COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges 

Argued at Alexandria, Virginia 

FAIRFAX COUNTY DEPARTMENT 

 OF FAMILY SERVICES 

 OPINION BY 

v. Record No. 0964-98-4 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 30, 1999 

D.N. AND S.N. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

Darrell D. Jackson, Assistant County 

Attorney (David P. Bobzien, County Attorney; 

Robert Lyndon Howell, Deputy County 

Attorney; Dennis R. Bates, Senior Assistant 

County Attorney, on brief), for appellant. 

(Peter D. Greenspun; Thomas Peter Mann; 

Peter D. Greenspun & Associates, on brief), 

for appellees. 

 In this appeal, the Fairfax County Department of Family 

Services ("appellant") contends the circuit court erred by 

prohibiting it from introducing evidence of physical abuse at a 

trial de novo to determine whether A.N. was an "abused or 

neglected child" as defined by Code § 16.1-228(1). We agree and 

reverse. 

 The facts relevant to our review follow. On October 4, 

1996, Child Protective Services received a confidential referral 

indicating that A.N., a fifteen-year-old girl, received several 

bruises as a result of disciplining by her father, S.N. Later 
that day, Christy Rogers, an investigator, interviewed A.N. She 

observed several bruises on A.N.'s left wrist and left leg. The 

child stated that her father inflicted the bruises with a racket 

after she refused to go to a family event. Ms. Rogers also 

interviewed D.N., the child's mother, who verified that S.N. 

struck the child with a racket. During a subsequent interview 

with Rogers on October 31, 1996, A.N. disclosed that her father 

had digitally penetrated her vagina on two occasions. 

 On November 8, 1996, the juvenile and domestic relations 

district court ("juvenile court") issued a petition alleging 

that A.N. was an abused child pursuant to Code § 16.1-241(A)(1) 

and entered a Preliminary Protective Order. At a hearing on the 

merits, A.N. testified regarding the alleged incidents of sexual 

abuse committed by her father. The juvenile court found A.N. to 

be an "abused or neglected child" within the meaning of Code 

§ 16.1-228(4), which defines "abused or neglected child" as any 

child "[w]hose parents or other person responsible for his [sic] 

care commits or allows to be committed any sexual act upon a 

child in violation of the law . . . ." S.N. subsequently 

appealed the juvenile court's decision to the Circuit Court of 

Fairfax County. 

 At the commencement of proceedings in the circuit court, 

appellant moved for a continuance on the ground that A.N. was 

not present to testify. The court denied appellant's motion. 

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Without A.N.'s testimony regarding her father's alleged sexual 

abuse, appellant proposed to prove A.N.'s status as an "abused 

or neglected child" as defined by Code § 16.1-228(1). Under 

this subparagraph, an "abused or neglected child" is any child: 

[w]hose parents or other person responsible 

for his [sic] care creates or inflicts, 

threatens to create or inflict, or allows to 

be created or inflicted upon such child a 

physical or mental injury by other than 

accidental means, or creates substantial 

risk of death, disfigurement or impairment 

of bodily or mental functions . . . . 

The circuit court found as a matter of law that appellant could 

not proceed under a subparagraph of Code § 16.1-228 that had not 

been previously considered in the juvenile court and limited the 

presentation of evidence to that which related to whether A.N. 

was an "abused or neglected child" under Code § 16.1-228(4), the 

subparagraph on which the juvenile court based its finding. 

 Appellant's counsel noted his objection to the court's 

ruling, stating that he was prepared to present evidence of 

physical abuse and to proceed under Code § 16.1-228(1). The 

court granted S.N. and D.N.'s motion to dismiss the case, 

entering its order on the same day. Appellant subsequently 

appealed to this Court, naming both parents as appellees. 

 We find the trial court erred by limiting appellant's 

presentation of the evidence and we reverse.1

 

 1Appellees contend the issue on appeal is procedurally barred 

pursuant to Rule 5A:18 on the ground that appellant failed to 

object to the circuit court's dismissal and that appellant 
 Code § 16.1-241(A)(1) grants the juvenile court 

jurisdiction in cases involving the custody, visitation, 

support, control, or disposition of an allegedly abused or 

neglected child. Code § 16.1-228 sets forth five definitions of 

an "abused or neglected child." These definitions include any 

child "[w]hose parent[] . . . inflicts . . . a physical or 

mental injury by other than accidental means," Code 

§ 16.1-228(1), and any child "[w]hose parent[] . . . commits 

. . . any sexual act upon a child . . . ." Code § 16.1-228(4). 

 A party may appeal from any final order or judgment of the 

juvenile court that affects a party's rights. Code 

§ 16.1-296(A). Upon appeal from the juvenile court, the circuit 

court's jurisdiction is derivative. See Addison v. Salyer, 185 

Va. 644, 651, 40 S.E.2d 260, 264 (1946) ("The general rule is 

that jurisdiction of the circuit . . . courts to try cases 

appealed from a decision of a trial justice is derivative . . . 

-- that is, the jurisdiction of the appellate court in such 

matters is the same as that of the court in which the action was 

 

failed to "articulate why the case should not have been 

dismissed or proffer what the testimony of the complaining 

witness would have been." Appellees' contention is without 

merit. The subject of this appeal is not the trial court's 

dismissal of the petition. Rather, the issue on appeal is the 

propriety of the circuit court's ruling limiting the scope of 

its de novo trial to issues raised under the subparagraph that 

constituted the basis of the juvenile court's ruling. 

Therefore, whether appellant registered an objection to the 

dismissal of his case is not dispositive. Furthermore, it is 

evident in the record that appellant properly preserved the 

issue raised on appeal. 

