Citizen Potawatomi Nation v. Dinwiddie Dep't of Soc. Servs.
| Decision Date | 10 September 2013 |
| Docket Number | Record No. 1726-12-2,Record No. 1725-12-2,Record No. 1724-12-2,Record No. 1713-12-2 |
| Court | Virginia Court of Appeals |
| Parties | CITIZEN POTAWATOMI NATION v. DINWIDDIE DEPARTMENT OF SOCIAL SERVICES |
UNPUBLISHED
Present: Judges Elder, Petty and McCullough
Argued at Richmond, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Lawrence D. Diehl (Ann Brakke Campfield; Brandy M. Poss; Barnes & Diehl, P.C., on briefs), for appellant.
Joan M. O'Donnell for appellee.
Sherry L. Gill (Jacobs, Caudill & Gill, on brief), Guardian ad litem for the infant children.
This appeal involves the application of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2012) ("ICWA"), to proceedings brought to terminate the parental rights of an Indian parent. Citizen Potawatomi Nation ("Nation"), a federally recognized Native American Indian Tribe, appeals from an order of the Circuit Court of Dinwiddie County ("circuit court") denying its motions to transfer the termination proceedings1 to the Citizen Potawatomi Nation District Court, Juvenile Division (the "tribal court"). On appeal, the Nation assigns four errors to the circuit court's ruling. On brief, the Dinwiddie Department of Social Services ("DSS") argues that this Court does not have jurisdiction to hear this appeal because the circuit court's order denying the Nation's motion to transfer was not a final order. We agree with DSS. The order from which the Nation appealed is neither a final order nor an appealable interlocutory order; therefore, we dismiss the appeal.
"On appeal, we view the evidence in the light most favorable to . . . the party prevailing below, 'and grant all reasonable inferences fairly deducible therefrom.'" Johnson v. Johnson, 56 Va. App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)).
In February 2009, Renee Bagley Nunnally ("mother") gave birth to twins, R. and T. ("twins"). The father of the twins is Timothy Nunnally ("father"). Mother is an enrolled member of the Nation, and the circuit court found that the twins are members, or eligible to become members, of the Nation. See 25 U.S.C. § 1903(4).
As a result of allegations of abuse and neglect, the twins' guardian ad litem ("GAL") filed petitions in the Juvenile and Domestic Relations District Court for Dinwiddie County("JDR court") alleging that the twins were children in need of services. The JDR court subsequently transferred custody of the twins to DSS. While custody proceedings were pending in the JDR court, DSS notified the Nation that it was pursuing termination of parental rights. The Nation filed a motion to intervene2 and a motion to transfer3 the proceedings to the tribal court. The JDR court denied the motion to transfer but granted the motion to intervene. On October 14, 2011, the JDR court denied DSS's petition to terminate parental rights. DSS and the GAL appealed to the circuit court.
In the circuit court, the Nation again filed a notice of intervention and a motion to transfer the case to the tribal court. The circuit court heard evidence on January 9, 2012; January 30, 2012; June 4, 2012; and September 11, 2012. At the end of the January 9, 2012 hearing, the circuit court denied the Nation's motion to transfer. But the circuit court continued to hear evidence on the issue in the subsequent hearings. Ultimately, on August 27, 2012, the circuit court entered a written order denying the motion to transfer and continued the case for further proceedings on the issue of termination pursuant to ICWA and Virginia Code § 16.1-283. On September 26, 2012, the Nation filed a notice of appeal. Following the denial of the motions to transfer, and subsequent tothe Nation's notice of appeal, the circuit court held hearings on DSS's termination of parental rights petition. The Nation participated in these hearings as interveners. On October 2, 2012, the circuit court entered orders for the involuntary termination of the parents' parental rights.4
DSS argues on brief that we do not have jurisdiction to hear this appeal because the circuit court's August 27 order denying the Nation's motion to transfer was not a final order. We agree.
