The Court of Appeals of Virginia issued a single published opinion today. The subject matter of the appeal is one of increasing concern in our nation, elder abuse. Catherine Ann Tomlin v. Commonwealth of Virginia involves charges of financially exploiting an incapacitated adult and of abusing or neglecting an incapacitated adult. The appeal deals primarily with the sufficiency of the evidence to prove each of these crimes. A tertiary issue, whether the court improperly allowed hearsay evidence, is held to be harmless while “assuming without deciding” the admission of the evidence was error.
The victim was “B.T.”, the defendant’s mother. The facts are distressing even without the allegations of criminal wrongdoing. B.T. was in her 80s, while her daughter was in her 50s. They subsisted off of the former’s social security and the latter’s income from a retail job. Mother and daughter lived on subsidized housing and had almost no furnishings. B.T. was essentially housebound and relied on her daughter for her care.
Social services first interacted with the pair in early 2020, but they repeatedly refused offers of assistance. In April, 2020, B.T. fell and was injured. Her daughter made no effort to obtain medical help. Two days later, maintenance workers called 911 upon finding B.T. laying on the floor of the apartment covered in her own waste and bedbugs.
A medical exam showed that B.T. had been neglected, resulting the formation of serious subdermal bedsores and that infection of these could have been life threatening. B.T. was admitted to the hospital and discharged to hospice care and died in June 2020.
Tomlin was evicted from her apartment after her mother was removed and used her mother’s social security to pay for a hotel room. There was no evidence that B.T. consented to her daughter using the money for her own benefit.
Tomlin was charged and convicted of financially exploiting an incapacitated adult and of abusing or neglecting an incapacitated adult. The Court of Appeals focused on the requirement of Code § 18.2-178.1, the financial exploitation offense, that the victim must be incapacitated with respect to financial responsibility. In other words, lack of consent is not enough to sustain the charge of “exploitation” of the victim, the evidence must show that the victim was not capable of making responsible financial decisions. Thus, while Tomlin may have been guilty of some other larceny offense, the evidence was not sufficient to prove that the exploit her mother due to an incapacity. The conviction for financial exploitation is reversed and dismissed. With respect to the neglect and abuse charge, however, the evidence was more than sufficient to sustain that conviction.
The Court of Appeals issues two published decisions today, one as an opinion and one as a published order (following two published order released mid-February). The Court of Appeals has not typically issued published orders with the same frequency as the Supreme Court, and it has not been that long ago that they were something of a rarity even from the Justices. As between the two decisions today, however, it is certainly the order that should take center stage (at least if you are a procedural geek).
Before getting to the Court of Appeals’ decisions, however, I will take a moment to note that today also saw the first appeals granted in 2022 by the Supreme Court. Just over a month ago, I noted that the Court had not granted an appeal in January and likewise February passed without any discretionary appeals being added to the docket. Today, the Court award appeal in four cases, all of them in civil cases. The most notable of these is the appeal of Peter Vlaming v. West Point School Board. Vlaming was fired from his teaching job after refusing to refer to a transgender student by his preferred pronouns (Vlaming did use the student’s preferred name rather than his birth name). Vlaming is represented by Christopher P. Schandevel, Tyson C. Langhofer, J. Caleb Dalton of the Alliance Defending Freedom and Shawn A. Voyles of McKenry Dancigers Dawson, P.C.) , while the School Board is represented by Stacy L. Haney and Andrew P. Selman of Haney Phinyowattanachip PLLC), and Alan E. Schoenfeld, Tania Faransso, and Edward Williams of Wilmer Cutler Pickering Hale & Dorr LLP.
The lone opinion today is Cathryn Rose Rainey v. Chad Christopher Rainey, and involves a custody dispute between former spouses regarding their two children. The mother contends that the circuit court failed to prove her with a de novo review of the judgment of the juvenile court, instead acting as an “appellate tribunal” and in disregarding its statutory duty to make express findings of the relevant factors as required by Code § 20-124.3.
To those versed in domestic relations law, the situation and allegations are a familiar one, but for those who do not practice in the area, it must seem a bit confusing as to why this matter, which arises from the aftermath of a divorce, which necessarily occurred in the circuit court, was on appeal from the juvenile court. A brief explanation will suffice: In almost all cases where there are likely to be challenges to support and custody issues after the entry of the final decree, the circuit court will direct that these matters be overseen by the Domestic and Juvenile Relations District Court. There is no equivalent process in any civil matter (or criminal) with respect to the General District Court even where it might be useful (for example, overseeing a protective order). When the juvenile court does address a show cause or application for change in circumstances, its decision is appealable to the circuit court. The circuit court will often end up with the same result as the district court and this, naturally, leads to allegations that it merely acted as “rubberstamp” for the lower court’s decision when it should have reviewed the case de novo.
