreclose the possibility that a father would ever again be awarded visitation with his child, its order of no visitation unless certain conditions were met did not constitute a de facto termination of the father's parental rights; the circuit court explicitly provided the father with a path for reunification with the child, and because the circuit court properly utilized the best-interests standard, it did not violate the father's constitutional rights. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Termination of rights upheld. - Evidence was sufficient to support termination of mother's parental rights where it shows that her children have been in foster care since 1988, that the children were abused and neglected by their mother, that counseling, including substance abuse therapy and psychological testing, were required under the terms of the foster care plans, and that she complied sporadically, and, in at least one instance, only after being found in contempt of court. Hunter v. Commonwealth, No. 2592-92-3 (Ct. of Appeals Sept. 21, 1993).

Department of Social Services demonstrated by clear and convincing evidence that it was in child's best interest for parental rights to be terminated where mother's lifestyle and parental skills posed a serious and substantial threat to the health and development of her daughter, and precipitated the physical abuse of her daughter, and moreover mother's behavior during the time she regained custody of her daughter demonstrated that she was unable or unwilling to remedy the conditions which had caused her daughter's placement in foster care, and with respect to father, evidence established that the father had, without good cause, failed to remedy the conditions which led to foster care placement of his daughter and that he failed to provide for his daughter prior to his being incarcerated, and also failed to respond to rehabilitative efforts available to him. Bell v. Warren County Dep't of Social Servs., No. 2319-92-4 (Ct. of Appeals Aug. 3, 1993).

Clear and convincing evidence proved that defendant neglected his daughters and permitted them to be abused, that he suffered from a mental illness that constituted prima facie evidence of his neglect and abuse, that such neglect and abuse presented a serious and substantial threat to the girls' health and development, that defendant was unwilling to cooperate with the Department of Social Services for over 12 months to try to substantially remedy the conditions that led to the placement of the girls in foster care, and that it was in the best interest of the children not to be returned to defendant's care and custody; therefore, the trial court did not err in terminating defendant's parental rights to his daughters, pursuant to subsections B and C of this section. Hileman v. Winchester Dep't of Social Servs., No. 0320-93-4 (Ct. of Appeals, May 3, 1994).

Where mother received extensive services from Department of Social Services (DSS) and other agencies since 1977 but despite these services, her other four children suffered from severe neglect and abuse, including multiple instances of failure to thrive, and her parental rights to each were terminated and because of this history of abuse, her daughter was placed in the custody of DSS immediately after her birth and had never lived with the mother; the evidence indicated that mother was able to care for her own daily needs but that she was functioning at the highest level in which she could be expected to reach and she would never be capable of either caring for daughter independently or responding to her needs in an age-appropriate manner; moreover, daughter was attached to her foster parents, and removal from that home would cause her permanent harm; the trial court did not err in terminating the mother's parental rights. Jenkins v. Winchester Dep't of Social Servs., No. 1001-93-4 (Ct. of Appeals, May 17, 1994).

Where mother's parenting and housekeeping skills remained poor, despite the years of extensive services and assistance mother received through the Department of Social Services and the evidence demonstrated that mother's interactions with her children were mercurial and inconsistent and continued to exacerbate their emotional problems, the record contained sufficient credible evidence in support of the decision of the trial court terminating mother's parental rights. Durham v. Alexandria Dep't of Social Servs., No. 2176-93-4 (Ct. of Appeals June 7, 1994).

Where evidence proved that in the child's first six months of life, appellant visited her less than once a month, each time for an hour or less and was intoxicated on at least one of those occasions; more than 18 months passed before appellant saw his daughter again; he made no attempt to contact the Department of Social Services worker to arrange more frequent meetings; prior to his incarceration in 1992, appellant had no permanent address and failed to support the child; at the hearing, he indicated that he expected to be paroled sometime in 1995, but had made no plans to provide a home or care for the child upon his release; and the record also indicated that although the child has serious heart problems, appellant failed to complete necessary cardio-pulmonary resuscitation training, the Department established a prima facie case under this section for the termination of appellant's parental rights. Medley v. Giles County Dep't of Social Servs., No. 2170-93-3 (Ct. of Appeals May 31, 1994).

Where parent habitually abused intoxicating liquors to the extent that proper parental ability was seriously impaired and she, without good cause, had not responded to or followed through with recommended and available treatment which could have improved the capacity for adequate parental functioning, and where she had not responded to or followed through on appropriate rehabilitative efforts and services offered through Department of Social Services (DSS) or other agencies is prima facie evidence that the abusive or neglectful conditions have not been corrected, then her parental rights were properly terminated. Babb v. Scott County Dep't of Social Servs., No. 1585-95-3 (Ct. of Appeals Jan. 23, 1996).

The trial court properly found, by clear and convincing evidence, that it was in the best interests of the child to terminate the mother's parental rights where the mother had been unwilling or unable, without good cause and for a period exceeding 12 months, to remedy the conditions which led to the child's foster care placement, notwithstanding the reasonable and appropriate efforts of the social services district, and where the mother, without good cause, failed to make reasonable progress towards the elimination of the conditions which led to the child's foster care placement in accordance with a jointly-designed foster care plan, and where the mother was unwilling or unable to stay out of a relationship which was demonstrably abusive to herself and her children. Gentry v. Harrisonburg-Rockingham Social Services Dist., No. 1340-97-3, 1998 Va. App. LEXIS 156 (Ct. of Appeals March 17, 1998).

A mother's parental rights were properly terminated on the basis that she had been unwilling or unable within a reasonable period not to exceed 12 months to remedy substantially the conditions which led to the child's foster care placement, despite reasonable and appropriate efforts from the Division of Social Services, where (1) she failed to recognize, acknowledge, or accept any responsibility for her children's neglect or to see any need for improving her parenting or relational skills, and (2) although the mother testified that she addressed the problem of the father's alcoholism by separating from him, the evidence indicated that she continued to have an ongoing relationship with him. Datt v. Alexandria Division of Social Services, No. 2276-97-4 (Ct. of Appeals April 28, 1998).

A father's parental rights were properly terminated on the basis that the neglect suffered by the children presented a serious and substantial threat to their life, health or development and that it was not reasonably likely that the conditions which resulted in their neglect could be substantially corrected or eliminated within a reasonable period of time where (1) the father was addicted to alcohol, (2) although alcohol related services were provided to him, he was intoxicated during court appearances and visitation times, and (3) the children suffered neglect and abuse while in the custody of their parents, but thrived while in foster care. Datt v. Alexandria Division of Social Services, No. 2413-97-4 (Ct. of Appeals April 28, 1998).

Evidence was sufficient to support the termination of mother's parental rights where (1) child was placed in foster care as a result of mother's arrest for shoplifting, at which time the child was with the mother, (2) at the time the child came into foster care, he could not read, write, or recognize numbers, although he was eight years old, he used an alias and was trained to lie and steal by mother, and he suffered from personality and emotional problems, (3) prior to the time the child was placed in foster care, he and the mother did not have stable housing, sometimes stayed in hotels, where the child was locked in the bathroom as the mother "dated" men for money and sometimes slept under bushes, and (4) the mother did not cooperate with therapy for herself or work with the counselors and school personnel seeking to provide assistance to her child, failed to attend family counseling sessions, and was combative with DSS personnel. Conner v. Arlington County Dept. of Social Services, No. 0460-98-4 (Ct. of Appeals Sept. 8, 1998).

Evidence was sufficient to support the termination of the parental rights of a mother and father with regard to their special needs child, based on the parents' inability to adequately supervise the child where (1) neither parent successfully complied with the requirements set out in the foster care service plans, (2) the father was hostile and threatening to those who tried to assist him and his son, (3) the mother was not as hostile as father, but was unwilling or unable to work with the district and professionals in order to address the issues relevant to her son's special needs, (4) neither the mother nor the father demonstrated that they recognized or understood the extent of services needed by their child, and (5) expert testimony indicated that both parents would have difficulty dealing with the special needs of their child due to numerous problems each of them presented as documented in the record of the case. Lowery v. Harrisonburg-Rockingham Social Servs. Dist., No. 0661-98-3 (Ct. of Appeals Sept. 29, 1998).

Evidence was sufficient to support the termination of the parental rights of a father where (1) despite evidence of domestic violence, the father admitted only that he had problems with alcohol, but denied that he had problems with domestic violence, (2) the father's prognosis for improvement was poor, and he was unable to work with others, unable to accommodate others, and unable to modify his behavior, (3) the father completed several portions of the programs required by the department, but did so with such resistance that the services were ineffective, (4) the children at issue received poor care while in their parents' custody and required permanence and consistency in a home with proper limits. Zavala v. Arlington County Dep't of Human Servs., No. 1428-98-4 (Ct. of Appeals Oct. 6, 1998).

The parental rights of a mother with regard to her three children were properly terminated where (1) her two older children were taken into emergency, short-term foster care that her apartment lacked heat and that the extension cords used to supply electricity were a fire hazard, (2) once in foster care, the children disclosed that they had been sexually abused by their father, (3) the mother continued bi-weekly visits with the children and completed the parenting classes required under the foster care service plan, but did not believe the children's allegations of sexual abuse, blamed them for separating the family, and urged them to recant what they had said, and (4) witnesses for the department testified that both older children had suffered sexual abuse at the hands of their father and, as a result, had suffered serious emotional damage. Gallupe v. Roanoke City Dept. of Social Services, No. 0515-98-3 (Ct. of Appeals Dec. 15, 1998).

The parental rights of a mother were properly terminated where (1) the child was found wandering along a busy street while the mother, intoxicated was unaware that he was missing, (2) the child was also bruised and beaten by his stepfather with a belt and exposed to domestic violence between the mother and the stepfather, (3) the mother participated in some services offered by the division and tested negative for drugs for 13 months, but she subsequently refused drug screening and additional services, (4) the mother refused to avoid contact between the child and the stepfather, (5) the child was attached to his foster parents, and (6) visits with the mother caused much anxiety, expressed by acting out at home and in school. Allen v. Lynchburg Division of Social Services, No. 1209-98-3 (Ct. of Appeals Dec. 15, 1998).

The parental rights of a mother were properly terminated where (1) the child suffered serious neglect and emotional abuse at the hands of her parents and suffered from severe depression and post-traumatic stress disorder, and (2) the mother declined specific offers of in-home services and treatment for the child at a time when medical professionals indicated it was necessary to provide those services as soon as possible and also declined alcohol abuse treatment. Whittaker v. Roanoke County Dept. of Social Services, No. 1650-98-3 (Ct. of Appeals Dec. 15, 1998).

Evidence supported the termination of a mother's parental rights where (1) the mother's youngest child died of septic shock caused by severe neglect, (2) at the time he was placed in foster care, the child at issue was seven months old and was severely developmentally delayed, (3) despite the efforts of the division to promote the parent-child relationship, the mother failed to maintain contact with the child, (4) the child had recovered from his early delays and had bonded with his foster family, and (5) the child's therapist opined that removing the child from his foster family would be detrimental to him. Padilla v. Norfolk Division of Social Services, No. 1388-98-1, 1999 Va. App. LEXIS 48 (Jan. 26, 1999).

Evidence supported termination of mother's parental rights, where children had been in foster care more than two years, and mother refused to cooperate with agencies seeking to assist her and demonstrated little desire to work towards return of children. Eaton v. Department of Social Servs., No. 0868-99-3 (Ct. of Appeals July 20, 1999).

Termination of father's parental rights was in child's best interests, where evidence established that father never complied with requirements of foster care plan and refused any assistance offered by Department of Social Services. Terry v. Franklin County Dep't of Social Servs., No. 1527-99-3 (Ct. of Appeals Oct. 5, 1999).

Evidence established that mother failed or was unable to make progress toward elimination of conditions that led to children's foster care placement. Smith v. Roanoke City Dep't of Social Servs., No. 0830-99-3 (Ct. of Appeals Oct. 5, 1999).

Termination of parental rights was appropriate where trial court could reasonably find that conditions that led to mother's abuse of daughter were not going to change in near future, despite assistance and services provided to mother. Harvey v. Lynchburg Div. of Social Servs., No. 2691-98-3 (Ct. of Appeals Oct. 5, 1999).

Evidence supported termination of mother's parental rights for failure to maintain contact with her child in foster care, failure to remedy problems leading to foster care placement, and likelihood that conditions which caused neglect could not be substantially corrected in a reasonable period of time. Malave v. Fairfax County Dep't of Family Servs., No. 2708-98-4 (Ct. of Appeals Oct. 19, 1999).

Termination of mother's parental rights was justified, as trial court was not required to place more credibility in her proposed plans for future than warranted by her actions in past, and other evidence demonstrated that increased contact with mother, without an improvement in her parenting and anger management skills, would not be in children's best interests. Bivins v. New Kent County Dep't of Social Servs., No. 0304-99-2 (Ct. of Appeals Nov. 2, 1999).

Termination of mother's parental rights was supported by evidence that she failed to implement recommended changes in her behavior or to contact available services, and that abusive home environment, which was underlying cause of children's placement in foster care, remained unchanged. Knight v. Bedford County Dep't of Social Servs., No. 1841-99-3 (Ct. of Appeals Nov. 23, 1999).

Department of Social Services proved by clear and convincing evidence that it was not reasonably likely that conditions which resulted in children's physical and sexual abuse were substantially corrected or eliminated, so as to allow their safe return to mother's custody. Lewis v. Fredericksburg Dep't of Social Servs., No. 1121-99-2 (Ct. of Appeals Nov. 30, 1999).

Father's prospective plans were unclear and his past history unpersuasive that he would make the necessary changes in his life to provide for his daughter if she were returned to him, and department of family services presented clear and convincing evidence that termination of father's parental rights was in the best interests of the child. Foreman v. Fairfax County Dep't of Family Servs., No. 1432-99-4 (Ct. of Appeals Dec. 14, 1999).

Termination of father's parental rights was in child's best interests, where social service agency's attempts to render stabilization services to assist him in remedying conditions which led to his daughter's foster care placement were thwarted by his constant moving, his relocation to Pennsylvania, and his unwillingness and inability to seek help with his mental health problems. Jackson v. Richmond Dep't of Social Servs., No. 0648-99-2 (Ct. of Appeals Dec. 28, 1999).

Termination of mother's parental rights was in child's best interests, where her mental health problems contributed to her inability to successfully parent her daughter, and it was unlikely that mother's problems would abate in future given her inability to maintain a treatment program. Jackson v. Richmond Dep't of Social Servs., No. 0226-99-2 (Ct. of Appeals Dec. 28, 1999).

The record supported the trial court's determination that a father's parental rights should be terminated where the father failed to meet his obligations under the foster care plans, failed to complete the necessary parenting class or alcohol treatment program and failed to seek alternative treatment until after his parental rights were terminated in the juvenile and domestic relations district court and where the testimony in the mother's parental rights termination trial, transcripts of which were introduced into evidence, documented incidents of the father's drinking and abusive behavior. Calloway v. Bedford County Dep't of Soc. Servs., No. 2687-99-3, 2000 Va. App. LEXIS 209 (Ct. of Appeals Mar. 21, 2000).

A father's parental rights were properly terminated where the record clearly demonstrated that the three children had special needs because of their history of abuse and required a greater amount of supervision; and that the father had failed to comply with the terms of the foster care plan related to the improvement of his parenting skills; that the parents were unable to provide both the necessary support and structured environment their children needed and that the parents had failed to address the issues that led to the removal of their children. Baker v. Fredericksburg Dep't of Social Servs., No. 1089-99-2, 2000 Va. App. LEXIS 203 (Ct. of Appeals Mar. 21, 2000).

A father's parental rights were properly terminated where the trial court had found by very clear and convincing evidence that the children had been neglected or abused; that this neglect and abuse was a serious threat to their lives, health, or development, and that the father, without good cause, did not respond to or follow through with appropriate, available, and reasonable rehabilitative efforts, and that he, without good cause, was unwilling or unable within a reasonable period of time to remedy substantially the conditions that led to the children's placement in foster care and had failed, without good cause, to communicate with the children for a period of twelve months. Stergiou v. Frederick County Dep't of Social Servs., No. 0156-99-4, 2000 Va. App. LEXIS 202 (Ct. of Appeals Mar. 21, 2000).

Where the mother took no affirmative steps until one year after the children's placement in foster care and where the evidence showed that despite DSS's assistance, the mother failed to participate in individual counseling, refused to follow through with recommendations made by professionals working with her, and failed to secure stable employment or safe housing for herself let alone her children, the record supported the trial court's finding that the mother failed to remedy within one year of the children's placement in foster care the conditions that led to that placement. Dimauro v. Virginia Beach Dep't of Social Servs., No. 1533-99-1, 2000 Va. App. LEXIS 267 (Ct. of Appeals Apr. 11, 2000).

Where, despite services provided, father failed to meet his obligations under foster care plan, and there was no indication that underlying problems of substance abuse and domestic violence were substantially corrected or eliminated, termination of his rights would be upheld. Wilson v. Alexandria Div. of Social Servs., No. 1839-99-4 (Ct. of Appeals Feb. 8, 2000).

Termination of father's parental rights was affirmed, where father had had no contact with child for years, provided no support and made no attempt to plan for child's future, and child had no recollection of father. Fields v. Hopewell Dep't of Social Servs., No. 1936-99-2 (Ct. of Appeals Feb. 8, 2000).

Termination of father's parental rights was affirmed, where he failed to meet his obligations under foster care plans and complete necessary parenting class, and he did not complete his alcohol treatment program or seek alternative treatment until after his parental rights were terminated in juvenile and domestic relations district court. Calloway v. Bedford County Dep't of Social Servs., No. 2687-99-3 (Ct. of Appeals Mar. 21, 2000).

Where department presented clear and convincing evidence that children suffered from neglect and that, notwithstanding services provided, it was not reasonably likely that conditions could be substantially corrected to allow their safe return to mother's care within a reasonable time, termination of mother's parental rights would be upheld. Patterson v. Nottoway County Dep't of Social Servs., No. 2528-99-2 (Ct. of Appeals Mar. 28, 2000).

A mother's parental rights had been properly terminated where the evidence presented to the trial court supported its findings that between 1989 and 1995 the department of social services and at least eighteen agencies provided rehabilitative services to the family in an effort to remedy the children's neglect and to assist the mother in developing good parenting skills, that despite the numerous services provided, the mother was unable or unwilling to provide the extensive care and supervision required by the children, that the mother functioned at a limited intellectual level and failed to comprehend the depth of the children's needs and that, in light of the mother's limitations as well as the children's extraordinarily high needs, there was no reasonable expectation that the mother could provide the care needed by the children. Ripley v. Charlottesville Dep't of Social Servs., No. 2879-99-2, 2000 Va. App. LEXIS 307 (Ct. of Appeals Apr. 25, 2000).

A mother's parental rights were properly terminated where the evidence established that the mother was mildly retarded and suffered from a pyschological disorder, that the child suffered from profound cognitive and learning disabilities, speech, language and hearing deficiencies, mild mental retardation, brain dysfunction and various mental and emotional disorders, that the mother repeatedly left the child alone and unsupervised despite the continuing attempts by the department of family services to advise her of his special needs and that the department and other agencies had made reasonable and appropriate efforts over a period of several years in an attempt to work with the mother and remedy the numerous conditions which led to the foster care placement of the child but that the mother had made very little, if any, progress in remedying these conditions. Ghasem v. Fairfax County Dep't of Family Servs., No. 2537-99-4, 2000 Va. App. LEXIS 339 (Ct. of Appeals May 9, 2000).

It is irrelevant to the trial court's determination under subdivision C 2 that there was no evidence that defendant abused the children prior to their placement in foster care. Instead, where the Department of Social Services proved by clear and convincing evidence that termination of defendant's parental rights was in the best interests of the children and that he failed, without good cause, to make substantial progress towards the elimination of the conditions which led to the children's foster care placement in accordance with his obligations under and within the time limits set out in the foster care plan, the court upheld termination of his parental rights. Terry v. Roanoke City Dep't of Soc. Servs., No. 3091-99-3, 2000 Va. App. LEXIS 420 (Ct. of Appeals June 6, 2000).

Department of Social Services (DSS), established a prima facie case under this section as to all four of father's children when it proved that he was convicted of the malicious wounding of one of them; while DSS did not present evidence relating to the other three children during the hearing, relevant information concerning each of them was set out in other parts of the record and the trial court's finding by clear and convincing evidence that the termination of parental rights was in the best interest of each of the four children was supported by evidence in the record. Johnson v. Roanoke City Dep't of Soc. Servs., No. 0604-00-3, 2000 Va. App. LEXIS 471 (Ct. of Appeals June 27, 2000).

A mother's rights were properly terminated where the record demonstrated that the department of social services provided services to assist the mother and her husband beginning in 1992, that despite these services, the mother failed to make substantial progress towards improving her parenting skills, establishing a stable home life, or becoming financially self-sufficient, that her employment was sporadic, in part due to periods of incarceration, that she briefly participated in individual counseling with some regularity until January 1995, that she refused to attend parenting classes, that when the mother visited with the children, the visits were often marked by little or negative interaction, that, with some regularity, the mother failed to appear for scheduled visitation or reduced the time allotted for visitation by arriving late or leaving early and that she failed to respond to the attempts of one child's therapist to contact her. Reid v. Loudoun County Dep't of Soc. Servs., No. 3074-99-4, 2000 Va. App. LEXIS 515 (Ct. of Appeals July 18, 2000).

The record supported the trial court's findings that termination of a father's parental rights was in the children's best interests where the father had failed to remedy the conditions which led to foster placement, had failed to attend twenty-six scheduled mediation meetings, and had not attended parenting classes and substance abuse counseling. Miller v. Richmond Dep't of Soc. Servs., No. 0320-00-2, 2000 Va. App. LEXIS 541 (Ct. of Appeals July 25, 2000).

A father's parental rights were properly terminated where the evidence established that his son was born prematurely, that both the child and the mother tested positive for cocaine, that the child remained in the hospital for 42 days and the father visited only 4 times and telephoned 11 times, that the father never responded to letters sent by a social worker or exercised visitation rights during the time the department of social services had custody of the child, that the father would not be released from incarceration for selling cocaine for three years and that a change in placement would disrupt the child's primary attachment relationship with his foster family and could result in traumatization with long term psychological consequences. Turner v. Fredericksburg Dep't of Social Servs., No. 2532-00-2, 2001 Va. App. LEXIS 163 (Ct. of Appeals Mar. 27, 2001).

A mother's parental rights were properly terminated where every diagnosis revealed that she suffered from chronic paranoid schizophrenia, yet she refused to accept the diagnoses and failed to maintain a long-term relationship with or comply with a course of treatment from one psychiatrist and where she failed to demonstrate the ability or desire to cooperate or comply with the mental health professionals or with social service workers who needed to monitor her progress. Wright v. Alexandria Div. of Soc. Servs., No. 1513-00-4, 2000 Va. App. LEXIS 790 (Ct. of Appeals Dec. 5, 2000).

A mother's residual parental rights were properly terminated where the department of social services had provided reasonable and appropriate social, medical, mental health and other rehabilitative services to the mother but she chose not to take advantage of them. May v. Virginia Beach Dep't of Soc. Servs., No. 0461-00-1, 2000 Va. App. LEXIS 847 (Ct. of Appeals Dec. 28, 2000).

Evidence that mother failed to provide adequate shelter for two minor chidren, refused to cooperate with Social Services' attempts to develop a treatment plan, would not get the younger child immunized, and would likely not be able to improve her parenting skills, was sufficient to support trial court's ruling terminating mother's residual parental rights in the children. Perkins v. Lynchburg Div. of Soc. Servs., No. 1080-01-3, 2001 Va. App. LEXIS 514 (Ct. of Appeals Sept. 18, 2001).

Mother's failure over a five year period to avail herself of social services offered in an attempt to reunite the mother with her two minor children justified termination of the mother's parental rights in the children. Rayeford v. City of Portsmouth Dep't of Soc. Servs., No. 1662-01-1, 2001 Va. App. LEXIS 523 (Ct. of Appeals Sept. 25, 2001).

Under subdivision C 2 of this section, a trial court properly terminated a mother's parental rights where she had been unwilling or unable within a reasonable period of time, not to exceed one year from the date her child was placed in foster care, to substantially remedy the conditions which led to or required continuation of the child's foster care placement. DeJesus v. Richmond Dep't of Soc. Servs., No. 1061-01-2, 2001 Va. App. LEXIS 529 (Ct. of Appeals Sept. 25, 2001).

Under subdivision C 2 of this section, the trial court properly terminated father's parental rights where the father had been unwilling within a reasonable period of time, well over 12 months from the date his children were placed in foster care, to substantially remedy the conditions which led to the children's foster care placement. Wilson v. Petersburg Dep't of Soc. Servs., No. 1514-01-2, 2002 Va. App. LEXIS 11 (Ct. of Appeals Jan. 8, 2002).

Clear and convincing evidence showed that mother had failed to maintain contact with and to provide or substantially plan for the future of her two children for six months or more; as a result, the trial court did not err in terminating her parental rights in the two children. Jones v. Petersburg Dep't of Soc. Servs., No. 1543-01-2, 2002 Va. App. LEXIS 12 (Ct. of Appeals Jan. 8, 2002).

Trial court did not err in terminating mother's parental rights after hearing evidence that she moved numerous times while her two children were in foster care, used drugs, did not complete a court-ordered anger management program, did not provide for her children, and did not substantially plan for their futures, as the evidence showed she was unable to substantially remedy the conditions that led to the children's initial placement in foster care. Jones v. Petersburg Dep't of Soc. Servs., No. 1543-01-2, 2002 Va. App. LEXIS 12 (Ct. of Appeals Jan. 8, 2002).

Trial court did not err in terminating mother's residual parental rights where she was a drug user, there was a record of violence in the home and mother's contact with child had stopped. Ingram v. Richmond Dep't of Soc. Servs., No. 1890-01-2, 2002 Va. App. LEXIS 15 (Ct. of Appeals Jan. 8, 2002).

Trial court erred in denying Division of Social Services' petition to terminate the mother's parental rights to her minor son, as the record did not support the finding that the mother made substantial efforts to remedy the conditions leading to foster care of the son where the mother failed to complete mental health and substance abuse counseling, to obtain adequate housing or stable employment, or to cooperate in other rehabilitative efforts by social, medical or other agencies to reduce or eliminate the neglect or abuse of the son. Lynchburg Div. of Soc. Servs. v. Fenimore, No. 0704-02-3, 2002 Va. App. LEXIS 579 (Ct. of Appeals Oct. 1, 2002).

Trial court did not abuse its discretion in determining a change in a foster care plan to adoption was in a child's best interests where clear and convincing evidence showed that the mother failed to remedy the conditions leading to the child's foster care placement, despite offered assistance by the social services department. Fitzgerald v. Montgomery County Dep't of Soc. Servs., No. 0475-02-3, 2002 Va. App. LEXIS 442 (Ct. of Appeals July 30, 2002).

Mother's parental rights were properly terminated where: (1) children had been in foster care almost three years; (2) during part of that time, the mother had been imprisoned for child neglect and assault of one child; (3) the mother failed to participate in most of the recommended parenting programs; (4) the mother was at risk for abusing the children; and (5) the mother made no progress toward meeting the children's significant emotional or psychological needs. Wilson v. James City County Div. of Soc. Servs., No. 0362-02-1, 2002 Va. App. LEXIS 546 (Ct. of Appeals Sept. 10, 2002).

Mother's parental rights were terminated where: (1) the mother refused almost all of the services offered by the Department of Social Services; (2) the mother failed to obtain safe housing and regular employment; (3) the mother failed to complete counseling and therapy; and (4) the mother failed to regularly visit her daughter. Harper v. Va. Beach Dep't of Soc. Servs., No. 1385-02-1, 2002 Va. App. LEXIS 547 (Ct. of Appeals Sept. 10, 2002).

Father's parental rights were properly terminated where: (1) the children had been in foster care almost three years, and the father was imprisoned for 17 months of that time; (2) the father did not have consistent housing; (3) the father did not complete the recommended parenting programs; (4) the father admitted that he was not in a position to care for the children; and (5) the father was unable to remedy within a reasonable time the conditions that led to his children's placement in foster care. Wilson v. James City County Div. of Soc. Servs., No. 0270-02-1, 2002 Va. App. LEXIS 548 (Ct. of Appeals Sept. 10, 2002).

The trial court did not err in finding that mother did not remedy the conditions leading to her child's placement in a foster home where she continued to use drugs, did not complete parenting classes, did not properly house her children, and allowed another child, an infant, to die of hypothermia. Simpson v. Richmond Dep't of Soc. Servs., No. 0109-02-2, 2002 Va. App. LEXIS 329 (Ct. of Appeals June 4, 2002).

Decision terminating parental rights was affirmed where father's failure to visit regularly with his daughter, his failure to comply with testing or attend counseling, his failure to plan for her future, and his lengthy incarceration underscored his admitted abandonment of his daughter. Lushbaugh v. Richmond Dep't of Soc. Servs., No. 0174-02-2, 2002 Va. App. LEXIS 340 (Ct. of Appeals June 11, 2002).

Where evidence showed that a mother was offered the services necessary to help her remedy the conditions that resulted in the placement and continuation of her children in foster care and that she failed, without good cause, to substantially remedy the conditions which caused that continuation, the termination of mother's parental rights would be upheld. Terry v. Richmond Dep't of Soc. Servs., No. 3322-01-2, 2002 Va. App. LEXIS 356 (Ct. of Appeals June 18, 2002).

Termination of the father's parental rights was in his children's best interest as the father, despite the fact that a social services agency made reasonable and appropriate efforts to help the father remedy the conditions which led to or required the continuation of the children's foster care placement, without good cause, failed to substantially remedy those conditions. Van Buren v. City of Richmond Dep't of Soc. Servs., Nos. 2618-02-2 through 2621-02-2, 2003 Va. App. LEXIS 250 (Ct. of Appeals Apr. 29, 2003).

Where a mother, without good cause, failed to respond to extensive rehabilitative efforts, the Department of Social Services properly determined adoption and parental rights termination was proper after the mother had a reasonable time to correct problems. Chandler v. Staunton-Augusta County Dep't of Soc. Servs., Nos. 2853-02-3 through 2856-02-3, 2003 Va. App. LEXIS 295 (Ct. of Appeals May 13, 2003).

Clear and convincing evidence proved both that the government agency made reasonable and appropriate efforts to help the mother remedy the conditions which led to or required continuation of the foster care placement of her children and that the mother without good cause failed to substantially remedy those conditions within a reasonable period of time; accordingly, the trial court did not err in terminating the mother's parental rights in her daughters. Atkins v. Richmond Dep't of Soc. Servs., Nos. 3398-02-2, 3399-02-2, 2003 Va. App. LEXIS 314 (Ct. of Appeals May 27, 2003).

Termination of a mother's parental rights was affirmed where the mother had been offered an array of services and advise to remedy the conditions which led to the placement of her children, including, inter alia, parent/child nurturing classes, substance abuse evaluations, counseling, and in-home assistance services, but failed remedy the situation. Stanley v. Amherst County Dep't of Soc. Servs., No. 0039-03-3, 2003 Va. App. LEXIS 320 (Ct. of Appeals June 3, 2003).

After the subject children were found neglected or abused and placed in foster care due to abuse, as shown by various bruising, and neglect, as shown by severe developmental delays, and their mother refused to acknowledge that she had in any way contributed to the children's placement, and refused to cooperate with a variety of efforts to rehabilitate her parenting style, there was clear and convincing evidence that (1) the children were judicially found to be neglected or abused and placed in foster care pursuant to a court commitment; (2) the department of social services had, before the children's placement, tried to rehabilitate the mother; (3) termination of parental rights was in the children's best interests; (4) their neglect or abuse presented a serious threat to their life, health or development; and (5) it was not reasonably likely that the conditions causing the neglect or abuse could be substantially corrected or eliminated so as to allow a safe return to their mother within a reasonable time, as the mother, without good cause, did not respond to or follow through with available rehabilitative efforts designed to reduce, eliminate or prevent neglect or abuse of the children, constituting prima facie evidence of the conditions for termination of parental rights in subdivision B 2 of § 16.1-283. Hansberry v. Charlottesville Dep't of Soc. Servs., Nos. 0117-03-2 - 0120-03-2, 2003 Va. App. LEXIS 336 (Ct. of Appeals June 17, 2003).

Department of Social Services presented clear and convincing evidence satisfying the statutory requirements of § 16.1-283 and established that termination of the mother's parental rights was in the children's best interests because (1) the Department made reasonable and appropriate efforts to help the mother remedy the conditions that both led to and required continuation of the children's foster care placement, (2) the mother failed to make reasonable progress toward eliminating the conditions which led to the placement because (a) by her own admission, the mother continued to use drugs for two years after three of her children were removed from her care, (b) the mother participated in at least five substance abuse programs, (c) the mother marginally completed one program and was discharged from several others for non-compliance, and (d) the mother failed to maintain steady employment or obtain stable and adequate housing for the children, (3) the three older children had been in foster care for over two and one-half years, were doing well there, and were placed together with one family who was interested in adopting them, and (4) the youngest child had been in foster care for one and one-half years, since he was four months old, and his foster family was interested in adopting him. Gibson v. Newport News Dep't of Soc. Servs., No. 0378-03-1, 2003 Va. App. LEXIS 434 (Ct. of Appeals Aug. 12, 2003).

Trial court's finding, that the neglect and abuse suffered by the daughter as a result of the mother's care was not reasonably likely to be substantially corrected so as to allow the daughter's safe return to the mother, was supported by clear and convincing evidence. Harvey v. City of Richmond Dep't of Soc. Servs., No. 0637-03-2, 2003 Va. App. LEXIS 448 (Ct. of Appeals Aug. 26, 2003).

Termination of parental rights was in the best interests of the child as required by subdivision C 2 of § 16.1-283 because the homeless and unemployed mother had not enrolled in parenting classes and had not sought substance abuse and mental health evaluations. Baker v. Richmond Dep't of Soc. Servs., No. 0598-03-2, 2003 Va. App. LEXIS 459 (Ct. of Appeals Sept. 2, 2003).

Since the decision of the trial court to involuntarily terminate the parental rights of appellant mother was supported by clear and convincing evidence after it was shown that her parental rights as to three of her other children had been involuntarily terminated, the decision of the trial court was affirmed and the court did not have to address the mother's argument that termination was not in her daughter's best interests because the department of social services had not offered the mother any services and had not presented any evidence that she failed to remedy the conditions that required the daughter's placement in foster care. Jenkins v. City of Newport News Dep't of Soc. Servs., No. 0428-03-1, 2003 Va. App. LEXIS 460 (Ct. of Appeals Sept. 2, 2003).

Evidence that mother failed to take medication prescribed for her bipolar disorder, did not comply with conditions imposed as part of foster care plans, did not attend court-ordered anger management classes, and was arrested for assault on four occasions while her children were in foster care was sufficient to support trial court's judgment terminating her parental rights. Sanchez v. Richmond Dep't of Soc. Servs., Nos. 1125-03-2, 1677-03-2, 2003 Va. App. LEXIS 489 (Ct. of Appeals Sept. 30, 2003).

Where there was extensive testimonial evidence demonstrating the severity of mother's mental illness and that the illness prevented her from caring for her child, the trial court did not err in terminating the mother's parental rights pursuant to subsection B of § 16.1-283. Singleton v. Richmond Dep't of Soc. Servs., No. 0809-03-2, 2003 Va. App. LEXIS 536 (Ct. of Appeals Oct. 28, 2003).

Where a father pleaded guilty to felony child abuse of his son and did not preserve an argument under Va. Sup. Ct. R. 5A:18 that the abuse resulted in "serious bodily injury," termination of his parental rights under clause (iii) of subsection E of § 16.1-283 was in the best interest of his daughter. Charlton v. Tazewell County Dep't of Soc. Servs., No. 2448-03-3, 2003 Va. App. LEXIS 680 (Ct. of Appeals Dec. 23, 2003).

Termination of a mother's parental rights was approved as the department of social services presented clear and convincing evidence establishing that the termination of the mother's parental rights was in her child's best interests because of the mother's inability to maintain adequate housing and to provide a safe environment for the child over a two-year period. B. W. v. Richmond Dep't of Soc. Servs., No. 1659-03-2, 2003 Va. App. LEXIS 698 (Ct. of Appeals Dec. 30, 2003).

Evidence that the children were removed from the home and placed in foster care as a result of abuse and neglect, the children had been in a stable foster home for almost two years, the children adjusted well to the environment and were doing well in school, and the Department of Social Services offered the father approximately 22 months of appropriate and reasonable services which he failed to take full advantage of was sufficient to support termination of the father's residual parental rights. Rollins v. Alexandria Div. of Soc. Servs., No. 1426-03-4, 2004 Va. App. LEXIS 37 (Ct. of Appeals Jan. 28, 2004).

Termination of the father's parental rights was upheld after the evidence showed that the Spotsylvania Department of Social Services made numerous attempt to communicate with the father and got not indication of the father's desire to accept and complete the services offered until the hearing; in addition, the evidence showed that the father failed to maintain continuing contact with the children and did little to remedy the situation despite being advised of the necessary steps. Voage v. Spotsylvania Dep't of Soc. Servs., No. 1984-03-2, 2004 Va. App. LEXIS 43 (Ct. of Appeals Feb. 3, 2004).

Where a father failed to meet a reunification plan's goals, the Virginia Department of Social Services satisfied the requirements of subdivision C 2 of § 16.1-283 and established that termination of the father's parental rights was in the child's best interest. Perry v. Hampton Dep't of Soc. Servs., No. 2165-03-1, 2004 Va. App. LEXIS 74 (Ct. of Appeals Feb. 17, 2004).

Where a mother did not complete all of the ordered services, did not stabilize her living environment and mental health issues, had previously had her rights to another child terminated, and did not preserve a placement options claim under Rule 5A:18, the mother's parental rights were properly terminated. Brown v. City of Norfolk, Nos. 2529-03-1, 2530-03-1, 2004 Va. App. LEXIS 189 (Ct. of Appeals Mar. 2, 2004).

Evidence was sufficient to support the trial court's finding that the requirements of § 16.1-283 had been met, and that the termination of the mother's parental rights to her daughter was in the child's best interests where: (1) the mother had a severe mental illness, had been hospitalized repeatedly, and refused to cooperate in her treatment, (2) the mother refused to admit that her daughter was sexually abused by her son, although he admitted the charge, and often left her daughter with her son, (3) the child suffered from post-traumatic stress syndrome due to her mother's treatment of her, (4) the daughter was physically and emotionally neglected and abandoned by the mother, and (5) the mother refused to cooperate with the efforts of the department of social services to assist her. Abt-Barnett v. Chesterfield-Colonial Heights Dep't of Soc. Servs., No. 2949-03-2, 2004 Va. App. LEXIS 196 (Ct. of Appeals Apr. 27, 2004).

The trial court's order terminating the mother's parental rights stated that the trial court, based upon clear and convincing evidence, found it was in the child's best interests to terminate the mother's parental rights. Thus, the trial court made the necessary findings to support termination. Corprew v. Norfolk Soc. Servs., No. 0375-04-1, 2004 Va. App. LEXIS 416 (Ct. of Appeals Sept. 7, 2004).

Termination of a mother's parental rights was proper where the daughter was the victim of a pattern of ongoing trauma that resulted in psychological damage and adverse physical effects, including post-traumatic stress disorder, developmental delays, hair loss, and respiratory problems; the daughter's response to the stress was severe dissociation, which created a strong possibility that she would develop a personality disorder or a borderline personality disorder. Davis v. Lynchburg Dep't of Soc. Servs., No. 0875-04-3, 2004 Va. App. LEXIS 442 (Ct. of Appeals Sept. 14, 2004).

Order terminating a father's parental rights was upheld, as sufficient evidence supported the trial court's finding that such was in the best interest of his children, given his severe alcohol problem, his refusal to enter into a residential treatment program, and lack of desire to remedy the conditions that led his children to be placed in foster care. Harris v. Campbell County Dep't of Soc. Servs., No. 0741-04-3, 2004 Va. App. LEXIS 478 (Ct. of Appeals Oct. 5, 2004).

Where the Department of Social Services presented clear and convincing evidence satisfying the statutory requirements and establishing that termination of a mother's parental rights was in the children's best interests, due to the overwhelming record including examples of the mother's uncooperative, hostile, and unwilling attitude toward compliance and rehabilitation, evidence that she failed to remedy conditions. Copley v. Newport News Dep't of Soc. Servs., No. 2490-04-1, 2005 Va. App. LEXIS 75 (Ct. of Appeals Feb. 22, 2005).

Termination of the father's residual parental rights was in the child's best interest where the evidence showed that the father had been incarcerated for all but the first two weeks of the child's life, that during those two weeks, the father did not demonstrate an ability to parent the child, and there was no proof that the father would be released or able to resume care of the child in the near future. In addition, the child had become integrated into her foster family, which was interested in adopting her. Burns v. Charlottesville Dep't of Soc. Servs., No. 2523-04-2, 2005 Va. App. LEXIS 90 (Ct. of Appeals Mar. 8, 2005).

Termination of father's parental rights was affirmed where the evidence showed that the father failed to maintain contact with the child or provide for his future, failed to demonstrate a willingness or ability to alter the circumstances that necessitated the child's continued foster placement, was unable or unwilling, within the 30 months since the child was placed in foster care, to remedy substantially the conditions which led to or required continuation of foster care placement, and notwithstanding the Department's investigation into a placement with relatives showed that the relatives either would not accept responsibility for the child or could not provide a suitable home environment. Quesenberry v. Richmond Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 149 (Apr. 12, 2005).

County family welfare agency proved by clear and convincing evidence, that termination of the father's residual parental rights was in the best interests of the child, that reasonable and appropriate services had been offered to him, and that he had not remedied the conditions within a reasonable amount of time; accordingly, the trial court's judgment terminating the father's residual parental rights was affirmed. Boyd v. Fairfax County Dep't of Family Servs.,, 2005 Va. App. LEXIS 178 (May 3, 2005).

While the record showed that termination of the mother's parental might be warranted based on the best interests of the minor child, the appellate court did not need to consider whether the other requirement for proving termination pursuant to subdivision C 2 of § 16.1-283 was met, that the mother failed to timely remedy the conditions that led to the minor child's placement in foster care; instead, termination of her parental rights was proper pursuant to subdivision E 1 of § 16.1-283 because she did not challenge the trial court's finding, supported by the evidence, that termination was in the minor child's best interests and that the mother's parental rights in another son were terminated when that other son was six years old. Fields v. Dinwiddie County Dep't of Soc. Servs., 46 Va. App. 1, 614 S.E.2d 656, 2005 Va. App. LEXIS 236 (2005).

Trial court did not err in entering a judgment that terminated the biological father's rights in the son, especially since clear and convincing evidence supported a finding that termination was in the best interests of the child; the evidence showed that the father had long-standing mental health and substance abuse problems and that the child was thriving in his foster care family. Hayes v. Petersburg Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 431 (Nov. 1, 2005).

Because a mother did not obtain suitable housing or complete the required therapies that were provided by the Department of Social Services, the trial court properly terminated her parental rights to her children. Johnson v. County of Chesterfield Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 520 (Dec. 20, 2005).

Appellate court was not required to address the mother's argument that the trial court erred in terminating her parental rights under subsection C 2, since the termination of her parental rights under subsection E was amply supported by the record; the appellate court did not need to decide whether termination would also be proper under the alternative section since only one ground for termination was required. Canter v. City of Bristol Dep't of Soc. Servs., No. 0507-05-3, 2005 Va. App. LEXIS 501 (Ct. of Appeals Dec. 13, 2005).

Termination of residual parental rights to son was affirmed, and the trial court did not abuse its discretion by determining that changes in foster care plans were in the best interests of two other children; both parents moved frequently, were often unemployed, and failed to remedy their situation and the son was doing well in foster care. Northover v. City of Hampton Dep't of Soc. Servs.,, 2005 Va. App. LEXIS 499 (Dec. 13, 2005).

Trial court properly terminated a mother's parental rights to two of her three children where the mother had not found stable housing and had not maintained stable employment, and she refused to prohibit the children's stepfather, who had sexually abused the mother's oldest child, from having any contact with the children. Arrington v. Richmond Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 28 (Jan. 24, 2006).

Since the underlying factual basis for the mother's conviction for child abuse clearly constituted "aggravated circumstances" and there was voluminous evidence, including numerous lay and expert witnesses, termination of her parental rights was in the best interests of the children. Wimmer v. Roanoke City Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 18 (Jan. 17, 2006).

Where parents' rights to their son and the mother's rights to her daughter were terminated under § 16.1-283(B), 16.1-283(C)(1) and (2), and 16.1-283(E)(i) but the parents only challenged the sufficiency of the evidence to support the termination under § 16.1-283(B), their claims were rendered moot as § 16.1-283(B), (C), and (E) each provided for distinct, individual bases for termination of residual parental rights. Scott v. Charlotte County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 101 (Mar. 21, 2006).

Order terminating a mother's parental rights was supported by sufficient evidence which showed, inter alia, that the mother had obtained neither stable housing nor adequate employment in the nearly two years since the child entered foster care, that, while the child was in her care, the mother had exposed him to domestic abuse, yet since the child entered foster care, she had not completed parenting classes, attended a domestic violence program, or taken any tangible step that suggested that she would not expose the child to such future risk, that the mother had participated in therapy inconsistently, and that her depression remained unresolved; the evidence also showed that the child, on the other hand, was thriving under the care of his foster parents, even moving toward recovery from the lingering effects of his time spent in the mother's care, and the child's therapist testified that visitation with the mother was not in the child's best interest. Lutes v. Va. Beach Dep't of Human Servs.,, 2006 Va. App. LEXIS 120 (Mar. 28, 2006).

Although a district court did not base the termination of a father's parental rights on his convictions for sexual abuse against his daughter since the father had not yet been convicted, the proceeding before the circuit court on appeal was de novo, and the circuit court properly based its termination decision on the fact that the father had been convicted since the time of district court's decision; thus, termination of the father's parental rights was proper. Hargrove v. City of Hampton Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 106 (Mar. 21, 2006).

Termination of the mother's parental rights was supported by evidence that no family members were willing to care for the child or were suitable custodians for the child. The trial court's finding that the grandmother was not a suitable custodian was supported by evidence that the grandmother suffered from a variety of psychological problems, including bipolar disorder, and was not forthcoming with the mental health care provider who examined the grandmother about prior involvement with social services. Tarantini v. Rockbridge County Dep't,, 2006 Va. App. LEXIS 179 (May 9, 2006).

Because a child remained in foster care in excess of two years because the mother failed to cooperate with the Department of Family Services, failed to cooperate with the initial attempts to perform home studies, and refused to provide a plan for the child's care upon relocating to Texas, where she was unemployed and ultimately incarcerated, all while the child thrived in foster care, clear and convincing evidence supported a finding terminating her residual parental rights; hence, the trial court's order was summarily affirmed under Va. Sup. Ct. R. 5A:27. Watt v. Fairfax County Dep't of Family Servs.,, 2006 Va. App. LEXIS 224 (May 23, 2006).

Termination of appellants' parental rights was upheld where there was sufficient evidence that the neglect and abuse suffered by the child presented a serious and substantial threat to the child's life, health, or development; among other things, the physical structure of the family home was compromised and neither parent was committed as the primary caretaker for the child. St. Peter v. Isle of Wight County,, 2006 Va. App. LEXIS 277 (June 27, 2006).

An evaluator's conclusion that the mother lacked the ability to parent her child without assistance was borne out by her own behavior, including exposing the child to a family known to be abusive to children, admittedly breaking a car window in a fit of anger as she held the child in her arms, and leaving the child unattended on a second floor balcony. Given the opportunity to have unsupervised visitation with her child, the mother sexually abused the child. Greenway v. Craig County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 258 (June 13, 2006).

Trial court properly terminated a mother's parental rights to her two sons, where a social services agency proved by clear and convincing evidence that termination of the mother's parental rights was in the children's best interest. Both boys were exposed to improper sexual behavior and domestic violence. Jeen Calloway v. Lynchburg Div. of Soc. Servs.,, 2006 Va. App. LEXIS 318 (July 18, 2006).

Trial court properly terminated a father's residual parental rights to his two minor children; the record supported the trial court's finding that the children's best interests would be served by terminating the father's parental rights and that the father had failed to maintain continuing contact with the children and to substantially plan for their future, notwithstanding the efforts of a social services agency. Williams v. Chesapeake Dep't of Human Servs.,, 2006 Va. App. LEXIS 305 (July 11, 2006).

Termination of mother's parental rights was upheld where, inter alia, the mother admitted to continued drug use, including the usage of drugs and alcohol while pregnant, the mother had been incarcerated due to her own conduct, and it was not reasonably likely that the mother would substantially correct or eliminate the conditions that led to the children's placement in foster care. Butler v. Culpeper County Dep't of Soc. Servs., 48 Va. App. 537, 633 S.E.2d 196 (2006).

Record showed by clear and convincing evidence that a mother's parental rights should be terminated pursuant to § 16.1-283, and that the termination of her parental rights was in her child's best interest. The mother testified that even after almost two years she was not ready or able to care for her child, and although she was offered services and assistance, she failed to make any progress in finding stable employment or housing and failed to substantially plan for her child's future. Lassiter v. Children's Home Soc'y of Va.,, 2006 Va. App. LEXIS 447 (Oct. 10, 2006).

Trial court's termination of a mother's parental rights under subdivision C 2 of § 16.1-283 was supported by clear and convincing evidence that termination was in a child's best interests; the record showed that the child, born prematurely, failed to thrive under her mother's care but gained weight and developed properly after being placed in foster care, and there was no evidence that the mother would be able to resolve her medical and emotional issues sufficiently that she could once again care for the child. Green v. Greene County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 451 (Oct. 10, 2006).

Evidence that a mother's children had been in foster care for 18 months; that because of the abuse and neglect they suffered while living with their parents, they needed long-term, specialized treatment; that returning them to their parents would be detrimental to their health and safety; and that the conditions resulting in such neglect or abuse were unlikely to be eliminated within a reasonable period of time, was sufficient to support the court's decision to terminate the mother's parental rights. Oliver v. Roanoke City Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 446 (Oct. 10, 2006).

Father's parental rights were properly terminated under subsection B of § 16.1-283 based on an expert's opinion that he would have difficulty safeguarding a child, as well as clear and convincing evidence that he scored in the high risk range on a measure of child abuse, failed to attend appointments with counselors and a psychologist, and was provided adequate services by the division of social services based on his needs. Abbitt v. Lynchburg Div. of Soc. Servs.,, 2006 Va. App. LEXIS 484 (Oct. 31, 2006).

Termination of the mother's parental rights was upheld, as the evidence proved that the father subjected the children to repeated physical abuse, from which the mother failed to protect them, the children repeatedly witnessed physical confrontations between the mother and the father, and the mother's reunification plan included active participation of the father, whose parental rights had also been terminated. Rothgeb v. Harrisonburg Rockingham Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 23 (Jan. 23, 2007).

Trial court's judgment terminating the parental rights of the mother was affirmed on appeal, as the city social services department presented clear and convincing evidence that the parental rights should be terminated and that termination was in the best interests of the child; the record showed that the mother had no contact with the child since the child was born, and that the mother's schizophrenia was a progressive disease that could not be cured and was likely to worsen over time, which made it all but impossible for the mother to raise and care for the child. Snead v. City of Hampton Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 12 (Jan. 16, 2007).

Trial court's denial of a mother's motion to vacate an order terminating her residual parental rights was proper because, inter alia, although the mother argued that she had signed the order "under duress," she was unable to specify how she had been under duress, and, although the mother claimed there were family members who could care for her son, she was unable to give the trial court any names; it was noteworthy that the mother never suggested that vacating the order would have been in her son's best interests and never disputed the trial court's reliance on subdivision C 2 and subsection E of § 16.1-283 as the bases for the termination. The mother acknowledged that she had asked her attorney to withdraw her motion to vacate the day before the hearing was held on the motion. Wilson v. Fairfax County Dep't of Family Servs.,, 2007 Va. App. LEXIS 116 (Mar. 27, 2007).

Termination of parental rights under subsection B of § 16.1-283 was upheld where the evidence showed that additional time would not make either parent able to properly care for the child; the mother had a long history of drug abuse and failure to complete substance abuse programs and the father was mentally deficient and completed few of the services offered to the father. Battle v. City of Portsmouth Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 221 (May 29, 2007).

Evidence that the father had been unwilling or unable to provide for any of the child's needs, the father had failed to remain in contact with the child while incarcerated, the father did not have a job or appropriate housing to care for the child, the child and the child's half-brother had been thriving in a foster home where their needs were being met on a consistent basis, and that removal from the foster family and separation from the brother could prove traumatic to the child and contrary to the child's best interests was sufficient to support termination of the father's parental rights under subdivision C 2. Jones v. City of Richmond Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 254 (July 17, 2007).

Department of Social Services proved by clear and convincing evidence that termination of the mother's parental rights under subsections B and C of § 16.1-283 was in the child's best interests, providing evidence that the mother denied using cocaine although the mother and the baby tested positive; the mother made no progress, despite the numerous services the Department offered, due to the mother's refusal to cooperate and untruthfulness; the mother made no plans for the child's future; the mother remained unemployed and planned to obtain housing only if and when the mother's grandmother evicted the mother; and the mother demonstrated an unwillingness or inability to change the circumstances that necessitated the child's placement in foster care within a reasonable amount of time. Saunders v. Charlotte County Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 309 (Aug. 21, 2007).

Agency proved by clear and convincing evidence that a parent's parental rights should be terminated pursuant to subdivision C 2 of § 16.1-283. Expert testimony was presented that the parent was unable to care for the child and that the child's behavior improved when visitation with the parent was discontinued. Spain v. Roanoke County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 70 (Feb. 12, 2008).

Mother's residual parental rights were properly terminated as to a six-year-old son because: (1) the mother would never be able to successfully parent the child according to a psychological evaluation; and (2) the mother was unable to remedy the condition leading to the removal and foster care of the child despite the Department of Social Services' offers of reasonable and appropriate services since the mother refused services and nothing was likely to enable the mother to remedy the reason the children were placed in foster care. Bailey v. Halifax Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 119 (Mar. 11, 2008).

Contrary to a mother's contention, a trial court did not err in terminating the mother's parental rights to a child, even though it did not terminate the father's parental rights, simply because the mother and father intended to continue living together as a couple. Subsection A of § 16.1-283 allowed for the termination of only one parent's rights and doing so did not violate any public policy. Campbell County Dep't of Soc. Servs. v. Roberts,, 2008 Va. App. LEXIS 225 (May 6, 2008).

Contrary to a trial court's ruling, evidence that the trailer in which a father was living was unsafe for a child, that two other adults living in the trailer were prone to violence, and that the father had failed to avail himself of services that had been offered to assist him in regaining custody of his child, established a prima facie case for termination of his parental rights under subdivisions B 1 and B 2 of § 16.1-283. Campbell County Dep't of Soc. Servs. v. Roberts,, 2008 Va. App. LEXIS 225 (May 6, 2008).

Decision terminating a parent's residual parental rights to three minor children pursuant to subdivisions C 1 and C 2 of § 16.1-283 was appropriate, considering the parent's lack of continuing contact with the children. The parent's only contact with them between October 2006 and August 2007 consisted of, at most, a birthday card or a total of four letters. Jackson v. Lancaster County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 198 (Apr. 22, 2008).

Termination of the mother's parental rights under subsection B of § 16.1-283 was proper as the evidence clearly and convincingly proved that the mother was suffering from a mental or emotional illness or mental deficiency of such severity that there was no reasonable expectation that the mother would be able to undertake responsibility for the care of the child in accordance with the child's age and stage of development. Parks v. Wythe County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 405 (Aug. 26, 2008).

Termination of a parent's parental rights, § 16.1-283 C 2, was proper as the child had been in foster care all of the child's life, approximately fifteen months. Upon the parent's release from jail, the parent had no plans to secure housing and a job, and was not prepared to begin parenting the child. Welch v. Newport News Dep't of Human Servs.,, 2008 Va. App. LEXIS 397 (Aug. 19, 2008).

Evidence was sufficient to warrant termination of a parent's residual parental rights under both subdivision C 1 and C 2 of § 16.1-283. The parent's explanation for the parent's failure to stay in touch with the parent's child was that the parent was "on the run" and wanted to use drugs, and the child's behavior had improved during placement with a foster family. Foster v. Madison County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 398 (Aug. 9, 2008).

Because a father failed to challenge the termination of his parental rights under subsection B and subdivision C 2 of § 16.1-283, and because nothing in the record or the written statement of facts filed in lieu of a transcript indicated that the father alleged a violation of his due process rights before the trial court, Va. Sup. Ct. R. 5A:18 barred consideration of his claims on appeal. Carr v. Pulaski County Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 337 (July 22, 2008).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the father failed to complete the recommended treatment and counseling programs to help the father address poor self-management and parenting issues, failed to maintain steady employment, and had no suitable place for the children to live. Austin v. Newport News Dep't of Human Servs.,, 2008 Va. App. LEXIS 441 (Sept. 30, 2008).

Termination of a parent's parental rights was proper. Due to the parent's illegal drug use and failure to comply with services offered to the parent, the parent's children had been in the parent's care for only a couple of months between May 2006 and the time of a circuit court hearing in April 2008, a period of almost two years. Graves v. Petersburg Dep't of Soc. Servs.,, 2008 Va. App. LEXIS 476 (Oct. 21, 2008).

Evidence was sufficient to terminate the mother's rights under § 16.1-283 B, C 1 and 2, where the mother had lived in two condemned houses with the children, the mother had pled guilty to eight child abuse and neglect charges, and the children had been in foster care for almost two years, during which time the mother had been unable to meet the requirements for reunification. Mecimore v. Alexandria Dep't of Human Servs.,, 2009 Va. App. LEXIS 41 (Feb. 3, 2009).

Termination of the mother's residual parental rights under § 16.1-283 was supported by evidence that, during the first year of the child's removal, the mother failed to complete parenting classes, obtain substance abuse treatment, maintain safe and stable housing, or obtain employment, and the child's foster family wanted to adopt the child and consistently provided for the child's behavioral and emotional needs. Martin v. Norfolk Dep't of Human Servs.,, 2009 Va. App. LEXIS 126 (Mar. 24, 2009).

Judgment terminating a parent's parental rights to the parent's children was proper, as the children had special needs that required special attention, and the parents had financial problems that twice led to the termination of electricity and water. Their house was unsafe, dirty, and in total disrepair. Wright v. Lynchburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 89 (Mar. 10, 2009).

Termination of the mother's parental rights to the mother's infant child was supported by evidence that the infant was born prematurely, while the mother was incarcerated, and tested positive for marijuana, and that the mother refused to participate in substance abuse treatment and failed to participate in programs offered in jail. Rivera v. Fairfax County Dep't of Family Servs.,, 2009 Va. App. LEXIS 101 (Mar. 10, 2009).

Father's parental rights were properly terminated where the father failed to complete parenting skills classes, therapy, a psychological evaluation, and anger management classes; failed to participate in a batterers' group; failed to refrain from alcohol or illegal substance use; and failed to maintain stable housing. Such evidence supported the finding that the neglect or abuse suffered by the child presented a serious and substantial threat to the child's life, health, and development and that it was not reasonably likely that the conditions that resulted in the neglect or abuse could be substantially corrected or eliminated by the father. Newman v. Charlottesville Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 246 (June 2, 2009).

