COURT OF APPEALS OF VIRGINIA

Present: Judges Humphrey s, O’Brien and Malveaux Argued at Richmond, Virginia

TIFFANY BYRD MEMORANDUM OPINION * BY v. Record No. 0782-15-2 J UDGE MARY BENN ETT MALVEAUX JULY 19, 2016 PETERSBURG DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Pamela S. Baskervill, Judge Jean M. McKeen; Lynn L. Robinson, Guardian ad litemfor the minor children (Tomlin & McKeen, PLLC, on brief), for appellant. Joan M. O’Donnell (Olde Towne Lawyers, on brief), for appellee.

Tiffany Byrd (“mother”) appeals from three orders of the Circuit Court of the City of Petersburg (the “circuit court”) wh ich found abuse or neglect of thr ee of her children . She argues

that the circuit court erred in find ing abuse or neglect of the childr en because there was no evidence the children were left unsupervised. She also cont ends that the circuit c ourt erred in considering evidence of mother’s prior interac tion with the Petersburg Department of Social Services (“PDSS”). On appeal, PDSS assigns cr oss-error on the ground th at this Court lacks juri sdiction to hear this appeal because the orders were not final orde rs. For the reasons th at follow, we agree. 1 Accordingly, we dismiss the appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 As we hold that this Court does not have jurisdiction to hear th is appeal, we do not address the merits of the argum ents presented by mother.UNPUBLISHED- 2 - I. BACKGROUND On May 7, 2014, PDSS filed petitions in the Petersburg Juvenile and Domestic Relations District Court (the “JDR court”) alleging that three children—E.B., E.B. , and J.B.—were without parental care or supervision due to their mother’s incarceration. The peti tions sought entry of “an emergency removal order pursuant to Va. Code §16.1-251, an adjudication of abuse or neglect pursuant to Va. Code §16.1-252, [and] te mporary custody and other relief pursuant to Va. Code §16.1-278.2.” The JDR court entered emer gency removal orders for the children that day, and transferred temporary legal custody of the children to PDSS. The JDR court entered preliminary removal orders on May 14, 2014. In thes e orders, the JDR court set two court dates, one on June 4, 2014, for “[a]djudication,” and one on July 16, 2014, for “[d]isposition.” At the June 4 adjudicatory hearing, the JD R court found that PDSS failed to prove that the children were abused or negl ected as defined in Code § 16.1-228 or were at risk of abuse or neglect as provided in Code § 16.1-241(A)(2a). PDSS appealed this orde r to the circuit court. 2 On April 15, 2015, after several continuances, th e circuit court held a hearing on PDSS’s appeal. Initially, PDSS asked the court to consider a change to the foster care plan at that hearing, which the court granted ov er mother’s objection. The cour t stated that, “I find that 16.1-278.2 gives [the circuit court] the full range of options today for disposition [and] that a separate hearing is not necessar y.” Later in the hearing, the ci rcuit court found that PDSS met its burden in proving abuse and neglect. After maki ng this finding, the court reversed its earlier ruling that it would review the foster care plan. That same day, the circuit court entered orde rs for each child. Each order was captioned as an “Adjudicatory Order for Abus e or Neglect Cases.” Each orde r stated that “[a] hearing has been held for the adjudication of the petition” and that the child was abused or neglected as

2 The JDR court stayed the execution of th e order dismissing the petitions pending the appeal by PDSS.- 3 - defined in Code § 16.1-228. The orders directed th at each “[c]hild shall remain in legal custody of DSS until further order of a court of competent jurisdiction.” The orders further directed that the cases were “remanded to the Petersburg J&DR Court for further proceedings consistent with this finding.” Mother filed a not ice of appeal of the orders.

