Watkins v. Fairfax County, Record No. 1938-03-4.

CourtCourt of Appeals of Virginia
Citation42 Va. App. 760,595 S.E.2d 19
Decision Date13 April 2004
Docket NumberRecord No. 1938-03-4.

Todd G. Petit, Falls Church, for appellant.

Donna R. Banks, Assistant County Attorney (David P. Bobzien, County Attorney; Peter D. Andreoli, Deputy County Attorney; Dennis R. Bates, Senior Assistant County Attorney, on brief), for appellee.

Lisa K. Piper, Arlington, Guardian ad litern for the minor children.



Judith Marie Watkins appeals decisions of the circuit court terminating her residual parental rights to her two minor children. Watkins contends that the circuit court trial judge erred in finding the evidence sufficient to support the termination pursuant to Code § 16.1-283(C)(2). Watkins also claims the trial judge erred in admitting the hearsay testimony of a witness who testified during the termination proceedings. Because we find that Watkins failed to properly perfect her appeal, we do not reach the merits of these issues and we dismiss her appeal.

In her brief on appeal, the guardian ad litem for Watkins's children raised an "Additional Question Presented." Specifically, and in that form, the guardian ad litem moves this Court to dismiss Watkins's appeal because Watkins failed to name the guardian ad litem as an appellee in her notice of appeal. For the following reasons, we find that Watkins failed to properly and timely note her appeal with respect to the guardian ad litem, an "indispensable party," and we dismiss the appeal.1

We first, briefly note the facts relevant to this narrow issue. Fairfax County Department of Family Services placed Watkins's two minor children in an "emergency foster home" in December of 2001. In March of 2002, the Fairfax County Juvenile and Domestic Relations District Court terminated Watkins's residual parental rights. Watkins subsequently noted an appeal for a trial de novo in the circuit court.

During the three-day hearing on Watkins's de novo appeal, the appointed guardian ad litem for Watkins's children supported the Department's petition to terminate Watkins's residual parental rights. Ultimately, the trial court ruled that Watkins had failed to substantially remedy the "problems which brought the children into foster care," within the requisite time period set forth in Code § 16.1-283(C)(2), and that it was thus in the best interests of the children that Watkins's "parental rights be terminated." Both final orders—one pertaining to each child—were "[e]ntered on June 23, 2003." The guardian ad litem endorsed the final termination orders under the headings "I ask for this," and indicated "Seen and Agreed" over her signatures.

Watkins noted her appeal to this Court on or about July 23, 2003. The record demonstrates that Watkins failed to list the guardian ad litem as an opposing party in her Notice of Appeal, as well as in her subsequent Amended Notice of Appeal; The record further shows that Watkins failed to list the guardian ad litem in the accompanying certificates of service, and there is no evidence that Watkins mailed or delivered a copy of the notices to the guardian ad litem within 30 days after entry of the final orders. The record does reflect, however, that Watkins subsequently listed the guardian ad litem in the certificates of service appended to her motion for extension of time to file the transcript, her statement of questions presented and designation of contents to be included in the appendix, as well as her opening brief on appeal. The guardian ad litem thus timely filed a brief on behalf of the children.2 In her brief, the guardian ad litem requested that the appeal be dismissed because Watkins failed to notify her of the appeal. Specifically, the guardian ad litem argues that this Court must dismiss Watkins's appeal because the guardian ad litem, an indispensable party, was not "list[ed]" in the notice of appeal or the amended notice of appeal, and because Watkins failed to certify, in either document, that a copy of the notice was "mailed or delivered to the guardian ad litem in accordance with Rule 5A:6(d)."

Code § 17.1-408 states, "[a] notice of appeal to the Court of Appeals shall be filed in every case within the court's appellate jurisdiction as provided in § 8.01-675.3." The notice of appeal must be filed "with the clerk of the trial court," Code § 17.1-407, and, "shall be filed within 30 days from the date of any final judgment order, decree or conviction," Code § 8.01-675.3. The "time[ ] prescribed for filing the notice of appeal . . . [is] mandatory," Rule 5A:3(a), and, if not adhered to, "[n]t) appeal shall be allowed," Rule 5A:6. Rule 5A:16(a) provides that appeals as a matter of right are "perfected by the timely filing of a notice of appeal pursuant to Rule 5A:6."

Rule 5A:6 specifically provides as follows, in pertinent part:

(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 .. . .

The guardian ad litem correctly notes that we have held "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." M.G. v. Albemarle County Dep't of Soc. Servs., 41 Va.App. 170, 177, 583 S.E.2d 761, 764 (2003) (citing Hughes v. York County Dep't of Soc. Servs., 36 Va.App. 22, 25-26, 548 S.E.2d 237, 238-39 (2001)). Indeed, the guardian ad litem is clearly an indispensable party in termination cases because the statute governing the appointment of guardians ad litem in termination proceedings, Code § 16.1-266, mandates their appointment in such cases.3

The Supreme Court of Virginia has used the terms "indispensable parties" and "necessary parties" synonymously. See Asch v. Friends of Mt. Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996)

.4 In that context, the Court defines the term "necessary party" broadly, holding that:

"`Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff's claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.'"

Id. (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris, 102 Va. 625, 630, 46 S.E. 905, 907 (1904))). Thus, the Court has consistently held that "a court lacks the power to proceed with a suit unless all necessary parties are properly before the court." Id. at 91, 465 S.E.2d at 818. The import of this principle is the fundamental notion that:

"`[a necessary party's] interests in the subject matter of the suit, and in the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed.....'"

Id. quoting Bonsai v. Camp, 111 Va. 595, 597-98, 69 S.E. 978, 979 (1911) (quoting Barney v. Baltimore City, 73 U.S. (6 Wall.) 280, 284, 18 L.Ed. 825 (1867)).

Thus, the question to be answered in the case at bar is whether a "necessary" or "indispensable" party must explicitly be named in the notice of appeal to allow the appellate court to "proceed." Id. Based upon our review of the jurisprudence on this issue, we hold that an indispensable party must be named in the notice of appeal in order to properly perfect the appeal.

We first note the Supreme Court of Virginia has held that "[t]he mere fact that an indispensable party who was a litigant in the trial court has notice that an appeal has been perfected against another litigant is not sufficient to confer [an appellate court's] jurisdiction over the indispensable party against whom no appeal has been properly perfected." Id. at 93, 465 S.E.2d at 819. The facts underlying the Asch decision reveal that the appellants' notice of appeal "informed all the litigants below, including the [indispensable party], `that the litigation was not ended and that appeal was in progress.'" Id. at 90, 465 S.E.2d at 818.5 Yet, because the appellants failed to "join" an indispensable party as a party in the appeal, the Court held that it never acquired jurisdiction over the indispensable party and it therefore, dismissed the appeal. Id. at 93, 465 S.E.2d at 819.

Similarly, in Vaughn v. Vaughn, 215 Va. 328, 210 S.E.2d 140 (1974), and Butler v. Butler, 219 Va. 164, 247 S.E.2d 353 (1978) (per curiam),

the Supreme Court of Virginia refused to consider appeals where indispensable parties were not named in the notices of appeal, nor the petitions for appeal. In Vaughn, the Court refused to hear an appeal involving a lawsuit requesting specific performance of an option to buy a portion of a tract of land. Vaughn, 215 Va., at 328,

210 S.E.2d at 141. The Court noted that when the bill of complaint was originally filed, it named as parties-respondents "Carolyn F. Vaughn, Individually and as Administratrix of the Estate of Donald W. Vaughn, Jr." Id. By letter opinion, incorporating by...

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