The judicial department comes home in its effects to every man's fireside. It passes on his property, his reputation, his life, his all.
Chief Justice John Marshall, 1829
When the judicial department "comes home to the fireside" it is rarely a welcome visitor. Courts are more often than not the arenas in which the sorrows and tragedies of the world are played out. The judge must pass judgment on the criminal or tortfeasor, but must also at times tell the victim that there is no recourse to succor their injury. The role of the judge is rarely one to bestow joy. But there are a few notable exceptions -- the power to bind in marriage, the power to affirm citizenship, and the power to place in office a servant of the people are among these happy duties. Without exception, every judge to whom I have had the opportunity to ask, however, has cited the power to finalize an adoption and give a child to a loving set of parents is the happiest of these.
But the granting of an adoption is not always a happy duty. Too frequently it requires the judge to determine that a parent is not fit and that the child is better off with another. That decision is most difficult when the contest for not merely custody, but legal control, is between the child's natural parents. In the lone published opinion from the Court of Appeals this week, Lindsey Nicole Perkins v. Rebecca Lynn (Hicks) Howington, et al., the Court must review just such a case.
Perkins is the mother of J.H., Justin Lee Howington is the child's father, and Rebecca Howington is the child's step-mother. Mother and father were never married and shared joint legal custody of J.H. Following father's marriage to step-mother in 2020, they were granted temporary legal and physical custody. Mother was given restricted visitation under the supervision of the Department of Social Services.
As you can probably guess, mother was deemed to be neglecting the child due to substance abuse issues. DSS advised the court that she had been uncooperative with efforts to remedy her situation. Mother continued to be uncooperative and ceased having contact with the child after July 3, 2020.
In 2021, mother sought to restore her visitation, but failed to prosecute the petition. The DSS subsequently reported that it had lost contact with her. Contact was eventually reestablished through mother's probation officer. The court restored her visitation and had periodic contact with the child. When she missed a court date, the court again withdrew her visitation.
Father and step-mother had filed for adoption during this period and the matter was brought to trial in June 2023. The circuit court ruled that mother had not contacted the child for more than six months before the filing of the petition for the adoption without just cause, so her consent was not required under Code § 63.2-1202(H). Mother countered that her inability to have contact with the child was for reasons beyond her control. The court, however, found that her reasons either were not sufficient or did not impact her ability to seek contact. The court granted the petition for adoption, effectively terminating the mother's residual parental rights.
It should be noted that while DSS was involved in the case, it is not a party to the appeal and this is not a termination of parental rights based upon the failure to remedy the conditions of abuse or neglect. While this may seem a distinction without a difference given that the outcome is essentially the same, there is one significant factor that separates this type of case from one brought by DSS. When the DSS brings a petition for termination and adoption, the judge is passing judgment on a legal standard that required another branch of government to prove its case. In this case, however, the judge is the government. While the judge is still guided by the applicable law and the burden of proof remains with the petitioning party, it cannot be denied that the judge is the only authority which will pass on whether a parent should have their legal connection to their child severed.
The Court of Appeals, Judge Ortiz joined by Judge O'Brien and Sr. Judge Humphreys, recognize that this is an awesome and unenviable responsibility. What's more, the Court found that there has been no prior interpretation of Code § 63.2-1202(H)'s "just cause" requirement for terminating the parent's rights, and more specifically whether the specific provision of that statute that six-months of no contact is sufficient to support that standard.
Mother maintained that father's burden was to show that her lack of contact was not excused by clear and convincing evidence and, thus, could not constitute just cause to terminate her rights. She alleged, inter alia, that DSS "thwarted" her efforts to maintain contact with the child.
The Court rejects this argument, finding that DSS's intervention, which led to the court's removal of visitation, was "because of mother's own actions," and her failure to abide by the directive of the court's order to cooperated with DSS and her subsequent failure to pursue a review or otherwise have the court restore her visitation was chargeable to her, not the DSS. The Court further noted that the circuit court nonetheless gave mother the opportunity to argue that, even without the requirement to seek her consent, it was not in the child's best interest to terminate her rights and permit the adoption, but was not persuaded by her arguments.
