Juv & Dom Rel Dist Ct Proc

CHAPTER IX
JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES
TABLE OF CONTENTS
A. INTRODUCTION................................................................................................................................................................ 1 B. VENUE ................................................................................................................................................................................... 4 1. Virginia Code 16.1-243. Venue. ..................................................................................................................................... 4
a. Original venue:......................................................................................................................................................................................4 b. Transfer of venue: ................................................................................................................................................................................5 c. Records...................................................................................................................................................................................................6 a. Original Venue ......................................................................................................................................................................................6 b. Transfer of Venue Between Courts in Certain Instances Virginia Code 20-83.1 ....................................................................7
2. Venue of Proceedings Arising Out of Chapter 5 of Title 20 ( 20-61 et seq.) ........................................................... 6
C. APPOINTMENT OF COUNSEL AND GUARDIANS AD LITEM ........................................................................ 7 D. JUVENILE DELINQUENCY CASE PROCEDURES................................................................................................. 7 1. Case Initiation ..................................................................................................................................................................... 8
a. Filing of a Petition or Issuance of a Warrant ...................................................................................................................................8 b. Processing of a Child Taken Into Immediate Custody.................................................................................................................10 c. Clerks Office Processing of the Petition or Warrant ...................................................................................................................14 Right to Representation by a Lawyer...............................................................................................................................................15 Detention Hearing Pursuant to Virginia Code 16.1-250 ...........................................................................................................16 Competency to Stand Trial ...............................................................................................................................................................18 Subpoenas, Witness Summoning .....................................................................................................................................................21 Certification, Transfer or Waiver ....................................................................................................................................................21 Time Limitations. Va. Code 16.1-277.1 .......................................................................................................................................24 Motions and Other Subsequent Pleadings......................................................................................................................................25 Miscellaneous Pre-trial Proceedings ................................................................................................................................................25 Adjudicatory Hearing.........................................................................................................................................................................25 Disposition Hearing ...........................................................................................................................................................................27 Appeals.................................................................................................................................................................................................35 Post-Trial Actions When a Juvenile Committed to the Department of Juvenile Justice........................................................36
2. Pre-trial Procedures .......................................................................................................................................................... 15

a. b. c. d. e. f. g. h. a. b. c. d. a. b. c. d.
3. Trial Procedures ................................................................................................................................................................ 25
4. Post-Trial Procedures....................................................................................................................................................... 36
Records Retention and Destruction ................................................................................................................................................37 Statistical Reporting............................................................................................................................................................................39 Bond Forfeitures.................................................................................................................................................................................39 Violations of Court Orders ...............................................................................................................................................................40
E. CHILDREN IN NEED OF SERVICES, CHILDREN IN NEED OF SUPERVISION AND STATUS OFFENSES .............................................................................................................................................. 40 1. Definitions ......................................................................................................................................................................... 40 2. Case Initiation ................................................................................................................................................................... 41
a. Child in Need of Services and Status Offenders ...........................................................................................................................41 b. Child in Need of Supervision ...........................................................................................................................................................41
3. Pre-trial Procedures .......................................................................................................................................................... 41

a. Appointment of Counsel...................................................................................................................................................................42 b. Appointment of Court-Appointed Special Advocate ...................................................................................................................42
4. Case Hearing...................................................................................................................................................................... 42 5. Disposition Hearing ......................................................................................................................................................... 43 6. Post-Trial Procedures....................................................................................................................................................... 45
a. Children In Need of Services or Status Offenders........................................................................................................................43 b. Children In Need of Supervision .....................................................................................................................................................44 a. Appeal ..................................................................................................................................................................................................46 b. Request for New Trial .......................................................................................................................................................................46 c. Reopening and Modification of Disposition Orders ....................................................................................................................47
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F. ABUSE, NEGLECT, RELIEF OF CUSTODY, ENTRUSTMENT, FOSTER CARE AND TERMINATION OF PARENTAL RIGHTS ..................................................................................................... 48 1. Emergency Removal Hearings and Preliminary Removal Hearings.......................................................................... 48
a. b. c. d. e. f. g. h. i. a. b. c. d. e. f. g. h. i. j. k. l. m. n. a. b. c. d. e. f. a. b. c. d. a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. Emergency Removal Order ..............................................................................................................................................................48 Emergency Removal Hearing ...........................................................................................................................................................49 Preliminary Removal HearingPre-trial ........................................................................................................................................50 Preliminary Removal Hearing...........................................................................................................................................................53 Adjudicatory Hearing.........................................................................................................................................................................55 Disposition Hearing ...........................................................................................................................................................................56 Appeals.................................................................................................................................................................................................58 Statutes Pertinent to Emergency Removal and Preliminary Removal Proceedings .................................................................58 Newborn Children - Suspected Abuse or Neglect of Child Based on Prenatal Substance Abuse by Mother.. ...................60 Initiation...............................................................................................................................................................................................61 Ex parte Preliminary Protective Order.............................................................................................................................................62 Notice of the Adversary Hearing.. ...................................................................................................................................................62 Right to Counsel .................................................................................................................................................................................63 Transportation of Incarcerated Witness..........................................................................................................................................65 Hearing.................................................................................................................................................................................................65 PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527. ..................................................................................66 Finding of Abuse or Neglect at the Preliminary Protective Order Hearing. .............................................................................67 Adjudicatory Hearing When Abuse or Neglect of a Child is Alleged.. ......................................................................................67 Disposition Hearing When Child is Found to be Abused or Neglected....................................................................................68 Appeals.................................................................................................................................................................................................69 Violation of a Preliminary Protective Order Entered Pursuant to Virginia Code 16.1-253.................................................70 Court may appoint a Court Appointed Special Advocate............................................................................................................70 Newborn Children - Suspected Abuse or Neglect of Child Based on Prenatal Substance Abuse by Mother .....................70 Initiation...............................................................................................................................................................................................71 Pretrial ..................................................................................................................................................................................................72 Hearing on Petition for Relief of Custody......................................................................................................................................75 Post-hearing Procedures....................................................................................................................................................................77 Disposition Hearing.. .........................................................................................................................................................................78 Appeal ..................................................................................................................................................................................................80 Initiation...............................................................................................................................................................................................80 Pretrial ..................................................................................................................................................................................................81 Hearing.................................................................................................................................................................................................86 Disposition ..........................................................................................................................................................................................86 Transportation of Incarcerated Witness..........................................................................................................................................88 Foster Care Plan. ............................................................................................................................................................................... 91 Appointment of Guardian Ad Litem and Right To Counsel........................................................................................................92 Paternity ...............................................................................................................................................................................................93 Notice Provisions Applicable to the Hearing on the Foster Care Plan......................................................................................93 Foster Care Plan Hearing And Order..............................................................................................................................................94 Foster Care Review Petition .............................................................................................................................................................96 Appointment of Guardian Ad Litem and Right to Counsel .........................................................................................................99 Notice Provisions Applicable to the Foster Care Review Hearing ...........................................................................................100 Foster Care Review Hearing and Order........................................................................................................................................101 Permanency Planning Petition........................................................................................................................................................104 Appointment of Guardian Ad Litem and Right to Counsel .......................................................................................................109 Notice Provisions Applicable to the Permanency Planning Hearing .......................................................................................110 Permanency Planning Hearing and Order....................................................................................................................................111 Post Permanency Planning Review of Children in the Legal Custody of the Board or Agency ..........................................113 Permanent Foster Care ....................................................................................................................................................................115 Interstate Compact on the Placement of Children......................................................................................................................117 Petition for Termination of Parental Rights.................................................................................................................................119 Pretrial ................................................................................................................................................................................................120 Hearing...............................................................................................................................................................................................124 Post-hearing.......................................................................................................................................................................................129 Appeals of Termination of Residual Parental Rights Cases - Relevant Statutes .....................................................................130
2. Preliminary Protective Proceedings. Va. Code 16.1-253......................................................................................... 61
3. Petition by Custodian for Relief of Custody. Va. Code 16.1-277.02, 16.1-278.3................................................ 71
4. Petition for Approval of Entrustment Agreement. Va. Code 16.1-277.0163.2-903. .......................................... 80
5. Foster Care and Permanency Planning. Va. Code 16.1-281, 16.1-282, 16.1-282.1, 16.1-282.2......................... 88
6. Termination of Residual Parental Rights. Va. Code 16.1-283. .............................................................................. 119

a. b. c. d. e.
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G. REVERSAL OF VOLUNTARY TERMINATION OF PARENTAL RIGHTS ................................................... 131 H. CONSENT TO PARENTAL PLACEMENT ADOPTION..................................................................................... 131 1. Requirements for Consent to Adoption...................................................................................................................... 131 2. Execution and Acceptance of Consent to Adoption................................................................................................. 132 3. Exceptions to Consent Hearing Requirements .......................................................................................................... 133 4. Revocation of Consent................................................................................................................................................... 134 I. PROTECTIVE ORDER PROCEDURES, FAMILY ABUSE AND CRIMINAL CASES................................. 134 1. Definitions ....................................................................................................................................................................... 134 2. Firearms and Concealed Handgun Permit .................................................................................................................. 135 3. Nondisclosure of Information about Protected Person............................................................................................ 135 4. Protective Orders - Family Abuse ................................................................................................................................ 135
a. b. c. d.
Emergency Protective Orders for Family Abuse.........................................................................................................................135 Preliminary Protective Order for Family Abuse ..........................................................................................................................136 Protective Order for Family Abuse ...............................................................................................................................................138 Violation of a Family Abuse Protective Order ............................................................................................................................139 Emergency Protective Order Stalking........................................................................................................................................139 Preliminary Protective Order Stalking .......................................................................................................................................140 Protective Order Stalking.............................................................................................................................................................141 Violations of Stalking Protective Orders ......................................................................................................................................142
5. Protective Orders Stalking ......................................................................................................................................... 139

a. b. c. d.
6. Foreign Protective Orders ............................................................................................................................................. 142 7. Criminal Cases in Juvenile and Domestic Relations District Court......................................................................... 144
a. State Provisions.................................................................................................................................................................................142 b. Federal Provisions ............................................................................................................................................................................142 a. Crimes against a child.......................................................................................................................................................................144 b. Criminal family abuse cases.............................................................................................................................................................144
J. CUSTODY, VISITATION AND SUPPORT............................................................................................................... 146 1. Custody and Visitation................................................................................................................................................... 146

a. b. c. d.
Case Initiation ...................................................................................................................................................................................146 Pretrial ................................................................................................................................................................................................148 Trial.....................................................................................................................................................................................................149 Motions to Modify ...........................................................................................................................................................................151
2. Support Cases.................................................................................................................................................................. 152

a. b. c. d. e. f. g. Case Initiation of In-state Support Cases .....................................................................................................................................153 Pre-trial Procedures of In-State Support Cases ...........................................................................................................................155 Trial Procedures in In-state Support Cases ..................................................................................................................................156 Income Deduction Orders..............................................................................................................................................................161 Post-Trial Procedures.......................................................................................................................................................................165 Support Payment Enforcement Process .......................................................................................................................................166 Interstate Support Cases..................................................................................................................................................................171
3. 4. 5. 6.
Mediation in Custody and Support Cases ................................................................................................................... 217 Educational Seminars in Custody and Support Cases ............................................................................................... 218 Parentage Determinations ............................................................................................................................................. 218 Investigations and Reports............................................................................................................................................ 220
K. JUDICIAL AUTHORIZATION OF ABORTION (JUDICIAL BYPASS PROCEEDINGS)......................... 176 1. Filing the petition............................................................................................................................................................ 176 2. Right to counsel .............................................................................................................................................................. 177 3. Confidentiality and Notice of Hearing......................................................................................................................... 178 4. Hearing............................................................................................................................................................................. 178 5. Appeal .............................................................................................................................................................................. 179
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L. STANDBY GUARDIANS............................................................................................................................................... 179 1. Appointment of Standby Guardian Prior to the Triggering Event.......................................................................... 179 2. Court Approval of a Written Designation of a Standby Guardian .......................................................................... 180 3. Revocation, Refusal, Termination of Standby Guardianship ................................................................................... 181 4. Review of Standby Guardian......................................................................................................................................... 182 M. MISCELLANEOUS PROCEEDINGS ......................................................................................................................... 182 1. Authorization of Medical Treatment of Juveniles...................................................................................................... 182 2. Mental Illness or Retardation ........................................................................................................................................ 182 3. Emancipation of Minors................................................................................................................................................ 185 4. Treatment, Rehabilitation or Other Services .............................................................................................................. 185 5. Special Work Permits ..................................................................................................................................................... 185 6. Petition for Parental Participation ................................................................................................................................ 186 7. Drivers License Ceremony ........................................................................................................................................... 186 8. Petition for Cancellation of Juvenile's Drivers License ............................................................................................. 186 9. Petition for Relief from Legal Determination............................................................................................................. 187 N. CONFIDENTIALITY OF RECORDS......................................................................................................................... 188 1. Fingerprints and Photographs of Juveniles................................................................................................................. 188 2. Confidentiality of Department of Juvenile Justice Records...................................................................................... 189 3. Confidentiality of Law Enforcement Records............................................................................................................ 190 4. Docket and Order Books, Hearings and Records, Public Trial, Presence in Court .............................................. 191 5. Disposition of Papers..................................................................................................................................................... 191 6. Confidentiality of Court Records.................................................................................................................................. 191 7. Confidentiality of Circuit Court Records..................................................................................................................... 193 8. Disclosure of Vital Records........................................................................................................................................... 193 9. Sex Offenders and Crimes Against Minors Registry.................................................................................................. 193 APPENDIX: Standards to Govern the Performance of Guardians Ad Litem for Children .................................................................... 195
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A. INTRODUCTION The structure of the Virginia courts provides for juvenile and domestic relations district courts separate from the general district courts. The juvenile and domestic relations district courts have jurisdiction over all cases, matters, and proceedings involving: Delinquent children Children who refuse to take a blood or breath test when they are alleged to have been driving while intoxicated. The administrative suspension of a childs drivers license upon a charge of refusal to take a breath test or a charge of driving with a blood alcohol content of 0.08 percent or higher. Children charged with traffic infractions and violations. Children who are status offenders. Children in need of services. Children in need of supervision. Children who have been subjected to abuse or neglect (including sexual exploitation) or are at risk of being abused or neglected by a parent or custodian previously adjudicated as having abused or neglected a child in his care. Escapees from residential care facilities. Adults accused of child abuse or neglect, or of offenses against any child, except for certain labor violations pursuant to Virginia Code 40.1-113, or in which members of their families are victims. Violations of custody orders pursuant to Virginia Code 18.2-49.1. Adults accused of abuse of a spouse, ex-spouse, person with whom they have a child in common, or family or household member. Adults involved in disputes concerning the support, visitation or custody of a child (including appeals of administrative determinations by the Division of Child Support Enforcement). Abandonment of children. Foster care and entrustment agreements and the execution of consent in certain adoption cases. Court-ordered rehabilitative services. Court consent for certain medical treatments.
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Petitions by School Boards against a parent. Commitment of mentally ill adults (shared with general district court) and children and certification of mentally retarded children. Emancipation of minors. Parentage determinations. Petitions to enforce any request for information or subpoena that is not complied with or to review any refusal to issue a subpoena in an administrative appeal in a child abuse and neglect case. Petitions for judicial authorization of abortion without the consent of an authorized person. Petitions for approval of standby guardians. Under the Code of Virginia, a child, juvenile, or minor is defined as a person less than 18 years of age. The general categories of children defined in the law include the abused or neglected child, the abandoned child, the child in need of services, the child in need of supervision and the delinquent child.
This law shall be construed liberally and as remedial in character, and the powers hereby conferred are intended to be general to effect the beneficial purposes herein set forth. It is the intention of this law that in all proceedings the welfare of the child and the family, the safety of the community and the protection of rights of victims are the paramount concerns of the Commonwealth and to the end that these purposes may be attained, the judge shall possess all necessary and incidental powers and authority, whether legal or equitable in their nature This law shall be interpreted and construed so as to effectuate the following purposes: 1. To divert from or within the juvenile justice system, to the extent possible, consistent with the protection of the public safety, those children who can be cared for or treated through alternative programs; 2. To provide judicial procedures through which the provisions of this law are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other rights are recognized and enforced; 3. To separate a child from such childs parents, guardian, legal custodian or other person standing in loco parentis only when the childs welfare is endangered or it is in the interest of public safety and then only after consideration of alternatives to out-of-home placement which afford effective protection to the child, his family, and the community; and
4.
To protect the community against those acts of its citizens, both juveniles and adults, which are harmful to others and to reduce the incidence of delinquent behavior and to hold offenders accountable for their behavior.
Adults come within the jurisdiction of the juvenile and domestic relations district court because of their involvement in the case types listed above and because of charges of criminal acts against children or against family members.
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Although other statutes apply in juvenile and domestic relations district court, especially criminal and support statutes, the statutes which are the principal governing procedural provisions are found in Chapter 11 of Title 16.1 of the Code of Virginia, 16.1-226 through 16.1-361, which is entitled Juvenile and Domestic Relations District Court. These provisions apply to both juvenile and adult cases. The purpose and intent of this statutory plan was set forth by the General Assembly in Virginia Code 16.1-227. To further implement these provisions, the General Assembly also provided that the specific provisions of Chapter 11 of the Virginia Code, 16.1-226 through -361 would prevail over conflicting statutes in Title 16.1. Va. Code 16.1-229. Unique characteristics of the juvenile and domestic relations district court include: the intake and diversion process, the detention, disposition, and review progress hearings, and the security and ultimate destruction of case records involving juveniles. Each juvenile and domestic relations district court has an attached court services unit that is responsible for reviewing petitions involving children and may proceed informally in certain cases or may initiate a court case through petition filed by a complaining party. The court service unit handles the intake function using intake officers whenever possible. Detention hearings for children taken into immediate custody and not previously released are held on the next court day following detention in a jail or other facility or, if no judge sits in the court on that day, within 72 hours after the child is taken into custody. Disposition hearings in delinquency cases are held for sentencing purposes after guilt has been determined in an adjudicatory hearing and reports relating to the physical, mental and social conditions of the child and facts surrounding the offense have been filed. The court records for cases involving juveniles are to be kept secure from public scrutiny and expunged when the juvenile has reached age 19 and five years have elapsed since a hearing was conducted in that case, or kept until age 29 if found delinquent based on the commission of a misdemeanor offense or a traffic offense reportable to the Division of Motor Vehicles. However, if a juvenile was found delinquent based on the commission of an offense that would be a felony if committed by an adult, the records shall be retained. See APPENDIX C for detailed records retention and destruction requirements. Support cases involve receiving of petitions, scheduling of cases, issuing process to bring the parties to court, trying cases, issuing orders, and, upon request, conducting post-trial proceedings to enforce orders. Important features of the statutes governing support include: A parallel administrative procedure for establishing and enforcing support obligations is provided by the Division of Child Support Enforcement of the Department of Social Services. Individuals can use either the courts or the administrative agency. The Division of Child Support Enforcement is the only governmental entity providing assistance to support recipients in establishing, collecting, monitoring and enforcing support obligations
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Certain support matters are applicable to both circuit courts and district courts, including contents of orders and enforcement powers and registration of out-of-state support orders. B. VENUE The general venue provisions for cases involving juveniles are: 1. Virginia Code 16.1-243. Venue. a. Original venue: (1) Cases involving children, other than support or where a family abuse protective order is sought. If delinquency is alleged, the proceeding shall be commenced in the city or county where the acts constituting the alleged delinquency occurred or they may, with the written consent of the child and the Commonwealths attorney for both jurisdictions, be commenced in the city or county where the child resides In cases involving custody or visitation, the priority for determining the appropriate venue is as follows: . the jurisdiction which is the home of the child at the time of the filing of the petition or had been the home of the child within six months before the filing of the petition and the child is absent from the city or county because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in the city or county; the jurisdiction which has a significant connection with the child and in which there is substantial evidence concerning the childs present or future care, protection, training and personal relationships; the jurisdiction where the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or it is in the best interest of the child for the particular court to assume jurisdiction because no other city or county is an appropriate venue under the preceding provisions of this subdivision.
Adoption: In parental placement adoption consent hearings, the proceeding shall be commenced (i) in the city or county where the child to be adopted was born, (ii) in the city or county where the birth parent(s) reside or (iii) in the city or county where the prospective adoptive parent(s) reside.
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In all other proceedings involving children, the proceeding shall be commenced in the city or county where the child resides or in the city or county where the child is present when the proceedings are commenced. (2) Support: Proceedings that involve child or spousal support, exclusive of proceedings arising out of chapter 5 of Title 20 ( 20-61 et seq.), shall be commenced in the city or county where either party resides or in the city or county where the respondent is present when the proceeding commences. (3) Family abuse: Proceedings in which an order of protection is sought as a result of family abuse shall be commenced where (i) either party has his or her principal residence, (ii) the abuse occurred or (iii) a protective order was issued if at the time the proceeding is commenced the order is in effect to protect the petitioner or a family or household member of the petitioner. b. Transfer of venue: (1) Generally Except in custody, visitation and support cases, if the child resides in a city or county of the Commonwealth and the proceeding is commenced in a court of another city or county, that court may at any time, on its own motion or a motion of a party for good cause shown, transfer the proceeding to the city or county of the childs residence for such further action or proceedings as the court receiving the transfer may deem proper. However, such transfer may occur only after adjudication in delinquency proceedings. (2) Custody and visitation: In custody and visitation cases, if venue lies in one of several cities or counties, the court in which the motion for transfer is made shall determine which such city or county is the most appropriate venue unless the parties mutually agree to the selection of venue. In the consideration of the motion, the best interests of the child shall determine the most appropriate forum.