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originally instituted."). "In all cases on appeal [from the 

juvenile court], the circuit court in the disposition of such 

cases shall have all the powers and authority granted [to the 

juvenile court] . . . ." Code § 16.1-296(I). See Peyton v. 

French, 207 Va. 73, 79, 147 S.E.2d 739, 743 (1966). 

 In addition, an appeal from the juvenile court must be 

heard de novo by the circuit court. Code § 16.1-136. "'A de

novo hearing means a trial anew, with the burden of proof 

remaining upon the party with whom it rested in the juvenile 

court.'" Parish v. Spaulding, 20 Va. App. 130, 132, 455 S.E.2d 

728, 729 (1995) (quoting Box v. Talley, 1 Va. App. 289, 292, 338 

S.E.2d 349, 351 (1986)). A trial de novo in the circuit court 

"annuls the judgment of the [juvenile court] as completely as if 

there had been no previous trial . . . and . . . grants to a 

litigant every advantage which would have been [available to the 

litigant] had the case been tried originally in [the circuit] 

court." Walker v. Dept. of Public Welfare, 223 Va. 557, 563, 

290 S.E.2d 887, 890 (1982) (citations omitted), quoted in

Parish, 20 Va. App. at 132, 455 S.E.2d at 729. "'A court which 

hears a case de novo, which disregards the judgment of the court 

below, which hears evidence anew and new evidence, and which 

makes final disposition of the case, acts not as a court of 

appeals but as one exercising original jurisdiction.'" Addison, 

185 Va. at 650, 40 S.E.2d at 263 (quoting Gemmell, Inc. v. Svea 

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Fire and Life Insurance, 166 Va. 95, 98, 184 S.E. 457, 458 

(1936)). 

 It follows from these principles that, at a trial de novo

in the circuit court, the parties are not restricted to the 

evidence presented before the juvenile court. The circuit court 

must consider all relevant evidence, even if such evidence had 

not been considered by the juvenile court. See Parish, 20 Va. 

App. at 132-33, 455 S.E.2d at 729-30 (holding that the circuit 

court erred by refusing to consider evidence of events occurring 

after the juvenile court's hearing and by failing to consider 

all relevant information available at the time of trial). 

 Here, appellant invoked the jurisdiction of the juvenile 

court by filing a petition alleging that A.N. was an "abused or 

neglected child" under Code § 16.1-241(A)(1).2 This provision 

provides the jurisdictional basis for the adjudication of cases 

by the juvenile court and it contains within its sweep any child 

who is alleged to be abused, as defined elsewhere in the Code. 

The juvenile court thus had the power to find that A.N. was an 

"abused or neglected child" under any of this term's five 

statutory definitions. See Code § 16.1-228(1-5). Because the 

 

 2Code § 16.1-241(A)(1) gives the juvenile court exclusive 

original jurisdiction over all cases involving: 

 The custody, visitation, support, control, 

or disposition of a child . . . [w]ho is 

alleged to be abused, neglected, in need of 

services, in need of supervision, a status 

offender, or delinquent . . . . 

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circuit court derived its jurisdiction from the juvenile court 

and, on appeal, possessed the same "powers and authority" as the 

juvenile court, we find the circuit court's jurisdiction was 

identical to that of the juvenile court. The trial court 

therefore erred when it limited appellant to presenting evidence 

which related solely to whether A.N. met the definition of an 

"abused or neglected child" under Code § 16.1-228(4), the 

provision upon which the juvenile court had based its finding. 

 Appellees' reliance on Buck v. City of Danville in support 

of their position is misplaced. 213 Va. 387, 192 S.E.2d 758 

(1972). Buck addressed issues on appeal in the context of 

double jeopardy concerns.3 The constitutional prohibition of 

double jeopardy consists of three separate guarantees: (1) it 

protects against a second prosecution for the same offense after 

an acquittal; (2) it protects against a second prosecution for 

the same offense after conviction; and (3) it protects against 

multiple punishments for the same offense. Turner v. 

Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46 (1980). See

Va. Const. art. I, § 8. Appellees contend the juvenile court, 

 

 3In Buck, the Court held that a defendant who was tried in a 

court not of record on a warrant charging him with driving under 

the influence of alcohol, but who was convicted of the 

lesser-included offense of impaired driving, could not then be 

convicted in a de novo trial in the corporation court of driving 

under the influence of alcohol without violating the double 

jeopardy clause of the Constitution of Virginia. Id. at 388-89, 

192 S.E.2d at 759-60. The Court held the defendant's conviction 

of a lesser-included offense acquitted him of the driving under 

the influence charge. Id.

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by finding A.N. was an abused child under Code 16.1-228(4), 

"ruled out" a finding of abuse under any other subparagraph and, 

therefore, the circuit court properly refused to consider 

evidence pertaining to those subparagraphs. 

 The constitutional protections appellees invoke, however, 

are not applicable. The record fails to support appellees' 

contention the juvenile court "ruled out" or "acquitted" 

appellees of the allegation that their daughter was an "abused 

or neglected child" under the first subparagraph of Code 

§ 16.1-228, or even considered the issue. On the contrary, the 

only evidence of abuse before the juvenile court was A.N.'s 

testimony of her father's sexual abuse. Thus, the 

constitutional prohibition against a second prosecution for the 

same offense after an acquittal affords appellees no relief. 

 Based on the foregoing, we reverse the circuit court's 

dismissal of appellant's petition and remand this case to the 

circuit court for a trial de novo, consistent with this 

decision, if the appellant be so advised. 

 Reversed and remanded.

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