MG v. Albemarle County

Decision Date22 July 2003
Docket NumberRecord No. 0230-03-2.
CourtVirginia Court of Appeals
PartiesM.B. v. ALBEMARLE COUNTY DEPARTMENT OF SOCIAL SERVICES.

Bonnie J. Lepold (Snook & Haughey, P.C., on briefs, Charlottesville), Guardian ad litem, for appellant.

Andrew H. Herrick, Williamsburg (Larry W. Davis, Albemarle County Attorney's Office, on brief), for appellee.

Present: ELDER, BUMGARDNER and KELSEY, JJ.

ELDER, Judge.

M.G. (mother) appeals from an order terminating her parental rights to her children, a daughter, M., and a son, R. On appeal, she contends termination under Code § 16.1-283(E)(iii) was error because the evidence failed to establish that she was convicted for "felony sexual assault" or that termination was in the best interests of the children. Appellee, the Albemarle County Department of Social Services (DSS), contends this Court lacks jurisdiction to consider the appeal because mother failed to join the children's guardian ad litem. In the alternative, DSS contends the appeal is barred because mother failed to give proper notice of her filing of the trial transcript. We hold that both the appeal and the trial transcript are properly before us. We hold further that mother's federal conviction was for "felony sexual assault" within the meaning of the termination statute and that the evidence was sufficient to support the termination. Thus, we affirm.1

I. PROCEDURAL BACKGROUND

M. was born in 1991, and R. was born in 1993. Mother's husband, a member of the military who was the father of R. but not the father of M., was convicted of multiple criminal sexual offenses committed against both children while the family lived on a military base in North Carolina, and he was incarcerated as a result. Mother subsequently moved to Virginia to live with her family, and when mother was indicted for related offenses and held pending extradition, she signed an entrustment agreement with the Albemarle County Department of Social Services (DSS).

By order entered June 25, 2002, mother was convicted for abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) and (c) and contributing to the delinquency of a minor pursuant to 18 U.S.C. § 3, in conjunction with North Carolina Gen.Stat. § 14-316.1. That contact involved mother's son, R. As a result of those convictions, DSS sought termination of mother's parental rights. A guardian ad litem was appointed for the children and also for mother based on her incarceration. The juvenile and domestic relations district court terminated mother's parental rights under Code § 16.1-283(E)(iii), and mother appealed. Thereafter, mother was sentenced on the federal convictions to serve 70 months in prison and to undergo three years of supervised probation, during which time the court ordered that mother "shall not have any contact with the victims" or "any child under age 18."

The circuit court terminated mother's parental rights based on a finding that mother's conviction for violation of 18 U.S.C. § 2244(a)(1) and (c) justified termination under Code § 16.1-283(E)(iii) because her conviction was for "a crime which constitutes felony sexual assault under the Code of Virginia." The court also found that termination was in the children's best interests.2

Mother's guardian ad litem filed a timely notice of appeal in the circuit court. The certificate included as part of the notice of appeal indicated that "A Guardian ad litem was appointed for the children as well as the Defendant mother (incarcerated at the time of the proceedings)." Neither the notice nor the certificate identified the children's guardian ad litem by name or indicated that mother served the children's guardian with a copy of the notice of appeal. Mother submitted a cover letter with the notice of appeal, which letter (1) stated that "a Notice of Appeal" was enclosed and (2) included the notation, "Cc: Andrew H. Herrick, Esq.[;] William M. Marshall, Esq." Although that letter did not specifically identify Marshall as the children's guardian ad litem, other documents in the trial court's record confirmed his status as their guardian.

II.

