Baker v. Com., Record No. 1436-97-4.

Docket NºRecord No. 1436-97-4.
Citation28 Va. App. 306, 504 S.E.2d 394
Case DateSeptember 15, 1998
CourtCourt of Appeals of Virginia

Clifford Y. Rose (Rose & Wall, P.C., on brief), Fredericksburg, for appellant.

Lisa R. McKeel, Assistant Attorney General (Mark L. Earley, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, J., and DUFF, Senior Judge.

BENTON, Judge.

Jeramie Michael Baker, a juvenile, was transferred to the circuit court for trial as an adult and was convicted by a jury of attempted robbery in violation of Code § 18.2-58 and unlawful wounding in violation of Code § 18.2-51. On appeal, Baker contends the circuit court lacked jurisdiction to try him as an adult because the juvenile and domestic relations district court did not comply with the mandatory notice requirements of Code §§ 16.1-263 and 16.1-264 concerning the initiation of proceedings against a juvenile. He argues that the juvenile court's failure to provide service of process upon his biological father violated the mandatory requirement of Code § 16.1-263 requiring service of summonses to the "parents" of the juvenile. We agree.


On March 25, 1996, the Commonwealth filed two petitions in the juvenile and domestic relations district court charging Baker with attempted robbery and malicious wounding. The petitions listed Baker's mother's name and address. On the line for Baker's father's name and address, the petitions read "UK." A police officer served the petitions on Baker and his mother and arrested Baker. On the line on the back of the detention order which read "Parents notified on _______," the officer wrote the date "3/25/96."

A month later, a judge of the juvenile court held a transfer hearing pursuant to Code § 16.1-269.1. The transfer report prepared by the Department of Youth and Family Services listed Donald Michael Baker as Baker's father, noted the father's address as "Unknown," and supplied no information in the spaces provided for the father's phone number, occupation, or date of birth. "In describing his relationship with his biological father" in a substance abuse evaluation, Baker stated "`I don't have one.'" However, a psychological evaluation noted Baker's recent contact with his biological father.

The judge found probable cause to believe Baker had committed the charged offenses, see Code § 16.1-269.1(A)(2), and granted Baker's motion for a continuance. At the continued transfer hearing, the judge found that Baker was "not a proper person to remain within the jurisdiction of the Juvenile Court" and transferred Baker to the circuit court to be tried as an adult. See Code § 16.1-269.1(A)(4).

Prior to the indictment, Baker filed a motion to dismiss the charges or remand the case to juvenile court and alleged that the juvenile court lacked jurisdiction to transfer the case to the circuit court because the juvenile court failed to comply with the notice requirements of Code §§ 16.1-263 and 16.1-264. The circuit court judge overruled the motion, finding "that lack of notice to ... the biological father, whose address is unknown, who would have to be proceeded against by order of publication, does not deprive the Juvenile and Domestic Relations Court of jurisdiction."

A grand jury later indicted Baker on the transferred offenses. At the trial, a jury convicted Baker of attempted robbery and the lesser offense of unlawful wounding.


Our juvenile statutes reflect "society's special concern for children," Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and "provide judicial procedures through which the provisions of th[ese] law[s] are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other rights are recognized and enforced." Code § 16.1-227(2). At a transfer hearing, the juvenile judge answers the "`critically important' question whether a child will be deprived of the special protections and provisions" of the juvenile court system and determines "vitally important statutory rights of the juvenile." Kent, 383 U.S. at 553, 556, 86 S.Ct. 1045. Therefore, the procedures for transfer must contain "procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirements of" notice to the proper and necessary parties. Id. at 553, 86 S.Ct. 1045; see In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)

. "[T]he requirement that the parents of [a juvenile] defendant charged with a crime have notification of the time and place of his [or her] trial and an opportunity to be present has remained constant." Jones v. Commonwealth, 213 Va. 425, 428, 192 S.E.2d 775, 777 (1972).