II. ANALYSIS “The Court of Appeals of Vi rginia is a court of limited ju risdiction.” Canova Electric Contracting v. LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996). As a court of limited jurisdiction, “[w]e have no jurisdiction over appeals except that granted us by statute.” Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991). Generally, “[t]his Court has appellate jurisdiction ove r final decrees of a circuit court in domestic relations matters arising under Titles 16.1 or 20, a nd any interlocutory decree ororder involving the granting, dissolving, or denying of an injunction or ‘adjud icating the principles of a cause.’” Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551 (1999) (quoting Code § 17.1-405(3)(f), (4)). “The question of whether a particular order is a final judgment is a question of law that we

review de novo .” Carrithers v. Harrah, 60 Va. App. 69, 73, 723 S.E.2d 638, 639 (2012). The General Assembly has specified what orders can be appealed in the context of child abuse and neglect cases. Preliminary removal or ders in such cases are governed by Code § 16.1-252. It provides that the h earing required under the code section “shall be in the nature of a preliminary hearing rather than a final de termination of custody.” Code § 16.1-252(A). Pursuant to this code section, the JDR court “sha ll determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence.” Code § 16.1-252(G). If the parents or custodian, guardian ad litem , or petitioning department obj ects to a finding of abuse or neglect being made at that hearing, then the JD R court must schedule an adjudicatory hearing on a date within thirty days of the preliminary hear ing. Id. If no party ob jects, and the JDR court- 4 - finds that the child at issue wa s abused or neglected, the JDR c ourt must schedule a dispositional hearing for a date within sixty days of the preliminary hearing. Code § 16.1-252(H). Code § 16.1-278.2 governs dispositional orde rs in abuse and neglect cases. A dispositional order in accordance with this code section is not a “‘final order’ in the conventional sense of the term . . . because Code § 16.1-278.2 c ontemplates the possibility of further review by the J&DR court.” Blevins v. Prince William Cnty. Dep’t of Soc. Servs., 61 Va. App. 94, 98, 733 S.E.2d 674, 676 (2012). The General Assembl y, however, has provided by statute that dispositional orders are final orders subject to appeal. S ee Code § 16.1-296(A) (“[O]rders entered pursuant to § 16.1-278.2 are final orders from which an appeal may be taken.”). At a dispositional hearing under Code § 16.1-278.2(A), a court may make any of the following seven dispositions: (1) enter an order under Code § 16.1- 278 and order that services be provided for the child; (2) permit the child to remain with his parent, subject to conditions and limitations the court may order with respect to the child, his pare nt, or another adult who occupies the same dwelling; (3) prohibit or limit the contact between the child and his parent or other adul t occupant of the same dwelling; (4) permit the local board of social services or other agency to place the child in a suitable home or facility; (5) transfer custody to a relative, a child welfare agency, private organization or licensed facility, or to the local board of social services; (6) transfer legal custody and order the parent to part icipate in services or programs or refrain from certain conduct; or(7) terminate the rights of the parent. Blevins, 61 Va. App. at 99, 733 S.E.2d at 677. PDSS argues that the orders entered in this case were adjudicatory orders that were preliminary in nature, and not di spositional orders. Th erefore, the disposi tive question on appeal

is whether the circuit court’s orders were dispositional orde rs entered pursuant to Code § 16.1-278.2.- 5 - Here, it is clear that the circuit court’s orders were not dispositional orders. The orders were captioned as “adjudicatory,” and reflect that a hearing on adjudication of the petitions had occurred. The orders only reflect that the circ uit court adjudicated PDSS’ s allegations of abuse or neglect of the children, with the court making a finding of abuse or neglect of each child. This conclusion is supported by the circuit court’s rema nd of the cases to the JDR court for “further proceedings consistent with this finding .” 3 (Emphasis added). Further, it is also clear that the orders were adjudicatory in nature as they did not make any of the seven dispositions provided in C ode § 16.1-278.2(A). However, at oral argument, mother contended that these orders were dispos itional in nature becaus e the circuit court did make a disposition pursuant to Code § 16.1-278.2(A) : the court transferred custody to PDSS. This argument is without merit. The circuit court’s order did not transfer custody to PDSS. PDSS had been granted temporary custody on May 7, 2014, when the JDR court entered emergency removal orders for the children. The circuit court’s orders merely maintained the status quo—a continuation of PDSS’s temporar y custody of the children. This is further