A further issue was whether the circuit court improperly considered the mother's probation records. However, the Court found that in the context of the court's statements referencing these records, it was clear that it was not basing its decision on any content of those records, but only referring to the probation officer's role in locating the mother after DSS lost contact.
I do not think the circuit courts or the Court of Appeals take any pleasure in affirming judgments terminating parental rights. In the first instance, parents who do not want to maintain a connection to their children do not bother to show up for court, let alone to take the case to the appellate courts.
I have yet to encounter a case where I did not believe that the parent who was taking the last full measure to retain their rights was not sincere in wanting to be a good parent to their child. Unfortunately, in most cases I am also forced to concede that whatever the reason, the parent cannot overcome the demons of their own soul in order to give the child the focus that it deserves. The state does not lightly step in to sever the bond of parent and child, but when it does so, it does so for the best interests of the child.
The Court of Appeals released three published opinions today. Two are from criminal cases and the third involves the jurisdiction of Boards of Zoning Appeals. We will get the Zoning appeal out of the way first -- it's only 7 pages -- then discuss the more serious of the criminal appeals and round off the final summary with an anecdote on the importance of statutory construction and keeping up with changes to the code that, to borrow a phrase from the US Supreme Court, has a prurient flavor.
Avonlea LLC v. Karl Moritz, Director of Planning and Zoning for the City of Alexandria, et al. is all about variances. Or, more precisely, what can a BZA grant a variance to do. Avonlea owns adjacent lots, one with a home and one "mostly vacant" in Alexandria's historic district in which its zoning ordinance requires that “access to all parking shall be provided from an alley or interior court.” Avonlea maintained that neither of its lots could be accessed from an alley or interior court and proposed building an enclosed parking area on the "mostly vacant lot" accessible from the street.
Before we get into the issues of whether this proposal can be made to happen through the granting of a variance, I would like to consider for a moment whether a lot (or any space) can be "mostly vacant." It would seem to me that either a lot is vacant or it isn't. One there is something built on the lot, it ceases to be vacant and becomes developed. There can be degrees of density of that development, but any development means that the lot is no longer vacant. Perhaps it's like being mostly dead.
Avonlea applied to the the BZA for a variance to permit the construction of the parking yard with street access and the BZA was happy to oblige. But the City and some neighbors (probably mostly the neighbors)was not so sanguine on the idea and appealed the decision to the circuit court. They maintained that the parking restriction was not subject to the granting of a variance and the circuit court agreed.
The Court of Appeal, Sr. Judge Annunziatta joined by Judges Chaney and Frucci, affirm in Avonlea's appeal. This brief opinion explains that under the Zoning Ordinance the BZA has only the power delegated to it by statutory authority. The power to grant variances is found in Code § 15.2-2201 and provides that a variance is available for "provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk or location of a building or structure." It further provides that a variance "shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning." It's pretty easy to see that the request as for a change in use, not a deviation regarding the size of the lot or the buildings on it.
Accomplice testimony is a two-edged sword for the prosecution. While it can be damning as the accomplice is knowledgeable about the details of a criminal plot, it is also true that juries are often distrustful of a "rat," especially where the witness has a already received or is hoping to get a deal from the government in return for testifying. It less common for an accomplice to testify for the defense, and when it does happen, the jury can be equally suspicious of the motives. Juhwaan Barnes v. Commonwealth of Virginia involves the testimony of not one, but three, two who testified for the Commonwealth, and the third for the defense.
Barnes was charged with the first degree murder of Vinshuan Johnson. The Commonwealth's theory was that Johnson was lured to a specific location by two women -- Stephens and Carpenter -- where Barnes and two other men -- Oliver and Bynum -- shot and killed Johnson. Stephens and Carpenter testified for the Commonwealth and gave consistent versions of the events in accord with that theory.
