COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton*

Argued at Norfolk, Virginia 

GRADY W. PERRY 

 MEMORANDUM OPINION** BY 

v. Record No. 1366-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 FEBRUARY 2, 1999 

CLARENCE H. CARTER, COMMISSIONER, 

 VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 Bernard T. Holmes (Holmes & Associates, P.C., 

on brief), for appellant. 

 Cheryl A. Wilkerson, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Ashley L. Taylor, Jr., Deputy Attorney 

General; Siran S. Faulders, Senior Assistant 

Attorney General; Daniel J. Poynor, Assistant 

Attorney General, on brief), for appellee. 

 Grady W. Perry (appellant) appeals the trial court's order 

granting judgment in his favor and dismissing the administrative 

finding of child abuse against him. He contends that the trial 

court erred in dismissing the case on a basis other than one he 

deemed appropriate. He also appeals the trial court's denial of 

attorneys' fees. For the reasons that follow, we dismiss the 

 

 *Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

 **Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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appeal. 
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I. BACKGROUND 

 The facts are undisputed. On March 9, 1990, the Norfolk 

Department of Human Services (local agency) received a complaint 

alleging physical abuse by appellant of his five-year-old son, 

M.S. The local agency conducted an investigation and entered a 

disposition of "Founded-Physical Abuse." The notice to appellant 

advising him of the results of the investigation and his appeal 

rights was misaddressed and not timely received by appellant. 

 In 1995 appellant discovered that his name was listed in the 

Commonwealth's central registry with the disposition of 

"Founded-Physical Abuse." Appellant contacted the local agency 

regarding the lack of notice and on October 10, 1995, the agency 

responded. 

 A review of our record indicates the 

notification letter was sent to an incorrect 

address, and, therefore, you may not have 

been formally notified of the disposition and 

your right to appeal the decision. 

 By copy of this letter, I am informing you 

that you have thirty days to request an 

appeal of the disposition of the above 

mentioned matter. 

 Within the appropriate time limitation, appellant formally 

requested an appeal of the 1990 disposition finding by the local 

agency. Following an informal conference, the local agency 

officer assigned to the case rendered a decision upholding the 

original complaint and disposition of "Founded-Physical Abuse." 

 Appellant requested further review by the Commissioner of 

the Virginia Department of Social Services (Department). The 
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parties presented evidence and the designated hearing officer 

upheld the local agency's founded disposition. 

 On December 9, 1996, appellant filed a Petition for Appeal 

in the Circuit Court of the City of Norfolk, seeking judicial 

review of the hearing officer's decision. A judicial review 

hearing was conducted on December 2, 1997. The trial court found 

that deficiencies in the documentation of the investigation and 

the delay in notice and opportunity to challenge the founded 

disposition impaired appellant's ability to challenge the 

disposition five years later. The final order entered on May 1, 

1998, read as follows: 

 ADJUDGED, ORDERED and DECREED that the 

disposition is reversed and hereby amended to 

"Unfounded" and all records concerning the 

investigation and disposition of the March 9, 

1990 complaint shall be purged from the 

Central Registry and the records of the 

Norfolk Division of Social Services, as 

provided by departmental policy. 

Additionally, the trial court denied appellant's request for 

attorneys' fees. 

II. STANDING 

 Appellant succeeded at the trial court level in his request 

to reverse the Department's administrative finding of abuse and 

to have purged from the central registry all records relating to 

the case. Nevertheless, he challenges on appeal the trial 

court's reasoning in dismissing the case. Appellant argues that 

the trial court's failure to find any statutory or constitutional 

violations will have a "chilling" effect on his parental rights. 
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 For the reasons that follow, we dismiss the appeal. 

 Under Code § 17.1-405, recodifying Code § 17-116.05, only an 

"aggrieved party" may appeal to the Court of Appeals. "It is 

elementary that an appellant must have been aggrieved by the 

decree appealed from or he has no standing. . . ." Stone v. 

Henderson, 182 Va. 648, 651, 29 S.E.2d 845, 846 (1944). "The 

word `aggrieved' in a statute, it has been held, refers to a 

substantial grievance, a denial of some personal or property 

right, legal or equitable, or the imposition upon a party of a 

burden or obligation." D'Alessio v. Lukhard, 5 Va. App. 404, 

408, 363 S.E.2d 715, 718 (1988). 

 Before a person is entitled to an appeal or 

writ of error he must show that he has an 

immediate, pecuniary and substantial interest 

in the litigation, and not a remote or 

indirect interest. He must also show that he 

has been aggrieved by the judgment or decree 

of the lower court. Appeals and writs of 

error are not allowed for the purpose of 

settling abstract questions, however 

interesting and important to the public they 

may be, but only to correct errors 

injuriously affecting the appellant or 

plaintiff in error. 