Father's parental rights were properly terminated where the father had spent only three years of the father's adult life unincarcerated, the father had never held or touched the child and had only communicated with the child through a prison window, and there was no evidence that the father would ever be able to care for the child. Dameron v. Albemarle County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 247 (June 2, 2009).

Evidence that the mother was offered numerous services, including transportation to meetings and supervised visitation, but failed to make any effort to address the mother's parenting skills or employment and housing issues and the mother's failure to make any effort to learn sign language so that the mother could communicate with the child supported the trial court's termination of the mother's parental rights under subdivisions C 1 and 2 of § 16.1-283. Goree v. Culpeper County Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 326 (July 21, 2009).

Evidence was sufficient to terminate the parental rights of a mother and father because the department of social services provided numerous services to the mother and father and required them to meet several goals, but neither the mother nor the father was able to meet the requirements, the mother and father did not have adequate and stable housing, and the father did not have stable employment and had not completed a Domestic Violence Alternatives Program; the department had concerns about both parents when they visited their children, the trial court found that the circumstances of the mother and father were not going to change in any time reasonably, the two older children had severe speech delays when they entered foster care, but they had improved, and all of the children were doing well in foster care. Jackson v. Roanoke City Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 388 (Sept. 1, 2009).

In a case in which the Petersburg Department of Social Services (DSS) filed petitions alleging that two children were abused and/or neglected within the meaning of § 16.1-228, and the father appealed the § 16.1-283 termination of his parental rights arguing that the trial court erred in terminating his parental rights where he was exercising his Fifth Amendment right to remain silent due to pending criminal charges related to the present proceedings, even if the trial court erroneously based its decisions to terminate the father's parental rights in part on the allegations of father's sexual abuse and his decision to assert his Fifth Amendment rights, any such error was harmless because sufficient evidence not related to the sexual abuse allegations or the criminal charges supported the trial court's decisions. In addition to the father's failure to participate in a psychosexual evaluation, he had not provided the DSS with verification of employment or housing, he had not participated in parenting classes, he had not paid child support or visited the children, and he had tested positive for drug use in the recent past. White v. Petersburg Dep't of Soc. Servs.,, 2009 Va. App. LEXIS 481 (Oct. 27, 2009).

In a case in which a father appealed the termination of his parental rights, he argued that the trial court erred by determining that his parental rights should be terminated under clause (iii) of subsection E of § 16.1-283 because his conviction under § 40.1-103 for cruelty or injury to a child was not an offense that constituted felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault within the meaning of clause (iii). He asserted unsuccessfully that he did not inflict serious bodily injury on the child, rather he was convicted for acts of omission, i.e., once having gained knowledge of sexual assault by his son against his child, he failed to prevent further abuse; that argument was rejected based on the plain language of § 16.1-283(E)(iii). Kilby v. Culpeper County Dep't of Soc. Servs., 55 Va. App. 106, 684 S.E.2d 219, 2009 Va. App. LEXIS 483 (2009).

In a case in which a mother appealed the termination of her parental rights, she argued unsuccessfully that the trial court erred in failing to adequately consider continued foster care as an alternative to termination and misapplied the law relating to termination, contrary to the mother's assertion, the record showed that the trial court considered continued foster care placement, but it found, based on the evidence, that the mother would not be able to remedy the conditions that endangered the children and adequately and safely care for them within a reasonable period of time. Horsley v. Lynchburg Div. of Soc. Servs.,, 2009 Va. App. LEXIS 531 (Dec. 1, 2009).

Termination of the father's parental rights under subdivision C 2 of § 16.1-283 was supported by evidence that the father had not seen child in four years when the termination petition was filed, was often late for visits with the child, and failed to complete alcohol and drug services assessments or any treatment recommended by the licensed psychologist. Walker-Bey v. Fairfax County Dep't of Family Servs.,, 2009 Va. App. LEXIS 282 (June 23, 2009).

Termination of the father's parental rights was proper because it was not in the children's best interest to spend a lengthy period of time waiting to find out when, or even if, the father would be capable of resuming his responsibilities. The father was not in a position to care for the children and their needs; he had not met the requirements of the Norfolk Department of Human Services; and at the time of the hearing in the trial court, the children had been in foster care for approximately 19 months. Tharrington v. Norfolk Dep't of Human Servs.,, 2010 Va. App. LEXIS 343 (Aug. 24, 2010).

Although a mother made some progress, such as completion of the Drug Court program, she was unable to meet her children's needs, she did not follow up with necessary medical care for one of the children when the child had growth issues, she could not adequately supervise her children, and she did not recognize and understand the children's emotional and psychological needs, thus, the department presented sufficient evidence to support the termination of the mother's parental rights. Ferrell v. Alexandria Dep't of Cmty. & Human Servs.,, 2012 Va. App. LEXIS 40 (Feb. 14, 2012).

Because the circuit court relied on appropriate factors and pointed to some evidence supporting its decision to terminate the parental rights of a mother and father, the appellate court held that the circuit court's best interests' determination was not plainly wrong or without evidence to support it. Stanley v. Bristol Dep't of Soc. Servs., Nos. 1189-16-3, 1449-16-3, 2017 Va. App. LEXIS 92 (Mar. 28, 2017).

Trial court's orders terminating the mother's residual parental rights to her children were neither plainly wrong nor without evidence to support them, as the evidence showed that the mother failed to demonstrate an ability to maintain a clean home, the mother waited too long to enroll in and begin a course on domestic violence, and the mother failed to begin the recommended individual counseling to address her mental health issues within 12 months. Swartwood-Davis v. Stafford Cnty. Dep't of Soc. Servs.,, 2017 Va. App. LEXIS 201 (Aug. 8, 2017).

In a case involving a mother and her two children, the appellate court concluded that the mother's appeal from a circuit court's decision terminating her parental rights to the first child and approving the foster care plan's goal of adoption for the second child was without merit. The county department of social services presented evidence that the mother was unable or unwilling to remedy the conditions that led to her children being placed in foster care, and furthermore the department presented evidence that the children were doing well in their placements. Robinson v. Warren Cty. Dep't of Soc. Servs.,, 2018 Va. App. LEXIS 55 (Mar. 6, 2018).

Circuit court had sufficient credible evidence to deny a mother's renewed motion to strike because a doctor's testimony and report indicated that the mother's mental health related problems and intellectual disability made it very difficult for her to meet her own needs, let alone adequately attend to her children's special needs; the testimony of a child protective services worker established that the mother had a history of physical neglect of her children. Lane-Alvis v. Richmond Dep't of Soc. Servs., No. 0609-17-2, 2018 Va. App. LEXIS 53 (Mar. 6, 2018).

Termination of the mother's parental right was upheld where the evidence showed that the Department of Social Service's actions were reasonable under the circumstances, and the mother's incarceration, since the child was three years old, limited the agency's capacity to remedy her deficiencies as a parent. Williams v. Chesterfield County Dep't of Soc. Servs., No. 1152-03-2, 2003 Va. App. LEXIS 523 (Ct. of Appeals Oct. 14, 2003).

Termination of parental rights was in the child's best interests where the father failed to make substantial progress towards ending his daughter's continuation in foster care and his incarceration did not excuse his behavior. Brazier v. Hampton Dep't of Soc. Servs., No. 0856-03-1, 2003 Va. App. LEXIS 687 (Ct. of Appeals Dec. 23, 2003).

Trial court did not err in terminating the residual parental rights in the minor child, as clear and convincing evidence showed that termination was in the minor child's best interests; the father was using and selling drugs despite the fact that he had served sentences on drug charges several years earlier, the father was not due to be released for a few more years, the county child welfare agency had unsuccessfully offered services to him before he went to prison, and the conditions that caused the county child welfare agency to remove the minor child from him could not be remedied any time soon. Harrison v. Tazewell County Dep't of Soc. Servs., 42 Va. App. 149, 590 S.E.2d 575, 2004 Va. App. LEXIS 3 (2004).

Parent waived part of his appeal when he failed to challenge the termination of his parental rights in his brief, and when he admitted at oral argument that his challenge related to subdivision C 2 of § 16.1-283 and not alternative grounds under subsection B of § 16.1-283; further, since either subsection was independently sufficient to support the result the trial court made, when termination of the parent's residual parental rights under subsection B of § 16.1-283 was affirmed, the court did not need not consider termination under subsection C of § 16.1-283. Taylor v. Norfolk Div. of Soc. Servs.,, 2005 Va. App. LEXIS 473 (Nov. 22, 2005).

Father's residual parental rights to his child were properly terminated because: (1) the father, without good cause, never directly or through someone on his behalf, contacted department of social services to inquire about the child, even though the department made efforts to communicate with the father and involve him in the child's life; (2) the father never provided or substantially planned for the child's future prior to the termination hearing; and (3) the father never sent letters, cards, pictures, toys, or support to the child. Additionally, the father was incarcerated and serving a 15-year sentence for child molestation and statutory rape in Georgia. Willis v. City of Portsmouth Dep't of Soc. Servs. Servs.,, 2006 Va. App. LEXIS 44 (Feb. 7, 2006).

Termination of the father's parental rights was proper and in the child's best interests because he testified that he had not seen the child since approximately 2014, and he had been incarcerated the entire time that the child was in foster care; the earliest date the father would be released was in February 2019; there was no evidence that the father was able to remedy, within a reasonable period of time, the conditions that led to the child's foster care placement; although the child had improved since he entered foster care and had gone well beyond what was hoped for him, he still required a great deal of attention and care; and the child had developed a bond with his foster parents and a teenager who lived in the home. Sabir v. Roanoke City Dep't of Soc. Servs., No. 1866-18-3, 2019 Va. App. LEXIS 126 (May 28, 2019).

Circuit court did not err in terminating a mother's parental rights and in finding that termination was in the children's best interests because the mother's parental rights to another child previously were involuntarily terminated and the children had been in foster care for almost two years. The mother had not progressed in the ability to parent the children despite all of the services provided to the mother and the children's behaviors and physical health improved after they stopped visiting the parents. Parks v. Giles Cty. Dep't of Soc. Servs., No. 1106-19-3, 2020 Va. App. LEXIS 25 (Jan. 28, 2020).

Circuit court did not err in finding that it was in the best interests of children to terminate a father's parental rights because the social services district presented evidence that the father's parental rights to their two older siblings had been involuntarily terminated; the children were not attached to father, who had not attempted to contact them since the social services district changed the foster care goal to adoption, and they were thriving in foster care. McDaniel v. Harrisonburg Rockingham Soc. Servs. Dist., No. 1341-20-3, 2021 Va. App. LEXIS 128 (July 20, 2021).

Termination of detained or deported parent's rights. - Trial court did not err in determining that it was in the best interests of children to terminate a father's parental rights because a father's own actions led to the situation when his incarceration and deportation affected his ability to contact his children and participate in the foster care proceedings; the father's plan for the future of the children was not viable, and it was not in the best interests of the children because the father stated that even though he was going to be deported, his plan was to return to the United States and take the children, but his return would be illegal. Perez-Velasquez v. Culpeper County Dep't of Soc. Servs., No. 0360-09-4, 2009 Va. App. LEXIS 293 (Ct. of Appeals June 30, 2009).

Finding child not likely to be returned to parent justified. - Where the trial court was presented with evidence that included: (1) severe physical abuse inflicted upon infant; (2) failure of the father to seek any type of medical treatment for his son; (3) uncertainty regarding the father's sentence of incarceration for 20 years; (4) father's inability to hold a full-time job; and (5) father's disinterest in establishing any type of visitation, as well as his failure to make any effort at contacting the child since 1987, the court was justified in finding that the child was not likely to be returned to his parent within a reasonable period of time. Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 394 S.E.2d 492 (1990).

Evidence held not to support order terminating parental rights. - Where throughout the time the child was in foster care, the mother displayed a passionate interest in maintaining contact with her, she took full advantage of her visitation rights with her child while she was in temporary and foster care, no evidence indicated that her child was emotionally or physically abused, and, moreover, the testimony established that with proper medication the mother's level of functioning would improve, there was no clear and convincing showing made of the statutory criteria required to support an order terminating residual parental rights. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Where the Department of Social Services did not investigate the condition of the grandmother's home even when visiting the children's father who lived there, and consequently, the Department failed to present evidence at trial concerning the suitability of the grandmother's home as an alternative placement for the children, the order of the circuit court terminating parental rights was reversed and remanded with instructions to order a review of the grandmother's home as an alternative placement for the children. Sauer v. Franklin County Dep't of Social Servs., 18 Va. App. 769, 446 S.E.2d 640 (1994).

Although proof that a mother had abused drugs and had not responded to or followed through with recommended and available treatment is prima facie evidence that the mother's condition would not be corrected to allow the child's safe return within a reasonable time, and though the mother's somewhat inconsistent participation in drug treatment programs may have indicated that her drug abuse would not be corrected within a reasonable time, where the date of the hearing the mother had been drug-free for over 17 months and the prognosis for her future condition was positive, the evidence did not clearly and convincingly show that her condition would not be corrected within a reasonable time to allow the child's safe return, and thus the termination of parental rights was not found to be in the best interests of the child. Jackson v. Alexandria Div. of Social Servs., No. 2331-94-4 (Ct. of Appeals Dec. 12, 1995).

A trial court properly refused to terminate a father's parental rights where the conditions that led to the children's placement with a relative and later in foster care had been remedied, the only reason offered for termination was the father's initial incarceration and subsequent deportation and where the department did not provide reasonable and appropriate services to the father. Fairfax County Dep't of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 Va. App. LEXIS 824 (Ct. of Appeals Dec. 19, 2000).

The department did not establish a prima facie case for terminating a father's parental rights under subdivision C 2 where the father never failed to do what the department or the court required of him. The department never advised the father to seek parenting skills training or mental health or substance abuse services despite its contact with the father's caseworker and no court order required him to seek services. Fairfax County Dep't of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 Va. App. LEXIS 824 (Ct. of Appeals Dec. 19, 2000).

Trial court erred in terminating a mother's parental rights to her child, as there was not clear and convincing proof that she did not remedy substantially the conditions which led to the child's foster care placement; she participated in psychological evaluation and individual therapy as ordered, was able to obtain suitable employment and to provide adequate furnishings for the children, and her inability to obtain family therapy was due to the failure of the Department of Social Services to make arrangements for such therapy. C. S. v. Va. Beach Dep't of Soc. Servs., 41 Va. App. 557, 586 S.E.2d 884, 2003 Va. App. LEXIS 499 (2003).

Evidence supported the trial judge's conclusion that the children's best interest required that the mother have the opportunity to realize her goal of remedying her living situation and parenting skills. Among other things, the caseworker's testimony that the mother's hospitalization precipitated the children's placement in foster care supported the trial judge's finding that the only reason they were in foster care was because the mother was in the hospital and there was no one else to take care of them; in addition the trial court found that the mother continually sought stable housing and employment, and cooperated with Department of Social Services caseworkers in those efforts. Richmond Dep't of Soc. Servs. v. Crawley, 47 Va. App. 572, 625 S.E.2d 670, 2006 Va. App. LEXIS 38 (2006).

Trial court did not err in not terminating the mother's right to the mother's second youngest child, because there was no evidence that the mother and her mother, with whom the mother resided, would not be able to properly supervise the younger child once the older children were not under their care and thus, the mother and grandmother would not be outnumbered or overwhelmed by the management of the older boys' behavior. Fauquier County Dep't of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811, 2011 Va. App. LEXIS 381 (2011).

Substantial progress by parent. - There was no question that a mother did little or nothing, in the 12 months following her child's placement in foster care, to remedy the conditions causing that placement, but the evidence showed that between that 12-month period and the hearing before the trial court, the mother had made substantial progress toward addressing those conditions, and it was reversible error for the trial court to decline to consider this relevant evidence of the mother's improvement because it occurred more than 12 months after the child was placed. L.G. v. Amherst County Dep't of Soc. Servs., 41 Va. App. 51, 581 S.E.2d 886, 2003 Va. App. LEXIS 333 (2003).

CIRCUIT COURT OPINIONS

Termination in best interests of children. - Termination of a mother's parental rights was in the best interests of her three children where: (1) the two boys were bruised from being hit by a belt by the mother; (2) in the two years since the children were removed from the home, the mother had held over 10 jobs, had changed homes five times, and had not addressed her severe emotional issues; (3) the children had severe attachment problems and had an acute need to be in a long-term stable environment; and (4) the mother could not furnish the stable environment required for the emotionally troubled children in the foreseeable future. Woodell v. Amherst County Dep't of Soc. Servs.,, 2005 Va. Cir. LEXIS 269 (Amherst County Sept. 26, 2005).

Termination of defendant's parental rights was in the children's best interest because they had remained in foster care 668 days without interruption; he had no meaningful employment; he received an apartment through a community services board, but it was a one-bedroom apartment, and he presented no evidence about the apartment, including whether the children would be allowed to live there, and the condition of the apartment; he had not substantially remedied the conditions that led to or required continuation of the children's placement in foster care; and the Department of Social Services had provided more than reasonable and appropriate efforts in assisting defendant with remedying the issues that required the foster care placement. Termination of Parental Rights,, 2021 Va. Cir. LEXIS 2 (Culpeper Jan. 5, 2021).

Placement with relatives. - Department of Social Services' petition to terminate the mother's parental rights was granted because while a relative may have had a potentially suitable home for the children, she came forward only after the children had been in foster care for two years. Orange Cty. Dep't of Soc. Servs. v. Poston,, 2018 Va. Cir. LEXIS 433 (Orange County Oct. 22, 2018).

Termination of rights upheld. - Department of Social Services' petition to terminate the mother's parental rights was granted because the evidence showed that she had not complied with the foster care plan, she failed to avail herself of any substance abuse treatment programs, she tested positive for marijuana on numerous occasions, there was no evidence she obtained or maintained consistent employment in the three years the children had been in foster care, many of the supervised visitations were marred by various incidents, the children had thrived in foster care, the foster family wished to adopt them, and the children had suffered neglect and abuse when their mother left them alone in a bug infested house. Orange Cty. Dep't of Soc. Servs. v. Poston,, 2018 Va. Cir. LEXIS 433 (Orange County Oct. 22, 2018).

Abuse. - Termination of a father's parental rights based upon subsection B was not appropriate because the child's abuse was sustained while in the care of his mother in the mother's house, in which the father did not reside. Norfolk Dep't of Human Servs. v. Person,, 2018 Va. Cir. LEXIS 44 (Norfolk Mar. 29, 2018).

Minimal efforts at reunification required given the parent's long-term incarceration. - A notification letter on the foster care plan and the child's difficulties was sufficient. Tellez v. Dss,, 2003 Va. Cir. LEXIS 207 (Roanoke Oct. 17, 2003).

Failure to maintain contact. - Petition to terminate a father's parental rights was granted because the father, without good cause, failed to maintain contact with the child or to plan for the child's future; the father did not have continuing contact with the child when he voluntarily remained in solitary confinement, knowing he would be unable to take advantage of services to communicate with the child or plan for the child's future under such condition. Norfolk Dep't of Human Servs. v. Person,, 2018 Va. Cir. LEXIS 44 (Norfolk Mar. 29, 2018).

Rehabilitation efforts reasonable and appropriate. - Termination under either subdivision C 1 or C 2 was appropriate because the efforts of the department of human services to communicate and rehabilitate the father's relationship with the child were reasonable and appropriate considering the context of the father's incarceration and sexually violent predator status; the father was not in a position to complete any services offered. Norfolk Dep't of Human Servs. v. Person,, 2018 Va. Cir. LEXIS 44 (Norfolk Mar. 29, 2018).

Failure to offer treatment services to parent meant no termination of rights. - Because a father had not been offered any parenting, anger management, or other therapeutic services by the Department of Social Services (DSS) to address both the father's parenting skills and anger issues, as required by subdivision C 1 of § 16.1-283, the DSS's petition for termination of residual parental rights was denied and the case was dismissed. In re Termination of Parental Rights of Crank,, 2008 Va. Cir. LEXIS 93 (Amherst County May 7, 2008).

Failure to remedy conditions. - Circuit court terminated the parental rights of an adoptive mother who had a history of alcohol abuse because the mother was unable to substantially remedy the conditions that led to or required the child she adopted to be placed in foster care. In re Long, 63 Va. Cir. 81, 2003 Va. Cir. LEXIS 329 (Fauquier County 2003).

It was in the child's best interest for the mother's parental rights to be terminated pursuant to subsections B and C of § 16.1-283 where the mother had been unable to substantially remedy her substance abuse issues since the child's placement in foster care, she had not availed herself of any of the services offered by the Department of Social Services, she only had approximately two months of sobriety, since the birth of the child, the mother had been convicted of two felonies and violating the terms and conditions of her felony probation, and the child was doing well in a foster care family that desired adoption. Madison Cty. Dep't of Soc. Servs. v. Minor Child,, 2019 Va. Cir. LEXIS 1164 (Madison County Nov. 26, 2019).

Expert testimony properly admitted. - Expert's testimony was not privileged under former § 20-124.3:1 in a mother's termination of parental rights case as former § 20-124.3:1 applied to custody and visitation cases under § 20-124.2 , not a termination of parental rights case under § 16.1-283, and the court order incorporated the foster care service plan review, which stated that the mother was willing to undergo logical evaluation, subsequent to which the mother was evaluated by the experts. Woodell v. Amherst County Dep't of Soc. Servs.,, 2005 Va. Cir. LEXIS 269 (Amherst County Sept. 26, 2005).

Mother could not correct the problems that caused her three children to be removed from her home within 12 months, despite the services offered her, where: (1) the mother enrolled in and completed a nurturing program and a children in the middle program, but failed to participate in the home based therapy and failed to attend the free counseling offered to her; (2) the therapy would have addressed the emotional problems that contributed to, if not caused, the emotional and attachment problems of the children; (3) the mother failed to secure the professional help needed to remedy the emotional factors that caused the abuse of her children; and (4) for over two years, the mother had not maintained steady employment, and while she had lived in one location for more than one year, she had made five residential moves since the initial removal of the children and had resided periodically with a boyfriend. Woodell v. Amherst County Dep't of Soc. Servs.,, 2005 Va. Cir. LEXIS 269 (Amherst County Sept. 26, 2005).

Petition to terminate a father's parental rights was granted because the father, without good cause, had not been willing or able to remedy the child's foster care situation within a reasonable period of time; the father reduced, of his own accord, the reasonable probability that he would complete his program within a reasonable period of time because he voluntarily made decisions and engaged in actions during his mental health treatment that resulted in him reverting to level one status. Norfolk Dep't of Human Servs. v. Person,, 2018 Va. Cir. LEXIS 44 (Norfolk Mar. 29, 2018).

Termination of a father's residual parental rights was in the best interests of the child because the father did not form any substantive relationship with the child before or during his incarceration or while he underwent treatment; the child had lived with a foster parent for several years, and the foster parent appropriately addressed the child's mental health needs. Norfolk Dep't of Human Servs. v. Person,, 2018 Va. Cir. LEXIS 44 (Norfolk Mar. 29, 2018).

§ 16.1-283.1. Authority to enter into voluntary post-adoption contact and communication agreement.

  1. In any case in which (i) a child has been placed in foster care as a result of (a) court commitment, (b) an entrustment agreement entered into by the parent or parents, or (c) other voluntary relinquishment by the parent or parents; (ii) the parent or parents have voluntarily consented to the adoption of the child; or (iii) the parental rights of the parent or parents have been involuntarily terminated, the child's birth parent or parents may enter into a written post-adoption contact and communication agreement with the pre-adoptive parent or parents as provided in Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2. Unless the parental rights of the birth parent or parents have been terminated pursuant to subsection E of § 16.1-283, a local board of social services or child welfare agency required to file a petition for a permanency planning hearing pursuant to § 16.1-282.1 may inform the birth parent or parents and shall inform the adoptive parent or parents that they may enter into such an agreement and shall inform the child if he is 14 years of age or older that he may consent to such an agreement.
  2. The court may consider the appropriateness of a written post-adoption contact and communication agreement entered into pursuant to subsection A and in accordance with Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2 at the permanency planning hearing pursuant to § 16.1-282.1 and, if the court finds that all of the requirements of subsection A and Article 1.1 (§ 63.2-1220.2 et seq.) of Chapter 12 of Title 63.2 have been met, shall incorporate the written post-adoption contact and communication agreement into an order entered at the conclusion of such hearing. (2009, cc. 98, 260; 2010, c. 331; 2019, cc. 65, 84; 2020, c. 98.)

The 2010 amendments. - The 2010 amendment by c. 331 rewrote the section.

The 2019 amendments. - The 2019 amendments by cc. 65 and 84 are identical, and in subsection A, inserted "(i)," "(ii)," "(iii)" and "any case in" in the first sentence and added the second sentence.

The 2020 amendments. - The 2020 amendment by c. 98, in subsection A, inserted the clause (i) and (ii) designations and redesignated former clauses (i) through (iii) as clauses (a) through (c), deleted "or in any case in which" at the end of clause (ii) and inserted "(iii) the parental rights of the parent or parents have been involuntarily terminated."

§ 16.1-283.2. Restoration of parental rights.

  1. If a child is in the custody of the local department of social services and a pre-adoptive parent or parents have not been identified and approved for the child, the child's guardian ad litem or the local board of social services may file a petition to restore the previously terminated parental rights of the child's parent under the following circumstances:
    1. The child is at least 14 years of age;
    2. The child was previously adjudicated to be an abused or neglected child, child in need of services, child in need of supervision, or delinquent child;
    3. The parent's rights were terminated under a final order pursuant to subsection B, C, or D of § 16.1-283 at least two years prior to the filing of the petition to restore parental rights;
    4. The child has not achieved his permanency goal or the permanency goal was achieved but not sustained; and
    5. The child, if he is 14 years of age or older, and the parent whose rights are to be reinstated consent to the restoration of the parental rights.
  2. Notwithstanding the provisions of subsection A, the court may accept (i) a petition involving a child younger than 14 years of age if (a) the child is the sibling of a child for whom a petition for restoration of parental rights has been filed and the child who is younger than 14 years of age meets all other criteria for restoration of parental rights set forth in subsection A, or (b) the child's guardian ad litem and the local department of social services jointly file the petition for restoration; or (ii) a petition filed before the expiration of the two-year period following termination of parental rights if the child will turn 18 before the expiration of the two-year period, and the court finds that accepting such a petition is in the best interest of the child.
  3. The court shall set a hearing on the petition and serve notice of the hearing along with a copy of the petition on the former parent of the child whose rights are the subject of the petition, any other parent who retains legal rights to the child, the child's court-appointed special advocate, if one has been appointed, and either the child's guardian ad litem or the local board of social services, whichever is not the petitioner.
  4. If the court finds, based upon clear and convincing evidence, that the parent is willing and able to (i) receive and care for the child; (ii) have a positive, continuous relationship with the child; (iii) provide a permanent, suitable home for the child; and (iv) protect the child from abuse and neglect, the court may enter an order permitting the local board of social services to place the child with the former parent whose rights are the subject of the petition, subject to the requirements of the placement plan developed pursuant to subsection E and for visitation required pursuant to subsection F.
  5. Within 60 days of the filing of the petition for restoration of parental rights and prior to the entry of an order pursuant to subsection D, the local board of social services shall develop a written placement plan for the child, which shall (i) describe the programs, services, and other supports that shall be offered to the child and the former parent with whom the child has been placed and (ii) set forth requirements for the participation of the former parent with whom the child has been placed in programs and services described in the placement plan and the conduct of the child's former parent with whom the child has been placed. Such plan shall be incorporated into the order entered pursuant to subsection D.
  6. Following the placement of a child with his former parent following entry of an order pursuant to subsection D, the director of the local department of social services shall cause the child to be visited by an agent of such local board or local department at least three times within the six-month period immediately following placement of the child in order to evaluate the suitability of the placement and the progress of the former parent toward remedying the factors and conditions that led to or required continuation of the child's foster care placement; however, no less than 90 days shall elapse between the first visit and the last visit. At least one of the visits shall be conducted in the home of the former parent whose rights are the subject of the petition in the presence of the former parent.
  7. Upon completion of the visitation required pursuant to subsection F, the director of the local department of social services shall make a written report to the court, in such form as the Commissioner of Social Services may prescribe, describing (i) findings made as a result of the visits required pursuant to subsection F and (ii) findings and information related to the former parent's compliance with requirements of the placement plan developed pursuant to subsection E.
  8. Upon receipt of the report required pursuant to subsection G, the court shall set a hearing on the petition for restoration of parental rights and serve notice of the hearing, along with a copy of the report required pursuant to subsection G, on the former parent of the child whose rights are the subject of the petition, any other parent who retains legal rights to the child, the child's court-appointed special advocate, if one has been appointed, and the child's guardian ad litem.
  9. If, upon consideration of the report required pursuant to subsection G, the court finds by clear and convincing evidence that the restoration of parental rights is in the child's best interest, the court shall enter an order restoring the parental rights of the child's parent. In determining whether restoration is in the best interest of the child, the court shall consider the following:
    1. Whether the parent whose rights are to be reinstated agrees to the reinstatement and has substantially remedied the conditions that led to or required continuation of the child's foster care placement;
    2. The age and maturity of the child and whether the child consents to the reinstatement of the former parent's rights, if the child is 14 years of age or older, or the child's preference with regard to the reinstatement of the former parent's rights, if the child is younger than 14 years of age;
    3. Whether the restoration of parental rights will present a risk to the child's life, health, or development;
    4. Whether the restoration of parental rights will affect benefits available to the child; and
    5. Other material changes in circumstances, if any, that warrant the granting of the petition.
  10. The court may revoke its order permitting the placement of a child with his former parent pursuant to subsection D at any time prior to entry of an order restoring parental rights to the former parent of the child, for good cause shown, on its own motion or on the motion of the child's guardian ad litem or the local department.
  11. A petition for restoration of parental rights filed while the child is younger than 18 years of age shall not become invalid because the child reaches 18 years of age prior to the entry of an order of restoration of parental rights. Any order restoring parental rights to a parent of a child pursuant to this section entered after a child reaches 18 years of age, where the petition was filed prior to the child turning 18 years of age, shall have the same effect as if the child was under 18 years of age at the time the order was entered by the court.
  12. The granting of a petition under this section does not vacate the findings of fact or conclusions of law contained in the original order that terminated the parental rights of the child's parent.

    (2013, cc. 338, 685.)

Cross references. - As to the Court-Appointed Special Advocate Program, see § 9.1-151 .

Law review. - For annual survey article, see "Family Law," 48 U. Rich. L. Rev. 135 (2013).

§ 16.1-283.3. Review of voluntary continuing services and support agreements for former foster youth.

  1. Whenever a program participant, as defined in § 63.2-918 , enters into a voluntary continuing services and support agreement with a local department of social services pursuant to § 63.2-921 , a hearing shall be held to review the agreement and the program participant's case plan. In determining whether to approve the case plan, the court shall determine whether remaining in the care and placement responsibility of the local department of social services is in the program participant's best interests and whether the program participant's case plan is sufficient to achieve the goal of independence. Such hearing shall be held by the juvenile and domestic relations district court that last had jurisdiction over the program participant's foster care proceedings when the program participant was a minor. The petition for review of the voluntary continuing services and support agreement and the program participant's case plan shall be filed by the local department of social services no later than 30 days after execution of the voluntary continuing services and support agreement. The petition shall include documentation of the program participant's last foster care placement as a minor and the responsible local department of social services, a copy of the signed voluntary continuing services and support agreement, a copy of the program participant's case plan, and any other information the local department of social services or the program participant wishes the court to consider.
  2. Upon receiving a petition for review of the voluntary continuing services and support agreement and the program participant's case plan, the court shall schedule a hearing to be held within 45 days after receipt of the petition. The court may appoint counsel or a guardian ad litem for the program participant pursuant to § 16.1-266. The court may reappoint or continue the appointment of the court-appointed special advocate volunteer who served the program participant as a minor or, if the previous volunteer is unavailable, appoint another special advocate volunteer. The court shall provide notice of the hearing and copies of the petition to the program participant, the program participant's legal counsel, the local department of social services, and any other persons who, in the court's discretion, have a legitimate interest in the hearing. The local department of social services shall identify for the court all persons who may have a legitimate interest in the hearing.
  3. At the conclusion of the hearing, the court shall enter an order that:
    1. Determines whether remaining under the care and placement responsibility of the local department of social services is in the best interests of the program participant; and
    2. Approves or denies the program participant's case plan.

      In determining whether to approve or deny the program participant's case plan, the court shall consider whether the services and support provided under the case plan are sufficient to support the program participant's goal of achieving independence. If the court makes any revision to the case plan, a copy of such revisions shall be sent by the court to all persons who received a copy of the original case plan.

  4. After the initial hearing, the court may close the case or schedule a subsequent hearing to be held within six months to review the program participant's case plan. Subsequent review hearings may be held at six-month or shorter intervals in the discretion of the court. The local department of social services shall file a petition for review of the program participant's case plan within 30 days prior to any such scheduled hearing. If a hearing was not previously scheduled, the court shall schedule a hearing to be held within 30 days of receipt of the petition. The court shall provide notice of the hearing and a copy of the petition in accordance with subsection B. If subsequent review hearings are not held by the court, the local department of social services shall conduct administrative reviews pursuant to § 63.2-923 .
  5. In all hearings held pursuant to this section, the court shall consult with the program participant in an age-appropriate manner regarding his case plan.

    (2020, cc. 95, 732.)

Editor's note. - Acts 2020, cc. 95 and 732, cl. 3 provides: "That the Board of Social Services (the Board) shall promulgate regulations to implement the provisions of this act. The Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption."

Acts 2020, cc. 95 and 732, cl. 4 provides: "That the Department of Social Services shall analyze the feasibility of and opportunities for allowing local departments of social services to use video conferencing for monthly visits with participants in the Fostering Futures program in a manner that complies with federal laws and regulations."

§ 16.1-284. When adult sentenced for juvenile offense.

  1. When the juvenile court sentences an adult who has committed, before attaining the age of 18, an offense that would be a crime if committed by an adult, the court may impose, for each offense, the penalties that are authorized to be imposed on adults for such violations, not to exceed the punishment for a Class 1 misdemeanor, provided that the total jail sentence imposed shall not exceed 36 continuous months and the total fine shall not exceed $2,500 or the court may order a disposition as provided in subdivision A 4, 5, 7, 11, 12, 14, or 17 and subsection B of § 16.1-278.8.
  2. A person sentenced pursuant to this section shall earn good time credit at the rate of one day for each one day served, including all days served while confined in jail or secured detention prior to conviction and sentencing, in which the person has not violated the written rules and regulations of the jail.

    (Code 1950, § 16.1-177.1; 1956, c. 555; 1973, c. 440; 1977, c. 559; 1978, c. 142; 1980, c. 235; 1983, c. 336; 1985, c. 260; 1996, cc. 755, 914; 2016, c. 626; 2020, cc. 18, 532.)

Cross references. - For exception to confidentiality of proceedings in cases where a child is sentenced as an adult in accordance with this section, see § 16.1-309.1.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and rewrote the section, which formerly read: "Until June 30, 1986, if a child fifteen years of age or older is charged with an offense which if committed by an adult would be a felony and the court after receipt of a social history compiled pursuant to § 16.1-273 for this case or a prior case which was adjudicated within twelve months from the adjudication in this case finds that (i) such child is not, in the opinion of the court, amenable to treatment or rehabilitation as a juvenile through available facilities, considering such factors as the nature of the present offense or the nature of the child's prior delinquency record, the nature of the past treatment efforts and the nature of the child's response to past treatment efforts and (ii) the interests of the community require that the child be placed under legal restraint or discipline, then the court, in such cases, may impose the penalties which are authorized to be imposed on adults for such violations, not to exceed twelve months in jail for a single offense or multiple offenses and subject to the provisions of § 16.1-249 B (i), (ii) and (iii). After June 30, 1986, such penalties may be imposed only in the case of an adult who has committed, before attaining the age of eighteen, an offense which would be a crime if committed by an adult."

The 2016 amendments. - The 2016 amendment by c. 626 rewrote the section, which read: "When the juvenile court sentences an adult who has committed, before attaining the age of eighteen, an offense which would be a crime if committed by an adult, the court may impose the penalties which are authorized to be imposed on adults for such violations, not to exceed the punishment for a Class 1 misdemeanor for a single offense or multiple offenses."

The 2020 amendments. - The 2020 amendments by cc. 18 and 532 are identical, and rewrote subsection B, which formerly read: "A person sentenced pursuant to this section shall be entitled to good time credit as authorized by § 53.1-116 ."

Law review. - For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971). For article discussing double jeopardy and waiver of jurisdiction to criminal courts in juvenile proceedings, see 14 Wm. & Mary L. Rev. 266 (1972). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, §§ 13, 84.

Editor's note. - Some of the cases cited below were decided under former § 16.1-177.1.

CASE NOTES

A juvenile is not immune from incarceration in jail. Rather, alternative and less harsh measures are preferred for the juvenile offender, but when the best interests of the child demand such confinement, that is available as an alternate discipline. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

The jail sentence is merely an additional remedial alternative applied, if at all, to incorrigibles who have committed an offense which would be a felony or misdemeanor if they were adult. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

When jail sentence may not be imposed. - Because the power of the court under this section to impose a jail sentence is limited in application to offenses committed by a juvenile which would have been either misdemeanors or felonies had they been committed by an adult, a juvenile who has been accorded juvenile delinquent status for any other reason may not be sentenced to jail. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

Finding of incorrigibility is procedural. - The statutory requirement of a finding of incorrigibility is a procedural prerequisite to the exercise of the court's general remedial powers which are granted elsewhere in the statute, and not a prerequisite to the jurisdiction of the court. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

Effect of failure to record such finding formally. - Since the failure of a circuit court to formally record a finding of incorrigibility is a State procedural error in sentencing and not a prerequisite to the jurisdiction of the court, such failure is not a ground for federal habeas corpus relief. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

The finding of incorrigibility must be supported by evidence obtained by an investigation. Norwood v. City of Richmond, 203 Va. 886 , 128 S.E.2d 425 (1962).

Trial court's discretion. - Trial court properly sentenced defendant to an indeterminate commitment as a serious juvenile offender because the terms "child," "juvenile," and "minor" were interchangeable, the term "may" provided the trial court with discretion to commit a "delinquent child" to the Department of Juvenile Justice (DJJ) and, while defendant was over 18 by the time of trial, he nevertheless was subject to commitment to the DJJ because he was under the age of 18 at the time of the offense. Travezano v. Commonwealth, No. 1654-13-4, 2014 Va. App. LEXIS 336 (Oct. 7, 2014).

OPINIONS OF THE ATTORNEY GENERAL

Good conduct credit. - Prisoner charged as a juvenile but sentenced under § 16.1-284 is eligible for the good conduct credit established in § 53.1-116 if the offense for which he is being sentenced would be classified as a misdemeanor if committed by an adult. However, if the offense for which he is being sentenced would be classified as a felony if committed by an adult, the good conduct credit established in § 53.1-116 does not apply. If the prisoner is sentenced for violating a court order or the terms of probation or parole, the nature of the underlying conviction (felony or misdemeanor) governs eligibility for good conduct credit. See opinion of Attorney General to The Honorable Robert L. Bushnell, Judge, Juvenile and Domestic Relations District Court, City of Martinsville and Counties of Henry and Patrick, 14-016, 2014 Va. AG LEXIS 21 (7/10/14).

§ 16.1-284.1. Placement in secure local facility.

  1. If a juvenile 14 years of age or older is found to have committed an offense which if committed by an adult would be punishable by confinement in a state or local correctional facility as defined in § 53.1-1 , and the court determines (i) that the juvenile has not previously been and is not currently adjudicated delinquent of a violent juvenile felony or found guilty of a violent juvenile felony, (ii) that the juvenile has not been released from the custody of the Department within the previous 18 months, (iii) that the interests of the juvenile and the community require that the juvenile be placed under legal restraint or discipline, and (iv) that other placements authorized by this title will not serve the best interests of the juvenile, then the court may order the juvenile confined in a detention home or other secure facility for juveniles for a period not to exceed six months from the date the order is entered, for a single offense or multiple offenses. However, if the single offense or multiple offenses, which if committed by an adult would be punishable as a felony or a Class 1 misdemeanor, caused the death of any person, then the court may order the juvenile confined in a detention home or other secure facility for juveniles for a period not to exceed 12 months from the date the order is entered. The period of confinement ordered may exceed 30 calendar days if the juvenile has had an assessment completed by the secure facility to which he is ordered concerning the appropriateness of the placement.
  2. If the period of confinement in a detention home or other secure facility for juveniles is to exceed 30 calendar days, and the juvenile is eligible for commitment pursuant to subdivision A 14 of § 16.1-278.8, then the court shall order the juvenile committed to the Department, but suspend such commitment. In suspending the commitment to the Department as provided for in this subsection, the court shall specify conditions for the juvenile's satisfactory completion of one or more community or facility based treatment programs as may be appropriate for the juvenile's rehabilitation.
  3. During any period of confinement which exceeds 30 calendar days ordered pursuant to this section, the court shall conduct a mandatory review hearing at least once during each 30 days and at such other times upon the request of the juvenile's probation officer, for good cause shown. If it appears at such hearing that the purpose of the order of confinement has been achieved, the juvenile shall be released on probation for such period and under such conditions as the court may specify and remain subject to the order suspending commitment to the State Department of Juvenile Justice. If the juvenile's commitment to the Department has been suspended as provided in subsection B of this section, and if the court determines at the first or any subsequent review hearing that the juvenile is consistently failing to comply with the conditions specified by the court or the policies and program requirements of the facility, then the court shall order that the juvenile be committed to the State Department of Juvenile Justice. If the court determines at the first or any subsequent review hearing that the juvenile is not actively involved in any community facility based treatment program through no fault of his own, then the court shall order that the juvenile be released under such conditions as the court may specify subject to the suspended commitment.

    C1. The appearance of the juvenile before the court for a hearing pursuant to subsection C may be by (i) personal appearance before the judge or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, a judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. A facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.

  4. A juvenile may only be ordered confined pursuant to this section to a facility in compliance with standards established by the State Board for such placements. Standards for these facilities shall require juveniles placed pursuant to this section for a period which exceeds 30 calendar days be provided separate services for their rehabilitation, consistent with the intent of this section.
  5. The Department of Juvenile Justice shall assist the localities or combinations thereof in implementing this section consistent with the statewide plan required by § 16.1-309.4 and pursuant to standards promulgated by the State Board, in order to ensure the availability and reasonable access of each court to the facilities the use of which is authorized by this section.

    (1985, c. 260; 1989, c. 733; 1995, cc. 696, 699; 1996, cc. 755, 914; 2000, c. 978; 2001, c. 140; 2012, c. 94; 2013, c. 651; 2015, c. 391.)

Cross references. - As to the establishment of a state pool of funds to be allocated to community policy and management teams under the Children's Services Act, see § 2.2-5211 .

The 2000 amendments. - The 2000 amendment by c. 978, effective July 1, 2002, rewrote this section.

The 2001 amendments. - The 2001 amendment by c. 140, in subsection A, inserted "of a violent juvenile felony," inserted present clause (ii) and redesignated former clauses (ii) and (iii) as present clauses (iii) and (iv); and substituted "shall" for "may" in subsection B.

The 2012 amendments. - The 2012 amendment by c. 94 added subsection C1; and made minor stylistic changes throughout the section.

The 2013 amendments. - The 2013 amendment by c. 651, in the first sentence of subsection B, inserted "and the juvenile is eligible for commitment pursuant to subdivision A 14 of § 16.1-278.8" and deleted "if he is eligible pursuant to subdivision A 14 of § 16.1-278.8" following "Department."

The 2015 amendments. - The 2015 amendment by c. 391 added the second sentence in the first paragraph of subsection A.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Assessment not completed. - Circuit court erred in sentencing a juvenile to serve more than 30 days of confinement because the statutorily-required assessment was not done. Cockrell v. Commonwealth, No. 0412-18-4, 2019 Va. App. LEXIS 78 (Apr. 9, 2019).

OPINIONS OF THE ATTORNEY GENERAL

ICE detainer is merely a request. - It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency's receipt of an ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may exercise its discretion to hold the juvenile until ICE officials assume custody, provided the Department does not hold the juvenile longer than thirty-six continuous months or past his twenty-first birthday. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15).

Attorney General declined to change opinion in 2015 opinion No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15), stating that issuance of an I-247A Immigration Detainer, whether or not accompanied by an I-200 Warrant for Arrest of Alien, does not obligate or authorize local law-enforcement to detain or arrest individuals for civil violations of immigration laws, unless the local law-enforcement agency has entered into a § 287(g) agreement with federal authorities authorizing and directing such action. See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, 18-050, 2019 Va. AG LEXIS 10 (4/12/19).

§ 16.1-285. Duration of commitments.

Except as provided in § 16.1-285.1, all commitments under this chapter shall be for an indeterminate period having regard to the welfare of the juvenile and interests of the public, but no juvenile committed hereunder shall be held or detained longer than thirty-six continuous months or after such juvenile has attained the age of twenty-one years. However, the thirty-six month limitation shall not apply in cases of commitment for an act of murder or manslaughter. The Department shall have the authority to discharge any juvenile or person from its custody, including releasing a juvenile or person to parole supervision, in accordance with policies and procedures established by the State Board and with other provisions of law. Parole supervision programs shall be operated through the court services units established pursuant to § 16.1-233. A juvenile or person who violates the conditions of his parole granted pursuant to this section may be proceeded against for a revocation or modification of parole status pursuant to § 16.1-291.

(Code 1950, § 16.1-180; 1956, c. 555; 1977, c. 559; 1985, cc. 260, 388; 1996, cc. 755, 914; 2000, cc. 954, 981, 988; 2001, c. 853.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in the first sentence, substituted "chapter" for "law," substituted "juvenile" for "child" in three places, inserted "longer than thirty-six continuous months or" following "detained," and deleted "however, any child" following "has attained the age of twenty-one years," added the present second sentence, inserted "Any juvenile" preceding "who is committed" in the present third sentence, and substituted "juvenile" for "child" in the last sentence.

The 2000 amendments. - The 2000 amendments by cc. 954, 981, and 988 are identical, and deleted the former third sentence, which read: "Any juvenile who is committed under this law as an abused or neglected child or a child in need of services shall have the right upon request to be released from such commitment at the age of eighteen years."

The 2001 amendments. - The 2001 amendment by c. 853 in the third sentence, inserted "or person" following "juvenile" and inserted "including releasing a juvenile or person to parole supervision," and added the fourth and fifth sentences.

Law review. - For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Immunity of officials who determined length of confinement. - Department officials who determined the length of juvenile's indeterminate confinement under former § 16.1-180 were entitled to quasi-judicial immunity and could not be sued for personal injuries suffered by victim assaulted by juvenile after his release. Harlow v. Clatterbuck, 230 Va. 490 , 339 S.E.2d 181 (1986).

OPINIONS OF THE ATTORNEY GENERAL

ICE detainer is merely a request. - It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency's receipt of an ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may exercise its discretion to hold the juvenile until ICE officials assume custody, provided the Department does not hold the juvenile longer than thirty-six continuous months or past his twenty-first birthday. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15).

Attorney General declined to change opinion in 2015 opinion No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15), stating that issuance of an I-247A Immigration Detainer, whether or not accompanied by an I-200 Warrant for Arrest of Alien, does not obligate or authorize local law-enforcement to detain or arrest individuals for civil violations of immigration laws, unless the local law-enforcement agency has entered into a § 287(g) agreement with federal authorities authorizing and directing such action. See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, 18-050, 2019 Va. AG LEXIS 10 (4/12/19).

§ 16.1-285.1. Commitment of serious offenders.

  1. In the case of a juvenile fourteen years of age or older who has been found guilty of an offense which would be a felony if committed by an adult, and either (i) the juvenile is on parole for an offense which would be a felony if committed by an adult, (ii) the juvenile was committed to the state for an offense which would be a felony if committed by an adult within the immediately preceding twelve months, (iii) the felony offense is punishable by a term of confinement of greater than twenty years if the felony was committed by an adult, or (iv) the juvenile has been previously adjudicated delinquent for an offense which if committed by an adult would be a felony punishable by a term of confinement of twenty years or more, and the circuit court, or the juvenile or family court, as the case may be, finds that commitment under this section is necessary to meet the rehabilitative needs of the juvenile and would serve the best interests of the community, then the court may order the juvenile committed to the Department of Juvenile Justice for placement in a juvenile correctional center for the period of time prescribed pursuant to this section.

    Alternatively, in order to determine if a juvenile, transferred from a juvenile and domestic relations district court to a circuit court pursuant to § 16.1-269.1, appropriately qualifies for commitment pursuant to this section, notwithstanding the inapplicability of the qualification criteria set forth in clauses (i) through (iv), the circuit court may consider the commitment criteria set forth in subdivisions 1, 2, and 3 of subsection B as well as other components of the juvenile's life history and, if upon such consideration in the opinion of the court the needs of the juvenile and the interests of the community would clearly best be served by commitment hereunder, may so commit the juvenile.

  2. Prior to committing any juvenile pursuant to this section, the court shall consider:
    1. The juvenile's age;
    2. The seriousness and number of the present offenses, including (i) whether the offense was committed in an aggressive, violent, premeditated, or willful manner; (ii) whether the offense was against persons or property, with greater weight being given to offenses against persons, especially if death or injury resulted; (iii) whether the offense involved the use of a firearm or other dangerous weapon by brandishing, displaying, threatening with or otherwise employing such weapon; and (iv) the nature of the juvenile's participation in the alleged offense;
    3. The record and previous history of the juvenile in this or any other jurisdiction, including (i) the number and nature of previous contacts with courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the offense is part of a repetitive pattern of similar adjudicated offenses; and
    4. The Department's estimated length of stay.

      Such commitment order must be supported by a determination that the interests of the juvenile and community require that the juvenile be placed under legal restraint or discipline and that the juvenile is not a proper person to receive treatment or rehabilitation through other juvenile programs or facilities.

  3. In ordering commitment pursuant to this section, the court shall specify a period of commitment not to exceed seven years or the juvenile's twenty-first birthday, whichever shall occur first. The court may also order a period of determinate or indeterminate parole supervision to follow the commitment but the total period of commitment and parole supervision shall not exceed seven years or the juvenile's twenty-first birthday, whichever occurs first.
  4. Upon receipt of a juvenile committed under the provisions of this section, the Department shall evaluate the juvenile for the purpose of considering placement of the juvenile in an appropriate juvenile correctional center for the time prescribed by the committing court. Such a placement decision shall be made based on the availability of treatment programs at the facility; the level of security at the facility; the offense for which the juvenile has been committed; and the welfare, age and gender of the juvenile.
  5. The court which commits the juvenile to the Department under this section shall have continuing jurisdiction over the juvenile throughout his commitment. The continuing jurisdiction of the court shall not prevent the Department from removing the juvenile from a juvenile correctional center without prior court approval for the sole purposes of routine or emergency medical treatment, routine educational services, or family emergencies.
  6. Any juvenile committed under the provisions of this section shall not be released at a time earlier than that specified by the court in its dispositional order except as provided for in § 16.1-285.2. The Department may petition the committing court, notwithstanding the terms of any plea agreement or commitment order, for a hearing as provided for in § 16.1-285.2 for an earlier release of the juvenile when good cause exists for an earlier release. In addition, notwithstanding the terms of any plea agreement or commitment order, the Department shall petition the committing court for a determination as to the continued commitment of each juvenile sentenced under this section at least sixty days prior to the second anniversary of the juvenile's date of commitment and sixty days prior to each annual anniversary thereafter.

    (1985, c. 260; 1989, c. 717; 1992, c. 484; 1994, cc. 859, 949; 1996, cc. 755, 914; 2001, c. 563; 2021, Sp. Sess. I, c. 284.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile correction center" for "learning center" in four places, in subsection A, deleted "or" at the end of clause (ii), inserted "or" at the end of clause (iii), added clause (iv), in subdivision B 4, substituted "estimated length" for "recommended length" and deleted "based on treatment goals enumerated in the social history report" following "of stay," added the second sentence in subsection C, in subsection D, in the second sentence, inserted "the availability of treatment programs at the facility; the level of security at the facility; the offense for which the juvenile has been committed; and" following "shall be made based on," and inserted "age and gender" preceding "of the juvenile."

The 2001 amendments. - The 2001 amendment by c. 563 added the second paragraph in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 284, effective July 1, 2021, inserted "notwithstanding the terms of any plea agreement or commitment order," twice in subsection F.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For article, "Legal Issues Involving Children," see 28 U. Rich. L. Rev. 1075 (1994).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, §§ 81, 86.

CASE NOTES

Court had authority to order combination of sentences which imposed a juvenile commitment and an adult prison sentence. The word "or" in subdivision A 2 of § 16.1-272 does not reflect a legislative intent to prohibit a judge from sentencing a juvenile both as an adult and as a juvenile "serious offender" under this section. Jackson v. Commonwealth, 29 Va. App. 418, 512 S.E.2d 838 (1999).

Commitment upheld on appeal. - Commitment and sentence of a juvenile as a serious offender was upheld on appeal based on his conviction of felony hit and run, reckless driving, and assault and battery because the trial court properly considered the juvenile's age and the aggressive, violent, and willful manner of the incident, along with the extensive injuries suffered by the victim, which resulted from the juvenile purposely hitting a park game warden with his ATV when the game warden was trying to stop the juvenile. Mattox v. Commonwealth, 46 Va. App. 577, 620 S.E.2d 550, 2005 Va. App. LEXIS 390 (2005).

Trial court properly sentenced defendant to an indeterminate commitment as a serious juvenile offender because the terms "child," "juvenile," and "minor" were interchangeable, the term "may" provided the trial court with discretion to commit a "delinquent child" to the Department of Juvenile Justice and, while defendant was over 18 by the time of trial, he nevertheless was subject to commitment to the Department because he was under the age of 18 at the time of the offense. Travezano v. Commonwealth, No. 1654-13-4, 2014 Va. App. LEXIS 336 (Oct. 7, 2014).

OPINIONS OF THE ATTORNEY GENERAL

ICE detainer is merely a request. - It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency's receipt of an ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may exercise its discretion to hold the juvenile until ICE officials assume custody, provided the Department does not hold the juvenile longer than thirty-six continuous months or past his twenty-first birthday. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15).

Attorney General declined to change opinion in 2015 opinion No. 14-067, 2015 Va. AG LEXIS 1 (1/5/15), stating that issuance of an I-247A Immigration Detainer, whether or not accompanied by an I-200 Warrant for Arrest of Alien, does not obligate or authorize local law-enforcement to detain or arrest individuals for civil violations of immigration laws, unless the local law-enforcement agency has entered into a § 287(g) agreement with federal authorities authorizing and directing such action. See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, 18-050, 2019 Va. AG LEXIS 10 (4/12/19).

§ 16.1-285.2. Release and review hearing for serious offender.

  1. Upon receipt of a petition of the Department of Juvenile Justice for a hearing concerning a juvenile committed under § 16.1-285.1, the court shall schedule a hearing within thirty days and shall appoint counsel for the juvenile pursuant to § 16.1-266. The court shall provide a copy of the petition, the progress report required by this section, and notice of the time and place of the hearing to (i) the juvenile, (ii) the juvenile's parent, legal guardian, or person standing in loco parentis, (iii) the juvenile's guardian ad litem, if any, (iv) the juvenile's legal counsel, and (v) the attorney for the Commonwealth who prosecuted the juvenile during the delinquency proceeding. The attorney for the Commonwealth shall provide notice of the time and place of the hearing by first-class mail to the last known address of any victim of the offense for which the juvenile was committed if such victim has submitted a written request for notification to the attorney for the Commonwealth.
  2. The petition shall be filed in the committing court and shall be accompanied by a progress report from the Department. This report shall describe (i) the facility and living arrangement provided for the juvenile by the Department, (ii) the services and treatment programs afforded the juvenile, (iii) the juvenile's progress toward treatment goals and objectives, which shall include a summary of his educational progress, (iv) the juvenile's potential for danger to either himself or the community, and (v) a comprehensive aftercare plan for the juvenile.

    B1. The appearance of the juvenile before the court may be by (i) personal appearance before the judge, or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, a judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. A facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.

  3. At the hearing the court shall consider the progress report. The court may also consider additional evidence from (i) probation officers, the juvenile correctional center, treatment professionals, and the court service unit; (ii) the juvenile, his legal counsel, parent, guardian or family member; or (iii) other sources the court deems relevant. The hearing and all records relating thereto shall be governed by the confidentiality provisions of Article 12 (§ 16.1-299 et seq.) of this chapter.
  4. At the conclusion of the hearing and notwithstanding the terms of any plea agreement or commitment order, the court shall order (i) continued commitment of the juvenile to the Department for completion of the original determinate period of commitment or such lesser time as the court may order or (ii) release of the juvenile under such terms and conditions as the court may prescribe. In making a determination under this section, the court shall consider (i) the experiences and character of the juvenile before and after commitment, (ii) the nature of the offenses that the juvenile was found to have committed, (iii) the manner in which the offenses were committed, (iv) the protection of the community, (v) the recommendations of the Department, and (vi) any other factors the court deems relevant. The order of the court shall be final and not subject to appeal.
  5. In the case of a juvenile convicted as an adult and committed as a serious offender under subdivision A 1 of § 16.1-272, at the conclusion of the review hearing and notwithstanding the terms of any plea agreement or commitment order, the circuit court shall order (i) the juvenile to begin serving any adult sentence in whole or in part that may include any remaining part of the original determinate period of commitment, or (ii) the suspension of the unserved portion of the adult sentence in whole or in part based upon the juvenile's successful completion of the commitment as a serious offender, or (iii) the continued commitment of the juvenile to the Department for completion of the original determinate period of commitment or such lesser time as the court may order, or (iv) the release of the juvenile under such terms and conditions as the court may prescribe.

    (1994, cc. 859, 949; 1995, c. 536; 1996, cc. 755, 914; 2002, c. 511; 2021, Sp. Sess. I, c. 284.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and added the last sentence of subsection A, added subdivision B 1, and substituted "juvenile correctional center" for "learning center" near the middle of clause (i) of subsection C.

The 2002 amendments. - The 2002 amendment by ch. 511 added subsection E.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 284, effective July 1, 2021, inserted "and notwithstanding the terms of any plea agreement or commitment order" in subsections D and E.

CASE NOTES

Jurisdiction. - Defendant's §§ 16.1-289 and 16.1-285.2 challenges were not jurisdictional as they pertained to specific proceedings that were part of particular, individual cases before the court, and governed the trial court's authority to exercise its subject matter jurisdiction, not the subject of cases that could be heard and ruled upon by trial courts; subject matter jurisdiction was conferred by statute according to the subject of the case rather than according to a particular proceeding that might be one part of the case. Edmonds v. Commonwealth, No. 1577-11-4, 2013 Va. App. LEXIS 71 (Mar. 5, 2013).

Progress report. - Defendant waived his non-jurisdictional challenges to the absence of the progress report required under subsections B and C of § 16.1-285.2 as he did not object at either the initial or the continued hearing; the ends of justice exception to Va. Sup. Ct. R. 5A:18 did not apply as the untimely filing of the progress report was corrected by presenting the progress report at the hearing and continuing the hearing to consider the report. Edmonds v. Commonwealth, No. 1577-11-4, 2013 Va. App. LEXIS 71 (Mar. 5, 2013).