In Karim v. Commonwealth, 22 Va.App. 767, 473 S.E.2d 103 (1996) (en banc), we held that the provisions of Code §§ 16.1-263 and 16.1-264, "relating to procedures for instituting proceedings against juveniles, are mandatory and jurisdictional," and the failure to "strictly follow" these notice procedures denies a juvenile defendant "a substantive right and the constitutional guarantee of due process." 22 Va.App. at 779, 473 S.E.2d at 108-09. In particular, Code § 16.1-263 provides in pertinent part as follows:

A. After a petition is filed, the court shall direct the issuance of summonses, one directed to the juvenile, if the juvenile is twelve or more years of age, and another to the parents, guardian, legal custodian or other person standing in loco parentis, and such other persons as appear to the court to be proper or necessary parties to the proceedings. The summons shall require them to appear personally before the court at the time fixed to answer or testify as to the allegations of the petition. Where the custodian is summoned and such person is not the parent of the juvenile in question, the parent shall also be served with a summons. The court may direct that other proper or necessary parties to the proceedings be notified of the pendency of the case, the charge and the time and place for the hearing.
B. The summons shall advise the parties of their right to counsel as provided in § 16.1-266. A copy of the petition shall accompany each summons for the initial proceedings. The summons shall include notice that in the event that the juvenile is committed to the Department or to a secure local facility, the parent or other person legally obligated to care for and support the juvenile may be required to pay a reasonable sum for support and treatment of the juvenile pursuant to § 16.1-290. Notice of subsequent proceedings shall be provided to all parties in interest. In all cases where a party is represented by counsel and counsel has been provided with a copy of the petition and due notice as to time, date and place of the hearing, such action shall be deemed due notice to such party, unless such counsel has notified the court that he no longer represents such party.

* * * * * *

E. No such summons or notification shall be required if the judge shall certify on the record that the identity of a parent or guardian is not reasonably ascertainable. An affidavit of the mother that the identity of the father is not reasonably ascertainable shall be sufficient evidence of this fact, provided there is no other evidence before the court which would refute such an affidavit.1

Code § 16.1-263 (emphasis added). In addition, Code § 16.1-264(A) provides in pertinent part as follows:

If after reasonable effort a party other than the person who is the subject of the petition cannot be found or his post-office address cannot be ascertained, whether he is within or without the Commonwealth, the court may order service of the summons upon him by publication in accordance with the provisions of §§ 8.01-316 and 8.01-317.

A plain reading of Code §§ 16.1-263 and 16.1-264 manifests legislative intent that both parents be notified and dispenses with this requirement only when the trial judge has certified on the record that the identity of a parent is not reasonably ascertainable. The trial judge made no such certification on this record. Indeed, the record contains no evidence that any attempt was made by the trial judge or the Commonwealth to ascertain the address of the biological father. In fact, at the hearing on Baker's motion to dismiss or remand back to the juvenile court, the Commonwealth "conceded that there was no attempt to give the [biological father] notice."

At the least, the Commonwealth was required to make a reasonable inquiry as to the address of Baker's biological father, and, if the address could not be ascertained "[a]fter reasonable effort," to effect service of the summons by publication. See Code § 16.1-264. Cf. Unknown Father of Baby Girl Janet v. Division of Social Services, 15 Va.App. 110, 116, 422 S.E.2d 407, 410-11 (1992)

(noting that where "the mother's testimony fails to suggest even a clue as to the father's identity, his whereabouts, or that a reasonable inquiry or search would successfully identify and locate him," the trial judge properly certified on the record that father's identity was "not reasonably ascertainable"). We disagree with the Commonwealth's assertion, made at oral argument, that the time requirements of an order of publication "in accordance with the provisions of [Code] §§ 8.01-316 and 8.01-317," see Code § 16.1-264, cannot be reconciled with the twenty-one day time limitation specified in Code § 16.1-277.1. We note that the twenty-one day period in Code § 16.1-277.1(A) is not absolute because it may be enlarged, when appropriate, by the trial judge pursuant to other provisions of the statute. See Code § 16.1-277.1(B) (providing for a period of 120 days under specified circumstances) and Code § 16.1-277.1(D) (stating that "[t]he time limitations provided for in this section may be extended by the...

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