Untimely appeal in CHINS case

Where an infant child’s guardian ad li­tem petitioned to court to have the child declared a “child in need of services” (CHINS), the JDR court’s order transfer­ring custody of the child to the DSS was the final order in the case, even though the order set a date for a foster care re­view order and provided for ongoing ser­vices.

As a result, the circuit court correctly dismissed appellants’ appeal as untime­ly because it was filed more than 10 days after the juvenile and domestic relations district court’s order transferring custody to the Department of Social Services.

Overview

The child’s guardian ad litem filed a motion under the CHINS statute to put the Prince William DDS on notice “on notice of a possible transfer of custody of appellants’ minor child. The JDR court granted the motion to put DSS on notice, and it conducted a hearing on the custody issue.

“On September 20, 2018, following the hearing, the JDR court entered an order (the ‘September 20, 2018 order’) transfer­ring custody of the minor child to DSS pursuant to subsection 6 of the CHINS statute. The September 20, 2018 order provided that certain services set out in the original CHINS order would contin­ue.

“Additionally, the order set a foster care review hearing for November 15, 2018. DSS submitted a foster care plan as required by Code § 16.2-281. Following the November 15, 2018 hearing, the JDR court entered an order approving the fos­ter care plan. The order was a form order titled ‘Dispositional Order for Underlying Petition, Foster Care Plan.’

“The order identified the underlying petition as the CHINS case and included the CHINS case number. It also listed a new case number for the foster care plan.

“On November 26, 2018, appellants filed a notice of appeal to the circuit court appealing both the CHINS issue and the initial foster care plan. The minor child’s counsel filed a motion for summary judg­ment to dismiss the appeal. The guardian ad litem filed a separate motion to dis­miss the CHINS appeal.

“Both motions argued that the appeal in the CHINS case was untimely because the September 20, 2018 order was final for purposes of appeal and the notice of appeal was not filed within ten days of that order as required. Appellants ar­gued that the November 15, 2018 order approving the foster care plan was the final order for both issues, and thus their notice of appeal was timely filed.

“The circuit court concluded that the September 20, 2018 order was final for purposes of appeal of the CHINS matter. Thus, appellants’ appeal was untimely and the circuit court was without juris­diction over the CHINS case. The circuit court dismissed the portion of the appeal relating to the CHINS issue. Appellants now appeal to this Court.”

Analysis

“We conclude that the September 20, 2018 order was a final order for purposes of appealing the CHINS case. The origi­nal petition asked for a CHINS adjudica­tion and for services to be provided to the minor child. The trial court granted those requests.

“Though there were a number of pre­vious dispositional orders in the CHINS case and services were ongoing, the Sep­tember 20, 2018 order made a final dis­position when it transferred custody of the child to DSS. This was the paramount event in the CHINS case.

“Unlike in other statutes, such as Code § 16.1-278.2, the CHINS statute, and more specifically Code § 16.1-278.4(6), the provision under which custody was transferred, does not require further re­view or action by the trial court.

“Consequently, the September 20, 2018 order ‘dispose[d] of the whole subject’ and gave ‘all the relief contemplated.’ … Al­though there was a subsequent hearing to approve the foster care plan, it was conducted under a different statute and a different case number, and it was not part of the underlying CHINS case.

“Thus, the September 20, 2018 order was final with respect to the CHINS pe­tition. We limit our holding to the specific facts of this case.”

Affirmed.

Brown v. Prince William County Dep’t of Social Services, Record No. 0528-19-4, Jan. 14, 2020. CAV (Atlee) ) from Prince William Cir. Ct. (Smith). Craig A. Brown for appellant, James E. Meletis for appel­lee, Lori V. Battistoni, Guardian ad litem for the infant child. VLW 020-7-006, 6 pp. Unpublished.