COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton, Coleman, Willis, 

 Elder, Bray, Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

KHALID KARIM, S/K/A 

 KHALID Y. KARIM 

 OPINION BY 

v. Record No. 1711-94-4 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 30, 1996 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 Michael J. Cassidy for appellant. 

 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on briefs), for appellee. 

 By opinion issued February 13, 1996, a panel of this Court 

vacated Khalid Karim's convictions for murder and abduction and 

remanded the case for further proceedings on the ground that the 

statutory notice requirements concerning the initiation of 

proceedings against juveniles had not been met. Karim v. 

Commonwealth, 21 Va. App. 652, 466 S.E.2d 772 (1996). A 

rehearing en banc was granted to determine whether the notice 

requirements were met and whether the alleged failure to meet the 

requirements created a jurisdictional defect, requiring vacation 

of the convictions.1 We conclude the proceedings against Karim 

were improperly initiated and, therefore, the juvenile court 

lacked jurisdiction over the matter. Because the juvenile court 

 

 1 The remaining issues resolved by the panel opinion 

were not reheard en banc. 
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lacked jurisdiction to transfer the case to the circuit court, 

the circuit court did not acquire jurisdiction to hear the case. 

 Accordingly, the order of conviction is vacated and the case is 

remanded. 

 BACKGROUND 

 Karim was arrested and charged with multiple offenses 

relating to a July 31, 1993 shooting incident in which one youth 

was killed and two others were wounded. On August 5, 1993, 

Investigator Edward R. Guckenberger filed a petition with the 

juvenile court asking that Karim, a juvenile, "and the persons 

having his or her custody and control be summoned to appear 

before" the juvenile court judge. Guckenberger listed a specific 

Alexandria address for Karim as well as a phone number. In the 

space for the parents' names and addresses, Guckenberger wrote 

"Unknown to Petitioner." 

 The juvenile court appointed Marlene Hahn as Karim's 

guardian ad litem. A summons was personally served on Karim on 

August 6, 1993. A copy of the petition was attached to the 

summons. 

 The juvenile court record contains an August 6, 1993 order 

appointing two attorneys (Cassidy and Adams) to represent Karim. 

 The juvenile record also contains a document entitled, "Record 

of Proceedings." It is signed by the juvenile judge and is dated 

August 6, 1993. The document indicates "[t]hat Probable Cause to 

detain is Found," and the court ordered that Karim be held at 
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Landmark Detention Center. 

 On September 22, 1993, the Commonwealth's Attorney filed a 

notice of intent to certify Karim for trial as an adult. On 

October 7, 1993, the juvenile court conducted a hearing "to 

determine whether or not there is probable cause to believe that 

an offense had occurred." The record contains Karim's motion to 

dismiss that was filed on October 7, 1993. In that motion, he 

asserted that the juvenile court failed to follow the notice 

requirements of Code § 16.1-263. 

 The following dialogue took place at the October 7, 1993 

hearing: 

 THE COURT: I just wanted to raise something. 

 When I was going through the pleadings, I 

couldn't find the notice of the certification 

-- and I did find that. That's why -- mainly 

why I had the recess. 

 And secondly, Mr. Karim, I normally 

always ask before the hearing -- I think this 

is the first time I've never asked in all 

these years -- whether you had a parent here. 

 I don't think you have a parent here. 

 FONTE (PROBATION OFFICER): Is your stepmom 

here? 

 KARIM (Karim): I have a stepmom, but she's 

not here though. 

 THE COURT: Your dad is living in the 

District of Columbia? 

 KARIM: Silver Spring. 

 THE COURT: Silver Spring, Maryland? 

 KARIM: Yes, sir. 

 THE COURT: What is your dad's name? 

 KARIM: Syed Karim. 
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 THE COURT: Syed Karim? 

 KARIM: (Nodding head). 

 THE COURT: Do you have any way we could 

contact him? 

 KARIM: Yes, sir. His work number. 

 THE COURT: Could you give that to Mr. Fonte? 

 KARIM: (Number given). 

 THE COURT: Okay. And is he aware of this 

proceeding? 