3 The circuit court’s order rema nded the matter back to the JDR court for further proceedings. We find no authority in the st atute for the circuit court’s remand. Code § 16.1-278.2(A) provides that “[w]ithin 60 days of a preliminary removal order hearing . . . or a hearing on a preliminary protective order . . . , a di spositional hearing shall be held if the court found abuse or neglect and (i) removed the child from his home or (ii) entered a preliminary protective order.” Here, the JD R court entered preliminary rem oval orders and scheduled an adjudicatory hearing. At that hearing, it found no evidence of abuse or neglect. PDSS appealed the order from that hearing to the circuit court. The circuit court held an adjudicatory hearing and found abuse or neglect of the children, but then failed to hold a dispositional hearing pursuant to Code § 16.1-278.2. An appeal from the juvenile court must be heard de novo by the circuit court. Code § 16.1-136. “[A]n appeal to the circuit court fr om a court not of reco rd under Code § 16.1-136 annuls the judgment of the inferior tribunal as completely as if th ere had been no previous trial.” Walker v. Dep’t of Pub. Welfare, 223 Va. 557, 563, 290 S.E.2d 887, 890 (1982). “A court which hears a case de novo . . . acts not as a court of appeals but as one exercisi ng original jurisdiction.” Addison v. Salyer, 185 Va. 644, 649, 40 S.E.2d 260, 263 (1946) (quoting Gemmell, Inc. v. Svea Fire, etc., Ins. Co., 166 Va. 95, 98, 184 S.E. 457, 458 (1936)). “Such an appeal transfers the entire record to the circuit court for retrial as though the case had been originally brought there .” Mahoney v. Mahoney, 34 Va. App. 63, 66, 537 S.E.2d 626, 628 (2000) ( en banc ) (emphasis in original).- 6 - reflected in the language of the orders. They stated that the children “shall remain in legal custody of DSS until further order of a court of competent jurisdiction.” (Emphasis added). The court orders simply preserved the children’s current si tuation, as they were to remain as they were in the temporary legal custody of PDSS. Th e orders did not make any final determinations regarding custody. Therefore, the action taken by the circuit cour t was not a permanent transfer of custody as contemplated by Code § 16.1-278.2(A)(5). The orders in this case do not reflect that any of the dispositional options provi ded by Code § 16.1-278.2(A) were exercised by the

circuit court. After reviewing the language of the April 15, 2015 orders, a nd in light of the statutory scheme concerning preliminary rem oval orders and dispositional or ders, we hold that the orders were adjudicatory in nature. Thus, they are not final orders for purposes of appeal because they were not entered pursuant to Code § 16.1-278.2.- 7 - III. CONCLUSION For the foregoing reasons, we hold that we l ack jurisdiction to consider the merits of mother’s appeal; therefore, we dismiss the appeal. 4 Appeal dismissed.