Time constraints. - Defendant waived his non-jurisdictional challenges to the continuance of the initial hearing that put his hearing outside of the § 16.1-285.2 time constraints and the ruling that was made outside of the time constraints as he did not object at either the initial or the continued hearing; the ends of justice exception to Va. Sup. Ct. R. 5A:18 did not apply as: (1) the order revoking defendant's suspended sentence was voidable, not void as the trial court had jurisdiction; (2) the trial court scheduled and initiated a hearing on May 4, 2011, during which it granted a continuance and scheduled a date for the review hearing; and (3) both of these actions took place 28 days after the April 6, 2011, petition, and were within the § 16.1-285.2 time period for scheduling and holding the initial hearing, and scheduling the continued hearing. Edmonds v. Commonwealth, No. 1577-11-4, 2013 Va. App. LEXIS 71 (Mar. 5, 2013).

OPINIONS OF THE ATTORNEY GENERAL

Computerized system to notify crime victims could not be used for inmates who were juveniles when crimes were committed. - Because the statutes relating to rights of victims involved in juvenile matters contained in Chapter 11 of Title 16.1 control over the general statutes relating to rights of victims as set forth in the Crime Victim and Witness Rights Act, a computerized system by which registered crime victims would be updated with information regarding future court dates, transfers, and releases of active inmates incarcerated in the city jail could not be used to provide information to victims in cases where the inmate was a juvenile when the crime was committed. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff for the City of Norfolk, 01-058, 2001 Va. AG LEXIS 69 (12/17/01).

§ 16.1-286. Cost of maintenance; approval of placement; semiannual review.

  1. When the court determines that the behavior of a child within its jurisdiction is such that it cannot be dealt with in the child's own locality or with the resources of his locality, the judge shall refer the child to the locality's family assessment and planning team for assessment and a recommendation for services. Based on this recommendation, the court may take custody and place the child, pursuant to the provisions of subdivision 5 of § 16.1-278.4 or subdivision A 13 b of § 16.1-278.8, in a private or locally operated public facility, or nonresidential program with funding in accordance with the Children's Services Act (§ 2.2-5200 et seq.). No child shall be placed outside the Commonwealth by a court without first complying with the appropriate provisions of Chapter 11 (§ 63.2-1100 et seq.) of Title 63.2 or with regulations of the State Board of Social Services relating to resident children placed out of the Commonwealth. The Board shall establish a per diem allowance to cover the cost of such placements. This allowance may be drawn from funds allocated through the state pool of funds to the community policy and management team of the locality where the child resides as such residence is determined by the court.
  2. The court service unit of the locality which made the placement shall be responsible for monitoring and supervising all children placed pursuant to this section. The court shall receive and review, at least semiannually, recommendations concerning the continued care of each child in such placements.

    (Code 1950, § 16.1-181.1; 1976, c. 464; 1977, c. 559; 1978, c. 310; 1982, c. 166; 1987, c. 667; 1989, c. 733; 1991, c. 534; 1992, cc. 732, 837, 880; 1995, cc. 696, 699; 1997, c. 347; 1999, c. 669; 2003, c. 579; 2015, c. 366; 2021, Sp. Sess. I, c. 283.)

Cross references. - As to the establishment of a state pool of funds to be allocated to community policy and management teams under the Children's Services Act, see § 2.2-5211 .

Editor's note. - Acts 1995, cc. 696 and 699, cls. 2 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of the Virginia Juvenile Community Crime Control Act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

The 1995 amendments. - The 1995 amendments by cc. 696 and 699 are identical, and in subsection A, in the second sentence deleted "b" following "subdivision 5", inserted "programs and" following "excluding those", and substituted " § 16.1-309.5" for " §§ 16.1-313 and 16.1-322.1." For effective date, see the Editor's note.

The 1999 amendment substituted "with funding in accordance with the Comprehensive Services Act for At-Risk Youth and families ( § 2.1-745 et seq.)" for "and approved by the State Board of Juvenile Justice" in the second sentence of subsection A.

The 2003 amendments. - The 2003 amendment by c. 579 substituted "pursuant to § 16.1-290" for "in such manner as the court may direct, reasonable sums commensurate with the ability to pay toward the support and treatment of the child placed in a program pursuant to this section" in the second paragraph of subsection A; and deleted former subsection C, which read: "The Director shall cause a current roster to be maintained concerning the whereabouts of all children placed pursuant to this section."

The 2015 amendments. - The 2015 amendment by c. 366 substituted "Children's Services Act" for "Comprehensive Services Act for At-Risk Youth and Families" in the second sentence of subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 283, effective July 1, 2021, deleted the last four sentences in the second paragraph of subsection A, which read "The cost, however, shall not exceed that amount which would be incurred if the services required by the child were provided in a juvenile facility operated by the Department of Juvenile Justice. However, when the court determines after an investigation and a hearing that the child's parent or other person legally obligated to provide support is financially able to contribute to support of the child, the court may order that the parent or other legally obligated person pay, pursuant to § 16.1-290. If the parent or other obligated person willfully fails or refuses to pay such sum, the court may proceed against him for contempt. Alternatively, the court, after reasonable notice to the obligor, may enter an order adjudicating that the obligor is delinquent and such order shall have the effect of a civil judgment when duly docketed in the manner prescribed for the docketing of other judgments for money provided."

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

Michie's Jurisprudence. - For related discussion, see 14A M.J. Parent and Child, § 1.

OPINIONS OF THE ATTORNEY GENERAL

Transportation of juveniles. - Statute authorizes the chief judge of a juvenile and domestic relations district court to order that local law-enforcement personnel shall be responsible for transporting violent and disruptive juveniles to court-ordered out-of-state destinations; when a local law-enforcement officer is transporting a prisoner in another state, he has only such law-enforcement authority over the prisoner as may be provided by the laws of that state. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, No. 16-037, 2017 Va. AG LEXIS 12 (4/6/17).

§ 16.1-287. Transfer of information upon commitment; information to be furnished by and to local school boards.

Whenever the court commits a child to the Department of Juvenile Justice, or to any other institution or agency, it shall transmit with the order of commitment copies of the clinical reports, predisposition study and other information it has pertinent to the care and treatment of the child. The Department shall not be responsible for any such committed child until it has received the court order and the information concerning the child. All local school boards shall be required to furnish the Department promptly with any information from their files that the Department deems to be necessary in the classification, evaluation, placement or treatment of any child committed to the Department. The Department of Juvenile Justice's Education Division, pursuant to § 22.1-289, shall likewise be required to furnish local school boards academic, and career and technical education and related achievement information promptly from its files that the local school board may deem necessary when children are returned to the community from the Department's care. The Department and other institutions or agencies shall give to the court such information concerning the child as the court at any time requires. All such information shall be treated as confidential.

(Code 1950, § 16.1-181; 1956, c. 555; 1974, cc. 44, 45, 266; 1977, c. 559; 1981, c. 487; 1989, c. 733; 2001, c. 483; 2005, c. 154; 2012, cc. 803, 835.)

The 2001 amendments. - The 2001 amendment by c. 483 substituted "their files that" for "its files which" in the third sentence, and in the fourth sentence, substituted "and career and technical education" for "vocational" and substituted "that" for "which."

The 2005 amendments. - The 2005 amendment by c. 154 inserted "of Correctional Education pursuant to §§ 22.1-289 and 22.1-344, in cooperation with the Department of Juvenile Justice" in the fourth sentence.

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and substituted "Juvenile Justice's Education Division" for "Correctional Education" and deleted "and 22.1-344, in cooperation with the Department of Juvenile Justice" following "pursuant to § 22.1-289."

§ 16.1-288. Protection of religious affiliations.

In placing a child under the guardianship or custody of an individual or of a private agency or institution, the court shall whenever practicable select a person, or an agency or institution governed by persons, of the same religious faith as that of the parents of the child, or in case of a difference in the religious faith of the parents and religious faith of the child, or, if the religious faith of the child is not ascertainable, then of the faith of either of the parents or of the child, unless the parent or parents of the child waive such selection.

(Code 1950, § 16.1-182; 1956, c. 555; 1977, c. 559.)

§ 16.1-289. Review of order of commitment.

The juvenile court or the circuit court, as the case may be, of its own motion may reopen any case and may modify or revoke its order. The juvenile court or the circuit court shall before modifying or revoking such order grant a hearing after notice in writing to the complainant, if any, and to the person or agency having custody of the child; provided, however, that this section shall not apply in the case of a child committed to the Department after sixty days from the date of the order of commitment.

(Code 1950, § 16.1-183; 1956, c. 555; 1977, c. 559.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 86.

CASE NOTES

A commitment review is not a reexamination of the underlying order of delinquency or commitment but it permits the trial court to evaluate the utility of continuing commitment in the light of post-commitment developments and circumstances. Richardson v. Commonwealth, 28 Va. App. 389, 504 S.E.2d 884 (1998).

Sixty-day limitation. - Trial court properly concluded that it did not have the authority to review the juvenile's commitment order where it had entered an order committing the juvenile to the state juvenile justice department, it had continued that commitment order at a second hearing, and at the third hearing it was pointed out to the trial court that the trial court could not again review the commitment order because more than 60 days had passed since entry of the initial commitment order, which contravened the express language of § 16.1-289 regarding review of commitment orders. Washington v. Commonwealth, No. 1002-06-4, 2007 Va. App. LEXIS 278 (July 24, 2007).

Defendant's §§ 16.1-289 and 16.1-285.2 challenges were not jurisdictional as they pertained to specific proceedings that were part of particular, individual cases before the court, and governed the trial court's authority to exercise its subject matter jurisdiction, not the subject of cases that could be heard and ruled upon by trial courts; subject matter jurisdiction was conferred by statute according to the subject of the case rather than according to a particular proceeding that might be one part of the case. Edmonds v. Commonwealth, No. 1577-11-4, 2013 Va. App. LEXIS 71 (Mar. 5, 2013).

CIRCUIT COURT OPINIONS

Jurisdiction of circuit court. - Although a juvenile court lacked jurisdiction to hold a commitment review hearing more than sixty days after the original commitment hearing, Va. Sup. Ct. R. 3A:19 was applicable because the court convicted the juvenile of assault and battery of a family or household member, a misdemeanor. The case was properly before the circuit court, which had to hear the matter de novo, because the juvenile properly advised the juvenile court of the juvenile's intention to appeal the order and the court noted the intention to appeal and filed it in the clerk's office. Commonwealth v. Giles, 87 Va. Cir. 320, 2013 Va. Cir. LEXIS 135 (Roanoke Dec. 10, 2013).

§ 16.1-289.1. Motions to reconsider orders for participation in continuing programs.

When a person is ordered to participate in therapy, counseling or similar continuing programs, a motion may be filed with the court to reconsider the order, whether interlocutory or final, or the terms and conditions of participation at any time after the order is entered. The motion shall be heard within thirty days. Any order disposing of such motion shall be deemed to be a final order for purposes of appeal pursuant to Article 11 (§ 16.1-296 et seq.), of this chapter.

(1988, c. 771.)

§ 16.1-290. Support of committed juvenile; support from estate of juvenile.

  1. Whenever (i) legal custody of a juvenile is vested by the court in someone other than his parents or (ii) a juvenile is placed in temporary shelter care regardless of whether or not legal custody is retained by his parents, after due notice in writing to the parents, the court, pursuant to §§ 20-108.1 and 20-108.2 , or the Department of Social Services, pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2, shall order the parents to pay support to the Department of Social Services. If the parents fail or refuse to pay such support, the court may proceed against them for contempt, or the order may be filed and shall have the effect of a civil judgment. The provisions of this subsection shall not apply to a juvenile who is placed in temporary custody of the Department pursuant to subdivision A 4a of § 16.1-278.8 or committed to the Department pursuant to subdivision A 14 or A 17 of § 16.1-278.8.
  2. If a juvenile has an estate in the hands of a guardian or trustee, the guardian or trustee may be required to pay for his education and maintenance so long as there may be funds for that purpose.
  3. Whenever a juvenile is placed in foster care by the court, the court shall order and decree that the parents shall pay the Department of Social Services pursuant to §§ 20-108.1 , 20-108.2 , 63.2-909 , and 63.2-1910 . (Code 1950, §§ 16.1-184, 16.1-185; 1956, c. 555; 1972, c. 177; 1977, c. 559; 1995, cc. 448, 817; 1996, cc. 755, 914; 2003, c. 579; 2006, c. 282; 2021, Sp. Sess. I, c. 283.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 283, cl. 2 provides: "That any child support order entered pursuant to the provisions of former subsection D of § 16.1-290 of the Code of Virginia in effect prior to the enactment of this act is terminated, provided, however, that the provisions of this enactment clause do not modify, reduce, or forgive any arrearages or liens accumulated or established under any order in effect through June 30, 2021.”

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in subsection A, in the first sentence, added the clause (i) and (ii) designations, added the clause (a) and (b) designations, deleted "whenever" at the end of clause (i), added "or" at the end of clause (a), and in clause (b), inserted "placed in temporary physical custody of the Department pursuant to subdivision 4a of § 16.1-278.8" preceding "after due notice," and substituted "cover all or part of the cost of support" for "cover in whole or in part the support."

The 2003 amendments. - The 2003 amendment by c. 579, in subsection A, deleted the clause (ii) (a) designation, deleted "or" following "by his parents," and deleted former clause (ii) (b), which read: "placed in temporary physical custody of the Department pursuant to subdivision 4a of § 16.1-278.8"; and added subsection D.

The 2006 amendments. - The 2006 amendment by c. 282, in subsection A, substituted the language beginning "in writing to the parents" for "to the parents or other persons legally obligated to care for and support the juvenile, and after an investigation and hearing, the court shall order and decree that the parent or other legally obligated person shall pay, in such a manner as the court may direct, a reasonable sum commensurate with the ability to pay, that will cover all or part of the cost of support and treatment of the juvenile after the decree is entered" in the first sentence and substituted the second sentence for "If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against him for contempt, or the order may be filed and shall have the effect of a civil judgment"; substituted "parents" for "parent or other legally obligated person" in subsection C; and in subsection D, inserted "or A 17," substituted "Department of Social Services" for "appropriate division in the Department of Social Services responsible for child support enforcement," and added the last two sentences.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 283, effective July 1, 2021, added the last sentence in subsection A; deleted former subsection D, which read "Whenever a juvenile is placed in temporary custody of the Department pursuant to subdivision A 4a of § 16.1-278.8 or committed to the Department pursuant to subdivision A 14 or A 17 of § 16.1-278.8, the Department shall apply for child support with the Department of Social Services. The parents shall be responsible for child support, pursuant to § § 20-108.1 and 20-108.2 , from the date the Department receives the juvenile. The Department shall notify in writing the parents of their responsibilities to pay child support from the date the Department receives the juvenile."

Law review. - For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

§ 16.1-290.1. Payment for court-ordered counseling, treatment or programs.

The court shall order the participant in any treatment, counseling or other program for the rehabilitation of a minor child or his family to pay as much of the applicable fee for participation as such person is able to pay. A finding of guilt shall not be required for the court so to order payment.

(2004, c. 573.)

Article 10. Probation and Parole.

§ 16.1-291. Revocation or modification of probation, protective supervision or parole; proceedings; disposition.

  1. A juvenile or person who violates an order of the juvenile court entered into pursuant to §§ 16.1-278.2 through 16.1-278.10 or § 16.1-284, who violates the conditions of his probation granted pursuant to § 16.1-278.5 or 16.1-278.8, or who violates the conditions of his parole granted pursuant to § 16.1-285, 16.1-285.1 or 16.1-293, may be proceeded against for a revocation or modification of such order or parole status. A proceeding to revoke or modify probation, protective supervision or parole shall be commenced by the filing of a petition. Except as otherwise provided, such petitions shall be screened, reviewed and prepared in the same manner and shall contain the same information as provided in §§ 16.1-260 and 16.1-262. The petition shall recite the date that the juvenile or person was placed on probation, under protective supervision or on parole and shall state the time and manner in which notice of the terms of probation, protective supervision or parole were given.
  2. If a juvenile or person is found to have violated a prior order of the court or the terms of probation or parole, the court may, in accordance with the provisions of §§ 16.1-278.2 through 16.1-278.10, upon a revocation or modification hearing, modify or extend the terms of the order of probation or parole, including termination of probation or parole. However, notwithstanding the contempt power of the court as provided in § 16.1-292, the court shall be limited in the actions it may take to those that the court may have taken at the time of the court's original disposition pursuant to §§ 16.1-278.2 through 16.1-278.10, except as hereinafter provided.
  3. In the event that a child in need of supervision is found to have willfully and materially violated an order of the court or the terms of his probation granted pursuant to § 16.1-278.5, in addition to or in lieu of the dispositions specified in that section, the court may enter any of the following orders of disposition:
    1. Suspend the child's driver's license upon terms and conditions which may include the issuance of a restricted license for those purposes set forth in subsection E of § 18.2-271.1 ; or
    2. Order any such child fourteen years of age or older to be (i) placed in a foster home, group home or other nonsecure residential facility, or, (ii) if the court finds that such placement is not likely to meet the child's needs, that all other treatment options in the community have been exhausted, and that secure placement is necessary in order to meet the child's service needs, detained in a secure facility for a period of time not to exceed ten consecutive days for violation of any order of the court or violation of probation arising out of the same petition. The court shall state in its order for detention the basis for all findings required by this section. When any child is detained in a secure facility pursuant to this section, the court shall direct the agency evaluating the child pursuant to § 16.1-278.5 to reconvene the interdisciplinary team participating in such evaluation, develop further treatment plans as may be appropriate and submit its report to the court of its determination as to further treatment efforts either during or following the period the child is in secure detention. A child may only be detained pursuant to this section in a detention home or other secure facility in compliance with standards established by the State Board. Any order issued pursuant to this subsection is a final order and is appealable as provided by law.
  4. Nothing in this section shall be construed to reclassify a child in need of supervision as a delinquent.
  5. If a person adjudicated delinquent and found to have violated an order of the court or the terms of his probation or parole was a juvenile at the time of the original offense and is eighteen years of age or older when the court enters disposition for violation of the order of the court or the terms of his probation or parole, the dispositional alternative specified in § 16.1-284 shall be available to the court.

    (Code 1950, § 16.1-188; 1956, c. 555; 1977, c. 559; 1991, c. 534; 1992, c. 90; 2001, c. 853; 2016, c. 626.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2001 amendments. - The 2001 amendment by c. 853, in subsection A, rewrote the first sentence, which formerly read "A child who violates an order of the juvenile court entered into pursuant to §§ 16.1-278.2 through 16.1-278.10 or who violates the conditions of his or her parole granted pursuant to § 16.1-293 may be proceeded against for a revocation or modification of such order or parole status," substituted "juvenile or person" for "child" in the fourth sentence, and deleted the former last sentence in the subsection, which dealt with the procedures to be used in modification or revocation proceedings; in subsection B, in the first sentence, substituted "juvenile or person" for "child" near the beginning of the sentence, inserted "probation or" preceding "parole," twice, inserted "of probation" preceding "or parole," deleted "or make any other disposition of the child" from the end of the first sentence, and added the last sentence; and added subsections C, D, and E.

The 2016 amendments. - The 2016 amendment by c. 626, in the first sentence of subsection A, inserted "or § 16.1-284" and deleted the section symbol preceding "16.1-278.8," "16.1-285" and "16.1-293."

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

CASE NOTES

Circuit court retained jurisdiction over juvenile parole revocation proceeding. - Where the circuit court acquired jurisdiction over an appeal de novo of a juvenile proceeding, the circuit court retained jurisdiction to hear a parole revocation proceeding concerning the juvenile upon her release from the department of juvenile justice. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Petition to revoke parole need not be filed in juvenile court. - Subsection A describes the process necessary to initiate a revocation proceeding. It does not require the petition to be filed only in the juvenile court. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Meaning of "original proceedings." - The "original proceedings" referred to in the former last sentence of subsection A, which prior to its deletion by the General Assembly in 2001 provided that proceedings to revoke or modify probation, protective supervision or parole should be governed by the procedures, safeguards, rights and duties applicable to the original proceedings, were not the original adjudicatory proceedings in the prosecution, but the original dispositional proceedings. Commonwealth v. Pannell, 263 Va. 497 , 561 S.E.2d 724, 2002 Va. LEXIS 53 (2002).

The General Assembly's elimination of the sentence at issue as part of the 2001 amendments to § 16.1-291 does not require a finding that the General Assembly's action was undertaken to alter the meaning of the phrase "original proceedings." Commonwealth v. Pannell, 263 Va. 497 , 561 S.E.2d 724, 2002 Va. LEXIS 53 (2002).

Commitment to Department of Juvenile Justice. - Trial court did not err in finding, upon determining that the juvenile violated the juvenile's probation, that the juvenile should be committed to the Department of Juvenile Justice for an indeterminate period; although the juvenile argued that the "original disposition" and "current offense" for such a disposition had to be a felony or Class 1 misdemeanor and the juvenile's case merely involved a probation violation, the underlying offense on which the juvenile received probation was a felony robbery, and, thus, commitment to the Department of Juvenile Justice was permissible because it could have been made in originally deciding the juvenile's punishment even though the juvenile's proceeding was indeed a probation revocation proceeding. Kerns v. Commonwealth, No. 0230-06-4, 2007 Va. App. LEXIS 175 (May 1, 2007).

Trial court had authority pursuant to §§ 16.1-278.8 and 16.1-291 to impose a suspended Department of Juvenile Justice commitment upon defendant juvenile's violation of the conditions of his probation because defendant's underlying offense, larceny of animals, was a form of grand larceny, and it remained a felony each time defendant came before the trial court on a probation violation; the term, "original disposition" in subsection B of § 16.1-291 plainly refers to the dispositional proceeding for the larceny of animals offense held under subsection A of § 16.1-278.8, in which the original conditions of probation were imposed. Rivas v. Commonwealth, 51 Va. App. 507, 659 S.E.2d 524, 2008 Va. App. LEXIS 173 (2008).

Standard in juvenile probation revocation proceedings. - There is no constitutional requirement that a court apply a reasonable doubt standard or exclude hearsay evidence in an adult probation revocation proceeding, nor are such standards required in juvenile proceedings. Commonwealth v. Pannell, 263 Va. 497 , 561 S.E.2d 724, 2002 Va. LEXIS 53 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Probation revocation proceedings. - A juvenile court retains jurisdiction over a probationer although he has reached the age of twenty-one prior to a probation revocation proceeding. See opinion of Attorney General to Honorable Harvey L. Bryant, Commonwealth's Attorney for the City of Virginia Beach, 05-037, 2005 Va. AG LEXIS 26 (6/20/05).

§ 16.1-292. Violation of court order by any person.

  1. Any person violating an order of the juvenile court entered pursuant to §§ 16.1-278.2 through 16.1-278.19 or § 16.1-284, including a parent subject to an order issued pursuant to subdivision A 3 of § 16.1-278.8, may be proceeded against (i) by an order requiring the person to show cause why the order of the court entered pursuant to §§ 16.1-278.2 through 16.1-278.19 has not been complied with, (ii) for contempt of court pursuant to § 16.1-69.24 or as otherwise provided in this section, or (iii) by both. Except as otherwise expressly provided herein, nothing in this chapter shall deprive the court of its power to punish summarily for contempt for such acts as set forth in § 18.2-456 , or to punish for contempt after notice and an opportunity for a hearing on the contempt except that confinement in the case of a juvenile shall be in a secure facility for juveniles rather than in jail and shall not exceed a period of seven days for each offense. However, if the person violating the order was a juvenile at the time of the original act and is 18 years of age or older when the court enters a disposition for violation of the order, the judge may order confinement in jail. If a juvenile is found to have violated a court order as a status offender, any order of disposition of such violation confining the juvenile in a secure facility for juveniles shall (a) identify the valid court order that has been violated; (b) specify the factual basis for determining that there is reasonable cause to believe that the juvenile has violated such order; (c) state the findings of fact that support a determination that there is no appropriate less restrictive alternative available to placing the juvenile in such a facility, with due consideration to the best interest of the juvenile; (d) specify the length of time of such confinement, not to exceed seven days; and (e) include a plan for the juvenile's release from such facility. Such order of confinement shall not be renewed or extended.
  2. Upon conviction of any party for contempt of court in failing or refusing to comply with an order of a juvenile court for spousal support or child support under § 16.1-278.15, the court may commit and sentence such party to confinement in a jail, workhouse, city farm, or work squad as provided in §§ 20-61 and 20-62 , for a fixed or indeterminate period or until the further order of the court. In no event, however, shall such sentence be imposed for a period of more than 12 months. The sum or sums as provided for in § 20-63 shall be paid as therein set forth, to be used for the support and maintenance of the spouse or the child or children for whose benefit such order or decree provided.
  3. Notwithstanding the contempt power of the court, the court shall be limited in the actions it may take with respect to a child violating the terms and conditions of an order to those which the court could have taken at the time of the court's original disposition pursuant to §§ 16.1-278.2 through 16.1-278.10, except as hereinafter provided. However, this limitation shall not be construed to deprive the court of its power to (i) punish a child summarily for contempt for acts set forth in § 18.2-456 subject to the provisions of subsection A or (ii) punish a child for contempt for violation of a dispositional order in a delinquency proceeding after notice and an opportunity for a hearing regarding such contempt, including acts of disobedience of the court's dispositional order which are committed outside the presence of the court.
  4. In the event a child in need of services is found to have willfully and materially violated for a second or subsequent time the order of the court pursuant to § 16.1-278.4, the dispositional alternatives specified in subdivision A 9 of § 16.1-278.8 shall be available to the court.
  5. In the event that a child in need of supervision is found to have willfully and materially violated an order of the court pursuant to § 16.1-278.5, the court may enter any of the following orders of disposition:
    1. Suspend the child's motor vehicle driver's license;
    2. Order any such child 14 years of age or older to be (i) placed in a foster home, group home, or other nonsecure residential facility or, (ii) if the court finds that such placement is not likely to meet the child's needs, that all other treatment options in the community have been exhausted, and that secure placement is necessary in order to meet the child's service needs, detained in a secure facility for a period of time not to exceed seven consecutive days for violation of any order of the court arising out of the same petition. The court shall state in its order for detention the basis for all findings required by this section. In addition, any order of disposition for such violation confining the child in a secure facility for juveniles shall (a) identify the valid court order that has been violated; (b) specify the factual basis for determining that there is reasonable cause to believe that the child has violated such order; (c) state the findings of fact that support a determination that there is no appropriate less restrictive alternative available to placing the child in such a facility, with due consideration to the best interest of the child; (d) specify the length of time of such confinement, not to exceed seven days; and (e) include a plan for the child's release from such facility. Such order of confinement shall not be renewed or extended. When any child is detained in a secure facility pursuant to this section, the court shall direct the agency evaluating the child pursuant to § 16.1-278.5 to reconvene the interdisciplinary team participating in such evaluation as promptly as possible to review its evaluation, develop further treatment plans as may be appropriate and submit its report to the court for its determination as to further treatment efforts either during or following the period the child is in secure detention. A juvenile may only be detained pursuant to this section in a detention home or other secure facility in compliance with standards established by the State Board. Any order issued pursuant to this subsection is a final order and is appealable to the circuit court as provided by law.
  6. Nothing in this section shall be construed to reclassify a child in need of services or in need of supervision as a delinquent.

    (1977, c. 559; 1983, c. 501; 1985, cc. 1, 260; 1987, c. 632; 1988, c. 771; 1989, c. 725; 1990, c. 110; 1991, c. 534; 1993, c. 632; 1994, c. 21; 2000, c. 978; 2016, c. 626; 2020, c. 593.)

Cross references. - As to escapes from juvenile facilities, see § 18.2-477.1 .

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

At the direction of the Virginia Code Commission, in subdivision E 2, substituted "(d)” for "(iv)” and "(e)” for "(v)” to continue the lettering sequence.

The 2000 amendments. - The 2000 amendment by c. 978, in subsection A, deleted the clause (i) designator preceding "in jail" and deleted "or (ii) in a secure facility for juveniles provided the judge finds from the evidence that the presence of the person in such a facility is consistent with assuring the safety of the children confined in the facility and the staff of the facility and the finding is in writing and included in the order" at the end of subsection A.

The 2016 amendments. - The 2016 amendment by c. 626 inserted "or § 16.1-284" near the beginning of subsection A.

The 2020 amendments. - The 2020 amendment by c. 593, in subsection A, substituted "seven" for "ten" in the second sentence and added the last two sentences; in subsection C, inserted "subject to the provisions of subsection A" in clause (i) in the last sentence; in subsection E, inserted "that" in the introductory language; in subdivision E 2, substituted "seven" for "ten" in clause (ii) in the first sentence and inserted the third and fourth sentences; and made stylistic changes.

Law review. - For 1985 survey of Virginia law affecting children, see 19 U. Rich. L. Rev. p. 753 (1985).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

Research References. - Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 7 Family Support Obligations. § 7.5 Contempt. Rendleman.

CASE NOTES

Authority to punish for contempt of order to attend school. - Where an order to attend school had been violated, subsection A of § 16.1-292 authorized the juvenile and domestic relations court and the trial court to punish for contempt; thus, as the record clearly supported the trial court's finding that the juvenile violated the school attendance order, subsection A of § 16.1-292 provided for the penalty adjudicated. B.P. v. Commonwealth, 38 Va. App. 735, 568 S.E.2d 412, 2002 Va. App. LEXIS 498 (2002).

The circuit court lacked authority to sentence juvenile to jail, where the proceeding was one in which the juvenile had not been certified as an adult. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

"Jail." - For case construing the word "jail" in circuit court's order to mean "the appropriate location for juvenile confinement," see Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

Placement in a residential facility and requiring the parents to pay for the placement was proper. - Trial court's order placing a juvenile in a non-secure residential facility and requiring the parents to pay for the placement did not violate subsection E of § 16.1-292. The circuit judge found that the juvenile was "doing well and making progress," and the judge's interlocutory order was consistent with the primary purpose of the juvenile system in Virginia, which was corrective in nature rather than penal. Aylor v. Madison County Dep't of Soc. Servs., No. 3110-05-2, 2006 Va. App. LEXIS 496 (Oct. 31, 2006).

CIRCUIT COURT OPINIONS

Multiple confinement orders proper. - Under either § 18.2-456 or subsection E of § 16.1-292, there can be multiple confinement orders for violations of orders to attend school, issued under the same Child In Need of Supervision petition. Commonwealth v. May, 62 Va. Cir. 360, 2003 Va. Cir. LEXIS 275 (Rockingham County 2003).

Punishment for contempt. - Under this section, detention may be ordered for contempt of a court order to go to school (with no need to show the futility of less restrictive remedies), but the failure to go to school without a court order can only be punished by detention if the procedural and substantive safeguards of subsection E of § 16.1-292 are observed. Commonwealth v. May, 62 Va. Cir. 360, 2003 Va. Cir. LEXIS 275 (Rockingham County 2003).

Virginia juvenile and domestic relations district court was authorized to punish by contempt a student's failure to obey its order to go to school, and the student could be sentenced to 10 consecutive days for each violation of such orders. Commonwealth v. May, 62 Va. Cir. 360, 2003 Va. Cir. LEXIS 275 (Rockingham County 2003).

§ 16.1-293. Supervision of juvenile or person during commitment and on parole; placing juvenile in halfway house.

At such time as the court commits a juvenile to the Department, the juvenile and domestic relations district court service unit shall maintain contact with the juvenile during the juvenile's commitment.

If a person is placed on parole supervision following that person's release from commitment to the Department, the court services unit providing parole supervision shall furnish the person a written statement of the conditions of his parole and shall instruct him regarding the same. The conditions of the reenrollment plan may be included in the conditions of parole. Violations of parole shall be heard by the court pursuant to § 16.1-291. If the parole supervision is for an indeterminate period of time, the director of the supervising court services unit may approve termination of parole supervision.

The Department shall notify the school division superintendent in the locality where the person was enrolled of his commitment to a facility. The court services unit shall, in consultation with the local school division, the Department's Division of Education and the juvenile correctional counselor, develop a reenrollment plan if the person is of compulsory school attendance age or is eligible for special education services pursuant to § 22.1-213. The reenrollment plan shall be in accordance with regulations adopted by the Board of Education pursuant to § 22.1-17.1. The superintendent shall provide the person's scholastic records, as defined in § 22.1-289, and the terms and conditions of any expulsion which was in effect at the time of commitment or which will be in effect upon release. A court may not order a local school board to reenroll a person who has been expelled in accordance with the procedures set forth in § 22.1-277.06. At least 14 days prior to the person's scheduled release, the Department shall notify the school division superintendent in the locality where the person will reside.

In the event it is determined by the juvenile and domestic relations district court that a person may benefit from placement in the halfway house program operated by the Department, the person may be referred for care and treatment to a halfway house. Persons so placed in a halfway house shall remain in parole status and cannot be transferred or otherwise placed in another institutional setting or institutional placement operated by the Department except as elsewhere provided by law for those persons who have violated their parole status.

In the event that the person was in the custody of the local department of social services immediately prior to his commitment to the Department and has not attained the age of 18 years, the local department of social services shall resume custody upon the person's release from commitment, unless an alternative arrangement for the custody of the person has been made and communicated in writing to the Department. At least 90 days prior to the person's release from commitment on parole supervision, (i) the court services unit shall consult with the local department of social services concerning return of the person to the locality and the placement of the person and (ii) the local department of social services and the court services unit shall collaborate to develop a plan that prepares the person for successful transition from the Department's commitment to the custody of the local department of social services or to an alternative custody arrangement if applicable. The plan shall identify the services necessary for such transition and how the services are to be provided. The court services unit will be responsible for supervising the person's terms and conditions of parole.

In the event that the person was in the custody of the local department of social services immediately prior to his commitment to the Department, is between 18 and 21 years of age, provides written notice of his intent to receive independent living services to the local department of social services, and enters into a written agreement with the local department of social services as set forth in § 63.2-905.1 , the person shall be eligible to receive independent living services from the local department or a child-placing agency pursuant to § 63.2-905.1 . At least 90 days prior to the person's release from commitment on parole supervision, (i) the court services unit shall inform the person of the availability of independent living services and shall consult with the local department of social services concerning return of the person to the locality and living arrangements for the person and (ii) the local department of social services and the court services unit shall work collaboratively to develop a plan for the successful transition of the person from the custody of the Department to independent living, which shall identify the services necessary to facilitate the person's transition to independent living and describe how the necessary services shall be provided.

In all cases in which a person who is in the custody of the local department of social services is committed to the Department, the local department of social services and the Department shall work cooperatively through the duration of the person's commitment to ensure communication of information regarding the status of the person and to facilitate transition planning for the person prior to his release.

(Code 1950, § 16.1-210; 1956, c. 555; 1962, c. 628; 1972, cc. 73, 708; 1973, cc. 440, 546; 1977, c. 559; 1980, c. 217; 1981, c. 487; 1985, c. 203; 1988, c. 453; 1996, cc. 755, 914, 916, 1000; 2001, cc. 688, 820, 853; 2010, c. 742; 2011, cc. 39, 442; 2012, cc. 803, 835; 2013, cc. 362, 564.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2013, c. 564, cl. 2 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 564, cl. 3 provides: "That the General Assembly determines that the requirements of the second enactment of this act have been met."

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile" for "child" throughout the section, substituted "juvenile's" for "child's" preceding "commitment" near the beginning of the first paragraph, added the present second paragraph, and added the present second sentence of the third paragraph, and in the final paragraph, substituted "Juveniles" for "Children" and substituted "juveniles" for "children."

The 2001 amendments. - The 2001 amendments by cc. 688 and 820 are identical, and substituted "the procedures set forth in § 22.1-277.06" for " § 22.1-277" in the fifth sentence of the third paragraph.

The 2001 amendment by c. 853, in the first paragraph, deleted "it shall determine whether" following "Department," and deleted "or the local department of public welfare or social services" following "unit" in the first sentence, and deleted the former second and third sentences, which dealt with the jurisdiction of the local departments of public welfare and social services; in the second paragraph, in the first sentence, substituted "If a person is placed on parole supervision following that person's release from commitment to the Department, the court services unit providing parole supervision" for "The local supervising agency" at the beginning of the sentence and substituted "person" for "juvenile," and in the fourth sentence, inserted "If the parole supervision is for an indeterminate period of time," at the beginning thereof and substituted "court services unit" for "agency"; deleted "or local department of public welfare or social services" following "unit" in the second sentence of the third paragraph; substituted "person" or "persons" for "juvenile" or "juveniles" four times in the fourth paragraph; and added the last paragraph.

The 2010 amendments. - The 2010 amendment by c. 742 substituted "person" for "juvenile" and "person's" for "juvenile's" throughout the third paragraph, and made minor stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 39 and 442 are identical, and in the last paragraph, deleted the former second sentence, which read: "The court services unit shall consult with the local department of social services four week prior to the person's release from commitment on parole supervision concerning return of the person to the locality and the placement of the person," and added the second and third sentences.

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and substituted "with the local school division, the Department's Division of Education" for "with the Department of Correctional Education, the local school division" in the second sentence of the third paragraph.

The 2013 amendments. - The 2013 amendments by cc. 362 and 564 are identical, and added the last two paragraphs.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

Research References. - Virginia Forms (Matthew Bender). No. 9-2515. Placement Order.

§ 16.1-293.1. Mental health services transition plan.

  1. The Board of Juvenile Justice, after consultation with the Department of Behavioral Health and Developmental Services, shall promulgate regulations for the planning and provision of post-release services for persons committed to the Department of Juvenile Justice pursuant to subdivision A 14 of § 16.1-278.8 or placed in a postdispositional detention program pursuant to subsection B of § 16.1-284.1 and identified as having a recognized mental health, substance abuse, or other therapeutic treatment need. The plan shall be in writing and completed prior to the person's release. The purpose of the plan shall be to ensure continuity of necessary treatment and services.
  2. The mental health services transition plan shall identify the mental health, substance abuse, or other therapeutic needs of the person being released. Appropriate treatment providers and other persons from state and local agencies or entities, as defined by the Board, shall participate in the development of the plan. Appropriate family members, caregivers, or other persons, as defined by the Board, shall be invited to participate in the development of the person's plan.
  3. Prior to the person's release from incarceration, the identified agency or agencies responsible for the case management of the mental health services transition plan shall make the necessary referrals specified in the plan and assist the person in applying for insurance and other services identified in the plan, including completing and submitting applications that may only be submitted upon release.

    (2005, cc. 334, 405; 2009, cc. 813, 840.)

Editor's note. - Acts 2005, cc. 334 and 405, cl. 2 provides: "That the Board of Juvenile Justice, in conjunction with the Department of Mental Health, Mental Retardation and Substance Abuse Services [now the Department of Behavioral Health and Development Services], shall consult state and local, and private and public entities, including, but not limited to, the Departments of Correctional Education, Education, Medical Assistance Services, Rehabilitative Services, and Social Services, prior to promulgating the regulations for the planning and provision of post-release service for persons committed to the Department of Juvenile Justice pursuant to subdivision A 14 of § 16.1-278.8 or placed in a postdispositional detention program pursuant to § 16.1-284.1 and identified as having a recognized mental health, substance abuse, or other therapeutic treatment need."

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services" near the beginning of subsection A.

§ 16.1-294. Placing child on parole in foster home or with institution; how cost paid.

When the child is returned to the custody of the court for parole supervision by the court service unit or the local department of social services for supervision, and, after a full investigation, the court is of the opinion that the child should not be placed in his home or is in need of treatment, and there are no funds available to board and maintain the child or to purchase the needed treatment services, the court service unit or the local department of social services shall arrange with the Director of the Department of Juvenile Justice for the boarding of the child in a foster home or with any private institution, society or association or for the purchase of treatment services. In determining the proper placement for such a child, the Department may refer the child to the locality's family assessment and planning team for assessment and recommendation for services. The cost of maintaining such child shall be paid monthly, according to schedules prepared and adopted by the Department, out of funds appropriated for such purposes. Treatment services for such child shall be paid from funds appropriated to the Department for such purpose.

(Code 1950, § 16.1-211; 1956, c. 555; 1972, cc. 73, 708; 1973, c. 546; 1974, cc. 44, 45; 1977, c. 559; 1982, c. 636; 1983, c. 358; 1985, c. 203; 1988, c. 376; 1989, c. 733; 1992, cc. 837, 880; 2002, c. 747.)

Editor's note. - Acts 1992, cc. 837 and 880, cl. 5, as amended by Acts 1993, c. 232, cls. 1 and 2 provide that the amendment to this section by the 1992 acts shall become effective July 1, 1993.

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, twice deleted "public welfare or" preceding "social services" in the first sentence.

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

§ 16.1-295. Transfer of supervision from one county or city to another, or to another state.

If any person on probation to or under the supervision of any juvenile probation officer or other officer of the court removes his residence or place of abode from the county or city in which he was so placed on probation or under supervision to another county or city in the Commonwealth, the court in the city or county from which he removed his residence or place of abode may then arrange the transfer of the supervision to the city or county to which he moves his place of residence or abode, or such transfer may be ordered by the transferring court.

The Director of the Department of Juvenile Justice may make provision for the transfer of a juvenile placed on probation in this Commonwealth to another state to be there placed on probation under the terms of Article 4 (§ 53.1-166 et seq.) of Chapter 4 of Title 53.1.

The costs of returning juveniles on probation or parole to their places of residence, whether within or outside of this Commonwealth, shall be paid in accordance with regulations established by the State Board from funds appropriated in the general appropriation act for criminal costs.

(Code 1950, § 16.1-212; 1956, c. 555; 1972, c. 708; 1973, c. 546; 1974, cc. 44, 45; 1977, c. 559; 1989, c. 733.)

Article 11. Appeal.

§ 16.1-296. Jurisdiction of appeals; procedure.

  1. From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction and shall be heard de novo. However, in a case arising under the Uniform Interstate Family Support Act (§ 20-88.32 et seq.), a party may take an appeal pursuant to this section within 30 days from entry of a final order or judgment. Protective orders issued pursuant to § 16.1-279.1 in cases of family abuse and orders entered pursuant to § 16.1-278.2 are final orders from which an appeal may be taken.
  2. Upon receipt of notice of such appeal the juvenile court shall forthwith transmit to the attorney for the Commonwealth a report incorporating the results of any investigation conducted pursuant to § 16.1-273, which shall be confidential in nature and made available only to the court and the attorney for the defendant (i) after the guilt or innocence of the accused has been determined or (ii) after the court has made its findings on the issues subject to appeal. After final determination of the case, the report and all copies thereof shall be forthwith returned to such juvenile court.
  3. Where an appeal is taken by a child on a finding that he or she is delinquent and on a disposition pursuant to § 16.1-278.8, trial by jury on the issue of guilt or innocence of the alleged delinquent act may be had on motion of the child, the attorney for the Commonwealth or the circuit court judge. If the alleged delinquent act is one which, if committed by an adult, would constitute a felony, the child shall be entitled to a jury of 12 persons. In all other cases, the jury shall consist of seven persons. If the jury in such a trial finds the child guilty, disposition shall be by the judge pursuant to the provisions of § 16.1-278.8 after taking into consideration the report of any investigation made pursuant to § 16.1-237 or 16.1-273.

    C1. In any hearing held upon an appeal taken by a child on a finding that he is delinquent and on a disposition pursuant to § 16.1-278.8, the provisions of § 16.1-302 shall apply mutatis mutandis, except in the case of trial by jury which shall be open. If proceedings in the circuit court are closed pursuant to this subsection, any records or portions thereof relating to such closed proceedings shall remain confidential.

    C2. Where an appeal is taken by a juvenile on a finding that he is delinquent and on a disposition pursuant to § 16.1-278.8 and the juvenile is in a secure facility pending the appeal, the circuit court, when practicable, shall hold a hearing on the merits of the case within 45 days of the filing of the appeal. Upon receipt of the notice of appeal from the juvenile court, the circuit court shall provide a copy of the order and a copy of the notice of appeal to the attorney for the Commonwealth within seven days after receipt of notice of an appeal. The time limitations shall be tolled during any period in which the juvenile has escaped from custody. A juvenile held continuously in secure detention shall be released from confinement if there is no hearing on the merits of his case within 45 days of the filing of the appeal. The circuit court may extend the time limitations for a reasonable period of time based upon good cause shown, provided the basis for such extension is recorded in writing and filed among the papers of the proceedings.

  4. When an appeal is taken in a case involving termination of parental rights brought under § 16.1-283, the circuit court shall hold a hearing on the merits of the case within 90 days of the perfecting of the appeal. An appeal of the case to the Court of Appeals shall take precedence on the docket of the Court.
  5. Where an appeal is taken by an adult on a finding of guilty of an offense within the jurisdiction of the juvenile and domestic relations district court, the appeal shall be dealt with in all respects as is an appeal from a general district court pursuant to §§ 16.1-132 through 16.1-137; however, where an appeal is taken by any person on a charge of nonsupport, the procedure shall be as is provided for appeals in prosecutions under Chapter 5 (§ 20-61 et seq.) of Title 20.
  6. In all other cases on appeal, proceedings in the circuit court shall be heard without a jury; however, hearing of an issue by an advisory jury may be allowed, in the discretion of the judge, upon the motion of any party. An appeal from an order of protection issued pursuant to § 16.1-279.1 shall be given precedence on the docket of the court over other civil appeals taken to the circuit court from the district courts and shall be assigned a case number within two business days of receipt of such appeal. If a party files an appeal of a district court order of protection entered pursuant to § 16.1-279.1, such notice of appeal shall be on a form prescribed by the Office of the Executive Secretary. The district court clerk shall contact the appellate court to determine whether the hearing on the appeal shall be set by the appellate court on (i) a date scheduled by the district court clerk with the court, (ii) on the next docket call date, or (iii) a date set for district court appeals. Once the hearing date is set and the appeal documents have been transmitted, the appellate court shall have the parties served with notice of the appeal stating the date and time of the hearing in accordance with subdivision 1 of § 8.01-296 . No such hearing on the appeal shall be heard in the appellate court unless the appellee has been so served with such notice or notice has been waived by the non-moving party.
  7. Costs, taxes and fees on appealed cases shall be assessed only in those cases in which a trial fee could have been assessed in the juvenile and domestic relations court and shall be collected in the circuit court, except that the appeal to circuit court of any case in which a fee either was or could have been assessed pursuant to § 16.1-69.48:5 shall also be in accordance with § 16.1-296.2.
  8. No appeal bond shall be required of a party appealing from an order of a juvenile and domestic relations district court except for that portion of any order or judgment establishing a support arrearage or suspending payment of support during pendency of an appeal. In cases involving support, no appeal shall be allowed until the party applying for the same or someone for him gives bond, in an amount and with sufficient surety approved by the judge or by his clerk if there is one, to abide by such judgment as may be rendered on appeal if the appeal is perfected or, if not perfected, then to satisfy the judgment of the court in which it was rendered. Upon appeal from a conviction for failure to support or from a finding of civil or criminal contempt involving a failure to support, the juvenile and domestic relations district court may require the party applying for the appeal or someone for him to give bond, with or without surety, to insure his appearance and may also require bond in an amount and with sufficient surety to secure the payment of prospective support accruing during the pendency of the appeal. An appeal will not be perfected unless such appeal bond as may be required is filed within 30 days from the entry of the final judgment or order. However, no appeal bond shall be required of the Commonwealth or when an appeal is proper to protect the estate of a decedent, an infant, a convict or an insane person, or the interest of a county, city or town.

    If bond is furnished by or on behalf of any party against whom judgment has been rendered for money, the bond shall be conditioned for the performance and satisfaction of such judgment or order as may be entered against the party on appeal, and for the payment of all damages which may be awarded against him in the appellate court. If the appeal is by a party against whom there is no recovery, the bond shall be conditioned for the payment of any damages as may be awarded against him on the appeal. The provisions of § 16.1-109 shall apply to bonds required pursuant to this subsection.

    This subsection shall not apply to release on bail pursuant to other subsections of this section or § 16.1-298.

  9. In all cases on appeal, the circuit court in the disposition of such cases shall have all the powers and authority granted by the chapter to the juvenile and domestic relations district court. Unless otherwise specifically provided by this Code, the circuit court judge shall have the authority to appoint counsel for the parties and compensate such counsel in accordance with the provisions of Article 6 (§ 16.1-266 et seq.) of this chapter.
  10. In any case which has been referred or transferred from a circuit court to a juvenile court and an appeal is taken from an order or judgment of the juvenile court, the appeal shall be taken to the circuit court in the same locality as the juvenile court to which the case had been referred or transferred.

    (Code 1950, § 16.1-214; 1956, c. 555; 1966, c. 237; 1977, c. 559; 1978, c. 445; 1981, c. 109; 1982, c. 465; 1983, c. 88; 1984, c. 631; 1986, cc. 143, 465; 1989, c. 473; 1991, c. 534; 1993, c. 970; 1994, c. 673; 1995, c. 517; 1996, c. 866; 1997, cc. 654, 664, 790, 862; 1998, c. 550; 2004, cc. 468, 659, 727; 2005, c. 681; 2007, c. 464; 2009, c. 729; 2019, c. 718; 2020, c. 905.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 1993, c. 970, cl. 2, as amended by Acts 1994, c. 564, cl. 3 and Acts 1996, c. 616, cl. 5, provides that the amendment to this section by Acts 1993, c. 970, cl. 1, "shall expire on May 31, 1998; provided, however, that the provisions of this act shall apply on and after June 1, 1998, only to any final order which disposes of a proceeding in a support case, when such proceeding was commenced in a juvenile and domestic relations district court prior to June 1, 1998, and when such case is appealed to the circuit court, regardless of whether such proceeding was commenced by a petition, motion or other pleading."

Acts 1994, c. 673, cl. 3 provides that the provisions of § 16.1-296 as amended by this act shall expire on the effective date of Chapter 929 of the 1993 Acts of Assembly. Chapter 929 never became effective.

Acts 1995, c. 517, cl. 2 provides: "That the provisions of this act shall expire on July 1, 1996, if funds are provided pursuant to the provisions of the third enactment of Chapter 930 of the Acts of Assembly of 1993 as amended by the second enactment of Chapter 564 of the Acts of Assembly of 1994." The funding was never provided.

Acts 2009, c. 729, cl. 2 provides: "That the provisions of this act are declarative of existing law."

The 1993 amendment added the subsection A designation, and substituted "within ten days from the entry of a final judgment, order or conviction" for "in accordance with the provisions of Chapter 7 ( § 16.1-123.1 et seq.) of this title" in the first sentence; added the subsection designations B through G; added subsection H; and added the subsection designations I and J. See the Editor's note for the expiration date.

The 1994 amendment substituted "Uniform Interstate Family Support Act ( § 20-88.32 et seq.)" for "Revised Uniform Reciprocal Enforcement of Support Act ( § 20-88.12 et seq.)" in subsection A, and substituted "in the same locality as the juvenile court to which the case had been referred or transferred" for "which had original jurisdiction of the case" in subsection J. See the Editor's note for the expiration date.

The 1995 amendment added the present third sentence in the first paragraph of subsection H.

The 1998 amendment added the second sentence in subsection D.

The 2004 amendments. - The 2004 amendment by c. 468 added subsection C2 and made minor stylistic changes.

The 2004 amendments by cc. 659 and 727 are identical, and substituted "10" for "ten" in subsection A; substituted "30" for "thirty" in subsections A and H; substituted "12" for "twelve" in subsection C; substituted "90" for "ninety" in subsection D; and inserted "except that the appeal to circuit court of any case in which a fee either was or could have been assessed pursuant to § 16.1-69.48:5 shall also be in accordance with § 16.1-296.2" in subsection G.

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, substituted "be heard without a jury; however, hearing of an issue by an advisory jury" for "conform to the equity practice where evidence is heard ore tenus; however, an issue out of chancery" in subsection F; and made a minor stylistic change.

The 2007 amendments. - The 2007 amendment by c. 464 added the last sentence in the second paragraph of subsection H.

The 2009 amendments. - The 2009 amendment by c. 729, in subsection A, in the first sentence, inserted "to the circuit court" and "and shall be heard de novo."

The 2019 amendments. - The 2019 amendment by c. 718, in subsection F, substituted "courts and shall be assigned a case number within two business days of receipt of such appeal" for "courts, but shall otherwise be docketed and processed as other civil cases."

The 2020 amendments. - The 2020 amendment by c. 905 added the second paragraph in subsection F.

Law review. - For comment, "Jury Trials for Juvenile Delinquents in Virginia," see 28 Wash. & Lee L. Rev. 135 (1971). For note, "Review of Improper Juvenile Transfer Hearings," see 60 Va. L. Rev. 818 (1974). For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979).

For survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 1994 survey of Virginia domestic relations law, see 28 U. Rich. L. Rev. 981 (1994).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 5-231 Notice of Appeal - Support Proceeding.

Michie's Jurisprudence. - For related discussion, see 5A Courts, § 37; 9B M.J. Infants and Juveniles, § 87.

CASE NOTES

Application of standards to appeals from district courts to circuit courts. - Where appellants contended that the application of standards to appeals from district courts to circuit courts, which are different that those standards applied to appeals from circuit courts to the court of appeals or to the Supreme Court, violated due process, this contention was without merit. In light of the opportunity to have the matter heard de novo in the circuit court, the appellants did not demonstrate that they were denied due process by the statutory requirement that they await entry of the district court's final order before seeking an appeal. Green v. Morgan, No. 1281-97-4, 1998 Va. App. LEXIS 11 (Ct. of Appeals Jan. 20, 1998).

Evidentiary hearing required. - Comprehensive Services Act Office was entitled to an evidentiary hearing on order of juvenile and domestic relations district court directing it to provide residential placement for child found to be in need of supervision. Comprehensive Servs. Act Office v. J.M., No. 1620-98-2, 1999 Va. App. LEXIS 473 (Ct. of Appeals Aug. 3, 1999).

Documentary evidence during termination of parental rights proceeding. - Trial court did not improperly consider documentary evidence in during a hearing regarding the termination of a father's parental rights to his child because a circuit court order terminating the father's parental rights to the child's sibling was properly considered as a basis for termination pursuant to subsection C of § 16.1-283; all documentary evidence was made part of the record by operation of the law because under § 16.1-296, an appeal from a juvenile and domestic relations district court to a circuit court necessarily transferred the entire record to the circuit court for retrial as though the case had been originally brought there. Ridgley v. Fairfax County Dep't of Family Servs., 2560-09-4, 2010 Va. App. LEXIS 465 (Nov. 30, 2010).

Commitment review order final and appealable. - The language of this section makes plain that the appellate jurisdiction in the circuit court encompasses "any final order" without qualification or limitation; an order determining whether to modify, revoke or continue a juvenile's commitment following a review hearing is final and appealable because it concludes that issue and leaves nothing to be done by the court. Richardson v. Commonwealth, 28 Va. App. 389, 504 S.E.2d 884 (1998).

This section makes no distinction between consent orders and nonconsent orders. It also does not qualify or limit the word "any." Cox v. Cox, 16 Va. App. 146, 428 S.E.2d 515 (1993).

The cross-reference in the first sentence of this section relates to § 16.1-136. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Section 16.1-136 is only vehicle for appeal from juvenile court to circuit court. - Although Chapter 7 of Title 16.1 relates to "Jurisdiction and Procedure in Criminal Matters," § 16.1-136 remains the only vehicle for appeal from the juvenile court to the circuit court, having been reenacted as a part of the Juvenile and Domestic Relations District Court Law of 1977. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Construction of subsection J. - Plain language of subsection J, which provides that the appeal shall be taken to the circuit court in the same locality as the juvenile court, manifests an intent that the provision be construed as mandatory and jurisdictional, rather than directory and procedural. Barrett v. Commonwealth of Va., Dep't of Soc. Servs., Div. of Child Support Enforcement, Nos. 1613-14-3, 1614-14-3, 2015 Va. App. LEXIS 174 (May 19, 2015).

Nonsuit order not a final appealable order. - In a custody and visitation matter, a juvenile court's order of nonsuit was not a final appealable order under § 16.1-296 because the effect of the nonsuit was to put an end to the pending action without precluding another for the same cause of action. Sharman v. Gillepsie, No. 0140-09-2, 2010 Va. App. LEXIS 47 (Feb. 9, 2010).

Appeal from a juvenile court sanction order. - Upon review of a sanctions order entered against an attorney for misconduct in the juvenile court, the circuit court erred by failing to conduct a de novo review. In re Fener, No. 0588-03-1, 2003 Va. App. LEXIS 596 (Ct. of Appeals Nov. 18, 2003).

Applicability to appeal following incarceration for failing to pay child support. - Denial of a parent's appeal of the denial of a bond motion for an appeal of an order incarcerating the parent for failure to pay child support was summarily affirmed as a parent did not post an appeal bond and there was no indigency exception to subsection H of § 16.1-296; section 16.1-107 concerned appeals of the general district court, rather than the juvenile courts, and § 8.01-676.1 did not apply to appeals of the juvenile courts. Shadwell v. Commonwealth, No. 0236-08-4, 2008 Va. App. LEXIS 444 (Sept. 30, 2008).

Appealability of juvenile court order. - Because the plain language of §§ 16.1-278.2 D, 16.1-252, and 16.129-6 A provided that a preliminary removal order was not a dispositional order and was not a final order, the trial court did not err in finding that it lacked jurisdiction to entertain a department of social services' appeal of a juvenile court's order. Richmond Dep't of Soc. Servs. v. Petersburg Dep't of Soc. Servs., No. 2261-05-2, 2006 Va. App. LEXIS 263 (June 13, 2006).

Father could not leave Virginia with a child involved in an international custody dispute during appellee mother's appeal and refuse to recognize the continuing jurisdiction of Virginia's courts as to do so would defeat the mother's § 16.1-296 rights. Sasson v. Shenhar, 276 Va. 611 , 667 S.E.2d 555, 2008 Va. LEXIS 124 (2008).

Circuit court did not err in dismissing a mother's appeals of a juvenile and domestic relations district court's adjudicatory orders that her children were abused and neglected because the juvenile and domestic relations district court's dispositional orders, the final orders, were not entered until July 16, 2010, but the mother never appealed those orders, and the filing of the dispositional order appeal forms on June 1, 2010, was premature since there were no final orders from which the mother could appeal at that time; pursuant to subsection A of § 16.1-296, only final orders of the district court could be appealed to the circuit court, and adjudicatory orders entered by a district court in child abuse and neglect cases are not final orders for purposes of appeal because they are not entered pursuant to § 16.1-278.2 as required by the General Assembly. Chavis v. Hopewell Dep't of Soc. Servs., No. 1762-10-2, 2011 Va. App. LEXIS 118 (Apr. 5, 2011).

Adoptive parents' failure to timely appeal the juvenile court's visitation order was of no legal consequence because there was no need for them to file a separate pleading to seek the termination of biological grandparents' visitation when entry of the order of adoption divested the grandparents of any right to visitation; the petition for adoption necessarily implied a question of the grandparents' ongoing visitation, and the circuit court had jurisdiction to entertain the petition. Harvey v. Flockhart, 65 Va. App. 131, 775 S.E.2d 427 (2015).

