Fairfax County Dept. of Family Services v DN & SN

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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