Bynum, who was convicted of the murder in an earlier trial, testified for Barnes. Bynum claimed that he alone shot Johnson. While this would not absolve Barnes entirely -- it is possible to be guilty of murder even if your not the "triggerman," it is more likely that if the jur believed Bynum, they would acquit Barnes. While he might have been guilty of conspiracy to commit the murder because he participated in the plot, conspiracy is not a lesser included offense of the crime which is its object. A quick check of the VCCI database showed that the Commonwealth chose not to charge Barnes with conspiracy.
While it is possible to convict based on uncorroborated accomplice testimony, the court is required to instruct the jury on the "inherent danger" of doing so. Although Stephens' and Carpenter's was mostly consistent, one accomplice cannot corroborate another. Barnes requested an uncorroborated accomplice testimony instruction, but the circuit court found that other evidence presented by the Commonwealth corroborated enough of the two women's testimony and refused the instruction.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, affirmed this decision. There was additional evidence in the form of text messages that were sent to Johnson and the physical location of shell casings which matched their testimony as to the manner of the shooting and established that three different guns were fired. These "silent witnesses" were probably enough corroboration.
The Court, however, also noted that Bynum's testimony partially corresponded to that of the two women. Of course, the jury was privileged to believe some of Bynum's testimony and reject other parts. But wait, wasn't Bynum an accomplice too? Can his testimony corroborate that of another accomplice?
In this specific instance yes, but for procedurally reasons not legal ones. At trial, the requested instruction identified Stephens and Carpenter as the accomplices -- Bynum was never mentioned in the context of the requested instruction. At oral argument Barnes' counsel conceded that Bynum was not an accomplice for purposes of applying the corroboration rule. The Court accepted that concession as a "law of the case," so it does not get into the legal question of whether an accomplice testifying for the defense is capable of corroborating a prosecution witness's testimony.
This week's other criminal case is William Bradley Seat v. Commonwealth of Virginia. Your humble correspondent tries not to be too judgmental of the poor folks who wind up on the wrong side of a criminal conviction, but sometimes its hard not to pause and consider whether a particular defendant has been less than diligent in keeping up with the news and the gossip that one assumes circulates through the criminal grapevine.
Mr. Seat is a case in point. One would think that if he'd being paying attention over the last, say 20 years or so, he might have heard about the presence of police officers -- usually of the decidedly male variety -- posing as vulnerable young women on internet chatboards for gentlemen (and that term is used advisedly) who have less than chaste designs. But then again, perhaps Mr. Seat has had to deal with the lack of affordable housing by taking up residence under a convenient rock.
In this case the "young lady" indicated that she was thinking of getting into the flesh-peddling trade but needed someone to provide business management advice and a safe work environment, though the officer was clever enough to use the more direct description of "pimp." Seat responded to a phone number with a text message in which he assured the prospective associate that he was not a "pimp," but preferred to be thought of "as more a production artist and liaison to high end clientele" who would "“manage, guide, [and] advise” her. You know . . . a high class pimp. Eventually Seat and "Britt" exchanged over 175 text messages and, with the aid of a female officer, spoke on the phone. Despite going into extensive detail about the services he would provide, Seat finally got wise that he was being taken for a ride . . . though he still thought Britt was for real, he decided she was setting him up to be robbed.
Participating in a commercial sex trafficking is a crime in Virginia. At trial, Seat had a good explanation for his actions. According to him he was "trolling" the woman and never had any intention of going through with the scheme, and even if he did, the plan never rose to the level of the activities that constitute sex trafficking. In case you are wondering, here is what the law provides
§ 18.2-357.1. Commercial sex trafficking; penalties.
A. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse in violation of § 18.2-346, solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate § 18.2-346 is guilty of a Class 5 felony.
So, did Seat have the "intent" to receive money by encouraging Britt to violate Code § 18.2-346, the prostitution statute? Well, the jury seemed to think so, and so does the Court of Appeals, Chief Judge Decker joined by Judges Raphael and White. This is actually pretty much of a slam dunk for the Commonwealth as are most sufficiency of the evidence appeals. I presume this one gets published because the statute was recently amended.