Circuit court erred because it acted as a court of appeals and did not conduct a de novo trial by asking a father to show where in the record he preserved his arguments; the circuit court did not conduct a new hearing on the underlying issues but rather reviewed the determination of the juvenile and domestic relations district court and rendered a decision based upon that review. Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263 (Oct. 11, 2016).

Circuit court properly granted a two-year family abuse protective order because the decision of the juvenile and domestic relations district court denying the protective order was a final order for purposes of appeal where the statutory protective order language was expansive rather than limiting. Jacobs v. Wilcoxson, 71 Va. App. 521, 838 S.E.2d 63, 2020 Va. App. LEXIS 42 (Feb. 18, 2020).

Final judgment. - Order at issue was a final order under subsection D of § 16.1-278.2 and subsection A of § 16.1-296 because it was captioned "dispositional order," transferred custody of a child to the department of social services, made the finding required by subdivision A 5 c. of § 16.1-278.2, established specific terms for visitation, authorized placement with the mother, and was entered after an adjudicatory order. Blevins v. Prince William County Dep't of Soc. Servs., 61 Va. App. 94, 733 S.E.2d 674, 2012 Va. App. LEXIS 347 (2012).

Court of Appeals lacked jurisdiction to hear a mother's appeal because the circuit court's orders, that her children were abused or neglected or were at risk of abuse or neglect, were not final orders where the orders were adjudicatory in nature, did not make any of the seven statutory dispositions, and did not make any final determinations regarding custody. Byrd v. Petersburg Dep't of Soc. Servs., No. 0782-15-2, 2016 Va. App. LEXIS 203 (Ct. of Appeals July 19, 2016).

Circuit court retained jurisdiction over juvenile parole revocation proceeding. - Where the circuit court acquired jurisdiction over an appeal de novo of a juvenile proceeding, the circuit court retained jurisdiction to hear a parole revocation proceeding concerning the juvenile upon her release from the department of juvenile justice. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Subsection H of this section places the burden on the party applying for the appeal to ask for and to have the district court set the bond and approve the surety. Thus, in the instant case, just because the district court failed to require bond, the circuit court could not obtain jurisdiction of the appeal. Commonwealth, Va. Dep't of Social Servs. ex rel. May v. Walker, 253 Va. 319 , 485 S.E.2d 134 (1997).

Failure to post the appeal bond deprived the trial court of jurisdiction as subsection H of § 16.1-296 placed the burden on the father as the party applying for the appeal to ask for and to have the district court set the bond and approve the surety; thus, the argument that the district court had set the bond at zero failed. Espinoza v. Espinoza, No. 0536-03-4, 2003 Va. App. LEXIS 426 (Ct. of Appeals Aug. 5, 2003).

Appeal from juvenile court without posting of bond. - Where a father was required to file an appeal bond by subsection H of § 16.1-296, but failed to do so, the circuit court lacked jurisdiction to hear his appeal of the registration of certain out-of-state child support orders. Jones v. Dep't of Soc. Servs. ex rel. Dye, No. 2376-03-3, 2004 Va. App. LEXIS 251 (Ct. of Appeals June 1, 2004).

Trial court properly dismissed a husband's appeal from an order of the juvenile court finding him in contempt and establishing an arrearage amount of $50,000, due to his failure to post the entire appeal bond, as the husband could not choose to bifurcate his appeal by appealing the show cause and other portions of the order but not that part establishing a support arrearage. Hall v. Hall, No. 0432-04-2, 2004 Va. App. LEXIS 485 (Ct. of Appeals Oct. 12, 2004).

Trial court properly dismissed a father's appeal of a juvenile court order which modified his child support obligation and assessed an arrearage; a court clerk's act of setting an appeal bond at "0" did not excuse the father of the requirement to post an appeal bond under subsection H of this section and § 16.1-109 did not allow for a cure where there was a total failure to comply with the bond requirement, and thus the failure to post the bond divested the trial court of jurisdiction. Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553, 2005 Va. App. LEXIS 389 (2005).

Trial court did not err in requiring the father to post a bond for his appeal of the denial of the father's motion to reduce child support, because any order of the court related to the father's motion to reduce child support would be intrinsically related to the arrearage, thus requiring bond. Forte v. Dep't of Soc. Servs., Div. of Child Support Enforcement, 65 Va. App. 1, 772 S.E.2d 303, 2015 Va. App. LEXIS 186 (2015).

Bond not required of convict. - Under plain meaning of section, father's status as a convict and a person under a legal disability exempted him from the requirement to post an appeal bond in child support case. Frazier v. Commonwealth, Dep't of Social Servs. ex rel. Sandridge, 27 Va. App. 131, 497 S.E.2d 879 (1998).

Appeal bond timely filed. - On the husband's appeal from the parties' final decree of divorce, the record showed that the wife filed the appeal bond within 30 days of the entry of the written order, as required by subsection H of § 16.1-296. Thus, the appeal bond was timely filed. Leake v. Taylor, No. 0737-09-4, 2010 Va. App. LEXIS 126 (Mar. 30, 2010).

Appellate proceedings under this section are a trial de novo. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

The award of a greater punishment on trial de novo under this section is not constitutionally impermissible under the holding in Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972); Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. denied, 440 U.S. 937, 99 S. Ct. 1282, 59 L. Ed. 2d 495 (1979).

Trial de novo properly held. - Circuit court conducted the required trial de novo, contrary to father's claim; the circuit court conducted a two-day evidentiary hearing in which father was afforded the opportunity to testify on his own behalf, call and cross-examine witnesses, and offer exhibits, and upon conclusion of the hearing, the circuit court rendered its decision based on the evidence presented at that hearing. Achin v. Ochoa, No. 1466-19-4, 2020 Va. App. LEXIS 220 (July 28, 2020).

Effect of de novo appeal. - On appeal under § 16.1-296, the circuit court did not err in declining to reverse a juvenile court's grant of a nonsuit in a termination of parental rights case. Because the de novo appeal vacated the juvenile court's proceedings, the grant of the nonsuit had already been vacated; the circuit court's only authority at that point was to conduct a new trial. Berger v. Harris, No. 1588-11-2, 2012 Va. App. LEXIS 172 (May 22, 2012).

Mother's timely appeal of the child custody and visitation order entered in the juvenile district court entitled her to a trial de novo in the circuit court on those issues; when the guardian ad litem presented the mother with his proposed consent order, it was the mother's prerogative to decline to sign and to continue the pursuit of her de novo appeal in the circuit court, and thus the circuit court erred in entering as a consent order an order to which all parties had not consented and then incorporating it into the final order. Reilly v. Reilly, No. 1369-15-2, 2016 Va. App. LEXIS 343 (Ct. of Appeals Dec. 13, 2016).

Trial court did not deny a mother her right to a full and fair de novo trial because the mother received a new trial in the trial court, all parties were present, and evidence was presented without any influence from the juvenile and domestic relations district court; the mother did not direct the court of appeals to anything within the record to purportedly show that the trial was not de novo. Higgins v. Pearce, No. 1965-16-2, 2017 Va. App. LEXIS 296 (Nov. 28, 2017).

The requirement that the investigation report be made and forwarded to the court of record is mandatory and unless complied with, the appeal cannot be heard. Norwood v. City of Richmond, 203 Va. 886 , 128 S.E.2d 425 (1962).

Void court orders. - Where the order of the juvenile and domestic relations court was void the order of the circuit court on appeal therefrom was likewise void. Lowe v. Grasty, 203 Va. 168 , 122 S.E.2d 867 (1961).

Conformance with equity practice. - In the appeal to the circuit court from the juvenile court's finding of no child abuse, the circuit court acts as a court of equity and, therefore, is required to conform to equity practice. Donald v. Fairfax County Dep't of Human Dev., 20 Va. App. 155, 455 S.E.2d 740 (1995), rev'd on other grounds, 251 Va. 227 , 467 S.E.2d 803 (1996).

Denial of advisory jury held not abuse of discretion. - Where the record did not reflect that the factual issues to be decided were necessarily more appropriate for a jury than for the judge, the trial judge did not abuse his discretion in denying the request for an advisory jury. Edwards v. County of Arlington, 5 Va. App. 294, 361 S.E.2d 644 (1987).

Unauthorized early closing of clerk's office on last day of period to file appeal bond grievously interfered with appellant's right to appeal under this section. Furthermore, neither this section, nor § 16.1-114.1 which applies only to an irregularity in the proceedings, provides an adequate postdeprivation remedy for the loss of the right to appeal. Hutchins v. Carrillo, 27 Va. App. 595, 500 S.E.2d 277 (1998).

Appeal by board of public welfare (now board of social services). - See Board of Pub. Welfare v. Blackburn, 214 Va. 425 , 201 S.E.2d 777 (1974).

Waiver. - Because a parent did not appeal the juvenile and domestic relations district court's dispositional order to the circuit court, the parent waived any argument regarding the finding of abuse or neglect. Altamimi v. City of Alexandria Dep't of Cmty. & Human Servs., No. 0858-19-4, 2019 Va. App. LEXIS 218 (Oct. 1, 2019).

Mother, although not the named guardian, could appeal. - Since, under the statute, an appeal may be taken "from any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction," a mother could properly appeal, even though the child's grandparents had been named as guardians. Evans v. Division of Child Support Enforcement, No. 1290-95-1, 1996 Va. App. LEXIS 93 (Ct. of Appeals Feb. 6, 1996).

Appeal from experimental family courts. - The statutes that created the experimental family courts did not set forth an alternative scheme for appeals from the juvenile and domestic relations courts following the expiration of their status as family courts. Rhoades v. Rhoades, 16 Va. App. 757, 433 S.E.2d 487 (1993).

The statutes providing for appeals from that [experimental family] court confer no substantive rights; they are procedural in nature. The procedures are applied to cases depending upon the designation of the court at the time of the appeal. Rhoades v. Rhoades, 16 Va. App. 757, 433 S.E.2d 487 (1993).

It is the designation of the court at the time the final order is entered that determines where this appeal will lie. Rhoades v. Rhoades, 16 Va. App. 757, 433 S.E.2d 487 (1993).

Effect of failure to hold hearing within 90 days. - In absence of any showing of harm, failure to hold hearing within 90 days did not require reversal of termination orders. Cook v. Petersburg Dep't of Social Servs., No. 1385-99-2, 2000 Va. App. LEXIS 165 (Ct. of Appeals Mar. 7, 2000) (decided prior to 2004 amendment requiring that hearing shall be held within 45 days).

Trial court did not err in holding a father's termination of parental rights hearing beyond the 90-day period set forth in this statute since this statute was procedural and directory, and the father's allegation of prejudice was speculative. Daniels v. Culpeper County Dep't of Soc. Servs., No. 1133-13-4, 2013 Va. App. LEXIS 328 (Nov. 12, 2013).

Circuit court review of a termination of a father's parental rights beyond the 90 days required by Va. Code Ann. § 16.1-296 D did not require reversal because (1) the statute was procedural, and (2) the father did not object to a continuance. Boatright v. Wise County Dep't of Soc. Servs., 64 Va. App. 71, 764 S.E.2d 724 (2014).

Time limit for hearing. - Because a hearing date was already past the 90-day statutory requirement in subsection D of § 16.1-296, and because a mother had ample time to obtain counsel to prepare her case, the trial court did not abuse its discretion by denying the mother's motions for a continuance. Black v. Charlottesville Dep't of Soc. Servs., No. 1873-11-2, 2012 Va. App. LEXIS 63 (Mar. 6, 2012).

Juvenile court lost jurisdiction since no timely appeal filed. - Because a mother did not comply with subsection A of § 16.1-296 and § 16.1-133.1 by appealing a dispositional order within 10 days of its entry or applying to reopen the case within 60 days, pursuant to Va. Sup. Ct. R. 1:1, the juvenile court lost jurisdiction of a charge and the court's dismissal of that charge had no force; therefore, since the juvenile court had authority under clause c of subdivision A 13 of § 16.1-278.8 to maintain custody of the child with the social services department, the circuit court properly denied the mother's motion to dismiss proceedings and return custody of her son. Lee v. Frederick County Dep't of Soc. Servs., No. 2693-07-4, 2008 Va. App. LEXIS 370 (Aug. 5, 2008).

Impermissible collateral attack. - Mother's claim that the Interstate Compact on the Placement of Children, § 63.2-1000 et seq., was unconstitutional was an impermissible collateral attack on the juvenile court's foster care review orders, from which the mother did not timely appeal. Hogue v. Alexandria Dep't of Soc. Servs., No. 3063-03-4, 2004 Va. App. LEXIS 466 (Ct. of Appeals Oct. 5, 2004).

Bond only required for portion of order establishing support arrearage. - Subsection H. specifying that a bond shall be required for an appeal of a judgment establishing support arrearages implicitly recognizes that an order that sets arrearages may have a component that does not establish a support arrearage and, in such a case, an appeal bond is required only for that portion of the order establishing a support arrearage. Mahoney v. Mahoney, 32 Va. App. 139, 526 S.E.2d 780 (2000).

Appeal bond was not required when an appealed child support order did not establish arrearage; since the order which increased child support obligation made no mention of any child support arrearage that existed as of the date of the order, and did not establish an arrearage, an appeal bond was not needed. Nero v. Williams, No. 0505-06-2, 2007 Va. App. LEXIS 10 (Jan. 16, 2007).

Appeal from contempt order allowed without posting of bond. - A finding of contempt is not an order establishing a support arrearage; thus this section permitted the defendant to appeal from the juvenile court's contempt order without the necessity of posting a bond. Avery v. Commonwealth, Dep't of Social Servs. ex rel. Clark, 22 Va. App. 698, 472 S.E.2d 675 (1996).

Bond not required for appeal challenging jurisdiction. - A husband's appeal challenging the jurisdiction of the juvenile court to enter any order was not an appeal of a portion of an order or judgment establishing a support arrearage and, under subsection H, the husband was not required to post a bond to pursue such an appeal. Mahoney v. Mahoney, 32 Va. App. 139, 526 S.E.2d 780 (2000).

Dismissal of appeal from contempt order based on inability to post appeal bond. - The dismissal of a father's appeal from an order finding him in civil contempt for failure to pay past-due child support and interest and sentencing him to six months in jail, based on his failure, due to inability, to post an appeal bond, did not violate his right to a trial and to due process in violation of the Sixth and Fourteenth Amendments to the United States Constitution, since the contempt proceeding was civil in nature. Scales v. Department of Soc. Servs., Div. of Child Support ex rel. Jones, No. 2295-97-3, 1998 Va. App. LEXIS 292 (Ct. of Appeals May 19, 1998).

Bond amount found abuse of discretion. - The juvenile and domestic relations court abused its discretion when setting bond at $500 for an appeal of a judgment of arrearage of $18,975. Smiley v. Erickson, 29 Va. App. 426, 512 S.E.2d 842 (1999).

Attorney fees award authorized. - Trial court was authorized to award costs and attorney's fees to the mother in a case brought by a father seeking to terminate his parental obligations. Cartwright v. Cartwright, 49 Va. App. 25, 635 S.E.2d 691, 2006 Va. App. LEXIS 473 (2006).

In a child support dispute, a circuit court did not abuse its discretion in ordering a father to pay $13,930.60 of the mother's attorney's fees and $15,000 of her expert fees because the father had a greater ability to pay than the mother, the case was long and intricate and required detailed testimony, and the father's less than desirable record keeping abilities caused the mother's expert to have to "reconstruct invoices and payments." James v. Owens, No. 1830-12-1, 2013 Va. App. LEXIS 203 (Ct. of Appeals July 16, 2013).

Subject matter jurisdiction. - Bristol Circuit Court did not err by dismissing a husband's cases because only the Grayson Circuit Court acquired the authority to exercise jurisdiction in the cases; the statute manifested an intent that, after a case had been transferred to a juvenile court like the husband's cases, only by taking an appeal of that case to the circuit court of the same locality did the circuit court acquire the authority to exercise its subject matter jurisdiction. Barrett v. Commonwealth of Va., Dep't of Soc. Servs., Div. of Child Support Enforcement, Nos. 1613-14-3, 1614-14-3, 2015 Va. App. LEXIS 174 (May 19, 2015).

Contempt jurisdiction present. - The appeal of the motion to amend child support placed in issue the question of child support and invoked the jurisdiction of the circuit court. Therefore, the circuit court had jurisdiction to initiate contempt proceedings against appellant for failure to obey the juvenile and domestic relations district court order. Grizzle v. Commonwealth, No. 1014-93-3, 1994 Va. app. LEXIS 745 (Ct. of Appeals Dec. 20, 1994).

Timeliness of appeal. - In a case in which a circuit court quashed defendant's appeal of a revocation of suspension of his sentence for contributing to the delinquency of a minor in violation of § 18.2-371 , based on an excessive number of unexcused school absences of one of his four minor children, from the juvenile and domestic relations district court (juvenile court) because it was untimely, the circuit court incorrectly determined that the December 17, 2008, order was a final order by the juvenile court and that his appeal within ten days after entry of the February 11, 2009, order was untimely. Not until the juvenile court heard additional evidence on February 11, 2009, regarding compliance with the conditions of suspension did it make a final, appealable determination regarding whether to impose the previously suspended 30-day sentence or to re-suspend some or all of that time, and defendant's appeal was filed on the same day. Smith v. Commonwealth, No. 0613-09-3, 2009 Va. App. LEXIS 557 (Dec. 15, 2009).

Because a father argued, for the first time on appeal, that his guardian ad litem was ineffective for failing to inform him of an appeal deadline in subsection A of § 16.1-296, and did not dispute the fact that his appeal was late, pursuant to Va. Sup. Ct. R. 5A:18, the father's arguments on appeal would not be considered and his appeal was properly dismissed. Thinnes v. Thinnes, No. 1794-11-2, 2012 Va. App. LEXIS 146 (May 8, 2012).

Circuit court erred in directing a father to pay child support and arrearages to the mother because the circuit court lacked jurisdiction over the case inasmuch as the mother's appeal of the order for current child support established by the juvenile and domestic relations district court (JDR court) was not timely filed, and although the two JDR court orders were related, they were substantively different because the parties in both cases were not the same where the Division of Child Support Enforcement was a party to the order requiring the father to pay the arrearages owed to the mother, but not a party to the order requiring the mother to pay current support to the father. Marriott v. Anderson, No. 0590-16-4, 2017 Va. App. LEXIS 43 (Ct. of Appeals Feb. 21, 2017).

Motion for continuance denied. - Trial court did not err by denying the father's request for an indefinite continuance of the termination of parental rights proceedings until after his criminal matters were resolved, which had been delayed due to the COVID-19 pandemic, because it considered this section and found that it was not in the child's best interest to be left in limbo for an indefinite period of time. Huff v. City of Fredericksburg Dep't of Soc. Servs., No. 0843-20-2, 2021 Va. App. LEXIS 16 (Feb. 2, 2021).

Circuit court lacked jurisdiction. - Court of appeals lacked jurisdiction to address a mother's claim that emergency removal orders violated the emergency removal statute because neither the emergency removal orders, nor any equivalent orders, were before the circuit court. Gerald v. Charlottesville Dep't of Soc. Servs., No. 0918-18-2, 2019 Va. App. LEXIS 62 (Mar. 19, 2019).

Appeal dismissed. - Where a juvenile expressly waived his right to appeal to the circuit court under subsection A of § 16.1-296 when he entered into his written plea agreement and did not claim the prosecutor, the district court, or anyone else coerced him into making the agreement, the circuit court properly dismissed his appeal. Congdon v. Commonwealth, 57 Va. App. 692, 705 S.E.2d 526, 2011 Va. App. LEXIS 53 (2011).

Although a mother had indicated her intention to appeal an order terminating her parental rights, a trial court properly dismissed the appeal because the mother failed to file her written notice of appeal within the 10-day time period for doing so. Burch v. City of Alexandria, No. 1269-12-4, 2013 Va. App. LEXIS 30 (Jan. 29, 2013).

Applied in Leisge v. Leisge, 223 Va. 688 , 292 S.E.2d 352 (1982); Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794 (1985); Box v. Talley, 1 Va. App. 289, 338 S.E.2d 349 (1986); Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999); Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355, 2008 Va. App. LEXIS 139 (2008).

CIRCUIT COURT OPINIONS

Construction. - If the use of "any" in §§ 8.01-670 A 3 and 17.1-405 is not sufficient to abrogate the common law, then nor should its use in § 16.1-296 A have that effect. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

Sections 16.1-69.24 and 18.2-459 explicitly allow appeals to the circuit courts from summary contempt convictions in the district courts, but not for dismissals; by necessary implication, subsection H of § 16.1-296 allows appeals from findings of civil or criminal contempt in the juvenile and domestic relations district courts for failure to pay support, as the statute establishes bond requirements for appeals. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

Appeal from juvenile court without posting of bond. - Though no appeal bonds were set by the juvenile court, the appeals could proceed and the dismissal of consolidated appeals because of the failure to post appeal bonds was not required. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Circuit Court for the City of Norfolk did not have subject matter jurisdiction to consider the parties' motions to amend a husband's child and spousal support obligations upon a transfer from the Norfolk Juvenile and Domestic Relations District Court since: (1) the circuit court did not have concurrent jurisdiction to amend the support orders; (2) § 16.1-245 allowed the district court to transfer a case to the circuit court if the circuit court had exclusive jurisdiction, but the circuit court did not have exclusive jurisdiction; (3) the circuit court only had appellate jurisdiction over a Juvenile and Domestic Relations District Court order under subsections A and J of § 16.1-296; (4) there was no authority to transfer a case from a lower court to a circuit court pendente lite; and (5) the Virginia Constitution and the statutes enacted pursuant to it were the sources of the circuit court's subject matter jurisdiction. Cunningham v. Cunningham, 86 Va. Cir. 202, 2013 Va. Cir. LEXIS 10 (Norfolk Jan. 24, 2013).

In the absence of statutory authority, the circuit court had no jurisdiction to try de novo civil contempt adjudications of the juvenile and domestic relations district court discharging a mother; therefore, the appeals were dismissed. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

Because no arrearages for child support was set by the juvenile and domestic relations district court appealed by appellant, the only issue on appeal was the award of attorney fees set by the final order of the juvenile and domestic relations district court, and the motion to amend the amount of child support was withdrawn, the appeal of attorney fees was not so intrinsically and logically related to arrearages as to constitute support; and appellant was not required to post an appeal bond. Chamberlain v. O'Leary, 105 Va. Cir. 511, 2020 Va. Cir. LEXIS 121 (Spotsylvania County Aug. 18, 2020).

Burden on party applying for appeal to ask for bond. - Subsection H of § 16.1-296 places the burden on the party applying for the appeal to ask for and to have the district court set the bond and approve the surety; it is fundamental that the appealing party has the burden of perfecting his appeal. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Appeal from contempt order allowed without posting of bond. - Failure of a father to post appeal bonds when appealing orders holding him in contempt for failure to pay child support was not fatal because the father was not appealing the amount of the arrearages. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Dismissal of appeal of bond amount only. - Civil appeal bond was a procedural aspect of a final juvenile and domestic relations (J&DR) district court order and a party could not bifurcate the procedural aspects of a J&DR district court order from the underlying substantive ruling on appeal to circuit court. Therefore, dismissal of the party's appeal of bond amount only was appropriate for lack of subject matter jurisdiction. Va. Div. of Child Support Enforcement ex rel. Ines v. Curran, 100 Va. Cir. 114, 2018 Va. Cir. LEXIS 336 (Fairfax County Sept. 28, 2018).

Dismissal in accordance with guardian's recommendation. - Petitioner did not suffer a nonsuit upon motion made through his guardian ad litem; the court found that the juvenile court dismissed the petition on its merits, in accordance with the guardian's recommendation, and thus the order was final and appealable. Burns-Freeman v. Freeman,, 2021 Va. Cir. LEXIS 5 (Loudoun County Jan. 5, 2021).

Appeal from commitment order. - Although a juvenile court lacked jurisdiction to hold a commitment review hearing more than sixty days after the original commitment hearing, Va. Sup. Ct. R. 3A:19 was applicable because the court convicted the juvenile of assault and battery of a family or household member, a misdemeanor. The case was properly before the circuit court, which had to hear the matter de novo, because the juvenile properly advised the juvenile court of the juvenile's intention to appeal the order and the court noted the intention to appeal and filed it in the clerk's office. Commonwealth v. Giles, 87 Va. Cir. 320, 2013 Va. Cir. LEXIS 135 (Roanoke Dec. 10, 2013).

Jurisdiction to enforce support order. - Circuit court rejected the argument that it had no jurisdiction to enforce a support order that had been appealed from the juvenile and domestic relations district court. Subsection 1 gave the circuit court all the powers and authority granted to the juvenile and domestic relations district court. Palmer v. Mitchell, 91 Va. Cir. 487, 2016 Va. Cir. LEXIS 14 (Orange County Jan. 28, 2016).

Lack of subject matter jurisdiction. - Because the dismissal order entered by a juvenile and domestic relations district court was not an appealable order, the circuit court did not have subject matter jurisdiction when a mother elected to file her motion to amend or review order in the district court, seeking an increase in the amount of child support, and subsequently appealed. Wilcox v. Wilcox, 102 Va. Cir. 61, 2019 Va. Cir. LEXIS 1196 (Chesapeake Apr. 9, 2019).

Juvenile and domestic relations district court's order denying appellant's motion to dissolve the protective order previously issued was neither a final order nor a protective order issued pursuant to § 16.1-279.1 within the meaning of this section and thus, the circuit court lacked jurisdiction of the appeal. Ortiz v. Chappelear, 105 Va. Cir. 49, 2020 Va. Cir. LEXIS 44 (Virginia Beach Apr. 8, 2020).

Finding of not guilty of contempt and lack of arrearages was not appealable, and thus, the circuit court lacked jurisdiction to hear the case; any finding by the juvenile and domestic relations court not holding a father in contempt was not appealable by either party since the district court found the father not in contempt because no arrearages existed and that distinct connection between the alleged arrears and contempt were litigated fully in the district court. Shipe v. Shipe,, 2021 Va. Cir. LEXIS 194 (Culpeper Sept. 21, 2021).

Jury trial inappropriate. - Father did not have a right to a jury trial of his appeal from his civil contempt conviction and sentence for failure to pay child support as the appeal was in the posture of a show cause for civil contempt and was governed by subsection F of § 16.1-296, which provided for equity procedures when the evidence was heard ore tenus; a jury trial was granted in equity practice only for a plea in equity and an issue out of chancery, neither of which was appropriate. McGann v. Royer, 66 Va. Cir. 483, 2003 Va. Cir. LEXIS 365 (Amherst County 2003).

OPINIONS OF THE ATTORNEY GENERAL

Appeal bond must be posted to perfect an appeal of a civil contempt. - Subsection H requires the posting of an appeal bond to perfect an appeal of a civil contempt finding within thirty days of the court order, if arrearages are set forth in the order finding the payor in contempt. See opinion of Attorney General to The Honorable J. Dean Lewis, Judge, Fifteenth District Juvenile and Domestic Relations Court, 01-108, 2002 Va. AG LEXIS 54 (4/11/02).

§ 16.1-296.1.

Repealed by Acts 1999, c. 161.

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, c. 3, provides that the enactment of § 16.1-296.2 by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

§ 16.1-296.2. Appeals of certain custody and visitation proceedings.

  1. In any matter in which a filing fee either was or could have been assessed pursuant to § 16.1-69.48:5, no appeal shall be allowed unless and until the party applying for appeal shall, within 10 days from the entry of the final judgment or order, either (i) pay to the clerk of the court from which the appeal is taken the amount of the writ tax of the court to which the appeal is taken and all other applicable costs or (ii) file with the clerk of the court from which the appeal is taken a petition to have the court to which the appeal is taken determine that the writ tax and costs need not be paid on account of poverty as provided in § 17.1-606 . The judge or clerk of any court from which the appeal is taken shall promptly transmit to the clerk of the appellate court the original pleadings, together with all exhibits and other papers filed in the trial of the case, and either (i) the writ tax and costs paid or (ii) a petition filed to have the court to which the appeal is taken determine that the writ tax and costs need not be paid on account of poverty as provided in § 17.1-606 . Upon receipt of the foregoing by the clerk of the appellate court, the case shall then be docketed.
  2. Notwithstanding any other provision of law, the writ tax of the court to which the appeal is taken and other applicable costs shall be assessed only once for all custody and visitation petitions simultaneously appealed by a single appellant.

    (2004, cc. 659, 727.)

§ 16.1-297. Final judgment; copy filed with juvenile court; proceeding may be remanded to juvenile court.

Upon the rendition of final judgment upon an appeal from the juvenile and domestic relations district court, the circuit court shall cause a copy of its judgment to be filed with the juvenile court within twenty-one days of entry of its order, which shall thereupon become the judgment of the juvenile court. In the event such circuit court does not dismiss the proceedings or discharge such child or adult, the circuit court may remand the child or adult to the jurisdiction of the juvenile court for its supervision and care, under the terms of its order or judgment, and thereafter such child or adult shall be and remain under the jurisdiction of the juvenile court in the same manner as if such court had rendered the judgment in the first instance.

(Code 1950, § 16.1-215; 1956, c. 555; 1977, c. 559; 1996, c. 828.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For article, "Civil Practice and Procedure," see 54 U. Rich. L. Rev. 7 (2019).

CASE NOTES

Filing requirement gives juvenile court information concerning disposition of appeal. - Statutory filing requirement of § 16.1-297 permits the juvenile court to have information not only as to the disposition of the appeal, but also to have important information necessary to guide its actions should the juvenile be the subject of other proceedings within the jurisdiction of the juvenile court. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Circuit court retains jurisdiction in the absence of a remand. - This section directs the circuit court to file a copy of its final judgment with the juvenile court in a delinquency appeal case. However, the language of the statute providing the circuit court with discretion to remand, demonstrates that the failure to do so does not result in the loss of jurisdiction by the circuit court. Austin v. Commonwealth, 42 Va. App. 33, 590 S.E.2d 68, 2003 Va. App. LEXIS 676 (2003), aff'd, 268 Va. 439 , 604 S.E.2d 430 (2004).

Trial court's final judgment. - Trial court did not render a final judgment in defendant's marijuana possession case because it did not sentence defendant, and, thus, no final judgment existed for the appellate court to review and the trial court prematurely transferred the case to the juvenile court after finding defendant guilty. Brown v. Commonwealth, No. 1596-02-1, 2003 Va. App. LEXIS 141 (Ct. of Appeals Mar. 18, 2003).

Applied in Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999).

CIRCUIT COURT OPINIONS

Court lacked authority to transfer. - Circuit Court for the City of Norfolk could not transfer a case to the Norfolk Juvenile and Domestic Relations District Court or the Circuit Court of the City of Chesapeake after finding that the circuit court did not have subject matter jurisdiction since: (1) § 16.1-297 allowed the circuit court to remand a case to the district court upon the rendition of final judgment upon an appeal, but the parties' motions to amend child and spousal support were not before the circuit court on appeal and the the circuit court's order was not a final judgment; (2) § 20-79(c) did not apply as the circuit court was not making an order regarding support; and (3) § 20-88.49 had been construed as a venue statute. Cunningham v. Cunningham, 86 Va. Cir. 202, 2013 Va. Cir. LEXIS 10 (Norfolk Jan. 24, 2013).

§ 16.1-298. Effect of petition for or pendency of appeal; bail.

  1. Except as provided herein, a petition for or the pendency of an appeal or writ of error shall not suspend any judgment, order or decree of the juvenile court nor operate to discharge any child concerned or involved in the case from the custody of the court or other person, institution or agency to which the child has been committed unless so ordered by the judge of the juvenile court, the judge of a circuit court or directed in a writ of supersedeas by the Court of Appeals or the Supreme Court or a judge or justice thereof.
  2. The judgment, order or decree of the juvenile court shall be suspended upon a petition for or the pendency of an appeal or writ of error:
    1. In cases of delinquency in which the final order of the juvenile court is pursuant to subdivision A 8, 9, 10, 12, 14, or 15 of § 16.1-278.8.
    2. In cases involving a child and any local ordinance.
    3. In cases involving any person over the age of 18 years. Such suspension as is provided for in this subsection shall not apply to (i) an order for support of a spouse, parent or child or to a preliminary protective order issued pursuant to § 16.1-253, (ii) an order disposing of a motion to reconsider relating to participation in continuing programs pursuant to § 16.1-289.1, (iii) a protective order in cases of family abuse issued pursuant to § 16.1-279.1, including a protective order required by § 16.1-253.2, or a protective order entered in conjunction with a disposition pursuant to § 16.1-278.2, 16.1-278.4, 16.1-278.5, 16.1-278.6, 16.1-278.8, or 16.1-278.14, (iv) a protective order issued pursuant to § 19.2-152.10, including a protective order required by § 18.2-60.4 , or (v) an order pertaining to the custody, visitation, or placement of a minor child, unless so ordered by the judge of a circuit court or directed in a writ of supersedeas by the Court of Appeals or the Supreme Court.
  3. In cases where the order of the juvenile court is suspended pursuant to subsection B hereof or by order of the juvenile court or the circuit court, bail may be required as provided for in § 16.1-135.
  4. If an appeal to the circuit court is withdrawn in accordance with § 16.1-106.1, the judgment, order, or decree rendered by the juvenile court shall have the same legal effect as if no appeal had been noted, except as to the disposition of any bond in circuit court or as modified by the circuit court pursuant to subsection F of § 16.1-106.1. If an appeal is withdrawn, any court-appointed counsel or court-appointed guardian ad litem shall, absent further order of the court, be relieved of any further obligation respecting the matter for which they were appointed.
  5. Except as to matters pending on the docket of a circuit court as of July 1, 2008, all orders that were entered by a juvenile and domestic relations district court prior to July 1, 2008, and appealed to a circuit court, where the appeal was withdrawn, shall have the same effect as if no appeal had been noted.

    (Code 1950, § 16.1-216; 1956, c. 555; 1966, c. 224; 1977, c. 559; 1984, cc. 631, 703; 1988, c. 771; 1991, c. 534; 1996, c. 866; 1997, c. 831; 1998, c. 550; 2008, c. 706; 2013, cc. 73, 97.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1998 amendment, in subsection B, in subdivision 3, in the second paragraph, in clause (iii), inserted the language beginning "or a protective order" and ending " § 16.1-278.8."

The 2008 amendments. - The 2008 amendment by c. 706, in subdivision B 3, deleted "or" at the end of clause (iii), inserted "or" at the end of clause (iv) and inserted clause (v) and made minor related changes; and added subsections D and E.

The 2013 amendments. - The 2013 amendments by cc. 73 and 97 are identical, and in subsection B, substituted "18" for "eighteen" near the end of subdivision B 3, and in the concluding paragraph, inserted "including a protective order required by § 16.1-253.2" and "or 16.1-278.14" in clause (iii) and "including a protective order required by § 18.2-60.4 " in clause (iv).

CASE NOTES

Construction. - Subsection D of § 16.1-298 does not speak to, or have any bearing on, the circuit court's powers to enforce its own orders regarding conduct that occurred before the circuit court. Torchiani v. Senske, No. 1581-19-4, 2020 Va. App. LEXIS 161 (June 2, 2020).

This section, enacted to provide continuity and stability in cases of children who are the subjects of litigation, provides in part that a petition for, or the pendency of, an appeal shall not suspend the juvenile court's order or affect the custody of a child unless so ordered by a judge of the juvenile court, a circuit court or the appellate court. Walker v. Department of Pub. Welfare, 223 Va. 557 , 290 S.E.2d 887 (1982).

Limited jurisdiction of district court after filing for divorce where spousal support in issue. - When a suit for divorce has been filed and spousal support is at issue, the district court is divested of jurisdiction to enter any further decrees or orders relating to support except to enforce its orders entered prior to an order of the circuit court. Martin v. Bales, 7 Va. App. 141, 371 S.E.2d 823 (1988).

District court orders remain in effect where nonsuit is sought in circuit court. - By seeking a nonsuit in the circuit court, the mother has placed the proceeding back to where it was prior to the appeal to the circuit court. It is as if no appeal to the circuit court was taken. Hence, the custody order of the district court remains in effect, and that court retains jurisdiction to enforce its orders. Hasty v. Hasty, No. 0462-93-4, 1993 Va. App. LEXIS 431 (Ct. of Appeals Sept. 14, 1993).

No suspension of juvenile court order. - This section provides that an appeal shall not suspend any order of the juvenile court unless ordered by the judge of the juvenile court or circuit court, or directed by an appellate court. Hasty v. Hasty, No. 0462-93-4, 1993 Va. App. LEXIS 431 (Ct. of Appeals Sept. 14, 1993).

Prior court orders remained in place. - Although the mother appealed the Juvenile and Domestic Relations District (JDR) Court orders, the statute provided that the JDR court orders remained in place pending the appeal, and thus the department was not required to offer additional services to mother after the JDR court transferred custody of the children. Cooke v. City of Newport News Dep't of Human Servs., No. 0763-18-1, 2019 Va. App. LEXIS 29 (Feb. 5, 2019).

Dismissal proper. - Circuit court properly dismissed a father's complaint to amend custody and visitation because, while the circuit court had jurisdiction to consider the father's refiled appeals, the parties' circumstances changed during the pendency of the nonsuit, the circuit court had jurisdiction to consider the father's refiled appeals and did the only thing it could do. Barrett v. Minor, No. 0173-14-3, 2015 Va. App. LEXIS 165 (May 12, 2015).

Withdrawn appeals final. - Circuit court erred in holding that the juvenile and domestic relations district court (JDR) could not amend an order while the appeal of a related case was pending because the order was different from those on appeal; the withdrawn appeals of JDR court orders became final upon their withdrawal and binding on the parties, and a father's complaint was barred by the withdrawn appeals because of their res judicata effect when their withdrawal made them final and binding. Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263 (Oct. 11, 2016).

When a father withdrew his appeals the orders became final and were binding on the parties; accordingly, while the circuit court had jurisdiction to consider the father's refiled appeals, the parties' circumstances changed during the pendency of the nonsuit because the withdrawn orders became final and binding on the parties, thereby superseding an order that the refiled nonsuits were seeking to modify. Minor v. Barrett, No. 0103-16-3, 2016 Va. App. LEXIS 263 (Oct. 11, 2016).

Appeal did not render order for fees void. - Statute stated that any court judgments on child support were in full effect upon appellant's withdrawal of his appeal to the circuit court; the statute did not render the circuit court orders regarding legal fees incurred by the non-appealing party void ab initio and thus unenforceable. The legal fees appellee incurred responding to the appeal did not disappear when appellant withdrew that appeal, and thus appellee was entitled to seek enforcement of those orders and be compensated for those costs. Torchiani v. Senske, No. 1581-19-4, 2020 Va. App. LEXIS 161 (June 2, 2020).

CIRCUIT COURT OPINIONS

Support orders not suspended on appeal. - Section 16.1-298, which governs appeals from juvenile court, makes appeals in cases involving child support fundamentally different from appeals from general district court in civil cases. While an appeal from general district court in a civil case means that the order and judgment of the lower court are annulled, § 16.1-298 B provides that juvenile court orders for support of a spouse, parent, or child are not suspended on appeal. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Portions of support arrearage orders appealable. - Portions of orders establishing a support arrearage are appealable under subsection H of § 16.1-298. Commonwealth v. Neal, 58 Va. Cir. 205, 2002 Va. Cir. LEXIS 142 (Richmond 2002).

Article 12. Confidentiality and Expungement.

§ 16.1-299. Fingerprints and photographs of juveniles.

  1. All duly constituted police authorities having the power of arrest shall take fingerprints and photographs of any juvenile who is taken into custody and charged with a delinquent act an arrest for which, if committed by an adult, is required to be reported to the Central Criminal Records Exchange pursuant to subsection A of § 19.2-390. Whenever fingerprints are taken, they shall be maintained separately from adult records and a copy shall be filed with the juvenile court on forms provided by the Central Criminal Records Exchange.
  2. If a juvenile of any age (i) is convicted of a felony, (ii) is adjudicated delinquent of an offense that would be a felony if committed by an adult, (iii) has a case involving an offense, which would be a felony if committed by an adult, that is dismissed pursuant to the deferred disposition provisions of § 16.1-278.8, or (iv) is convicted or adjudicated delinquent of any other offense for which a report to the Central Criminal Records Exchange is required by subsection C of § 19.2-390 if the offense were committed by an adult, copies of his fingerprints and a report of the disposition shall be forwarded to the Central Criminal Records Exchange and to the jurisdiction making the arrest by the clerk of the court which heard the case.
  3. If a petition or warrant is not filed against a juvenile whose fingerprints or photographs have been taken in connection with an alleged violation of law, the fingerprint card, all copies of the fingerprints and all photographs shall be destroyed 60 days after fingerprints were taken. If a juvenile charged with a delinquent act other than a violent juvenile felony or a crime ancillary thereto is found not guilty, or in any other case resulting in a disposition for which fingerprints are not required to be forwarded to the Central Criminal Records Exchange, the court shall order that the fingerprint card, all copies of the fingerprints and all photographs be destroyed within six months of the date of disposition of the case.

    (1977, c. 559; 1978, c. 383; 1979, c. 267; 1982, c. 514; 1985, c. 211; 1986, c. 264; 1993, cc. 468, 926; 1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 657; 2000, c. 431; 2004, c. 464; 2008, c. 636.)

Cross references. - As to reports to school authorities of certain acts, notwithstanding the provisions of this article, see § 22.1-279.3:1.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, c. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and rewrote the section.

The 2000 amendments. - The 2000 amendment by c. 431, in subsection B, substituted "as defined in § 16.1-228, or a crime ancillary thereto" for "or an 'ancillary crime' as those terms are defined in § 16.1-228" and inserted "and to the jurisdiction making the arrest"; and in subsection C, inserted "charged with a delinquent act other than a violent juvenile felony or a crime ancillary thereto" and inserted "or if a juvenile under fourteen is charged with a delinquent act which otherwise would be a violent juvenile felony or a crime ancillary thereto."

The 2004 amendments. - The 2004 amendment by c. 464 deleted the former last sentence in subsection A, which read: "However, all duly constituted police authorities having the power of arrest shall take fingerprints and photographs of any juvenile fourteen years of age or older charged with a 'violent juvenile felony' as defined in § 16.1-228"; in subsection B, deleted the clause (i) designation and former clause (ii), which read: "fourteen or older is charged with a 'violent juvenile felony' as defined in § 16.1-228, or a crime ancillary thereto"; deleted "or if a juvenile under fourteen is charged with a delinquent act which otherwise would be a violent juvenile felony or a crime ancillary thereto" following "found not guilty" in subsection C; and made minor stylistic changes.

The 2008 amendments. - The 2008 amendment by c. 636, in subsection B, inserted clause (i), inserted clause (ii) designator and substituted present language for "adjudicated delinquent or found guilty of any offense, which would be a felony if commited by an adult," inserted clause (iii), inserted clause (iv) designator and inserted "is convicted or adjudicated delinquent of" at the beginning of that clause.

Law review. - For article, "The Revision of Virginia's Juvenile Court Law," see 13 U. Rich. L. Rev. 847 (1979). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

CASE NOTES

Use of defendant's juvenile record in capital sentencing. - Virginia law does not prohibit the use of a defendant's juvenile record in capital sentencing. Peterson v. Murray, 904 F.2d 882 (4th Cir.), cert. denied, 498 U.S. 992, 111 S. Ct. 537, 112 L. Ed. 2d 547 (1990).

§ 16.1-299.1. Sample required for DNA analysis upon conviction or adjudication of felony.

A juvenile convicted of a felony or adjudicated delinquent on the basis of an act which would be a felony if committed by an adult shall have a sample of his blood, saliva or tissue taken for DNA analysis provided the juvenile was 14 years of age or older at the time of the commission of the offense.

The provisions of Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of Title 19.2 shall apply to all persons and all DNA samples taken as required by this section, mutatis mutandis.

The Department of Juvenile Justice shall verify that a DNA sample required to be taken has been received by the Department of Forensic Science. In any case where a DNA sample has not been received, the Department of Juvenile Justice shall notify the court and the court shall require the person to submit a sample for DNA analysis.

(1996, cc. 755, 914; 1998, c. 280; 2003, cc. 150, 607; 2007, c. 528.)

The 1998 amendment, in the first paragraph inserted "saliva or tissue."

The 2003 amendments. - The 2003 amendment by c. 150 substituted "14" for "fourteen" in the first paragraph; and deleted "blood" preceding "samples" in the second paragraph.

The 2003 amendment by c. 607 substituted "14" for "fourteen" in the first paragraph; and substituted "DNA" for "blood" preceding "samples" in the second paragraph.

The 2007 amendments. - The 2007 amendment by c. 528 added the last paragraph.

§ 16.1-299.2.

Repealed by Acts 2005, c. 843, cl. 2.

§ 16.1-300. Confidentiality of Department records.

  1. The social, medical, psychiatric, and psychological reports and records of children who are or have been (i) before the court, (ii) under supervision, (iii) referred to a court service unit, or (iv) receiving services from a court service unit or who are committed to the Department of Juvenile Justice shall be confidential and shall be open for inspection only to the following:
    1. The judge, prosecuting attorney, probation officers and professional staff assigned to serve a court having the child currently before it in any proceeding;
    2. Any public agency, child welfare agency, private organization, facility or person who is treating or providing services to the child pursuant to a contract with the Department or pursuant to the Virginia Juvenile Community Crime Control Act as set out in Article 12.1 (§ 16.1-309.2 et seq.);
    3. The child's parent, guardian, legal custodian or other person standing in loco parentis and the child's attorney;
    4. Any person who has reached the age of majority and requests access to his own records or reports;
    5. Any state agency providing funds to the Department of Juvenile Justice and required by the federal government to monitor or audit the effectiveness of programs for the benefit of juveniles which are financed in whole or in part by federal funds;
    6. The Department of Social Services or any local department of social services that is providing services or care for, or has accepted a referral for family assessment or investigation and the provision of services in accordance with subsection A of § 16.1-277.02 regarding, a juvenile who is the subject of the record and the Department of Behavioral Health and Developmental Services or any local community services board that is providing treatment, services, or care for a juvenile who is the subject of the record for a purpose relevant to the provision of the treatment, services, or care when these local agencies have entered into a formal agreement with the Department of Juvenile Justice to provide coordinated services to juveniles who are the subject of the records. Prior to making any report or record open for inspection, the court service unit or Department of Juvenile Justice shall determine which reports or records are relevant to the treatment, services, or care of such juvenile and shall limit such inspection to such relevant reports or records. Any local department of social services or local community services board that inspects any social, medical, psychiatric, and psychological reports and records of juveniles in accordance with this subdivision shall not disseminate any information received from such inspection unless such dissemination is expressly required by law;
    7. Any other person, agency or institution, including any law-enforcement agency, school administration, or probation office by order of the court, having a legitimate interest in the case, the juvenile, or in the work of the court;
    8. Any person, agency, or institution, in any state, having a legitimate interest (i) when release of the confidential information is for the provision of treatment or rehabilitation services for the juvenile who is the subject of the information, (ii) when the requesting party has custody or is providing supervision for a juvenile and the release of the confidential information is in the interest of maintaining security in a secure facility, as defined by § 16.1-228 if the facility is located in Virginia, or as similarly defined by the law of the state in which such facility is located if it is not located in Virginia, or (iii) when release of the confidential information is for consideration of admission to any group home, residential facility, or postdispositional facility, and copies of the records in the custody of such home or facility shall be destroyed if the child is not admitted to the home or facility;
    9. Any attorney for the Commonwealth, any pretrial services officer, local community-based probation officer and adult probation and parole officer for the purpose of preparing pretrial investigation, including risk assessment instruments, presentence reports, including those provided in § 19.2-299, discretionary sentencing guidelines worksheets, including related risk assessment instruments, as directed by the court pursuant to subsection C of § 19.2-298.01 or any court-ordered post-sentence investigation report;
    10. Any person, agency, organization or institution outside the Department that, at the Department's request, is conducting research or evaluation on the work of the Department or any of its divisions; or any state criminal justice agency that is conducting research, provided that the agency agrees that all information received shall be kept confidential, or released or published only in aggregate form;
    11. With the exception of medical, psychiatric, and psychological records and reports, any full-time or part-time employee of the Department of State Police or of a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the enforcement of the penal, traffic, or motor vehicle laws of the Commonwealth, is entitled to any information related to a criminal street gang, including that a person is a member of a criminal street gang as defined in § 18.2-46.1 . Information shall be provided by the Department to law enforcement without their request to aid in initiating an investigation or assist in an ongoing investigation of a criminal street gang as defined in § 18.2-46.1 . This information may also be disclosed, at the Department's discretion, to a gang task force, provided that the membership (i) consists of only representatives of state or local government or (ii) includes a law-enforcement officer who is present at the time of the disclosure of the information. The Department shall not release the identifying information of a juvenile not affiliated with or involved in a criminal street gang unless that information relates to a specific criminal act. No person who obtains information pursuant to this subdivision shall divulge such information except in connection with gang-activity intervention and prevention, a criminal investigation regarding a criminal street gang as defined in § 18.2-46.1 that is authorized by the Attorney General or by the attorney for the Commonwealth, or in connection with a prosecution or proceeding in court;
    12. The Commonwealth's Attorneys' Services Council and any attorney for the Commonwealth, as permitted under subsection B of § 66-3.2 ;
    13. Any state or local correctional facility as defined in § 53.1-1 when such facility has custody of or is providing supervision for a person convicted as an adult who is the subject of the reports and records. The reports and records shall remain confidential and shall be open for inspection only in accordance with this section; and
    14. The Office of the Attorney General, for all criminal justice activities otherwise permitted and for purposes of performing duties required by Chapter 9 (§ 37.2-900 et seq.) of Title 37.2. A designated individual treating or responsible for the treatment of a person may inspect such reports and records as are kept by the Department on such person or receive copies thereof, when the person who is the subject of the reports and records or his parent, guardian, legal custodian or other person standing in loco parentis if the person is under the age of 18, provides written authorization to the Department prior to the release of such reports and records for inspection or copying to the designated individual.
  2. The Department may withhold from inspection by a child's parent, guardian, legal custodian or other person standing in loco parentis that portion of the records referred to in subsection A, when the staff of the Department determines, in its discretion, that disclosure of such information would be detrimental to the child or to a third party, provided that the juvenile and domestic relations district court (i) having jurisdiction over the facility where the child is currently placed or (ii) that last had jurisdiction over the child if such child is no longer in the custody or under the supervision of the Department shall concur in such determination.

    If any person authorized under subsection A to inspect Department records requests to inspect the reports and records and if the Department withholds from inspection any portion of such record or report pursuant to the preceding provisions, the Department shall (a) inform the individual making the request of the action taken to withhold any information and the reasons for such action; (b) provide such individual with as much information as is deemed appropriate under the circumstances; and (c) notify the individual in writing at the time of the request of his right to request judicial review of the Department's decision. The circuit court (1) having jurisdiction over the facility where the child is currently placed or (2) that had jurisdiction over the original proceeding or over an appeal of the juvenile and domestic relations district court final order of disposition concerning the child if such child is no longer in the custody or under the supervision of the Department shall have jurisdiction over petitions filed for review of the Department's decision to withhold reports or records as provided herein.

    (1977, c. 559; 1978, cc. 738, 740; 1981, c. 487; 1988, c. 541; 1989, c. 733; 1994, c. 19; 2000, c. 212; 2002, c. 735; 2003, cc. 108, 143; 2006, cc. 431, 500; 2007, c. 511; 2009, c. 740; 2010, cc. 367, 472; 2011, cc. 99, 169; 2012, cc. 262, 421; 2017, cc. 207, 210; 2021, Sp. Sess. I, c. 466.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

Acts 2006, cc. 431 and 500, cl. 2 provides: "That the information forwarded by the Department of Corrections and the Department of Juvenile Justice to the Commonwealth's Attorneys' Services Council shall be in a form mutually agreeable to all parties."

Acts 2021, Sp. Sess. I, c. 466, cl. 2 provides: "That the Virginia Commission on Youth shall convene a work group to include representatives from the Department of Juvenile Justice, the Department of Social Services, the Department of Behavioral Health and Developmental Services, the Department of Education, youth and families with lived experience in the juvenile justice and child welfare systems, representatives of Virginia juvenile justice advocacy groups, representatives of local public defender offices, and representatives from other relevant state or local entities. The work group shall review current data and record sharing provisions with regard to youth served by the juvenile justice and child welfare systems and make recommendations on best practices for the sharing, collection, and use of such data and records while respecting the privacy interests of youth and families. The work group shall report its findings and recommendations to the Governor and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by November 1, 2021."

The 2000 amendments. - The 2000 amendment by c. 212, in subdivision A 2, inserted "providing services to" preceding "the child pursuant to a contract with the Department" and added the language beginning "or pursuant to the Virginia" and ending with "Chapter 11 of this title"; added present subdivision 7; redesignated former subdivision 7 as present subdivision 8; and substituted "that," for "which" in subdivision 8.

The 2002 amendments. - The 2002 amendment by c. 735 deleted "and" at the end of subsection 7; and inserted present subsection 8 and redesignated former subsection 8 as subsection 9.

The 2003 amendments. - The 2003 amendment by c. 108 deleted "who previously has been a ward of the Department and" following "person" in subdivision A 4; in the second paragraph of subsection A, deleted "who was previously a ward of the Department" preceding "may inspect," and substituted "18" for "eighteen"; in the first paragraph of subsection B, inserted "subsection" following "referred to in," inserted "or to a third party" preceding "provided," added the clause (i) designation, and inserted "or (ii) that last had jurisdiction over the child if such child is no longer in the custody or under the supervision of the Department"; and in the last paragraph of subsection B, substituted "any person authorized under subsection A to inspect Department records" for "a parent, guardian, legal custodian or other person standing in loco parentis" following "If," deleted "concerning his child" following "reports and records," deleted "about the child's progress" following "information" in clause (ii), and in the last sentence, inserted the clause (a) designation, inserted "or (b) that had jurisdiction over the original proceeding or over an appeal of the juvenile and domestic relations district court final order of disposition concerning the child if such child is no longer in the custody or under the supervision of the Department," and deleted "by a parent, guardian, legal custodian or other person standing in loco parentis" following "petitions filed."

The 2003 amendment by c. 143 rewrote subdivision A 8, which formerly read: "The attorney for the Commonwealth and adult probation and parole officers for the purpose of preparing presentence reports as provided in § 19.2-299 or discretionary sentencing guidelines worksheets, including related risk assessment instruments, as directed by the court pursuant to subsection C of § 19.2-298.01; and"; and substituted "18" for "eighteen" in the last paragraph of subsection A.

The 2006 amendments. - The 2006 amendments by cc. 431 and 500 are identical, and in subdivision A 6, inserted "including any law-enforcement agency, school administration, or probation office" and "the juvenile"; added the language beginning "or any state criminal" in subdivision A 9; added subdivision A 10 and made a related change; added the subdivision A 11 designation; and added the first paragraph of subdivision A 11.

The 2007 amendments. - The 2007 amendment by c. 511 added clause (iii) in subdivision A 7 and made related changes.

The 2009 amendments. - The 2009 amendment by c. 740 added subdivision A 12 and made a related change.

The 2010 amendments. - The 2010 amendments by cc. 367 and 472 are identical, and in subdivision A 10, substituted "is entitled to any information related to a criminal street gang including" for "for purposes of a criminal investigation of an allegation of criminal gang activity involving a predicate criminal act as defined in § 18.2-46.1 or information" in the first sentence, and inserted the second and third sentences.

The 2011 amendments. - The 2011 amendments by cc. 99 and 169 are identical, and deleted "of Chapter 11 of this title" from the end of subdivision A 2; and in subdivision A 7, inserted "in any state," "if the facility is located in Virginia, or as similarly defined by law of the state in which such facility is located if it is not located in Virginia," and the last occurrence of "when release of the confidential information is" and made a minor stylistic change.

The 2012 amendments. - The 2012 amendments by cc. 262 and 421 are identical, and added subdivision A 12, redesignated former subdivision 12 as 13, and made related changes.

The 2017 amendments. - The 2017 amendments by cc. 207 and 210 are identical, and in subdivision A 10, substituted "administered by the Commonwealth" for "administrated by the Commonwealth" in the first sentence, added the third sentence, and inserted "gang-activity intervention and prevention" in the last sentence; in subsection B, deleted "hereof" preceding "when the staff of the Department" in the first paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 466, effective July 1, 2021, in subsection A, inserted clause (iii) and redesignated former clause (iii) as clause (iv), inserted subdivision A 6, and redesignated the remaining subdivisions accordingly; and in the last paragraph in subsection B, redesignated clauses (i) through (iii) as clauses (a) through (c) in the first sentence, and redesignated clauses (a) and (b) as clauses (1) and (2) in the second sentence.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

CASE NOTES

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

§ 16.1-301. Confidentiality of juvenile law-enforcement records; disclosures to school principal and others.

  1. The court shall require all law-enforcement agencies to take special precautions to ensure that law-enforcement records concerning a juvenile are protected against disclosure to any unauthorized person. The police departments of the cities of the Commonwealth, and the police departments or sheriffs of the counties, as the case may be, shall keep separate records as to violations of law other than violations of motor vehicle laws committed by juveniles. Such records with respect to such juvenile shall not be open to public inspection nor their contents disclosed to the public unless a juvenile 14 years of age or older is charged with a violent juvenile felony as specified in subsections B and C of § 16.1-269.1.
  2. Notwithstanding any other provision of law, the chief of police or sheriff of a jurisdiction or his designee may disclose, for the protection of the juvenile, his fellow students and school personnel, to the school principal that a juvenile is a suspect in or has been charged with (i) a violent juvenile felony, as specified in subsections B and C of § 16.1-269.1; (ii) a violation of any of the provisions of Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2; or (iii) a violation of law involving any weapon as described in subsection A of § 18.2-308 . If a chief of police, sheriff or a designee has disclosed to a school principal pursuant to this section that a juvenile is a suspect in or has been charged with a crime listed above, upon a court disposition of a proceeding regarding such crime in which a juvenile is adjudicated delinquent, convicted, found not guilty or the charges are reduced, the chief of police, sheriff or a designee shall, within 15 days of the expiration of the appeal period, if there is no notice of appeal, provide notice of the disposition ordered by the court to the school principal to whom disclosure was made. If the court defers disposition or if charges are withdrawn, dismissed or nolle prosequi, the chief of police, sheriff or a designee shall, within 15 days of such action provide notice of such action to the school principal to whom disclosure was made. If charges are withdrawn in intake or handled informally without a court disposition or if charges are not filed within 90 days of the initial disclosure, the chief of police, sheriff or a designee shall so notify the school principal to whom disclosure was made. In addition to any other disclosure that is permitted by this subsection, the principal in his discretion may provide such information to a threat assessment team established by the local school division. No member of a threat assessment team shall (a) disclose any juvenile record information obtained pursuant to this section or (b) use such information for any purpose other than evaluating threats to students and school personnel. For the purposes of this subsection, "principal" also refers to the chief administrator of any private primary or secondary school.
  3. Inspection of law-enforcement records concerning juveniles shall be permitted only by the following:
    1. A court having the juvenile currently before it in any proceeding;
    2. The officers of public and nongovernmental institutions or agencies to which the juvenile is currently committed, and those responsible for his supervision after release;
    3. Any other person, agency, or institution, by order of the court, having a legitimate interest in the case or in the work of the law-enforcement agency;
    4. Law-enforcement officers of other jurisdictions, by order of the court, when necessary for the discharge of their current official duties;
    5. The probation and other professional staff of a court in which the juvenile is subsequently convicted of a criminal offense for the purpose of a presentence report or other dispositional proceedings, or by officials of penal institutions and other penal facilities to which he is committed, or by a parole board in considering his parole or discharge or in exercising supervision over him;
    6. The juvenile, parent, guardian or other custodian and counsel for the juvenile by order of the court; and
    7. As provided in §§ 19.2-389.1 and 19.2-390.
  4. The police departments of the cities and towns and the police departments or sheriffs of the counties may release, upon request to one another and to state and federal law-enforcement agencies, and to law-enforcement agencies in other states, current information on juvenile arrests. The information exchanged shall be used by the receiving agency for current investigation purposes only and shall not result in the creation of new files or records on individual juveniles on the part of the receiving agency.
  5. Upon request, the police departments of the cities and towns and the police departments or sheriffs of the counties may release current information on juvenile arrests or juvenile victims to the Virginia Workers' Compensation Commission solely for purposes of determining whether to make an award to the victim of a crime, and such information shall not be disseminated or used by the Commission for any other purpose than provided in § 19.2-368.3.
  6. Nothing in this section shall prohibit the exchange of other criminal investigative or intelligence information among law-enforcement agencies.
  7. Nothing in this section shall prohibit the disclosure of law-enforcement records concerning a juvenile to a court services unit-authorized diversion program in accordance with this chapter, which includes programs authorized by subdivision 1 of § 16.1-227 and § 16.1-260. Such records shall not be further disclosed by the authorized diversion program or any participants therein. Law-enforcement officers may prohibit a disclosure to such a program to protect a criminal investigation or intelligence information.