4 We note that we dismiss the appeal without pr ejudice for either party to re-file an appeal when the circuit court has held a dispositional hearing and entered a dispositional order pursuant to Code § 16.1-278.2. We disagree with the concu rrence/dissent’s asserti on that the decision in this case leaves mother with no opportunity to appeal the circuit cour t’s finding of abuse or neglect to this Court. As mandated by statute, a dispositiona l hearing will occur in this case. Once a dispositional order is entered, mother has every right to appeal the finding of abuse and neglect to this Court as pros cribed by Code § 16.1-278.2(A). We also find no authority for the concurrence/ dissent’s direction to remand this matter to the circuit court with specific instructions to hold a dispositional hearing and enter a final dispositional order pursuant to Code § 16.1-278.2(A). The concurrence/dissent cites Commonwealth v. Fairfax County Sch. Bd., 49 Va. App. 797, 645 S.E.2d 337 (2007), in support of this proposition. However, that case is di stinguishable from the case at hand. In Fairfax County, this Court found that we l acked jurisdiction to hear an in terlocutory appeal under Code § 8.01-670.1 and subsequently remanded the matter “to the trial court for further proceedings.” Interlocutory appeals involve issu es necessary to the resolution of the matter pending before the trial court. These determinations must occur before the trial court’s final ruling on the entire case. Appellate courts are veste d, per statute, with limited jurisd iction to resolve these issues. Once the appellate court has resolved the conflict, it is deprived of its jurisdiction and the trial court is again vested with the authority to con tinue with the proceeding. In Fairfax County, this Court simply remanded the case back to the circuit court for it to proceed with the case after it found it lacked jurisdiction over an interlocutory appeal, which occurred during the pendency of the litigation. The Court did not mandate that th e circuit court take any specific action; it only remanded the case back the circuit court to procee d with the pending trial. This remand merely put the case back in the proce dural posture it was in prior to the interlocutory appeal, without requiring any specific action on the part of the circ uit court. The concurre nce/dissent would have this Court go beyond what we did in Fairfax Count y. It would direct th e trial court to take specific actions, after holding that we lack jurisdiction to review the matter. Finding no support for this directive, we find dismi ssal the appropriate remedy on appeal.- 8 - Humphreys, J., concurring, in part, and dissenting, in part. I join entirely with the analysis of the ma jority in declining to decide the case on the merits because the circuit court’s adjudicatory orders, were not a final disposition as contemplated by Code § 16.1-278.2(D). 5 I write separately because I respectfully disa gree with the judgment of the majority dismissing this appeal without re manding the case to the circuit co urt with instructions that it dispose of the case in on e of the ways prescribed by law. In my view, the form the majority’s judgment takes undermines the statutory scheme app licable here and has the additional effect of forever denying mother her statutory right to appeal the circuit cour t’s finding of abuse and neglect to this Court. The majority correctly co ncludes that we lack the appellate jurisdiction to consider the merits of the assignments of error at this time because the circuit court failed to finally dispose of the matter pur suant to the requirements of th e statute. Despite having found error in that regard, the majority further concludes that nothing can be done about it. I disagree

with this latter conclusion for several reasons. My colleagues in the majority reduce to f ootnote 3 the precise st atutory foundation for not doing what they have done here. The circu it court’s order remanded the matter to the JDR court for further proceedings without ever hol ding a dispositional hearing or entering a dispositional order as required by the very st atute the majority cites. Code § 16.1-278.2(A) provides that “[w]ithin 60 days of a preliminar y removal order hearing . . . or a hearing on a preliminary protective order . . . , a dispositional hearing shallbe held if the c ourt found abuse or neglect and (i) removed the child from his home or (ii) entered a preliminary prot ective order.”

5 Although outside of our purview to remedy, in my view it is unfortunate that, for the reasons stated by the majority, we are unable to re solve the merits of the assignments of error in this appeal. Mother’s children ha ve been in foster care in the custody of PDSS while this matter languished in the circuit court without a decision for the better part of a year for no better reason than the inexcusable one that the PDSS provided at oral argument: “i t fell through the cracks.”- 9 - (Emphasis added). The failure of the circuit court to follow a statutory mandate in a case of this nature is a quintessential error that this Court has ju risdiction to correct. However, the judgment of the majority dismissing this appeal for lack of such jurisdiction, wit hout further direction to the circuit court for further proceed ings consistent with the statut ory scheme, results in an error

that is now uncorrectable. It certainly cannot be corrected by the JDR court, where the circuit court remanded the case for disposition. The JD R court reached a contrary finding with regard to abuse and neglect of the children and also ha s no authority to disturb the judgment of a higher

court after a trial de novo , despite our unanimous conclusi on today that such judgment was

flawed. In this case, the JDR court entered prelimin ary removal orders and held an adjudicatory hearing in which it found no evidence of abuse or neglect. PDSS appealed that adjudicatory