The background as recounted in the Court’s opinion is a somewhat sordid, but not atypical story in which, as the Court aptly puts it, an affair caused the family to be “roughly upended.” A bitter divorce followed which ended with the parties having joint legal custody of the children and physical custody with the mother. The relationship between the father and the children was never good during the divorce and deteriorated even more. Eventually, the father determined that he would no longer seek visitation with the children “without first repairing the relationship.”
The mother agreed to allowing the father temporary physical custody in order to seek the desired repair. This plan was approved by the juvenile court. However, from the date of the agreement, the mother had virtually no contact with the children. This was the result of the recommendations by the psychologist who was counseling the family. At this point, I will try to avoid making value judgments about what transpired — I think it best that you, dear reader, if you wish, should take up the opinion yourself from the heading on page 5 ” Father and the Counselors Strictly Limit the Children’s Contact with Mother.” I will say only that I cannot recall a prior case where so much control was afforded to “counselors” to the family.
From a legal standpoint, we arrive at the decision of the juvenile court to make the transfer of physical custody to the father and permit him exclusive control over visitation with the mother. The opinion makes no mention of the opinion or role of the children’s guardian ad litem in all of this. The whole things just seems slightly “off” to me in that, at least to this point, the Court has given indication that the mother was in any way responsible for the fractured relationship between the father and the children.
In reciting the evidence received by the circuit court, a somewhat different picture emerges as to the children’s negative behavior being “allowed,” but still there is no direct assertion that mother was at fault. Moreover, the record clearly showed that the children loved and missed their mother, who they had not been permitted to see in 16 months at the time of the circuit court hearing.
The Court then makes what is a telling statement, saying “[t]he judge observed from the bench that this case bothered him more than most.” The judge had concerns about the father’s but also with the mother’s “stubbornness” in not complying with the counselor’s requirements for permitting her to communicate with the children. As a result, the judge made what may not have been a wise choice of words, saying that he “pretty much was affirming the lower court.” When the parties were not able to agree on a final order, the court adopted the father’s order which recited findings of fact with required to the statutory elements.
Despite using the term “affirming,” the Court of Appeal concludes that the circuit court did indeed conduct a de novo hearing. Certainly the process was de novo, with witness testifying and legal arguments being presented. The Court says that the isolated statement of the circuit court did not establish that it was not reviewing the evidence afresh, but merely indicated that it had reached the same conclusions of the juvenile court. Likewise the Court concludes that the circuit court’s adoption of the father’s draft order did not mean that the court had not addressed the statutory factors. It is common practice for a trial court to direct the parties to submit an agreed order and, if they cannot, to adopt a draft proffered by one of them.
However, the Court also concludes that it was not proper for the circuit court to effectively delegate the determination of appropriate visitation to be allowed the mother. On this issue, the court’s authority is not delegable, even those it is common for a court to permit the parties some leeway to make adjustments to visitation schedules. Here, the court effectively gave the father carte blanche to determine when, where, and even whether the mother, who was still a legal guardian, could have any contact or information about her children.
Having kept the procedural geeks in suspense, I now turn to Paul H. Lundmark v. Commonwealth of Virginia, the published order that dismisses a criminal case appeal (which, I predict will soon be back as a delayed appeal similar to what happened in the sole published opinion from last week). What makes this case interesting is that it follows an earlier published order from February in which the same panel of judges (Humphreys, Causey and Senior Judge Frank) dealt with a similar issue, but with a different result that will warrant some very close scrutiny.
The prior published order was Eugene N. Johnson v. Commonwealth of Virginia. Like Lundmark, it came to the Court of Appeals following a conviction in the circuit court of a moving violation. Johnson was driving with a suspended license, disregarded a stop light; and was driving a vehicle with expired tags; Lundmark was driving under the influence. Both men were charged under warrants that referred to the local ordinances for these offenses, and documents subsequently generated by the circuit court alternated between or referred to both the ordinance and the parallel state statute.