    (Code 1950, § 16.1-163; 1956, c. 555; 1977, cc. 559, 618; 1978, c. 740; 1981, c. 175; 1993, cc. 468, 926; 1994, cc. 859, 949; 1995, c. 752; 1996, cc. 755, 914; 1997, c. 430; 2000, c. 211; 2001, c. 770; 2003, c. 119; 2005, c. 683; 2009, c. 286; 2013, c. 769; 2016, c. 234.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in subsection C, substituted "departments" for "department" in the first sentence, and deleted the former second sentence, which read: "The information exchanged shall be limited to name, address, physical description, date of arrest, and the charge for which the arrest was made."

The 2000 amendments. - The 2000 amendment by c. 211, substituted "subsections B and C" for "subsection B" near the end of subsection A.

The 2001 amendments. - The 2001 amendment by c. 770 added the last sentence in subsection A.

The 2003 amendments. - The 2003 amendment by c. 119 substituted "14" for "fourteen" in the last sentence of subsection A; redesignated the former last sentence of subsection A as present subsection B and redesignated former subsections B to D as present subsections C to E; added the last three sentences to subsection B; and in subsection C, substituted "law-enforcement" for "such," and inserted "concerning juveniles."

The 2005 amendments. - The 2005 amendment by c. 683 inserted present subsection E and redesignated former subsection E as subsection F.

The 2009 amendments. - The 2009 amendment by c. 286 inserted "and to law-enforcement agencies in other states" in subsection D.

The 2013 amendments. - The 2013 amendment by c. 769 added the fifth through seventh sentences of subsection B.

The 2016 amendments. - The 2016 amendment by c. 234 added subsection G.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 59.

CASE NOTES

If the decision to waive juvenile jurisdiction were not immediately appealable, those legislative protections afforded children under the juvenile justice system once lost, would be irretrievable. Hairfield v. Commonwealth, 7 Va. App. 649, 376 S.E.2d 796 (1989).

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

CIRCUIT COURT OPINIONS

Construction as to school boards. - When the statutes are read in light of the supervisory power provided by the constitutional provision, they do not act to limit the school board's authority or duties, and instead they reiterated the school board's authority to investigate and discipline its juvenile students; it appeared that the school board would be an institution with a legitimate interest in the video of school bus misconduct, and that its access to the video should not be barred by the statute. Shenandoah Cnty. Sch. Bd. v. Carter, 93 Va. Cir. 253, 2016 Va. Cir. LEXIS 85 (Shenandoah County Apr. 29, 2016).

§ 16.1-302. Dockets, indices, and order books; when hearings and records private; right to public hearing; presence of juvenile in court.

  1. Every juvenile court shall keep a separate docket of cases arising under this law.
  2. Every circuit court shall keep a separate docket, index, and, for entry of its orders, a separate order book or file for cases on appeal from the juvenile court except (i) cases involving support pursuant to § 20-61 or subdivision A 3 or subsection F or L of § 16.1-241; (ii) cases involving criminal offenses committed by adults which are commenced on a warrant or a summons as described in Title 19.2; and (iii) cases involving civil commitments of adults pursuant to Title 37.2. Such cases shall be docketed on the appropriate docket and the orders in such cases shall be entered in the appropriate order book as used with similar cases commenced in circuit court. In any child or spousal support case appealed to the circuit court, the case files shall be open for inspection only as provided by § 16.1-305.01.
  3. The general public shall be excluded from all juvenile court hearings and only such persons admitted as the judge shall deem proper. However, proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult shall be open. Subject to the provisions of subsection D for good cause shown, the court may, sua sponte or on motion of the accused or the attorney for the Commonwealth close the proceedings. If the proceedings are closed, the court shall state in writing its reasons and the statement shall be made a part of the public record.
  4. In any hearing held for the purpose of adjudicating an alleged violation of any criminal law, or law defining a traffic infraction, the juvenile or adult so charged shall have a right to be present and shall have the right to a public hearing unless expressly waived by such person. The chief judge may provide by rule that any juvenile licensed to operate a motor vehicle who has been charged with a traffic infraction may waive court appearance and admit to the infraction or infractions charged if he or she and a parent, legal guardian, or person standing in loco parentis to the juvenile appear in person at the court or before a magistrate or sign and either mail or deliver to the court or magistrate a written form of appearance, plea and waiver, provided that the written form contains the notarized signature of the parent, legal guardian, or person standing in loco parentis to the juvenile. An emancipated juvenile charged with a traffic infraction shall have the opportunity to waive court appearance and admit to the infraction or infractions if he or she appears in person at the court or before a magistrate or signs and either mails or delivers to the court or magistrate a written form of appearance, plea, and waiver, provided that the written plea form containing the signature of the emancipated juvenile is accompanied by a notarized sworn statement which details the facts supporting the claim of emancipated status. Whenever the sole purpose of a proceeding is to determine the custody of a child of tender years, the presence of such juvenile in court may be waived by the judge at any stage thereof.

    (Code 1950, § 16.1-162; 1956, c. 555; 1958, c. 353; 1971, Ex. Sess., c. 228; 1975, c. 334; 1977, cc. 559, 585; 1978, c. 605; 1979, c. 393; 1983, c. 293; 1996, cc. 755, 914; 2018, c. 18.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and inserted the subsection A through D designations, in subsection C, deleted "except that in" following "judge shall deem proper" in the first sentence, and added the second through fourth sentences, in subsection D, in the first sentence, inserted "In" preceding "any hearing," substituted "an alleged" for "the alleged," and substituted "juvenile" for "child."

The 2018 amendments. - The 2018 amendment by c. 18, in subsection B, updated references and added the last sentence.

Law review. - For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 59.

CASE NOTES

Mandamus not available to challenge closure order. - Writs of mandamus had been improperly issued to reporters and newspapers granting them access to certain criminal proceedings where the proper procedure would have been for the petitioners to have filed motions to intervene and objections to the courts' closure orders and, if such had been rejected, to appeal those orders. Hertz v. Times-World Corp., 259 Va. 599 , 528 S.E.2d 458, 2000 Va. LEXIS 81 (2000).

§ 16.1-302.1. Right of victim or representative to attend certain proceedings; notice of hearings.

During proceedings involving petitions or warrants alleging that a juvenile is delinquent, including proceedings on appeal, a victim may remain in the courtroom and shall not be excluded unless the court determines in its discretion, that the presence of the victim would impair the conduct of a fair trial. In any such case involving a minor victim, the court may permit an adult chosen by the minor victim to be present in the courtroom during the proceedings in addition to or in lieu of the minor's parent or guardian.

The attorney for the Commonwealth shall give prior notice of any such proceedings and changes in the scheduling thereof to any known victim and to any known adult chosen in accordance with this section by a minor victim at the address or telephone number, or both, provided in writing by such persons.

(1996, cc. 755, 914; 2000, c. 339.)

The 2000 amendments. - The 2000 amendment by c. 339 added "and shall not be excluded unless the court determines in its discretion, that the presence of the victim would impair the conduct of a fair trial" at the end of the first sentence in the first paragraph; and deleted a former second paragraph, which read: "However, if either the attorney for the Commonwealth or any defendant represents to the court that he intends to call as a material witness a victim or any adult chosen by a minor victim, the court, on motion, shall exclude that person from the proceedings."

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

§ 16.1-303. Reports of court officials and employees when privileged.

All information obtained in discharge of official duties by any official or by any employee of the court shall be privileged, and shall not be disclosed to anyone other than the judge unless and until otherwise ordered by the judge or by the judge of a circuit court; provided, however, that in any case when such information shall disclose that an offense has been committed which would be a felony if committed by an adult, it shall be the duty of the official or employee of the court obtaining such information to report the same promptly to the attorney for the Commonwealth or the police in the county, city or town where the offense occurred. It shall not be deemed a violation of this section if the disclosed information is otherwise available to the public.

(Code 1950, § 16.1-209; 1956, c. 555; 1958, c. 354; 1977, c. 559; 1996, cc. 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and added the last sentence.

§ 16.1-304.

Repealed by Acts 1983, c. 499.

Cross references. - As to the retention of records of juvenile and domestic relations district court proceedings, see § 16.1-69.55.

§ 16.1-305. Confidentiality of court records.

  1. Social, medical and psychiatric or psychological records, including reports or preliminary inquiries, predisposition studies and supervision records, of neglected and abused children, children in need of services, children in need of supervision and delinquent children shall be filed with the other papers in the juvenile's case file. All juvenile case files shall be filed separately from adult files and records of the court and shall be open for inspection only to the following:
    1. The judge, probation officers and professional staff assigned to serve the juvenile and domestic relations district courts;
    2. Representatives of a public or private agency or department providing supervision or having legal custody of the child or furnishing evaluation or treatment of the child ordered or requested by the court;
    3. The attorney for any party, including the attorney for the Commonwealth;
    4. Any other person, agency or institution, by order of the court, having a legitimate interest in the case or in the work of the court. However, for the purposes of an investigation conducted by a local community-based probation services agency, preparation of a pretrial investigation report, or of a presentence or postsentence report upon a finding of guilty in a circuit court or for the preparation of a background report for the Parole Board, adult probation and parole officers, including United States Probation and Pretrial Services Officers, any officer of a local pretrial services agency established or operated pursuant to Article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of Title 19.2, and any officer of a local community-based probation services agency established or operated pursuant to the Comprehensive Community Corrections Act for Local-Responsible Offenders (§ 9.1-173 et seq.) shall have access to an accused's or inmate's records in juvenile court without a court order and for the purpose of preparing the discretionary sentencing guidelines worksheets and related risk assessment instruments as directed by the court pursuant to subsection C of § 19.2-298.01, the attorney for the Commonwealth and any pretrial services or probation officer shall have access to the defendant's records in juvenile court without a court order;
    5. Any attorney for the Commonwealth and any local pretrial services or community-based probation officer or state adult probation or parole officer shall have direct access to the defendant's juvenile court delinquency records maintained in an electronic format by the court for the strictly limited purposes of preparing a pretrial investigation report, including any related risk assessment instrument, any presentence report, any discretionary sentencing guidelines worksheets, including related risk assessment instruments, any post-sentence investigation report or preparing for any transfer or sentencing hearing. A copy of the court order of disposition in a delinquency case shall be provided to a probation officer or attorney for the Commonwealth, when requested for the purpose of calculating sentencing guidelines. The copies shall remain confidential, but reports may be prepared using the information contained therein as provided in §§ 19.2-298.01 and 19.2-299.
    6. The Office of the Attorney General, for all criminal justice activities otherwise permitted and for purposes of performing duties required by Chapter 9 (§ 37.2-900 et seq.) of Title 37.2. A1. Any person, agency, or institution that may inspect juvenile case files pursuant to subdivisions A 1 through 4 shall be authorized to have copies made of such records, subject to any restrictions, conditions, or prohibitions that the court may impose.
  2. All or any part of the records enumerated in subsection A, or information secured from such records, which is presented to the judge in court or otherwise in a proceeding under this law shall also be made available to the parties to the proceedings and their attorneys.

    B1. If a juvenile 14 years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records regarding that adjudication and any subsequent adjudication of delinquency, other than those records specified in subsection A, shall be open to the public. However, if a hearing was closed, the judge may order that certain records or portions thereof remain confidential to the extent necessary to protect any juvenile victim or juvenile witness.

  3. All other juvenile records, including the docket, petitions, motions and other papers filed with a case, transcripts of testimony, findings, verdicts, orders and decrees shall be open to inspection only by those persons and agencies designated in subsections A and B. However, a licensed bail bondsman shall be entitled to know the status of a bond he has posted or provided surety on for a juvenile under § 16.1-258. This shall not authorize a bail bondsman to have access to or inspect any other portion of his principal's juvenile court records.
  4. Attested copies of papers filed in connection with an adjudication of guilty for an offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, which shows the charge, finding, disposition, name of the attorney for the juvenile, or waiver of attorney shall be furnished to an attorney for the Commonwealth upon certification by the prosecuting attorney that such papers are needed as evidence in a pending criminal or traffic proceeding and that such papers will be only used for such evidentiary purpose. D1. Attested copies of papers filed in connection with an adjudication of guilt for a delinquent act that would be a felony if committed by an adult, which show the charge, finding, disposition, name of the attorney for the juvenile, or waiver of attorney by the juvenile, shall be furnished to an attorney for the Commonwealth upon his certification that such papers are needed as evidence in a pending criminal prosecution for a violation of § 18.2-308.2 and that such papers will be only used for such evidentiary purpose.
  5. Upon request, a copy of the court order of disposition in a delinquency case shall be provided to the Virginia Workers' Compensation Commission solely for purposes of determining whether to make an award to the victim of a crime, and such information shall not be disseminated or used by the Commission for any other purpose including but not limited to actions pursuant to § 19.2-368.15.
  6. Staff of the court services unit or the attorney for the Commonwealth shall provide notice of the disposition in a case involving a juvenile who is committed to state care after being adjudicated for a criminal sexual assault as specified in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 to the victim or a parent of a minor victim, upon request. Additionally, if the victim or parent submits a written request, the Department of Juvenile Justice shall provide advance notice of such juvenile offender's anticipated date of release from commitment.
  7. Any record in a juvenile case file which is open for inspection by the professional staff of the Department of Juvenile Justice pursuant to subsection A and is maintained in an electronic format by the court, may be transmitted electronically to the Department of Juvenile Justice. Any record so transmitted shall be subject to the provisions of § 16.1-300.

    (Code 1950, § 16.1-162; 1956, c. 555; 1958, c. 353; 1971, Ex. Sess., c. 228; 1975, c. 334; 1977, c. 559; 1979, c. 605; 1983, c. 389; 1984, c. 34; 1988, c. 541; 1989, c. 182; 1990, c. 258; 1992, c. 547; 1994, c. 603; 1995, c. 430; 1996, cc. 755, 870, 914; 1998, cc. 278, 521; 2002, cc. 701, 735, 741; 2003, c. 143; 2004, c. 446; 2007, c. 133; 2009, cc. 138, 308, 740; 2021, Sp. Sess. I, c. 463.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and inserted "children in need of supervision" following "children in need of services" near the middle of subsection A, inserted "including the attorney for the Commonwealth" following "any party" in subdivision A 3, and added subsection B1.

The 1998 amendments. - The 1998 amendment by c. 278 added subsection G.

The 1998 amendment by c. 521 added the second paragraph in subdivision A 4.

The 2002 amendments. - The 2002 amendments by cc. 701 and 735 are identical, and rewrote subdivision A 4.

The 2002 amendment by c. 741 inserted the next-to-last paragraph of subsection A.

The 2003 amendments. - The 2003 amendment by c. 143 substituted "any pretrial services or" for "the" in the last sentence of subdivision A 4; inserted the subdivision A 5 designation; and in subdivision A 5, substituted "Any" for "The," "any local pretrial services or community-based" for "any," inserted "pretrial investigation report, including any related risk assessment instrument, any," substituted "any" for "preparing," and inserted "worksheets, including related risk assessment instruments, any post-sentence investigation report"; and substituted "14" for "fourteen" in subsection B1.

The 2004 amendments. - The 2004 amendment by c. 446 added the last two sentences in subsection C; and inserted subsection D1.

The 2007 amendments. - The 2007 amendment by c. 133, in subdivision A 4, in the second sentence, inserted "services" following "community-based probation" near the beginning and substituted "community-based probation services agency" for "community-based probation program" near the middle.

The 2009 amendments. - The 2009 amendments by cc. 138 and 308 are identical, and added subsection A1.

The 2009 amendment by c. 740 added subdivision A 6.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, deleted "of this section" at the end of the first sentence in subsection C; and, in subsection D, substituted "or traffic" for "traffic or habitual offender" and made a stylistic change.

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Right of Privacy, § 1.

CASE NOTES

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

Defendant was not entitled to examine the juvenile records of an adverse witness where he was given a list of juvenile adjudications, and defendant did not assert that the witness' prior juvenile adjudications involved defendant. Scott v. Commonwealth, 7 Va. App. 252, 372 S.E.2d 771 (1988), cert. denied, 490 U.S. 1095, 109 S. Ct. 2441, 104 L. Ed. 2d 997 (1989).

Use of juvenile record in capital sentencing. - Virginia law does not prohibit the use of a defendant's juvenile record in capital sentencing. Peterson v. Murray, 904 F.2d 882 (4th Cir.), cert. denied, 498 U.S. 992, 111 S. Ct. 537, 112 L. Ed. 2d 547 (1990).

Applied in Fulcher v. Commonwealth, 226 Va. 96 , 306 S.E.2d 874 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Access to court files of cases must be given to self-represented individuals by juvenile and domestic relations district courts. However, juvenile courts are not required to provide such self-represented litigants with notice regarding their rights of access. See opinion of Attorney General to The Honorable Onzlee Ware, Member, House of Delegates, 06-107, 2007 Va. AG LEXIS 7 (2/20/07).

Where records are designated as "open for inspection" to certain individuals, such individuals are not authorized to copy the records. See opinion of Attorney General to The Honorable Robert B. Wilson, V, Chief Judge, Eighth Judicial Circuit Juvenile & Domestic Relations District Court, 08-041 2008 Va. AG LEXIS 17 (6/16/08).

§ 16.1-305.01. Access to child and spousal support case files.

All child support and spousal support case files, whether physical or digital, shall be open for inspection only to the following:

  1. The judge, court officials, and clerk or deputy clerk assigned to serve the court in which the case is pending or to which the case is transferred pursuant to court order;
  2. Any party to the case;
  3. Any attorney of record to the case; and
  4. The Department of Social Services and the Division of Child Support Enforcement.

    Any other person, agency, or institution having a legitimate interest in such case files or the work of the court, by order of the court, may inspect the case files.

    (2018, c. 18.)

§ 16.1-305.1. Disclosure of disposition in certain delinquency cases.

Upon a court's disposition of a proceeding where a juvenile is charged with a crime listed in subsection G of § 16.1-260 in which a juvenile is adjudicated delinquent, convicted, found not guilty or the charges are reduced, the clerk of the court in which the disposition is entered shall, within 15 days of the expiration of the appeal period, if there has been no notice of an appeal, provide written notice of the disposition ordered by the court, including the nature of the offense upon which the disposition was based, to the superintendent of the school division in which the child is enrolled at the time of the disposition or, if he is not then enrolled in school, the division in which he was enrolled at the time of the offense. If the court defers disposition, or the charges are nolle prosequi, withdrawn, or dismissed the clerk shall, within 15 days of such action, provide written notice of such action to the superintendent of the school division in which the child is enrolled at such time or, if he is not then enrolled in school, the division in which he was enrolled at the time of the offense. If charges are withdrawn in intake or handled informally without a court disposition, the intake officer shall, within 15 days of such action, provide written notification of the action to the superintendent of the school division in which the child is enrolled at that time or, if he is not then enrolled in school, the division in which he was enrolled at the time of the offense.

If the child is not enrolled in the school division that receives notification under this section, the superintendent of that division may forward the notification to the superintendent of the school division where the child is enrolled.

A superintendent who receives notification under this section may disclose the information received to anyone to whom he or a principal disclosed that a petition had been filed. Further disclosure of information received under this section by the superintendent to school personnel is authorized only as provided in § 22.1-288.2.

(1993, cc. 645, 889; 1994, cc. 835, 913; 1996, cc. 755, 914; 1997, c. 371; 1999, c. 952; 2003, c. 119.)

Cross references. - As to authority to suspend or expel a student about whom a report of an adjudication of delinquency or conviction pursuant to this section has been received, see § 22.1-277.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in the first sentence, in clause (viii), inserted "and related offenses" following "burglary" and inserted "through 18.2-93 " following " § 18.2-89 ."

The 1999 amendment substituted "a firearm offense" for "the unlawful purchase, possession or use of a weapon," substituted "Articles " for "Article," and inserted "5 ( § 18.2-288 et seq.), 6 ( § 18.2-299 et seq.), or 7 ( § 18.2-308 )" in clause (i); and added clause (ix).

The 2003 amendments. - The 2003 amendment by c. 119 rewrote the section.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

§ 16.1-305.2. Disclosure of notice of the filing of a petition and certain reports by division superintendent.

Except as otherwise provided in this section, a division superintendent shall not disclose information contained in or derived from a (i) notice of petition received pursuant to § 16.1-260 or (ii) report received pursuant to § 66-25.2:1 . If the juvenile is not enrolled as a student in a public school in the division to which the notice or report was given, the superintendent shall promptly so notify the intake officer of the juvenile court in which the petition was filed or the Director of the Department who sent the report and may forward the notice of petition or report to the superintendent of the division in which the juvenile is enrolled, if known.

If the division superintendent believes that disclosure of information regarding a petition to school personnel is necessary to ensure the physical safety of the juvenile, other students or school personnel within the division, he may at any time prior to receipt of the notice of disposition in accordance with § 16.1-305.1, disclose the fact of the filing of the petition and the nature of the offense to the principal of the school in which the juvenile who is the subject of the petition is enrolled. The principal may further disseminate the information regarding a petition, after the juvenile has been taken into custody, whether or not the child has been released, only to those students and school personnel having direct contact with the juvenile and need of the information to ensure physical safety or the appropriate educational placement or other educational services.

If the division superintendent believes that disclosure of information regarding a report received pursuant to § 66-25.2:1 to school personnel is necessary to ensure the physical safety of the juvenile, other students, or school personnel within the division he may disclose the information to the principal of the school in which the juvenile is enrolled. The principal may further disseminate the information regarding such report only to school personnel as necessary to protect the juvenile, the subject or subjects of the danger, other students, or school personnel.

(1995, c. 429; 2003, c. 119; 2009, c. 276.)

The 2003 amendments. - The 2003 amendment by c. 119 inserted "and may forward the notice of petition to the superintendent of the division in which the juvenile is enrolled, if known" in the last sentence of the first paragraph.

The 2009 amendments. - The 2009 amendment by c. 276, in the first paragraph, inserted the clause (i) designator, inserted clause (ii) in the first sentence, inserted "or report" following "which the notice," "or the Director of the department who sent the report" following "petition was filed" and "or report" following "notice of petition" in the second sentence; in the second paragraph, inserted "of information regarding a petition" preceding "to school personnel" in the first sentence, inserted "regarding a petition" following "disseminate the information" in the second sentence; and added the third paragraph.

Law review. - For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

§ 16.1-306. Expungement of court records.

  1. Notwithstanding the provisions of § 16.1-69.55, the clerk of the juvenile and domestic relations district court shall, on January 2 of each year or on a date designated by the court, destroy its files, papers and records, including electronic records, connected with any proceeding concerning a juvenile in such court, if such juvenile has attained the age of 19 years and five years have elapsed since the date of the last hearing in any case of the juvenile which is subject to this section. However, if the juvenile was found guilty of an offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, the records shall be destroyed when the juvenile has attained the age of 29. If the juvenile was found guilty of a delinquent act which would be a felony if committed by an adult, the records shall be retained.
  2. However, in all files in which the court records concerning a juvenile contain a finding of guilty of any offense ancillary to (i) a delinquent act that would be a felony if committed by an adult or (ii) any offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, the records of any such ancillary offense shall also be retained for the time specified for the felony or the offense reported to the Department of Motor Vehicles as specified in subsection A, and all such records shall be available for inspection as provided in § 16.1-305.
  3. A person who has been the subject of a delinquency or traffic proceeding and (i) has been found innocent thereof or (ii) such proceeding was otherwise dismissed, may file a motion requesting the destruction of all records pertaining to such charge. Notice of such motion shall be given to the attorney for the Commonwealth. Unless good cause is shown why such records should not be destroyed, the court shall grant the motion, and shall send copies of the order to all officers or agencies that are repositories of such records, and all such officers and agencies shall comply with the order.
  4. Each person shall be notified of his rights under subsections A and C of this section at the time of his dispositional hearing.
  5. Upon destruction of the records of a proceeding as provided in subsections A, B, and C, the violation of law shall be treated as if it never occurred. All index references shall be deleted and the court and law-enforcement officers and agencies shall reply and the person may reply to any inquiry that no record exists with respect to such person.
  6. All docket sheets shall be destroyed in the sixth year after the last hearing date recorded on the docket sheet.

    (Code 1950, § 16.1-193; 1956, c. 555; 1977, c. 559; 1979, cc. 736, 737; 1989, c. 183; 1990, c. 258; 1993, cc. 468, 589, 926; 1994, cc. 859, 949; 1996, c. 463; 2008, c. 519; 2014, c. 271.)

Editor's note. - Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section, and enactment of § 16.1-306.1, by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2008 amendments. - The 2008 amendment by c. 519, in subsection A, inserted "including electronic records" near the beginning and substituted "19 years" for "nineteen years" near the middle of the first sentence; and substituted "29" for "twenty-nine" at the end of the second sentence.

The 2014 amendments. - The 2014 amendment by c. 271, in subsection B substituted "However, in" for "In" preceding "all files"; inserted "any offense ancillary to (i)" following "guilty of"; substituted "that" for "which" following "act", "(ii) any" for "an" following "adult or" and ", the records of any such ancillary offense shall also be retained for the time specified for the felony or the offense reported to the Department of Motor Vehicles as specified in subsection A, and all such records shall be" for "together with findings of not innocent of other acts, all of the records of such juvenile subject to this section shall be retained and"; in subsection C substituted "such" for "the" preceding "charge" and "delinquency" for "of such an act of" following "charge."

Law review. - For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

CASE NOTES

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

Admissibility of juvenile records in sexually violent predator proceedings. - Circuit court erred when it excluded juvenile records in a sexually violent predator proceeding under the Sexually Violent Predators Act (SVPA), § 37.2-900 et seq., because the 1996 amendment to § 16.1-306, providing retention of juvenile records for certain offenses, came into effect before the inmate's 29th birthday, the date on which the right to record destruction would otherwise have vested. Thus, the inmate did not have a due process right under the Fourteenth Amendment to the U.S. Constitution to have his juvenile records destroyed and considered inadmissible in the SVPA proceedings. Commonwealth v. Garrett, 276 Va. 590 , 667 S.E.2d 739, 2008 Va. LEXIS 116 (2008).

§ 16.1-307. Circuit court records regarding juveniles.

In proceedings against a juvenile in the circuit court in which the circuit court deals with the child in the same manner as a case in the juvenile court, the clerk of the court shall preserve all records connected with the proceedings in files separate from other files and records of the court as provided in § 16.1-302. Except as provided in §§ 19.2-389.1 and 19.2-390, such records shall be open for inspection only in accordance with the provisions of § 16.1-305 and shall be subject to expungement provisions of § 16.1-306. In proceedings in which a juvenile, fourteen years of age or older at the time of the offense, was adjudicated delinquent in juvenile court on the basis of an act which would be a felony if committed by an adult, or was found guilty of a felony in the circuit court, any court records, other than those specified in subsection A of § 16.1-305, regarding that adjudication or conviction and any subsequent adjudication of delinquency or conviction of a crime, shall be available and shall be treated in the same manner as adult criminal records.

(1977, c. 559; 1990, c. 258; 1993, cc. 468, 926; 1996, cc. 755, 914.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile" for "child" in the first sentence and added the last sentence.

§ 16.1-308. Effect of adjudication on status of child.

Except as otherwise provided by law for a juvenile found guilty of a felony in circuit court whose case is disposed of in the same manner as an adult criminal case, a finding of guilty on a petition charging delinquency under the provisions of this law shall not operate to impose any of the civil disabilities ordinarily imposed by conviction for a crime, nor shall any such finding operate to disqualify the child for employment by any state or local governmental agency.

Nothing in this section shall prohibit the State Police or a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof from denying employment to a person who had been adjudicated delinquent where such denial is based on the nature and gravity of the offense, the time since adjudication, the time since completion of any sentence, and the nature of the job sought.

(Code 1950, § 16.1-179; 1956, c. 555; 1977, c. 559; 1996, cc. 755, 914; 2011, c. 622.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and inserted "Except as otherwise provided by law for a juvenile found guilty of a felony in circuit court whose case is disposed of in the same manner as an adult criminal case" preceding "a finding of guilty on a petition" and inserted "civil" preceding "disabilities."

The 2011 amendments. - The 2011 amendment by c. 622 added the last paragraph.

Law review. - For comment, "Jury Trials for Juvenile Delinquents in Virginia," see 28 Wash. & Lee L. Rev. 135 (1971).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 59; 9B M.J. Infants and Juveniles, § 19; 17 M.J. Statutes, § 40; 20 M.J. Weapons, §§ 7.2, 13.

CASE NOTES

Policy of section. - Statutes of this character originated in a policy not to permit the same uses to be made of records of juvenile courts as are frequently made of criminal records of courts of general jurisdiction, for the reason that juvenile proceedings are corrective in nature rather than penal. The child is looked upon not as a bad man, who should be punished, but as an erring child who needs help. Kiracofe v. Commonwealth, 198 Va. 833 , 97 S.E.2d 14 (1957).

Predicate conviction for 18 U.S.C.S. § 922(g)(1). - Dismissal of indictments for possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment in violation of 18 U.S.C.S. § 922(g)(1) was affirmed, where the predicate convictions were juvenile adjudications in Virginia state court; a juvenile adjudication was not a conviction under Virginia law, so such an adjudication could not serve as the underlying conviction. United States v. Walters, 359 F.3d 340, 2004 U.S. App. LEXIS 3021 (4th Cir. 2004).

Conviction for purposes of 18 U.S.C.S. § 922(g)(1). - The clearest general statement of Virginia law on whether an adjudication of juvenile delinquency qualifies as a "conviction" for purposes of 18 U.S.C.S. § 922(g)(1) is § 16.1-308. United States v. Walters, 359 F.3d 340, 2004 U.S. App. LEXIS 3021 (4th Cir. 2004).

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

Interaction with § 18.2-308.2 . - Regarding defendant's unlawful possession of a firearm, any ambiguity over juvenile protections between this section and § 18.2-308.2 , which applies to adult felons and juveniles of a certain age convicted of acts that would be felonies for adults, must be resolved in favor of section 18.2-308.2, which is the more specific statute and prevails over the general statute concerning collateral disabilities for convicted juveniles. Griffin v. Commonwealth, 33 Va. App. 413, 533 S.E.2d 653, 2000 Va. App. LEXIS 649 (2000).

Juvenile conviction under Virginia law was not a criminal conviction for purposes of defining "prohibited person" under 18 U.S.C.S. § 922 and U.S. Sentencing Guidelines Manual § 2K2.1(a)(6); the fact that defendant was considered a "prohibited person" under § 18.2-308.2 A was irrelevant for purposes of a federal firearms conviction. United States v. Bugg, 248 F. Supp. 2d 507, 2003 U.S. Dist. LEXIS 3215 (E.D. Va. 2003).

Questioning witness as to adjudication as delinquent not permitted. - In view of the provisions of the juvenile statutes no error was committed in refusing to allow defendant's counsel to ask a witness for the prosecution whether he had ever been adjudged a juvenile delinquent in a proceeding in a juvenile court involving a felonious offense or larceny, the purpose of the question being to affect the credibility of the witness. Questions which refer to the disposition of the child in a juvenile court are not permitted. Kiracofe v. Commonwealth, 198 Va. 833 , 97 S.E.2d 14 (1957). But, see McCain v. Commonwealth, 5 Va. App. 81, 360 S.E.2d 854 (1987).

Cross examination as to juvenile record where witness found "guilty" by juvenile court. - Once it was established that defendant had the right to cross-examine co-defendant by referring to his juvenile record, the right included an effective cross examination and not one limited so as to convey to the jury that "within the purview of the juvenile court law" was something other than a finding of guilty. The trial court erred in limiting the cross-examination of co-defendant, the Commonwealth's chief witness, to questions which did not include "not innocent" or "guilty" because the phrase "within the purview of the juvenile court law" did not effectively convey to the jury that co-defendant had, in fact, been found "guilty" by the juvenile court. McCain v. Commonwealth, 5 Va. App. 81, 360 S.E.2d 854 (1987).

Applied in United States v. Davis, 234 F. Supp. 2d 601, 2002 U.S. Dist. LEXIS 24781 (E.D. Va. 2002); Conkling v. Commonwealth, 45 Va. App. 518, 612 S.E.2d 235 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Disqualification from employment. - Although an individual who was adjudicated delinquent as a juvenile for an enumerated offense is not automatically disqualified from service as a law-enforcement officer pursuant to § 15.2-1705 , state and local law-enforcement agencies are authorized to consider certain aspects of juvenile adjudications as a basis for denying employment. See opinion of Attorney General to The Honorable Richard H. Stuart, Member, Senate of Virginia, 14-025, 2014 Va. AG LEXIS 22 (7/10/14).

§ 16.1-309. Penalty.

  1. Except as provided in §§ 16.1-299, 16.1-300, 16.1-301, 16.1-305 and 16.1-307, any person who (i) files a petition, (ii) receives a petition or has access to court records in an official capacity, (iii) participates in the investigation of allegations which form the basis of a petition, (iv) is interviewed concerning such allegations and whose information is derived solely from such interview or (v) is present during any court proceeding, who discloses or makes use of or knowingly permits the use of identifying information not otherwise available to the public concerning a juvenile who is suspected of being or is the subject of a proceeding within the jurisdiction of the juvenile court pursuant to subdivisions A 1 through 5 or subdivision A 7 of § 16.1-241 or who is in the custody of the State Department of Juvenile Justice, which information is directly or indirectly derived from the records or files of a law-enforcement agency, court or the Department of Juvenile Justice or acquired in the course of official duties, is guilty of a Class 3 misdemeanor.
  2. The provisions of this section shall not apply to any law-enforcement officer or school employee who discloses to school personnel identifying information concerning a juvenile who is suspected of committing or has committed a delinquent act that has met applicable criteria of § 16.1-260 and is committed or alleged to have been committed on school property during a school-sponsored activity or on the way to or from such activity, if the disclosure is made solely for the purpose of enabling school personnel to take appropriate disciplinary action within the school setting against the juvenile. Further, the provisions of this section shall not apply to school personnel who disclose information obtained pursuant to §§ 16.1-305.1 and 22.1-288.2, if the disclosure is made in compliance with those sections.

    (1977, c. 559; 1978, c. 626; 1979, c. 481; 1989, cc. 520, 733; 1993, cc. 645, 889; 1994, cc. 835, 913; 1996, cc. 755, 914; 2003, c. 119; 2017, c. 623.)

Cross references. - As to punishment for Class 3 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and in subsection A, inserted the clause (i) through (v) designations and inserted "not otherwise available to the public" following "identifying information" in clause (v).

The 2003 amendments. - The 2003 amendment by c. 119 substituted "in compliance with those sections" for "solely to enable school personnel to take appropriate actions within the school setting with regard to the juvenile or another student" at the end of subsection B.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection A, substituted "subdivisions A 1 through 5 or subdivision A 7 of § 16.1-241" for "subdivisions 1 through 5 of subsection A of § 16.1-241."

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

CASE NOTES

Impeachment with evidence of prior juvenile adjudications. - A prosecutor may not impeach the defendant with evidence of prior juvenile adjudications, and the attempt to so cross-examine defendant was not harmless error. Lavinder v. Commonwealth, 395 S.E.2d 211 (1990).

CIRCUIT COURT OPINIONS

Construction as to school boards. - When the statutes are read in light of the supervisory power provided by the constitutional provision, they do not act to limit the school board's authority or duties, and instead they reiterated the school board's authority to investigate and discipline its juvenile students; it appeared that the school board would be an institution with a legitimate interest in the video of school bus misconduct, and that its access to the video should not be barred by the statute. Shenandoah Cnty. Sch. Bd. v. Carter, 93 Va. Cir. 253, 2016 Va. Cir. LEXIS 85 (Shenandoah County Apr. 29, 2016).

§ 16.1-309.1. Exception as to confidentiality.

  1. Notwithstanding any other provision of this article, where consideration of public interest requires, the judge shall make available to the public the name and address of a juvenile and the nature of the offense for which a juvenile has been adjudicated delinquent (i) for an act which would be a Class 1, 2, or 3 felony, forcible rape, robbery or burglary or a related offense as set out in Article 2 (§ 18.2-89 et seq.) of Chapter 5 of Title 18.2 if committed by an adult or (ii) in any case where a juvenile is sentenced as an adult in circuit court.
      1. At any time prior to disposition, if a juvenile charged with a delinquent act which would constitute a felony if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice, the attorney for the Commonwealth or, upon notice to the Commonwealth's attorney, the Department of Juvenile Justice or a locally operated court services unit, may, with notice to the juvenile's attorney of record, petition the court having jurisdiction of the offense to authorize public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought or for which he was adjudicated and any other information which may expedite his apprehension. Upon a showing that the juvenile is a fugitive and for good cause, the court shall order release of this information to the public. If a juvenile charged with a delinquent act that would constitute a felony if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice at a time when the court is not in session, the Commonwealth's attorney, the Department of Juvenile Justice, or a locally operated court services unit may, with notice to the juvenile's attorney of record, authorize the public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought, and any other information which may expedite his apprehension. B. 1. a.  At any time prior to disposition, if a juvenile charged with a delinquent act which would constitute a felony if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice, the attorney for the Commonwealth or, upon notice to the Commonwealth's attorney, the Department of Juvenile Justice or a locally operated court services unit, may, with notice to the juvenile's attorney of record, petition the court having jurisdiction of the offense to authorize public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought or for which he was adjudicated and any other information which may expedite his apprehension. Upon a showing that the juvenile is a fugitive and for good cause, the court shall order release of this information to the public. If a juvenile charged with a delinquent act that would constitute a felony if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice at a time when the court is not in session, the Commonwealth's attorney, the Department of Juvenile Justice, or a locally operated court services unit may, with notice to the juvenile's attorney of record, authorize the public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought, and any other information which may expedite his apprehension.
      2. At any time prior to disposition, if a juvenile charged with a delinquent act which would constitute a misdemeanor if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice, the attorney for the Commonwealth may, with notice to the juvenile's attorney of record, petition the court having jurisdiction of the offense to authorize public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought or for which he was adjudicated and any other information which may expedite his apprehension. Upon a showing that the juvenile is a fugitive and for good cause, the court shall order release of this information to the public. If a juvenile charged with a delinquent act that would constitute a misdemeanor if committed by an adult, or held in custody by a law-enforcement officer, or held in a secure facility pursuant to such charge becomes a fugitive from justice at a time when the court is not in session, the attorney for the Commonwealth may, with notice to the juvenile's attorney of record, authorize the public release of the juvenile's name, age, physical description and photograph, the charge for which he is sought, and any other information which may expedite his apprehension.
    1. After final disposition, if a juvenile (i) found to have committed a delinquent act becomes a fugitive from justice or (ii) who has been committed to the Department of Juvenile Justice pursuant to subdivision A 14 of § 16.1-278.8 or § 16.1-285.1 becomes a fugitive from justice by escaping from a facility operated by or under contract with the Department or from the custody of any employee of such facility, the Department may release to the public the juvenile's name, age, physical description and photograph, the charge for which he is sought or for which he was committed, and any other information which may expedite his apprehension. The Department shall promptly notify the attorney for the Commonwealth of the jurisdiction in which the juvenile was tried whenever information is released pursuant to this subdivision. If a juvenile specified in clause (i) being held after disposition in a secure facility not operated by or under contract with the Department becomes a fugitive by such escape, the attorney for the Commonwealth of the locality in which the facility is located may release the information as provided in this subdivision.
  2. Whenever a juvenile 14 years of age or older is charged with a delinquent act that would be a criminal violation of Article 2 (§ 18.2-38 et seq.) of Chapter 4 of Title 18.2, a felony involving a weapon, a felony violation of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, or an "act of violence" as defined in subsection A of § 19.2-297.1 if committed by an adult, the judge may, where consideration of the public interest requires, make the juvenile's name and address available to the public.
  3. Upon the request of a victim of a delinquent act that would be a felony or that would be a misdemeanor violation of § 16.1-253.2, 18.2-57 , 18.2-57.2 , 18.2-60.3 , 18.2-60.4 , 18.2-67.4 , or 18.2-67.5 if committed by an adult, the court may order that such victim be informed of the charge or charges brought, the findings of the court, and the disposition of the case. For purposes of this section, "victim" shall be defined as in § 19.2-11.01.
  4. Upon request, the judge or clerk may disclose if an order of emancipation of a juvenile pursuant to § 16.1-333 has been entered, provided (i) the order is not being appealed, (ii) the order has not been terminated, or (iii) there has not been a judicial determination that the order is void ab initio.
  5. Notwithstanding any other provision of law, a copy of any court order that imposes a curfew or other restriction on a juvenile may be provided to the chief law-enforcement officer of the county or city wherein the juvenile resides. The chief law-enforcement officer shall only disclose information contained in the court order to other law-enforcement officers in the conduct of official duties.
  6. Notwithstanding any other provision of law, where consideration of public safety requires, the Department and locally operated court service unit shall release information relating to a juvenile's criminal street gang involvement, if any, and the criminal street gang-related activity and membership of others, as criminal street gang is defined in § 18.2-46.1 , obtained from an investigation or supervision of a juvenile and shall include the identity or identifying information of the juvenile; however, the Department and local court service unit shall not release the identifying information of a juvenile not affiliated with or involved in a criminal street gang unless that information relates to a specific criminal act. Such information shall be released to any State Police, local police department, sheriff's office, or law-enforcement task force that is a part of or administered by the Commonwealth or any political subdivision thereof, and that is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth. The exchange of information shall be for the purpose of an investigation into criminal street gang activity.
  7. Notwithstanding any other provision of Article 12 (§ 16.1-299 et seq.), a clerk of the court shall report to the Bureau of Immigration and Customs Enforcement of the U.S. Department of Homeland Security a juvenile who has been detained in a secure facility but only upon an adjudication of delinquency or finding of guilt for a violent juvenile felony and when there is evidence that the juvenile is in the United States illegally.

    (1979, c. 94; 1981, c. 307; 1986, c. 506; 1988, c. 749; 1993, c. 297; 1994, cc. 499, 542; 1995, cc. 558, 687, 804; 1997, cc. 434, 452; 1999, c. 710; 2000, cc. 563, 603; 2005, c. 364; 2006, cc. 259, 309, 682; 2008, c. 798; 2010, cc. 367, 472, 526; 2014, c. 230; 2020, cc. 995, 996.)

Cross references. - As to punishment for Class 1, 2 and 3 felonies, see § 18.2-10 .

The 1999 amendment, in subsection C, inserted "a criminal violation of Article 2 ( § 18.2-38 et seq.) of Chapter 4 of Title 18.2, a felony involving a weapon, a felony violation of Article 1 ( § 18.2-247 et seq.) of Chapter 7 of Title 18.2, or," and substituted "judge" for "court."

The 2000 amendments. - The 2000 amendments by cc. 563 and 603 are virtually identical, and added subsection F and made minor stylistic changes in subdivisions B 1 and B 2.

The 2005 amendments. - The 2005 amendment by c. 364, in subdivision B 1, inserted "or held in custody by a law-enforcement officer or in a secure facility" in the first sentence and added the last sentence; and made a minor stylistic change in subsection C.

The 2006 amendments. - The 2006 amendments by cc. 259 and 309 are identical, and added subsection G.

The 2006 amendment by c. 682 added subsection H.

The 2008 amendments. - The 2008 amendment by c. 798 substituted "Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security" for "United States Immigration and Customs Enforcement Agency" in subsection H.

The 2010 amendments. - The 2010 amendments by cc. 367 and 472 are identical, and rewrote subsection G, which formerly read: "Notwithstanding any other provision of law, where consideration of public safety requires, the Department or locally operated court service unit may release any information relating to gang involvement or the gang-related activity of others, obtained from an investigation or supervision of a juvenile identified as affiliated with a criminal street gang, as defined in § 18.2-46.1 . Such information may be released to any State Police, local police department or sheriff's office, that is a part of or administered by the Commonwealth or any political subdivision thereof, and that is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth. The exchange of information shall be for the purpose of an investigation into criminal street gang activity."

The 2010 amendment by c. 526 in subsection B, inserted the a. designation and added subdivision B 1 b.; in subdivision B 1 a., twice substituted "constitute a felony" for "be forcible rape, robbery, burglary or a related offense as set out in Article 2 ( § 18.2-289 et seq.) of Chapter 5 of Title 18.2 or a Class 1, 2, or 3 felony"; and inserted "with notice to the juvenile's attorney of record" in the last sentence; in subdivision B 2, deleted "which would be forcible rape, robbery, burglary or a related offense as set out in Article 2 ( § 18.2-89 et seq.) of Chapter 5 of Title 18.2, or a Class 1, 2, or 3 felony if committed by an adult" following "a delinquent act" in the first sentence.

The 2014 amendments. - The 2014 amendment by c. 230 in subsection D substituted "act that" for "act which" and inserted "or that would be a misdemeanor violation of § 16.1-253.2, 18.2-57 , 18.2-57.2 , 18.2-60.3 , 18.2-60.4 , 18.2-67.4 , or 18.2-67.5 ."

The 2020 amendments. - The 2020 amendments by cc. 995 and 996 are identical, and in subsection H, substituted "a clerk of the court" for "an intake officer," "U.S." for "United States" and "but only upon an adjudication of delinquency or finding of guilt for a violent juvenile felony and when there is evidence that the juvenile" for "based on an allegation that the juvenile committed a violent juvenile felony and who the intake officer has probable cause to believe."

Law review. - For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Computerized system to notify crime victims could not be used for inmates who were juveniles when crimes were committed. - Because the statutes relating to rights of victims involved in juvenile matters contained in Chapter 11 of Title 16.1 control over the general statutes relating to rights of victims as set forth in the Crime Victim and Witness Rights Act, a computerized system by which registered crime victims would be updated with information regarding future court dates, transfers, and releases of active inmates incarcerated in the city jail could not be used to provide information to victims in cases where the inmate was a juvenile when the crime was committed. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff for the City of Norfolk, 01-058, 2001 Va. AG LEXIS 69 (12/17/01).

Article 12.1. Virginia Juvenile Community Crime Control Act.

§ 16.1-309.2. Purpose and intent.

The General Assembly, to ensure the prevention of juvenile crime and the imposition of appropriate and just sanctions and to make the most efficient use of community diversion and community-based and correctional resources for those juveniles who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or are before intake on complaints or the court on petitions alleging that the juvenile is a child in need of services, child in need of supervision, or delinquent, has determined that it is in the best interest of the Commonwealth to establish a community-based system of progressive intensive sanctions and services that correspond to the severity of offense and treatment needs. The purpose of this system shall be to deter crime by providing community diversion or community-based services to juveniles who are in need of such services and by providing an immediate, effective punishment that emphasizes accountability of the juvenile offender for his actions as well as reduces the pattern of repeat offending. In furtherance of this purpose, counties, cities or combinations thereof are encouraged to develop, implement, operate, and evaluate programs and services responsive to their specific juvenile offender needs and juvenile crime trends.

This article shall be interpreted and construed to accomplish the following purposes:

  1. Promote an adequate level of services to be available to every juvenile and domestic relations district court.
  2. Ensure local autonomy and flexibility in addressing juvenile crime.
  3. Encourage a public and private partnership in the design and delivery of services for juveniles who come before intake on a complaint or the court on a petition alleging a child is in need of services, in need of supervision, or delinquent or have been screened for needing community diversion or community-based services using an evidence-based assessment protocol.
  4. Emphasize parental responsibility and provide community-based services for juveniles and their families which hold them accountable for their behavior.
  5. Establish a locally driven statewide planning process for the allocation of state resources.
  6. Promote the development of an adequate service capacity for juveniles before intake on a complaint or the court on petitions alleging status or delinquent offenses.

    (1995, cc. 698, 840; 1996, cc. 671, 682; 2019, c. 105.)

Cross references. - As to the availability of confidential medical and mental health records of children maintained by the Department of Juvenile Justice, see § 16.1-300. As to purchases made for the administration of programs under this act being exempt from the Virginia Public Procurement Act, see § 2.2-4345 .

Editor's note. - Acts 1995, cc. 698 and 840, cl. 3 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of this act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 422 E 2, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of §§ 16.1-309.2 through 16.1-309.10, Code of Virginia, the Board of Juvenile Justice shall establish guidelines for use in determining the types of programs for which VJCCCA funding may be expended. The department shall establish a format to receive biennial or annual requests for funding from localities, based on these guidelines. For each program requested, the plan shall document the need for the program, goals, and measurable objectives, and a budget for the proposed expenditure of these funds and any other resources to be committed by localities."

The 2019 amendments. - The 2019 amendment by c. 105, in the first paragraph, inserted "the prevention of juvenile crime and," "community diversion and community-based and" and "who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or are" in the first sentence and inserted "community diversion or community-based services to juveniles who are in need of such services and by providing an" in the second sentence; in subdivision 3, added "or have been screened for needing community diversion or community-based services using an evidence-based assessment protocol" at the end.

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

For a book review, "Random Violence and the Transformation of the Juvenile Justice Debate," see 86 Va. L. Rev. 1095 (2000).

§ 16.1-309.3. Establishment of a community-based system of services; biennial local plan; quarterly report.

  1. Any county, city, or combination thereof may establish a community-based system pursuant to this article, which shall provide, or arrange to have accessible, a variety of predispositional and postdispositional services. These services may include, but are not limited to, diversion, community service, restitution, house arrest, intensive juvenile supervision, substance abuse assessment and testing, first-time offender programs, intensive individual and family treatment, structured day treatment and structured residential programs, aftercare/parole community supervision, and residential and nonresidential services for juveniles who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or juvenile offenders who are before intake on complaints or the court on petitions alleging that the juvenile is delinquent, in need of services, or in need of supervision but shall not include secure detention for the purposes of this article. Such community-based systems shall be based on an annual review of court-related data and an objective assessment of the need for services and programs for juveniles who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or juvenile offenders who are before intake on complaints or the court on petitions alleging that the juvenile is a child in need of services, in need of supervision, or delinquent. The community-based system shall be developed after consultation with the judge or judges of the juvenile and domestic relations district court, the director of the court services unit, the community policy and management team established under § 2.2-5205 , and, if applicable, the director of any program established pursuant to § 66-26 .
  2. Community-based services instituted pursuant to this article shall be administered by a county, city, or combination thereof and may be administered through a community policy and management team established under § 2.2-5204 or a commission established under § 16.1-315. Such programs and services may be provided by qualified public or private agencies, pursuant to appropriate contracts. Any commission established under § 16.1-315 providing predispositional and postdispositional services prior to the enactment of this article which serves the City of Chesapeake or the City of Hampton shall directly receive the proportion of funds calculated under § 16.1-309.7 on behalf of the owner localities. The funds received shall be allocated directly to the member localities. Any member locality which elects to withdraw from the commission shall be entitled to its full allocation as provided in §§ 16.1-309.6 and 16.1-309.7. The Department of Juvenile Justice shall provide technical assistance to localities, upon request, for establishing or expanding programs or services pursuant to this article.
  3. Funds provided to implement the provisions of this article shall not be used to supplant funds established as the state pool of funds under § 2.2-5211 .
  4. Any county, city, or combination thereof which establishes a community-based system pursuant to this article shall biennially submit to the State Board for approval a local plan for the development, implementation, and operation of such services, programs, and facilities pursuant to this article. The plan shall provide (i) the projected number of juveniles served by alternatives to secure detention and (ii) any reduction in secure detention rates and commitments to state care as a result of programs funded pursuant to this article. The State Board shall solicit written comments on the plan from the judge or judges of the juvenile and domestic relations court, the director of the court services unit, and, if applicable, the director of programs established pursuant to § 66-26 . Prior to the initiation of any new services, the plan shall also include a cost comparison for the private operation of such services.
  5. Each locality shall report quarterly to the Director the data required by the Department to measure progress on stated objectives and to evaluate programs and services within such locality's plan.

    (1995, cc. 698, 840; 1996, cc. 671, 682; 1997, c. 347; 2000, cc. 195, 806; 2007, c. 813; 2019, c. 105.)

Cross references. - As to the powers and duties of the community policy and management team under the Children's Services Act, see § 2.2-5206 .

As to programs developed under the Delinquency Prevention and Youth Development Act pursuant to this article, see § 66-35 .

Editor's note. - Acts 2007, c. 813, cl. 2 provides: "That the provisions of this act shall not affect the powers of any locality with respect to any ordinance, resolution or bylaw validly adopted and not repealed or rescinded prior to July 1, 2007."

The 2000 amendments. - The 2000 amendment by c. 195 deleted "during the period fiscal year 1995 through fiscal year 2000" preceding "the proportion of funds" in the third sentence of subsection B, and at the beginning of the fourth sentence of subsection B.

The 2000 amendment by c. 806 inserted the language beginning "based on an annual" through the end of the present third sentence in subsection A; in the present fourth sentence of subsection A, inserted "The community-based system shall be" at the beginning of the sentence, deleted "and" following "unit," and added the language following " § 2.1-751" through the end of the sentence; in subsection B, deleted "during the period fiscal year 1995 through fiscal year 2000" preceding "the proportion" in the third sentence, and deleted "During the period fiscal year 1995 through fiscal year 2000," at the beginning of the fourth sentence; in subsection D added the second sentence, and in the third sentence, deleted "and" preceding "the director," and added "and if applicable, the director of programs established pursuant to § 66-26 ; and in subsection E substituted "data required by the Department to measure progress on stated objectives and to evaluate programs and services" for "number of child-care days registered during the preceding quarter by each juvenile correctional program or facility operated."

The 2007 amendments. - The 2007 amendment by c. 813 substituted "the City of Chesapeake or the City of Hampton" for "a member jurisdiction that is a city having a population between 135,000 and 165,000" in subsection B.

The 2019 amendments. - The 2019 amendment by c. 105, in subsection A, inserted "juveniles who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or" in the second sentence and inserted "who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol or juvenile offenders who are" in the third sentence.

Law review. - For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Referring juvenile for services. - A family assessment and planning team may not refer a juvenile for services funded under the Juvenile Community Crime Control Act (JCA), which is a voluntary program, when funding under the Comprehensive Services Act for At-Risk Youth and Families (CSA), which is a mandatory program, is available for such purposes and, when a juvenile is eligible under both JCA and CSA for services that have not yet been funded by either act, the local family assessment and planning team may not refer the juvenile for services funded under JCA rather than CSA. See opinion of Attorney General to Mr. Robert W. Bendall, City Attorney for the City of Manassas, 00-034, 2000 Va. AG LEXIS 41 (7/28/00).

§ 16.1-309.4. Statewide plan for juvenile services.

It shall be the duty of the Department of Juvenile Justice to devise, develop and promulgate a statewide plan for the establishment and maintenance of a range of institutional and community-based, diversion, predispositional and postdispositional services to be reasonably accessible to each court. The Department shall be responsible for the collection and dissemination of the required court data necessary for the development of the plan. The plan shall utilize the information provided by local plans submitted under § 16.1-309.3. The plan shall be submitted to the Board on or before July 1 in odd-numbered years. The plan shall include a biennial forecast with appropriate annual updates as may be required of future juvenile correctional center and detention home needs.

(1995, cc. 698, 840; 1996, cc. 671, 682, 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile correctional center" for "learning center" near the middle of the last sentence.

§ 16.1-309.5. Construction, etc., of detention homes and other facilities; reimbursement in part by Commonwealth.

  1. The Commonwealth shall reimburse any county, city or any combination thereof for one-half the cost of construction, enlargement, renovation, purchase or rental of a detention home or other facilities the plans and specifications of which were approved by the Board and the Governor in accordance with the provisions of subsection C of this section.
  2. The construction, renovation, purchase, rental, maintenance and operation of a detention home or other facilities established by a county, city or any combination thereof and the necessary expenses incurred in operating such facilities shall be the responsibility of the county, city or any combination thereof.
  3. The Board shall promulgate regulations to include criteria to serve as guidelines in evaluating requests for such reimbursements and to ensure the geographically equitable distribution of state funds provided for such purpose. Priority funding shall be given to multijurisdictional initiatives. No such reimbursement for costs of construction shall be made, however, unless the plans and specifications, including the need for additional personnel therefor, have been submitted to the Governor and the construction has been approved by him. Such reimbursement shall be paid by the State Treasurer out of funds appropriated to the Department. In the event that a county or city requests and receives financial assistance from other public fund sources outside the provisions of this law, the total financial assistance and reimbursement shall not exceed the total construction cost of the project exclusive of land and site improvement costs, and such funds shall not be considered state funds.

    (1995, cc. 698, 840; 2000, cc. 562, 601.)

Editor's note. - Acts 2000, cc. 562 and 601, cl. 2 provides: "That the provisions of this act shall apply to projects completed on and after July 1, 2001."

The 2000 amendments. - The 2000 amendments by cc. 562 and 601, effective July 1, 2000, and applicable to projects completed on and after July 1, 2001, are identical, and in subsection A, substituted "one-half" for "up to one-half"; substituted "the plans and specifications of which were" for "upon a basis"; substituted "the Board and the Governor" for "the Board"; and substituted "of subsection C of this section" for "of this section."

§ 16.1-309.6. How state appropriations for operating costs of Juvenile Community Crime Control Act programs determined; notice of financial aid.

The Governor's proposed biennial budget shall include, for each fiscal year, an appropriation for operating costs for Juvenile Community Crime Control Act programs. The proposed appropriation shall include amounts for compensating counties, cities and combinations thereof which elect to establish a system of community-based services pursuant to this article. Upon approval pursuant to the provisions of this article, any county, city or combination thereof which utilized predispositional or postdispositional block grant services or programs in fiscal year 1995 shall contribute an amount not less than the sum of its fiscal year 1995 expenditures for child care day placements in predispositional and postdispositional block grant alternatives to secure detention for implementation of its local plan. Such amount shall not include any expenditures in fiscal year 1995 for secure detention and placements made pursuant to § 2.2-5211 .