Before we part, let me fulfill my promise to relate that anecdote for the prurient at heart and an all important change to Code § 18.2-346. First, the anecdote (the names have been changed to protect the innocent). Trigger warning -- the ancedote and statutory amendment deal with a subject of an adult nature. You have been warned.
Quite a few years ago (at least prior to the amendment which we will be discussed below), a police officer found an advertisement on Backpage -- the now defuct "free want ads" message board that got busted by the feds for its profiting from "personal" ads that were pretty obviously not of the SWM seeks Life Partner variety unless you measured the length of your life partner relationships by the hour. He found a likely ad, contacted the advertiser and arranged to meet her at a local motel in the seedier part of town.
I will spare you the details of the "dance" that is involved when an undercover officer has to negotiate with a suspected courtesan while avoiding a claim of entrapment. Suffice to say that he opted to arrest her when she stated that one of the services she would perform would be to assist him in placing a latex prophylactic where such implements are usually placed.
At trial, the Commonwealth presented this evidence and rested its case. Judge Stickler looked inquiringly at the prosecutor and inquired "Ms. Jones, what crime has been committed here?" Ms. Jones looked incredulous and stated "Prostitution, your honor." "How so?" replied the judge.
Ms. Jones, a women raised in the gentile Old Dominion, did her best to be delicate. "Judge," she said, "the defendant agreed to touch him in an intimate place." "Indeed she did," replied the equally gentile judge, "but that is not a crime in Virginia." "But of course it is!" exclaimed Ms. Jones.
The judge reached for his copy of 18.2 and flipped to the relevant statute and read it aloud. At that time Code § 18.2-346 provided that prostitution involved the receiving of money or other valuable consideration in exchange for enduing someone to "commit[] adultery, fornication, or any act in violation of § 18.2-361," the "crimes against nature" statute. Turning to that code section, the judge read out the list of acts it prohibited, which decidedly did not include the "manual stimulation of the genitalia for sexual pleasure." The judge dismissed the case.
The following day, Judge Stickler met Ms. Jones in the hallway. Ms. Jones informed the Judge that she had discussed the ruling of h the previous day with her husband, also an attorney, and informed the judge, in a tone that suggest Mr. Jones may have spent the night in the guest bedroom, "He agreed with you!"
Now as to the present state of Code § 18.2-346. The Prostitution statute was amended in 2020 to include as acts which can constitute prostitution if performed as part of a commercial transaction the touching of "the unclothed genitals or anus of another person with the intent to sexually arouse or gratify." That's a more gentile way of saying, as the crime is nominated in Geogia, "masturbation for hire."
The Court of Appeals has issued only three opinions in the last two weeks. Perhaps the heat of the Dog Days has caused a bought of torpor on the Court.
Norfolk Department of Human Services v. Joshua Goldberg is a rare case with not brief or appearance by the appellee. While it is possible that Goldberg was supremely confident that the Court of Appeals would affirm, this was a gutsy move given that the issue is whether the Norfolk DHS could be required to provide Goldberg with documents related to an unfounded report child sexual assault. Normally, such reports are confidential in order to encourage reporting, but Code § 63.2-1514(D) provide a “bad faith disclosure exception."
This case may require a bit of exposition for those not familiar with the function of the local entities that are charged with investigating and litigating claims that a child is endangered from abuse or neglect by a person with a custodial relationship to the child. These agencies are know by different acronyms -- DHS, DSS, CPS -- but all are essentially operating under the authority of Title 63.2, the "Welfare (Social Services)" statutes. These agencies are not law enforcement agencies, though the frequently operate hand-in-glove with police. There jurisdiction, however, extends beyond investigation of potential criminal activity, typically characterized as "abuse" of the child to include "neglect" which may or may not rise to the level of a criminal act.
