Jennifer G. Hughes v York County DSS

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
JENNIFER G. HUGHES
OPINION BY
v. 	Record No. 1642-00-1 	JUDGE NELSON T. OVERTON
JULY 3, 2001
YORK COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Raphael C. Connor (Peninsula Legal Aid
Center, Inc., on brief), for appellant.
Carla Blake Hook, Assistant County Attorney,
for appellee.
This matter arises out of a petition filed by the York
County Department of Social Services (department) to terminate
Jennifer G. Hughes' (appellant) parental rights to her two
daughters. 	Pursuant to Code § 16.1-266(A), the circuit court
appointed Stephen K. Smith as guardian ad litem to protect the
interests of the children. 	At the May 4, 2000 hearing before the
circuit court, the guardian ad litem joined the department in
requesting that appellant's parental rights be terminated. 	The
guardian ad litem also endorsed the final decree terminating
appellant's parental rights under the heading, "We ask for this."
Appellant filed a notice of appeal on June 19, 2000. 	She did
not list the name and address of the guardian ad litem on the
certificate. 	On October 10, 2000, we notified counsel for

appellant, counsel for the department, and the guardian ad litem
that the record of proceedings in this case had been received from
the trial court. 	In that same notice, in bold print, we advised
counsel for appellant to "consult Part 5A of the Rules [of the
Supreme Court of Virginia] for information on filing times and
other requirements" and indicated that "[f]ailure to comply with
the rules may result in various sanctions, including dismissal
of the appeal."
Upon filing the opening brief, counsel for appellant
included a certificate indicating that he served the department
with copies of the brief. 	The certificate made no reference to
the guardian ad litem. 	At that time, the guardian ad litem
remained a counsel of record in the case.1
"No appeal shall be allowed unless, within 30 days after
entry of final judgment or other appealable order or decree,
counsel [for appellant] files with the clerk of the trial court
a notice of appeal, and at the same time mails or delivers a
copy of such notice to all opposing counsel . . . ." 	Rule
5A:6(a). 	The notice of appeal must contain a certificate
listing all appellees and stating that the notice has been
mailed or delivered to all opposing counsel. 	Rule 5A:6(d).
Rule 5A:19(e) provides that copies of the opening brief
"shall be mailed or delivered to opposing counsel on or before
1 See Rule 1:5.
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the date of filing." 	The term "opposing counsel" is defined in
Rule 5A:1 as "depending on the context, 'counsel for the
appellant' or 'counsel for the appellee.'"
The term "appellee" is not specifically defined in the
rules. 	Black's Law Dictionary 95 (7th ed. 1999), defines
appellee as a "party against whom an appeal is taken and whose
role is to respond to that appeal, usu[ally] seeking affirmance
of the lower court's decision."
An appellate court cannot adjudicate an appeal unless all
necessary parties are properly before the court. 	Asch v.
Friends of the Community of the Mount Vernon Yacht Club, 251 Va.
89, 91, 465 S.E.2d 817, 818 (1996). 	A necessary party is one
whose interests are likely to be defeated or diminished by a
successful appeal. 	See id. at 90, 465 S.E.2d at 818. 	In Asch,
the Supreme Court explained that
"'[a necessary party's] interests in the
subject matter of the suit, and in the
relief sought, are so bound up with that of
the other parties, that their legal presence
as parties to the proceeding is an absolute
necessity, without which the court cannot
proceed. 	In such cases the court refuses to
entertain the suit, when these parties
cannot be subjected to its jurisdiction.'"
Id. at 91, 465 S.E.2d at 818 (citation omitted).
In a proceeding to terminate parental rights, the guardian
ad litem representing the interests of the children is an
indispensable party to the appeal of the final decree. 	See
Verrocchio v. Verrocchio, 16 Va. App. 314, 320, 429 S.E.2d 482,
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486 (1993) ("Code § 16.1-266 'recognizes that the substantive
rights and interests of the child are often separate and
distinct from those of the other parties to the litigation . . .
[and] that these rights and interests are best protected by an
independent party.'" (quoting Stanley v. Fairfax County Dep't of
Social Servs., 10 Va. App. 596, 601, 395 S.E.2d 199, 202 (1990),
aff'd, 242 Va. 60, 405 S.E.2d 621 (1991))). 	Indeed, in such a
case, the interests of the children are paramount. 	See Wright
v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 825, 433
S.E.2d 500, 503 (1993). 	Where the guardian ad litem has taken a
position on behalf of the children in opposition to the
appealing party, then the interests of the children are subject
to being "'defeated or diminished'" by the appellant's claim.
We hold, therefore, that the definition of appellee in Rule
5A:1 includes any indispensable party to the appeal. 	See Asch,
251 Va. at 90-91, 465 S.E.2d at 818. 	Thus, in the present case,
the guardian ad litem constituted an appellee and "opposing
counsel" for purposes of Rules 5A:6 and 5A:19. 	The record
reflects that appellant failed to provide the guardian ad litem
with the notice of appeal or the opening brief. 	The guardian
ad litem was not, therefore, made a party to the appeal.
Because the guardian ad litem was an indispensable party, we
cannot entertain this appeal. 	Accordingly, the appeal is
dismissed.
Dismissed.
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