The Department shall review annually the costs of operating services, programs and facilities pursuant to this article and recommend adjustments to maintain the Commonwealth's proportionate share. The Department shall no later than the fifteenth day following adjournment sine die of the General Assembly provide each county and city an estimate of funds appropriated pursuant to this article.

(1995, cc. 698, 840; 1996, cc. 671, 682; 1998, c. 54.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 422 E 1, effective for the biennium ending June 30, 2022, provides: "The appropriation for Financial Assistance for Community Based Alternative Treatment Services includes $10,379,926 the first year and $10,379,926 the second year from the general fund for the implementation of the financial assistance provisions of the Juvenile Community Crime Control Act (VJCCCA), §§ 16.1-309.2 through 16.1-309.10, Code of Virginia. Notwithstanding § 16.1-309.6, Code of Virginia, localities participating in this program and contributing through their local match an amount of local funds which is greater than they receive from the Commonwealth under this program are authorized, but not required, to provide a contribution greater than the state general fund contribution. In no case shall their local match be less than their state share."

The 1998 amendment, in the first paragraph, in the third sentence deleted "beginning in fiscal year 1996" following "shall contribute," substituted "not less than" for "equal to," and inserted "child care day placements in," and added "and placements made pursuant to § 2.1-757" in the last sentence.

§ 16.1-309.7. Determination of payment.

  1. The Commonwealth shall provide financial assistance to localities whose plans have been approved pursuant to subsection D of § 16.1-309.3 in quarterly payments based on the annual calculated costs which shall be determined as follows:
    1. For community diversion services, one-half of the calculated costs as determined by the following factors: (i) the statewide daily average costs for predispositional nonresidential services and (ii) the total number of children in need of services and children in need of supervision complaints diverted at intake by the locality in the previous year and the total number of children who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol.
    2. For predispositional community-based services, three-quarters of the calculated costs as determined by the following factors: (i) the statewide daily average cost evenly divided for predispositional community-based residential and nonresidential services and (ii) the number of arrests of juveniles based on the locality's most recent year available Uniform Crime Reports for (a) one-third of all Part 1 crimes against property, (b) one-third of all drug offenses and (c) all remaining Part 2 arrests.
    3. For postdispositional community-based services for adjudicated juveniles, one-half of the calculated costs as determined by the following factors: (i) the statewide average daily costs for postdispositional community-based nonresidential services and (ii) the locality's total number of juveniles, who, in the previous year, were adjudicated delinquent for the first time.
    4. For postdispositional community-based services for juveniles adjudicated delinquent for a second or subsequent offense, one-half of the calculated costs as determined by the following factors: (i) the statewide average daily costs evenly divided for postdispositional community-based residential and nonresidential services and (ii) the locality's total number of court dispositions which, in the previous year, adjudicated juveniles as (a) delinquent for a second or subsequent offense, (b) children in need of services, or (c) children in need of supervision, less those juveniles receiving services under the provisions of §§ 16.1-285.1 and 16.1-286.
  2. Any moneys distributed by the Commonwealth under this article which are unexpended at the end of each fiscal year within a biennium shall be retained by the county, city or combination thereof and subsequently expended for operating expenses of Juvenile Community Crime Control Act programs. Any surplus funds remaining at the end of a biennium shall be returned to the state treasury.

    (1995, cc. 698, 840; 1996, cc. 820, 970; 2019, c. 105.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 422 E 3, effective for the biennium ending June 30, 2022, provides:

"a. Notwithstanding the provisions of § 16.1-309.7 B, Code of Virginia, unobligated VJCCCA funds must be returned to the department by each grantee locality no later than October 1 of the fiscal year following the fiscal year in which they were received, or a similar amount may be withheld from the current fiscal year's periodic payments designated by the department for that locality. The Director, Department of Planning and Budget, may increase the general fund appropriation for this Item up to the amount of unobligated VJCCCA funds returned to the Department of Juvenile Justice.

"b. All such unobligated and reappropriated balances shall be used by the department for the purpose of awarding short-term supplementary grants to localities, for programs and services which have been demonstrated to improve outcomes, including reduced recidivism, of juvenile offenders. Such programs and services must augment and support current VJCCCA-funded programs within each affected locality. The grantee locality shall submit an outcomes report to the department, in accord with a written memorandum of agreement which shall accompany the supplementary grant award. This provision shall apply to funds obligated to and in the possession of the department and its grant recipients. The entity which returns unobligated funds under this provision shall not have a presumptive entitlement to a supplementary grant.

"c. The Department of Juvenile Justice, with the assistance of the Department of Corrections, the Virginia Council on Juvenile Detention, juvenile court service unit directors, juvenile and domestic relations district court judges, and juvenile justice advocacy groups, shall provide a report on the types of programs supported by the Juvenile Community Crime Control Act and whether the youth participating in such programs are statistically less likely to be arrested, adjudicated or convicted, or incarcerated for either misdemeanors or crimes that would otherwise be considered felonies if committed by an adult."

The 2019 amendments. - The 2019 amendment by c. 105 added "and the total number of children who have been screened for needing community diversion or community-based services using an evidence-based assessment protocol" at the end of subdivision A 1.

§ 16.1-309.8. Costs of maintenance of juveniles in Community Crime Control Act programs.

Any county, city or combination thereof operating a Juvenile Community Crime Control Act program may collect from any locality of this Commonwealth from which a juvenile is placed in its program a daily rate calculated to allow the operating locality or localities to meet but not exceed the costs of providing services. Additionally, this rate may not be higher than the rate charged other counties, cities or combinations thereof using the same program.

(1995, cc. 698, 840; 1996, cc. 671, 682; 1998, c. 538.)

The 1998 amendment, in the first sentence, deleted the language following "daily rate" which formerly read: "which does not exceed the sum of the total daily operating costs less any state aid provided to the county, city, or combination thereof operating such program pursuant to the provisions of this article" and added the language beginning "calculated to allow," and added the last sentence.

§ 16.1-309.9. Establishment of standards; determination of compliance.

  1. The State Board of Juvenile Justice shall develop, promulgate and approve standards for the development, implementation, operation and evaluation of the range of community-based programs, services and facilities authorized by this article. The State Board shall also approve minimum standards for the construction and equipment of detention homes or other facilities and for food, clothing, medical attention, and supervision of juveniles to be housed in these facilities and programs.
  2. The State Board may prohibit, by its order, the placement of juveniles in any place of residence which does not comply with the minimum standards. It may limit the number of juveniles to be detained or housed in a detention home or other facility and may designate some other place of detention or housing for juveniles who would otherwise be held therein.
  3. The Department shall periodically review all services established and annually review expenditures made under this article to determine compliance with the approved local plans and operating standards. If the Department determines that a program is not in substantial compliance with the approved plan or standards, the Department may suspend all or any portion of financial aid made available to the locality until there is compliance.
  4. Orders of the State Board of Juvenile Justice shall be enforced by circuit courts as is provided for the enforcement of orders of the State Board of Local and Regional Jails under § 53.1-70 . (1995, cc. 698, 840; 2020, c. 759.)

The 2020 amendments. - The 2020 amendments by c. 759 substituted "Local and Regional Jails" for "Corrections" in subsection D.

§ 16.1-309.10. Visitation and management of detention homes; other facilities; reports of superintendent.

In the event that a detention home, group home or other residential care facility for children in need of services or delinquent or alleged delinquent youth is established by a county, city, or any combination thereof, it shall be subject to visitation, inspection and regulation by the State Board or its agents, and shall be furnished and operated so far as possible as a family home under the management of a superintendent. It shall be the duty of the superintendent to furnish the Department such reports and other statistical data relating to the operation of such detention homes, group homes or other residential care facilities for children in need of services or delinquent or alleged delinquent youth as may be required by the Director.

(1995, cc. 698, 840.)

§ 16.1-309.11. Youth justice diversion program.

  1. For the purposes of this section, "youth justice diversion program" means a diversionary program that (i) is monitored by a local youth justice diversion program advisory committee; (ii) uses juvenile volunteers as lawyers, jurors, and other court personnel; (iii) uses volunteer attorneys as judges; (iv) conducts peer trials of juveniles who are referred to the program by the intake officer; and (v) imposes various sentences emphasizing restitution, rehabilitation, accountability, competency building, and education, but not incarceration.
  2. Any jurisdiction may establish a youth justice diversion program upon establishment of a local youth justice diversion program advisory committee and approval of the youth justice diversion program by the chief judge of the juvenile and domestic relations district court that serves such jurisdiction. Each local youth justice diversion program advisory committee shall ensure quality, efficiency, and fairness in the planning, implementation, and operation of the youth justice diversion program that serves the jurisdiction. Advisory committee membership may include, but shall not be limited to, the following persons or their designees: (i) a judge from the juvenile and domestic relations district court that serves such jurisdiction; (ii) the attorney for the Commonwealth; (iii) the public defender or a member of the local criminal defense bar in jurisdictions in which there is no public defender; (iv) the clerk of the court in which the youth justice diversion program is located; (v) a representative of the Department of Juvenile Justice from the local office that serves the jurisdiction; (vi) a local law-enforcement officer; (vii) a representative of a local school in such jurisdiction; (viii) a representative of juvenile court services; (ix) a representative of a juvenile detention center or group home; (x) a representative of a local children and family services agency; and (xi) any other persons selected by the local youth justice diversion program advisory committee.
  3. Each local youth justice diversion program advisory committee shall establish criteria for the eligibility and participation of juveniles alleged to have committed a delinquent act other than an act that would be a felony or a Class 1 misdemeanor if committed by an adult in the youth justice diversion program, with the consent of the juvenile's parent or legal guardian.
  4. Each local youth justice diversion program advisory committee shall establish policies and procedures for the operation of the youth justice diversion program to attain the following goals: (i) early intervention in and prevention of delinquent behavior; (ii) providing positive alternative sanctions for offenders by providing a peer-driven sentencing mechanism that allows young people to take responsibility, to be held accountable, and to make restitution; (iii) advocating for fair, constructive, and restorative sentences predicated on sensitivity to the unique needs and the diversity of the participating juveniles; and (iv) developing positive citizenship attitudes, encouraging civic engagement, and promoting educational success through a diversity of service learning opportunities, strategies, and activities.
  5. All records and reports concerning juvenile participants in a local youth justice diversion program made available to members of a local youth justice diversion program advisory committee and volunteers of a local youth justice diversion program and all records and reports identifying a juvenile participant that are generated by the committee or program from such reports shall be confidential and shall not be disclosed, except as authorized by other applicable law.
  6. A juvenile referred to a youth justice diversion program may be required to contribute to the cost of the program pursuant to guidelines developed by the local youth justice diversion program advisory committee.

    (2021, Sp. Sess. I, c. 457.)

Effective date. - This section is effective July 1, 2021.

Article 13. Facilities for Detention and Other Residential Care.

§§ 16.1-310 through 16.1-314.

Repealed by Acts 1995, cc. 698 and 840.

Editor's note. - Acts 1995, cc. 698 and 840, cl. 3 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of this act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

§ 16.1-315. Joint or regional citizen detention commissions authorized.

The governing bodies of three or more counties, cities or towns (hereinafter referred to as "political subdivisions") may, by concurrent ordinances or resolutions, provide for the establishment of a joint or regional citizen juvenile detention home, group home or other residential care facility commission. Such commission shall be a public body corporate, with such powers as are set forth in this article.

(Code 1950, § 16.1-202.2; 1974, c. 645; 1977, c. 559.)

OPINIONS OF THE ATTORNEY GENERAL

Apportionment of costs of jointly elected sheriff for regional juvenile detention center. - A city must abide by charter provisions pertaining to the apportionment of costs and expenses of a sheriff elected jointly with a county with regard to the funding of a regional juvenile detention center that is part of sheriff's budget and may not authorize its share of the operational costs of the detention center to be determined separately from the county under a separate lease agreement. See opinion of Attorney General to The Honorable Malfourd W. Trumbo, Member, Senate of Virginia, 01-009, 2001 Va. AG LEXIS 10 (2/22/01).

§ 16.1-316. Number and terms of members; admission of additional local governing bodies.

A juvenile detention home, group home or other residential care facility commission shall consist of not less than three members and shall be comprised of at least one member from each participating political subdivision. In addition, the participating political subdivisions may provide for the appointment of an alternate for each principal member of such a commission. The alternate members may attend and participate in all meetings of the commission and may vote in the absence of their respective principals. Such members and alternates, if any, shall be appointed, after consultation with the chief judge of the juvenile and domestic relations district court, by the governing body. Neither the chief judge nor any judge of the juvenile and domestic relations district court from his district shall be a member of the commission.

The term of office of all members and alternates, if any, shall be for four years. When additional local governing bodies desire to join the commission, they may do so upon the recommendation of the commission and with the approval of the sponsoring local governing bodies. The number of members which the applicant local governments will be entitled to appoint to such commission and other conditions relating to the expansion of sponsoring membership shall be determined by the agreement entered into between or among the sponsoring local governments and such applicant local governments.

(Code 1950, § 16.1-202.3; 1966, c. 509; 1972, cc. 365, 430; 1974, c. 645; 1976, c. 448; 1977, c. 559; 1978, cc. 37, 717; 1984, c. 77; 1988, c. 885; 1992, c. 441; 1998, c. 488.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1998 amendment, in the first paragraph, added the second and third sentences, and inserted "and alternates, if any" in the fourth sentence, and inserted "and alternates, if any" in the first sentence of the second paragraph.

§ 16.1-317. Quorum; chairman; rules of procedure; compensation.

The appointive members of the commission shall constitute the commission, and the powers of the commission shall be vested in and exercised by the members in office from time to time. Neither the chief judge nor any judge of the juvenile and domestic relations district court shall be a member of the commission.

A majority of the members in office shall constitute a quorum. The commission shall elect a chairman, and shall adopt rules and regulations for its own procedure and government. The governing bodies of the participating political subdivisions may by ordinance or resolution provide for the payment of compensation to the members of the commission and for the reimbursement of their actual expenses incurred in the performance of their duties.

(Code 1950, § 16.1-202.4; 1966, c. 509; 1977, c. 559; 1978, cc. 37, 717; 1988, c. 885; 1992, c. 441.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

§ 16.1-318. Powers of commission generally; supervision by Director of Department of Juvenile Justice.

Each commission created hereunder shall have all powers necessary or convenient for carrying out the general purposes of this article, including the following powers in addition to others herein granted, and subject to such supervision by the Director of the Department of Juvenile Justice as is provided in §§ 16.1-309.4, 16.1-309.9, and 16.1-309.10 of this law:

  1. In general. - To adopt a seal and alter the same at pleasure; to have perpetual succession; and to make and execute contracts and other instruments necessary or convenient to the exercise of its powers.
  2. Officers, agents and employees. - To employ such technical experts, and such other officers, agents and employees as it may require, to fix their qualifications, duties and compensation and to remove such employees at pleasure.
  3. Acquisition of property. - To acquire within the territorial limits of the political subdivisions for which it is formed, by purchase, lease, gift, or exercise of the right of eminent domain, subject to conditions hereinafter set forth, whatever lands, buildings and structures may be reasonably necessary for the purpose of establishing, constructing, enlarging, maintaining and operating one or more juvenile detention homes or facilities for the reception of juveniles committed thereto under the provisions of this chapter; however, such lands, buildings and structures may be acquired by purchase, lease or gift, although not within the territorial limits, if the location thereof is feasible and practicable with relation to the several political subdivisions for which such commission is formed. Such location shall be approved by resolution of the governing bodies of the participating political subdivisions and of the governing body of the political subdivision in which such lands, buildings and structures are to be located, and the consent in writing of the Director of the Department is given thereto.
  4. Construction. - To acquire, establish, construct, enlarge, improve, maintain, equip and operate any juvenile detention home or facility.
  5. Rules and regulations for management. - To make and enforce rules and regulations for the management and conduct of its business and affairs and for the use, maintenance and operation of its facilities and properties.
  6. Acceptance of donations. - To accept gifts and grants from the Commonwealth or any political subdivision thereof, and from the United States and any of its agencies; and to accept donations of money, personal property or real estate, and take title thereto from any person, firm, corporation or association.
  7. Regulations as to juveniles under care. - To make regulations and policies governing the care, guidance and training of juveniles in such detention facilities.
  8. Borrowing. - To borrow money for any of its corporate purposes and to execute evidences of such indebtedness and to secure the same and to issue negotiable revenue bonds payable solely from funds pledged for that purpose and to provide for the payment of the same and for the rights of the holders thereof. Any city or county participating in the commission may lend, advance or give money or materials or property of any kind to the commission.
  9. Issuance of revenue bonds. - To issue revenue bonds in accordance with, and subject to the terms and conditions of § 53.1-95.10 , in the same manner in which jail authorities are authorized to issue such bonds. Bonds issued under the provisions of this section shall not be deemed to constitute a pledge of the faith and credit of the Commonwealth or of any political subdivision thereof. All such bonds shall contain a statement on their face substantially to the effect that neither the faith and credit of the Commonwealth nor the faith and credit of any county, city, town, or other subdivision of the Commonwealth is pledged to the payment of the principal of or the interest on such bonds. The issuance of bonds under the provisions of this section shall not directly, indirectly or contingently obligate the Commonwealth or any county, city, town, or other subdivision of the Commonwealth to levy any taxes whatever therefor or to make any appropriation for their payment except from the funds pledged under the provisions of this section. Any reimbursement payments made pursuant to § 16.1-309.5 for juvenile detention homes or facilities for which bonds are issued pursuant to this section shall not (i) exceed the maximum reimbursement limits established by the Board of Juvenile Justice or (ii) include any sums for the payment of interest costs incurred by the Commission in connection with the issuance of such bonds. (Code 1950, § 16.1-202.5; 1964, Ex. Sess., c. 21; 1974, cc. 44, 45; 1977, c. 559; 1989, c. 733; 1993, c. 833; 1995, cc. 696, 699; 1997, c. 752.)

Editor's note. - Acts 1993, c. 833, cl. 2, as amended by Acts 1997, c. 642, cl. 1, effective March 21, 1997, as amended by Acts 1998, c. 893, cl. 1, as amended by Acts 1999, cc. 43 and 50, cl. 1, effective March 5, 1999, provides:

"That the provisions of this act shall apply only to (i) the Middle Peninsula Juvenile Detention Commission which serves the Ninth and the Fifteenth Judicial Districts, (ii) the W. W. Moore, Jr., Regional Juvenile Detention Commission which serves portions of the Tenth, Twenty-first, and Twenty-second Judicial Districts, (iii) the Rappahannock Juvenile Detention Commission which serves portions of the Fifteenth and Sixteenth Judicial Districts, (iv) the James River Juvenile Detention Commission which serves parts of the Eleventh, Fourteenth, and Sixteenth Judicial Districts, (v) the Blue Ridge Juvenile Detention Commission which serves parts of the Sixteenth Judicial District, (vi) the Highlands Juvenile Detention Commission which serves the Twenty-eighth Judicial District, (vii) the Roanoke Valley Detention Commission which serves parts of the Twenty-second, Twenty-third, and Twenty-fifth Judicial Districts, and (viii) the Crater Youth Care Commission which serves the Sixth and Eleventh Judicial Districts."

Acts 1993, c. 833, cl. 2, as amended by Acts 1997, c. 752, cl. 2, and Acts 1998, c. 893, cl. 2, and Acts 1999, cc. 43 and 50, cl. 2, effective March 5, 1999, provides:

"That the provisions of this act shall apply only to (i) the Middle Peninsula Juvenile Detention Commission which serves the Ninth and the Fifteenth Judicial Districts, (ii) the W. W. Moore, Jr., Regional Juvenile Detention Commission which serves portions of the Tenth, Twenty-first, and Twenty-second Judicial Districts, (iii) the James River Juvenile Detention Commission which serves parts of the Eleventh, Fourteenth, and Sixteenth Judicial Districts, (iv) the Blue Ridge Juvenile Detention Commission which serves parts of the Sixteenth Judicial District, (v) the Highlands Juvenile Detention Commission which serves the Twenty-eighth Judicial District, (vi) the Roanoke Valley Detention Commission which serves parts of the Twenty-second, Twenty-third, and Twenty-fifth Judicial Districts and (vii) the Crater Youth Care Commission which serves the Sixth and Eleventh Judicial Districts."

Acts 1995, c. 696, cl. 2 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of the Virginia Juvenile Community Crime Control Act during the 1995 Session of the General Assembly." These funds were provided by Acts 1995, c. 853, item 578.

The 1995 amendments. - The 1995 amendments by cc. 696 and 699 are identical, and substituted " §§ 16.1-309.4, 16.1-309.9, and 16.1-309.10" for " §§ 16.1-310 through 16.1-312" near the end of the introductory paragraph. For effective date, see the Editor's note.

§ 16.1-319. Acquisition of property by commission.

The commission shall have the right to acquire by eminent domain any real property, including fixtures and improvements, which it may deem necessary to carry out the purposes of this article, after the adoption by it of a resolution declaring that the acquisition of the property described therein is in the public interest and necessary for public use; provided, however, that no such real property shall be so acquired or such facility established within the territorial limits of such political subdivision without the approval, after public hearing, of the governing body of such political subdivision.

Subject to the provisions of § 25.1-102 , property already devoted to a public use may be acquired, provided, that no property belonging to any county or city, religious corporation, unincorporated church or charitable corporation may be acquired without its consent.

(Code 1950, § 16.1-202.6; 1977, c. 559; 2003, c. 940; 2006, c. 673.)

The 2003 amendments. - The 2003 amendment by c. 940 substituted " § 25.1-102 " for " § 25-233" in the last paragraph.

The 2005 amendments. - The 2005 amendment by c. 928 reenacted this section without change.

The 2006 amendments. - The 2006 amendment by c. 673 substituted "religious corporation, unincorporated church or" for "or to any religious or" in the second paragraph.

§ 16.1-320. Property of commission exempt from execution and judgment liens.

All property of the commission shall be exempt from levy and sale by virtue of an execution. No judgment against the commission shall be a charge or lien upon its property, real or personal.

(Code 1950, § 16.1-202.7; 1977, c. 559.)

§ 16.1-321. Appropriations by political subdivisions; issuance of bonds.

The political subdivisions for which the commission is created are authorized to make appropriations to the commission from available funds for the construction, improvement, maintenance and operation of any juvenile detention facility operated or proposed to be operated by the commission; and subject to other applicable provisions of law may issue general obligation bonds and appropriate the proceeds thereof for capital costs of such facility.

(Code 1950, § 16.1-202.8; 1977, c. 559.)

§ 16.1-322. Record of commission; reports.

The commission shall keep and preserve complete records of its administrative operations and transactions, which records shall be open to inspection by the participating political subdivisions at all times. It shall make reports to such subdivisions annually, and at such other times as they may require.

(Code 1950, § 16.1-202.9; 1977, c. 559.)

Article 13.1. Funding of Local Juvenile Facilities, Programs and Certain Court Service Units.

§ 16.1-322.1. Apportionment of funds to localities or commissions operating juvenile secure detention facilities or programs; standards for apportionment.

The Department shall apportion among the localities or commissions operating a juvenile secure detention facility the moneys appropriated to the Department in the general appropriation act for the support of such facilities, excluding amounts approved for the state share of construction and rental of facilities, state ward per diem allowances, and payments for the United States Department of Agriculture lunch program. Such apportionment shall be made as follows:

The allocation shall be apportioned to provide each locality or commission operating a juvenile secure detention facility an allowance for salaries and expenses. Such allowance shall be at least equal to the amount of the allowance provided to each locality or commission for such salaries and expenses in the immediately preceding fiscal year for similar services. The Department may adjust such allowance, where applicable, for new programs and facilities or for discontinued programs and services.

The Department may reduce the apportionments made in accordance with this section from time to time if any facility fails to comply with Department policy or standards approved by the Board. In effecting such a reduction of funds, the Department shall not be required to comply with the provisions of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2. Each locality or commission eligible to receive state funds apportioned under this section shall maintain operational and financial records which shall be open for evaluation by the Department and audit by the Auditor of Public Accounts.

The Governor may withhold approval for state expenditures, by reimbursement or otherwise, for the purposes set out in this section as provided in the current general appropriations act.

(1982, c. 636; 1983, c. 358; 1986, c. 394; 1995, cc. 698, 840.)

Editor's note. - Acts 1995, cc. 698 and 840, cl. 3 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of this act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

Acts 2020, c. 1289, Item 422 D, as amended by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 16.1-322.1 of the Code of Virginia, the department shall apportion to localities the amounts appropriated in this Item."

The 1995 amendments. - The 1995 amendments by cc. 698 and 840 are identical, and in the introductory paragraph, substituted "secure detention" for "correctional", deleted "or program" following "facility", and deleted "programs and services" following "facilities"; in the second paragraph, deleted the former first sentence which read: "Three percent of the state funds available for apportionment under the provisions of this section shall be held in reserve to be distributed in the manner specified by § 16.1-322.2"; in the present first sentence, substituted "allocation" for "balance", substituted "secure detention" for "correctional", and deleted "or program" following "facility"; deleted the former third and fourth paragraphs which pertained to the fixed amount of quarterly payments and the apportionment of remaining state funds; and deleted "or program" following "facility" in the present third paragraph. For effective date, see the Editor's note.

§ 16.1-322.2. Payment of funds quarterly; distribution and reallocation of reserve.

State moneys appropriated to the Department for the support of local juvenile secure detention facilities and apportioned in accordance with § 16.1-322.1 shall be paid to localities or commissions quarterly. If a local juvenile secure detention facility fails to comply with Department policy or standards adopted by the State Board, the next quarterly payment may be reduced and the difference paid into the general fund of the state treasury. In effecting such a reduction of funds, the Department shall not be required to comply with the provisions of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2.

Any moneys distributed by the Commonwealth under this section which are unexpended at the end of each fiscal year within a biennium shall be retained by the locality or commission and subsequently expended for operating expenses of juvenile secure detention facilities. Any surplus funds remaining at the end of the biennium shall be returned to the state treasury.

The Governor may withhold approval for state expenditures, by reimbursement or otherwise, for the purpose set out in this section as provided in the current general appropriations act.

(1982, c. 636; 1983, c. 358; 1986, c. 394; 1995, cc. 698, 840.)

Editor's note. - Acts 1995, cc. 698 and 840, cl. 3 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of this act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

The 1995 amendments. - The 1995 amendments by cc. 698 and 840 are identical, and substituted "secure detention facilities" for "correctional facilities" in three places; deleted "or programs" following "facilities" in two places; deleted the former second paragraph which pertained to the three percent of the apportionment held in reserve; in the present second paragraph, inserted "within a biennium" following "fiscal year" in the first sentence and added the second sentence. For effective date, see the Editor's note.

§ 16.1-322.3. Localities and commissions to make monthly reports to Director; penalty for willfully falsifying information; procedure when locality or commission fails to make report.

Each locality or commission eligible to receive state funds in accordance with the terms of this article shall report each month to the Director on blank forms furnished by the Department the number of child care days registered during the preceding month by each juvenile correctional program or facility operated by such locality or commission. Such report shall be signed by both the chief administrative officer of the facility or program and fiscal officer of the locality or commission who shall certify the accuracy of the report. Either signer found guilty of willfully falsifying the information contained in such report shall be guilty of a Class 1 misdemeanor.

If any locality or commission fails to send such report within five days after the date when the report should be forwarded, the Director shall notify the chief administrative officer of such locality or commission of such failure. If the locality or commission fails to make the report within ten days from the date of such notice, then the Director shall cause the report to be prepared from the books of the locality or commission and shall certify the cost thereof to the Comptroller. The Comptroller shall issue his warrant on the Treasurer for that amount, deducting the same from any that may be due the locality or commission pursuant to § 16.1-322.2 by the Commonwealth.

(1983, c. 358.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 16.1-322.4. Payments for children from other counties or cities.

Any locality or commission operating a juvenile secure detention facility may collect from any locality of this Commonwealth from which a child is placed in its facility a daily rate which does not exceed the sum total of the daily operating costs less any state aid for the purposes of construction and operation of such program. Daily cost shall be based on the cost of capital construction debt service and the cost of feeding, clothing, caring for, and furnishing medicine and medical attention for such child as may be agreed upon by the governmental units involved.

(1983, c. 358; 1995, cc. 698, 840; 1998, c. 856.)

Editor's note. - Acts 1995, cc. 698 and 840, cl. 3 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of this act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

The 1995 amendments. - The 1995 amendments by cc. 698 and 840 are identical, and combined the former first and second sentences into the present first sentence; substituted "secure detention facility" for "correctional program or facility", deleted "program for" following "placed in its", substituted "a daily rate which does not exceed the sum total of the daily operating costs" for "the reasonable cost of maintaining such child in such program or facility. Reasonable"; in the present second sentence, inserted "Daily" preceding "cost", and deleted "or, in the absence of such agreement, the actual child care day cost, including depreciation, of operating the program or facility less state aid provided pursuant to § 16.1-322.2 or otherwise provided by the Department" following "by the governmental units involved." For effective date, see the Editor's note.

The 1998 amendment added "less any state aid for the purposes of construction and operation of such program" in the first sentence and inserted "capital construction debt service and the cost of" in the last sentence.

Article 13.2. Private Operation of Juvenile Detention Facilities.

§ 16.1-322.5. State Board may authorize private construction, operation, etc., of local or regional detention homes, etc.

  1. The State Board of Juvenile Justice may authorize a county or city or any combination of counties, cities, or towns established pursuant to § 16.1-315 to contract with a private entity for the financing, site selection, acquisition, construction, maintenance, leasing, management or operation of a local or regional detention home or other secure facility, or any combination of those services. Any project authorized pursuant to this article shall be consistent with the statewide plan developed pursuant to § 16.1-309.4.
  2. Any project the State Board authorizes pursuant to subsection A of this section shall be subject to the provisions of the Virginia Public Procurement Act (§ 2.2-4300 et seq.) and subject to the requirements and limitations set out below.
    1. Contracts entered into under the terms of this article shall be with an entity submitting an acceptable response pursuant to a request for proposals. An acceptable response shall be one which meets all the requirements in the request for proposals. However, no such contract may be entered into unless the private contractor demonstrates that it has:
      1. The qualifications, experience and management personnel necessary to carry out the terms of this contract;
      2. The financial resources to provide indemnification for liability arising from detention home or other secure facility management projects;
      3. Evidence of past performance of similar contracts; and
      4. The ability to comply with all applicable federal and state constitutional standards; federal, state, and local laws; court orders; and standards for a detention home or other secure facility.
    2. Contracts awarded under the provisions of this article, including contracts for the provision of juvenile correctional facilities or programs or for the lease or use of public lands or buildings for use in the operation of facilities, may be entered into for a period of up to thirty years, subject to the requirements for expenditure of funds by the local governing body or bodies.
    3. No contract for juvenile correctional facilities or programs shall be entered into unless the following requirements are met:
      1. The contractor provides audited financial statements for the previous five years or for each of the years the contractor has been in operation if fewer than five years, and provides other financial information as requested; and
      2. The contractor provides an adequate plan of indemnification, specifically including indemnity for civil rights claims. The indemnification plan shall be adequate to protect the county or city or combination of counties, cities, or towns established pursuant to § 16.1-315 and public officials from all claims and losses incurred as a result of the contract. Nothing herein is intended to deprive a contractor or the county or city or combination of counties, cities, or towns established pursuant to § 16.1-315 of the benefits of any law limiting exposure to liability or setting a limit on damages.
    4. No contract for correctional services shall be executed unless:
      1. The proposed contract has been reviewed and approved by the State Board;
      2. An appropriation for the services to be provided under the contract has been expressly approved as is otherwise provided by law;
      3. The juvenile correctional facilities or programs proposed by the contract are of at least the same quality as those routinely provided by a governmental agency to similarly situated children; and
      4. An evaluation of the proposed contract demonstrates a cost benefit to the county or city or combination of counties, cities, or towns established pursuant to § 16.1-315 when compared to alternative means of providing the services through governmental agencies. (1991, c. 258; 1992, c. 652; 1995, cc. 696, 699.)

Editor's note. - Acts 1995, c. 696, cl. 2 provides: "That this act shall become effective January 1, 1996, if state funds are provided to carry out the purposes of the Virginia Juvenile Community Crime Control Act during the 1995 Session of the General Assembly." These funds were provided pursuant to Acts 1995, c. 853, item 578.

The 1995 amendments. - The 1995 amendments by cc. 696 and 699 are identical, and substituted " § 16.1-309.4" for " § 16.1-310" at the end of subsection A. For effective date, see the Editor's note.

§ 16.1-322.6. Powers and duties not delegable to contractor.

No contract for juvenile correctional facilities or programs shall authorize, allow, or imply a delegation of authority or responsibility to a juvenile correctional facilities or programs contractor for any of the following:

  1. Developing and implementing procedures for calculating a detainee's release date;
  2. Classifying detainees or placing detainees in less restrictive custody or more restrictive custody;
  3. Transferring a detainee; however, the contractor may make written recommendations regarding the transfer of a detainee or detainees;
  4. Formulating rules of detainee behavior, violations of which may subject detainees to sanctions; however, the contractor may propose such rules for review and adoption, rejection, or modification as otherwise provided by law or regulation; and
  5. Disciplining detainees in any manner which requires a discretionary application of rules of detainee behavior or a discretionary imposition of a sanction for violations of such rules.

    (1991, c. 258; 1992, c. 652.)

§ 16.1-322.7. State Board to promulgate regulations.

The State Board shall make, adopt, and promulgate regulations governing the following aspects of private management and operation of local or regional detention homes or other secure facilities:

  1. The schedule for state reimbursement to the cities or counties or any combination thereof, as the case may be, for costs of construction;
  2. The manner of state payment to the localities for the care and custody costs at the facility of children for whom the Commonwealth is required to provide funds.  However, in no event shall the payment to the localities, when calculated on a per diem per child basis, exceed the total cost ordinarily paid by the Commonwealth to the locality for the care and custody expenses of such children, when calculated on a per diem per child basis;
  3. Minimum standards for the construction, equipment, administration, and operation of the facilities; however, the standards must be at least as stringent as those established for other local or regional detention homes or other secure facilities;
  4. Contingency plans for operation of a contractor-operated facility in the event of a termination of the contract;
  5. The powers and duties of contractors' personnel charged with the care and custody of detainees, including use of force and discipline;
  6. Methods of monitoring a contractor-operated facility by an appropriate state or local governmental entity or entities;
  7. Public access to a contractor-operated facility; and
  8. Such other regulations as may be necessary to carry out the provisions of this article.

    (1991, c. 258; 1992, c. 652.)

Article 14. Interstate Compact Relating to Juveniles.

§ 16.1-323. Governor to execute; form of compact.

The Governor of Virginia is hereby authorized and requested to execute, on behalf of the Commonwealth of Virginia, with any other state or states legally joining therein, a compact which shall be in form substantially as follows:

Article I.

Purpose.

The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress by enacting the Crime Control Act, 4 U.S.C. § 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.

It is the purpose of this compact, through means of joint and cooperative action among the compacting states, to (i) ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state; (ii) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected; (iii) return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return; (iv) make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services; (v) provide for the effective tracking and supervision of juveniles; (vi) equitably allocate the costs, benefits and obligations of the compacting states; (vii) establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency that has jurisdiction over juvenile offenders; (viii) ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; (ix) establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact; (x) establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators; (xi) monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance; (xii) coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and (xiii) coordinate the implementation and operation of the compact with the Interstate Compact on the Placement of Children, the Interstate Compact for Adult Offender Supervision, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

Article II.

Definitions.

As used in this compact, unless the context clearly requires a different construction:

"Bylaws" means those bylaws established by the Interstate Commission for its governance or for directing or controlling its actions or conduct.

"Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact.

"Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission, and policies adopted by the state council under this compact.

"Compacting state" means any state that has enacted the enabling legislation for this compact.

"Court" means any court having jurisdiction over delinquent, neglected, or dependent children.

"Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the state council under this compact.

"Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this compact.

"Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:

  1. Accused delinquent: a person charged with an offense that, if committed by an adult, would be a criminal offense;
  2. Accused status offender: a person charged with an offense that would not be a criminal offense if committed by an adult;
  3. Adjudicated delinquent: a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
  4. Adjudicated status offender: a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
  5. Nonoffender: a person in need of supervision who has not been accused of being or adjudicated a status offender or delinquent.

    "Noncompacting state" means any state that has not enacted the enabling legislation for this compact.

    "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.

    "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, that has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.

    "State" means a state of the United States, the District of Columbia or its designee, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, or the Northern Marianas Islands.

Article III.

Interstate Commission for Juveniles.

  1. The compacting states hereby create the "Interstate Commission for Juveniles." The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth herein and additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  2. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created in Article IX. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.
  3. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners but who are members of interested organizations. Such noncommissioner members shall include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact on the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio (nonvoting) members. The Interstate Commission may provide in its bylaws for such additional ex officio (nonvoting) members, including members of other national organizations, in such numbers as shall be determined by the commission.
  4. Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
  5. The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
  6. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administer enforcement and compliance with the provisions of the compact, its bylaws, and rules; and perform other duties as directed by the Interstate Commission or set forth in the bylaws.
  7. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specific meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
  8. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent that they would adversely affect personal privacy rights or proprietary interests.
  9. Public notice shall be given of all meetings, and all meetings shall be open to the public except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
    1. Relate solely to the Interstate Commission's internal personnel practices and procedures;
    2. Disclose matters specifically exempted from disclosure by statute;
    3. Disclose trade secrets or commercial or financial information that is privileged or confidential;
    4. Involve accusing any person of a crime or formally censuring any person;
    5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Disclose investigative records compiled for law-enforcement purposes;
    7. Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
    8. Disclose information the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
    9. Specifically relate to the Interstate Commission's issuance of a subpoena or its participation in a civil action or other legal proceeding.
  10. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes that shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in the minutes.
  11. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules that shall specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

Article IV.

Powers and Duties of the Interstate Commission.

The commission shall have the following powers and duties:

  1. To provide for dispute resolution among compacting states;
  2. To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;
  3. To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the Interstate Commission;
  4. To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process;
  5. To establish and maintain offices that shall be located within one or more of the compacting states;
  6. To purchase and maintain insurance and bonds;
  7. To borrow, accept, hire, or contract for services of personnel;
  8. To establish and appoint committees and hire staff that it deems necessary for carrying out its functions including but not limited to an executive committee as required by Article III that shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder;
  9. To elect or appoint such officers, attorneys, employees, agents, or consultants and to fix their compensation, define their duties and determine their qualifications and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel;
  10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it;
  11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use, any property, real, personal, or mixed;
  12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;
  13. To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact;
  14. To sue and be sued;
  15. To adopt a seal and bylaws governing the management and operation of the Interstate Commission;
  16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;
  17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission;
  18. To coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity;
  19. To establish uniform standards of the reporting, collecting, and exchanging of data; and
  20. To maintain its corporate books and records in accordance with the bylaws.

Article V.

Organization and Operation of the Interstate Commission.

  1. Bylaws.
    1. The Interstate Commission shall, by a majority of the members present and voting, within 12 months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including but not limited to:
      1. Establishing the fiscal year of the Interstate Commission;
      2. Establishing an executive committee and such other committees as may be necessary;
      3. Providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
      4. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission and ensuring reasonable notice of each such meeting;
      5. Establishing the titles and responsibilities of the officers of the Interstate Commission;
      6. Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment or reserving of all its debts and obligations;
      7. Providing start-up rules for initial administration of the compact; and
      8. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
  2. Officers and staff.
    1. The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairman and a vice-chairman, each of whom shall have such authority and duties as may be specified in the bylaws. The chairman or, in the chairman's absence or disability, the vice-chairman shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
    2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.
  3. Qualified immunity, defense and indemnification.
    1. The commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by, arising out of, or relating to any actual or alleged act, error, or omission that occurred or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; however, any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
    2. The liability of any commissioner or the employee or agent of a commissioner, acting within the scope of such person's employment or duties, for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. Nothing in this subdivision shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
    3. The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
    4. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, the commissioner's representatives or employees, or the Interstate Commission's representatives or employees harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

Article VI.

Rulemaking Functions of the Interstate Commission.

  1. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.
  2. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the Model State Administrative Procedure Act, 1981 Act, Uniform Laws Annotated, vol. 15, p. 1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the U.S. Constitution as now or hereafter interpreted by the U.S. Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the commission.
  3. When promulgating a rule, the Interstate Commission shall, at a minimum:
    1. Publish the proposed rule's entire text, stating the reasons for that proposed rule;
    2. Allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record and be made publicly available;
    3. Provide an opportunity for an informal hearing if petitioned by 10 or more persons; and
    4. Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials or interested parties.
  4. Allow, not later than 60 days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the federal district court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedure Act.
  5. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.
  6. The existing rules governing the operation of the Interstate Compact on Juveniles superseded by this act shall be null and void 12 months after the first meeting of the Interstate Commission created hereunder.
  7. Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule that shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to the rule as soon as reasonably possible, but no later than 90 days after the effective date of the emergency rule.

Article VII.

Oversight, Enforcement and Dispute Resolution by the Interstate Commission.

  1. Oversight.
    1. The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states that might significantly affect compacting states.
    2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes.
  2. Dispute resolution.
    1. The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.
    2. The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues that are subject to the compact and that may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
    3. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any means set forth in Article XI of this compact.

Article VIII.

Finance.

  1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
  2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff that shall be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states that governs said assessment.
  3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet them; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

Article IX.

The State Council.

Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership shall include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including but not limited to development of policy concerning operations and procedures of the compact within that state.

Article X.

Compacting States, Effective Date and Amendment.

  1. Any state, the District of Columbia or its designee, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands are eligible to become a compacting state.
  2. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment of the compact into law by the 35th jurisdiction. Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
  3. The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

Article XI.

Withdrawal, Default, Termination, and Judicial Enforcement.

  1. Withdrawal.
    1. Once effective, the compact shall continue in force and remain binding upon each compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute that enacted the compact into law.
    2. The effective date of withdrawal is the effective date of the repeal.
    3. The withdrawing state shall immediately notify the chairman of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt thereof.
    4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations the performance of which extends beyond the effective date of withdrawal.
    5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state's reenacting the compact or upon such later date as determined by the Interstate Commission.
  2. Technical assistance, fines, suspension, termination, and default.
    1. If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, the bylaws, or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
      1. Remedial training and technical assistance as directed by the Interstate Commission;
      2. Alternative dispute resolution;
      3. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and
      4. Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include but are not limited to failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the bylaws, or duly promulgated rules and any other grounds designated in commission bylaws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state shall cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination.
    2. Within 60 days of the effective date of the termination of a defaulting state, the commission shall notify the governor, the chief justice or chief judicial officer, the majority and minority leaders of the defaulting state's legislature, and the state council.
    3. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations the performance of which extends beyond the effective date of termination.
    4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
    5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
  3. Judicial enforcement.

    The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules, and bylaws, against any compacting state in default. In the event that judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

  4. Dissolution of compact.
    1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state that reduces membership in the compact to one compacting state.
    2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.

Article XII.

Severability and Construction.

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
  2. The provisions of this compact shall be liberally construed to effectuate its purposes.

Article XIII.

Binding Effect of Compact and Other Laws.

  1. Other laws.
    1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
    2. All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.
  2. Binding effect of the compact.
    1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.
    2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
    3. When there is a conflict over meaning or interpretation of Interstate Commission, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation upon the request of a party to the conflict and upon a majority vote of the compacting states.
    4. In the event that any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective, and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.

      (Code 1950, § 16.1-213.1; 1977, c. 559; 2007, cc. 277, 387.)

Compact cross references. - As to provisions of other member states, see:

Alabama: Code of Ala. § 44-2-10 et seq.

Alaska: Alaska Stat. § 47.15.010.

Arizona: A.R.S. § 8-362 et seq.

Arkansas: A.C.A. § 9-29-401 et seq.

Colorado: C.R.S. § 24-60-701 et seq.

Delaware: 31 Del. C. § 5203.

Florida: Fla. Stat. § 985.802.

Hawaii: H.R.S. § 582D-1.

Idaho: Idaho Code § 16-1901 et seq.

Illinois: 45 ILCS 11/10.

Kentucky: KRS § 615.010.

Louisiana: La. Ch.C. Art. 1661.

Maine: 34-A M.R.S. § 9901 et seq.

Maryland: Md. Ann. Code art. HU, § 9-301 et seq.

Michigan: MCL §§ 3.691, 3.692.

Mississippi: Miss. Code Ann. § 43-25-101.

Missouri: § 210.570 R.S.Mo.

Montana: Mont. Code Anno., §§ 41-6-101 - 41-6-106.

Nevada: Nev. Rev. Stat. Ann. § 621.015 et seq.

New Jersey: N.J. Stat. § 9:23B-1 et seq.

New Mexico: N.M. Stat. Ann. § 32A-10-9.

North Carolina: N.C. Gen. Stat. §§ 7B-4000 - 7B-4002.

North Dakota: N.D. Cent. Code, § 12-66-01.

Oklahoma: 10A Okl. St. § 2-9-101 et seq.

Pennsylvania: 11 P.S. §§ 890.1 - 890.6.

Rhode Island: R.I. Gen. Laws § 14-6.1-1 et seq.

South Carolina: S.C. Code Ann. § 20-7-8800 et seq.

Tennessee: Tenn. Code Ann. § 37-4-101.

Texas: Tex. Fam. Code § 60.001 et seq.

Utah: Utah Code Ann. §§ 55-12-100 - 55-12-118.

Washington: Rev. Code Wash. (ARCW) § 13.24.011 et seq.

West Virginia: W. Va. Code §§ 49-8 A-1 - 49-8 A-4.

Wisconsin: Wis. Stat. § 938.999.

Wyoming: Wyo. Stat. § 14-6-102.

Editor's note. - Acts 2007, cc. 277 and 387, cl. 3 provides: "That § 16.1-323 of the Code of Virginia shall govern the covered interactions between the Commonwealth and those jurisdictions that have not ratified the Interstate Compact for Juveniles."

Acts 2007, cc. 277 and 387, cl. 4 provides: "That the provisions of this act shall become effective on the later of July 1, 2007, or upon enactment of the Interstate Compact for Juveniles, in substantially the form set out in § 16.1-323 of the Code of Virginia, by no less than 35 states as provided in § 16.1-323 of the Code of Virginia. In making a determination that this act has come into effect, the Governor may rely on the written representation of the National Institute of Corrections of the United States Department of Justice." This section, as rewritten, became effective August 26, 2008, when Illinois enacted the compact.

The 2007 amendments. - The 2007 amendments by cc. 277 and 387 are nearly identical, and rewrote the Compact.

CASE NOTES

Reliance on advice of probation officer from compact state as affirmative defense. - Under the Interstate Compact Relating to Juveniles, § 16.1-323 , where a juvenile's probation was transferred to North Carolina, a probation officer in that state became an adjunct officer of Virginia's probation system. Thus, defendant could assert, pursuant to Miller v. Commonwealth , his alleged reasonable reliance on such a probation officer's advice as an affirmative defense to a charge of possession of a firearm by a convicted felon. Palmer v. Commonwealth, 48 Va. App. 457, 632 S.E.2d 611, 2006 Va. App. LEXIS 344 (2006).

§ 16.1-323.1. State Council for Interstate Compact for Juveniles.

  1. The Virginia Council for the Interstate Compact for Juveniles (the Council) is created as a policy council, within the meaning of § 2.2-2100 , in the executive branch of state government. The Council shall consist of five members:
    1. One representative of the legislative branch appointed by the Joint Rules Committee;
    2. One representative of the judicial branch appointed by the Chief Justice of the Supreme Court;
    3. One representative of the executive branch appointed by the Governor;
    4. One nonlegislative citizen member, representing a victims' group appointed by the Governor; and
    5. One nonlegislative citizen member who in addition to serving as a member of the Council shall serve as the compact administrator for Virginia, appointed by the Governor. The appointments shall be subject to confirmation by the General Assembly. The legislative members and other state officials appointed to the Council shall serve terms coincident with their terms of office. Members who are not state officials shall be appointed for four-year terms. All members may be reappointed. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments.
  2. The Council shall appoint the compact administrator as the Virginia commissioner to the Interstate Commission. The Virginia commissioner shall serve on the Interstate Commission in such capacity under or pursuant to the applicable laws of this Commonwealth.
  3. The Council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by the Council, including development of policies concerning operations and procedures of the compact within Virginia.
  4. The Council shall elect a chairman and vice-chairman annually. A majority of the members of the Council shall constitute a quorum. Meetings of the Council shall be held at the call of the chairman or whenever the majority of the members so request.
  5. Legislative members of the Council shall receive such compensation as provided in § 30-19.12 and nonlegislative citizen members shall receive such compensation as provided in § 2.2-2813 for their services. All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825 . Funding for the costs of compensation and expenses of the members shall be provided by the Department of Juvenile Justice.
  6. The Department of Juvenile Justice shall provide staff support to the Council.

    (2007, cc. 277, 387.)

Editor's note. - Acts 2007, cc. 277 and 387, cl. 4 provides: "That the provisions of this act shall become effective on the later of July 1, 2007, or upon enactment of the Interstate Compact for Juveniles, in substantially the form set out in § 16.1-323 of the Code of Virginia, by no less than 35 states as provided in § 16.1-323 of the Code of Virginia. In making a determination that this act has come into effect, the Governor may rely on the written representation of the National Institute of Corrections of the United States Department of Justice." This section became effective August 26, 2008, when Illinois enacted the compact.

§§ 16.1-324 through 16.1-330.

Repealed by Acts 2007, cc. 277 and 387, cl. 2, effective August 26, 2008.

Editor's note. - Acts 2007, cc. 277 and 387, cl. 4 provides: "That the provisions of this act shall become effective on the later of July 1, 2007, or upon enactment of the Interstate Compact for Juveniles, in substantially the form set out in § 16.1-323 of the Code of Virginia, by no less than 35 states as provided in § 16.1-323 of the Code of Virginia. In making a determination that this act has come into effect, the Governor may rely on the written representation of the National Institute of Corrections of the United States Department of Justice." On August 26, 2008, Illinois enacted the compact.

Article 14.1. Serious or Habitual Offender Comprehensive Action Program.

§ 16.1-330.1. Serious or Habitual Offender Comprehensive Action Program; definition; disclosure of information; penalty.

  1. For purposes of this article, a serious or habitual juvenile offender is a minor who has been (i) adjudicated delinquent or convicted of murder or attempted murder, armed robbery, any felony sexual assault or malicious wounding, or a felony violation of a gang-related crime pursuant to Article 2.1 (§ 18.2-46.1 et seq.) of Chapter 4 of Title 18.2, or (ii) convicted at least three times for offenses which would be felonies or Class 1 misdemeanors if committed by an adult. Qualifying convictions or adjudications shall include only those for offenses occurring after July 1, 1993. However, any Serious or Habitual Offender Comprehensive Action Program (SHOCAP) in existence on July 1, 1993, shall be deemed to have been established pursuant to this article and, notwithstanding the limitations of this subsection, may continue to supervise persons who were being supervised on July 1, 1993. Juvenile offenders under SHOCAP supervision at the time of their eighteenth birthday who have been committed to state care pursuant to subdivision A 14 of § 16.1-278.8 or § 16.1-285.1 may continue to be supervised by SHOCAP until their twenty-first birthday.
  2. The Serious or Habitual Offender Comprehensive Action Program (SHOCAP) is a multidisciplinary interagency case management and information sharing system which enables the juvenile and criminal justice system, schools, and social service agencies to make more informed decisions regarding juveniles who repeatedly commit serious criminal and delinquent acts. Each SHOCAP shall supervise serious or habitual juvenile offenders in the community as well as those under probation or parole supervision and enhance current conduct control, supervision and treatment efforts to provide a more coordinated public safety approach to serious juvenile crime, increase the opportunity for success with juvenile offenders and assist in the development of early intervention strategies.
  3. Any county or city in the Commonwealth may by action of its governing body establish a SHOCAP committee. The committee shall consist of representatives from local law enforcement, schools, attorneys for the Commonwealth, juvenile court services, juvenile detention centers or group homes, mental and medical health agencies, state and local children and family service agencies, and the Department of Juvenile Justice. Any county or city which establishes a SHOCAP committee shall, within 45 days of such action, notify the Department of Criminal Justice Services. The Department shall issue statewide SHOCAP guidelines and provide technical assistance to local jurisdictions on implementation of SHOCAP.
  4. Each SHOCAP committee shall share among its members and with other SHOCAP committees otherwise confidential information on identified serious or habitual juvenile offenders. Every person, including members of the SHOCAP committee, who is to receive confidential information pursuant to this article shall maintain the confidentiality of that information.

    All records and reports concerning serious or habitual juvenile offenders made available to members of a SHOCAP committee and all records and reports identifying an individual offender which are generated by the committee from such reports shall be confidential and shall not be disclosed, except as specifically authorized by this article or other applicable law. Disclosure of the information may be made to other staff from member agencies as authorized by the SHOCAP committee for the furtherance of case management, community supervision, conduct control and locating of the offender for the application and coordination of appropriate services. Staff from the member agencies who receive such information will be governed by the confidentiality provisions of this article. The staff from the member agencies who will qualify to have access to the SHOCAP information shall be limited to those individuals who provide direct services to the offender or who provide community conduct control and supervision to the offender.

    The provisions of this article authorizing information sharing between and among SHOCAP committees shall take precedence over the provisions of (i) Article 12 (§ 16.1-299 et seq.) of Chapter 11 of this title governing dissemination of court and law-enforcement records concerning juveniles, (ii) Article 5 (§ 22.1-287 et seq.) of Chapter 14 of Title 22.1 governing access to pupil records, (iii) Title 37.2 and any regulations enacted pursuant thereto governing access to juvenile mental health records, and (iv) Title 63.2 and any regulations enacted pursuant thereto governing access to records concerning treatments or services provided to a juvenile.

  5. It shall be unlawful for any staff person from a member agency to disclose or to knowingly permit, assist or encourage the unauthorized release of any identifying information contained in any reports or records received or generated by a SHOCAP committee. A violation of this subsection shall be punishable as a Class 3 misdemeanor.

    (1993, cc. 465, 927; 1996, c. 293; 1999, c. 508; 2004, c. 418.)

Cross references. - As to punishment for felonies, see § 18.2-10 . As to punishment for Class 1 and 3 misdemeanors, see § 18.2-11 .

The 1999 amendment added the last sentence of subsection A.

The 2004 amendments. - The 2004 amendment by c. 418 inserted "or a felony violation of a gang-related crime pursuant to Article 2.1 ( § 18.2-46.1 et seq.) of Chapter 4 of Title 18.2" in clause (i) in the first sentence of subsection A; and made a stylistic change.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

§ 16.1-330.2. Immunity.

Any staff person or agency who is sharing information within the structure of a SHOCAP committee established pursuant to this article shall have immunity from civil or criminal liability that otherwise might result by reason of the type of information exchanged.

(1993, cc. 465, 927.)

Article 15. Emancipation of Minors.

§ 16.1-331. Petition for emancipation.

Any minor who has reached his sixteenth birthday and is residing in this Commonwealth, or any parent or guardian of such minor, may petition the juvenile and domestic relations district court for the county or city in which either the minor or his parents or guardian resides for a determination that the minor named in the petition be emancipated. The petition shall contain, in addition to the information required by § 16.1-262, the gender of the minor and, if the petitioner is not the minor, the name of the petitioner and the relationship of the petitioner to the minor. If the petition is based on the minor's desire to enter into a valid marriage, the petition shall also include the name, age, date of birth, if known, and residence of the intended spouse. The petitioner shall also attach copies of any criminal records of each individual intending to be married. The petitioner shall also attach copies of any protective order issued between the individuals to be married.

(1986, c. 506; 2016, cc. 457, 543.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2016 amendments. - The 2016 amendments by cc. 457 and 543 are identical, and added the last three sentences.

Law review. - For note, "State Regulations Are Failing Our Children: An Analysis of Child Marriage Laws in the United States," see 60 Wm. & Mary L. Rev. 2337 (2019).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Limitation of Actions, § 45.

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 16.1-332. Orders of court; investigation, report and appointment of counsel.

If deemed appropriate the court may (i) require the local department of social services or any other agency or person to investigate the allegations in the petition and file a report of that investigation with the court, (ii) appoint counsel for the minor's parents or guardian, or (iii) make any other orders regarding the matter which the court deems appropriate. In any case pursuant to this article the court shall appoint counsel for the minor to serve as guardian ad litem.

(1986, c. 506; 2002, c. 747.)

The 2002 amendments. - The 2002 amendment by c. 747, effective October 1, 2002, deleted "welfare or" following "local department of" in the first sentence.

§ 16.1-333. Findings necessary to order that minor is emancipated.

The court may enter an order declaring the minor emancipated if, after a hearing, it is found that: (i) the minor has entered into a valid marriage, whether or not that marriage has been terminated by dissolution; (ii) the minor is on active duty with any of the armed forces of the United States of America; (iii) the minor willingly lives separate and apart from his parents or guardian, with the consent or acquiescence of the parents or guardian, and that the minor is or is capable of supporting himself and competently managing his own financial affairs; or (iv) the minor desires to enter into a valid marriage and the requirements of § 16.1-333.1 are met.

(1986, c. 506; 2016, cc. 457, 543.)

The 2016 amendments. - The 2016 amendments by cc. 457 and 543 are identical, and added clause (iv) and made related changes.

CASE NOTES

Emancipation alone is not a sufficient reason to transfer a felony charge from a juvenile and domestic relations district court to a circuit court for trial. Kluis v. Commonwealth, 14 Va. App. 720, 418 S.E.2d 908 (1992).

Applied in USAA Cas. Ins. Co. v. Hensley, 251 Va. 177 , 465 S.E.2d 791 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 16.1-333.1. Written findings necessary to order that minor is emancipated on the basis of intent to marry.

The court may enter an order declaring such a minor who desires to get married emancipated if, after a hearing where both individuals intending to marry are present, the court makes written findings that:

  1. It is the minor's own will that the minor enter into marriage, and the minor is not being compelled against the minor's will by force, threats, persuasions, menace, or duress;
  2. The individuals to be married are mature enough to make such a decision to marry;
  3. The marriage will not endanger the safety of the minor. In making this finding, the court shall consider (i) the age difference between the parties intending to be married; (ii) whether either individual to be married has a criminal record containing any conviction of an act of violence, as defined in § 19.2-297.1, or any conviction of a barrier crime, as defined in § 19.2-392.02; and (iii) any history of violence between the parties to be married; and
  4. It is in the best interests of the minor petitioning for an order of emancipation that such order be entered. Neither a past or current pregnancy of either individual to be married or between the individuals to be married nor the wishes of the parents or legal guardians of the minor desiring to be married shall be sufficient evidence to establish that the best interests of the minor would be served by entering the order of emancipation.

    (2016, c. 457, 543; 2017, c. 809.)

The 2017 amendments. - The 2017 amendment by c. 809 substituted "a barrier crime, as defined in § 19.2-392.02" for "an offense set forth in § 63.2-1719 or 63.2-1726 " in clause (ii) of subdivision 3.

§ 16.1-334. Effects of order.