 KARIM: He knows that I went to court last 

week. He visited me at the Detention Home, 

and I told him I was going to court someday 

this week but I wasn't sure what the date 

was. 

 THE COURT: Okay. And he just decided not to 

come or -- 

 KARIM: He didn't know when the exact date 

was. 

 The hearing further revealed that Karim's mother lived in 

Chicago. However, Karim advised the court that he thought his 

stepmother, Delta Karim, had legal custody of him. She lived in 

Alexandria, Virginia, and her address and phone number were known 

to the probation officer. 

 At the conclusion of the hearing, the Court made the 

following finding: 

 THE COURT: All right -- I'm going to go 

ahead and deny Mr. Cassidy's motion to 

strike, and I will make a finding, for 

probable cause purposes, that the two 

delinquent acts did occur. 

 And I'll make a finding that the 

requirements of 16.1-269a, section 1, 2 and 
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3a have been met.2

 And I'm going to continue 

the case for a transfer report and transfer 

hearing pursuant to section C of 16.1-269. 

 After ordering the transfer study, the court scheduled the 

next hearing for December 2, 1993. On November 12, 1993, Sean 

Coleman was appointed as Karim's guardian ad litem. 

 On November 30, 1993, Probation Officer Frank A. Fonte typed 

and filed a transfer study/report with the juvenile court. The 

front sheet of the report contained the following information: 

 

 2 Code § 16.1-269(A) deals with the juvenile court's 

decision whether to retain jurisdiction or transfer jurisdiction 

to a circuit court so the juvenile can be tried as an adult. The 

portion of the statute cited by the juvenile judge provides: 

 If a child fifteen years of age or older 

is charged with an offense which, if 

committed by an adult, could be punishable by 

confinement in a state correctional facility, 

the court shall on motion of the attorney for 

the Commonwealth and prior to a hearing on 

the merits, hold a transfer hearing and may 

retain jurisdiction or transfer such child 

for proper criminal proceedings to the 

appropriate circuit court having criminal 

jurisdiction of such offenses if committed by 

an adult. Any transfer to the appropriate 

circuit court shall be subject to the 

following conditions: 

 1. The child was fifteen or more years 

of age at the time of the alleged commission 

of the offense. 

 2. Notice as prescribed in §§ 16.1-263 

and 16.1-264 shall be given to the child and 

his parent, guardian, legal custodian or 

other person standing in loco parentis or 

attorney. 

 3. The court finds: 

 a. There is probable cause to believe 

that the child committed the delinquent act 

 . . . which would be a felony if committed 

by an adult[.] 
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 FATHER: Syeed Kharim, (street address listed) 

 MOTHER: Anita Kharim, Chicago, Illinois 

 GUARDIAN: Delta Kharim 

 ADDRESS: (street address listed) 

 The record does not contain a transcript of the December 2, 

1993 transfer hearing. After the hearing, at which Karim's 

attorney and guardian ad litem were present, the juvenile judge 

entered a transfer order. The judge checked boxes for the 

following statements on the preprinted order: 

 The Court finds from the evidence presented 

that there is probable cause to believe the 

juvenile committed the delinquent act 

alleged. 

 That the child was fifteen or more years of 

age at the time of the alleged commission of 

the offense; the child is competent to stand 

trial; and the interests of the community 

require that the child be placed under legal 

restraint or discipline. 

 the child is charged with an 

offense (murder, rape, robbery) for 

which amenability to treatment or 

rehabilitation as a juvenile is not 

a factor in this proceeding. 

 The Court 

 TRANSFERS and so certifies the child for 

proper criminal proceedings to the 

Circuit Court. 

 On December 20, 1993, the grand jury indicted Karim. On 

January 28, 1994, Karim filed notice that he intended to argue a 

number of pretrial motions, including a motion to dismiss the 

indictment. On February 4, 1994, Karim argued his motion to 

dismiss. He alleged that the juvenile court never acquired 

jurisdiction because neither of his parents received proper 

notice. The trial court denied this motion. 
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JURISDICTION AND TRANSFER 

 Code § 16.1-263, governing the institution of proceedings 

against a juvenile, provides in pertinent part as follows: 

 A. After a petition has been filed, the 

court shall direct the issuance of summonses, 

one directed to the child, if the child is 

twelve or more years of age, and another to 

the parents, guardian, legal custodian or 

other person standing in loco parentis, and 

such other persons as appear to the court to 

be proper or necessary parties to the 

proceedings. The summons shall require them 

to appear personally before the court at the 

time fixed to answer or testify as to the 

allegations of the petition. Where the 

custodian is summoned and such person is not 

the parent of the child in question, the 

parent shall also be served with a summons. 