When both cases were appealed, the style of the case was given as “<Defendant> v. Commonwealth of Virginia,” and petitions were granted in both cases. It was only after the Attorney General took over the representation of the appellee that it was noted that these were “locality prosecutions” in which the Attorney General may, but is not required to, respesent to locality.
In Johnson, the locality sought to intervene and amend the style of the case to properly reflect the locality as the prosecuting authority (and, thus, the party required to defend on the appeal) and allow substitution of the Commonwealth’s Attorney (who, by agreement with the locality, prosecuted local ordinance violations for the City Attorney). In Lundmark, the Attorney General filed a motion to withdraw from the case and the locality kept its own counsel (perhaps not evening being aware of what was afoot in the Court of Appeals).
[Editor’s note: I am going to speculate that in Johnson the AAG who drew the case called the Norfolk CA and said “What gives?” Whereas in Lundmark the AAG simply filed the motion to withdraw. I suppose its possible that Henrico County was contacted and simply said “not our problem” or words to that effect.]
Johnson was a unanimous decision in which the Court found that the City was permitted to appear and, in effect, had waived any objection to the defect in the manner in which the appeal had been filed by doing so — that appeal will now continue to full briefing and argument. Lundmark, however, does not achieve the same unanimity. Judges Humphreys and Frank conclude that the locality is an indispensable party and, not having voluntarily appeared as in Johnson, the absence of an indispensable party deprives the Court of jurisdiction. Mr. Lundmark is out of court (at least until his delayed appeal is awarded).
Judge Causey takes a much different view of the matter. First, she notes that the record in the case is hardly a model of clarity or consistency when it comes to determining which legislative act — local or state – is the source of the police power being exercised over Lundmark. Relying primarily on Nicholson v. Commonwealth, 300 Va. 17, 22 (2021), in which the Supreme Court was required to decide a related issue of whether the notice of appeal in a “locality prosecution” which identified the Commonwealth as the appellee was sufficient to permit an appeal to go forward. She sees no reason why the same logic should not apply in this case — especially as the Commonwealth’s Attorney (as in Johnson the prosecutor of local ordinances by agreement with Henrico County) had actually appeared at the petition stage.
Judge Causey takes the majority to task over what she sees as a form over substance result. She notes that misnomers are common in civil practice and, so long as it is clear that the proper party is before the court, the style of the case is not the determining factor as to jurisdiction. Here, the Commonwealth’s Attorney clearly had notice of the appeal and appeared to defend it. Judge Causey concludes that, as in Nicholson and Johnson, the appearance of the proper party (even if somewhat unwittingly) should act as a waiver of the defect in the notice of appeal.
She concludes her dissent by chiding the Office of the Attorney General for its mercurial policy of “representing the Commonwealth in matters related to violations of local ordinances” “when it chooses.” She also chides the majority for dismissing the appeal after it had been granted, contending that it is doing so sua sponte rather than on the motion of the parties, as the Commonwealth asked only to be allowed to withdraw as counsel.
I find myself in sympathy with Judge Causey — but more so because I have always thought that the state/locality division of prosecution was a bit ridiculous given that most Commonwealth’s Attorneys operate under similar arrangements with the local government attorneys in their jurisdictions. Now that the legislature has sorted out the appeal of right business, may the next stage in reform of the judicial system will be to revamp the trial courts. Addressing the state/locality duality.
I suspect the Lundmark will be satisfied with a delayed appeal and not pursue this to the Supreme Court, but it would make an interesting issue if the Court were to have a chance to take it up.
Time for another patented rant.
There have been a number of news stories dealing with Virginia politics and politicians that have raised my hackles lately. [Ed. Note: the phrase “raise my hackles” refers to hairs or a ruff of fur on the back of an animal’s neck that raises when the animal is alerted to danger or is preparing to attack. Humans have the same response, its just not particularly noticeable.]
The first involved Victoria Manning, a member of the Virginia Beach School Board and recently appointed member of Governor Glenn Younkin’s education working group. Manning shared a Facebook post weighing in on the school division’s ESL program:
VB Schools has 300 additional ESL students in the past year. Most are from south america [sic]. Our ESL budget has increased over $1 million in 2 years. Continuing to educate South Americans is not sustainable.