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(3) Support: In support proceedings, exclusive of proceedings arising under Chapter 5 of Title 20 (Virginia Code 20-61 et seq.), if the respondent resides in a city or county in the Commonwealth and the proceeding is commenced in a court of another city or county, that court may, at any time on its own motion or a motion of a party for good cause shown or by agreement of the parties, transfer the proceeding to the city or county of the respondents residence for such further action or proceedings as the court receiving the transfer may deem proper. For the purposes of determining venue of cases involving support, the respondents residence shall include any city or county in which the respondent has resided within the last six months prior to the commencement of the proceeding or in which the respondent is residing at the time that the motion for transfer of venue is made. If venue is transferable to one of several cities or counties, the court in which the motion for transfer is made shall determine which such city or county is the most appropriate venue unless the parties mutually agree to the selection of such venue. When the support proceeding is a companion case to a child custody or visitation proceeding, the provisions governing venue in the proceeding involving the childs custody and visitation shall govern. (4) Enforcement of orders for support, maintenance and custody: Any juvenile and domestic relations district court to which a suit is transferred for enforcement of orders pertaining to support, maintenance, care or custody pursuant to Virginia Code 20-79(c) may transfer the case as provided in this section. (5) Subsequent transfers: Any court receiving a transferred proceeding as provided in this section may in its discretion transfer such proceeding to a court in an appropriate venue for good cause shown based either upon changes in circumstances or mistakes of fact or upon agreement of the parties. In any transfer of venue in cases involving children, the best interests of the child shall be considered in deciding if and to which court a transfer of venue would be appropriate. c. Records Originals of all legal and social records pertaining to the case shall accompany the transfer of venue. The transfer court may, in its discretion, retain such copies, as it deems appropriate. 2. Venue of Proceedings Arising Out of Chapter 5 of Title 20 ( 20-61 et seq.) a. Original Venue Virginia Code 20-83 Any offense under chapter 5 of Title 20 shall be held to have been committed in any county or city in which such spouse, child or children may be at the time of desertion, or in which such child or children may be or remain, with the knowledge and acquiescence of the accused, in destitute or necessitous condition, or where the accused shall be found in this state.
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b. Transfer of Venue Between Courts in Certain Instances Virginia Code 20-83.1 (1) In the event that a spouse or dependent child has left the jurisdiction of the court in which the original petition was filed, but is still within the state, and the accused is not within the jurisdiction embraced by such court, on motion of the spouse or child, or accused or the person having custody of such child, the court in which the original petition was filed may transfer the case to the court having original jurisdiction to hear such petitions in the county or city in which the spouse or child or accused resides. The court to which such case has been transferred shall have power to enforce such orders and decrees as may have been made in the court transferring the case as though the petition had been originally filed therein, and to make such other orders and decrees as may be necessary to enforce the provisions of this chapter. (2) In the event that an appeal is pending in a court of record in this state from the decision of any court having jurisdiction to hear such petitions, upon motion of the spouse or child, or the person having custody of the child, stating that such spouse or child no longer resides within the jurisdiction of such court of record, such court, upon reaching its decision, may transfer the case to the court having original jurisdiction to hear such petitions in the county or city in which the spouse or child resides in the same manner and to the same effect as provided in (a) hereof. C. APPOINTMENT OF COUNSEL AND GUARDIANS AD LITEM Virginia Code 16.1-266 gives a judge of the juvenile and domestic relations district court the authority to appoint counsel and/or a guardian ad litem in certain proceedings before that court. Legislation passed in the 2003 session of the General Assembly provides that when the juvenile and domestic relations district court deems it necessary, the court may appoint both counsel and a guardian ad litem for a party. This law reflects what had been the practice in juvenile courts prior to the issuance of the Attorney Generals opinion issued July 16, 2002 that concluded that when Virginia Code 16.1-266 specifies that a party has a right to representation either by a guardian ad litem or by counsel in a particular category of case, the court is without the discretionary authority to appoint either counsel or a guardian ad litem in addition to the specified type of appointment.
NOTE: On appeals from Division of Child Support Enforcement administrative hearings in support cases, venue lies, pursuant to Virginia Code 63.2-1942 and 63.2-1943: where the appellant resides, or if appellant is a non-resident, where the appellee resides. if appellant and appellee are nonresidents, where the obligors property or where the obligors employers business is located (if more than one such venue is available, the appellant selects the venue).
On September 1, 2003, the Standards to Govern the Performance of Guardians Ad Litem for Children became effective. These standards apply to all guardians ad litem for children in proceedings before the juvenile and domestic relations district courts, circuit courts, Courts of Appeals of Virginia, and Supreme Court of Virginia. The standards can be found in an appendix at the end of this chapter. D. JUVENILE DELINQUENCY CASE PROCEDURES The preceding narrative description and flowchart of the juvenile delinquency case process are overviews of the basic steps required to process a juvenile case. The following detailed procedures describe the existing procedures to be used by the juvenile and domestic relations district court for
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processing these cases. Each procedure section contains a brief discussion of the process involved and then presents the detailed procedures.
NOTE: A delinquent act is an act designated as a crime under the law of this Commonwealth, or an ordinance of any city, county, town or service district, or under federal law, or a violation of Virginia Code 18.2-308.7 or a violation of a court order as provided for in Virginia Code 16.1-292, except for otherwise lawful acts which are designated a crime only if committed by a child. Virginia Code 16.1-228. However, any child who is tried and convicted in a circuit court as an adult under the provisions of Virginia Code 16.1-269.1 et seq. and 16.1-272 will be considered an adult in any criminal proceeding resulting from a subsequent offense. The category of delinquent acts also includes, for jurisdictional and dispositional purposes, a refusal to take a blood or breath test pursuant to 18.2-268.1 et seq.
1. Case Initiation a. Filing of a Petition or Issuance of a Warrant A juvenile delinquency case involving violation of criminal laws by a child may be initiated by an arresting officer observing a violation or by a citizen complaint following an offense. Typically, the complainant will be referred to the court services unit for review of the complaint by an intake officer. The Chief Judge may make arrangements for a replacement intake officer from another court service unit to be available when the court is closed. Va. Code 16.1-235.1. This replacement intake officer may have the juvenile appear before her via two-way electronic video and audio communication. Va. Code 16.1-255. If an intake officer or judge cannot be contacted after the child arrives at the magistrates office or is not readily available, then the complaint may be filed with the magistrate. The procedures to be followed by an intake officer upon receipt of a complaint that are discussed in the following narrative can be found in Virginia Code 16.1-260. Upon receipt of a complaint, the court services unit will: Review the complaint. Determine if probable cause exists. If probable cause exists, then determine whether the complaint may be diverted to outof-court adjustment; if not, then a juvenile PETITION, district court form DC-511, is prepared for signing by the petitioner (person making the complaint). Determine if detention is required; if so, the intake officer will prepare and sign a DETENTION ORDER, district court form DC-529. Send case papers to the clerks office for issuance of a SUMMONS, district court form DC-510. Only in an emergency situation (not just because the clerks office is closed) should a DETENTION ORDER (with a copy of the petition attached) be delivered to a law-enforcement officer without a SUMMONS being issued by the clerk and attached to such case papers. In such emergencies, the clerk will later issue such case papers with a SUMMONS, district court form DC-510, upon receipt in the clerks office on or before the detention hearing.
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If the intake officer refuses to issue a NOTE: The Commonwealths Attorney may file a petition relating to an offense that, if petition directly with the clerk, and other attorneys committed by an adult would be punishable as may file petitions with the clerk, except for CHINS a Class 1 misdemeanor or as a felony, the and delinquency petitions. complainant shall be notified in writing of his right to apply to a magistrate for a warrant. A magistrate may issue a warrant in such cases if he determines that probable cause exists. If the intake officer refuses to authorize a petition relating to a child in need of services or in need of supervision, a status offense, or a misdemeanor other than Class 1, his decision is final. The magistrate may issue a warrant for a juvenile after a finding of probable cause when the intake officer or judge is not reasonably available or upon the intake officers refusal to issue a petition. Va. Code 16.1-256. If probable cause is found, the magistrate will prepare and issue a WARRANT OF ARREST, district court form DC-312, DC-314, or DC-315, which shall be delivered forthwith to the juvenile and domestic relations district court. The WARRANT shall be returned to the clerks office for re-delivery to the court services unit (intake) for conversion to a PETITION, with the WARRANT attached to the original petition being returned to court. The signature of the complainant on the petition is not required; however, the clerk should attach a copy of the warrant to each copy of the petition or the summons for service on the juvenile and parent(s) or guardian(s). After the filing of a petition alleging that a juvenile has committed one or more of the following offenses, the intake officer shall notify the superintendent of the school division in which it is alleged that the juvenile should be enrolled, by telephone and by mail, of the filing of the petition. A firearm offense pursuant to Articles 4 ( 18.2-279 through -287.4), 5 ( 18.2-288 through 298), 6 ( 18.2-299 through -307), or 7 ( 18.2-308 through -311.2) of Chapter 7 of Title 18.2; Homicide, pursuant to Article 1 ( 18.2-30 through -37) of Chapter 4 of Title 18.2; Felonious assault and bodily wounding, pursuant to Article 4 ( 18.2-51 through -57.2) of Chapter 4 of Title 18.2; Criminal sexual assault, pursuant to Article 7 ( 18.2-61 through -67.10) of Chapter 4 of Title 18.2; Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances pursuant to Article 1 ( 18.2-247 through -264.01) of Chapter 7 of Title 18.2 (Please Note: only those charges which involve a Schedule I or II drug should be reported); Manufacture, sale, or distribution of marijuana pursuant to Article 1 ( 18.2-247 through 264.01) of Chapter 7 of Title 18.2 (Please Note: only those charges which involve the manufacture, sale or distribution should be reported); Arson and related crimes, pursuant to Article 1 ( 18.2-77 through -88) of Chapter 5 of Title 18.2; Burglary and related offenses, pursuant to 18.2-89 through -93; or
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Robbery pursuant to 18.2-58. Prohibited street gang participation pursuant to 18.2-46.2. Recruitment of juveniles for criminal street gang pursuant to 18.2-46.3. The filing of a PETITION is not necessary if the juvenile is released on a VIRGINIA UNIFORM SUMMONS by the arresting officer for violation of: Traffic laws (including Child Restraint Devices Act violations, bicycle offenses, hitchhiking and other pedestrian offenses). Driving or sailing while intoxicated or other alcohol-related offenses if released to custody of a parent/guardian. Game and fish laws. Surfing ordinances. Curfew ordinances. Animal control violations. Littering violations Offenses, which, if committed by an adult would be punishable as a Class 3 or Class 4 misdemeanor. For specific procedures for the handling of traffic cases, including prepayment of traffic infractions, see the TRAFFIC CASE PROCEDURES, Section VIII, of this manual. When found guilty of a traffic infraction (not a traffic-related offense which would be a misdemeanor or felony if committed by an adult), a juvenile is subject to only those judicial sanctions applicable to an adult who has committed a traffic infraction. Va. Code 16.1-278.10. However, the Department of Motor Vehicles may require attendance at a driver improvement clinic for certain infractions. b. Processing of a Child Taken Into Immediate Custody A child may be taken into immediate custody pursuant to Virginia Code 16.1-246 in the following situations: With a DETENTION ORDER, district court form DC-529, or SHELTER CARE ORDER, district court form DC-530, issued by the judge, the intake officer or, when authorized by the judge, the clerk of the juvenile and domestic relations district court in accordance with provisions of law, or With a WARRANT of ARREST, district court forms DC-312, DC-314, DC-315, and a DETENTION ORDER issued by a magistrate; or When a child is alleged to be in need of services or supervision, and (1) there is a clear and substantial danger to the childs life or health, or (2) the assumption of custody is necessary to ensure the childs appearance before the court; or
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When, in the presence of the officer who makes the arrest, a child has committed an act designated a crime under the law of this State, or an ordinance of any city, county, town or service district, or under federal law and the officer believes that such is necessary for the protection of the public interest; or When a child has committed a misdemeanor offense involving shoplifting in violation of Virginia Code 18.2-103, assault and battery, or carrying a weapon on school property in violation of Virginia Code 18.2-308.1 and, although the offense was not committed in the presence of the officer who makes the arrest, the arrest is based on reasonable complaint of a person who observed the alleged offense; or When the officer believes that there is probable cause to believe that a child has committed an offense which if committed by an adult would be a felony; or When a law-enforcement officer has probable cause to believe that a person committed to the Department of Juvenile Justice as a child has run away or that a juvenile has escaped from a jail or detention home; or When a law-enforcement officer has probable cause to believe a child has run away from a residential, child-caring facility or home in which he had been placed by the court, the local department of public welfare or social services or a licensed child welfare agency; or When a law-enforcement officer has probable cause to believe that a child (1) has run away from home, or (2) is without adult supervision at such hours of the night and under such circumstances that the law-enforcement officer reasonably concludes that there is a clear and substantial danger to the childs welfare. A person taking a child into custody in the above situations shall, with all practicable speed and depending on the situation, bring the child to the judge or intake officer and the judge, intake officer, or arresting officer shall, in an expeditious manner, give notice of the action taken and a statement of reasons why the child was taken into custody to the parent, guardian, legal custodian or other person standing in loco parentis. Virginia Code 16.1-247. The required notice may be given orally or in writing. A child taken into custody who is brought before a judge, intake officer or magistrate, must be released on specific conditions to his or her parent, guardian, legal custodian or other suitable person able and willing to provide supervision and care for such child unless the child meets the criteria of Virginia Code 16.1-248.1 for secure detention or shelter care and is so placed. If an intake office or magistrate releases a juvenile, either on bail or recognizance or under conditions, no motion to revoke bail or change the conditions may be made unless the juvenile has violated a term or condition of his release, is convicted of or taken into custody for an additional offense or the Commonwealths attorney presents evidence that incorrect or incomplete information was relied upon by the intake officer or magistrate. For detention in a secure facility, there must be probable cause to believe that the child committed the alleged act and: the alleged act would be a felony or Class 1 misdemeanor if committed by an adult or the juvenile violated the terms of his probation or parole and the underlying charge which resulted in the probation or parole would be a felony or Class 1 misdemeanor if committed by an adult; and there is clear and convincing evidence that:
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the childs liberty constitutes an unreasonable danger to the person or property of others considering the seriousness of the current offense(s), other pending charges and prior adjudicated offenses, the legal status of the child and any aggravating and mitigating circumstances; or the childs liberty would present a clear and substantial threat of serious harm to the childs life or health; or the child has threatened to abscond from the courts jurisdiction during this case or has a record of willful failure to appear in court during the last 12 months; or
. .
the child absconded from a detention home or other facility; or the child is a fugitive from a jurisdiction outside Virginia and subject to a verified petition or warrant (to be held pending arrangement for the childs return); or the child failed to appear in court after service of a summons when it is alleged the child has committed a delinquent act or that the child either is in need of services or is in need of supervision. If either of the latter is the case, the child may be held for good cause shown until the next date that the court sits or 72 hours, whichever occurs first. If the 72 hour period ends on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the time period is extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed. When a juvenile is detained in a secure facility, the juveniles probation officer may review such placement for the purpose of seeking a less restrictive alternative to confinement in that secure facility. For shelter care placement, one of the following must be present: The child is eligible for placement in a secure facility; or The child failed to obey directions of the court, intake officer or magistrate while on conditional release; or The childs parent, guardian or other person able to provide supervision cannot be reached nor arrive to assume custody within a reasonable time; or The child does not consent to return home, or The childs parent or guardian refuses to permit the child to return home and no relative or other person willing and able to provide proper supervision and care can be reached within a reasonable time. The places of confinement of juveniles are subject to the restrictions of the Code of Virginia and approval by the Department of Juvenile Justice in a certain instance. If it is ordered that a juvenile less than 14 years old remain in detention or shelter care, such juvenile may be detained, pending a court hearing, in the following places:
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An approved foster home or a home otherwise authorized by law to provide such care; A facility operated by a licensed child welfare agency; If a juvenile is alleged to be delinquent, in a detention home or group home approved by the Department of Juvenile Justice; To the extent permitted by federal law, a separate juvenile detention facility located upon the site of an adult regional jail facility constructed after 1994 and approved by the Department of Juvenile Justice and certified by the Board of Juvenile Justice for the holding and detention of juveniles. Any other suitable place designated by the court and approved by the Department of Juvenile Justice. Any juvenile who has been ordered detained in a secure detention facility may be held incident to a court hearing (i) in a court holding cell for a period not to exceed six hours provided the juvenile is entirely separate and removed from detained adults or (ii) in a non-secure area under constant supervision. No juvenile age 14 or older may be detained in jail except when: the case has been transferred to circuit court or certified to the grand jury; or the juvenile has been determined by the judge to be a threat to the security or safety of the other detainees, or the staff of the detention facility provided that the juvenile is detained in a room or ward entirely separate and removed from adults, adequate supervision is provided and the facility is approved for detention of juveniles by the State Board of Corrections, or it has been demonstrated, in the judgment of the custodian, that the presence of the juvenile creates a threat to the security or safety of other detainees or the staff of the facility, provided that it is for no longer than six hours prior to a court hearing and six hours after the court hearing, unless a longer period is ordered by a judge under the circumstances in the paragraph immediately preceding and the juvenile is detained in a room or ward entirely separate and removed from adults, adequate supervision is provided and the facility is approved for detention of juveniles by the State Board of Corrections, or the juvenile is charged with a felony or class 1 misdemeanor and the judge or intake office determines that secure detention is needed for the safety of the juvenile or the community, provided that the juvenile is detained for no longer than six hours prior to a court hearing and six hours after the court hearing pending transfer to a juvenile facility and the juvenile is detained in a room or ward entirely separate and removed from adults, constant supervision is provided and the facility is approved for detention of juveniles by the State Board of Corrections. Va. Code 16.1-249(F). The State Board of Corrections is authorized and directed to prescribe minimum standards for temporary lock-up rooms, wards and court holding cells based on the requirements set out in this subsection. The Departments of Corrections, Juvenile Justice and Criminal Justice Services shall assist the localities or combinations thereof in implementing this section and ensuring compliance.
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c. Clerks Office Processing of the Petition or Warrant Upon receipt of the case papers from the magistrate or the court services unit, the clerks office must perform several functions prior to the court date to prepare the case for court. The clerks office will complete these case indexing and filing functions: Assign a case number to the case. The case number is the juveniles base file number (for the file containing all of his case records) plus a suffix for each petition. Retrieve the next available pre-numbered file folder, if no case file folder for the juvenile exists. Enter the case into the automated system. Enter the case number on the JUVENILE PETITION, district court form DC-511. Complete and issue a copy of the JUVENILE SUMMONS, district court form DC-510, together with a copy of the juvenile PETITION, district court form DC-511, to the child, if the child is 12 or older, and to at least one parent, guardian, legal custodian or other person standing in loco parentis, (and to any other persons as may appear to the court to be proper and necessary parties) and forward for service. If a custodian is summoned who is not a parent, a parent shall also be served with a summons. See the discussion above of case initiation procedures, regarding cases in which a detention order was issued. The case number should be added to all forms. Attach case papers to the case. A summons is not required if the judge certifies on the record that the identity of a parent or 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 that fact, if no other evidence is available to the court that refutes the affidavit. See district court form DC-509, AFFIDAVIT/CERTIFICATION OF PARENTAL IDENTITY OR LOCATION. In delinquency, status or traffic cases, or CHINS cases, a summons is not required if the location (or in the case of a non-resident parent, the location or mailing address) of a parent or guardian is not reasonably ascertainable. Va. Code 16.1-263(E). The affidavit of the law enforcement officer or intake officer may serve as a basis for the judges certification that the location of the parent is not reasonably ascertainable. See district court form DC-509, AFFIDAVIT/ CERTIFICATION OF PARENTAL IDENTITY OR LOCATION. The SUMMONS may be served by the following methods: Personal service or substituted service (as prescribed in Virginia Code 8.01-296(2)) if the recipient can be found in the state. Certified mail return receipt requested or personal service if the recipient is out of state and the address is known or can be ascertained with reasonable diligence. Publication if the recipient cannot be found or his post office address cannot be ascertained. See Va. Code 16.1-264. See Section VII, CIVIL CASE PROCEDURES, Suits in Debt, Service of Process, for detailed procedures.
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Service of process may be waived by a party (other than a child) by stipulation or voluntary appearance at hearing. Personal service may be obtained by: Sheriffs Deputy sheriffs Police officers Other suitable persons designated by the court (with proof of service by affidavit or otherwise under oath). 2. Pre-trial Procedures Prior to the court date, the clerks office will prepare the docket as follows: Retrieve all cases from the files for a given court date. Print the docket prior to trial using CMS Feature Report Submission Menu. The DOCKETING MANUAL and JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT CMS USERS MANUAL describe the recommended procedures for indexing cases, filing records before and after court, and preparing the docket. Detailed questions concerning these procedures for juvenile cases should be referred to the DOCKETING MANUAL. If ordered by the judge, the court services unit will prepare an intake report to be filed with the case prior to court. a. Right to Representation by a Lawyer Children who are alleged to be delinquent, in need of supervision or in need of services are entitled by Virginia Code 16.1-266 to be represented by a lawyer. The following are the statutory procedures concerning the right of representation by a lawyer: Prior to the detention review hearing, adjudicatory or transfer hearing, the child and his parents, guardian, legal custodian or other person standing in loco parentis are informed by a judge, clerk or probation officer of the childs right to representation by a lawyer and the liability of the parent, guardian, legal custodian or other person standing in loco parentis for the costs of legal services. At the same time, they are given the opportunity to: . . Obtain private counsel of their own choice; or Permit the child to waive his right of representation by a lawyer by signing the waiver portion of WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (JUVENILE), district court form DC-515, if the court finds after conducting the examination of the child and the parent(s), guardian, legal custodian or other person standing in loco parentis as required by the waiver form that .. .. ..