An order that a minor is emancipated shall have the following effects:

  1. The minor may consent to medical, dental, or psychiatric care, without parental consent, knowledge, or liability;
  2. The minor may enter into a binding contract or execute a will;
  3. The minor may sue and be sued in his own name;
  4. The minor shall be entitled to his own earnings and shall be free of control by his parents or guardian;
  5. The minor may establish his own residence;
  6. The minor may buy and sell real property;
  7. The minor may not thereafter be the subject of a petition under this chapter as abused, neglected, abandoned, in need of services, in need of supervision, or in violation of a juvenile curfew ordinance enacted by a local governing body;
  8. The minor may enroll in any school or institution of higher education, without parental consent;
  9. The minor may secure a driver's license under § 46.2-334 or § 46.2-335 without parental consent;
  10. The parents of the minor shall no longer be the guardians of the minor;
  11. The parents of a minor shall be relieved of any obligations respecting his school attendance under Article 1 (§ 22.1-254 et seq.) of Chapter 14 of Title 22.1;
  12. The parents shall be relieved of all obligation to support the minor;
  13. The minor shall be emancipated for the purposes of parental liability for his acts;
  14. The minor may execute releases in his own name;
  15. The minor may not have a guardian ad litem appointed for him pursuant to any statute solely because he is under age 18; and
  16. The minor may marry without parental, judicial, or other consent.

    The acts done when such order is or is purported to be in effect shall be valid notwithstanding any subsequent action terminating such order or a judicial determination that the order was void ab initio.

    (1986, c. 506; 1990, c. 568; 1993, c. 778.)

Editor's note. - At the direction of the Virginia Code Commission, "institution of higher education" was substituted for "college" in subdivision 8 to conform to Acts 2016, c. 588 and made a minor stylistic change.

Applied in USAA Cas. Ins. Co. v. Hensley, 251 Va. 177 , 465 S.E.2d 791 (1996).

CIRCUIT COURT OPINIONS

Unemancipated minor cannot establish own residence. - Where the decedent died just after being born, and the administrator was not entitled to collect under a homeowners' policy that excluded residents of the household, the decedent could not establish her own residence under § 16.1-334 5, because she was unemancipated. Harrell v. Shelby Cas. Ins. Co., 58 Va. Cir. 484, 2002 Va. Cir. LEXIS 165 (Norfolk 2002).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 16.1-334.1. Identification card issued to minor by DMV.

When entering an emancipation order under § 16.1-333, the court shall issue to the emancipated minor a copy of the order. Upon application to the Department of Motor Vehicles and submission of the copy, the Department shall issue to the minor an identification card containing the minor's photograph, a statement that such minor is emancipated, and a listing of all effects of the emancipation order as set forth in § 16.1-334.

(1990, c. 568.)

Article 16. Psychiatric Treatment of Minors Act.

§ 16.1-335. Short title.

The provisions of this article shall be known and may be cited as "The Psychiatric Treatment of Minors Act."

(1990, c. 975; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and deleted "Inpatient" following "Psychiatric" in both the Article heading and the text of this section.

§ 16.1-336. Definitions.

When used in this article, unless the context otherwise requires:

"Community services board" has the same meaning as provided in § 37.2-100 . Whenever the term community services board appears, it shall include behavioral health authority, as that term is defined in § 37.2-100 .

"Consent" means the voluntary, express, and informed agreement to treatment in a mental health facility by a minor 14 years of age or older and by a parent or a legally authorized custodian.

"Designee of the local community services board" means an examiner designated by the local community services board who (i) is skilled in the assessment and treatment of mental illness, (ii) has completed a certification program approved by the Department of Behavioral Health and Developmental Services, (iii) is able to provide an independent examination of the minor, (iv) is not related by blood, marriage, or adoption to, or is not the legal guardian of, the minor being evaluated, (v) has no financial interest in the admission or treatment of the minor being evaluated, (vi) has no investment interest in the facility detaining or admitting the minor under this article, and (vii) except for employees of state hospitals and of the U.S. Department of Veterans Affairs, is not employed by the facility.

"Employee" means an employee of the local community services board who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department of Behavioral Health and Developmental Services.

"Incapable of making an informed decision" means unable to understand the nature, extent, or probable consequences of a proposed treatment or unable to make a rational evaluation of the risks and benefits of the proposed treatment as compared with the risks and benefits of alternatives to the treatment. Persons with dysphasia or other communication disorders who are mentally competent and able to communicate shall not be considered incapable of giving informed consent.

"Inpatient treatment" means placement for observation, diagnosis, or treatment of mental illness in a psychiatric hospital or in any other type of mental health facility determined by the Department of Behavioral Health and Developmental Services to be substantially similar to a psychiatric hospital with respect to restrictions on freedom and therapeutic intrusiveness.

"Investment interest" means the ownership or holding of an equity or debt security, including shares of stock in a corporation, interests or units of a partnership, bonds, debentures, notes, or other equity or debt instruments.

"Judge" means a juvenile and domestic relations district judge. In addition, "judge" includes a retired judge sitting by designation pursuant to § 16.1-69.35, substitute judge, or special justice authorized by § 37.2-803 who has completed a training program regarding the provisions of this article, prescribed by the Executive Secretary of the Supreme Court.

"Least restrictive alternative" means the treatment and conditions of treatment which, separately and in combination, are no more intrusive or restrictive of freedom than reasonably necessary to achieve a substantial therapeutic benefit or to protect the minor or others from physical injury.

"Mental health facility" means a public or private facility for the treatment of mental illness operated or licensed by the Department of Behavioral Health and Developmental Services.

"Mental illness" means a substantial disorder of the minor's cognitive, volitional, or emotional processes that demonstrably and significantly impairs judgment or capacity to recognize reality or to control behavior. "Mental illness" may include substance abuse, which is the use, without compelling medical reason, of any substance which results in psychological or physiological dependency as a function of continued use in such a manner as to induce mental, emotional, or physical impairment and cause socially dysfunctional or socially disordering behavior. Intellectual disability, head injury, a learning disability, or a seizure disorder is not sufficient, in itself, to justify a finding of mental illness within the meaning of this article.

"Minor" means a person less than 18 years of age.

"Parent" means (i) a biological or adoptive parent who has legal custody of the minor, including either parent if custody is shared under a joint decree or agreement, (ii) a biological or adoptive parent with whom the minor regularly resides, (iii) a person judicially appointed as a legal guardian of the minor, or (iv) a person who exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption or otherwise by operation of law. The director of the local department of social services, or his designee, may stand as the minor's parent when the minor is in the legal custody of the local department of social services.

"Qualified evaluator" means a psychiatrist or a psychologist licensed in Virginia by either the Board of Medicine or the Board of Psychology, or if such psychiatrist or psychologist is unavailable, (i) any mental health professional licensed in Virginia through the Department of Health Professions as a clinical social worker, professional counselor, marriage and family therapist, psychiatric nurse practitioner, or clinical nurse specialist, or (ii) any mental health professional employed by a community services board. All qualified evaluators shall (a) be skilled in the diagnosis and treatment of mental illness in minors, (b) be familiar with the provisions of this article, and (c) have completed a certification program approved by the Department of Behavioral Health and Developmental Services. The qualified evaluator shall (1) not be related by blood, marriage, or adoption to, or is not the legal guardian of, the minor being evaluated, (2) not be responsible for treating the minor, (3) have no financial interest in the admission or treatment of the minor, (4) have no investment interest in the facility detaining or admitting the minor under this article, and (5) except for employees of state hospitals, the U.S. Department of Veterans Affairs, and community services boards, not be employed by the facility.

"Treatment" means any planned intervention intended to improve a minor's functioning in those areas which show impairment as a result of mental illness.

(1990, c. 975; 1991, c. 159; 2007, cc. 500, 897; 2008, cc. 139, 774; 2009, cc. 455, 555, 813, 840; 2010, cc. 778, 825; 2012, cc. 476, 507.)

The 2007 amendments. - The 2007 amendments by cc. 500 and 897 are identical, and added the definition of "Judge."

The 2008 amendments. - The 2008 amendments by cc. 139 and 774 are identical, and inserted the paragraph defining "Incapable of making an informed decision."

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and inserted the "Community services board" definition and made minor stylistic changes.

The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "State Mental Health, Mental Retardation and Substance Abuse Services Board" in the definition of "Inpatient treatment"; and in the paragraph defining "Mental health facility," substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services."

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and added the definitions of "Designee of the local community services board," "Employee," and "Investment interest"; and rewrote the definition of "Qualified evaluator."

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and in the paragraph defining "Mental illness," substituted "Intellectual disability" for "Mental retardation" at the beginning of the third sentence.

§ 16.1-336.1. Admission forms.

The Office of the Executive Secretary of the Supreme Court of Virginia shall prepare the petitions, orders, and such other legal forms as may be required in proceedings for custody, detention, and involuntary admission pursuant to this article, and shall distribute such forms to the clerks of the juvenile and domestic relations district courts of the Commonwealth. The Department of Behavioral Health and Developmental Services shall prepare the preadmission screening report, evaluation, and such other clinical forms as may be required in proceedings for custody, detention, and admission pursuant to this article, and shall distribute such forms to community services boards, mental health care providers, and directors of state facilities.

(2010, cc. 778, 825.)

§ 16.1-337. Inpatient treatment of minors; general applicability; disclosure of records.

  1. A minor may be admitted to a mental health facility for inpatient treatment only pursuant to § 16.1-338, 16.1-339, or 16.1-340.1 or in accordance with an order of involuntary commitment entered pursuant to §§ 16.1-341 through 16.1-345. The provisions of Article 12 (§ 16.1-299 et seq.) of Chapter 11 and § 16.1-337.1 relating to the confidentiality of files, papers, and records shall apply to proceedings under this article.
  2. Any health care provider, as defined in § 32.1-127.1:03 , or other provider rendering services to a minor who is the subject of proceedings under this article, upon request, shall disclose to a magistrate, the juvenile intake officer, the court, the minor's attorney, the minor's guardian ad litem, the qualified evaluator performing the evaluation required under §§ 16.1-338, 16.1-339, and 16.1-342, the community services board or its designee performing the evaluation, preadmission screening, or monitoring duties under this article, or a law-enforcement officer any and all information that is necessary and appropriate to enable each of them to perform his duties under this article. These health care providers and other service providers shall disclose to one another health records and information where necessary to provide care and treatment to the person and to monitor that care and treatment. Health records disclosed to a law-enforcement officer shall be limited to information necessary to protect the officer, the minor, or the public from physical injury or to address the health care needs of the minor. Information disclosed to a law-enforcement officer shall not be used for any other purpose, disclosed to others, or retained. Any health care provider providing services to a minor who is the subject of proceedings under this article shall make a reasonable attempt to notify the minor's parent of information that is directly relevant to such individual's involvement with the minor's health care, which may include the minor's location and general condition, in accordance with subdivision D 34 of § 32.1-127.1:03 , unless the provider has actual knowledge that the parent is currently prohibited by court order from contacting the minor. No health care provider shall be required to notify a person's family member or personal representative pursuant to this section if the health care provider has actual knowledge that such notice has been provided. Any health care provider disclosing records pursuant to this section shall be immune from civil liability for any harm resulting from the disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.), as amended, unless the person or provider disclosing such records intended the harm or acted in bad faith.
  3. Any order entered where a minor is the subject of proceedings under this article shall provide for the disclosure of health records pursuant to subsection B. This subsection shall not preclude any other disclosures as required or permitted by law.

    (1990, c. 975; 1992, c. 539; 2008, cc. 782, 850, 870; 2009, cc. 455, 555; 2010, cc. 778, 825; 2016, cc. 569, 693; 2018, c. 846.)

Editor's note. - Acts 2018, c. 846, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2008 amendments. - The 2008 amendments by cc. 782, 850 and 870 are identical, and designated the existing provisions of this section as subsection A; added subsections B and C; and made minor stylistic changes.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and deleted "or behavioral health authority" following "board" in the first sentence in subsection B.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and in subsection A, substituted "16.1-340.1" for "16.1-340" and "this article" for " §§ 16.1-339 through 16.1-345"; and in subsection B, deleted "as required in § 16.1-343" following "minor's attorney," substituted "the qualified evaluator performing the evaluation" for "the evaluator as," inserted "or its designee," and added the second paragraph.

The 2016 amendments. - The 2016 amendments by cc. 569 and 693 are identical, and in subsection B, substituted "this article shall make a reasonable attempt to notify the minor's parent of information that" for "this article may notify the minor's parent of information which," and added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 846, effective April 18, 2018, substituted "and § 16.1-337.1" for "of this title" following "Chapter 11" in subsection A.

§ 16.1-337.1. Order of involuntary commitment or mandatory outpatient treatment forwarded to Central Criminal Records Exchange; certain voluntary admissions forwarded to Central Criminal Records Exchange; firearm background check.

  1. The order from a commitment hearing issued pursuant to this article for involuntary admission or mandatory outpatient treatment for a minor 14 years of age or older and the certification of any minor 14 years of age or older who has been the subject of a temporary detention order pursuant to § 16.1-340.1 and who, after being advised by the court that he will be prohibited from possessing a firearm pursuant to § 18.2-308.1:3 , subsequently agreed to voluntary admission pursuant to § 16.1-338 shall be filed by the court with the clerk of the juvenile and domestic relations district court for the county or city where the hearing took place as soon as practicable but no later than the close of business on the next business day following the completion of the hearing.
  2. Upon receipt of any order from a commitment hearing issued pursuant to this article for involuntary admission of a minor 14 years of age or older to a facility, the clerk of court shall, as soon as practicable but no later than the close of business on the next following business day, certify and forward to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of the order. Upon receipt of any order from a commitment hearing issued pursuant to this article for mandatory outpatient treatment of a minor 14 years of age or older, the clerk of court shall, prior to the close of that business day, certify and forward to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of the order.
  3. The clerk of court shall also, as soon as practicable but no later than the close of business on the next following business day, forward upon receipt to the Central Criminal Records Exchange, on a form provided by the Exchange, certification of any minor 14 years of age or older who has been the subject of a temporary detention order pursuant to § 16.1-340.1 and who, after being advised by the court that he will be prohibited from possessing a firearm pursuant to § 18.2-308.1:3 , subsequently agreed to voluntary admission pursuant to § 16.1-338.
  4. Except as provided in subdivision A 1 of § 19.2-389, the copy of the forms and orders sent to the Central Criminal Records Exchange pursuant to subsection B, and the forms and certifications sent to the Central Criminal Records Exchange regarding voluntary admission pursuant to subsection C, shall be kept confidential in a separate file and used only to determine a person's eligibility to possess, purchase, or transfer a firearm. No medical records shall be forwarded to the Central Criminal Records Exchange with any form, order, or certification required by subsection B or C. The Department of State Police shall forward only a person's eligibility to possess, purchase, or transfer a firearm to the National Instant Criminal Background Check System.

    (2018, c. 846.)

Editor's note. - Acts 2018, c. 846, cl. 3 made this section effective April 18, 2018, by emergency clause.

§ 16.1-338. Parental admission of minors younger than 14 and nonobjecting minors 14 years of age or older.

  1. A minor younger than 14 years of age may be admitted to a willing mental health facility for inpatient treatment upon application and with the consent of a parent. A minor 14 years of age or older may be admitted to a willing mental health facility for inpatient treatment upon the joint application and consent of the minor and the minor's parent.
  2. Admission of a minor under this section shall be approved by a qualified evaluator who has conducted a personal examination of the minor within 48 hours after admission and has made the following written findings:
    1. The minor appears to have a mental illness serious enough to warrant inpatient treatment and is reasonably likely to benefit from the treatment; and
    2. The minor has been provided with a clinically appropriate explanation of the nature and purpose of the treatment; and
    3. If the minor is 14 years of age or older, that he has been provided with an explanation of his rights under this Act as they would apply if he were to object to admission, and that he has consented to admission; and
    4. All available modalities of treatment less restrictive than inpatient treatment have been considered and no less restrictive alternative is available that would offer comparable benefits to the minor.

      If admission is sought to a state hospital, the community services board serving the area in which the minor resides shall provide, in lieu of the examination required by this section, a preadmission screening report conducted by an employee or designee of the community services board and shall ensure that the necessary written findings have been made before approving the admission. A copy of the written findings of the evaluation or preadmission screening report required by this section shall be provided to the consenting parent and the parent shall have the opportunity to discuss the findings with the qualified evaluator or employee or designee of the community services board.

  3. Within 10 days after the admission of a minor under this section, the director of the facility or the director's designee shall ensure that an individualized plan of treatment has been prepared by the provider responsible for the minor's treatment and has been explained to the parent consenting to the admission and to the minor. The minor shall be involved in the preparation of the plan to the maximum feasible extent consistent with his ability to understand and participate, and the minor's family shall be involved to the maximum extent consistent with the minor's treatment needs. The plan shall include a preliminary plan for placement and aftercare upon completion of inpatient treatment and shall include specific behavioral and emotional goals against which the success of treatment may be measured. A copy of the plan shall be provided to the minor and to his parents.
  4. If the parent who consented to a minor's admission under this section revokes his consent at any time, or if a minor 14 or older objects at any time to further treatment, the minor shall be discharged within 48 hours to the custody of such consenting parent unless the minor's continued hospitalization is authorized pursuant to § 16.1-339, 16.1-340.1, or 16.1-345. If the 48-hour time period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the 48 hours shall extend to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed. If a minor 14 or older objects to further treatment, the mental health facility shall (i) immediately notify the consenting parent of the minor's objections and (ii) provide to the consenting parent a summary, prepared by the Office of the Attorney General, of the procedures for requesting continued treatment of the minor pursuant to § 16.1-339, 16.1-340.1, or 16.1-345.
  5. Inpatient treatment of a minor hospitalized under this section may not exceed 90 consecutive days unless it has been authorized by appropriate hospital medical personnel, based upon their written findings that the criteria set forth in subsection B of this section continue to be met, after such persons have examined the minor and interviewed the consenting parent and reviewed reports submitted by members of the facility staff familiar with the minor's condition.
  6. Any minor admitted under this section while younger than 14 and his consenting parent shall be informed orally and in writing by the director of the facility for inpatient treatment within 10 days of his fourteenth birthday that continued voluntary treatment under the authority of this section requires his consent.
  7. Any minor 14 years of age or older who joins in an application and consents to admission pursuant to subsection A, shall, in addition to his parent, have the right to access his health information. The concurrent authorization of both the parent and the minor shall be required to disclose such minor's health information.
  8. A minor who has been hospitalized while properly detained by a juvenile and domestic relations district court or circuit court shall be returned to the detention home, shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours following completion of a period of inpatient treatment, unless the court having jurisdiction over the case orders that the minor be released from custody.

    (1990, c. 975; 1991, c. 159; 2005, cc. 181, 227; 2008, cc. 783, 808; 2009, cc. 455, 555; 2010, cc. 778, 825; 2015, cc. 504, 543.)

The 2005 amendments. - The 2005 amendments by cc. 181 and 227 are identical, and added subsection G and made minor stylistic changes.

The 2008 amendments. - The 2008 amendments by cc. 783 and 808 are identical, and added the last sentence in subsection D.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and added subsection H.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and in subsection B, in the last paragraph, inserted "in lieu of," "a preadmission screening report conducted by an employee or designee of the community services board," and "or preadmission screening report" and substituted "qualified evaluator or employee or designee of the community services board" for "evaluator"; in subsection D, substituted "16.1-340.1" for "16.1-340"; and in subsection H, inserted "shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours."

The 2015 amendments. - The 2015 amendments by cc. 504 and 543 are identical, and added the last sentence in subsection D.

§ 16.1-339. Parental admission of an objecting minor 14 years of age or older.

  1. A minor 14 years of age or older who (i) objects to admission or (ii) is incapable of making an informed decision may be admitted to a willing facility for up to 120 hours, pending the review required by subsections B and C, upon the application of a parent. If admission is sought to a state hospital, the community services board serving the area in which the minor resides shall provide the preadmission screening report required by subsection B of § 16.1-338 and shall ensure that the necessary written findings, except the minor's consent, have been made before approving the admission.
  2. A minor admitted under this section shall be examined within 24 hours of his admission by a qualified evaluator designated by the community services board serving the area where the facility is located. If the 24-hour time period expires on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the 24 hours shall extend to the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. The evaluator shall prepare a report that shall include written findings as to whether:
    1. The minor appears to have a mental illness serious enough to warrant inpatient treatment and is reasonably likely to benefit from the treatment;
    2. The minor has been provided with a clinically appropriate explanation of the nature and purpose of the treatment; and
    3. All available modalities of treatment less restrictive than inpatient treatment have been considered and no less restrictive alternative is available that would offer comparable benefits to the minor.

      The qualified evaluator shall submit his report to the juvenile and domestic relations district court for the jurisdiction in which the facility is located.

  3. Upon admission of a minor under this section, the facility shall file a petition for judicial approval no sooner than 24 hours and no later than 120 hours after admission with the juvenile and domestic relations district court for the jurisdiction in which the facility is located. To the extent available, the petition shall contain the information required by § 16.1-339.1. A copy of this petition shall be delivered to the minor's consenting parent. Upon receipt of the petition and of the evaluator's report submitted pursuant to subsection B, the judge shall appoint a guardian ad litem for the minor and counsel to represent the minor, unless it has been determined that the minor has retained counsel. A copy of the evaluator's report shall be provided to the minor's counsel and guardian ad litem. The court and the guardian ad litem shall review the petition and evaluator's report and shall ascertain the views of the minor, the minor's consenting parent, the evaluator, and the attending psychiatrist. The court shall conduct its review in such place and manner, including the facility, as it deems to be in the best interests of the minor. Based upon its review and the recommendations of the guardian ad litem, the court shall order one of the following dispositions:
    1. If the court finds that the minor does not meet the criteria for admission specified in subsection B, the court shall issue an order directing the facility to release the minor into the custody of the parent who consented to the minor's admission. However, nothing herein shall be deemed to affect the terms and provisions of any valid court order of custody affecting the minor.
    2. If the court finds that the minor meets the criteria for admission specified in subsection B, the court shall issue an order authorizing continued hospitalization of the minor for up to 90 days on the basis of the parent's consent.

      Within 10 days after the admission of a minor under this section, the director of the facility or the director's designee shall ensure that an individualized plan of treatment has been prepared by the provider responsible for the minor's treatment and has been explained to the parent consenting to the admission and to the minor. A copy of the plan shall also be provided to the guardian ad litem and to counsel for the minor. The minor shall be involved in the preparation of the plan to the maximum feasible extent consistent with his ability to understand and participate, and the minor's family shall be involved to the maximum extent consistent with the minor's treatment needs. The plan shall include a preliminary plan for placement and aftercare upon completion of inpatient treatment and shall include specific behavioral and emotional goals against which the success of treatment may be measured.

    3. If the court determines that the available information is insufficient to permit an informed determination regarding whether the minor meets the criteria specified in subsection B, the court shall schedule a commitment hearing that shall be conducted in accordance with the procedures specified in §§ 16.1-341 through 16.1-345. The minor may be detained in the hospital for up to 120 additional hours pending the holding of the commitment hearing.
  4. A minor admitted under this section who rescinds his objection may be retained in the hospital pursuant to § 16.1-338.
  5. If the parent who consented to a minor's admission under this section revokes his consent at any time, the minor shall be released within 48 hours to the parent's custody unless the minor's continued hospitalization is authorized pursuant to § 16.1-340.1 or 16.1-345. If the 48-hour time period expires on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the 48 hours shall extend to the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.
  6. A minor who has been hospitalized while properly detained by a juvenile and domestic relations district court or circuit court shall be returned to the detention home, shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours following completion of a period of inpatient treatment, unless the court having jurisdiction over the case orders that the minor be released from custody.

    (1990, c. 975; 1991, c. 159; 2005, c. 716; 2007, cc. 500, 897; 2008, cc. 139, 774, 783, 807, 808; 2009, cc. 455, 555; 2010, cc. 778, 825; 2015, cc. 504, 535, 543.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, in subsection B, inserted "or behavioral health authority" preceding "serving the area," and substituted "that" for "which" preceding "shall include written findings"; deleted "or special justice appointed pursuant to § 37.1-88" preceding "shall appoint a guardian" in subsection C; substituted "that" for "which" preceding "shall be conducted" in subdivision C 3; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendments by cc. 500 and 897 are identical, and deleted "juvenile and domestic relations district court" preceding "judge" in the third sentence of the introductory paragraph in subsection C.

The 2008 amendments. - The 2008 amendments by cc. 139 and 774 are identical, and, in the first sentence of subsection A, inserted the (i) designator and "or (ii) is incapable of making an informed decision," and made a related change.

The 2008 amendments by cc. 783 and 808 are identical, and substituted "96 hours" for "72 hours" in subsection A and subdivision C 3; in subsection C, deleted "immediately" following "the facility shall" and inserted "no sooner than 24 hours and no later than 96 hours after admission" near the middle of the first sentence; and added the last sentence in subsection E.

The 2008 amendment by c. 807, in subsection C, inserted "and counsel to represent the minor, unless it has been determined that the minor has retained counsel" at the end of the third sentence; and in subdivision C 2, inserted "and to counsel for the minor" at the end of the second sentence in the second paragraph.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and deleted "or behavioral health authority" following "board" in subsections A and B; in subsection C, inserted the second and fifth sentences; and added subsection F.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and in subsection A, substituted "preadmission screening report" for "examination"; in subsection B, deleted "who is not and will not be treating the minor and who has no significant financial interest in the minor's hospitalization" from the end of the first sentence and added the second sentence; in subsection E, substituted "16.1-340.1" for "16.1-340"; and in subsection F, inserted "shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours."

The 2015 amendments. - The 2015 amendments by cc. 504 and 543 are identical, and deleted "of this section" following "subsections B and C" in subsection A and rewrote subdivisions B 1 through 3, which read "1. Because of mental illness, the minor (i) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or (ii) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control; 2. The minor is in need of inpatient treatment for a mental illness and is reasonably likely to benefit from the proposed treatment; and 3. Inpatient treatment is the least restrictive alternative that meets the minor's needs. The qualified evaluator shall submit his report to the juvenile and domestic relations district court for the jurisdiction in which the facility is located."

The 2015 amendment by c. 535 substituted "120 hours" for "96 hours" throughout the section.

§ 16.1-339.1. Minors in detention homes or shelter care facilities.

If a minor admitted to a mental health facility pursuant to this article was in a detention home or a shelter care facility at the time of his admission, the director of the detention home or shelter care facility or his designee shall provide, if available, the charges against the minor that are the basis of the detention and the names and addresses of the minor's parents and the juvenile and domestic relations district court ordering the minor's placement in detention or shelter care to the mental health facility and to the juvenile and domestic relations district court for the jurisdiction in which the mental health facility is located if different from the court ordering the minor's placement in detention or shelter care.

(2009, cc. 455, 555.)

§ 16.1-340. Emergency custody; issuance and execution of order.

  1. Any magistrate shall issue, upon the sworn petition of a minor's treating physician or parent or, if the parent is not available or is unable or unwilling to file a petition, by any responsible adult, including the person having custody over a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court, or upon his own motion, an emergency custody order when he has probable cause to believe that (i) because of mental illness, the minor (a) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats, or (b) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control; and (ii) the minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment. Any emergency custody order entered pursuant to this section shall provide for the disclosure of medical records pursuant to subsection B of § 16.1-337. This subsection shall not preclude any other disclosures as required or permitted by law. To the extent possible, the petition shall contain the information required by § 16.1-339.1.

    When considering whether there is probable cause to issue an emergency custody order, the magistrate may, in addition to the petition, consider (1) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (2) any past actions of the minor, (3) any past mental health treatment of the minor, (4) any relevant hearsay evidence, (5) any medical records available, (6) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (7) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue an emergency custody order.

  2. Any minor for whom an emergency custody order is issued shall be taken into custody and transported to a convenient location to be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 16.1-340.1 and to assess the need for hospitalization or treatment. The evaluation shall be made by a person designated by the community services board serving the area in which the minor is located who is skilled in the diagnosis and treatment of mental illness and who has completed a certification program approved by the Department.
  3. The magistrate issuing an emergency custody order shall specify the primary law-enforcement agency and jurisdiction to execute the emergency custody order and provide transportation. However, the magistrate may authorize transportation by an alternative transportation provider, including a parent, family member, or friend of the minor who is the subject of the order, a representative of the community services board, or other transportation provider with personnel trained to provide transportation in a safe manner, upon determining, following consideration of information provided by the petitioner; the community services board or its designee; the local law-enforcement agency, if any; the minor's treating physician, if any; or other persons who are available and have knowledge of the minor, and, when the magistrate deems appropriate, the proposed alternative transportation provider, either in person or via two-way electronic video and audio or telephone communication system, that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. When transportation is ordered to be provided by an alternative transportation provider, the magistrate shall order the specified primary law-enforcement agency to execute the order, to take the minor into custody, and to transfer custody of the minor to the alternative transportation provider identified in the order. In such cases, a copy of the emergency custody order shall accompany the minor being transported pursuant to this section at all times and shall be delivered by the alternative transportation provider to the community services board or its designee responsible for conducting the evaluation. The community services board or its designee conducting the evaluation shall return a copy of the emergency custody order to the court designated by the magistrate as soon as is practicable. Delivery of an order to a law-enforcement officer or alternative transportation provider and return of an order to the court may be accomplished electronically or by facsimile.

    Transportation under this section shall include transportation to a medical facility as may be necessary to obtain emergency medical evaluation or treatment that shall be conducted immediately in accordance with state and federal law. Transportation under this section shall include transportation to a medical facility for a medical evaluation if a physician at the hospital in which the minor subject to the emergency custody order may be detained requires a medical evaluation prior to admission.

  4. In specifying the primary law-enforcement agency and jurisdiction for purposes of this section, the magistrate shall order the primary law-enforcement agency from the jurisdiction served by the community services board that designated the person to perform the evaluation required in subsection B to execute the order and, in cases in which transportation is ordered to be provided by the primary law-enforcement agency, provide transportation. If the community services board serves more than one jurisdiction, the magistrate shall designate the primary law-enforcement agency from the particular jurisdiction within the community services board's service area where the minor who is the subject of the emergency custody order was taken into custody or, if the minor has not yet been taken into custody, the primary law-enforcement agency from the jurisdiction where the minor is presently located to execute the order and provide transportation.
  5. The law-enforcement agency or alternative transportation provider providing transportation pursuant to this section may transfer custody of the minor to the facility or location to which the minor is transported for the evaluation required in subsection B, G, or H if the facility or location (i) is licensed to provide the level of security necessary to protect both the minor and others from harm, (ii) is actually capable of providing the level of security necessary to protect the minor and others from harm, and (iii) in cases in which transportation is provided by a law-enforcement agency, has entered into an agreement or memorandum of understanding with the law-enforcement agency setting forth the terms and conditions under which it will accept a transfer of custody, provided, however, that the facility or location may not require the law-enforcement agency to pay any fees or costs for the transfer of custody.
  6. A law-enforcement officer may lawfully go or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of executing an emergency custody order pursuant to this section.
  7. A law-enforcement officer who, based upon his observation or the reliable reports of others, has probable cause to believe that a minor meets the criteria for emergency custody as stated in this section may take that minor into custody and transport that minor to an appropriate location to assess the need for hospitalization or treatment without prior authorization. A law-enforcement officer who takes a person into custody pursuant to this subsection or subsection H may lawfully go or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of obtaining the assessment. Such evaluation shall be conducted immediately. The period of custody shall not exceed eight hours from the time the law-enforcement officer takes the minor into custody.
  8. A law-enforcement officer who is transporting a minor who has voluntarily consented to be transported to a facility for the purpose of assessment or evaluation and who is beyond the territorial limits of the county, city, or town in which he serves may take such minor into custody and transport him to an appropriate location to assess the need for hospitalization or treatment without prior authorization when the law-enforcement officer determines (i) that the minor has revoked consent to be transported to a facility for the purpose of assessment or evaluation and (ii) based upon his observations, that probable cause exists to believe that the minor meets the criteria for emergency custody as stated in this section. The period of custody shall not exceed eight hours from the time the law-enforcement officer takes the minor into custody.
  9. A representative of the primary law-enforcement agency specified to execute an emergency custody order or a representative of the law-enforcement agency employing a law-enforcement officer who takes a person into custody pursuant to subsection G or H shall notify the community services board responsible for conducting the evaluation required in subsection B, G, or H as soon as practicable after execution of the emergency custody order or after the person has been taken into custody pursuant to subsection G or H.
  10. Nothing herein shall preclude a law-enforcement officer or alternative transportation provider from obtaining emergency medical treatment or further medical evaluation at any time for a minor in his custody as provided in this section.
  11. The minor shall remain in custody until a temporary detention order is issued, until the minor is released, or until the emergency custody order expires. An emergency custody order shall be valid for a period not to exceed eight hours from the time of execution.
  12. If an emergency custody order is not executed within eight hours of its issuance, the order shall be void and shall be returned unexecuted to the office of the clerk of the issuing court or, if such office is not open, to any magistrate serving the jurisdiction of the issuing court.
  13. In addition to the eight-hour period of emergency custody set forth in subsection G, H, or K, if the minor is detained in a state facility pursuant to subsection D of § 16.1-340.1, the state facility and an employee or designee of the community services board may, for an additional four hours, continue to attempt to identify an alternative facility that is able and willing to provide temporary detention and appropriate care to the minor.
  14. Payments shall be made pursuant to § 37.2-804 to licensed health care providers for medical screening and assessment services provided to minors with mental illnesses while in emergency custody.
  15. No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

    (1990, c. 975; 1991, c. 159; 1992, c. 884; 2000, cc. 65, 246; 2001, c. 837; 2004, c. 283; 2005, c. 346; 2006, c. 401; 2008, cc. 783, 808; 2009, cc. 455, 555; 2010, cc. 778, 825; 2011, c. 249; 2014, cc. 691, 761; 2015, cc. 297, 308; 2018, c. 570.)

Editor's note. Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2014, c. 691, cl. 3 provides: "That the provisions of this act adding subsection M to § 16.1-340 and subsection N to § 37.2-808 [now subsection O] of the Code of Virginia shall expire on June 30, 2018." Subsection M expired, however, Acts 2018, c. 570 enacted an identical subsection M.

Acts 2014, c. 691, cl. 4 provides: "That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities."

The 2000 amendments. - The 2000 amendments by c. 65 and 246 are identical, and substituted " § 37.1-67.01 or § 37.1-67.1" for " § 37.1-67.1" in the first sentence.

The 2001 amendments. - The 2001 amendment by c. 837, in the last sentence, deleted "or other" preceding "legal holiday," inserted "or day on which the court is lawfully closed," preceding "the seventy-two hours," deleted "or" preceding "legal holiday," inserted "or day on which the court is lawfully closed" following "legal holiday" and deleted the last sentence, which read, "In no case may the time period between the filing of the petition and the hearing under § 16.1-344 exceed ninety-six hours."

The 2004 amendments. - The 2004 amendment by c. 283 twice inserted "serving the jurisdiction in which the minor is located or resides"; substituted "24" for "twenty-four" in the third sentence; substituted "72" for "seventy-two" throughout the section; and made a minor stylistic change.

The 2005 amendments. - The 2005 amendment by c. 346, in the first sentence, inserted "including a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations court" and made a minor stylistic change.

The 2006 amendments. - The 2006 amendment by c. 401 deleted "or resides" following "located" in the second and third sentences.

The 2008 amendments. - The 2008 amendments by cc. 783 and 808 are identical, and twice substituted "96 hours" for "72 hours," inserted "or filing of the petition pursuant to § 16.1-341, whichever occurs later" in the third sentence, and substituted "96-hour period" for "72-hour period" in the fourth sentence.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and inserted "except that an emergency custody order pursuant to § 37.2-808 or a temporary detention order pursuant to § 37.2-809 shall only be issued for a minor if the minor meets the criteria for involuntary commitment set forth in § 16.1-345" in the first sentence.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and rewrote the section.

The 2011 amendments. - The 2011 amendment by c. 249 substituted "six hours" for "four hours" in subsection K.

The 2014 amendments. - The 2014 amendments by cc. 691 and 761 substituted "eight hours" for "four hours" in the last sentences of subsections G, H, and K; deleted the former last two sentences of subsection G, which read "However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall issue an order extending the period of emergency custody one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the minor can be temporarily detained pursuant to § 16.1-340.1 or (ii) a medical evaluation of the person to be completed if necessary"; deleted the former last two sentences of subsection H, which were nearly identical to the sentences deleted in subsection G; deleted the former last three sentences of subsection K, which read "However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall extend the emergency custody order one time for a second period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the minor can be temporarily detained pursuant to § 16.1-340.1 or (ii) a medical evaluation of the person to be completed if necessary. Any family member, as defined in § 37.2-100 , employee or designee of the community services board, treating physician, or law-enforcement officer may request the two-hour extension"; added subsection I and redesignated the remaining subsections accordingly; and in subsection L substituted "eight hours" for "six hours." Chapter 691 also added subsection M.

The 2015 amendments. - The 2015 amendments by cc. 297 and 308 are identical, and in the second sentence in subsection C, deleted "in cases in which the emergency custody order is based upon a finding that the minor who is the subject of the order has a mental illness and that, as a result of mental illness, the minor is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control," following "However" and added subsection O.

The 2018 amendments. - The 2018 amendment by c. 570 added subsection M.

Law review. - For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

§ 16.1-340.1. Involuntary temporary detention; issuance and execution of order.

  1. A magistrate shall issue, upon the sworn petition of a minor's treating physician or parent or, if the parent is not available or is unable or unwilling to file a petition, by any responsible adult, including the person having custody over a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court, or upon his own motion and only after an evaluation conducted in-person or by means of a two-way electronic video and audio communication system as authorized in § 16.1-345.1 by an employee or designee of the local community services board to determine whether the minor meets the criteria for temporary detention, a temporary detention order if it appears from all evidence readily available, including any recommendation from a physician, clinical psychologist, or clinical social worker treating the person, that (i) because of mental illness, the minor (a) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats, or (b) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control; and (ii) the minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment. The magistrate shall also consider the recommendations of the minor's parents and of any treating or examining physician licensed in Virginia if available either verbally or in writing prior to rendering a decision. To the extent possible, the petition shall contain the information required by § 16.1-339.1. Any temporary detention order entered pursuant to this section shall be effective until such time as the juvenile and domestic relations district court serving the jurisdiction in which the minor is located conducts a hearing pursuant to subsection B of § 16.1-341. Any temporary detention order entered pursuant to this section shall provide for the disclosure of medical records pursuant to subsection B of § 16.1-337. This subsection shall not preclude any other disclosures as required or permitted by law.
  2. When considering whether there is probable cause to issue a temporary detention order, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician, psychologist, or clinical social worker licensed in Virginia, if available, (ii) any past actions of the minor, (iii) any past mental health treatment of the minor, (iv) any relevant hearsay evidence, (v) any medical records available, (vi) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (vii) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue a temporary detention order.
  3. A magistrate may issue a temporary detention order without an emergency custody order proceeding. A magistrate may issue a temporary detention order without a prior evaluation pursuant to subsection A if (i) the minor has been personally examined within the previous 72 hours by an employee or designee of the local community services board or (ii) there is a significant physical, psychological, or medical risk to the minor or to others associated with conducting such evaluation.
  4. An employee or designee of the local community services board shall determine the facility of temporary detention in accordance with the provisions of § 16.1-340.1:1 for all minors detained pursuant to this section. An employee or designee of the local community services board may change the facility of temporary detention and may designate an alternative facility for temporary detention at any point during the period of temporary detention if it is determined that the alternative facility is a more appropriate facility for temporary detention of the minor given the specific security, medical, or behavioral health needs of the minor. In cases in which the facility of temporary detention is changed following transfer of custody to an initial facility of temporary detention, transportation of the minor to the alternative facility of temporary detention shall be provided in accordance with the provisions of § 16.1-340.2. The initial facility of temporary detention shall be identified on the preadmission screening report and indicated on the temporary detention order; however, if an employee or designee of the local community services board designates an alternative facility, that employee or designee shall provide written notice forthwith, on a form developed by the Executive Secretary of the Supreme Court of Virginia, to the clerk of the issuing court of the name and address of the alternative facility. Subject to the provisions of § 16.1-340.1:1, if a facility of temporary detention cannot be identified by the time of the expiration of the period of emergency custody pursuant to § 16.1-340, the minor shall be detained in a state facility for the treatment of minors with mental illness and such facility shall be indicated on the temporary detention order. Except for minors who are detained for a criminal offense by a juvenile and domestic relations district court and who require hospitalization in accordance with this article, the minor shall not be detained in a jail or other place of confinement for persons charged with criminal offenses and shall remain in the custody of law enforcement until the minor is either detained within a secure facility or custody has been accepted by the appropriate personnel designated by either the initial facility of temporary detention identified in the temporary detention order or by the alternative facility of temporary detention designated by the employee or designee of the local community services board pursuant to this subsection.
  5. Any facility caring for a minor placed with it pursuant to a temporary detention order is authorized to provide emergency medical and psychiatric services within its capabilities when the facility determines that the services are in the best interests of the minor within its care. The costs incurred as a result of the hearings and by the facility in providing services during the period of temporary detention shall be paid and recovered pursuant to § 37.2-804 . The maximum costs reimbursable by the Commonwealth pursuant to this section shall be established by the State Board of Medical Assistance Services based on reasonable criteria. The State Board of Medical Assistance Services shall, by regulation, establish a reasonable rate per day of inpatient care for temporary detention.
  6. The employee or designee of the local community services board who is conducting the evaluation pursuant to this section shall determine, prior to the issuance of the temporary detention order, the insurance status of the minor. Where coverage by a third party payor exists, the facility seeking reimbursement under this section shall first seek reimbursement from the third party payor. The Commonwealth shall reimburse the facility only for the balance of costs remaining after the allowances covered by the third party payor have been received.
  7. The duration of temporary detention shall be sufficient to allow for completion of the examination required by § 16.1-342, preparation of the preadmission screening report required by § 16.1-340.4, and initiation of mental health treatment to stabilize the minor's psychiatric condition to avoid involuntary commitment where possible, but shall not exceed 96 hours prior to a hearing. If the 96-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, the minor may be detained, as herein provided, until the close of business on the next day that is not a Saturday, Sunday, or legal holiday. The minor may be released, pursuant to § 16.1-340.3, before the 96-hour period herein specified has run.
  8. If a temporary detention order is not executed within 24 hours of its issuance, or within a shorter period as is specified in the order, the order shall be void and shall be returned unexecuted to the office of the clerk of the issuing court or, if the office is not open, to any magistrate serving the jurisdiction of the issuing court. Subsequent orders may be issued upon the original petition within 96 hours after the petition is filed. However, a magistrate must again obtain the advice of an employee or designee of the local community services board prior to issuing a subsequent order upon the original petition. Any petition for which no temporary detention order or other process in connection therewith is served on the subject of the petition within 96 hours after the petition is filed shall be void and shall be returned to the office of the clerk of the issuing court.
  9. For purposes of this section a healthcare provider or an employee or designee of the local community services board shall not be required to encrypt any email containing information or medical records provided to a magistrate unless there is reason to believe that a third party will attempt to intercept the email.
  10. The employee or designee of the local community services board who is conducting the evaluation pursuant to this section shall, if he recommends that the minor should not be subject to a temporary detention order, inform the petitioner and an on-site treating physician of his recommendation.
  11. Each community services board shall provide to each juvenile and domestic relations district court and magistrate's office within its service area a list of employees and designees who are available to perform the evaluations required herein.

    (2010, cc. 778, 825; 2014, cc. 691, 773; 2018, c. 20; 2020, c. 945.)

Cross references. - As to temporary detention orders as evidence in judicial proceedings, see § 8.01-389 .

Editor's note. - Acts 2014, c. 691, cl. 4 and c. 773, cl. 2 provide: "That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities."

The 2014 amendments. - The 2014 amendments by cc. 691 and 773 are identical, and in subsection D inserted "in accordance with the provisions of § 16.1-340.1:1" in the first sentence, deleted the former second sentence, which read "The facility of temporary detention shall be one that has been approved pursuant to regulations of the Board of Behavioral Health and Developmental Services," and added the third sentence.

The 2018 amendments. - The 2018 amendment by c. 20, in subsection D, inserted "local" in the first sentence, inserted the second and third sentences, substituted "The initial facility of temporary detention" for "The facility" and added "however, if an employee . . ." to the end of the fourth sentence, and substituted "designated by either the initial facility of temporary detention" for "designated by the facility" and inserted "or by the alternative facility of temporary detention designated by the employee or designee of the local community services board pursuant to this subsection" in the last sentence.

The 2020 amendments. - The 2020 amendment by c. 945 inserted "or clinical social worker" in subsections A and B and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Evidence, § 84.

§ 16.1-340.1:1. Facility of temporary detention.

  1. In each case in which an employee or designee of the local community services board is required to make an evaluation of a minor pursuant to subsection B, G, or H of § 16.1-340, an employee or designee of the local community services board shall, upon being notified of the need for such evaluation, contact the state facility for the area in which the community services board is located and notify the state facility that the minor will be transported to the facility upon issuance of a temporary detention order if no other facility of temporary detention can be identified by the time of the expiration of the period of emergency custody pursuant to § 16.1-340. Upon completion of the evaluation, the employee or designee of the local community services board shall convey to the state facility information about the minor necessary to allow the state facility to determine the services the minor will require upon admission.
  2. A state facility may, following the notice in accordance with subsection A, conduct a search for an alternative facility that is able and willing to provide temporary detention and appropriate care to the minor, which may include another state facility if the state facility notified in accordance with subsection A is unable to provide temporary detention and appropriate care for the minor. Under no circumstances shall a state facility fail or refuse to admit a minor who meets the criteria for temporary detention pursuant to § 16.1-340.1 unless an alternative facility that is able to provide temporary detention and appropriate care agrees to accept the minor for temporary detention, and the minor shall not during the duration of the temporary detention order be released from custody except for purposes of transporting the minor to the state facility or alternative facility in accordance with the provisions of § 16.1-340.2. If an alternative facility is identified and agrees to accept the minor for temporary detention, the state facility shall notify the community services board, and an employee or designee of the community services board shall designate the alternative facility on the prescreening report.
  3. The facility of temporary detention designated in accordance with this section shall be one that has been approved pursuant to regulations of the State Board of Behavioral Health and Developmental Services.

    (2014, cc. 691, 773; 2015, cc. 121, 309.)

Editor's note. - Acts 2014, c. 691, cl. 4 and c. 773, cl. 2 provide: "That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities."

The 2015 amendments. - The 2015 amendments by cc. 121 and 309 are identical, and in subsection B, substituted "released from custody" for "released from the custody of the community services board" in the second sentence.

§ 16.1-340.2. Transportation of minor in the temporary detention process.

  1. In specifying the primary law-enforcement agency and jurisdiction for purposes of this section, the magistrate shall specify in the temporary detention order the law-enforcement agency of the jurisdiction in which the minor resides to execute the order and, in cases in which transportation is ordered to be provided by the primary law-enforcement agency, provide transportation. However, if the nearest boundary of the jurisdiction in which the minor resides is more than 50 miles from the nearest boundary of the jurisdiction in which the minor is located, the law-enforcement agency of the jurisdiction in which the minor is located shall execute the order and provide transportation.
  2. The magistrate issuing the temporary detention order shall specify the law-enforcement agency to execute the order and provide transportation. However, the magistrate may authorize transportation by an alternative transportation provider, including a parent, family member, or friend of the minor who is the subject of the temporary detention order, a representative of the community services board, or other transportation provider with personnel trained to provide transportation in a safe manner upon determining, following consideration of information provided by the petitioner; the community services board or its designee; the local law-enforcement agency, if any; the minor's treating physician, if any; or other persons who are available and have knowledge of the minor, and, when the magistrate deems appropriate, the proposed alternative transportation provider, either in person or via two-way electronic video and audio or telephone communication system, that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. When transportation is ordered to be provided by an alternative transportation provider, the magistrate shall order the specified primary law-enforcement agency to execute the order, to take the minor into custody, and to transfer custody of the minor to the alternative transportation provider identified in the order.

    In such cases any case in which a magistrate authorizes transportation of a minor subject to a temporary detention order by an alternative transportation provider, a copy of the temporary detention order shall accompany the minor being transported pursuant to this section at all times and shall be delivered by the alternative transportation provider to the temporary detention facility. The temporary detention facility shall return a copy of the temporary detention order to the court designated by the magistrate as soon as is practicable. Delivery of an order to a law-enforcement officer or alternative transportation provider and return of an order to the court may be accomplished electronically or by facsimile.

    The order may include transportation of the minor to such other medical facility as may be necessary to obtain further medical evaluation or treatment prior to placement as required by a physician at the admitting temporary detention facility. Nothing herein shall preclude a law-enforcement officer or alternative transportation provider from obtaining emergency medical treatment or further medical evaluation at any time for a minor in his custody as provided in this section. Such medical evaluation or treatment shall be conducted immediately in accordance with state and federal law.

  3. If an alternative transportation provider providing transportation of a minor who is the subject of a temporary detention order becomes unable to continue providing transportation of the minor at any time after taking custody of the minor, the primary law-enforcement agency for the jurisdiction in which the alternative transportation provider is located at the time he becomes unable to continue providing transportation shall take custody of the minor and shall transport the minor to the facility of temporary detention. In such cases, (i) a copy of the temporary detention order shall accompany the minor being transported and shall be delivered to and returned by the temporary detention facility in accordance with the provisions of subsection B and (ii) if the alternative transportation provider originally authorized to provide transportation is a person other than the minor's parent, the alternative transportation provider shall notify the minor's parent (a) that the primary law-enforcement agency for the jurisdiction in which he is located has taken custody of the minor and is transporting the minor to the facility of temporary detention and (b) of the name of the law-enforcement officer providing transportation of the minor.
  4. In cases in which an alternative facility of temporary detention is identified and the law-enforcement agency or alternative transportation provider identified to provide transportation in accordance with subsection B continues to have custody of the minor, the local law-enforcement agency or alternative transportation provider shall transport the minor to the alternative facility of temporary detention identified by the employee or designee of the local community services board. In cases in which an alternative facility of temporary detention is identified and custody of the minor has been transferred from the law-enforcement agency or alternative transportation provider that provided transportation in accordance with subsection B to the initial facility of temporary detention, the employee or designee of the local community services board shall request, and a magistrate may enter an order specifying, an alternative transportation provider or, if no alternative transportation provider is available, willing, and able to provide transportation in a safe manner, the local law-enforcement agency for the jurisdiction in which the minor resides or, if the nearest boundary of the jurisdiction in which the minor resides is more than 50 miles from the nearest boundary of the jurisdiction in which the minor is located, the law-enforcement agency of the jurisdiction in which the minor is located, to provide transportation.
  5. The magistrate may change the transportation provider specified in a temporary detention order at any time prior to the initiation of transportation of a minor who is the subject of a temporary detention order pursuant to this section. If the designated transportation provider is changed by the magistrate at any time after the temporary detention order has been executed but prior to the initiation of transportation, the transportation provider having custody of the minor shall transfer custody of the minor to the transportation provider subsequently specified to provide transportation. For the purposes of this subsection, "transportation provider" includes both a law-enforcement agency and an alternative transportation provider.
  6. A law-enforcement officer may lawfully go or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of executing any temporary detention order pursuant to this section. Law-enforcement agencies may enter into agreements to facilitate the execution of temporary detention orders and provide transportation.
  7. No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

    (2010, cc. 778, 825; 2015, cc. 297, 308; 2018, c. 20; 2020, cc. 879, 880.)

The 2015 amendments. - The 2015 amendments by cc. 297 and 308 are identical, and added subsection D.

The 2018 amendments. - The 2018 amendment by c. 20 added subsection C and redesignated the remaining subsections accordingly.

The 2020 amendments. - The 2020 amendments by cc. 879 and 880 are identical, and inserted subsections C and E and redesignated accordingly.

§ 16.1-340.3. Release of minor prior to commitment hearing for involuntary admission.

Prior to a hearing as authorized in § 16.1-341, the judge may release the minor to his parent if it appears from all evidence readily available that the minor does not meet the commitment criteria specified in § 16.1-345. The director of any facility in which the minor is detained may release the minor prior to a hearing as authorized in § 16.1-341 if it appears, based on an evaluation conducted by the psychiatrist or clinical psychologist treating the minor, that the minor would not meet the commitment criteria specified in § 16.1-345 if released.

(2010, cc. 778, 825.)

§ 16.1-340.4. Involuntary commitment; preadmission screening report.

The juvenile and domestic relations district court shall require a preadmission screening report from the community services board that serves the area where the minor resides or, if impractical, where the minor is located. The report shall be prepared by an employee or designee of the community services board. The report shall be admitted as evidence of the facts stated therein and shall state (i) whether the minor has mental illness and whether, because of mental illness, the minor (a) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats, or (b) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control; (ii) whether the minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment; (iii) whether inpatient treatment is the least restrictive alternative that meets the minor's needs; and (iv) the recommendations for the minor's placement, care, and treatment including, where appropriate, recommendations for mandatory outpatient treatment. The board shall provide the preadmission screening report to the court prior to the hearing, and the report shall be admitted into evidence and made part of the record of the case.

(2010, cc. 778, 825.)

§ 16.1-341. Involuntary commitment; petition; hearing scheduled; notice and appointment of counsel.

  1. A petition for the involuntary commitment of a minor may be filed with the juvenile and domestic relations district court serving the jurisdiction in which the minor is located by a parent or, if the parent is not available or is unable or unwilling to file a petition, by any responsible adult, including the person having custody over a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court. The petition shall include the name and address of the petitioner and the minor and shall set forth in specific terms why the petitioner believes the minor meets the criteria for involuntary commitment specified in § 16.1-345. To the extent available, the petition shall contain the information required by § 16.1-339.1. The petition shall be taken under oath.

    If a commitment hearing has been scheduled pursuant to subdivision 3 of subsection C of § 16.1-339, the petition for judicial approval filed by the facility under subsection C of § 16.1-339 shall serve as the petition for involuntary commitment as long as such petition complies in substance with the provisions of this subsection.

  2. Upon the filing of a petition for involuntary commitment of a minor, the juvenile and domestic relations district court serving the jurisdiction in which the minor is located shall schedule a hearing which shall occur no sooner than 24 hours and no later than 96 hours from the time the petition was filed or from the issuance of the temporary detention order as provided in § 16.1-340.1, whichever occurs later, or from the time of the hearing held pursuant to subsection C of § 16.1-339 if the commitment hearing has been conducted pursuant to subdivision C 3 of § 16.1-339. If the 96-hour period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the 96 hours shall be extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed. The attorney for the minor, the guardian ad litem for the minor, the attorney for the Commonwealth in the jurisdiction giving rise to the detention, and the juvenile and domestic relations district court having jurisdiction over any minor in detention or shelter care shall be given notice prior to the hearing.

    If the petition is not dismissed or withdrawn, copies of the petition, together with a notice of the hearing, shall be served immediately upon the minor and the minor's parents, if they are not petitioners, by the sheriffs of the jurisdictions in which the minor and his parents are located. The hearing on the petition may proceed if the court determines that copies of the petition and notice of the hearing have been served on at least one parent and a reasonable effort has been made to serve such copies on both parents. No later than 24 hours before the hearing, the court shall appoint a guardian ad litem for the minor and counsel to represent the minor, unless it has determined that the minor has retained counsel. Upon the request of the minor's counsel, for good cause shown, and after notice to the petitioner and all other persons receiving notice of the hearing, the court may continue the hearing once for a period not to exceed 96 hours.

    Any recommendation made by a state mental health facility or state hospital regarding the minor's involuntary commitment may be admissible during the course of the hearing.

    (1990, c. 975; 1991, c. 159; 1992, c. 539; 2001, c. 837; 2004, c. 283; 2005, c. 346; 2006, c. 401; 2007, cc. 500, 897; 2008, cc. 140, 776, 783, 807, 808; 2009, cc. 455, 555; 2010, cc. 778, 825; 2018, c. 568.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2001 amendments. - The 2001 amendment by c. 837, in the last sentence of the first paragraph of subsection B, deleted "or other" preceding "legal holiday," inserted "or day on which the court is lawfully closed," preceding "the seventy-two hours," deleted "or" preceding "legal holiday," inserted "or day on which the court is lawfully closed" following "legal holiday" and deleted the last sentence, which read: "In no case may the time period between the filing of the petition and the hearing under § 16.1-344 exceed ninety-six hours."

The 2004 amendments. - The 2004 amendment by c. 283 inserted "serving the jurisdiction in which the minor is located" in the first paragraph of subsections A and B; and substituted "24" for "twenty-four" and "72" for "seventy-two" throughout the section.

The 2005 amendments. - The 2005 amendment by c. 346 added the language beginning "including the person having custody" in the first sentence of the first paragraph in subsection A; and added the last sentence in the first paragraph of subsection B.

The 2006 amendments. - The 2006 amendment by c. 401 added the last paragraph to the end of subsection B.

The 2007 amendments. - The 2007 amendments by cc. 500 and 897 are identical, and deleted "by a juvenile and domestic relations district judge" following "scheduled" in the last paragraph of subsection A.

The 2008 amendments. - The 2008 amendments by cc. 140 and 776 are identical, and inserted "or withdrawn" in the first sentence of the second paragraph in subsection B.

The 2008 amendments by cc. 783 and 808 are identical, and substituted "96" for "72" throughout this section; inserted "or withdrawn" following "If the petition is not dismissed" in the first sentence of the second paragraph of subsection B.

The 2008 amendment by c. 807, in subsection B, inserted "the guardian ad litem for the minor" in the third sentence of the first paragraph, and inserted "a guardian ad litem for the minor and" in the second sentence of the second paragraph.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and inserted the next-to-last sentence in the first paragraph in subsection A; and substituted "located shall schedule" for "located may schedule" in the first sentence in subsection B.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and in subsection B, in the first paragraph, inserted "or from the issuance of the temporary detention order as provided in § 16.1-340.1, whichever occurs later, or from the time of the hearing held pursuant to subsection C of § 16.1-339 if the commitment hearing has been conducted pursuant to subdivision C 3 of § 16.1-339" and in the second paragraph, inserted "by the sheriffs of the jurisdictions in which the minor and his parents are located."

The 2018 amendments. - The 2018 amendment by c. 568 inserted the second sentence in the second paragraph of subsection B.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

§ 16.1-342. Involuntary commitment; clinical evaluation.