Let’s start with the fact that ESL education is required by federal and state law and receives significant funding from both the federal and state governments. The $1,000,000 figure Manning cited was the total increase of ESL designated funds, but only $166,000 of that was from local support — meaning that 83% came from federal and state funding. Moreover, ESL spending accounts for less than 1% of Virginia Beach’s school budget, which for this year is expected to exceed $1 billion dollars, an overall increase of over 10% from last year, with the increase in ESL expenditures representing less than 1% of the increase, and, again, 83% of that was not local money — so Manning is complaining about 0.017% of the total budget. Granted, when you’re talking a billion dollars, that’s still a lot of money which theoretically could be spent on other things. Except, of course that if Virginia Beach decided to defy the law, it would lose almost 60 times the amount of local money that would be freed up in federal and state aid — because it would lose all of the ESL funding, not just the $834,000 of new funding. While that money does go to support ESL programs and teachers, it also contributes to the overall budget in other ways.
Second, ESL students make up 3% of the district’s students, about 1,700 students. Manning refers to ESL students as coming mostly from “[S]outh [A]merica,” but what she meant was “countries south of the US border with Mexico,” as the ESL students are coming primarily from Mexico (which is in North America) and Central America (most of which is also geologically in North America), and the Caribbean — but, as the local chair of the Chamber of Commerce (a well-know leftist organization <– sarcasm, for those who can no longer tell) pointed out, the schools are not educating “South Americans,” but residents of Virginia Beach.
Another critic pointed out that many ESL students are not Spanish-speakers, but come from other non-English speaking countries as is common with many urban areas with large naval installations. Indeed, the Virginia Beach Schools website says that there are over 70 different languages spoken by ESL students.
In response to the controversy, Manning shared a statement explaining that her words were twisted and she did not intend to cause any harm. The primary harm she caused was being removed from the Governor’s working group.
The next story that set my neck hairs on end involved Governor Youngkin’s first veto. The bill would have authorized Arlington County to employ an independent policing auditor selected by the Board of Supervisors, rather than the County Manager. Arlington is, because of an historical oddity in its charter, the only County that requires state permission for its elected board to make direct hires of this nature. The County will still have an independent auditor, just one hired by the County Manager. The auditor will act under the direction of a civilian oversite board. Youngkin said in his veto statement that
The best way to ensure that any bad actors within law enforcement are held accountable is to stand up for law enforcement, not tear them down or subject them to politically-motivated inquiries.
It seems that the only “political motivation” in this incident is the Republican Governor denying a Democrat-dominated county the same authority to oversee police as is afforded to every other City and County in the Commonwealth. Contrary to the implication of his statement, his veto does nothing to “stand up for law enforcement,” it simply denies the Board the direct authority to hire the independent auditor, but the job will still be filled.
Like so many actions by politicians, the Governor has used a nearly meaningless act to portray himself in a favorable light to his base. “I stand up for law enforcement!”,” he will proclaim. “I kept the anti-police Arlington Board of Supervisors from hiring a political witch hunter!” But the county manager, who is answerable to the Board, will still hire the auditor and still have a civilian board of “witch hunters” to review complaints against the County Police Department — a move which the department supports.
In a similar vein, since the “cross-over day,” the day when the Virginia General Assembly’s Senate and House are supposed to have completed work on bills introduced in their respective chambers and start working on the bills from the other chamber, there have been a slew of stories about the House (GOP-controlled) or the Senate (Democrat-controlled) “killing” some or another piece of legislation from the other chamber. Invariably, these are bills that the sponsors knew with absolute certainty would fail in the other chamber because the issue was an issue which was favored by the extreme wing of the sponsor’s party (and often not even by a majority of his or her constituents).
Most, if not all, of these bills were introduced to fulfill a campaign promise. None where the object of any effort to seek passage by the other body, and were mostly passed in the sponsor’s chambers on party-line votes. In short, these bills had nothing to do with governing, and everything to do with politics and, more specifically, the ability to fundraise by demonizing the “obstruction” of the other party — “We must capture the Senate!” “Help me turn the House Blue again!”
How did this Commonwealth and the nation get to the point that compromise became an impossibility? Many of the bills addressed issues of legitimate concern to many in the Commonwealth, but now no action will be taken because each part has taken an all or nothing approach to their agendas.
I am reminded of a story told about Ronald Reagan and Tip O’Neil. The two would frequently meet in Reagan’s private office in the Old EOB in the evening — this was in the days before the 24-hour news cycle, so “a lid” had already been called on the days news. The President and Speaker would sit in arm chairs and “discuss” some issue then before the Congress until each was red-faced and exhausted. Then one of them would tell an Irish joke, they would both laugh, and then decide what to do about the issue.
End of rant.