When a social service agency receives a report of suspected abuse of neglect of a child, an investigation is made which can be as simple as visiting the home to check on the welfare of the child to a lengthy investigation of all circumstances related to the child's situation. One major distinction between a social service investigation and a police investigation is that social services is often empowered to take action to protect the welfare of a child where the police would need to obtain a search warrant or arrest warrant by establishing probable cause to a magistrate or higher judicial officer.
Reports of suspected abuse made to a social service agency must be investigated. These reports come from two principal sources: citizen complaints and mandatory reporters. Citizen complaints are vetted for credibility, though criticism of the failure to follow through on complaints in the past has increased the likelihood that an agency will err on the side of caution. Mandatory reporter complaints, however, are presumed to be trustworthy.
In this instance, the report on Goldberg, alleging abuse of his minor daughter, came from a mandatory reporter. Goldberg is a member of the US Navy, and this meant that in addition to DHS's investigation, NCIS was also informed and launched its own investigation. Yes, that NCIS -- which gives you some idea of how fanciful the TV show is in suggesting that its all about international terrorism and intricate revenge plots.
DHS determined that the allegation was unfounded. The opinion does not say what NCIS did, but presumably whether it also concluded that Goldberg was innocent, having an NCIS investigation in your career file is probably not a good thing. Goldberg and his wife suspected that the wife's mother was the source of the complaint based on her prior interference with their parenting choice and earlier false accusations.
Goldberg filed a petition in the circuit court asserting that he believed his mother-in-law was the sources of the accusations, that the accusation was made in bad faith, and requesting that the circuit court order DHS to turn over records of its investigation and, if the mother-in-law was the source, provide him access to those records.
The circuit court directed the DHS to provide the records for the court's review and DHS said, "No thanks, judge, we're good." Well, all right, the DHS didn't exactly waltz into court and refuse to turn the documents over. Rather, the department argued that because the information had come from a mandatory reporter it could not, by definition, have been made in bad faith. Since it's actually a crime for a mandatory reporter to not make a reporter of suspected abuse or neglect, there is a certain logic to this argument. The circuit court disagreed and order the DHS to provide the records for review, but stayed the order pending the DHS's appeal.
The Court of Appeals, Judge Lorish joined by Judges Fulton and White, affirms and remands the case so that the circuit court can review the documents and determine if there is cause to believe that the mother-in-law was the ultimate source of the report. Because this is a question of statutory interpretation, the Court reviewed the issue de novo -- and this is why it was gutsy for Goldberg to not even file a brief. Granted, his counsel may have made a convincing argument in the trial court (and the court also issued a written opinion), so he may have felt that there was no more to say, but gutsy nonetheless.
The Court finds that the statute is ambiguous as to whether it is limited to direct reports made in bad faith or includes bad faith sources relied upon by mandatory reporters. The Court concludes that the purpose of the bad faith exception is to dissuade the use of false reports in domestic and other interpersonal disputes to harass a blameless person. Accordingly, the ambiguity should be resolved in favor of advancing this purpose. This is sensible, as someone willing to make bad faith report of child abuse or neglect, but fearful of the potential civil liability for doing so, might see making a report to a mandatory reporter as a convenient work around.
Stafford County Board of Zoning Appeals, et al. v. John L. Grove, II, et al. is the shortest of the three opinions covered in this post, and in your humble correspondent's humble opinion, it is deservedly so, as the result falls well inside the "Well, Duh!" category of cases. The issues is this: When a land owner is denied a special exception permit by a Board of Zoning Appeals and seeks review of that decision in the circuit court, does the BZA have the right to file a responsive pleading in the court?
I really, really hope that you, dear reader, said, "Well, duh! Of course they have a right to file a responsive pleading in a legal action in which they are the defendant!" Well, technically, it turns out this is not true -- but there is more to it than that.