"'The Court of Appeals is a court of limited jurisdiction.'" de Haan v. de Haan, 54 Va. App. 428, 436, 680 S.E.2d 297, 301 (2009) (quoting Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996)). Our jurisdiction is specified by statute. Id. "This Court has appellate jurisdiction over final decrees of a circuit court in domestic relations matters arising under Titles 16.1 or 20, and any interlocutory decree or order involving the granting, dissolving, or denying of an injunction or 'adjudicating the principles of a cause.'" Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551 (1999) (quoting and citing Code § 17.1-405(3)(f), (4)). "Generally, a final order 'is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.'" Prizzia v. Prizzia, 45 Va. App. 280, 285, 610 S.E.2d 326, 329 (2005) (quoting James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 (2002)). However, "[a]n order that 'retains jurisdiction to reconsider the judgment or to address other matters still pending' is not a final order." Id. (quoting Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 561, 561 S.E.2d 734, 737 (2002)). Therefore, "a 'decree which leaves anything in the cause to bedone by the court is interlocutory,' rather than final, in nature." Id. (quoting Dearing v. Walter, 175 Va. 555, 561, 9 S.E.2d 336, 338 (1940)).5
The ultimate issue that the circuit court had to resolve in this case was whether the parents' parental rights should be terminated. Before it could reach this issue, however, the circuit court had to determine which court had jurisdiction—it or the tribal court. The motion to transfer was merely a procedural step that the circuit court had to navigate along the road to deciding whether the parents' parental rights should be terminated. It was not, contrary to the Nation's argument, the circuit court's final destination in adjudicating the merits of the case.
In its notice of appeal, the Nation appealed "from the Order Denying Motions to Transfer of [the circuit court] entered on August 27, 2012[,] which was a final order as it relates to the rights of the [Nation]." Contrary to the Nation's contention, the August 27 order denying the motions to transfer was not a final order.6 The August 27 order did not "'dispose[] of the whole subject, give[] all the relief that is contemplated, and leave[] nothing to be done by the court.'" Wells, 29 Va. App. at 85-86, 509 S.E.2d at 551 (quoting Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 712, 713 (1994)). Instead, the order explicitly states that "[t]his cause is continued for further proceedings consistent with this Order." Thus, the circuit court retained jurisdiction of the case to consider other matters still pending before it. The "further proceedings" contemplated by the August 27 order were the termination of parental rightsproceedings. Accordingly, because the August 27 order failed to resolve the whole subject of DSS's cause—the termination of parental rights—we find that the August 27 order was not a final order.7
The August 27 order clearly was an interlocutory order. But it is not an appealable interlocutory order because it did not adjudicate the principles of the cause.
An interlocutory decree adjudicates the principles of a cause when "the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit."
Whitaker v. Day, 32 Va. App. 737, 743, 530 S.E.2d 924, 927 (2000) (quoting Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)). "An interlocutory decree that adjudicates the principles of a cause is one which must 'determine the rights of the parties' and 'would of necessity affect the final order in the case.'" Wells, 29 Va. App. at 86, 509 S.E.2d at 551 (quoting Erikson, 19 Va. App. at 391, 451 S.E.2d at 713). Further, "'[t]he mere possibility thatan interlocutory decree may affect the final decision in the trial does not necessitate an immediate appeal.'" Id. (quoting Erikson, 19 Va. App. at 391, 451 S.E.2d at 713).
Finally, an interlocutory order that adjudicates the principles of the cause "'must respond to the chief object of the suit.'" Id. (quoting Erikson, 19 Va. App. at 391-92, 451 S.E.2d at 713). We have analyzed what constitutes "the chief object of the suit" on several occasions. In Wells we held that the trial court's order denying the appellant's motion to dismiss for lack of subject matter jurisdiction was not an appealable interlocutory order because it did not respond to the chief object of the suit, which was to either make a final custody determination or enter a divorce decree. Id. In Erikson, we held that the trial court's ruling that the parties were validly married was not an appealable interlocutory order because it did not respond to the chief object of the suit, which was to determine whether a divorce would be granted. 19 Va. App. at 391, 451 S.E.2d at 713. In Pinkard, we held that the trial court's ruling on a pendente lite award was not an appealable interlocutory order because it did not respond to the chief object of the suit, which was to secure a divorce. 12 Va. App. at 852-53, 407 S.E.2d at 341-42.
Here, the order...
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