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the waiver and consent to the waiver are made knowingly and intelligently, the interests of the parent(s), guardian, legal custodian or other person standing in loco parentis are not adverse to the child, and the waiver and consent to waiver are appropriately signed; VIRGINIA DISTRICT COURT MANUAL
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If the juvenile is alleged to have committed a delinquent act that would be a felony if committed by an adult, the court is required to have the juvenile consult with an attorney before waiving the right to counsel; or, If the court determines that the child is indigent within the meaning of the law pursuant to the guidelines set forth in Virginia Code 19.2-159 after reviewing the FINANCIAL STATEMENTELIGIBILITY DETERMINATION FOR INDIGENT DEFENSE SERVICES, district court form DC-333, of the child, and the parent, guardian, legal custodian or other person standing in loco parentis does not retain a lawyer to represent the child, the statement of indigency portion of ADVISEMENT AND REQUEST FOR APPOINTMENT OF COUNSEL, district court form DC-513, shall be signed by the child and the court shall appoint a lawyer to represent the child. If the parents of the child also claim to be indigent, they must complete a separate FINANCIAL STATEMENT-ELIGIBILITY DETERMINATION FOR INDIGENT DEFENSE SERVICES, district court form DC-333, and execute the parents portion of ADVISEMENT AND REQUEST FOR APPOINTMENT OF COUNSEL, district court form DC-513.
The person conducting this proceeding should also advise parents, guardians, legal custodians or persons standing in loco parentis of their liability for the costs of the lawyer appointed to represent the child if the court appoints a lawyer to represent the child and the parents are later found to be financially able to pay for a lawyer. See Va. Code 16.1-267. Their liability would be up to the limits set forth in Virginia Code 19.2-163(1), which is currently $112.00. The lawyer representing the child would be compensated by the court within the limits set forth in Virginia Code 19.2-163(1). An attorney is not required to be appointed to represent an otherwise eligible child in traffic infraction cases because delinquent act does not include a traffic infraction. In every case involving a child charged with being a delinquent or a child in need of services (CHINS), a copy of either the ADVISEMENT AND REQUEST FOR APPOINTMENT OF COUNSEL, district court form DC-513, or the WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-515, must be given to the child. By doing so, the child receives a written notice of the records expungement provisions required by Virginia Code 16.1-306. A number of juvenile courts apprise the child of his right to representation by a lawyer as soon as possible after detention or service of the summons in order to avoid last-minute trial delays and inconvenience to witnesses and other trial participants by requests for continuance to obtain a lawyer or to confer with a newly-appointed lawyer. In some localities, extensive use of speciallytrained probation officers is made for advising parties of their right to representation by a lawyer and helping them prepare the FINANCIAL STATEMENT--ELIGIBILITY DETERMINATION FOR INDIGENT DEFENSE SERVICES, district court form DC-333. This practice not only relieves judges and clerks of this duty, but also permits the proceeding to be scheduled at night so as to minimize inconvenience to the child and his parents. b. Detention Hearing Pursuant to Virginia Code 16.1-250 When a child is held in custody and not released, the child must be brought before a judge on the next day on which the court sits within the county or city wherein the charge against the child is pending. If the court does not sit on the day after the child is taken into custody, the child shall be brought before a judge within a reasonable time not to exceed 72 hours after he or she has been
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taken into custody. However, if the 72-hour period expires on a Saturday, Sunday or other legal holiday, the 72 hours shall be extended to the next day which is not a Saturday, Sunday or legal holiday. The court may subpoena witnesses to assist in determining probable cause, in which case the hearing may be continued and the child remain in detention, but in no event longer than three consecutive days, exclusive of Saturdays, Sundays, and legal holidays. Further procedures for the detention hearing include: Notice of the hearing shall be given to the parent, guardian, legal custodian, or other person standing in loco parentis, to the child if 12 years of age or older, to the probation and parole department of the local or state court services unit, and to the attorney for the Commonwealth. This notice may be either oral or written. Prior to the detention hearing, an attorney must be appointed to represent the child at the detention hearing unless the child has retained an attorney who appears on his or her behalf. Indigency is presumed for purposes of appointment of counsel for the detention hearing. Va. Code 16.1-266(B). The judge shall advise the parties during the hearing of the right to counsel, the childs right to remain silent, and the contents of the petition. The attorney for the Commonwealth shall be given the opportunity to be heard. The juvenile may appear in person or by means of a two-way electronic video and audio communication system that meets the standards of Virginia Code 19.2-3.1(B). Any documents filed in such a hearing may be transmitted by electronic facsimile process. The fax may be served by the officer to whom it is sent with the same force and effect as if it were an original document. If the judge finds that there is not probable cause to believe the child committed the delinquent act alleged, the court shall order his or her release. If the judge finds that there is probable cause to believe that the child committed the delinquent act but that full-time detention is not required, the court shall order his release subject to conditions imposed by the court. In determining probable cause, the judge may consider information that is not otherwise competent as evidence. If a child is not released and a parent, guardian, legal custodian or other person standing in loco parentis is not notified and does not appear or does not waive appearance at the hearing, upon request of such person, the court shall rehear the matter on the next court day or within 72 hours after the request. If a child is not released after a detention hearing and the child was not represented by a lawyer, the court shall afford the child an opportunity to be represented by a lawyer prior to a detention review hearing. If the lawyer requests, a detention review hearing must be scheduled as soon as practicable but no later than 72 hours after such request is made. If the 72 hour period ends on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the time period is extended to the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed. At the review hearing, the judge reviews the need for continued detention. Notice of the hearing, either oral or written, is given to the parent, guardian or other person standing in loco parentis (if he can be found), to
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the attorney, and to the child, if twelve years old or older, and to the attorney for the Commonwealth, who shall be given an opportunity to be heard. Va. Code 16.1-250.1. If the juvenile and domestic relations district court releases the juvenile over the objection of the Commonwealth, the attorney for the Commonwealth may appeal the decision to the circuit court. The appeals should be noted on the NOTICE OF APPEAL - CRIMINAL, district court form DC-580. c. Competency to Stand Trial, Virginia Code 16.1-356 At any time between appointment or retention of an attorney and the end of trial, on motion of either the Commonwealths Attorney or the attorney for the juvenile or on the courts own motion, the judge may hear evidence to determine whether there is probable cause to believe that the juvenile lacks substantial capacity to understand the proceedings against him or to assist in his own defense. If that probable cause is found: . The court orders a competency evaluation to be performed by at least one psychiatrist, clinical psychologist, licensed professional counselor , licensed clinical social worker or licensed marriage and family therapist who is qualified by training and experience in the forensic evaluation of juveniles. This evaluation should be performed on a local outpatient basis, unless the court specifically finds The results of the outpatient competency evaluation indicate that hospitalization of the juvenile for evaluation of competency is necessary; or The juvenile is currently hospitalized in a psychiatric hospital. Inpatient evaluation should be ordered only if one of the above situations exists. If inpatient evaluation is to be used, the evaluating facility is selected by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services (whose designee at the Office of Forensic Services may be contacted at (804) 786-4837 to ascertain to which hospital the juvenile should be transported). The length of stay is determined by the director of the hospital based on the directors determination of the time necessary to perform an adequate evaluation, but it is not to exceed ten days from the date of admission to the hospital.
. . . .
The court shall require the Commonwealths Attorney, the juveniles attorney and the moving party to provide the evaluator with specified information within 96 hours of issuance of the order requiring the evaluation, or if the 96 hours ends on a Saturday, Sunday or holiday, on the next business day. The Commonwealths attorney must provide any information relevant to the evaluation, including but not limited to .. a copy of the warrant or petition, .. the names and addresses of the attorney for the Commonwealth, the attorney for the juvenile and the judge ordering the evaluation, and
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..
information about the alleged offense.
The defendants attorney must provide the evaluator with any available psychiatric records or other information that is deemed relevant. The moving party must provide the evaluator with a summary of the reasons for the evaluation request. The clerk will prepare and (after signature by the judge) distribute an ORDER FOR EVALUATION TO DETERMINE COMPETENCY TO STAND TRIAL - JUVENILE, district court form DC-522, and, if needed, a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, after which the sheriff will be notified of the need for transporting the juvenile. The evaluator must submit a report in writing to the court and the attorneys of record within 14 days after receipt of all the required information. The report must address: . . . The juveniles capacity to understand the proceedings against him; The juveniles ability to assist his attorney; The juveniles need for services in the event he is found incompetent, including a description of the suggested necessary services and the least restrictive setting to assist the juvenile in restoration to competency.
After receiving the evaluation report, the court must promptly determine whether the juvenile is competent to stand trial. A hearing is not required unless it is requested by the Commonwealth or the attorney for the defendant. If a hearing is held, the juvenile has a right to notice of the hearing and the right to personally participate and introduce evidence. The party alleging that the juvenile is incompetent bears the burden of proving the juveniles incompetency by a preponderance of the evidence. If the judge finds that the juvenile is incompetent to stand trial and that treatment is required to restore the juvenile to competency, then the judge shall enter an ORDER FOR PROVISION OF RESTORATION SERVICES TO INCOMPETENT JUVENILE, district court form DC-523. A finding of incompetency should not be made based solely on any or all of the following: . . . The juveniles age or developmental factors, The juveniles claim to be unable to remember the time period surrounding the alleged offense, The fact that the juvenile is under the influence of medication.
A copy of the order must be forwarded to the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, who shall arrange the provision of restoration services in a manner consistent with the order.
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The ORDER FOR PROVISION OF RESTORATION SERVICES TO THE INCOMPETENT JUVENILE should indicate whether the juvenile will receive services to restore his competency in a nonsecure community setting or a secure facility as defined in Virginia Code 16.1-228. If the court finds that the juvenile is restorable to competency in the foreseeable future, it shall order restoration services for up to three months. . If the agent providing restoration services believes the juveniles competency has been restored, the agent shall immediately send a report to that effect to the court and the court shall make a ruling Note: No statements of the juvenile on the juveniles competency in relating to the alleged offense shall be accordance with the procedures included in the evaluation report. In above. addition, no statement or disclosure by the . At the end of the three months, if made during a competency evaluation or provision of services may be used against the juvenile remains incompetent, the juvenile at the adjudication or the agent providing restoration disposition hearings as evidence or as a services shall notify the court and basis for such evidence. make recommendations concerning disposition of the juvenile. The court shall hold a hearing and if the court finds: .. that the juvenile is restorable, it may order continued restoration services for additional three month periods, provided a hearing is held at the completion of each such period. .. that the juvenile is unrestorably incompetent, it shall order one of the dispositions pursuant to Virginia Code 16.1-358. (See below for the disposition alternatives). If the initial evaluator or the agent providing restoration services concludes that the juvenile is likely to remain incompetent for the foreseeable future, a report stating so should be sent to the court. The report shall also provide recommendations for the disposition of the juvenile. The court may order that: . the juvenile be committed pursuant to Article 16 of Chapter 11 of Title 16.1, or, if the juvenile has reached the age of eighteen at the time of the competency determination, pursuant to Virginia Code 37.2-814 to 37.2-820 the juvenile be certified pursuant to Virginia Code 37.2-806 a child in need of services petition be filed on the juveniles behalf pursuant to Virginia Code 16.1-260(D) or the juvenile be released.
juvenile concerning the alleged offense
. . .
If the charges are not dismissed without prejudice at an earlier time, charges against an unrestorably incompetent juvenile shall be dismissed as follows: . In the case of a charge which would be a misdemeanor if committed by an adult, one year from the date of the juveniles arrest for the charge. VIRGINIA DISTRICT COURT MANUAL
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In the case of a charge which would be a felony if committed by an adult, three years from the date of the juveniles arrest for such charge. Compensation of Experts: Each psychiatrist, clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed marriage and family therapist or other expert appointed by the court, except services provide by state mental health or mental retardation facilities, shall receive a reasonable fee determined by the court that appointed the expert. The fee should be determined in accordance with the guidelines established by the Supreme Court. If the expert is required to appear as a witness, the expert shall receive mileage and a fee of $100 for each day during which he is required to serve. Va. Code 16.1-361.
d. Subpoenas, Witness Summoning The procedures for witness subpoenas are described in Section VI, CRIMINAL CASE PROCEDURES, PRE-TRIAL PROCEDURES. The same basic procedures apply in the juvenile and domestic relations district court. Law enforcement officers may issue subpoenas to witnesses in traffic infraction cases and in cases charging a Class 3 or Class 4 misdemeanor. Even though delinquency proceedings are often described as having characteristics of civil proceedings, the provisions for attorney-issued subpoenas in other civil proceedings do not apply to delinquency proceedings. Va. Code 8.01-407 (A). e. Certification, Transfer or Waiver A juvenile who is 14 years of age or older may be tried as an adult in Circuit Court under certain circumstances. Certification If a juvenile 14 years or older is charged with capital murder, first degree murder, second degree murder, murder by lynching or aggravated malicious wounding, the juvenile court shall conduct a preliminary hearing. Va. Code 16.1-269.1 (B). If a juvenile 14 years or older is charged with felony murder, mob assault, abduction, malicious wounding, malicious wounding of a law enforcement officer, poisoning, robbery, carjacking, rape, forcible sodomy, or object sexual penetration, the Commonwealths Attorney, upon written notice, may elect to have the juvenile court conduct a preliminary hearing. At least seven days prior to the preliminary hearings, a notice shall be filed by the Commonwealths Attorney with the court and mailed or delivered to counsel for the juvenile, or to a parent, guardian or other person standing in loco parentis if the juvenile is unrepresented. Va. Code 16.1-269.1 (C.) At the preliminary hearing conducted pursuant to paragraph B or C of Virginia Code 16.1-269.1, the juvenile court should make a finding as to whether the juvenile is indeed 14 years of age or older. If, the juvenile court finds probable cause, the court shall certify the charge, and all ancillary charges, to the grand jury. Va. Code 16.1269.1 (D.) This certification divests the juvenile court of its jurisdiction over the charge and the ancillary charges, but not of other charges that are unrelated to the charge for which the certification is occurring. If the juvenile court does not find probable cause or if the warrant or petition is VIRGINIA DISTRICT COURT MANUAL
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dismissed, the Commonwealths Attorney may seek a direct indictment of the juvenile in circuit court. Va. Code 16.1-269.1(D). If the charge is disposed of in juvenile court by nolle prosequi, the Commonwealths Attorney may seek an indictment only after a preliminary hearing in juvenile court. Transfer If a juvenile 14 years or older is charged with a felony other than those identified in paragraph B or C of Virginia Code 16.1-269.1 (those referenced in the paragraph immediately above), the court shall, on motion of the Commonwealths Attorney and prior to a hearing on the merits, hold a transfer hearing. Va. Code 16.1-269.1. If a juvenile 14 years or older is charged with an offense described in paragraph C of Virginia Code 16.1-269.1 and the Commonwealths Attorney either does not give the required written notice or elects to withdraw the notice prior to certification of the charge to the grand jury, the court may proceed with a transfer proceeding pursuant to paragraph A of Virginia Code 16.1-269.1. As a result of the transfer hearing, the court may retain jurisdiction or transfer the juvenile for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction. To process such cases, the clerks office will: . Issue a NOTICE OF TRANSFER HEARING, district court form DC-519, to the juvenile and a parent, guardian, legal custodian, or other person standing in loco parentis or to the juveniles attorney, to be served in the same manner as a summons. Assure that all case papers are sent into court for the transfer hearing.
Prior to the transfer hearing, the probation department prepares a background report on the juvenile to aid in the later determination of whether the juvenile is amenable to treatment or rehabilitation as a juvenile through available facilities. If the transfer hearing is being held upon motion of the attorney for the Commonwealth, the attorney of the Commonwealth must provide notice to the probation department of the need for a transfer report. This report must be filed before the transfer hearing but is not used until after the probable cause determination. In the transfer hearing, the judge considers the evidence in the case and the testimony and: . . Determines if the defendant is less than 14 years old (if so, the case must be tried in the juvenile and domestic relations district court). Determines if there is probable cause to believe that the juvenile committed the delinquent act alleged or a lesser-included act that would be a felony if committed by an adult. If probable cause is not found for a felony or a misdemeanor, dismisses the case. Determines whether the juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence.
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Determines whether the juvenile is a proper person to remain within the jurisdiction of the juvenile court by considering, but not limited to, the following factors: .. the juveniles age; .. the seriousness and number of alleged offenses; .. whether the juvenile can be retained in the juvenile system long enough for effective rehabilitation; .. the availability in the criminal and juvenile systems of resources for dealing with the juveniles problem; .. the record and previous history of the juvenile; .. whether the juvenile has previously absconded from a juvenile correctional facility; .. the extent, if any, of the juveniles mental retardation or illness; .. the juveniles school record, emotional maturity, and physical condition. Prepares the TRANSFER/RETENTION ORDER, district court form DC-518, and sends it to circuit court with the case file if the case is transferred or to the clerks office to be filed in the case file if the case is retained in the juvenile and domestic relations district court. If an appeal of the transfer decision is noted, the case papers must be forwarded to the circuit court and a copy of the order must be sent to the attorney for the Commonwealth and other counsel of record within seven days of receipt of notice of the appeal. The NOTICE OF APPEAL CRIMINAL, district court form DC-580, should be used to note the appeal. If the Commonwealths Attorney seeks to remove the case to the circuit court, the court sets bail for the juvenile in accordance with Chapter 9 of Title 19.2.
Waiver of Jurisdiction At any time prior to commencement of the adjudicatory hearing, a juvenile 14 years of age or older charged with an offense which if committed by an adult could be punishable by confinement in the penitentiary may elect in writing to waive the jurisdiction of the juvenile court with the written consent of his counsel and have his case transferred to the appropriate circuit court, in which event his case shall thereafter be dealt with in the same manner as if he had been transferred. Va. Code 16.1-270. This waiver should be executed using the WAIVER OF PRELIMINARY HEARING AND CERTIFICATION , district court form DC-521. A completed TRANSFER/RETENTION ORDER, district court form DC-518, should accompany the waiver form. When a case is transferred to circuit court under these provisions, the juvenile is tried as if he were an adult. If the case is transferred, then the judge may order the transfer of the juvenile to an adult jail. Va. Code 16.1-249(D). Statements made by the juvenile at the transfer hearing shall not be admissible over objection in any criminal proceedings following the transfer, except for the purposes of impeachment. If the case is not transferred or certified, the judge who conducted the hearing shall not, over the objection of any interested party, preside at the adjudicatory hearing on the petition. The Commonwealth has 10 days to appeal the juvenile courts decision to
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retain a case. If the case is transferred, the juvenile has 10 days to appeal that decision. Within seven days after receipt of notice of an appeal from the transfer decision or if an appeal is not noted, upon expiration of the time in which to note such an appeal, the clerk of the court shall forward to the circuit court all papers connected with the case. Any juvenile who is tried or treated in a circuit court as an adult shall be considered and treated as an adult in any criminal proceeding resulting from subsequent criminal acts, including traffic cases. See Broadnax v. Commonwealth, 24 Va. App. 808 (1997), Va. Code 16.1-271. Treatment of a juvenile as an adult would include indictment of the juvenile by the grand jury following a transfer or certification proceeding pursuant to Virginia Code 16.1-269.1. The juvenile court is divested of jurisdiction over pending allegations of delinquency upon conviction of the juvenile as an adult in circuit court. The circuit court shall issue an order terminating the juvenile court jurisdiction over future pending matters upon conviction of the juvenile as an adult. The jurisdiction would lie in the general district court or circuit court unless the adult offense would normally come before the adult division of the juvenile and domestic relations district court, i.e. domestic violence or contributing to delinquency. CHINS, status offenses, custody proceedings would continue to be set before the juvenile and domestic relations district court. Upon receipt of the order terminating the juvenile courts jurisdiction over the juvenile, the clerk of the juvenile court shall forward any pending petitions of delinquency for proceedings in the appropriate general district court. f. Time Limitations. Va. Code 16.1-277.1 There are certain time limitations within which the adjudicatory hearing in a delinquency proceeding must be held. Juveniles in secure detention must be released from confinement if no transfer or adjudicatory hearing is held within 21 days from the date when he or she is first detained. For juveniles not in secure detention or who have been released, an adjudicatory or transfer hearing must be held within 120 days from filing of the petition. The time limitations above are tolled during any period in which the whereabouts of the child are unknown the child has escaped from custody the child has failed to appear pursuant to a court order.
In addition, the time limits may be extended for a reasonable period for good cause shown if the basis for extension is recorded in writing in the case papers.
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g. Motions and Other Subsequent Pleadings After the case has been filed in the clerks office as described in Case Initiation, above, all motions and other subsequent pleadings shall be filed directly with the clerk. Clerks may provide information, but not advice, to parties on how to prepare forms used as subsequent pleadings. See RULES OF THE SUPREME COURT OF VIRGINIA, Part 6, 1, Unauthorized Practice Rules and Considerations (Introduction, paragraph B(2)). h. Miscellaneous Pre-trial Proceedings Some of the additional pre-trial proceedings which may occur in these cases include: . . Motions to suppress illegally seized evidence. Sanity at the time of the offense. The Supreme Court of Virginia has held that a juvenile under 14 years of age did not have either a statutory right or a due process right to assert an insanity defense at the adjudicatory phase of a delinquency proceeding. Commonwealth v. Chatman , 260 Va. 562 , (November 3, 2000), revg. Chatman v. Commonwealth, 30 Va. App. 593 (1999). Testimony of child witness via closed-circuit television. Va. Code 18.2-67.2, -67.9. Request to disclose identity of juvenile charged with certain crimes. Va. Code 16.1309.1. See N. CONFIDENTIALITY OF RECORDS later in this chapter. Request for pre-trial examination and treatment. Va. Code 16.1-275. See TRIAL PROCEDURES, below. Motions pursuant to Virginia Code 22.1-257 to require juveniles charged with certain offenses to attend a statutorily authorized alternative educational program.
. .