Nicholas v. Lawrence, 161 Va. 589, 593, 171 S.E. 673, 674 (1933) 

(quoted in Virginia Employment Comm'n v. City of Virginia Beach, 

222 Va. 728, 732, 284 S.E.2d 595, 597 (1981)). 

 The case of Commonwealth v. Harley, 256 Va. 216, 504 S.E.2d 

852 (1998), recently decided by the Supreme Court, is 

dispositive. In Harley, the defendant appealed his six felony 

convictions to this Court, arguing that the trial court erred in 
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denying his motion for a transcript of a suppression hearing at 

the Commonwealth's expense. In a published opinion, we held that 

the defendant was constitutionally entitled to a free transcript 

of the suppression hearing. See Harley v. Commonwealth, 25 Va. 

App. 342, 350, 488 S.E.2d 647, 750 (1997). However, we concluded 

that the trial court's error was harmless because there were "no 

significant discrepancies" between the witnesses' testimony at 

the hearing and their testimony at trial. Id. at 351, 488 S.E.2d 

at 651. Accordingly, we affirmed the defendant's convictions. 

See id.

 The Commonwealth filed a petition for appeal with the 

Supreme Court, seeking reversal of this Court's decision that the 

defendant was constitutionally entitled to a free transcript of 

the suppression hearing. The Supreme Court dismissed the appeal 

on the basis that the Commonwealth lacked standing as a "party 

aggrieved." Harley, 256 Va. at 220, 504 S.E.2d at 854. 

 We do not agree that the Commonwealth is 

aggrieved by the Court of Appeals' ruling 

with respect to the issue of Harley's 

entitlement to a free transcript of his 

suppression hearing. That issue was rendered 

moot by the Court of Appeals' further ruling 

that the error in the trial court's denial of 

a free transcript was harmless. 

* * * * * * * 

 In reality, the Commonwealth invites 

this Court to render an advisory opinion on a 

moot question based upon speculative facts. 

This is an exercise in which the Court 

traditionally declines to participate. "The 

reason . . . is that the courts are not 

constituted . . . to render advisory 
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opinions, to decide moot questions or to 

answer inquiries which are merely 

speculative." 

Id. at 219-20, 504 S.E.2d at 853-54 (citations omitted). 

 In the instant case, the trial court granted judgment in 

appellant's favor and dismissed the finding against him. The 

disposition of founded physical abuse was changed to unfounded, 

and the records were purged from the central registry. In its 

final order, the trial court held that the procedural defects in 

the case "were so substantial that they impaired [appellant's] 

ability to challenge the findings at the administrative review 

proceedings." In short, he won. There was no other relief yet 

to be afforded this litigant. 

 While appellant may prefer that he prevail on a different or 

broader ground, this does not give him standing to appeal the 

trial court's decision in his favor. We hold that appellant, as 

the prevailing party, is not an "aggrieved party" within the 

meaning of Code § 17.1-405, recodifying Code § 17-116.05. 

 Appellant's argument that the trial court's decision will 

have a "chilling" effect on his parental rights in the future, 

which is sufficient to invoke standing, lacks merit. His 

apprehension that he will suffer from some future burden does not 

qualify him as an "aggrieved party" within the meaning of Code 

§ 17.1-405, recodifying Code § 17-116.05. See id. at 219, 504 

S.E.2d at 854. Appellant's "concerns are hypothetical and can 

only be based, at best, upon speculation and conjecture." Id. 
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Accordingly, we dismiss the appeal as it relates to appellant's 

first assignment of error. 
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II. ATTORNEYS' FEES 

 Appellant next argues that the trial court erred in denying 

his request for attorneys' fees. He contends that as the 

prevailing party in the trial court, he was entitled to 

reasonable costs and attorneys' fees under Code § 9-6.14:21. The 

Department argues that Code § 9-6.14:21 does not apply to appeals 

of child protective services determinations because the local 

agency is not subject to provisions of the statute. 

 Assuming, without deciding, that Code § 9-6.14:21 applies to 

the local agency, we hold that the trial court did not abuse its 

discretion in denying the requested fees. That statute provides 

in pertinent part: 

 In any civil case brought under Article 4 

(§ 9-6.14:15 et seq.) of this chapter and 

§ 9-6.14:4.1, in which any person contests 

any agency action, as defined in § 9-6.14:4, 

such person shall be entitled to recover from 

that agency, as defined in the section 

referred to above . . . reasonable costs and 

attorney fees if such person substantially

prevails on the merits of the case and the 

agency's position is not substantially 

justified, unless special circumstances would 

make an award unjust. 

Code § 9-6.14:21 (emphasis added). 

 In the instant case, although appellant met the first prong 

by prevailing on the merits of the case, we cannot say the local 

agency was "not substantially justified" in its position. The 

trial court made no such finding and the record does not 

establish it. Appellant's lack of notice of the 1990 

administrative finding was due to a mistake of fact by the local 
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agency and as soon as the mistake was discovered, appellant was 

afforded a delayed appeal by the Department. Appellant sought 

judicial review of the Department's decision, and the trial court 

reversed those findings and ruled in his favor. The trial judge 

did not abuse its discretion in denying the request for 

attorneys' fees. Accordingly, the trial court's decision is 

affirmed. 

 For the reasons stated, we dismiss the appeal and the 

request for attorneys' fees. 

 Dismissed.