PROCEDURAL ISSUES

A. DEFICIENCIES IN NOTICE OF APPEAL AND ACCOMPANYING CERTIFICATE

DSS moves to dismiss the appeal on the ground that this Court lacks jurisdiction because of deficiencies in mother's notice of appeal. DSS argues that mother "fail[ed] to join the children's Guardian ad litem as a party to the case" because she failed to certify in her notice of appeal that she mailed or delivered a copy of the notice to all opposing counsel, i.e., the children's guardian ad litem. It also complains that the notice failed to list the name and address of appellant; name, address and telephone number of counsel for appellant; and name, address and telephone number of appellee's counsel. Mother argues she substantially complied with the requirements of Rule 5A:6 because she in fact notified the guardian of the filing in a timely fashion, as indicated by the cover letter attached to the notice of appeal.3

Rule 5A:6 provides in relevant part as follows:

(a) Timeliness.—No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals....
* * * * * *
(d) Certificate.—"The appellant shall include with the notice of appeal a certificate stating:
(1) the names and addresses of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel; and
(2) that a copy of the notice of appeal has been mailed or delivered to all opposing counsel .

"We have held that the failure to file a notice of appeal with the clerk of the trial court within 30 days after entry of final judgment as required in Rule 5A:6(a) is jurisdictional and that we have no authority to extend the time...." Johnson v. Commonwealth, 1 Va.App. 510, 512, 339 S.E.2d 919, 920 (1986). Further, in a suit involving a termination of parental rights, a guardian ad litem for the child or children is an indispensable party to the appeal and, thus, qualifies as an "opposing counsel" under Rule 5A:6(a), to whom the appellant has a duty to mail or deliver a copy of the notice of appeal. Hughes v. York County Dep't of Soc. Servs., 36 Va.App. 22, 25-26, 548 S.E.2d 237, 238-39 (2001). Thus, we have held that where the certificate accompanying the notice of appeal does not list the name and address of the guardian ad litem and "[t]he record reflects that [the] appellant failed to provide the guardian ad litem with the notice of appeal or the opening brief[,] [t]he guardian ad litem was not ... made a party to the appeal," and the appeal must be dismissed. Id. Under these circumstances, the court never acquires jurisdiction over the indispensable party. Asch v. Friends of the Community of the Mount Vernon Yacht Club, 251 Va. 89, 93, 465 S.E.2d 817, 819 (1996).

We have never held, however, that Rule 5A:6(d)'s provisions regarding the contents of the accompanying certificate are jurisdictional. The fact that subsection (d) states the certificate "shall include" certain information does not compel a different result. Cf. Riner v. Commonwealth, 40 Va.App. 440, 454, 579 S.E.2d 671, 678 (2003)

(holding that, as long as petition for appeal is timely filed, "the provisions of Rule 5A:12(c) stating what the petition `shall contain' ... are not jurisdictional" and "do not prevent us from exercising jurisdiction over assignments of error added to the petition, with leave of court, at a later date"). Thus, we have jurisdiction over both the appeal itself and the guardian ad litem, an indispensable party, as long as the record establishes that, "within 30 days after entry of final judgment or other appealable order or decree, counsel file[d] with the clerk of the trial court a notice of appeal, and at the same time mail[ed] or deliver[ed] a copy of such notice to all opposing counsel...." Rule 5A:6(a).

Here, the certificate accompanying the notice of appeal indicated that a guardian ad litem had been appointed for the children. Although the certificate did not indicate whether mother mailed a copy of the notice to the children's guardian ad litem, the notice of appeal was accompanied by a cover letter signed by mother's guardian ad litem that did, in fact, provide such information. The letter indicated (1) that it accompanied the notice of appeal and (2) that a courtesy or carbon copy was provided to William M. Marshall, Esq., whom other documents established was the children's guardian ad litem. Thus, the record establishes that appellant complied with the, requirements of Rule 5A:6(a) by "mail[ing] or deliver[ing] a copy of such notice to all opposing counsel."4 See also Code § 8.01-271.1 (providing that "signature of an attorney or party [on a pleading, motion, or other paper] constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, [and] (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact" and that sanctions may be imposed for violations of statute).

Further, although the certificate itself omitted other information required by Rule 5A:6(d), other portions of the notice contained everything but appellant's address,5 the name and address of the appellee, and the telephone number for appellee's counsel. The certificate clearly indicated that mother provided appellee's counsel with notice of the appeal.

"[W]e do not minimize the necessity of adherence to the mandate of the Rule[s] by members of the bar. We consider the requirement[s] in the Rulers] to be significant and one[s] that should not be ignored." Johnson, 1 Va.App. at 513, 339 S.E.2d at 921. However,

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