These actions are part of the pending case and do not get indexed as subsequent actions. 3. Trial Procedures a. Adjudicatory Hearing For cases heard in court, the clerks office must perform several functions to assure that cases are processed efficiently. The clerks office is responsible for assuring that: All parties and witnesses involved have been notified of the hearing through the juvenile SUMMONS, district court form DC-510. If a new trial date is set, use WITNESS RECOGNIZANCE, district court form DC-329, NOTICE OF NEW TRIAL DATE, district court form DC-346, or NOTICE OF HEARING, district court form DC-512, as appropriate. All other case-related paperwork is complete and accounted and attached to the case including: . The original PETITION and SUMMONS or WARRANT.
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. . .
REQUEST FOR WITNESS SUBPOENA, district court form DC-325, and subsequent SUBPOENA FOR WITNESS, district court form DC-326. Personal recognizance, bond, or other bail conditions. Other pleadings and evidence filed with the court.
The docket sheet is printed by CMS; the cases pending are prepared for court. Witnesses and other parties are notified of continuances or pre-trial resolution of a case. Other court actions are recorded in CMS and on the case papers: . . Guilty plea to a reduced charge. Continuances, including deferred adjudication. Virginia Code 16.1-278.8(5) or -278.9 (see Disposition Hearing, below).
At the commencement of the adjudicatory hearing, the court shall determine whether or not the juvenile is represented by a lawyer (privately retained or court appointed) or has waived counsel. If this matter has not been previously handled in a hearing prior to the adjudicatory hearing, it must be done at the beginning of the adjudicatory hearing. The juvenile may request a waiver of her/his right to a public hearing. If a waiver is requested, the juvenile should sign the Waiver of Public Hearing section on the back of ADVISEMENT AND REQUEST FOR APPOINTMENT OF COUNSEL, district court form DC-513, or WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (JUVENILE), district court form DC515. Any hearing in a proceeding where a juvenile 14 years or older is charged with an offense which would be a felony if committed by an adult shall be open, unless the court closes the hearing for good cause. Va. Code 16.1-302(C). If the judge decides to close such a hearing, he must state in writing his reasons for closing the hearing. district court form DC-501, ORDER TO CLOSE HEARING, should be used to record this decision. Once these matters have been completed, the court should commence the proceeding. The ORDER, district court form DC-570 can be used to memorialize the courts findings and order. If the child is adjudicated delinquent, the court may order an investigation and the submission of a pre-disposition report using an ORDER FOR INVESTIGATION AND REPORT, district court form DC-342. Va. Code 16.1-273. The investigation shall include a drug screening and may include an investigation of the childs physical, mental and social condition, including an assessment of any affiliation with a youth gang, the childs personality and the facts and circumstances surrounding the violation of the law. A drug screening is required in the case of any juvenile adjudicated delinquent on the basis of an act committed on or after January 1, 2000: that would be a felony if committed by an adult, or that would be a Class 1 or Class 2 misdemeanor drug offense under Article 1 or Article 1.1 of Chapter 7 of Title 18.2 ( 18.2-247 through -265.5) if committed by an adult.
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If the drug screening indicates that the juvenile has a substance abuse or dependence problem, an assessment shall then be completed by a substance abuse counselor employed by the Department of Juvenile Justice or by the locally operated court services unit. The court shall, on motion of the Commonwealths attorney and with the consent of the victim, or may, in its discretion, order a victim impact statement if the court determines that the victim may have suffered significant physical, psychological or economic injury as a result of the violation of law. See Va. Code 19.2-299.1 for details regarding a victim impact statement. The court may also order the juvenile, in delinquency cases, to be evaluated for suitability for placement in juvenile boot camp programs pursuant to Virginia Code 16.1-278.8 (4)(a). In order to have the assessment of the Department of Juvenile Justice at the dispositional hearing, the judge should order the assessment for boot camp at the time of finding the juvenile guilty, using the ASSESSMENT ORDER--JUVENILE BOOT CAMP, district court form DC-571. If the judge found sufficient facts to find the juvenile guilty of certain offenses listed in Virginia Code 16.1-278.9 at clauses (i), (ii), (v), (vi) and (vii)(such as DUI, possession of alcoholic beverages, or unlawful use or possession of a handgun or other described weapons), the judge must defer adjudication and treat the juvenile pursuant to Virginia Code 16.1-278.9, including denial of driving privileges with limited restricted driving privileges using DRIVERS LICENSE DENIAL ORDER (JUVENILE), district court form DC-576. There is no initial conviction. If the offense involves a DWI and the child was transporting a person 17 years of age or younger, the court shall impose the additional fine and order community service as provided in Virginia Code 18.2-270. If the juvenile is found guilty of driving after illegally consuming alcohol, the juvenile shall forfeit his license for a period of six months and be subject to a fine of not more than $500.00. Va. Code 18.2-266.1. The juvenile shall be eligible for a restricted license and participation in a VASAP Program. The license forfeiture and any restricted license issued under Virginia Code 18.2-266.1 should be entered on district court form DC-260, DRIVERS LICENSE FORFEITURE AND RESTRICTED DRIVING ORDER. A juvenile may be detained following adjudication, even if he or she was not previously detained, if the criteria set forth in subsection A of Virginia Code 16.1-248.1 are met. See these criteria above in Case Initiation, Processing of a Child Taken Into Immediate Custody. b. Disposition Hearing A disposition hearing is held separate from and after the adjudicatory hearing in many juvenile cases to allow time for the preparation of reports ordered by the court. See discussion of the reports that may or must be ordered by the court above. If a child has been adjudicated as being in need of supervision, an evaluation must be conducted by the appropriate public agency using an interdisciplinary team approach, and a report of such evaluation is to be filed with the court. The report is prepared by the court services unit or other entity ordered by the court, is filed with the clerks office, and is furnished to counsel for the parties involved at least 72 hours prior to the hearing.
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In some instances, the entity providing the services must calculate a fee for the services based on costs incurred and the childs parents ability to pay for services. The judge must assess the fees, but is also empowered to waive all or part of the payment of the fees pursuant to Virginia Code 16.1-274 by using an ASSESSMENT/PAYMENT ORDER, district court form DC-533. If a guardian ad litem has been appointed, the judge must determine if the parents are capable of paying the fee of the guardian ad litem. The judges decision should be noted on an ASSESSMENT/PAYMENT ORDER, district court form DC-533. Also, if the juvenile was represented by court-appointed counsel, the judge should determine if the parents were financially able to retain a lawyer and refused to do so. If so, then the parents should be ordered to pay by using an ASSESSMENT/PAYMENT ORDER, district court form DC-533 and if the amounts are unpaid, a separate case should be created for the parents using certified copies of district court form DC-533, ASSESSMENT/PAYMENT ORDER as the initiating case papers. In addition to those detailed under the discussion of the adjudicatory hearing, two types of examinations pursuant to Virginia Code 16.1-275 between adjudication and disposition are available: Physical examination and treatment by a physician or mental examination and treatment by a local mental health center, if there is no appropriate local center, then examination and treatment by a physician or psychiatrist or examination by a clinical psychologist. Upon written recommendation by the person examining the juvenile that adequate evaluation of the juveniles treatment needs can only be performed in an inpatient hospital setting, the court may order the juvenile transferred to a state mental hospital for up to 10 days for a recommendation for treatment. Placement in the custody of the Department of Juvenile Justice for up to 30 days for diagnostic assessment services if the juvenile would be eligible for commitment pursuant to subdivision A 14 of 16.1-278.8 or 16.1-285.1. If a juvenile is held in secure detention after completion of an adjudicatory hearing or transfer hearing, then the juvenile must be released if the disposition hearing is not completed within 30 days from the adjudicatory or transfer hearing. The time limitations above are tolled during any period in which the whereabouts of the child are unknown the child has escaped from custody the child has failed to appear pursuant to a court order.
In addition, the time limits may be extended for a reasonable period for good cause shown if the basis for extension is recorded in writing in the case papers. The dispositional alternatives in delinquency cases, which are available to the court, depend on the charges, the conditions noted in the social history, physical, and mental examinations, and the statutory provisions. Following conviction, the court may make the following dispositions, pursuant to Virginia Code 16.1-278.8 and 16.1-278.9 and other various dispositional statutes:
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Traffic: In traffic infractions, impose only those penalties which may be imposed on adults for the same offense. Va. Code 16.1-278.10. This restriction does not bar the Department of Motor Vehicles from requiring participation in driver improvement programs. A violation of a provisional drivers license restriction is a traffic infraction. Va. Code 46.2-334.01. With regard to the restrictions to be imposed upon juvenile drivers, especially those restrictions imposed by DMV, the age of the offender at the date of the violation, not the conviction, determines the applicability of the juvenile restrictions. Va. Code 46.2334.01 Provision of services and treatment Order a government agency to render such services to the juvenile that such agency may be required to provide under the law pursuant to Virginia Code 16.1-278. Order a parent, guardian, legal custodian or other person, whether or not they reside with the child, to participate in programs, cooperate in treatment and be subject to conditions ordered by the court. Require the juvenile to participate in gang-activity prevention program when a juvenile has been found delinquent of shooting, stabbing cutting, wounding or by any means causing a person bodily injury with the intent to maim, disfigure, disable or kill. Va. Code 18.2-51. malicious bodily injury to law enforcement officer. Va. Code 18.2-51.1. malicious bodily injury by means of any caustic substance or agent or use of any explosive or fire. Va. Code 18.2-52. shooting, stabbing, cutting or wounding a person during the commission or attempted commission of a felony. Va. Code 18.2- 53. bodily injury caused by prisoners, probationers or parolees. Va. Code 18.2-55. hazing causing bodily injury. Va. Code 18.2-56. assault and battery. Va. Code 18.2-57. assault and battery against a law enforcement officer. Va. Code 18.2-57.1. assault and battery against a family or household member. Va. Code 18.257.2. entering property of another for purpose of damaging it. Va. Code 18.2-121. injuries to churches, church property, cemeteries, burial grounds, etc. Va. Code 18.2-127. trespass upon church or school property. Va. Code 18.2-128. destroying, defacing, damaging or removing with the intent to steal a monument. Va. Code 18.2-137. VIRGINIA DISTRICT COURT MANUAL
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damaging public buildings. Va. Code 18.2-138. breaking, injuring, defacing, destroying or preventing the operation of a vehicle, aircraft or boat. Va. Code 18.2-146. entering or setting in motion vehicle, aircraft, boat, locomotive or rolling stock of railroad without consent of owner or person in charge. Va. Code 18.2-147. any violation of a local ordinance adopted pursuant to Virginia Code 18.2138.1 (willful and malicious damage or defacement of public facilities). order a first-time drug offender to undergo substance abuse screening, and to submit to periodic drug testing and to undergo an appropriate substance abuse education/treatment program. Va. Code 16.1-278.8:01.
Probation and deferred dispositions Allow the juvenile to remain with a suitable person under conditions and limitations that the court deems proper. Defer disposition for a specific period of time established by the court with due regard for the gravity of the offense and the juveniles history, after which time the charge may be dismissed by the judge if the juvenile is of good behavior during the period for which disposition is deferred. Defer disposition for a specific period of time established by the court with due regard for the gravity of the offense and the juveniles history and place the child on probation on terms and conditions set by the court without the entry of an adjudication of guilt and with the consent of the child and his attorney. Upon fulfillment of the terms and conditions of probation, the court shall discharge the child and dismiss the proceedings against him without an adjudication of guilt. Defer disposition and place the juvenile in the temporary custody of the Department to attend a boot camp established pursuant to 66-13, provided bed space is available for confinement and the juvenile (i) has been found delinquent for an offense which would be a Class 1 misdemeanor or a felony if committed by an adult; (ii) has not previously been and is not currently being adjudicated delinquent or found guilty of a violent juvenile felony; (iii) has not previously attended boot camp; (iv) has not previously been committed to and received by the Department; and (v) has had an assessment completed by the Department or its contractor concerning the appropriateness of the candidate for a boot camp. Va. Code 16.1-278.8. Place the juvenile on probation with conditions and limitations as determined by the court. The costs may be imposed where disposition is deferred and the juvenile is placed on probation. Costs are imposed only if a charge is brought on a warrant or summons and not a petition. Place the juvenile on probation and order treatment for substance or alcohol abuse in a program licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services for the treatment of juveniles for substance abuse, provided that (i) the juvenile has received a substance abuse screening and assessment pursuant to 16.1-273 and the assessment reasonably indicates that the commission of the offense was motivated
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by, or closely related to, the habitual use of alcohol or drugs and indicates that the juvenile is in need of treatment for this condition; (ii) the juvenile has not previously been and is not currently being adjudicated for a violent juvenile felony; and (iii) such a facility is available. Upon the juvenile's withdrawal, removal, or refusal to comply with the conditions of participation in the program, he shall be brought before the court for a hearing at which the court may impose any other disposition authorized by this section. The court shall review such placements at thirty-day intervals. Drivers license actions For a second or subsequent violation of the provisional drivers license restrictions, the court may suspend the juveniles privilege to drive for a period not to exceed six (6) months in addition to any other penalty. Va. Code 46.2-334.01. Suspend the juveniles drivers license with or without issuance of a restricted license, or impose a curfew on the operation of a motor vehicle (except for traffic offenses, see below, or for violations of Virginia Code 4.1-305; 18.2-248, -248.1, -250, -250.1,-266,-268.2). If a restricted license is authorized, the juvenile surrenders the drivers license to the court and the court enters a DRIVERS LICENSE SUSPENSION ORDER AND ENTRY INTO SERVICE PROGRAM, district court form DC-577. A copy of the order with the license is transmitted to the Department of Motor Vehicles (DMV) for re-issuance of the license as a restricted license. The court shall order that the juvenile be denied a drivers license as provided by Virginia Code 16.1-278.9 and issue a DRIVERS LICENSE DENIAL ORDER, district court form DC576 if: . . .. .. .. the court finds facts that would justify a finding that the child is delinquent, and the finding involves: a violation of Virginia Code 18.2-248, 18.2-248.1, 18.2-250, 18.2-250.1, 18.2-266 or a similar local ordinance or of 18.2-388, or refusal to take a blood or breath test in violation of Virginia Code 18.2-268.2, or the unlawful purchase, possession or consumption of alcohol in violation of Virginia Code 4.1-305, unlawful drinking or possession of alcoholic beverages in or on school grounds in violation of Virginia Code 4.1-309, the unlawful use or possession of a handgun or a streetsweeper ( or a violation of 18.2-83 (making a bomb threat).
That same statute and order allows the judge to grant a restricted driving permit upon entry into a treatment program except in cases of violation of Virginia Code 18.2-248, 18.2-248.1, 18.2-250 or 18.2-250.1 and second or subsequent violations of any of the offenses listed in Virginia Code 16.1-278.9. The juvenile surrenders his drivers license to the court, which holds such license while the order is in effect. The original of the order is given to the juvenile, and a copy is sent to DMV. This process does not create a suspension of the juveniles drivers license and is the exclusive remedy for issuance of a restricted drivers license for juveniles for violations involving Virginia Code 18.2-266 and -268.2, because the statute authorizes discharge of the juvenile and dismissal of the case without an adjudication of guilt upon fulfillment of all terms and conditions prescribed by the court (unless the violation involved injury or death), thereby not permitting the use of Virginia Code 18.2-271.1 and ENTRY INTO
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ALCOHOL REHABILITATION PROGRAM, district court form DC-265, (which requires a finding of guilt) with juveniles. If the juvenile is less than 16 years and 3 months old, then the juvenile may not apply for a drivers license for a period of six months after he reaches the age of 16 years and 3 months. Fines, restitution and community service Impose a fine not to exceed $500. Order restitution or participation in a public service project as defined in Virginia Code 16.1-278.1. The court must require that the juvenile make at least partial restitution or reparation for any property damage, for loss caused by the offense or for actual medical expenses incurred by the victim as a result of the offense when the court finds the juvenile delinquent of - shooting, stabbing cutting, wounding or by any means causing a person bodily injury with the intent to maim, disfigure, disable or kill. Va. Code 18.2-51. - malicious bodily injury to law enforcement officer. Va. Code 18.2-51.1. - malicious bodily injury by means of any caustic substance or agent or use of any explosive or fire. Va. Code 18.2-52. - shooting, stabbing, cutting or wounding a person during the commission or attempted commission of a felony. Va. Code 18.2- 53. - bodily injury caused by prisoners, probationers or parolees. Va. Code 18.2-55. - hazing causing bodily injury. Va. Code 18.2-56. - assault and battery. Va. Code 18.2-57. - assault and battery against a family or household member. Va. Code 18.2-57.2. - entering property of another for purpose of damaging it. Va. Code 18.2-121. - injuries to churches, church property, cemeteries, burial grounds, etc. Va. Code 18.2-127. - trespass upon church or school property. Va. Code 18.2-128. - destroying, defacing, damaging or removing with the intent to steal a monument. Va. Code 18.2-137. - damaging public buildings. Va. Code 18.2-138. - breaking, injuring, defacing, destroying or preventing the operation of a vehicle, aircraft or boat. Va. Code 18.2-146. - entering or setting in motion vehicle, aircraft, boat, locomotive or rolling stock of railroad without consent of owner or person in charge. Va. Code 18.2-147 - any violation of a local ordinance adopted pursuant to Virginia Code 15.2-1812.2 (willful and malicious damage or defacement of public facilities). If the juvenile is required to pay restitution based on being found delinquent for one of these offenses, participation in a community service project must also be ordered. Require the juvenile to participate in a public service project (community service). If the juvenile was found delinquent of one of the offenses for which it is required that
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the juvenile pay restitution. The juvenile must also be required to participate in a community service project. Transfer of Custody Transfer custody to a proper person (see Virginia Code 16.1-278.8(13)(a)), welfare agency, or local board of public welfare or social services. Transfers to local boards of public welfare or social services require a finding in the order whether reasonable efforts to prevent removal were made and that continued home placement would be contrary to the childs welfare. The local board shall accept the care and custody of the child if it has been given reasonable notice of the pendency of the case and an opportunity to be heard. In an emergency, the local department of public welfare may be required to accept a child for a period not to exceed 14 days without prior notice or an opportunity to be heard if the judge entering the order describes in the order the emergency and the need for such temporary placement. If the child cannot be dealt with in the childs locality or with the localitys resource, the court may take custody, make other placements, and may enter and enforce a payment order for such placement against the parents or other persons who are legally obligated to provide support and are financially able to contribute support. Va. Code 16.1-286. Commitment and Incarceration Commit the juvenile to an appropriate state institution if the mental competency examination indicates that a juvenile is mentally ill or retarded. Commit the juvenile if eleven years of age or older, to the Department of Juvenile Justice, if the current offense is (i) an offense which would be a felony, if committed by an adult or (ii) a Class 1 misdemeanor, if committed by an adult, and the juvenile has previously been adjudicated delinquent for an offense that would be a felony or (iii) an offense that would be a Class 1 misdemeanor if committed by an adult and the juvenile had been adjudicated delinquent of three or more offenses that would be a Class 1 misdemeanor if committed by an adult, and each such offense was not part of a common act, transaction or scheme. Place the juvenile in a secure local facility, pursuant to Virginia Code 16.1-284.1: . Confinement only for up to 30 days inclusive of time served in a detention home or other secure facility if the juvenile: .. .. .. is at least 14 years old, and has committed an offense for which an adult could be punished by incarceration in jail or the penitentiary, and the court determines that ... the juvenile has not been found guilty previously and is not now found guilty of a violent juvenile felony ... the juvenile has not been released from the Department of Juvenile Justice within the previous 18 months, and ... the interests of the child and the community require that the child be placed under legal restraint or discipline, and
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... other placements will not serve the best interest of the child. . confinement in a detention home or other secure facility for up to six months.
The period of confinement may exceed 30 calendar days if the juvenile has had an assessment completed by the secure facility regarding the appropriateness of the placement. If the period of confinement is to exceed 30 calendar days, the court shall order the juvenile committed to the Department of Juvenile Justice but suspend the commitment. As a condition of the suspension, the court shall specify conditions for the completion of one or more community-based or facility-based treatment programs. A review hearing must be held at least once during each 30-day period of confinement. If it appears at this hearing that the purpose of a confinement has been achieved, the juvenile shall be released on probation but be subject to the order suspending commitment to the Department. If the juvenile is consistently failing to comply with the conditions set by the court or the facility, the court shall order that the juvenile be committed to the Department. Commitment to the Department of Juvenile Justice for a determinate period of time stated in the order, pursuant to Virginia Code 16.1-285.1, if: . . . the juvenile is at least 14 years old, and the juvenile has been found guilty of an offense which would be a felony if committed by an adult, and one of the following applies .. .. the juvenile is on parole for an offense which would be a felony if committed by an adult, or within the last twelve months the juvenile was committed to the state by court order in a previous delinquency proceeding arising from commission of an offense that would be a felony if committed by an adult, or where the felony offense would be punishable by confinement for more than twenty years if committed by an adult or the juvenile was previously adjudicated delinquent for a felony punishable for more than twenty years or more if committed by an adult, and
.. .. .
the court finds that commitment under this subdivision is necessary to meet the rehabilitative needs of the juvenile and would serve the best interests of the community, and the judge determines that the interests of the juvenile and community require placing the juvenile under legal restraint and discipline and that the juvenile is not amenable to treatment or rehabilitation through other programs or facilities. In making this determination, the judge shall consider the juveniles age, the present offense(s), the juveniles history, and the Departments estimated length of stay. Va. Code 16.1-285.1(B).