In this case, the BZA and the Board of Supervisors filed a demurrer to Groves petition for review in the circuit court. Grove did not oppose the filing of the responsive pleading. In fact, he responded to it. Then the circuit court did something extraordinary. It sua sponte ruled that the BZA could not file a response. Oddly enough, this is not the first time a court has ruled this way, as the circuit court relied upon a decision in another circuit from a few years back. Unlike in that case, however, the BZA asked the court to permit an interlocutory appeal to test this rather novel ideas that it could not defend its own decision.
In case you are wondering how two circuit courts could make such an astonishing ruling, the answer is that the statute in question Code § 15.2-2314 contains some peculiar language, viz.: "Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required." Rather, it is the locality in which the BZA presides that is the proper responding party.
Now, you can sort see how the circuit court's might have read this to mean that the BZA, not being a "party" to the suit, could not file a responsive pleading. However, the statute also provides that the BZA is to respond to the writ of certiorari, which the court interpreted as meaning that it was to supply the records, not file a "response" to the suit. Moreover, in this case at least, the demurrer was file by both the BZA and the Board of Supervisors, the latter of which is a party under the statute. The court, here, however, found that the statute did not provide for the filing of a response even by a proper defending party. Rather, the court concluded that the statute required the BZA to supply the record to the court and then the Board of Supervisors was to defend the BZA's action on its merits.
The Court of Appeals, Judge AtLee joined by Judges Huff and Ortiz, in reversing the judgment of the circuit court does not wade into the swamp of whether the BZA's "response" is limited to supplying the record or includes a challenge to the action itself. Rather, the Court simply points out that an action under Code § 15.2-2314 is an "action under law" and, pursuant to Code § 8.01-273 a demurrer may be filed in any “action at law.” Similarly, Rule 3.1 permits a demurrer to be filed in any case "unless otherwise provided by law." The love exception, as set out in the rule, is that a demurrer cannot be filed against a petition for writ of habeas corpus.
Of course, a Court cannot (or at least should not -- never say to a judge, "you can't do that") say "well, duh" in an opinion, but the Court comes pretty close here, noting that "o interpret Code § 15.2-2314 as the circuit court does here would lead to absurd results . . . [as] it would mean that a respondent would be unable to challenge any pleading prior to the issuance of a writ of certiorari, no matter how facially deficient the petition may be, and therefore there could be no summary disposition."
Moving from the shortest to the longest of the three opinions, Matthew Keil v. Jim O'Sullivan, etc. deals with the Freedom of Information of Act. Despite its length, I feel like this opinion also falls close, if not directly into, the "Well, duh!" category. The only reason it probably does not do so is that FOIA issues always require a good deal of explanation as to why the government is not required to turn over everything in every case. FOIA is a valuable tool for providing citizen oversight of the government, but it is too often employed for motives that have less to do with assuring good government and more about personal concerns or simply to be a thorn in the side of public servants. Striking a balance between the public's right to know, the privacy of those whose data the government collects, perhaps especially public servants, and the burden upon government to meet excessive demands is the difficult task of the courts.
Kiel was a member of the Chesapeake Sheriff's Department and the subject of an internal investigation. Kiel sought to obtain the documents from this investigation under the FIOA and a related act, the Government Data Collection and Dissemination Practices Act. The Sheriff, perhaps unwisely, failed to respond to the request under the Data Act and was less that expedient in responding to the FOIA request by asserting that the information was not subject to disclosure. Nonetheless, the circuit court upheld the decision to not disclose the information.
The Court of Appeals, Judge Lorish, joined by Judges Fulton and White, affirm. The principal holding of this case for future cases is the exhaustive discussion of who is a "data subject" under the Data Act. To access government records under the act, the requestor must be a "data subject" and Kiel did not qualify. I think the obvious reason for this is that the internal investigation was not collecting "data" within the sense of the act. If this were the case, then just about any government record stored on a computer would be discoverable. The act, however, is limited to databases that are designed to isolate personal information of the data subject.
With respect to FOIA, Keil mostly argued that the Sheriff's lackadaisical responses entitled him to relief. The problem with this argument is that records do not become subject to disclosure just because the responding agency is slow to assert that they are not.