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Failure to raise mootness dooms custody ruling challenge

Although a guardian ad litem challenged the lower court’s dismissal of a case involving protective orders for three minor children before he could present evidence affecting the father’s attempts to gain custody, he did not raise the issue of mootness on appeal. That failure resulted in a waiver of error and the trial court’s decision was affirmed.

Background

On Jan. 23, 2018, the Alexandria Department of Community and Human Services, or ADCHS, filed petitions requesting preliminary protective orders for the three minor children of father and mother. That same day the Juvenile and Domestic Relations District Court, or JDR court, entered emergency removal orders and appointed Douglas Steinberg guardian ad litem for all three children. On April 9, 2018, the JDR court entered dispositional orders awarding physical custody to the children’s maternal aunt, who lived in Georgia.

Father timely appealed the dispositional orders to the circuit court, which appointed Steinberg to again serve as guardian ad litem for all three children. The circuit court set the matter for trial on Oct. 15, 2018. On that day, father noted that ADCHS declined to present evidence to meet its burden of proof related to the only pleading before the court—ADCHS’s petition alleging abuse and neglect.

Father also contended the issue was moot. He argued, uncontested and without objection, that the children had already been living with their maternal aunt for more than six months, that a custody order dated July 27, 2018, granted the aunt sole physical and legal custody of the children, that this arrangement was already adjudicated as being in the best interests of the children, that the protective orders were still in place, that he lives in a different state than the children and that no abuse or neglect had reoccurred. Thus, father argued, because the risk of abuse and neglect to the children has been remedied, the matter presently before the circuit court was moot.

ADCHS explained to the circuit court that it did not oppose father’s motions to dismiss and did not intend to present any evidence. Likewise, counsel for the mother did not oppose father’s motions to dismiss.

Steinberg objected to the motions to dismiss. He argued that a finding of abuse and neglect might deter future attempts by father to obtain custody of the children, and therefore the matter was not moot. Steinberg stressed that he was ready to present witnesses and proceed with the case. The circuit court dismissed the matter with prejudice.

Steinberg filed an appeal to this court, in which he argues the circuit court erred when it refused to allow him “to put on any independent evidence regarding the alleged abuse and neglect allegations at trial” and erred in granting father’s “motion to dismiss due to the fact that [ADCHS] stated it would not present any evidence for its case at trial.”

Analysis

We affirm the judgment of the circuit court. The circuit court’s order clearly references both father’s initial motion to dismiss on the basis that ADCHS would not be presenting evidence and his supplemental motion to dismiss on the basis of mootness.

Steinberg’s only assigned error, however, is to the court’s granting of the motion to dismiss after ADCHS declined to present evidence even though Steinberg was ready to proceed. Although Steinberg argued the issue of mootness before the trial court, he did not raise that issue on appeal.

Therefore, Steinberg’s failure to address the issue of mootness “results in a waiver of any claim of error with respect to the court’s decision on that issue.” Because Steinberg left the dismissal on the grounds of mootness uncontested, and the basis of mootness, alone, “provides a sufficient legal foundation for the [circuit court’s] ruling,” this court must affirm the judgment of the circuit court.

Affirmed.

Steinberg v. Befekadu, Record No. 1814-18-4, Aug. 13, 2019. CAV (Malveaux) from Alexandria Cir. Ct. (Dawkins). Douglas A. Steinberg for the three minor children, Kevin L. Wiggs for Appellee Nurelen Befekadu, C. Louise Ball for Appellee Melissa Befekadu, Joanna Anderson and Meghan S. Roberts for Appellee Alexandria Department of Community and Human Services. VLW No. 019-7-144, 6 pp. Unpublished.