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The court shall specify a determinate period of commitment, not to exceed seven years or the juveniles twenty-first birthday, whichever comes first. The court may also order a period of determinate or indeterminate parole supervision. The total period of commitment and probation cannot exceed seven years or the juveniles twenty-first birthday, whichever comes first. The Department may petition for an earlier release for good cause. The commitment shall be reviewed, pursuant to petition by the Department, on the second anniversary of the commitment and annually thereafter. Va. Code 16.1-285.1(F). Impose penalties applicable to adults not to exceed 12 months in jail if the juvenile is over 18 at time of sentencing but was a juvenile at the time that the offense(s) was committed and the offense(s) would be a crime if committed by an adult. Contempt penalties Take enforcement action permitted by Virginia Code 16.1-292 for violation of court orders, including punishing summarily for contempt with confinement of juveniles in a juvenile secure facility (or, if the juvenile is 18 years of age or older when the order of disposition is entered, in jail) for up to ten consecutive days. (There are special limitations if the underlying order involved a child in need of services or a child in need of supervision.) Note: Some of the dispositions provided above can or should be ordered in conjunction with other dispositions in the list. c. Appeals Any final order or conviction of the juvenile and domestic relations district court affecting the rights or interests of any person coming within its jurisdiction or any order entered under Virginia Code 16.1-292(E) may be appealed to the circuit court within ten days of entry of the conviction. Va. Code 16.1-296. The appeal should be noted on the NOTICE OF APPEAL CRIMINAL, district court for DC-580. Where an appeal is taken by a juvenile on a finding that he or she is delinquent on a disposition under Virginia Code 16.1-278.8 or -278.9, the records of the proceeding shall be closed if the hearing in circuit court is closed. Trial by a jury on the issue of guilt or innocence of the alleged delinquent act may be had on motion of the juvenile, the Commonwealths Attorney or the circuit court judge and such hearing shall be open. On appeal, the judgment or order of the juvenile and domestic relations district court is suspended (i) in delinquency cases if the disposition is made under Virginia Code 16.1-278.8, subsections 8, 9, 10, 12, 14, 15, (ii) in cases involving a child and any local ordinance and (iii) cases involving persons over age 18. In addition, any judgment of the juvenile and domestic relations district court may be suspended by order of the juvenile and domestic relations district court or circuit court or by writ of supersedeas by the Court of Appeals of Virginia or the Supreme Court of Virginia or any judge or justice thereof. Orders disposing of a motion to reconsider relating to continuing programs are not suspended except on court order. If an order or judgment is suspended on appeal, bail may be required. Va. Code 16.1-298.
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No costs, taxes or fees are to be assessed on appeals in delinquency cases because Virginia Code 16.1-296 only permits such assessments if a trial fee could have been assessed in the juvenile and domestic relations district court and no trial fees in delinquency cases are statutorily provided. d. Post-Trial Actions When a Juvenile Committed to the Department of Juvenile Justice, Virginia Code 16.1-293 When a court commits a juvenile to the Department of Juvenile Justice, the court services unit shall maintain contact with the juvenile. Juveniles paroled after having been committed to the Department of Juvenile Justice are returned to the custody of the local court service unit. Placement in foster care paid by the Department of Juvenile Justice while on parole can only be ordered by the court after an investigation and on finding that the child should not be returned home and that local funds for foster care are not available. In the event that the person was in the custody of the local department of social services immediately prior to his commitment to the Department and has not attained the age of eighteen years, the local department of social services shall resume custody upon the person's release from commitment, unless an alternative arrangement for the custody of the person has been made and communicated in writing to the Department. The court services unit shall consult with the local department of social services four weeks prior to the person's release from commitment on parole supervision concerning return of the person to the locality and the placement of the person. The court services unit will be responsible for supervising the person's terms and conditions of parole. When a person is ordered to participate in therapy, counseling or similar continuing programs, a motion may be filed with the court to reconsider the order or the terms or conditions of participation at any time after entry of the order. The motion must be heard within 30 days, and the order disposing of the motion shall be deemed to be a final order for appeal purposes. 4. Post-Trial Procedures As juvenile cases are completed in juvenile and domestic relations district court, there are several post-trial procedures that must be completed to assure that cases are properly recorded and disposed of. Thus, the clerks office will: Ensure that the disposition is recorded in the CMS system and filed with the case papers. Collect fines and court costs ordered by the court, if any. Send an ASSESSMENT/PAYMENT ORDER, district court form DC-533, if parents are ordered to pay for court-appointed attorney or investigative services. Prepare the court order (if a separate order is used) as per the courts instructions and attach to appropriate case(s). Do not batch different childrens names on the order. Prepare the JUVENILE COMMITMENT ORDER, district court form DC-572, if the juvenile is to be committed to the Department of Juvenile Justice or a local facility.
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Prepare CCRE report and order for withdrawal of DNA sample for analysis where applicable. Send copies of the juveniles fingerprints and a report of the disposition to Central Criminal Records Exchange if the juvenile is adjudicated delinquent or found guilty of an offense which would be a felony if committed by an adult or any other offense for which a report to the CCRE is required by subsection C of 19.2-390 if the offense were committed by an adult. Prepare the ORDER FOR CUSTODY/VISITATION GRANTED TO INDIVIDUALS, district court form DC-573, if the custody of the child was in dispute. Prepare ORDER FOR SUPPORT (CIVIL), district court form DC-628, if parents are able to pay for court-ordered commitment facilities and treatment. Prepare bond forfeiture for those bonded defendants who failed to appear in court. Refund appearance bonds to those bonded defendants who appeared in court. Prepare COMMITMENT ORDER, district court form DC-352, where applicable, and forward to jail. Complete the PLACEMENT ORDER, district court form DC-538, for juveniles placed in shelter care or a detention facility pending transfer or as ordered by the court. Prepare the RELEASE ORDER, district court form DC-539, for juveniles to be released from shelter care or a detention facility as ordered by the court. Submit via CMS and print the monthly statistical report and send it to the Office of the Executive Secretary. Send appealed case files to circuit court. If no appeal is noted, the clerk shall provide written notice of a conviction for those offenses specified in Virginia Code 16.1-305.1 to the superintendent of the school division in which the juvenile was enrolled within 15 days of the expiration of the appeal period. For dispositions other than conviction, deferred disposition, nolle prosequi, withdrawal, or dismissal, the court shall provide written notice to the superintendent of the school division in which the juvenile was enrolled within 15 days of such action. a. Records Retention and Destruction Confidentiality of the records pertaining to a juvenile court case must be maintained at all times. The procedures dealing with juvenile records examination, retention and expungement include: Access to court records only by lawyers representing a party in the case, the judge, personnel from the juvenile and domestic relations district clerks office authorized to inspect the records and probation officers and professional staff assigned to serve that court, adult probation officer for preparing circuit court presentence reports, parole VIRGINIA DISTRICT COURT MANUAL
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officers for preparing Parole Board background reports, United States Probation and Pre-trial Services Officers and various agencies ordered by the court to render services for the juvenile. See section L, CONFIDENTIALITY OF RECORDS for more information. For the purpose of preparing pretrial investigation, presentence reports, discretionary sentencing guideline worksheets as directed by the court pursuant to Virginia Code 19.2-298.01 or any court ordered post-sentence investigation report, the Commonwealths Attorney, any pretrial services officer, local community-based probation officer and an adult probation and parole officer shall have access to a defendants juvenile court records. Parties to the case have access to court records except for social, medical, psychiatric or psychological records not presented to the judge in court or in a hearing, and school records. A licensed bail bondsman is entitled to know the status of a bond he has posted or provided surety on for a juvenile. However, this right does not authorize the bondsman to access to or inspection of any other portion of the juveniles court records. If a juvenile 14 years or older is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, the court records of that proceeding and any subsequent adjudication of delinquency shall be open to the public, except for the records specified in Virginia Code 16.1-305(A). If the court closed the hearing in such a proceeding, the court may order the records, or portions of those records, to remain confidential to the extent necessary to protect a juvenile witness or juvenile crime victim. Va. Code 16.1-305 (B1). Attested copies of papers filed in connection with an adjudication of guilty for an offense for which the clerk is required to furnish an abstract to the Department of Motor Vehicles, which shows the charge, finding, disposition, name of the attorney for the juvenile, or waiver of attorney shall be furnished to an attorney for the Commonwealth upon certification by the prosecuting attorney that such papers are needed as evidence in a pending criminal, traffic, or habitual offender proceeding and that such papers will be only used for such evidentiary purpose. Attested copies of papers which show the charge, finding, disposition, name of the attorney for the juvenile or waiver of attorney by the juvenile filed in connection with an adjudication of guilt for a delinquent act that would be a felony if committed by an adult shall be furnished to an attorney for the Commonwealth upon certification that the papers are needed as evidence in a pending criminal prosecution for a violation NOTE: If a juvenile is charged with, or of 18.2-308.2 and that such papers will only convicted of, a delinquent act which would be forcible rape, robbery or burglary or a be used for such evidentiary purpose. The sentencing judge must advise the delinquent juvenile of records expungement rights at the disposition hearing. Pursuant to Virginia Code 16.1-309.1 (A), the judge, where required by considerations of public interest, shall make available the juveniles name, address and the nature of the offense for which the juvenile was adjudicated delinquent.
related offense, or a Class 1, 2 or 3 felony, and either before or after disposition, becomes a fugitive from justice, the Department of Juvenile Justice shall notify the Commonwealths Attorney, who may release identifying information. This release of information does not require a court order. Virginia Code 16.1-309.1.
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For an act which would be a class 1, 2, or 3 felony, if committed by an adult, forcible rape, or robbery or burglary or a related offense as set out in Virginia Code 18.2-89 through -94, or
. In cases where a juvenile is sentenced as an adult in circuit court, or If a juvenile charged with a delinquent act that would be a class 1, 2, or 3 felony, if committed by an adult, forcible rape, or robbery or burglary or a related offense as set out in Virginia Code 18.2-89 through 94 if committed by an adult or held in custody by a law enforcement officer or in a secure facility becomes a fugitive from justice, upon petition the court may or if the court is not in session, the Commonwealths attorney, the Department of Juvenile Justice or a locally operated court services unit may authorize the public release of the juveniles name, age, physical description and photograph, the charge for which he is sought and any other information which may expedite his apprehension. Virginia Code 16.1-309.1 (B). A juveniles name and address may be made available to the public where a juvenile, who is 14 years of age or older, is charged with mob violence under Article 2 of Chapter 4 of Title 18.2 ( 18.2-38 et seq.), a felony involving a weapon, a felony drug offense or an act of violence, as defined in Virginia Code 19.2-297.1(A) and consideration of the public interest requires the disclosure. Va. Code 16.1-309.1(C). Detailed descriptions of records retention and destruction procedures in the juvenile and domestic relations district courts are provided in Appendix B, RECORDS RETENTION AND DISPOSITION. b. Statistical Reporting The Office of the Executive Secretary (OES) Any record that is open for inspection by personnel of the Department of Juvenile of the Supreme Court is responsible for the Justice and is maintained in an electronic administration of the district courts. In order to format may be transmitted electronically fulfill that responsibility and to aid the district to the Department of Juvenile Justice. courts in efficiently utilizing their resources, the Office of the Executive Secretary gathers statistical information on court activity. The procedures used for gathering this data are specified in the DOCKETING MANUAL. The steps in the process of collecting the statistical information begins before the trial and finishes with the preparation of the report printed via CMS. To obtain the necessary information, the clerks office will: Complete the Hearing/Disposition Updates for each case via CMS which collates the necessary data regarding . . . Whether the case is a new or continued case Disposition of the case Final disposition
c. Bond Forfeitures The same procedure used to forfeit bonds in adult criminal cases (Virginia Code 19.2-143) is also used in forfeiting bonds in juvenile cases. See SECTION VI., CRIMINAL CASE PROCEDURES, F. Case Trial Procedures, 3. Failure to Appear and Bond Forfeiture.
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d. Violations of Court Orders In addition to or instead of revoking a suspended sentence upon violation of the terms of the dispositional order, the court may proceed by a show cause proceeding, by contempt, or by both. Va. Code 16.1-292. For purposes of contempt proceedings, a juvenile and an adult are treated the same except that a juvenile can only be sentenced for contempt to a secure juvenile facility, not a jail, except in certain situations, for up to ten days per offense and may be sentenced otherwise for no more than he could have been sentenced originally for the delinquent offense. Special provisions apply to the dispositional alternatives when the underlying order involves a child in need of services or a child in need of supervision. E. CHILDREN IN NEED OF SERVICES, CHILDREN IN NEED OF SUPERVISION AND STATUS OFFENSES A child in need of services is defined as (i) a child whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of the child, or (ii) a child under the age of 14 whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of another person, except for a child undergoing certain good-faith spiritual treatment in accord with recognized religious tenets, or a child who habitually remains away from, deserts, or who abandons his family due to physical, emotional or sexual abuse in the home as determined by a court or local child protective services unit shall not be considered a child in need of services for that reason alone. A child in need of supervision is defined as a child who: while subject to compulsory school attendance, is habitually and without justification absent from school, and . the child has been offered an adequate opportunity to receive the benefit of any and all educational services and programs that are required to be provided by law and which meet the childs particular educational needs, and the school system from which the child is absent or other appropriate agency has made a reasonable effort to effect the childs regular attendance without success, and the school system has provided documentation that it has complied with the provisions of Virginia Code 22.1-258 regarding the efforts of an attendance officer to encourage frequently absent children to attend school, or
1. Definitions
without reasonable cause and without the consent of his or her parent, lawful custodian or placement authority, remains away from or deserts or abandons his or her parent or lawful custodian on more than one occasion or remains away without proper authority from a residential care facility in which he has been placed by the court, and . . . such conduct presents a clear and substantial danger to the childs life or health, and the child or his family is in need of treatment, rehabilitation or services not presently being received, and the intervention of the court is essential to provide the treatment, rehabilitation or services needed by the child or his family.
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A status offender is a child who commits an act prohibited by law which would not be a criminal act if committed by an adult. 2. Case Initiation a. Child in Need of Services and Status Offenders Case initiation for a child in need of services and status offenders will be through preparation of a JUVENILE PETITION, district court form DC-511. A child in need of services may be taken into custody when: There is no suitable person into whose custody the child may be released, or There is a clear and substantial danger to the childs life or health, or The assumption of custody is necessary to ensure the childs appearance before the court.
The same duties, responsibilities and procedures for detaining a child, conducting a detention hearing, and post-detention hearing release apply in child in need of services cases that apply in delinquency cases (see Juvenile Delinquency Case Procedures, Case Initiation, of this section) except that the: Child may not be detained in jail, and Court is not required to advise a child that he has a right to remain silent, and Child may not be detained in a detention home after the detention hearing.
See Virginia Code 16.1-246, -247, -248.1 and -249. A status offender committing a curfew violation may be released by the arresting officer on a Virginia Uniform Summons instead of being taken in for the issuance of a JUVENILE PETITION, district court form DC-511. b. Child in Need of Supervision Case initiation for a child in need of supervision will be through the preparation of a JUVENILE PETITION, district court form DC-511, through an intake officer only after the intake officer determines whether the petitioner and the child have utilized or attempted to utilize treatment and services available in the community and have exhausted all nonjudicial remedies which are available to them, and determines that they have made reasonable efforts to do so. 3. Pre-trial Procedures Prior to the adjudicatory hearing, the clerks office will perform such functions as are necessary to properly prepare the case for court. To complete the indexing and filing functions, the clerks office will: If no prior record exists: .
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Assign a new case number and enter in CMS. VIRGINIA DISTRICT COURT MANUAL
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. .
Prepare the case attaching all case-related papers. File the case in the pending court date file.
a. Appointment of Counsel The child involved in a case in juvenile and domestic relations district court has the right of representation by a lawyer during matters and proceedings concerning her/his interests. Prior to the adjudicatory hearing by the court of any case involving a child NOTE: The court determines whether the child or adult is indigent within the meaning of the law pursuant to the who is alleged to be in need of guidelines set forth in Virginia Code 19.2-159 after reviewing services, such child and his or her the FINANCIAL STATEMENT--ELIGIBILITY DETERMINATION parent, guardian, legal custodian or other person standing in loco parentis FOR INDIGENT DEFENSE SERVICES, district court form DC333, of the person for whom representation by a courtshall be informed by a judge, clerk appointed lawyer is being sought. If the parents of a child also or probation officer of the childs claim to be indigent, they must execute a separate financial right to counsel with the use of statement. If the parents, guardian, legal custodian or person ADVISEMENT AND REQUEST FOR standing in loco parentis is later found to be financially able to pay APPOINTMENT OF COUNSEL, for the court-appointed lawyer, they would be liable for such district court form DC-513, or fees and expenses up to the limit set forth in Virginia Code WAIVER OF RIGHT TO BE 19.2-163(1), which is currently $112. REPRESENTED BY A LAWYER (JUVENILE), district court form DC-515, and of the liability of the parent, guardian, legal custodian or other person standing in loco parentis for the costs of such legal services and be given an opportunity to: Obtain and employ counsel of the childs own choice; or If the court determines that the child is indigent within the contemplation of the law and his or her parent, guardian, legal custodian or other person standing in loco parentis does not retain an attorney for the child, a statement shall be executed by such child, and the court shall appoint an attorney-at-law to represent him; or Waive the right to representation by an attorney, if the court finds the child and the parent, guardian, legal custodian or other person standing in loco parentis of the child consent, in writing, to such waiver and that the interests of the child and the parent, guardian, legal custodian or other person standing in loco parentis in the proceeding are not adverse. Such written waiver shall be in accordance with law and shall be filed with the court records of the case. b. Appointment of Court-Appointed Special Advocate District court form DC-544, ORDER FOR COURT-APPOINTED SPECIAL ADVOCATE, is designed for appointment of a court-appointed special advocate to provide assistance in the case. It specifies the powers and duties of this appointee. Va. Code 9-173.8 to -173.13. 4. Case Hearing Responsibilities of the clerks office for the adjudicatory hearing include: Assuring that all parties and witnesses involved have been notified of the hearing.
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Verifying that all cases assigned to the court date have been entered on the docket. Assuring that the case files for the days cases are delivered to the judge prior to court.
The judge hears the testimony in the case, reviews the evidence, and renders a judgment. After the court has made an adjudication, either a disposition is rendered in the same hearing or a disposition hearing date is set and several procedures may be ordered by the court to be completed prior to the disposition hearing: The court may order a social history report pursuant to Virginia Code 16.1-273, using the ORDER FOR INVESTIGATION AND REPORT, district court form DC-542, which the court service unit or other entity must complete and file with the court at least 72 hours prior to the disposition hearing. If the case involves a child in need of supervision, then an evaluation by the appropriate public agency using an interdisciplinary team approach must be made and the report filed as described above prior to final disposition. In lieu of directing an evaluation, the court may consider the report of such interdisciplinary team, which met not more than 90 days prior to the courts finding that the child is in need of supervision. The court may also order the child to be examined by a local mental health center or, if none, then by a physician, a psychiatrist, or clinical psychologist pursuant to Virginia Code 16.1275. Upon the written recommendation of a physician, psychiatrist or clinical psychologist, the juvenile may be transferred to a state mental hospital for up to 10 days for a recommendation for treatment. The clerks office will issue a PLACEMENT ORDER, district court form DC-538, and send it to the director of the shelter care facility if the child is ordered placed in the facility by the court. In the case of a child in need of supervision, the court shall direct that an evaluation be done of the childs service needs using an interdisciplinary team approach. A report of the evaluation must be filed with the court at least 72 hours prior to the disposition hearing. If a report was done concerning the child by an interdisciplinary team within 90 days prior to the courts finding, the court may use that report in lieu of a new report. 5. Disposition Hearing At the disposition hearing, the court has several dispositional alternatives that it may invoke. a. Children in Need of Services or Status Offenders The dispositional alternatives for a child in need of services or a status offender pursuant to Virginia Code 16.1-278.4 are: Enter an order under Virginia Code 16.1-278 to obtain services otherwise required by law for the child, the parents, or other legal custodians as the court prescribes. Permit the child to remain home with his or her normal custodians subject to restrictions or conditions as the court may direct.
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Permit the placement of the child in a suitable family home, child-caring institution, residential facility or independent living arrangement with legal custody remaining with the parents or guardian. The court must find that reasonable efforts have been made to prevent placement out of the home and that continued placement in the home would be contrary to the welfare of the child. Require the child to participate in a public service project under such conditions as the court prescribes. Transfer legal custody of the child to . . . A relative or other individual who is found to be qualified to receive and care for the child. A licensed child welfare agency, private organization, or facility. The local department of social services or public welfare where the court has jurisdiction or where the child resides even if it is a different jurisdiction than that of the court. The local department must be given notice and the opportunity to be heard. Transfers to local public welfare or social services departments require a finding in the order whether reasonable efforts were made to prevent removal and that continued home placement would be contrary to the childs welfare. If the judge further finds that reasonable efforts were made to reunite the child with his parents, guardian or other person standing in loco parentis to the child and so states in his order, the local department can obtain federal funds reimbursement for foster care services. In an emergency, the local department of public welfare may be required to accept a child for a period not to exceed 14 days without prior notice or an opportunity to be heard if the judge entering the order describes in the order the emergency and the need for such temporary placement.
Order the child, the childs parent, guardian or legal custodian to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child. If the child is 14 years old or older and the court finds that the child is not able to benefit from further schooling, the court may: . . Excuse the child from compulsory school attendance, and Authorize the child to be employed in a non-hazardous occupation.
b. Children In Need of Supervision Following the submission of a report of evaluation, the dispositional alternatives for a child in need of supervision under Virginia Code 16.1-278.5 are: All of the alternatives available for a child in need of services under Virginia Code 16.1-278.4 (see list above in a.).
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Place the child on probation subject to conditions and limitations, including suspension of the childs drivers license and issuance of a restricted drivers permit. Order the child, the childs parent, guardian or legal custodian to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child. Require the child to participate in a public service project, as defined in Virginia Code 16.1-278.1, under such terms and conditions as the court may prescribe. In the case of any child subject to compulsory school attendance in Virginia Code 22.1-254, where the court finds that the parent, guardian, legal custodian, or other person standing in loco parentis of such child is in violation of Virginia Code 22.1-254, -255,-265, or-267, in addition to any penalties provided in Virginia Code 22.1-263 or 265, the parent, guardian, legal custodian, or other person standing in loco parentis of a child living with such person may be ordered to participate in such programs, cooperate in such treatment, or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child, parent, guardian, legal custodian, or other person standing in loco parentis of such child. Upon the failure of any parent, guardian, legal custodian, or other person standing in loco parentis of such child to participate in such programs or to cooperate in such treatment or to comply with any conditions and limitations that the court may order, the court may impose a fine of not more than $100 for each day in which such person fails to comply with the order of the court.