order to the circuit court. The record demonstr ates that the circuit court held an adjudicatory hearing and found abuse or neglect of the children, but then failed to hold a dispositional hearing, despite a clear statutory responsibility to do so pursuant to Code § 16.1-278.2. In fact, the form adjudicatory order utilized in these cases includes a series of checkboxes delineating the five possible dispositions authorized by the statute, one of which is a provision with the following language: “As the child has been found to be abusedor neglected, or at ri sk of abuse or neglect as provided in Virginia Code § 16.1-241(A)(2a), a dispositional he aring pursuant to Virginia Code § 16.1-278.2 shall be held on ________.” Thus , the form adjudicatory order contains language that affirms that the circuit court wa s required by statute to conduct a dispositional hearing based upon its finding of abuse or neglect. Still, the box next to this provision on the

order was not checked and the date for such hear ing was never set. Instead, the circuit court, without any statutory authority to do so, remanded the case to the JDR court for “further proceedings consistent with this finding.”- 10 - In addition to not being authorized by the statutory scheme, the circuit court’s remand to JDR court was in contradiction to the well-settled pr inciple that an appeal from the juvenile court

must be heard de novo by the circuit court and the retrial must occur “ as though the case had been originally brought there .” Mahoney v. Mahoney, 34 Va. App. 63, 66, 537 S.E.2d 626, 628 (2000). An appeal to the circuit court fr om a JDR court under Code § 16.1-136 annuls the judgment of the inferior tribunal as completely as if there had been no previ ous trial. See Gaskill v. Commonwealth, 206 Va. 486, 490, 144 S.E.2d 293, 296 ( 1965). The circuit court ignored this well-settled principle of law. Instead of making a final dispositi on, the circuit court attempted to delegate its statutory ob ligation to do so to the JDR court, even though the JDR court’s previous finding that there was no abuse or neglect had been annulle d completely by PDSS’s appeal to circuit court. Furthermore, w ithout a remand to circuit court w ith instructions that a final disposition be entered consistent with the optio ns available in the stat ute, mother now has no opportunity to appeal the circuit co urt’s finding of abuse or neglect to this Court, thus effectively depriving her of her st atutory right to do so. 6 For these reasons, I respectfully dissent from the judgment of the majority dismissing this appeal without remanding it to the circuit court with direction that it conclude its statutory responsibilities, because such di sposition would leave the circuit court’s erroneous remand to the JDR court in effect. I agree with my colleagues that the circuit court erred in its failure to hold a dispositional hearing or issue a dispositional order. Consequently, I agree that there is no final

6 The majority asserts in footnote 4 that “W e note that we dismiss the appeal without prejudice for either party to re-file an appeal when the circuit court ha s held a dispositional hearing and entered a dispositional order pursuan t to Code § 16.1-278.2.” This statement is both unnecessary and factually incorrect. As noted above, the circuit court improperly remanded the case to the JDR court for disposition. By dism issing this appeal withou t a remand, the majority has left nothing for the circuit court to do, as the case will return to the JDR court, where we all agree it was improperly sent, rather than the circui t court. The circuit court will no longer have either the obligation or the authority to conduct a dispositional hearing or enter a dispositional order as contemplated by the majority’s footnote.- 11 - dispositional order for this Court to review on its merits. See Code § 16.1-278.2(D). However, having found that the circuit court erred, we have the authority and obligation to instruct the

circuit court on the correction of its error. 7 Therefore, I would dismi ss the appeal as untimely but remand this case to the circuit court with specif ic direction to hold a dispositional hearing and enter a final dispositional order as required by Code § 16.1-278.2(A), from which a further appeal may be taken if either of the parties deem it appropriate.

7 Indeed, in contrast to the act ions of the majority in this case, having found that we lack the ability to exercise our appe llate jurisdiction, our appellate c ourts routinely remand the matter for further proceedings consistent with our an alysis. See, e.g. West v. Commonwealth, 249 Va. 241, 455 S.E.2d 1 (1995) (dismissing an appeal for lack of jurisdiction and remanding to trial court to enter final judgme nt); Commonwealth v. Fairfax Cty. Sch. Bd., 49 Va. App. 797, 645 S.E.2d 337 (2007) (dismissing an appeal for lack of jurisdiction and remanding to the trial court for further proceedings).