The court may direct that other proper or 

necessary parties to the proceedings be 

notified of the pendency of the case, the 

charge and the time and place for the 

hearing. 

 B. The summons shall advise the parties of 

their right to counsel as provided in 

§ 16.1-266. A copy of the petition shall 

accompany each summons for the initial 

proceedings. Notice of subsequent 

proceedings shall be provided to all parties 

in interest. In all cases where a party is 

represented by counsel and counsel has been 

provided with a copy of the petition and due 

notice as to time, date and place of the 

hearing, such action shall be deemed due 

notice to such party, unless such counsel has 

notified the court that he no longer 

represents such party. 

* * * * * * * 

 E. No such summons or notification shall be 

required if the judge shall certify on the 

record that the identity of a parent or 
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guardian is not reasonably ascertainable. An 

affidavit of the mother that the identity of 

the father is not reasonably ascertainable 

shall be sufficient evidence of this fact, 

provided there is no other evidence before 

the court which would refute such an 

affidavit. 

 "If a party designated in § 16.1-263 A to be served with a 

summons can be found within the Commonwealth, the summons shall 

be served upon him in person." Code § 16.1-264. Service on one 

parent is sufficient in cases of delinquency. Id.

 If a party designated to be served in 

 § 16.1-263 is within the Commonwealth and 

cannot be found, but his address is known or 

can with reasonable diligence be ascertained, 

the summons may be served upon him by mailing 

a copy thereof by certified mail return 

receipt requested. If he is without the 

Commonwealth but can be found or his address 

is known, or can with reasonable diligence be 

ascertained, service of summons may be made 

either by delivering a copy thereof to him 

personally or by mailing a copy thereof to 

him by certified mail return receipt 

requested. 

Id.

 An important consideration in 

interpreting the meaning of a statute is 

whether it is mandatory and jurisdictional or 

directory and procedural. When asked to 

decide whether various provisions relating to 

juvenile transfer proceedings are 

jurisdictional in nature, the Supreme Court 

has analyzed the provisions "to determine 

whether they impart a substantive right to 

the juvenile or merely impose a procedural 

requirement." A mandatory provision in a 

statute is one that connotes a command and 

the omission of "'which renders the 

proceeding to which it relates illegal and 

void, while a directory provision is one the 

observance of which is not necessary to the 

validity of the proceeding; and a statute may 

be mandatory in some respects, and directory 
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in others.'" 

Cheeks v. Commonwealth, 20 Va. App. 578, 582-83, 459 S.E.2d 107, 

109 (1995) (citations omitted) (holding that failure to give 

notice denied appellant substantive right to meaningful transfer 

appeal hearing at which he could present further evidence on 

issue of transfer; also finding constitutional due process 

violation). 

 "It is clear beyond dispute that the waiver of jurisdiction 

[by a juvenile court] is a 'critically important' action 

determining vitally important statutory rights of the juvenile." 

Kent v. United States, 383 U.S. 541, 556 (1966) (holding that 

the "critically important" decision to try juvenile as adult 

entitles juvenile to certain procedures and benefits as a 

consequence of his statutory right to the "exclusive" 

jurisdiction of the juvenile court). 

 Notice, to comply with due process 

requirements, must be given sufficiently in 

advance of scheduled court proceedings so 

that reasonable opportunity to prepare will 

be afforded, and it must "set forth the 

alleged misconduct with particularity." . . . 

Due process of law requires notice of the 

sort we have described -- that is, notice 

which would be deemed constitutionally 

adequate in a civil or criminal proceeding. 

It does not allow a hearing to be held in 

which a youth's freedom and his parents' 

right to his custody are at stake without 

giving them timely notice, in advance of the 

hearing, of the specific issues that they 

must meet. 