In the case where the court finds that such parent, guardian, legal custodian, or other person standing in loco parentis has willfully disobeyed a lawful process, judgment, decree, or order of the court requiring such person to comply with the compulsory school attendance law, in addition to any conditions or limitations that the court may order or any penalties provided by Virginia Code 16.1-278.2 through 16.1-278.19, 22.1-263 or 22.1-265, the court may find the parent, guardian, legal custodian, or other person standing in loco parentis guilty of a class 1 misdemeanor as provided by 18.2-371. If a court finds that a child at least thirteen years of age has failed to comply with school attendance and meeting requirements as provided in 22.1-258, the court shall order the denial of the child's driving privileges for a period of not less than thirty days. If such failure to comply involves a child under the age of sixteen, the child's ability to apply for a driver's license shall be delayed for a period of not less than thirty days following his sixteenth birthday. District court form DC-576, DRIVERS LICENSE DENIAL ORDER (JUVENILE)/DRIVERS LICENSE SUSPENSION ORDER (UNDERAGE ALCOHOL VIOLATIONS) is used to note the denial and to grant a restricted drivers license. For second or subsequent violations, the court may order denial of the juveniles license for one year or until the age of 18, whichever is longer, or delay the juveniles ability to apply for a license for one year after he reaches the age of 16 years and 3 months. 6. Post-Trial Procedures The bulk of the activity in non-delinquent juvenile cases takes place after trial. The purpose of these procedures is to do what is in the best interests of the child. The major post-trial procedures presented here include:
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Clerks office procedures Appeals Review of orders previously entered
The clerks office performs several functions to assure that case dispositions are recorded and completed cases are properly indexed and filed. The post-trial procedures of the clerks office are: Enter disposition information in CMS. Prepare the court order as per the courts instructions. Complete the PLACEMENT ORDER, district court form DC-538, for children placed in shelter care or the RELEASE ORDER, district court form DC-539, for children to be released and send the form to the director of the shelter care facility. Prepare and issue notices or legal documents to carry out the various post-trial activities such as NOTICE OF APPEAL JUVENILE CIVIL APPEALS, district court form DC-581.
a. Appeal Appeal of a judgment of the juvenile court may be taken to the circuit court, Va. Code 16.1-296, -344. An agency may appeal for a child involved in a non-delinquent juvenile case. Procedures for the clerks office processing an appeal include: Verify that the appeal has been noted within ten days after disposition including the disposition of an order on a motion for reconsideration of a continuing treatment program. Note the appeal in the Case Management System. Prepare the NOTICE OF APPEAL-JUVENILE CIVIL APPEALS, district court form DC-581, as per the instructions in the DISTRICT COURT MANUAL, FORMS volume. If applicable, receive recognizance from the appellant. Send all case-related documents to the circuit court clerks office. . Petition (juvenile) . Notices . Orders . Placement documents . Other pleadings or case documents . Photocopies of pertinent documents (petition, order, notice of appeal) to retain in the courts file.
No costs, taxes or fees are to be assessed on appeals in non-delinquency cases involving juveniles because Virginia Code 16.1-296 only permits such assessments if a trial fee could have been assessed in the juvenile and domestic relations district court and no trial fees in nondelinquency cases involving juveniles are statutorily provided. b. Request for New Trial A new trial in the case may be requested pursuant to Virginia Code 16.1-97.1. The motion for a new trial must be filed within 30 days after the date of judgment, and the court
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must rule on the motion within 45 days from the date of judgment; however, the clerks office should accept the motion when filed and the court should rule on the timeliness of filing issues. c. Reopening and Modification of Disposition Orders Review of disposition orders previously entered by the court may be had to reopen a case and modify or revoke the order as a result of alleged changes in circumstances of the parents, child, or other parties to a case; or the court may review a case and proceed against a person as a result of alleged violations of probation or other conditional sentence considerations. Procedures for such an action involve: Filing a MOTION TO REHEAR AND NOTICE OF HEARING, district court form DC-369, stating the reason to review the disposition (such as a change of circumstances). A motion for rehearing must be filed within 60 days of the original court date. Va. Code 16.1-133.1. Issuing a JUVENILE PETITION, district court form DC-511, or a DETENTION ORDER, district court form DC-529, where an alleged violation of the terms of a court order has occurred. Filing a PETITION or MOTION FOR SHOW CAUSE or MOTION TO AMEND, preparing petitions for revocation or modification of probation, protective supervision, or parole status in the same manner as for the original proceedings.
If a child adjudicated to be in need of services is found to have willfully and materially violated a court order for a second or subsequent time, the court may suspend the juveniles drivers license, impose a curfew on operating a motor vehicle, or issue a restricted license pursuant to Virginia Code 16.1-278.8(9). Va. Code 16.1-292. If a child adjudicated to be in need of supervision is found to have willfully and materially violated a lawful order for the second or subsequent time, pursuant to Virginia Code 16.1-292, the court may suspend the childs drivers license order a child 14 years old or older to be placed in a nonsecure residential facility or order a child into secure detention for up to 10 consecutive days if the court finds in its order that: . . . nonsecure placement is not likely to meet the childs needs, and all other treatment options in the community have been exhausted, and secure placement is necessary to meet the childs service needs.
If secure detention is ordered, the court shall order additional review and additional treatment plan development by the prior interdisciplinary team that made the original evaluation and report at the earlier dispositional stage.
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F.
ABUSE, NEGLECT, RELIEF OF CUSTODY, ENTRUSTMENT, FOSTER CARE AND TERMINATION OF PARENTAL RIGHTS
The Court Improvement Program - Foster Care and Adoption is an initiative in the Office of the Executive Secretary of the Supreme Court of Virginia that focuses on improving court practice in child abuse/neglect and foster care cases. The Court Improvement Programs recommendations, included as a part of these materials, have been developed in consultation with a committee of judges, clerks, social services personnel and attorneys who advise the program. In all of the proceedings discussed in this section, judicial determinations must be detailed and child specific. The district court forms that have been developed for use in these proceedings must be completed in their entirety to provide the specific information required for placement in foster care. Nunc Pro Tunc orders will not cure defects in timeliness or documentation. Please note that the date the order is signed determines whether the statutory time requirements have been met, not the date the hearing was held. Placement of a child in the custody of the local department of social services may be ordered by the court only as a result of the following: a court order in an abuse or neglect case a court order in a the situation of a child at risk of abuse or neglect where a parent or custodian has been adjudicated as having abused or neglected another child in the care of the parent or custodian an entrustment agreement by the parent or custodian a court order in a case where a parent or custodian is requesting relief of custody a court order in a CHINS case or status offense case or delinquency case a placement agreement with parents or a guardian There is no statutory authority to place a child in foster care based on a petition for determination of custody. 1. Emergency Removal Hearings and Preliminary Removal Hearings. Va. Code 16.1-251, 16.1-252. a. Emergency Removal Order Timing: An emergency removal Order must be obtained pursuant to Virginia Code 16.1-251 within 72 hours of the removal of the child in accordance with the provisions of Virginia Code 63.2-1517. Initiation: To secure an emergency removal order for a child, a petition must be filed in which it is alleged that the child is abused or neglected. Va. Code 16.1-251 (A). When an emergency removal order is requested, the petition or accompanying affidavit should allege abuse or neglect of a child and include: A specific statement of the factual circumstances that allegedly necessitate removal of the child. Va. Code 16.1-252 (B)(ii). A statement that child support may be considered if a determination is made that the child must be removed from the home. Va. Code 16.1-252 (B)(iii).
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A UCCJEA (UNIFORM CHILD CUSTODY JURISDICTION AND The Court Improvement Program recommends that the ENFORCEMENT ACT) guardian ad litem should be informed by the clerk of the court of the date and time of the emergency removal AFFIDAVIT, district court form hearing and of the preliminary removal hearing and DC-620. Pursuant to Virginia Code 20-146.1, a child custody should attend these hearings. The department of social services (DSS) and the childs parents should be provided proceeding includes a child with a copy of the ORDER FOR APPOINTMENT OF neglect, abuse or other GUARDIAN AD LITEM, district court form DC-514, when proceeding in which legal it is entered. custody, physical custody or visitation with respect to a child is an issue. This affidavit should be completed with as much information as is available at the time of the request for an emergency removal order, and updated upon the filing of subsequent pleadings. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. Appointment of guardian ad litem: Upon the filing of a petition alleging abuse or neglect, the court shall appoint a guardian ad litem (GAL) to represent the child using the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514. Va. Code 16.1-266 (A). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia. b. Emergency Removal Hearing Requirements for obtaining emergency removal order: The court may issue an emergency removal order based upon the petitioners evidence of the following, presented by an affidavit or by sworn testimony, which may be ex parte: The child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home that could reasonably protect the childs life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary child protective order pursuant to Virginia Code 16.1-253. Reasonable efforts to prevent removal have been made because there was no reasonable opportunity to provide preventive services. Va. Code 16.1-251 (A)(2).
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Court order: The court must make a reasonable efforts finding. If the child is placed in the temporary custody of the local department of social services, the EMERGENCY REMOVAL ORDER, district court form DC-526, shall state that reasonable efforts have been made or are deemed to have been made to prevent removal of the child from his home and that there are no alternatives less drastic than removal of the child from his home which could reasonably protect the childs life or health pending a final hearing on the petition. Va. Code 16.1-251 (A)(2). In the emergency removal hearing, the court shall give consideration to temporary placement of the child with a relative or other interested individual, including GRANDPARENTS, under the supervision of the local department of social services, until such time as the hearing in accordance with 16.1-252 is held. Va. Code 16.1-251 (C). The local department of social services, if granted legal custody of the child (as the term legal custody is defined in 16.1-228 (i), shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent. Va. Code 16.1-251 (D). Federal regulations promulgated March 27, 2000 interpreting the Adoption and Safe Families Act of 1997, P. L. 105-89, require that certain key judicial determinations, including [imminent threat to the child and] reasonable efforts to prevent removal, be explicitly documented, made on a case-by-case basis and stated in the courts order. 45 C.F.R. 1356.21(d). c. Preliminary Removal HearingPre-trial Timing: A hearing must be held as soon as practicable after entry by the court of an emergency removal order, but the hearing must be held in no event later than five (5) business days after the removal of the child. Va. Code 16.1-251 (B). The hearing is called a preliminary removal hearing. Notice of hearing pursuant to Virginia Code 16.1-252 (B): Prior to the preliminary removal hearing, notice of the hearing shall be given at least 24 hours in advance to the following: the parents, guardian, legal custodian, or other person standing in loco parentis; and the childs guardian ad litem, who must be appointed in all cases alleging abuse or neglect in accordance with Virginia Code 16.1-266 (see also 16.1-266.1); and the child, if he or she is 12 years of age or older. Notice of the preliminary removal hearing shall include: the time, date and place of hearing (SUMMONS - district court form DC-510); a specific statement of factual circumstances which allegedly necessitate removal of the child. This statement may be contained in the petition or in the affidavit supporting the request for the emergency removal order;
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that child support may be considered if a determination is made that the child must be removed from the home. This notice is printed on the reverse side of the SUMMONS, district court form DC-510. A separate PETITION FOR CIVIL SUPPORT, district court form DC-610, should be filed against each parent as soon as practicable by the local NOTE: If paternity has not previously been department of social services, if a established, a petition for a determination of determination is made that the parentage pursuant to Virginia Code 16.1-241 child must be removed from the (Q) should be filed such that paternity may be home. The clerk should set a placed on the docket as an issue to be resolved. hearing on the support petition in accordance with local procedures. Summons After the filing of a petition, the court shall direct a SUMMONS, district court form DC510, to the child, if he or she is 12 years of age or older, and another to the parent, guardian, legal custodian or other person standing in loco parentis, and to other persons as appear to the court to be proper or necessary parties to the proceedings. Va. Code 16.1-263 (A). Proper and necessary parties may include individuals whose names appear on the petition, including foster parents. In accordance with Virginia Code 9.1-157, the provisions of Virginia Code 16.1-264 regarding notice to parties shall apply to ensure that the Court Appointed Special Advocate is notified of hearings and other proceedings concerning the case to which s/he is assigned. If notice cannot be given twenty-four hours in advance despite diligent efforts to do so, the hearing shall be held and the parents, guardian, legal custodian or other person standing in loco parentis shall be afforded a later hearing on their motion. Va. Code 16.1-252 (B). No summons or notification of a parent or guardian shall be required if the judge certifies on the record that the identity of a parent or guardian is not reasonably ascertainable. The AFFIDAVIT/CERTIFICATION OF PARENTAL IDENTITY OR LOCATION, district court form DC-509, can be used for this purpose. 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. Va. Code 16.1-263 (E). Parties shall be informed in accordance with Virginia Code 16.1-252 (C) of their right to counsel pursuant to Virginia Code 16.1-266, as follows: Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected
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The Court Improvement Program recommends that notice of the right to counsel should be given at the emergency removal hearing if the parent, guardian or charged adult is present at this hearing. If the parent, guardian or other adult do not attend this hearing, notice of the right to counsel should be sent to the parent, guardian or other adult with the notice of the preliminary removal hearing. The parents should be informed that if they want court-appointed counsel, they should contact the court in advance of the preliminary removal hearing to make these arrangements. The preliminary removal hearing may result in an adjudication of the child abuse or neglect petition. To avoid continuances of these hearings, counsel should be present at the preliminary removal hearing or be waived by the parents or other responsible adult. The SUMMONS, district court form DC-510, includes notice of the right to counsel.
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to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1-266 (C). In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (E). Pursuant to this authority, an attorney may be appointed to represent the interests of a parent who is under the age of 18 years or under a disability such as incarceration or mental illness. The ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, should be used for this appointment. If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as in the case for appointment of a guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-atlaw to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian. Transportation of incarcerated witness: If the presence of a prisoner is essential to the just adjudication and disposition of a case involving a child who is alleged to be abused or neglected, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional
Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.01-2 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court).
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institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. Pursuant to Virginia Code 16.1-252 (D), if the alleged child victim was 14 years of age or younger on the date of the alleged offense and is 16 or under at the time of the hearing, the guardian ad litem or department of social services may apply for an order from the court requesting that the childs testimony be taken by closed-circuit television pursuant to Virginia Code 63.2-1521. The requesting party shall apply for such an order at least 48 hours prior to the hearing. Note: These provisions also permit the testimony of any child witness who is 14 years of age or under at the time of the trial to be taken by closed-circuit television, upon proper application and order of the court. Va. Code 63.2-1521. d. Preliminary Removal Hearing The burden of proof for abuse or neglect proceeding that may lead to temporary placement of the child is preponderance of the evidence. Wright v. Arlington County Dept. of Social Servs., 9 Va. App. 411, 388 S.E.2d 477 (1990). The child and his parent, guardian, legal custodian or other person standing in loco parentis have the right to confront and cross-examine adverse witnesses and present evidence at the preliminary removal hearing. Va. Code 16.1-252 (D). Requirements for obtaining preliminary removal order: Pursuant to Virginia Code 16.1252 (A), the preliminary removal hearing shall be in the nature of a preliminary hearing rather than a final determination of custody. In order for a preliminary order to issue or for an existing removal order to be continued, the petitioner must prove: The child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home that could reasonably protect the childs life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary child protective order pursuant to Virginia Code 16.1-253. Reasonable efforts to prevent removal are deemed to have been made because there was no reasonable opportunity to provide preventive services.
Federal regulations promulgated March 27, 2000 interpreting the Adoption and Safe Families Act of 1997 require that certain key judicial determinations, including [imminent threat to the child] and reasonable efforts to prevent removal, be explicitly documented, made on a case-by-case basis and stated in the courts order. 45 C.F.R. 1356.21(d).
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Court order at preliminary removal hearing: If the court determines, pursuant to Virginia Code 16.1-252 (E) that the removal of the child is proper, the court shall, using the PRELIMINARY REMOVAL ORDER, district court form DC-528: Order that the child be placed in the temporary care and custody of a suitable person, subject to the provisions of Virginia Code 16.1-252 (F1) and under the supervision of the local department of social services, with consideration being given to placement in the temporary care and custody of a relative or other interested individual, including grandparents, until such time as the court enters an order of disposition pursuant to 16.1-278.2. If such placement is not available, the court shall place the child in the care and custody of a suitable agency. Va. Code 16.1-252 (F)(1).
Prior to transferring temporary custody of the child to a relative or other interested individual, including grandparents, the court shall consider whether the relative or other interested individual is one who is willing and qualified to receive and care for the child; and is willing to have a positive, continuous relationship with the child; and is willing and has the ability to protect the child from abuse and neglect. Va. Code 16.1-252 (F1). The courts order transferring temporary custody to a relative or other interested individual should provide for compliance with any preliminary protective order entered on behalf of the child pursuant to 16.1-253; initiation and completion of the investigation of the childs placement as directed by the court and court review of the childs placement required in accordance with the provisions of 16.1-278.2; and as appropriate, ongoing provision of social services to the child and the temporary custodian. Va. Code 16.1-252 (F1).
Order that reasonable visitation be allowed between the child and his parents, guardian, legal custodian or other person standing in loco parentis, if such visitation would not endanger the childs life or health. Order that the parent or other legally obligated person pay support pursuant to Virginia Code 16.1-290. In addition, the court may enter a PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, pursuant to Virginia Code 16.1-253, imposing requirements and conditions which the court deems appropriate for protection of the welfare of the child. Finding of abuse or neglect at the preliminary removal hearing - Va. Code 16.1-252 (G). At the conclusion of the preliminary removal hearing, unless there is an appropriate objection, the court shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence. Any finding of abuse or neglect shall be stated in the court order. However, if before a finding of abuse or neglect is made, a person responsible for the care and custody of the child, DSS or the childs GAL objects to a finding being made at the preliminary removal hearing, the court shall make no finding of abuse or neglect and shall schedule an adjudicatory hearing on the allegation of abuse and neglect to be held within 30 days of the date of the preliminary removal hearing. The adjudicatory
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hearing shall be held to determine whether the allegations of abuse and neglect have been proven by a preponderance of the evidence. The court must find whether or not the child has been abused or neglected. It is not necessary to establish the perpetrator of the abuse or neglect in order to make this finding. Parties present at the preliminary removal hearing shall be given notice of the date set for the adjudicatory hearing and the disposition hearing, and the parties not present shall be summoned as provided in Virginia Code 16.1-263. All parties present should receive a copy of the PRELIMINARY REMOVAL ORDER, district court form DC-528. All parties present should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC508, for the abuse and neglect adjudicatory hearing, if continued, and the dispositional hearing. The preliminary removal order should be served on any party who did not receive a copy of the order at the preliminary removal order hearing. If the case is continued for an adjudicatory hearing, the PRELIMINARY REMOVAL ORDER and any PRELIMINARY PROTECTIVE ORDER may still be issued. These orders shall remain in full force and effect pending the adjudicatory hearing and until superseded by the issuance of a subsequent order in the case. Va. Code 16.1-252 (G) and 16.1-253 (F). e. Adjudicatory Hearing Va. Code 16.1-252 (G) The petitioner must, pursuant to Virginia Code 16.1-252 (G), prove by a preponderance of the evidence that the child is abused and/or neglected as defined in Virginia Code 16.1-228. This section states that an abused or neglected child is any child: Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such a child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions, including, but not limited to, a child who is with his parent or other person responsible for his care either (i) during the manufacture or attempted manufacture of a Schedule I or II controlled substance, or (ii) during the unlawful sale of such substance by that childs parents or other person responsible for his care, where such manufacture, or attempted manufacture or unlawful sale would constitute a felony violation of Virginia Code 18.2-248; Whose parents or other person responsible for his care neglects or refuses to provide care necessary for his health; however, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child; It is an affirmative defense to a civil proceeding that a parent safely delivered a child to a hospital with 24-hour emergency services or an attended rescue squad within 14 days of birth.
Whose parents or other person responsible for his care abandons child; Whose parents or other person responsible for his care commits or allows to be committed any sexual act upon a child in violation of the law; or
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Who is without parental care or guardianship caused by the unreasonable absence or the mental or physical incapacity of the childs parent, guardian, legal custodian or other person standing in loco parentis. The hearing shall be held and an order may be entered although a party to the preliminary removal hearing fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found after reasonable effort or, in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. See district court form DC-509, CERTIFICATION/AFFIDAVIT OF PARENTAL IDENTITY OR LOCATION. Any finding of abuse or neglect can be documented in the ADJUDICATORY ORDER FOR ABUSE OR NEGLECT CASES, district court form DC-561. Violation of a Preliminary Removal Order or an adjudicatory order entered pursuant to 16.1-252 shall constitute contempt of court. Va. Code 16.1-252 (J). f. Disposition Hearing Va. Code 16.1-252 (H), 16.1-278.2. If in a preliminary removal proceeding, a finding of abuse or neglect is made and the child is removed from his home or a preliminary child protective order is issued, a disposition hearing shall be held to dispose of the underlying petition pursuant to Virginia Code 16.1-278.2. The disposition hearing shall be scheduled at the time of the preliminary removal hearing, even if an adjudicatory hearing is requested. The disposition hearing shall be held within 75 days of the preliminary removal hearing. All parties present at the preliminary removal hearing shall be given notice of the date scheduled for the disposition hearing. Parties not present shall be summoned as provided in Virginia Code 16.1-263. The court has dispositional alternatives pursuant to Virginia Code 16.1-278.2 in cases of (i) a child found to be abused or neglected or (ii) a child at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in his care. The DISPOSITIONAL ORDER FOR UNDERLYING PETITION, FOSTER CARE PLAN, district court form DC-553, should be used for this purpose. When transferring custody of the child to a relative or other interested individual for disposition pursuant to Virginia Code 16.1-278.2 (A)(5)(a), the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-278.2 (A1):
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings.