  1. Upon the filing of a petition for involuntary commitment, the juvenile and domestic relations district court shall direct the community services board serving the area in which the minor is located to arrange for an evaluation by a qualified evaluator, if one has not already been performed pursuant to subsection B of § 16.1-339. All such evaluations shall be conducted in private. In conducting a clinical evaluation of a minor in detention or shelter care, if the evaluator finds, irrespective of the fact that the minor has been detained, that the minor meets the criteria for involuntary commitment in § 16.1-345, the evaluator shall recommend that the minor meets the criteria for involuntary commitment. The petitioner, all public agencies, and all providers or programs which have treated or who are treating the minor, shall cooperate with the evaluator and shall promptly deliver, upon request and without charge, all records of treatment or education of the minor. At least 24 hours before the scheduled hearing, the evaluator shall submit to the court a written report which includes the evaluator's opinion regarding whether the minor meets the criteria for involuntary commitment specified in § 16.1-345. A copy of the evaluator's report shall be provided to the minor's guardian ad litem and to the minor's counsel. The evaluator, if not physically present at the hearing, shall be available for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 16.1-345.1. When the qualified evaluator attends the hearing in person or by electronic communication, he shall not be excluded from the hearing pursuant to an order of sequestration of witnesses.
  2. Any evaluation conducted pursuant to this section shall be a comprehensive evaluation of the minor conducted in-person or, if that is not practicable, by a two-way electronic video and audio communication system as authorized in § 16.1-345.1. Translation or interpreter services shall be provided during the evaluation where necessary. The examination shall consist of (i) a clinical assessment that includes a mental status examination; determination of current use of psychotropic and other medications; a medical and psychiatric history; a substance use, abuse, or dependency determination; and a determination of the likelihood that, because of mental illness, the minor is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control; (ii) a substance abuse screening, when indicated; (iii) a risk assessment that includes an evaluation of the likelihood that, because of mental illness, the minor presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats; (iv) for a minor 14 years of age or older, an assessment of the minor's capacity to consent to treatment, including his ability to maintain and communicate choice, understand relevant information, and comprehend the situation and its consequences; (v) if prior to the examination the minor has been temporarily detained pursuant to this article, a review of the temporary detention facility's records for the minor, including the treating physician's evaluation, any collateral information, reports of any laboratory or toxicology tests conducted, and all admission forms and nurses' notes; (vi) a discussion of treatment preferences expressed by the minor or his parents or contained in a document provided by the minor or his parents in support of recovery; (vii) an assessment of alternatives to involuntary inpatient treatment; and (viii) recommendations for the placement, care, and treatment of the minor.

    (1990, c. 975; 2005, c. 346; 2009, cc. 455, 555; 2010, cc. 778, 825.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2005 amendments. - The 2005 amendment by c. 346 inserted the second sentence and made a minor stylistic change.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and inserted the present next-to-last sentence and substituted "evaluator, if not physically present at the hearing, shall be available whenever possible for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 16.1-345.1" for "evaluator shall attend the hearing as a witness" in the last sentence.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical and, designated prior exiting provisions as subsection A and added subsection B; and in subsection A, inserted "by a qualified evaluator," deleted "by a qualified evaluator who is not and will not be treating the minor and who has no significant financial interest in the facility to which the minor would be committed" from the end of the first sentence, added the second sentence, deleted "whenever possible" following "shall be available," and added the last sentence.

§ 16.1-343. Involuntary commitment; duties of attorney for the minor.

As far in advance as practicable after an attorney is appointed to represent a minor under this article, the minor's attorney shall interview the minor; the minor's parent, if available; the petitioner; and the qualified evaluator. He shall interview all other material witnesses, and examine all relevant diagnostic and other reports.

Any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit the attorney appointed pursuant to this article to inspect and copy, without the consent of the minor or his parents, any records relating to the minor whom the attorney represents.

The obligation of the minor's attorney during the hearing or appeal is to interview witnesses, obtain independent experts when possible, cross-examine adverse witnesses, present witnesses on behalf of the minor, articulate the wishes of the minor, and otherwise fully represent the minor in the proceeding. Counsel appointed by the court shall be compensated in an amount not to exceed $100.

(1990, c. 975; 1993, c. 344; 2004, cc. 66, 1014; 2008, c. 807; 2010, cc. 778, 825.)

The 2004 amendments. - The 2004 amendments by cc. 66 and 1014 are identical, and inserted the present second paragraph.

The 2008 amendments. - The 2008 amendment by c. 807 inserted "any action taken pursuant to the filing of a petition under § 16.1-339" in the first sentence of the first paragraph.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and rewrote the first sentence, which formerly read: "As far as possible in advance of any action taken pursuant to the filing of a petition under § 16.1-339, a hearing conducted under § 16.1-344, or an appeal from such a hearing, the minor's attorney shall interview the minor; the minor's parent, if available; the petitioner; and the qualified evaluator."

§ 16.1-344. Involuntary commitment; hearing.

  1. The court shall summon to the hearing all material witnesses requested by either the minor or the petitioner. All testimony shall be under oath. The rules of evidence shall apply. The petitioner, minor and, with leave of court for good cause shown, any other person shall be given the opportunity to present evidence and cross-examine witnesses. The hearing shall be closed to the public unless the minor and petitioner request that it be open.
  2. At the commencement of the hearing involving a minor 14 years of age or older, the court shall inform the minor whose involuntary commitment is being sought of his right to be voluntarily admitted for inpatient treatment as provided for in § 16.1-338 and shall afford the minor an opportunity for voluntary admission, provided that the minor's parent consents to such voluntary admission. The court shall advise the minor whose involuntary commitment is being sought that if the minor chooses to be voluntarily admitted pursuant to § 16.1-338, such minor will be prohibited from possessing, purchasing, or transporting a firearm pursuant to § 18.2-308.1:3 . In determining whether a minor is capable of consenting to voluntary admission, the court may consider evidence regarding the minor's past compliance or noncompliance with treatment.
  3. An employee or a designee of the community services board that arranged for the evaluation of the minor shall attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 16.1-345.1. If (i) the minor does not reside in the jurisdiction served by the juvenile and domestic relations district court that conducts the hearing and (ii) the minor is being considered for mandatory outpatient treatment pursuant to § 16.1-345.2, an employee or designee of the community services board serving the area where the minor resides shall also attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 16.1-345.1. The employee or designee of the community services board serving the area where the minor resides may, instead of attending the hearing, make arrangements with the community services board that arranged for the evaluation of the minor to present on its behalf the recommendations for a specific course of treatment and programs for the provision of mandatory outpatient treatment required by subsection C of § 16.1-345.2 and the initial mandatory outpatient treatment plan required by subsection D of § 16.1-345.2. When a community services board attends the hearing on behalf of the community services board serving the area where the minor resides, the attending community services board shall inform the community services board serving the area where the minor resides of the disposition of the matter upon the conclusion of the hearing. In addition, the attending community services board shall transmit the disposition through certified mail, personal delivery, facsimile with return receipt acknowledged, or other electronic means to the community services board serving the area where the minor resides. Any employee or designee of the community services board attending or participating in the hearing shall not be excluded from the hearing pursuant to an order of sequestration of witnesses.

    At least 12 hours prior to the hearing, the court shall provide the time and location of the hearing to the community services board that arranged for the evaluation of the minor. If the community services board will be present by telephonic means, the court shall provide the telephone number to the board.

    (1990, c. 975; 1992, c. 539; 2009, cc. 455, 555; 2010, cc. 778, 825; 2018, c. 846.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and substituted "evidence unless objected to by the minor or his attorney, in which case the evaluator shall attend the hearing in person or by electronic communication" for "evidence by stipulation of the parties" in the third sentence in the first paragraph; and added the last two paragraphs.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and designated the former first paragraph as subsection A and the former second and third paragraphs as subsection C; added subsection B; in subsection A, deleted "however, the evaluator's report required by § 16.1-342 shall be admissible into evidence unless objected to by the minor or his attorney, in which case the evaluator shall attend the hearing in person or by electronic communication" from the end of the third sentence and deleted the last two sentences, which read: "Within 30 days of any final order committing the minor or dismissing the petition, the minor or petitioner shall have the right to appeal de novo to the circuit court having jurisdiction where the minor was committed or where the minor is hospitalized pursuant to the commitment order. The juvenile and domestic relations district court shall appoint an attorney to represent any minor desiring to appeal who does not appear to be already represented"; and in subsection C, in the first paragraph, added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 846, effective April 18, 2018, inserted the second sentence in subsection B.

§ 16.1-345. Involuntary commitment; criteria.

After observing the minor and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the minor, (iii) any past mental health treatment of the minor, (iv) any qualified evaluator's report, (v) any medical records available, (vi) the preadmission screening report, and (vii) any other evidence that may have been admitted, the court shall order the involuntary commitment of the minor to a mental health facility for treatment for a period not to exceed 90 days if it finds, by clear and convincing evidence, that:

  1. Because of mental illness, the minor (i) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or (ii) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control;
  2. The minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment; and
  3. If the court finds that inpatient treatment is not the least restrictive treatment, the court shall consider entering an order for mandatory outpatient treatment pursuant to § 16.1-345.2.

    Upon the expiration of an order for involuntary commitment, the minor shall be released unless he is involuntarily admitted by further petition and order of a court, which shall be for a period not to exceed 90 days from the date of the subsequent court order, or the minor or his parent rescinds the objection to inpatient treatment and consents to admission pursuant to § 16.1-338 or subsection D of § 16.1-339 or the minor is ordered to mandatory outpatient treatment pursuant to § 16.1-345.2.

    A minor who has been hospitalized while properly detained by a juvenile and domestic relations district court shall be returned to the detention home, shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours following completion of a period of inpatient treatment, unless the court having jurisdiction over the case orders that the minor be released from custody. However, such a minor shall not be eligible for mandatory outpatient treatment.

    In conducting an evaluation of a minor who has been properly detained, if the evaluator finds, irrespective of the fact that the minor has been detained, that the minor meets the criteria for involuntary commitment in this section, the evaluator shall recommend that the minor meets the criteria for involuntary commitment.

    If the parent or parents with whom the minor resides are not willing to approve the proposed commitment, the court shall order inpatient treatment only if it finds, in addition to the criteria specified in this section, that such treatment is necessary to protect the minor's life, health, safety, or normal development. If a special justice believes that issuance of a removal order or protective order may be in the child's best interest, the special justice shall report the matter to the local department of social services for the county or city where the minor resides.

    Upon finding that the best interests of the minor so require, the court may enter an order directing either or both of the minor's parents to comply with reasonable conditions relating to the minor's treatment.

    If the minor is committed to inpatient treatment, such placement shall be in a mental health facility for inpatient treatment designated by the community services board which serves the political subdivision in which the minor was evaluated pursuant to § 16.1-342. If the community services board does not provide a placement recommendation at the hearing, the minor shall be placed in a mental health facility designated by the Commissioner of Behavioral Health and Developmental Services.

    When a minor has been involuntarily committed pursuant to this section, the judge shall determine, after consideration of information provided by the minor's treating mental health professional and any involved community services board staff regarding the minor's dangerousness, whether transportation shall be provided by the sheriff or may be provided by an alternative transportation provider, including a parent, family member, or friend of the minor, a representative of the community services board, a representative of the facility at which the minor was detained pursuant to a temporary detention order, or other alternative transportation provider with personnel trained to provide transportation in a safe manner. If the judge determines that transportation may be provided by an alternative transportation provider, the judge may consult with the proposed alternative transportation provider either in person or via two-way electronic video and audio or telephone communication system to determine whether the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. If the judge finds that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the judge may order transportation by the proposed alternative transportation provider. In all other cases, the judge shall order transportation by the sheriff of the jurisdiction where the minor is a resident unless the sheriff's office of that jurisdiction is located more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place. In cases where the sheriff of the jurisdiction in which the minor is a resident is more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place, it shall be the responsibility of the sheriff of the latter jurisdiction to transport the minor.

    If the judge determines that the minor requires transportation by the sheriff, the sheriff, as specified in this section shall transport the minor to the proper facility. In no event shall transport commence later than six hours after notification to the sheriff or alternative transportation provider of the judge's order.

    If an alternative transportation provider providing transportation of a minor becomes unable to continue providing transportation of the minor at any time after taking custody of the minor, the primary law-enforcement agency for the jurisdiction in which the alternative transportation provider is located at the time he becomes unable to continue providing transportation shall take custody of the minor and shall transport the minor to the proper facility. In such cases, if the alternative transportation provider originally authorized to provide transportation is a person other than the minor's parent, the alternative transportation provider shall notify the minor's parent (a) that the primary law-enforcement agency for the jurisdiction in which he is located has taken custody of the minor and is transporting the minor to the facility of temporary detention and (b) of the name of the law-enforcement officer providing transportation of the minor.

    No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

    (1990, c. 975; 1992, c. 539; 2005, c. 346; 2009, cc. 112, 455, 555, 697, 813, 840; 2010, cc. 778, 825; 2015, cc. 297, 308; 2020, cc. 879, 880.)

The 2005 amendments. - The 2005 amendment by c. 346 inserted the present fifth through seventh paragraphs and made minor stylistic changes.

The 2009 amendments. - The 2009 amendments by cc. 112 and 697 are identical, and inserted "or an alternative transportation provider" in the next-to-last sentence of the last paragraph.

The 2009 amendments by cc. 455 and 555 are identical, and in subdivision 3, rewrote the first paragraph, and in the second paragraph, in the first sentence, deleted "for a criminal offense" following "detained," "criminal" preceding "case" and added the last sentence and deleted the former fourth paragraph, which read: "In no event shall a minor who has been properly detained by a juvenile and domestic relations district court, and who meets criteria for involuntary commitment, have the right to make application for voluntary admission and treatment as may otherwise be provided for in this section."

The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services" near the middle of the last paragraph.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical and rewrote the first paragraph; added the second paragraph; in the third paragraph, inserted "shelter care, or other facility approved by the Department of Juvenile Justice by the sheriff serving the jurisdiction where the minor was detained within 24 hours"; rewrote the fifth paragraph, in the seventh paragraph, deleted the last two sentences, which read: "The judge shall order the sheriff or an alternative transportation provider to transport the minor to the designated mental health facility as specified in § 37.2-829 . The transportation of the committed minor by the minor's parent may be authorized at the discretion of the judge"; and added the last two paragraphs.

The 2015 amendments. - The 2015 amendments by cc. 297 and 308 are identical, and added the last paragraph.

The 2020 amendments. - The 2020 amendments by cc. 879 and 880 are identical, and inserted the penultimate paragraph.

§ 16.1-345.1. Use of electronic communication.

  1. Petitions and orders for emergency custody, temporary detention, and involuntary commitment of minors pursuant to this article may be filed, issued, served, or executed by electronic means, with or without the use of two-way electronic video and audio communication, and returned in the same manner with the same force, effect, and authority as an original document. All signatures thereon shall be treated as original signatures.
  2. Any judge may conduct proceedings pursuant to this article using any two-way electronic video and audio communication system to provide for the appearance of any parties and witnesses. Any two-way electronic video and audio communication system used to conduct a proceeding shall meet the standards set forth in subsection B of § 19.2-3.1. When a witness whose testimony would be helpful to the conduct of the proceeding is not able to be physically present, his testimony may be received using a telephonic communication system.

    (2005, c. 51; 2007, cc. 500, 897; 2009, cc. 455, 555; 2010, cc. 778, 825.)

The 2007 amendments. - The 2007 amendments by cc. 500 and 897 are identical, and deleted "juvenile and domestic relations court" preceding "judge" in the first sentence of subsection B.

The 2009 amendments. - The 2009 amendments by cc. 455 and 555 are identical, and substituted "this article" for " § 16.1-344" in the first sentence in subsection B.

The 2010 amendments. - The 2010 amendments by cc. 778 and 825, in subsection A, deleted "pursuant to § 37.2-808 " following "emergency custody," "pursuant to § 37.2-809 " following " temporary detention," and "pursuant to § 16.1-341" following "involuntary commitment," and inserted "pursuant to this article."

§ 16.1-345.2. Mandatory outpatient treatment; criteria; orders.

  1. After observing the minor and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the minor, (iii) any past mental health treatment of the minor, (iv) any evaluation of the minor, (v) any medical records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, the court shall order that the minor be admitted involuntarily to mandatory outpatient treatment for a period not to exceed 90 days if it finds, by clear and convincing evidence, that:
    1. Because of mental illness, the minor (i) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or (ii) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control;
    2. The minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment;
    3. Less restrictive alternatives to involuntary inpatient treatment that would offer an opportunity for improvement of his condition have been investigated and are determined to be appropriate;
    4. The minor, if 14 years of age or older, and his parents (i) have sufficient capacity to understand the stipulations of the minor's treatment, (ii) have expressed an interest in the minor's living in the community and have agreed to abide by the minor's treatment plan, and (iii) are deemed to have the capacity to comply with the treatment plan and understand and adhere to conditions and requirements of the treatment and services; and
    5. The ordered treatment can be delivered on an outpatient basis by the community services board or a designated provider.

      Less restrictive alternatives shall not be determined to be appropriate unless the services are actually available in the community and providers of the services have actually agreed to deliver the services.

  2. Mandatory outpatient treatment may include day treatment in a hospital, night treatment in a hospital, or other appropriate course of treatment as may be necessary to meet the needs of the minor. The community services board serving the area in which the minor resides shall recommend a specific course of treatment and programs for the provision of mandatory outpatient treatment. Upon expiration of an order for mandatory outpatient treatment, the minor shall be released from the requirements of the order unless the order is continued in accordance with § 16.1-345.5.
  3. Any order for mandatory outpatient treatment shall include an initial mandatory outpatient treatment plan developed by the community services board serving the area in which the minor resides. The plan shall, at a minimum, (i) identify the specific services to be provided, (ii) identify the provider who has agreed to provide each service, (iii) describe the arrangements made for the initial in-person appointment or contact with each service provider, and (iv) include any other relevant information that may be available regarding the mandatory outpatient treatment ordered. The order shall require the community services board to monitor the implementation of the mandatory outpatient treatment plan and report any material noncompliance to the court.
  4. No later than five business days after an order for mandatory outpatient treatment has been entered pursuant to this section, the community services board that is responsible for monitoring compliance with the order shall file a comprehensive mandatory outpatient treatment plan. The comprehensive mandatory outpatient treatment plan shall (i) identify the specific type, amount, duration, and frequency of each service to be provided to the minor, (ii) identify the provider that has agreed to provide each service included in the plan, (iii) certify that the services are the most appropriate and least restrictive treatment available for the minor, (iv) certify that each provider has complied and continues to comply with applicable provisions of the Department of Behavioral Health and Developmental Services' licensing regulations, (v) be developed with the fullest involvement and participation of the minor and his parents and reflect their preferences to the greatest extent possible to support the minor's recovery and self-determination, (vi) specify the particular conditions with which the minor shall be required to comply, and (vii) describe how the community services board shall monitor the minor's compliance with the plan and report any material noncompliance with the plan. The minor shall be involved in the preparation of the plan to the maximum feasible extent consistent with his ability to understand and participate, and the minor's family shall be involved to the maximum extent consistent with the minor's treatment needs. The community services board shall submit the comprehensive mandatory outpatient treatment plan to the court for approval. Upon approval by the court, the comprehensive mandatory outpatient treatment plan shall be filed with the court and incorporated into the order of mandatory outpatient treatment. Any subsequent substantive modifications to the plan shall be filed with the court for review and attached to any order for mandatory outpatient treatment.
  5. If the community services board responsible for developing the comprehensive mandatory outpatient treatment plan determines that the services necessary for the treatment of the minor's mental illness are not available or cannot be provided to the minor in accordance with the order for mandatory outpatient treatment, it shall notify the court within five business days of the entry of the order for mandatory outpatient treatment. Within five business days of receiving such notice, the judge, after notice to the minor, the minor's attorney, and the community services board responsible for developing the comprehensive mandatory outpatient treatment plan, shall hold a hearing pursuant to § 16.1-345.4.
  6. Upon entry of any order for mandatory outpatient treatment, the clerk of the court shall provide a copy of the order to the minor who is the subject of the order, his parents, his attorney, his guardian ad litem, and the community services board required to monitor his compliance with the plan. The community services board shall acknowledge receipt of the order to the clerk of the court on a form established by the Office of the Executive Secretary of the Supreme Court and provided by the court for this purpose.
  7. After entry of any order for mandatory outpatient treatment if the court that entered the order is not the juvenile and domestic relations district court for the jurisdiction in which the minor resides, it shall transfer jurisdiction of the case to the court where the minor resides.

    (2009, cc. 455, 555; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical and in subsection A, inserted "After observing the minor and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the minor, (iii) any past mental health treatment of the minor, (iv) any evaluation of the minor, (v) any medical records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted" at the beginning; and in subsection D, made a minor stylistic change.

§ 16.1-345.3. Monitoring mandatory outpatient treatment; motion for review.

  1. The community services board where the minor resides shall monitor the minor's compliance with the mandatory outpatient treatment plan ordered by the court pursuant to § 16.1-345.2. Monitoring compliance shall include (i) contacting the service providers to determine if the minor is complying with the mandatory outpatient treatment order and (ii) notifying the court of the minor's material noncompliance with the mandatory outpatient treatment order. Providers of services identified in the plan shall report any material noncompliance to the community services board.
  2. If the community services board determines that the minor materially failed to comply with the order, it shall file with the juvenile and domestic relations district court for the jurisdiction in which the minor resides a motion for review of the mandatory outpatient treatment order as provided in § 16.1-345.4. The community services board shall file the motion for review of the mandatory outpatient treatment order within three business days of making that determination, or within 24 hours if the minor is being detained under a temporary detention order, and shall recommend an appropriate disposition. Copies of the motion for review shall be sent to the minor, his parents, his attorney, and his guardian ad litem.
  3. If the community services board determines that the minor is not materially complying with the mandatory outpatient treatment order or for any other reason, and that because of mental illness, the minor (i) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or (ii) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control, it shall immediately request that the magistrate issue an emergency custody order pursuant to § 16.1-340 or a temporary detention order pursuant to § 16.1-340.1.
  4. If the community services board determines at any time prior to the expiration of the mandatory outpatient treatment order that the minor has complied with the order and that continued mandatory outpatient treatment is no longer necessary, it shall file a motion to review the order with the juvenile and domestic relations district court for the jurisdiction in which the minor resides. The court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 16.1-345.4.

    (2009, cc. 455, 555; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendment by cc. 778 and 825 are identical and in subsection C, inserted "pursuant to § 16.1-340" and substituted " § 16.1-340.1" for " § 16.1-340."

§ 16.1-345.4. Court review of mandatory outpatient treatment plan.

  1. The juvenile and domestic relations district court judge shall hold a hearing within 15 days after receiving the motion for review of the mandatory outpatient treatment plan; however, if the fifteenth day is a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the hearing shall be held on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If the minor is being detained under a temporary detention order, the hearing shall be scheduled within the same time frame provided for a commitment hearing under § 16.1-341. The clerk shall provide notice of the hearing to the minor, his parents, the community services board, all treatment providers listed in the comprehensive mandatory outpatient treatment order, and the original petitioner for the minor's involuntary treatment. If the minor is not represented by counsel, the judge shall appoint an attorney to represent the minor in this hearing and any subsequent hearings under § 16.1-345.5, giving consideration to appointing the attorney who represented the minor at the proceeding that resulted in the issuance of the mandatory outpatient treatment order. The judge shall also appoint a guardian ad litem for the minor. The community services board shall offer to arrange the minor's transportation to the hearing if the minor is not detained and has no other source of transportation.
  2. If requested by the minor's parents, the community services board, a treatment provider listed in the comprehensive mandatory outpatient treatment plan, or the original petitioner for the minor's involuntary treatment, the juvenile and domestic relations district court judge may order an evaluation and appoint a qualified evaluator in accordance with § 16.1-342 who shall personally examine the minor and certify to the court whether or not he has probable cause to believe that the minor meets the criteria for involuntary inpatient treatment or mandatory outpatient treatment as specified in § 16.1-345 and subsection A of § 16.1-345.2. The evaluator's report may be admitted into evidence without the appearance of the evaluator at the hearing if not objected to by the minor or his attorney. If the minor is not detained in an inpatient facility, the community services board shall arrange for the minor to be examined at a convenient location and time. The community services board shall offer to arrange for the minor's transportation to the examination, if the minor has no other source of transportation. If the minor refuses or fails to appear, the community services board shall notify the court, and the court shall issue a mandatory examination order and a civil show cause summons. The return date for the civil show cause summons shall be set on a date prior to the review hearing scheduled pursuant to subsection A, and the examination of the minor shall be conducted immediately after the hearing thereon, but in no event shall the period for the examination exceed eight hours.
  3. If the minor fails to appear for the hearing, the juvenile and domestic relations district court judge shall, after consideration of any evidence from the minor, from his parents, from the community services board, or from any treatment provider identified in the mandatory outpatient treatment plan regarding why the minor failed to appear at the hearing, either (i) reschedule the hearing pursuant to subsection A, (ii) issue an emergency custody order pursuant to § 16.1-340, or (iii) issue a temporary detention order pursuant to § 16.1-340.1.
  4. After hearing the evidence regarding the minor's material noncompliance with the mandatory outpatient treatment order and the minor's current condition, and any other relevant information referenced in § 16.1-345 and subsection A of § 16.1-345.2, the juvenile and domestic relations district court judge may make one of the following dispositions:
    1. Upon finding by clear and convincing evidence that the minor meets the criteria for involuntary admission and treatment specified in § 16.1-345, the judge shall order the minor's involuntary admission to a facility designated by the community services board for a period of treatment not to exceed 30 days;
    2. Upon finding that the minor continues to meet the criteria for mandatory outpatient treatment specified in subsection A of § 16.1-345.2, and that a continued period of mandatory outpatient treatment appears warranted, the judge may renew the order for mandatory outpatient treatment, making any necessary modifications that are acceptable to the community services board or treatment provider responsible for the minor's treatment. In determining the appropriateness of outpatient treatment, the court may consider the minor's material noncompliance with the previous mandatory treatment order; or
    3. Upon finding that neither of the above dispositions is appropriate, the judge may rescind the order for mandatory outpatient treatment.

      Upon entry of an order for involuntary inpatient admission, transportation shall be provided in accordance with § 16.1-345.

  5. For the purposes of this section, "juvenile and domestic relations district court judge" shall not include a special justice as authorized by § 37.2-803 . (2009, cc. 455, 555; 2010, cc. 778, 825; 2014, cc. 691, 761.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and in subsection A, substituted "16.1-341" for "16.1-340"; in subsection B, substituted "a qualified evaluator" for "an evaluator" and "return date for the civil show cause summons shall be set on a date prior to the review hearing scheduled pursuant to subsection A, and the examination of the minor shall be conducted immediately after the hearing thereon" for "minor shall remain in custody until a temporary detention order is issued or until the minor is released" and inserted "for the examination" near the end; in subsection C, substituted "16.1-340.1" for "16.1-340"; and in subsection D, inserted "referenced in § 16.1-345 and subsection A of § 16.1-345.2."

The 2014 amendments. - The 2014 amendment by c. 691, in subsection A, inserted "or day on which the court is lawfully closed" twice in the first sentence and made related changes; and in subsection B substituted "eight hours" for "four hours" at the end of the last sentence.

The 2014 amendment by c. 761, in subsection B, substituted "eight hours" for "four hours" at the end of the last sentence.

§ 16.1-345.5. Continuation of mandatory outpatient treatment order.

  1. At any time within 30 days prior to the expiration of a mandatory outpatient treatment order, the community services board that is required to monitor the minor's compliance with the order may file with the juvenile and domestic relations district court for the jurisdiction in which the minor resides a motion for review to continue the order for a period not to exceed 90 days.
  2. The court shall grant the motion for review and enter an appropriate order without further hearing if it is joined by (i) the minor's parents and the minor if he is 14 years of age or older, or (ii) the minor's parents if the minor is younger than 14 years of age. If the minor's parents and the minor, if necessary, do not join the motion, the court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 16.1-345.4.
  3. Upon receipt of the motion for review, the court shall appoint a qualified evaluator who shall personally examine the minor pursuant to § 16.1-342. The community services board required to monitor the minor's compliance with the mandatory outpatient treatment order shall provide a preadmission screening report as required in § 16.1-340.4.
  4. After observing the minor, reviewing the preadmission screening report, and considering the appointed qualified evaluator's report and any other relevant evidence referenced in § 16.1-345 and subsection A of § 16.1-345.2, the court may make one of the dispositions specified in subsection D of § 16.1-345.4. If the court finds that a continued period of mandatory outpatient treatment is warranted, it may continue the order for a period not to exceed 90 days. Any order of mandatory outpatient treatment that is in effect at the time a motion for review for the continuation of the order is filed shall remain in effect until the court enters a subsequent order in the case.
  5. For the purposes of this section, the "court" shall not include a special justice as authorized in § 37.2-803 . (2009, cc. 455, 555; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and added the last sentence of subsection C; and in subsection D, inserted "reviewing the preadmission screening report" and "referenced in § 16.1-345 and subsection A of § 16.1-345.2."

§ 16.1-345.6. Appeal of final order.

  1. The minor shall have the right to appeal any final order committing the minor or ordering the minor to mandatory outpatient treatment to the circuit court in the jurisdiction where the minor was committed, hospitalized pursuant to the commitment order, or ordered to mandatory outpatient treatment. Venue shall be in the circuit court having jurisdiction within the territory of the court that issued the final order. The circuit court may transfer the case upon a finding that another forum is more convenient. The appeal shall be heard de novo by the circuit court in accordance with the provisions set forth in this article. Any order of the circuit court shall not extend the period of commitment or mandatory outpatient treatment set forth in the order appealed from.
  2. Notice of an appeal shall be filed within 10 days from the date of the order. The appeal shall be given priority over all other pending matters before the circuit court and heard as soon as possible, notwithstanding § 19.2-241 regarding the time within which the court shall set criminal cases for trial. A petition for or the pendency of an appeal shall not suspend any order unless so ordered by the court, however a minor may be released after a petition for or during the pendency of an appeal pursuant to subsection B of § 16.1-346. The clerk of the court from which the appeal is taken shall immediately transmit the record to the clerk of the appellate court. The clerk of the circuit court shall provide written notification of the appeal to the person who initiated the petition under this article in accordance with procedures set forth in § 16.1-112.
  3. The juvenile and domestic relations district court shall appoint an attorney and a guardian ad litem to represent any minor desiring to appeal who is not already represented.

    (2010, cc. 778, 825.)

§ 16.1-346. Treatment plans; periodic review of status.

  1. Within 10 days of commitment ordered under § 16.1-345, the director of the facility to which the minor was committed shall ensure that an individualized plan of treatment has been prepared by the provider responsible for the minor's treatment and, if applicable, has been communicated to the parent. The minor shall be involved in the preparation of the plan to the maximum feasible extent consistent with his ability to understand and participate, and the minor's family shall be involved to the maximum extent consistent with the minor's treatment needs. The plan shall include a preliminary plan for placement and aftercare upon completion of inpatient treatment and shall include specific behavioral and emotional goals against which the success of treatment may be measured. A copy of the plan shall be provided to the minor, his parents, and, upon request, to his attorney and his guardian ad litem.
  2. A minor committed to inpatient treatment shall be discharged from the facility when he no longer meets the commitment criteria as determined by appropriate hospital medical staff review.

    (1990, c. 975; 1991, c. 159; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical and in subsection A, substituted "his parents, and, upon request, to his attorney and his guardian ad litem" for "and to, his parents" and made a minor stylistic change.

§ 16.1-346.1. Discharge plan.

Prior to discharge of any minor admitted to inpatient treatment, including a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court, a discharge plan shall be formulated, provided and explained to the minor, and copies thereof shall be sent (i) to the minor's parents or (ii) if the minor is in the custody of the local department of social services, to the department's director or the director's designee or (iii) to the minor's parents and (a) if the juvenile is to be housed in a detention home upon discharge, to the court in which the petition has been filed and the facility superintendent, or (b) if the minor is in custody of the local department of social services, to the department. A copy of the plan shall also be provided, upon request, to the minor's attorney and guardian ad litem. If the minor was admitted to a state facility, the discharge plan shall be contained in a uniform discharge document developed by the Department of Behavioral Health and Developmental Services. The plan shall, at a minimum, (i) specify the services required by the released minor in the community to meet his needs for treatment, housing, nutrition, physical care, and safety; (ii) specify any income subsidies for which the minor is eligible; (iii) identify all local and state agencies which will be involved in providing treatment and support to the minor; and (iv) specify services which would be appropriate for the minor's treatment and support in the community but which are currently unavailable. A minor in detention or shelter care prior to admission to inpatient treatment shall be returned to the detention home, shelter care, or other facility approved by the Department of Juvenile Justice within 24 hours by the sheriff serving the jurisdiction where the minor was detained upon release from the treating facility, unless the juvenile and domestic relations district court having jurisdiction over the case has provided written authorization for release of the minor, prior to the scheduled date of release.

(1991, c. 159; 1995, c. 304; 2005, cc. 346, 716; 2010, cc. 778, 825.)

The 2005 amendments. - The 2005 amendment by c. 346 inserted "including a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court" in the first sentence and added the last sentence.

The 2005 amendment by c. 716, effective October 1, 2005, substituted "discharge" for "predischarge" two times, "37.2-837" for "37.1-98.2," "minor" for "patient," and "his" for "the minor's" preceding "needs for treatment."

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and added the second sentence and substituted "contained in a uniform discharge document developed by the Department of Behavioral Health and Developmental Services" for "prepared and implemented in accordance with § 37.2-837 " and "shelter care, or other facility approved by the Department of Juvenile Justice within 24 hours by the sheriff serving the jurisdiction where the minor was detained" for "by appropriate law enforcement."

§ 16.1-347. Fees and expenses for qualified evaluators.

Every qualified evaluator appointed by the court to conduct an evaluation pursuant to this article who is not regularly employed by the Commonwealth shall be compensated for fees and expenses as provided in § 37.2-804 .

(1990, c. 975; 2010, cc. 778, 825.)

The 2010 amendments. - The 2010 amendments by cc. 778 and 825 are identical, and substituted "this article" for " § 16.1-342" and deleted the last sentence, which read: "The cost of an evaluation conducted pursuant to § 16.1-338 or § 16.1-339 shall be considered for all purposes a cost of treatment and shall be compensated as a professional fee billed by or on behalf of the qualified evaluator to the patient or any responsible third party payor."

§ 16.1-348. Availability of judge.

The chief judge of every juvenile and domestic relations district court shall establish and require that a judge be available seven days a week, 24 hours a day, for the purpose of performing the duties established by this article. Such judge shall have the authority to perform the duties established by this article.

(1990, c. 975; 2005, c. 716; 2007, cc. 500, 897.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, deleted "as defined in § 37.1-1 " preceding "be available" and substituted "24" for "twenty-four."

The 2007 amendments. - The 2007 amendments by cc. 500 and 897 are identical, and added the last sentence.

Article 17. Standby Guardianship.

§ 16.1-349. Definitions.

"Attending physician" means the physician who has primary responsibility for the treatment and care of a qualified parent.

"Designation" means a writing which (i) is voluntarily executed in conformance with the requirements of § 16.1-351 and signed by a parent and (ii) names a person to act as standby guardian.

"Determination of debilitation" means a written determination made by an attending physician that a qualified parent is chronically and substantially unable to care for a minor child as a result of a debilitating illness, disease or injury. Such a determination shall include the physician's medical opinion to a reasonable degree of medical certainty, regarding the nature, cause, extent and probable duration of the parent's debilitating condition.

"Determination of incompetence" means a written determination made by the attending physician that to a reasonable degree of medical certainty a qualified parent is chronically and substantially unable to understand the nature and consequences of decisions concerning the care of a minor child as a result of a mental or organic impairment and is consequently unable to care for the child. Such a determination shall include the physician's medical opinion, to a reasonable degree of medical certainty, regarding the nature, cause, extent and probable duration of the parent's incompetence.

"Parent" means a genetic or adoptive parent or parent determined in accordance with the standards set forth in § 20-49.1 or § 20-158 , and includes a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.

"Qualified parent" means a parent who has (i) been diagnosed, as evidenced in writing, by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease or illness from which, to a reasonable degree of medical probability, the patient cannot recover or (ii) reason to anticipate possible detention, incarceration, or deportation connected to an immigration action.

"Standby guardian" means a person who, in accordance with this article, is designated in writing or approved by the court to temporarily assume the duties of guardian of the person or guardian of the property, or both, of a minor child on behalf of or in conjunction with a qualified parent upon the occurrence of a triggering event. The term shall be so construed as to enable the parent to plan for the future care of a child, without terminating parental or legal rights, and to give the standby guardian the authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody and support of the minor child.

"Triggering event" means the event upon the occurrence of which the standby guardian may be authorized to act. The triggering event shall be specified in the court order or written designation and shall be the earlier of a determination of incompetence or the death of the qualified parent. However, in the case of a standby guardian judicially approved pursuant to § 16.1-350, the triggering event may also be specified as the qualified parent's written consent to the commencement of the standby guardian's authority. In the case of a standby guardian designated pursuant to § 16.1-351 or 16.1-352, the triggering event may also be specified as (i) a determination of debilitation of the qualified parent or evidence of the detention, incarceration, or deportation of the qualified parent connected to an immigration action or (ii) that parent's written consent to the commencement of the designated standby guardian's authority.

(1998, c. 829; 2021, Sp. Sess. I, c. 241.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 241, effective July 1, 2021, in the definition of "Qualified parent," inserted the clause (i) designation, and added clause (ii); in the definition of "Triggering event" inserted "or 16.1-352" and substituted "or evidence of the detention, incarceration, or deportation of the qualified parent connected to an immigration action or" for "and" at the end of clause (i); and made a stylistic change.

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

Research References. - Virginia Forms (Matthew Bender). No. 6-729. Notice of Petition for Court Approval of Standby Guardian.

§ 16.1-350. Petition for court approval of standby guardian.

  1. Upon petition of any person, the juvenile court of the jurisdiction in which a child resides may approve a person as standby guardian for a child of a qualified parent upon the occurrence of a specified triggering event. If requested in the petition, the court may also approve an alternate standby guardian identified by the petitioner, to act in the event that at any time after approval pursuant to this section the standby guardian is unable or unwilling to assume the responsibilities of the standby guardianship.
  2. The petition shall state:
    1. The name and address of the petitioner and his relationship to the child and the name and address of the child's qualified parent, and the name and address of any other parent of the child whose identity and whereabouts are known to the petitioner or can reasonably be ascertained;
    2. The name, address and birthdate of the child;
    3. The nature of the proposed triggering event, including when a qualified parent's consent would be effective in those cases where such consent is chosen as the triggering event;
    4. Whether a determination of incompetence or debilitation has been made and, if so, when and by whom;
    5. Whether there is a significant risk that the qualified parent will imminently become physically or mentally incapable of caring for the child or die as the result of a progressive chronic condition or illness, or be detained, incarcerated, or deported in connection with an immigration action; however, a petitioner shall not be required to submit documentation of a parent's medical or immigration status with the petition;
    6. The name and address of the person proposed as standby guardian and any alternate and whether the petition requests that such person be given authority as a guardian of the person or guardian of the property of the minor, or both;
    7. A statement of any known reasons as to why the child's other parent is not assuming or should not assume the responsibilities of a standby guardian;
    8. Whether there is any prior judicial history regarding custody of the child or any pending litigation regarding custody of the child; and
    9. The name and address of the attending physician.
  3. Upon the filing of a petition, notice of the filing shall promptly be given to each parent of the child whose identity and whereabouts are known to the petitioner. The court shall direct the issuance of summonses to the child, if the child is 12 or more years of age and the proposed standby guardian and alternate, if any, and such other persons as appear to the court to be proper or necessary parties to the proceedings including the child's parents, guardian, legal custodian or other person standing in loco parentis, if the identity and whereabouts of such persons are known. Service of the summons shall be made pursuant to § 16.1-264.

    An order approving the standby guardian shall not be entered without a hearing if there is another known parent, stepparents, adult siblings, or other adult related to the child by blood, marriage, or adoption who requests a hearing within 10 days of the date that notice of the filing was sent or if there is other litigation pending regarding custody of the child.

    Prior to any hearing on the petition, the court may appoint a discreet and competent attorney at law as guardian ad litem to represent the child pursuant to § 16.1-266.1. In the case of a petition filed by anyone other than a parent of the child, the court shall appoint a guardian ad litem. The qualified parent shall not be required to appear in court if the parent is medically unable to appear, except upon motion for good cause shown.

    (1998, c. 829; 2021, Sp. Sess. I, c. 241.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 241, effective July 1, 2021, in subdivision 5, inserted "or be detained, incarcerated, or deported in connection with an immigration action," deleted "medical" preceding "documentation" and substituted "or immigration status" for "status"; and made stylistic changes.

§ 16.1-351. Court order approving standby guardianship; authority; when effective.

Upon consideration of the factors set out in § 20-124.3 and finding that (i) the child's parent is a qualified parent and (ii) appointment of a standby guardian is in the best interest of the child, the court shall appoint a proper and suitable person as standby guardian and, if requested, a proper and suitable person as alternate standby guardian. However, when a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent unless the court finds that such consent cannot be given for medical reasons.

The order shall specify the triggering event and shall provide that the authority of the standby guardian is effective (a) upon receipt by the standby guardian of (1) a determination of incompetence of the parent, (2) a certificate of death of the parent, (3) evidence of the detention, incarceration, or deportation of the parent connected to an immigration action, or (4) the earlier of clause (1), (2), or (3) or (b) if so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified parent and filing of the consent with the court. The written consent shall be executed after the entry of the court order and signed by the qualified parent, or by another in his presence and on his behalf.

As soon as practicable after entry of the order, a copy shall be served on the standby guardian.

A standby guardian shall have the powers and duties of a guardian of the person and a guardian of the property of a minor, unless otherwise specified in the order.

The standby guardian shall file with the court, as soon as practicable but in no event later than 30 days following a parent's death, determination of incompetence, consent, or detention, incarceration, or deportation connected to an immigration action, a copy of the certificate of death, determination of incompetence, consent, or evidence of such detention, incarceration, or deportation of the qualified parent upon which his authority is based. Failure to file within the time specified shall be grounds for the court to rescind the authority of the standby guardian sua sponte or upon petition of any person but all acts undertaken by the standby guardian on behalf of and in the interests of the child shall be valid and enforceable.

(1998, c. 829; 2021, Sp. Sess. I, c. 241.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 241, effective July 1, 2021, substituted "(a) upon receipt by the standby guardian of (1) a determination of incompetence of the parent, (2) a certificate of death of the parent, (3) evidence of the detention, incarceration, or deportation of the parent connected to an immigration action, or (4) the earlier of clause (1), (2), or (3) or (b)" for "(i) upon receipt by the standby guardian of a determination of incompetence or a certificate of death or the earlier of either or (ii)" in the second paragraph; and rewrote the first sentence in the fifth paragraph, which formerly read: "The standby guardian shall file with the court, as soon as practicable but in no event later than thirty days following a parent's death, determination of incompetence or consent, a copy of the certificate of death, determination of incompetence or consent of the qualified parent upon which his authority is based."

§ 16.1-352. Written designation of a standby guardian by a parent; commencement of authority; court approval required.

  1. A parent may execute a written designation of a standby guardian at any time. The written designation shall state:
    1. The name, address and birthdate of the child affected;
    2. The triggering event; and
    3. The name and address of the person designated as standby guardian or alternate.

      The written designation shall be signed by the parent. Another adult may sign the written designation on behalf of the parent if the parent is physically unable to do so, provided the designation is signed at the express request of the parent and in the presence of the parent. The designated standby guardian or alternate may not sign on behalf of the parent. The signed designation shall be delivered to the standby guardian and any alternate named as soon as practicable.

  2. Following such delivery of the designation, the authority of a standby guardian to act for a qualified parent shall commence upon the occurrence of the specified triggering event and receipt by him of (i) a determination of incompetence; (ii) a certificate of death of the parent; (iii) evidence of the detention, incarceration, or deportation of the parent connected to an immigration action; or (iv) a determination of debilitation and the qualified parent's written consent to such commencement, signed by the parent or another on his behalf and at his direction as provided in subsection A for the designation.
  3. A standby guardian under a designation shall have the authority of a guardian of the person and a guardian of the property of the child, unless otherwise specified in the designation.
  4. A designated standby guardian or alternate shall file a petition for approval as standby guardian. The petition shall be filed as soon as practicable after the occurrence of the triggering event but in no event later than 30 days after the date of the commencement of his authority. The authority of the standby guardian shall cease upon his failure to so file, but shall recommence upon such filing. The petition shall be accompanied by a copy of the designation and any determinations of incapacity or debilitation or a certificate of death.

    The provisions of subsection C of § 16.1-350 shall apply to a petition filed pursuant to this section. The court shall enter an order approving the designated guardian as standby guardian upon finding that:

    1. The person was duly designated as standby guardian pursuant to this section and the designation has not been revoked;
    2. A determination of incompetence was made; a determination of debilitation was made and the parent consented to commencement of the standby guardian's authority; the parent has died as evidenced by a death certificate; or the parent has been detained, incarcerated, or deported in connection with an immigration action;
    3. The best interests of the child will be served by approval of the standby guardian; and
    4. If the petition is by an alternate, that the designated standby guardian is unwilling or unable to serve.

      (1998, c. 829; 2021, Sp. Sess. I, c. 241.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 241, effective July 1, 2021, in subsection B, inserted clause (iii) and redesignated former clause (iii) as clause (iv); in subdivision D 2, substituted "guardian's authority" for "guardians authority" and added "or the parent has been detained, incarcerated, or deported in connection with an immigration action" at the end; and made stylistic changes.

§ 16.1-353. Further proceedings to determine permanent guardianship, custody.

  1. If the triggering event was death of the qualified parent, within 90 days following the occurrence of the triggering event or, if later, commencement of the standby guardian's authority, the standby guardian shall (i) petition for appointment of a guardian for the child as otherwise provided by law or (ii) initiate other proceedings to determine custody of the child pursuant to Chapter 6.1 (§ 20-124.1 et seq.) of Title 20, or both.
  2. In all other cases a standby guardian shall promptly after occurrence of the triggering event initiate such proceedings to determine permanent custody, absent objection by the qualified parent.

    The petition shall be accompanied by:

    1. The court order approving or written designation of a standby guardian; and
    2. The attending physician's written determination of incompetence or debilitation; a verification of death; or evidence of the parent's detention, incarceration, or deportation in connection with an immigration action.

      (1998, c. 829; 2021, Sp. Sess. I, c. 241.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 241, effective July 1, 2021, added "or evidence of the parent's detention, incarceration, or deportation in connection with an immigration action"; and made stylistic changes.

§ 16.1-354. Revocation, refusal, termination of standby guardianship.

  1. The authority of a standby guardian approved by the court may be revoked by the qualified parent by his filing a notice of revocation with the court. The notice of revocation shall identify the standby guardian or alternate standby guardian to which the revocation will apply. A copy of the revocation shall also be delivered to the standby guardian whose authority is revoked and any alternate standby guardian who may then be authorized to act.

    At any time following his approval by the court, a standby guardian approved by the court may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the qualified parent and any alternate standby guardian who may then be authorized to act.

  2. When a written designation has been executed, but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing.

    A written designation may also be revoked by the execution of a subsequent inconsistent designation.

  3. When a standby guardian's authority is effective upon debilitation or incompetence of the qualified parent, the standby guardian's authority to act on behalf of the parent continues even though the parent is restored to health unless the qualified parent notifies the guardian and, if appropriate, the court, in writing, that the standby guardian's authority is revoked upon such restoration or otherwise.

    If at any time the court finds that the parent no longer meets the definition of "qualified parent," the court shall rescind its approval of the standby guardian.

    (1998, c. 829.)

§ 16.1-355. Review of standby guardianship.

A child's parent, stepparent, adult sibling or any adult related to the child by blood, marriage or adoption may petition the court which approved the standby guardian at any time following such approval and prior to any termination of the standby guardianship for review of whether continuation of the standby guardianship is in the best interests of the child. Notice of the filing of a petition shall promptly be given to the standby guardian, the child, if the child is twelve or more years of age, and each parent of the child whose identity and whereabouts are known or could reasonably be ascertained.

(1998, c. 829.)

Article 18. Juvenile Competency.

§ 16.1-356. Raising question of competency to stand trial; evaluation and determination of competency.

  1. If, at any time after the attorney for the juvenile has been retained or appointed pursuant to a delinquency proceeding and before the end of trial, the court finds, sua sponte or upon hearing evidence or representations of counsel for the juvenile or the attorney for the Commonwealth, that there is probable cause to believe that the juvenile lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist, clinical psychologist, licensed professional counselor, licensed clinical social worker, or licensed marriage and family therapist, who is qualified by training and experience in the forensic evaluation of juveniles.

    The Commissioner of Behavioral Health and Developmental Services shall approve the training and qualifications for individuals authorized to conduct juvenile competency evaluations and provide restoration services to juveniles pursuant to this article. The Commissioner shall also provide all juvenile courts with a list of guidelines for the court to use in the determination of qualifying individuals as experts in matters relating to juvenile competency and restoration.

  2. The evaluation shall be performed on an outpatient basis at a community services board or behavioral health authority, juvenile detention home, or juvenile justice facility unless the court specifically finds that (i) the results of the outpatient competency evaluation indicate that hospitalization of the juvenile for evaluation of competency is necessary or (ii) the juvenile is currently hospitalized in a psychiatric hospital. If one of these findings is made, the court, under authority of this subsection, may order the juvenile sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for the evaluation of juveniles against whom a delinquency petition has been filed.
  3. The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or petition; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the juvenile, and the judge ordering the evaluation; and (iii) information about the alleged offense. The court shall require the attorney for the juvenile to provide to the evaluator only the psychiatric records and other information that is deemed relevant to the evaluation of competency. The moving party shall provide the evaluator a summary of the reasons for the evaluation request. All information required by this subsection shall be provided to the evaluator within 96 hours of the issuance of the court order requiring the evaluation and when applicable, shall be submitted prior to admission to the facility providing the inpatient evaluation. If the 96-hour period expires on a Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the next day which is not a Saturday, Sunday, or legal holiday. The appointed evaluator or the director of the community services board, behavioral health authority, or hospital shall acknowledge receipt of the court order to the clerk of the court on a form developed by the Office of the Executive Secretary of the Supreme Court of Virginia as soon as practicable but no later than the close of business on the next business day following receipt of the court order. If the appointed evaluator or the director of the community services board, behavioral health authority, hospital, or private evaluator is unable to conduct the evaluation, he shall inform the court on the acknowledgement form.
  4. If the juvenile is hospitalized under the provisions of subsection B, the juvenile shall be hospitalized for such time as the director of the hospital deems necessary to perform an adequate evaluation of the juvenile's competency, but not to exceed 10 days from the date of admission to the hospital. All evaluations shall be completed and the report filed with the court within 14 days of receipt by the evaluator of all information required under subsection C.
  5. Upon completion of the evaluation, the evaluator shall promptly and in no event exceeding 14 days after receipt of all required information submit the report in writing to the court and the attorneys of record concerning (i) the juvenile's capacity to understand the proceedings against him; (ii) his ability to assist his attorney; and (iii) his need for services in the event he is found incompetent, including a description of the suggested necessary services and least restrictive setting to assist the juvenile in restoration to competency. No statements of the juvenile relating to the alleged offense shall be included in the report.
  6. After receiving the report described in subsection E, the court shall promptly determine whether the juvenile is competent to stand trial for adjudication or disposition. A hearing on the juvenile's competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the juvenile or when required under § 16.1-357 B. If a hearing is held, the party alleging that the juvenile is incompetent shall bear the burden of proving by a preponderance of the evidence the juvenile's incompetency. The juvenile shall have the right to notice of the hearing and the right to personally participate in and introduce evidence at the hearing.

    If the juvenile is otherwise able to understand the charges against him and assist in his defense, a finding of incompetency shall not be made based solely on any or all of the following: (i) the juvenile's age or developmental factors, (ii) the juvenile's claim to be unable to remember the time period surrounding the alleged offense, or (iii) the fact that the juvenile is under the influence of medication.

    (1999, cc. 958, 997; 2000, c. 337; 2005, c. 110; 2009, cc. 813, 840; 2021, Sp. Sess. I, c. 311.)

The 2000 amendments. - The 2000 amendment by c. 337 inserted "licensed professional counselor" near the end of subsection A.

The 2005 amendments. - The 2005 amendment by c. 110, in the first paragraph of subsection A, deleted "or" following "counselor" and inserted "or licensed marriage and family therapist"; in subsection C, substituted "96 hours" for "ninety-six hours" in the fourth and fifth sentences and substituted "96-hour" for "ninety-six hour" in the fifth sentence; substituted "14 days" for "fourteen days" in subsections D and E; substituted "10 days" for "ten days" in the first sentence of subsection D; and made a minor punctuation change.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the second paragraph of subsection A and in subsection B.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 311, effective July 1, 2021, in subsection C, added the last two sentences.

Law review. - For a review of Virginia legal issues involving children, see 33 U. Rich. L. Rev. 1001 (1999).

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

Research References. - Virginia Forms (Matthew Bender). No. 9-2022. Order for Involuntary Commitment for Inpatient Treatment - Juvenile.

CASE NOTES

Licensed professional counselor qualified to testify as to post-traumatic stress disorder. - Appellate court's judgment that affirmed defendant's convictions for sex offenses was affirmed; the trial court did not err, and the appellate court did not err in affirming, the decision that permitted the licensed professional counselor to testify about the alleged victim's post-traumatic stress disorder, as Virginia law authorized licensed professional counselors to diagnose that disorder and the record showed that the licensed professional counselor possessed the requisite skill, knowledge, and experience to testify about it. Fitzgerald v. Commonwealth, 273 Va. 596 , 643 S.E.2d 162, 2007 Va. LEXIS 63 (2007).

§ 16.1-357. Disposition when juvenile found incompetent.

  1. Upon finding pursuant to subsection F of § 16.1-356 that the juvenile is incompetent, the court shall order that the juvenile receive services to restore his competency in either a nonsecure community setting or a secure facility as defined in § 16.1-228. A copy of the order shall be forwarded to the Commissioner of Behavioral Health and Developmental Services, who shall arrange for the provision of restoration services in a manner consistent with the order. Any report submitted pursuant to subsection E of § 16.1-356 shall be made available to the agent providing restoration.
  2. If the court finds the juvenile incompetent but restorable to competency in the foreseeable future, it shall order restoration services for up to three months. At the end of three months from the date restoration is ordered under subsection A of this section, if the juvenile remains incompetent in the opinion of the agent providing restoration, the agent shall so notify the court and make recommendations concerning disposition of the juvenile. The court shall hold a hearing according to the procedures specified in subsection F of § 16.1-356 and, if it finds the juvenile unrestorably incompetent, shall order one of the dispositions pursuant to § 16.1-358. If the court finds the juvenile incompetent but restorable to competency, it may order continued restoration services for additional three-month periods, provided a hearing pursuant to subsection F of § 16.1-356 is held at the completion of each such period and the juvenile continues to be incompetent but restorable to competency in the foreseeable future.
  3. If, at any time after the juvenile is ordered to undergo services under subsection A of this section, the agent providing restoration believes the juvenile's competency is restored, the agent shall immediately send a report to the court as prescribed in subsection E of § 16.1-356. The court shall make a ruling on the juvenile's competency according to the procedures specified in subsection F of § 16.1-356.

    (1999, cc. 958, 997; 2009, cc. 813, 840.)

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the second sentence of subsection A.

§ 16.1-358. Disposition of the unrestorably incompetent juvenile.

If, at any time after the juvenile is ordered to undergo services pursuant to subsection A of § 16.1-357, the agent providing restoration concludes that the juvenile is likely to remain incompetent for the foreseeable future, he shall send a report to the court so stating. The report shall also indicate whether, in the agent's opinion, the juvenile should be (i) committed pursuant to Article 16 (§ 16.1-335 et seq.) of this chapter or, if the juvenile has reached the age of eighteen years at the time of the competency determination, pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (ii) certified pursuant to § 37.2-806 , (iii) provided other services by the court, or (iv) released. Upon receipt of the report, the court shall make a competency determination according to the procedures specified in subsection F of § 16.1-356. If the court finds that the juvenile is incompetent and is likely to remain so for the foreseeable future, it shall order that the juvenile (i) be committed pursuant to Article 16 (§ 16.1-335 et seq.) of this chapter or, if the juvenile has reached the age of eighteen years at the time of the competency determination, pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (ii) be certified pursuant to § 37.2-806 , (iii) have a child in need of services petition filed on his behalf pursuant to § 16.1-260 D, or (iv) be released. If the court finds the juvenile incompetent but restorable to competency in the foreseeable future, it may order restoration services continued until three months have elapsed from the date of the provision of restoration ordered under subsection A of § 16.1-357.

If not dismissed without prejudice at an earlier time, charges against an unrestorably incompetent juvenile shall be dismissed in compliance with the time frames as follows: in the case of a charge which would be a misdemeanor, one year from the date of the juvenile's arrest for such charge; and in the case of a charge which would be a felony, three years from the date of the juvenile's arrest for such charges.

(1999, cc. 958, 997; 2000, c. 216.)

Editor's note. - At the direction of the Virginia Code Commission, "Article 5 ( § 37.2-814 et seq.) of Chapter 8 of Title 37.2" was substituted for " § 37.1-67.01 or § 37.1-67.1" twice in the first paragraph to conform to Acts 2005, c. 716.

The 2000 amendments. - The 2000 amendment by c. 216 substituted the language beginning "should be (i) committed pursuant" and ending "by the court, or (iv) released" for "should be committed pursuant to Article 16 ( § 16.1-335 et seq.) of this chapter, certified pursuant to § 37.1-65.1, provided other services by the court, or released" in the second sentence of the first paragraph, and inserted the language beginning "or if the juvenile" and ending "through 37.1-70" in the fourth sentence of the first paragraph.

§ 16.1-359. Litigating certain issues when the juvenile is incompetent.

A finding of incompetency does not preclude the adjudication, at any time before trial, of a motion objecting to the sufficiency of the petition, nor does it preclude the adjudication of similar legal objections which, in the court's opinion, may be undertaken without the personal participation of the juvenile.

(1999, cc. 958, 997.)

§ 16.1-360. Disclosure by juvenile during evaluation or restoration; use at guilt phase of trial adjudication or disposition hearing.

No statement or disclosure by the juvenile concerning the alleged offense made during a competency evaluation ordered pursuant to § 16.1-356, or services ordered pursuant to § 16.1-357 may be used against the juvenile at the adjudication or disposition hearings as evidence or as a basis for such evidence.

(1999, cc. 958, 997.)

§ 16.1-361. Compensation of experts.

Each psychiatrist, clinical psychologist, licensed clinical social worker, licensed professional counselor, licensed marriage and family therapist, or other expert appointed by the court to render professional service pursuant to § 16.1-356, shall receive a reasonable fee for such service. With the exception of services provided by state hospitals or training centers, the fee shall be determined in each instance by the court that appointed the expert, in accordance with guidelines established by the Supreme Court after consultation with the Department of Behavioral Health and Developmental Services. If any such expert is required to appear as a witness in any hearing held pursuant to § 16.1-356, he shall receive mileage and a fee of $100 for each day during which he is required to serve. An itemized account of expenses, duly sworn to, must be presented to the court, and when allowed shall be certified to the Supreme Court for payment out of the state treasury, and be charged against the appropriations made to pay criminal charges. Allowance for the fee and for the per diem authorized shall also be made by order of the court, duly certified to the Supreme Court for payment out of the appropriation to pay criminal charges.

(1999, cc. 958, 997; 2000, c. 337; 2005, c. 110; 2009, cc. 813, 840; 2012, cc. 476, 507.)

The 2000 amendments. - The 2000 amendment by c. 337 inserted "licensed professional counselor" in the first sentence.

The 2005 amendments. - The 2005 amendment by c. 110 inserted "licensed marriage and family therapist" in the first sentence.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" at the end of the second sentence.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "state hospitals or training centers" for "state mental health or mental retardation facilities" in the second sentence.