In re Gault, 387 U.S. 1, 33-34 (1967) (footnote omitted). 

 The provisions in the Code specifying parents of a juvenile 
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as proper and necessary parties who must receive notice are 

mandatory. See Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739, 

743 (1966) (construing former Code §§ 16.1-166, 16.1-167, and 

16.1-172). In French, petitions were filed against a juvenile 

defendant, and the juvenile judge transferred the case to the 

circuit court for the defendant to be tried as an adult. The 

defendant's parents did not receive notice and were not present 

at the transfer hearing; a guardian ad litem had not been 

appointed. The Supreme Court of Virginia stated: 

 Since the [juvenile] court did not follow the 

mandatory requirements of Code §§ 16.1-166, 

16.1-167, 16.1-172, 16.1-173 and 16.1-174, 

supra, the petitioner was not afforded a 

proper hearing under the Juvenile and 

Domestic Relations Court Law before being 

sent on to the circuit court to be indicted 

and tried as an adult. 

Id. at 77, 147 S.E.2d at 742. The Court held that the circuit 

court's order of conviction was void because the juvenile court 

failed to give "notice to all proper and necessary parties." Id.

 The Court refused to adopt the Commonwealth's contention "that 

the statutes relating to proceedings in juvenile courts are 

procedural and not jurisdictional." Id. 

 Code § 16.1-158 gives the juvenile court 

exclusive original jurisdiction over the 

offenses alleged to have been committed by 

the petitioner, and the clear purpose and 

intent of the Juvenile and Domestic Relations 

Court Law cannot be achieved if it is not 

mandatory that the proceedings set forth in 

 §§ 16.1-164, 16.1-166, 16.1-167, 16.1-172, 

 16.1-173 and 16.1-176(a) be complied with. 

 Indeed, the very language of the statutes 

makes it mandatory that the aforesaid 

mentioned statutes be followed before 
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criminal jurisdiction in a proper court of 

record comes into being. 

Id. at 79, 147 S.E.2d at 743. 

 In Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775 

(1972), the defendant collaterally attacked a past conviction 

that was rendered when he was a juvenile, twenty-two years 

earlier. Although Jones "conceded the 'possibility' that the 

juvenile court [might] have appointed a lawyer for him" at the 

juvenile proceeding, at the hearing to attack the conviction, 

Jones testified "that his parents were not present and that a 

guardian ad litem was not appointed for him." Id. at 426-27, 192 

S.E.2d at 777. The applicable juvenile statute at the time of 

the original prosecution was Code § 63-273 (1948); that Code 

section used language substantially similar to former Code 

§ 16.1-172, found by the French Court to be mandatory. In 

reversing the conviction, the Court explained: 

 [T]he official records of the court are 

completely silent as to any notification of 

the parents, certification by the judge as to 

such notification, the presence of the 

parents at the trial, the appointment of a 

probation officer or guardian ad litem to 

represent defendant, and the presence of 

either of the latter two at the trial. 

Jones, 213 Va. at 427, 192 S.E.2d at 777. 

 The Court noted that, although "significant changes in 

philosophy regarding juvenile proceedings have taken place since" 

the defendant's original trial, "the requirement that the parents 

of an infant defendant charged with a crime have notification of 
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the time and place of his trial and an opportunity to be present 

has remained constant." Id. at 427-28, 192 S.E.2d at 777. 

 In Turner v. Commonwealth, 216 Va. 666, 222 S.E.2d 517 

(1976), after a juvenile petition was filed, the juvenile 

defendant and the defendant's father appeared before the juvenile 

court for a detention hearing on October 7, 1974. On October 8, 

1974, the juvenile judge appointed an attorney for the juvenile 

defendant, who was "'notified of [the transfer] hearing date.' 

The record fail[ed] to show, however, that any written notice of 

the time, place, and purpose of the October 24 [transfer] hearing 

was given the defendant, his parents, or his attorney." Id. at 

667, 222 S.E.2d at 518. Turner, his attorney, and his parents 

were present at the transfer hearing. 