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The courts order should further provide for, as appropriate, any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement.
A dispositional order entered pursuant to Virginia Code 16.1-278.2 is a final order from which an appeal may be taken in accordance with 16.1-296. Va. Code 16.1-278.2 (D). If a PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, was entered previously: finalize the PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, by entry of a CHILD PROTECTIVE ORDER, district court form DC-532, and set a date to review the status of a child who returns home with a CHILD PROTECTIVE ORDER in effect; or as appropriate, dismiss the preliminary child protective order. If the child has been placed in foster care, at the disposition hearing the court shall review the foster care plan for the child filed in accordance with 16.1-281 by the local department of social services, a public agency designated by the community policy and management team, or a child welfare agency. Va. Code 16.1-278.2 (B). The court is required by Virginia Code 16.1-252 (F)(3) to order that the parent or other legally obligated person pay child support pursuant to 16.1-290 in the event that the child is removed. Virginia Code 16.1-290 (C) states: Whenever a child is placed in foster care by the court, the court shall order and decree that the parent or other legally obligated person shall pay the Department of Social Services pursuant to 20-108.1, 20-108.2, 63.2909, and 63.2-1910. Virginia Code 63.2-909, 63.2-910 and 63.2-1910 require that responsible persons shall pay child support for a child placed in foster care from the date that custody was awarded to the local department of social services. The local department of social services having legal custody of a child, as defined in part (i) of this definition in Virginia Code 16.1-228, shall not be required to comply with the requirements of the preliminary removal section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent. Va. Code 16.1-252 (I). Any person violating a dispositional order entered pursuant to 16.1-278.2 may be proceeded against by an order requiring the person to show cause why the order has not been complied with and/or for contempt of court. Va. Code 16.1-292 (A). See also Va. Code 16.1-253.2 (certain violations of a protective order entered pursuant to Virginia Code 16.1-253 may be charged as a Class 1 misdemeanor).
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Court may appoint a Court Appointed Special Advocate, using ORDER FOR CASA, district court form DC-544, if not previously appointed. g. Appeals Upon appeal to the circuit court of any case involving a child placed in foster care and also in any such appeal to the Court of Appeals or Supreme Court, the juvenile and domestic relations district court retains jurisdiction to continue to hear foster care review petitions pursuant to Virginia Code 16.1-282 and 16.1-282.1. Va. Code 16.1-242.1. The appeal should be noted on the NOTICE OF APPEAL JUVENILE CIVIL APPEAL, district court form DC-581. This form provides for the style of the case to reflect In Re: the childs name in addition to the appellants name and appellants relationship to the child. The Dc-581 gives notice to the parents and court staff that the matter is a civil juvenile appeal. The notice of appeal also requires information regarding the name of the Guardian ad litem and the attorneys representing the parties as well as an estimation of the time needed for a hearing. There is no bond or fee requirement for the appeal of a foster care order. h. Statutes Pertinent to Emergency Removal and Preliminary Removal Proceedings Pursuant to Virginia Code 63.2-1517, under certain circumstances a child protective services (CPS) worker investigating a report of abuse or neglect may take a child into custody and remove the child from her/his home up to 72 hours without the approval of the parents or guardian provided that: Continuing the child in her/his place of residence or in the care or custody of the parent/custodian presents an imminent danger to the childs life or health to the extent that severe or irremediable injury would be likely to result or if evidence of abuse is perishable or subject to deterioration before a hearing can be held; and A court order is not immediately obtainable; and The court has set up procedures for placing such children; and Following taking the child into custody, the parents or guardians are notified as soon as practicable that s/he is in custody; and A report is made to the local department; and The court is notified and the person or agency taking custody of such child obtains, as soon as possible, but in no event later than 72 hours, an EMERGENCY REMOVAL ORDER, unless a PRELIMINARY REMOVAL ORDER is issued after a hearing held pursuant to Virginia Code 16.1-252 within 72 hours of the removal of the child. Virginia Code 63.2-1518 authorizes any person required to make a report or conduct an investigation or family assessment of an abused or neglected child to talk to the child suspected of being abused/neglected or to any of her/his siblings. The conversation may take place without the parent/custodians consent and outside of their presence.
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Virginia Code 63.2-1519 states that the following statutory privileges against testifying do not apply in these cases: husband-wife privilege, physician-patient privilege. Virginia Code 63.2-1520 states that photographs and x-rays may be taken of the abused/neglected child without the parent/custodians consent as part of the medical evaluation. Photographs may be taken of the child without the parent/custodians consent as part of the investigation or family assessment of the case by DSS, but shall not be used in lieu of medical evaluation. Such photographs and x-rays may be introduced into evidence in any subsequent proceeding. Virginia Code 63.2-1524 gives the court the authority to order psychological, psychiatric and physical examinations of the child alleged to be abused/neglected and of the parent/custodian/ caretaker of the child and of the siblings of the child. Virginia Code 63.2-1525 states that competent evidence by a physician that a child is abused/neglected shall constitute prima facie evidence to support removal of the child, in the case of a petition for removal of custody of a child alleged to have been abused or neglected. Virginia Code 16.1-245.1 provides that any party in any civil case heard in a juvenile and domestic relations district court involving allegations of child abuse or neglect may present evidence by a report from the treating or examining health care provider as defined in Virginia Code 8.01-581.1, or by the records of a hospital, medical facility or laboratory, as to the extent, nature, and treatment of any physical condition or injury suffered by a person and the examination of the person or the result of the laboratory analysis. The party intending to present a medical report as evidence at trial must provide the opposing parties a copy of the report to which is attached a sworn statement by the treating or examining health care provider or laboratory analyst that (i) the information contained therein is true, accurate, and fully describes the nature and extent of the physical condition or injury and (ii) the patient named therein was the person treated or examined by such health care provider; or, in the case of a laboratory analysis, that the information contained therein is true and accurate. Written notice of intent to present the medical report also must be provided at least 10 days, or in the case of a preliminary removal hearing pursuant to Virginia Code 16.1-252, at least 24 hours prior to the trial. A hospital or medical facility record shall be admitted if attached to it is a sworn statement of the custodian thereof that the same is a true and accurate copy. There are three Virginia statutes (Virginia Code 63.2-1521, 63.2-1522, and 63.2-1523) regarding specialized ways in which children may testify in abuse/neglect proceedings. Virginia Code 63.2-1521 is entitled Testimony by child using two-way closed-circuit television. This statute pertains to civil child abuse or neglect proceedings only. It is available if an alleged child victim was 14 years of age or under on the date of the alleged offense and 16 or under at the time of the trial, and if any child witness is 14 years of age or under at the time of the trial. The childs attorney/ guardian ad litem (or if the child is in custody of DSS, the DSS attorney) may apply for a court order for the childs testimony to be taken in a room outside the courtroom and to be televised by two-way closed circuit television. The attorney must ask for the court to enter this order at least 48 hours before a preliminary removal hearing, pursuant to Virginia Code 16.1-252 (D), and 7 days before trial, pursuant to Virginia Code 63.2-1521.
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In order to permit testimony by two-way closed circuit television, the court must find that the child is unavailable to testify in open court in the presence of the defendant, jury, judge and the public for any of the following reasons:
the childs persistent refusal to testify despite judicial requests to do so; the childs substantial inability to communicate about the offense; or the substantial likelihood, based upon expert opinion testimony, that the child will suffer severe emotional trauma from so testifying.
Note: A statutory provision applicable to some criminal proceedings, paralleling the provisions of Virginia Code 63.2-1521 may be found in Virginia Code 18.2-67.9. Virginia Code 63.2-1522 is entitled Admission of evidence of sexual acts with children. This statute pertains to civil proceedings involving a child age 12 or under at the time of the trial who is alleged to be abused or neglected. Under certain limited circumstances outlined in the statute, a childs out-of-court statement that might otherwise be considered hearsay may be admitted into evidence. The statement of the child must describe an act of a sexual nature performed with or on the child by another. The statement must possess specified guarantees of trustworthiness and reliability. The proponent of the statement must notify the adverse party of his intention to offer the out-of-court statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to subpoena witnesses or otherwise to defend against the statement. Virginia Code 63.2-1523 is titled Use of videotaped statements of complaining witnesses as evidence. This statute is applicable in a civil proceeding involving alleged abuse or neglect of a child age 12 or under at the time of the trial, when the statutory criteria related to the preparation of the videotaped interview are satisfied. The party conducting the videotaped interview must be authorized to do so by CPS of the local department of social services. The videotaped statement must have the statutory guarantees of trustworthiness. The adverse party must be given reasonable notice of the proponents intent to use the videotape. The child must testify at the hearing or be unavailable to testify in accordance with the statutory criteria of unavailability. i. Newborn Children - Suspected Abuse or Neglect of Child Based on Prenatal Substance Abuse by Mother. Va. Code 16.1-241.3. Virginia Code 63.2-1509 (B) expands on mandatory reporting of abuse or neglect. Mandatory reporters must report to DSS via the toll-free child abuse and neglect hotline an additional category of cases defined as follows. Reason to suspect that a child is abused or neglected shall include: (i) a finding made by an attending physician within 7 days of a childs birth that the results of a blood or urine test conducted within 48 hours of the birth of the child indicate the presence of a controlled substance not prescribed for the mother by a physician; (ii) a finding by an attending physician made within 48 hours of a childs birth that the child was born dependent on a controlled substance which was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms; (iii) a diagnosis by an attending physician made within 7 days of a childs birth that the child
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has an illness, disease or condition which, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance which was not prescribed by a physician for the mother or the child; or (iv) a diagnosis by an attending physician made within 7 days of a childs birth that the child has fetal alcohol syndrome attributable to in utero exposure to alcohol. The person making the mandated report based on reason to suspect under this section is required to give the facts relied on in the report. Pursuant to Virginia Code 63.2-1503, DSS is required to determine the validity of a report of child abuse or neglect and make a determination to conduct an investigation pursuant to Virginia Code 63.2-1505 or a family assessment pursuant to Virginia Code 63.2-1506. If the report is based upon one of the factors specified in 63.2-1509 (B), DSS may file a petition pursuant to Virginia Code 16.1-241.3. If the mother sought substance abuse counseling or treatment prior to the childs birth, no report of abuse or neglect shall be transmitted to the Central Registry. DSS may file a petition pursuant to Virginia Code 16.1-241.3 within 21 days of a childs birth alleging that an investigation or family assessment has been commenced in response to a report of suspected abuse or neglect pursuant to 63.2-1509 (B) and the court may enter any order authorized pursuant to Chapter 11 of Title 16.1 which the court deems necessary to protect the health and welfare of the child pending the final disposition of the investigation or family assessment under 63.2-1500 et seq. Such orders may include but are not limited to an emergency removal order pursuant to 16.1-251, a preliminary child protective order pursuant to 16.1-253 or an order pursuant to 16.1-278.2 (A)(1)-(4). The fact that an order was entered shall not be admissible evidence in a criminal, civil or administrative proceeding other than a proceeding to enforce the order. The order shall be effective for a limited duration not to exceed the period of time necessary to conclude the investigation or family assessment and any proceedings initiated pursuant to Virginia Code 63.2-1500 et seq. but shall be a final order subject to appeal. 2. Preliminary Protective Proceedings. Va. Code 16.1-253. a. Initiation Petitioner may be any person or a preliminary protective order may be entered on the courts own motion, after a hearing, if necessary to protect a childs life, health, safety or normal development pending the final determination of any matter before the court. Va. Code 16.1-253 (A). When a person requests a preliminary protective order, the PETITION, district court form DC-511, or accompanying affidavit shall contain: The specific facts which necessitate the issuance of a preliminary protective order; and Facts sufficient for the court to make a finding that the issuance of a preliminary protective order is necessary to protect a childs life, health or normal development pending the final determination; and The specific relief requested under Virginia Code 16.1-253 (A). VIRGINIA DISTRICT COURT MANUAL
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Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is otherwise before the court pursuant to subdivision (A)(4) of Virginia Code 16.1-241, the The Court Improvement Program recommends court shall appoint a guardian ad that the guardian ad litem should be informed by the litem (GAL) to represent the child clerk of the date and time of the ex parte preliminary using ORDER FOR APPOINTMENT protective order hearing and of the preliminary OF GUARDIAN AD LITEM, district protective order hearing, and should attend these court form DC-514. Va. Code hearings. If the department of social services (DSS) is involved in the case, DSS and the childs parents 16.1-266 (A). In the discretion of should be provided with a copy of the ORDER FOR the court, a guardian ad litem may APPOINTMENT OF GUARDIAN AD LITEM (DCalso be appointed to represent the interests of the child or children in 514) when it is entered. all other cases. Va. Code 16.1266 (D). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. The list can be found at www.courts.state.va.us. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia. b. Ex parte Preliminary Protective Order. Va. Code 16.1-253 (B). The PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, may be issued ex parte upon the motion of any person or the courts own motion, or upon petition. The motion or petition shall be supported by an affidavit or sworn testimony in person before a judge or intake officer. The affidavit or sworn testimony shall establish that: the child would be subjected to an imminent threat to life or health; and delay for the provision of an adversary hearing would be likely to result in serious or irremediable injury to the child life or health. If an ex parte order is entered, the court shall provide an adversary hearing within the shortest practicable time not to exceed five business days after the issuance of the order. If an ex parte order is entered without an affidavit being presented, the court shall state in its order the basis upon which the order was entered including a summary of the allegations made and the courts findings.
NOTE: If paternity has not previously been established, a petition for a determination of parentage pursuant to Virginia Code 16.1-241 (Q) should be filed such that paternity may be placed on the docket as an issue to be resolved.
c. Notice of the Adversary Hearing. Va. Code 16.1-253 (C). Notice of the hearing shall be given at least 24 hours in advance to the following: the childs guardian ad litem; and the parents, guardian, legal custodian, or other person standing in loco parentis and any other family or household member of the child to whom the protective order may be directed; and
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the child, if he or she is 12 years of age or older. Notice of the hearing shall include: the time, date and place of hearing (SUMMONS, district court form DC-510); a specific statement of factual circumstances which allegedly necessitate the entry of a preliminary protective order; information concerning the right of the parties to counsel. After the filing of a petition, the court shall direct a SUMMONS, district court form DC-510, to the child, if he or she is 12 years of age or older, and another to the parent, guardian, legal custodian or other person standing in loco parentis, and to other persons as appear to the court to be proper or necessary parties to the proceedings. Va. Code 16.1-263. Proper and necessary parties may include individuals whose names appear on the petition, including foster parents.
In accordance with Virginia Code 9.1-157, the provisions of Virginia Code 16.1-264 regarding notice to parties shall apply to ensure that the Court Appointed Special Advocate is notified of hearings and other proceedings concerning the case to which s/he is assigned.
The Court Improvement Program recommends that notice of the right to counsel should be sent with the notice of the preliminary protective order hearing. The childs parents or other family or household member to whom the protective order may be directed should be informed that if s/he wants courtappointed counsel, s/he should contact the court in advance of the preliminary protective order hearing to make these arrangements. The preliminary protective order hearing may result in an adjudication of a child abuse or neglect petition. To avoid continuances of these hearings, counsel should be present at the preliminary protective order hearing or be waived by the parents or other responsible adult. The SUMMONS (DC-510) includes notice of the right to counsel.
No summons or notification of a parent or guardian shall be required if the judge certifies on the record that the identity of a parent or guardian is not reasonably ascertainable. See AFFIDAVIT/ CERTIFICATION OF PARENTAL IDENTITY OR LOCATION, district court form DC-509. 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. Va. Code 16.1-263 (E). d. Right to Counsel Pursuant to Virginia Code 16.1-253 (D), parties shall be informed by a judge, clerk or probation officer of their right to counsel in accordance with Virginia Code 16.1-266 and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed (the REQUEST FOR APPOINTMENT OF A LAWYER, district court form DC-334, should be used by the party to request appointment of an attorney); (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1266 (C). Advisement of the right to counsel shall be given: to the parent or guardian of the child, prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a) and prior to a hearing at which a parent could be subjected to the loss of residual parental rights.
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to an adult charged with abuse or neglect of a child, prior to the hearing of the case by the court. In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). Pursuant to this authority, an attorney may be appointed to represent the interests of a parent who is unknown or not found. The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age of 18 years or under a disability such as incarceration or mental illness. THE ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, should be used for this appointment. If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as in the case for appointment of a guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-atlaw to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian.
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e. Transportation of Incarcerated Witness If the presence of a prisoner is essential to the just adjudication and disposition of a case involving a child who is alleged to be abused or neglected, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01410. Va. Code 16.1-276.2. f. Hearing At the adversary hearing the child, her/his parents, guardian, legal custodian, other person standing in loco parentis and any other family or household member of the child to whom notice was given shall have the right to confront and cross-examine all adverse witnesses and evidence and present evidence on their own behalf. Va. Code 16.1-253 (E). Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.01-2 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court).
Except as provided in Virginia Code 16.1-278.2 upon disposition of a case in which a finding has been made of abuse or neglect, or at risk of being abused or neglected by a parent who has been adjudicated as having abused or neglected another child in the care of the parent or custodian, the child cannot be removed from the custody of her/his parents, guardian, legal custodian or other person standing in loco parentis through a proceeding for the entry of a preliminary protective order. Va. Code 16.1-253 (H). No order under this section shall be entered against a person over whom the court does not have jurisdiction. Va. Code 16.1-253 (H).
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g. PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527. The preliminary protective order may require a childs parents, guardian, legal custodian, other person standing in loco parentis or other family or household member of the child to observe reasonable conditions of behavior for a specified length of time. The conditions in a preliminary protective order shall include any one or more of the following: To abstain from offensive conduct against the child, a family or household member of the child or any person to whom custody of the child is awarded; To cooperate in the provision of reasonable services or programs designed to protect the childs life, health or normal development; To allow persons named by the court to come into the childs home at reasonable times designated by the court to visit the child or inspect the fitness of the home and to determine the childs physical or emotional health; To allow visitation with the child by persons entitled thereto, as determined by the court; To refrain from acts of commission or omission which tend to endanger the childs life, health or normal development; or To refrain from such contact with the child or family or household members of the child, as the court may deem appropriate, including removal of such person from the residence of the child. However, prior to the issuance by the court of an order removing such person from the residence of the child, the petitioner must prove by a preponderance of the evidence that such persons probable future conduct would constitute a danger to the life or health of such child, and that there are no less drastic alternatives which could reasonably and adequately protect the childs life or health pending a final determination on the petition. Identifying information on person(s) subject to preliminary protective order is entered into the Virginia Criminal Information Network (VCIN). The preliminary protective order shall specify a date for the dispositional hearing. Upon receipt of the order by a local lawenforcement agency for service, the agency shall enter the name of the person subject to the order and other appropriate information into VCIN. A copy of the preliminary protective order shall be served as soon as possible on the allegedly abusing person in person as provided in 16.1-264, and upon service, the agency making service shall enter the date and time of service into VCIN. Va. Code 16.1-253 (K). Location information of person(s) protected by preliminary protective order and family member of protected person is confidential. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerks office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme
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Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause. Va. Code 16.1-253 (I). Use district court form DC-621, NON-DISCLOSURE ADDENDUM, to protect identifying information. h. Finding of Abuse or Neglect at the Preliminary Protective Order Hearing. Virginia Code 16.2-253 (F). If a petition alleging abuse or neglect of a child has been filed: At the conclusion of the preliminary protective hearing, the court shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence. Any finding of abuse or neglect shall be stated in the court order. However, if before such a finding is made a person responsible for the care and custody of the child, DSS or the childs GAL objects to a finding being made at the preliminary protective hearing, the court shall make no finding of abuse or neglect and shall schedule an adjudicatory hearing on the allegation of abuse and neglect to be held within 30 days of the date of the preliminary protective hearing. The adjudicatory hearing shall be held to determine whether the allegations of abuse and neglect have been proven by a preponderance of the evidence. The court must find whether or not the child has been abused or neglected. It is not necessary to establish the perpetrator of the abuse or neglect in order to make this finding. Parties present at the preliminary protective hearing shall be given notice of the date set for the adjudicatory hearing and the disposition hearing. The parties not present shall be summoned as provided in Virginia Code 16.1-263. All parties present should receive a copy of the PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527. The parties also should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC-508, for the abuse and neglect adjudicatory hearing, if continued, and the dispositional hearing. The preliminary protective order should be served on any party who did not receive a copy of the order at the preliminary protective hearing. If the case is continued for an adjudicatory hearing, the preliminary protective order may still be issued. This order shall remain in full force and effect pending the adjudicatory hearing and until superseded by the issuance of a subsequent order in the case. Va. Code 16.1-253 (F). i. Adjudicatory Hearing When Abuse or Neglect of a Child is Alleged. Va. Code 16.1-253 (F). The petitioner must prove by a preponderance of the evidence that the child is abused and/or neglected as defined in Virginia Code 16.1-228, which states that an abused or neglected child is any child: Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such a child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions, including, but not limited to, a child who is with his parent or other person responsible for his care either (i)
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during the manufacture or attempted manufacture of a Schedule I or II controlled substance, or (ii) during the unlawful sale of such substance by that childs parents or other person responsible for his care, where such manufacture, or attempted manufacture or unlawful sale would constitute a felony violation of Virginia Code 18.2-248; Whose parents or other person responsible for his care neglects or refuses to provide care necessary for his health; however, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child; It is an affirmative defense to a civil proceeding that a parent safely delivered a child to a hospital with 24-hour emergency services or an attended rescue squad within 14 days of birth.