 Turner argued that "the circuit court lacked jurisdiction to 

try him because notice in writing of the transfer hearing was not 

given him, his parents, or his attorney." The Court noted that 

"the form of notice and the method of giving notice are 

ordinarily considered matters of procedural and not substantive 

due process." Id. at 668, 222 S.E.2d at 519. Because the form 

of the notice was procedural rather than jurisdictional, and 

because the parents were present at the hearing, the Court held 

that "any departure from" the requirement of written notice could 

"be cured or waived by the appearance of proper and necessary 

parties." Id. (emphasis added). Turner, however, is 

distinguishable from the present case because neither Karim's 
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parents nor legal guardian were given proper notice or were 

present at the hearing. 

 The record clearly shows that at the initiation of the 

proceedings on October 7, 1993, the juvenile judge knew Karim's 

father's Maryland address and knew that the father had recently 

visited his son in jail. The juvenile judge had evidence that 

Karim's stepmother was his guardian and knew her Virginia 

address. Despite having this information, the juvenile judge 

failed to give notice to the father or stepmother, but instead 

determined probable cause and ordered a transfer report. 

 The transfer order entered by the juvenile judge on December 

2, 1993, declared that the hearing "was conducted pursuant to 

proper notice pursuant to Va. Code §§ 16.1-263 and 16.1-264 to 

the juvenile, the juvenile's parents, guardian, legal custodian 

or other person standing in loco parentis or attorney." However, 

the record fails to establish that the juvenile proceedings 

against Karim were properly initiated such that the court had 

jurisdiction to proceed with the October 7, 1993 probable cause 

hearing. 

 The record does not show that Karim's parents or legal 

guardian were present on October 7, 1993 or that the juvenile 

judge redetermined probable cause on any subsequent date. 

Instead, the record shows that, on December 2, 1993, the juvenile 

judge merely continued where he left off after the October 7, 

1993 proceeding in which he found probable cause. On December 2, 
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1993, the court used the earlier-requested transfer report, found 

Karim to be nonamenable to treatment as a juvenile, and 

transferred jurisdiction to the circuit court. Therefore, the 

avowal in the December 2, 1993 order that proper notice had been 

given was belied by the absence of evidence that the juvenile 

judge attempted to excuse or correct the earlier failure to give 

proper notice prior to finding probable cause and transferring to 

the circuit court. 

 Based on French, Jones, and Cheeks, we find that compliance 

with the Code sections at issue here, relating to procedures for 

instituting proceedings against juveniles, are mandatory and 

jurisdictional. The failure to strictly follow the notice 

procedures contained in the Code denied Karim a substantive right 

and the constitutional guarantee of due process.3

 The record failed to establish that Karim's parents or 

guardian, who were proper and necessary parties, were properly 

given notice. The juvenile judge did not certify on the record 

that the identity of a parent or guardian was not reasonably 

ascertainable. Therefore, the juvenile court did not acquire 

jurisdiction. Because it did not possess jurisdiction, the 

juvenile court lacked authority to transfer the case to the 

circuit court, and, consequently, the circuit court lacked 

 

 3 We disagree with the Commonwealth's contention that the 

cases stand for the proposition that a juvenile's representation 

by a guardian ad litem effectively cures non-compliance with Code 

§ 16.1-263. 
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jurisdiction to try Karim as an adult. See State v. Taylor, 498 

N.E.2d 211 (Ohio Ct. App. 1985) (reversing and remanding adult 

conviction where failure to give notice to parent of juvenile 

proceeding resulted in due process violation; appellate court 

held that juvenile court was without jurisdiction to effect 

transfer of jurisdiction to adult trial court). 

 Because the circuit court had no jurisdiction, we vacate the 

order of conviction and remand the case to the circuit court with 

instructions to remand the case to the juvenile court for further 

proceedings against Karim as are appropriate and consistent with 

this opinion, if the Commonwealth be so advised.4

Vacated and remanded.

 

 4 We do not hold that notice for the transfer hearing was 

improperly given. Notwithstanding the provision of proper 

statutory notice for the transfer hearing, the juvenile and 

domestic relations court's failure to initiate proceedings upon 

proper notice in accordance with Code § 16.1-263 deprived it of 

jurisdiction and the attendant power to transfer the case to the 

circuit court.