Whose parents or other person responsible for his care abandons such child; Whose parents or other person responsible for his care commits or allows to be committed any sexual act upon a child in violation of the law; or Who is without parental care or guardianship caused by the unreasonable absence or the mental or physical incapacity of the childs parent, guardian, legal custodian or other person standing in loco parentis. The hearing shall be held and an order may be entered although a party to the preliminary protective hearing fails to appear and is not represented by counsel, provided personal or substituted service was made on the person or the court determines that such person cannot be found after reasonable effort or, in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. Any finding of abuse or neglect can be documented in the ADJUDICATORY ORDER FOR ABUSE OR NEGLECT CASES, district court form DC-561. j. Disposition Hearing When Child is Found to be Abused or Neglected. Va. Code 16.1253 (G). If in a preliminary protective proceeding the court makes a finding of abuse or neglect, a disposition hearing shall be held pursuant to Virginia Code 16.1-278.2. The disposition hearing shall be scheduled at the time of the preliminary protective order hearing, even if an adjudicatory hearing is requested. The disposition hearing shall be held within 75 days of the preliminary protective hearing. Parties present at the preliminary protective hearing shall be given notice of the date set for the disposition hearing. Parties not present shall be summoned as provided in Virginia Code 16.1-263. All parties present should receive a copy of the PRELIMINARY CHILD
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PROTECTIVE ORDER. The parties also should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE for the abuse and neglect adjudicatory hearing, if continued, and the dispositional hearing. The preliminary protective order should be served on any party who did not receive a copy of the order at the preliminary protective hearing. Court has dispositional alternatives pursuant to Virginia Code 16.1-278.2 in cases of a child found to be abused or neglected or a child at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in his care. When transferring custody of the child to a relative or other interested individual for disposition pursuant to Virginia Code 16.1-278.2 (A)(5)(a), the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-278.2 (A1).
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The court's order shall state these findings. The courts order should further provide for, as appropriate, any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement.
The court should consider the need to order diagnostic testing of the child pursuant to Virginia Code 16.1-275 to verify that the protective order meets all of the childs needs for services: psychological evaluation; physical/medical evaluation; educational evaluation; psychiatric evaluation. Finalize the PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, by entry of a CHILD PROTECTIVE ORDER, district court form DC-532, and set date to review status of child who returns home with the child protective order in effect. k. Appeals A dispositional order entered pursuant to Virginia Code 16.1-278.2 is a final order from which an appeal may be taken in accordance with Virginia Code 16.1-296. Va. Code 16.1-278.2 (D).
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Upon appeal to the circuit court of any case involving a child placed in foster care and also in any such appeal to the Court of Appeals or Supreme Court, the juvenile and domestic relations district court retains jurisdiction to continue to hear foster care review petitions pursuant to Virginia Code 16.1-282 and 16.1-282.1. Va. Code 16.1-242.1. The appeal should be noted on the NOTICE OF APPEAL JUVENILE CIVIL APPEAL, district court form DC-581. This form provides for the style of the case to reflect In Re: the childs name in addition to the appellants name and appellants relationship to the child. The Dc-581 gives notice to the parents and court staff that the matter is a civil juvenile appeal. The notice of appeal also requires information regarding the name of the Guardian ad litem and the attorneys representing the parties as well as an estimation of the time needed for a hearing. There is no bond or fee requirement for the appeal of a foster care order. l. Violation of a Preliminary Protective Order Entered Pursuant to Virginia Code 16.1253: Pursuant to Virginia Code 16.1-253 (J), a violation shall constitute contempt of court. Pursuant to Virginia Code 16.1-253.2, certain violations of a protective order entered pursuant to Virginia Code 16.1-253 may be charged as a Class 1 misdemeanor: (i) prohibition of going on or remaining upon land, buildings or premises; (ii) further acts of family abuse; or (iii) prohibition of contacts between the respondent and the respondents family or household member. If the respondent commits an assault and battery upon any party protected by the protective order, resulting in serious bodily injury to the party, he is guilty of a Class 6 felony. Any person who violates such a protective order by furtively entering the home of any protected party while the party is present, or by entering and remaining in the home of the protected party until the party arrives, is guilty of a Class 6 felony, in addition to any other penalty provided by law. Upon conviction, the person shall be sentenced to a term of confinement and in no case shall the entire term imposed be suspended. m. Court may appoint a Court Appointed Special Advocate if not previously appointed. See ORDER FOR CASA, district court form DC-544. n. Newborn Children - Suspected Abuse or Neglect of Child Based on Prenatal Substance Abuse by Mother. Va. Code 16.1-241.3. Virginia Code 63.2-1509 (B) expands on mandatory reporting of abuse or neglect. Mandatory reporters must report to DSS via the toll-free child abuse and neglect hotline an additional category of cases defined as follows. Reason to suspect that a child is abused or neglected shall include: (i) a finding made by an attending physician within 7 days of a childs birth that the results of a blood or urine test conducted within 48 hours of the birth of the child indicate the presence of a controlled substance not prescribed for the mother by a physician; (ii) a finding by an attending physician made within 48 hours of a childs birth that the child was born dependent on a controlled substance which was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms; (iii) a diagnosis by an attending physician made within 7 days of a childs birth that the child has an illness, disease or condition which, to a reasonable degree of medical certainty, is
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attributable to in utero exposure to a controlled substance which was not prescribed by a physician for the mother or the child; or (iv) a diagnosis by an attending physician made within 7 days of a childs birth that the child has fetal alcohol syndrome attributable to in utero exposure to alcohol. The person making the mandated report based on reason to suspect under this section is required to give the facts relied on in the report. Pursuant to Virginia Code 63.2-1503, DSS is required to determine the validity of a report of child abuse or neglect and make a determination to conduct an investigation pursuant to Virginia Code 63.2-1505 or a family assessment pursuant to Virginia Code 63.2-1506. If the report is based upon one of the factors specified in 63.2-1509 (B), DSS may file a petition pursuant to 16.1-241.3. If the mother sought substance abuse counseling or treatment prior to the childs birth, no report of abuse or neglect shall be transmitted to the Central Registry. DSS may file a petition pursuant to Virginia Code 16.1-241.3 within 21 days of a childs birth alleging that an investigation or family assessment has been commenced in response to a report of suspected abuse or neglect pursuant to Virginia Code 63.2-1590 (B) and the court may enter any order authorized pursuant to Chapter 11 of Title 16.1 which the court deems necessary to protect the health and welfare of the child pending the final disposition of the investigation or family assessment under 63.2-1500 et seq. Such orders may include but are not limited to an emergency removal order pursuant to Virginia Code 16.1-251, a preliminary child protective order pursuant to Virginia Code 16.1-253 or an order pursuant to 16.1-278.2 (A)(1)-(4). The fact that an order was entered shall not be admissible evidence in a criminal, civil or administrative proceeding other than a proceeding to enforce the order. The order shall be effective for a limited duration not to exceed the period of time necessary to conclude the investigation or family assessment and any proceedings initiated pursuant to Virginia Code 63.2-1500 et seq. but shall be a final order subject to appeal. 3. Petition by Custodian for Relief of Custody. Va. Code 16.1-277.02, 16.1-278.3. a. Initiation The request for a petition for relief of custody shall be referred initially to the local department of social services (DSS) for investigation and the provision of services, if appropriate. Va. Code 16.1-277.02 (A). (Use the PETITION, district court form DC-511.) The parent or other custodian files a verified petition for relief of custody through Court Services Unit intake department or by an attorney directly with the clerks office. See Va. Code 16.1-260, 16.1-262. The petition should include: A specific statement of the factual circumstances which allegedly necessitate the custodian being relieved of custody; and A statement as to whether petitioner seeks temporary relief of custody, or permanent relief of custody and voluntary termination of parental rights. A UCCJEA (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT) AFFIDAVIT, district court form DC-620, is filed with the petition for relief of custody. Pursuant to Virginia Code 20-146.1, a child custody proceeding includes a dependency proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. District court form DC-621, NON-DISCLOSURE
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ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. b. Pretrial The court shall schedule the matter for a hearing on the petition. Va. Code 16.1-277.02 (A). Upon the filing of a petition for relief of custody, the court shall appoint a guardian ad litem (GAL) to represent the child in accordance with the provisions of Virginia Code 16.1266. Va. Code 16.1-277.02 (A). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia. Use the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514. The court may appoint a Court Appointed Special Advocate (CASA) in accordance with the provisions of Virginia Code 9-173.6 and local practice using the ORDER FOR COURT APPOINTED SPECIAL ADVOCATE, district court form DC-544. Notice provisions applicable to a petition for relief of custody: The court shall provide notice of the hearing and a copy of the petition to the following, each of whom shall be a party entitled to participate in the proceeding (Virginia Code 16.1-277.02 (A) (1)-(4)): The child, if s/he is twelve years of age or older; The guardian ad litem for the child; The childs parents, custodian or other person standing in loco parentis to the child; The local board of social services.
Note: The court should provide a copy of the PETITION and notice of the date and time of the hearing to any attorneys of record.
After the filing of a petition, the court shall direct a SUMMONS, district court form DC-510, to the child, if he or she is 12 years of age or older, and another to the parent, guardian, legal custodian or other person standing in loco parentis, and to other persons as appear to the court to be proper or necessary parties to the proceedings. Va. Code 16.1-263.
In accordance with Virginia Code 9.1-157, the provisions of Virginia Code 16.1-264 regarding notice to parties shall apply to ensure that the CASA is notified of hearings and other proceedings concerning the case to which s/he is assigned. No summons or notification of a parent or guardian shall be required if the judge certifies on the record that the identity of a parent or guardian is not reasonably ascertainable. See AFFIDAVIT/CERTIFICATION OF PARENTAL IDENTITY OR LOCATION,
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district court form DC-509. 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. Va. Code 16.1-263 (E). In the case of a hearing to grant a petition for permanent relief of custody and terminate a parents residual parental rights:
Notice to the parent whose rights may be affected shall be provided in accordance with the provisions of Virginia Code 16.1-263 and 16.1-264, including by Order of Publication as appropriate. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights. Use NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535.
The hearing on the petition shall be held although a parent fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained, after reasonable effort. Va. Code 16.1-277.02 (A)(3). Pursuant to Virginia Code 16.1-264, the court may order service by publication in accordance with the provisions of Virginia Code 8.01-316 and 8.01-317. The party who seeks service by Order of Publication must file an AFFIDAVIT AND PETITION FOR ORDER OF PUBLICATION, district court form DC-435, stating one of the following grounds:
The party to be served is a nonresident; or That diligence has been used without effect to ascertain the location of the party to be served; or That the last known residence of the party to be served was in the county or city where service is sought and a return of service has been filed by the sheriff that the service of process has been in his hands for 21 days and that he has been unable to make service; or If the identity of the party to be served is unknown (for example if the identity of the father is unknown) and the party to be served has been identified as unknown in the pleadings.
The Court Improvement Program recommends that the petitioner file a notarized affidavit of efforts to locate absent parent with the AFFIDAVIT and PETITION FOR ORDER OF PUBLICATION. Language from the NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535, should be included in the ORDER OF PUBLICATION. Every Affidavit for Order of Publication shall state the last known post office address of the party to be served or if such address is unknown, the AFFIDAVIT shall so state. Every ORDER OF PUBLICATION, district court form DC-436, shall state the following:
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Style of the suit: In the Juvenile and Domestic Relations District Court, In Re (name of child), the names of the adult parties (or that the Respondent is unknown); and Object of the suit: To terminate the residual parental rights of the respondent; and That the defendants or parties unknown are to appear and protect their interests on or before the date stated in the Order of Publication, which is the date set in the courtroom or by the clerk and the date is to be no sooner than 50 days after entry of the Order of Publication.
Upon completion of publication, a certificate of compliance with the provisions of Virginia Code 8.01-317 must be filed by the clerk with the papers in the case. Upon receipt of notice of the hearing on the petition for relief of custody, the local board of social services shall investigate the matter and provide services, as appropriate, in accordance with the provisions of Virginia Code 63.2-319 or Chapter 15 ( 63.2-1500 et seq.) of Title 63.2. Va. Code 16.1-277.02 (A)(4). Parties shall be informed of their right to counsel in accordance with Virginia Code 16.1266. Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED The Court Improvement Program BY A LAWYER, district court form DC-536. Va. recommends that notice of the right to Code 16.1-266 (C). In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as is the case for appointment of a guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age of 18 or under a disability such as incarceration or mental illness. THE ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court for DC-514, should be used for this appointment.
counsel should be given to the parents or guardian at the first hearing on the petition for relief of custody. Va. Code 16.1-266 (C). The SUMMONS (DC-510) includes notice of the right to counsel.
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The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-atlaw to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1-282 and a permanency planning hearing pursuant to 16.1282.1, the court shall consider appointing counsel to represent the childs parent or guardian.
Transportation of incarcerated witness: If the presence of a prisoner is essential to the just adjudication and disposition of a case involving a child whose parent or parents desire to be relieved of his care and custody, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. c. Hearing on Petition for Relief of Custody Standards for granting and burden of proof applicable to petitions for relief of custody: The court shall make a finding, based upon a preponderance of the evidence whether there is good cause shown for the petitioners desire to be relieved of the childs care and custody, in the case of a petition to be relieved of custody temporarily. Va. Code 16.1-277.02 (C).
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Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.01-2 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court).
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The court shall make a finding, based upon clear and convincing evidence, whether termination of parental rights of the petitioner is in the best interest of the child, if the petition seeks permanent relief of custody and termination of parental rights. Va. Code 16.1-277.02 (C). The local board, the child, the childs parents, guardian, legal custodian or other person standing in loco parentis and any other family or household member of the child to whom notice was given shall have the right to confront and cross-examine all adverse witnesses and evidence and to present evidence on their own behalf. Va. Code 16.1-277.02 (B). Dispositional alternatives at the hearing on the petition for relief of custody: If the court makes either finding in accordance with Virginia Code 16.1-277.02 (C), the court may enter, pursuant to Virginia Code 16.1-277.02 (C)(1)-(4): A PRELIMINARY CHILD PROTECTIVE ORDER, district court form DC-527, pursuant to Virginia Code 16.1-253; An order that requires the local board to provide services to the family as required by law; An order that is consistent with any of the dispositional alternatives pursuant to Virginia Code 16.1-278.3; or Any combination of these orders. The DISPOSITIONAL ORDER FOR UNDERLYING PETITION, FOSTER CARE PLAN, district court form DC-553, should be used to enter the disposition on the petition. Any order transferring legal custody of the child shall include, but need not be limited to, the following findings:
That there is no less drastic alternative to granting the requested relief; and That reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to the Department of Social Services.
Federal regulations promulgated March 27, 2000 interpreting the Adoption and Safe Families Act of 1997, P. L. 105-89, require that certain key judicial determinations, including that continued placement in the home would be contrary to the welfare of the child and reasonable efforts to prevent removal, be explicitly documented, made on a case-by-case basis and stated in the courts order. 45 C.F.R. 1356.21(d).
When transferring temporary custody of the child to a relative or other interested individual for partial disposition pursuant to Virginia Code 16.1-277.02 (C), the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-277.02 (C1):
The court shall find that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order should further provide for compliance with any preliminary protective order entered on behalf of the child in accordance with the provisions of VIRGINIA DISTRICT COURT MANUAL
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16.1-253; and, as appropriate, ongoing provision of social services to the child and the childs custodian; and court review of the childs placement. When transferring custody of the child to a relative or other interested individual for final disposition pursuant to Virginia Code 16.1-277.02 (C), the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-277.02 (C1):
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is willing and has the ability to protect the child from abuse and neglect; and is committed to providing a permanent, suitable home for the child. The courts order should further provide for compliance with any preliminary protective order entered on behalf of the child in accordance with the provisions of 16.1-253; and, as appropriate, ongoing provision of social services to the child and the childs custodian; and court review of the childs placement.
Any order terminating parental rights shall be accompanied by an order: Continuing or granting custody to a local board of social services, to a licensed childplacing agency or the granting of custody or guardianship to a relative or other interested individual; and Indicating whether the board or agency shall have the authority to place the child for adoption and consent thereto, if the order of termination continues or grants to the local board of social services or to a licensed child-placing agency. Use the ORDER FOR VOLUNTARY TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-534. d. Post-hearing Procedures The court shall schedule a subsequent hearing within 75 days of the hearing held pursuant to Virginia Code 16.1-277.02 at which the court determines that there is good cause for the petitioners desire to be relieved of custody or that permanent relief of custody and termination of residual parental rights is in the best interest of the child: If a final order is not entered at the hearing held on the PETITION FOR RELIEF OF CUSTODY, to enter a final order of disposition pursuant to Virginia Code 16.1-278.3; If the child is placed in foster care, for review of the foster care plan filed pursuant to 16.1-281. The Department of Social Services shall file the foster care plan in accordance with the provisions of Virginia Code 16.1-281.
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Notice provisions applicable to the disposition hearing held pursuant to Virginia Code 16.1-278.3: Notice of the dispositional hearing shall be provided to DSS, the guardian ad litem for the child, the child if s/he is at least twelve years of age, and the childs parents, custodian or other person standing in loco parentis. Va. Code 16.1-278.3 (B). If a party is required to be present at the subsequent disposition hearing held pursuant to Virginia Code 16.1-278.3 and
is present at the hearing held on the petition pursuant to Virginia Code 16.1277.02, the party shall be given notice of the date and time set for the subsequent hearing and should sign and receive a copy of an ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC-508. is not present at the hearing held on the petition pursuant to Virginia Code 16.1277.02, the party shall be summoned using the SUMMONS, district court form DC510, as provided in Virginia Code 16.1-263. Va. Code 16.1-277.2 (C).
The presence of a party whose parental rights have been terminated by court order at the hearing pursuant to Virginia Code 16.1-277.02 is not required at the subsequent hearing to be held pursuant to 16.1-278.3. Va. Code 16.1-278.3 (B). The hearing on the petition shall be held although a parent fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained, after reasonable effort. Va. Code 16.1-277.02 (A)(3). Use the AFFIDAVIT/CERTIFICATION OF PARENTAL IDENTITY OR LOCATION, district court form DC-509. e. Disposition Hearing. Va. Code 16.1-278.3. (Use the DISPOSITIONAL ORDER FOR UNDERLYING PETITION, FOSTER CARE PLAN, district court form DC-553, for entering the disposition on the petition.) If final disposition is not entered at the conclusion of the hearing on the petition for relief of custody held pursuant to Virginia Code 16.1-277.02, a dispositional hearing shall be held within 75 days of the initial hearing on the petition. The court may enter any order of disposition permitted in a case involving an abused or neglected child pursuant to Virginia Code 16.1-278.2. Any order transferring legal custody of the child shall include, but need not be limited to, the following findings:
That there is no less drastic alternative to granting the requested relief; and That reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to a local board of social services.
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Federal regulations promulgated March 27, 2000 interpreting the Adoption and Safe Families Act of 1997, P. L. 105-89, require that certain key judicial determinations, including that continued placement in the home would be contrary to the welfare of the child and reasonable efforts to prevent removal, be explicitly documented, made on a case-by-case basis and stated in the courts order. 45 C.F.R. 1356.21(d).
When transferring custody of the child to a relative or other interested individual for disposition pursuant to Virginia Code 16.1-278.3 (C) or (D), the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-278.3 (D1):
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings. The courts order should further provide for, as appropriate: any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement.
The court shall review any PRELIMINARY PROTECTIVE ORDER, district court form DC-527, entered on behalf of the child. Finalize the preliminary protective order by entry of a CHILD PROTECTIVE ORDER, district court form DC-528, and incorporate such order, as appropriate, in the dispositional order. The court shall review the foster care plan for the child filed by the local board of social services or child welfare agency in accordance with Virginia Code 16.1-281, if the child has been placed in foster care. The court may enter an order terminating a parents parental rights using the ORDER FOR VOLUNTARY TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-534, pursuant to 16.1-278.3 (D) if: That parent petitioned for permanent relief of custody; and The court has made a finding by clear and convincing evidence that termination of the parents parental rights is in the best interest of the child. If the remaining parent has not petitioned for permanent relief of custody, the remaining parents parental rights may be terminated in accordance with the provisions of Virginia Code 16.1-283. Any order terminating parental rights shall be accompanied by an order: Continuing or granting custody to a local board of social services, to a licensed childplacing agency or the granting of custody or guardianship to a relative or other interested individual; and
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Indicating whether the board or agency shall have the authority to place the child for adoption and consent thereto, if the order of termination continues or grants to the local board of social services or to a licensed child-placing agency. If the court enters an order terminating parental rights and granting authority to the local board or licensed child-placing agency to place the child for adoption: The court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. Va. Code 16.1-277.02 (D). The Department of Social Services or child welfare agency shall file an Adoption Progress Report on the progress being made to place the child in an adoptive home with the court every 6 months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party. f. Appeal An order of disposition entered pursuant to Virginia Code 16.1-278.3 is a final order from which an appeal may be taken in accordance with 16.1-296. Va. Code 16.1-278.3 (F). The appeal should be noted on the NOTICE OF APPEAL JUVENILE CIVIL APPEAL, district court form DC-581. This form provides for the style of the case to reflect In Re: the childs name in addition to the appellants name and appellants relationship to the child. The Dc-581 gives notice to the parents and court staff that the matter is a civil juvenile appeal. The notice of appeal also requires information regarding the name of the Guardian ad litem and the attorneys representing the parties as well as an estimation of the time needed for a hearing. There is no bond or fee requirement for the appeal of an order for relief of custody. 4. Petition for Approval of Entrustment Agreement. Va. Code 16.1-277.01; 63.2-903. a. Initiation. Filing requirements pursuant to Virginia Code 16.1-277.01 (A). Pursuant to Virginia Code 63.2-903, in any case in which a child has been entrusted pursuant to Virginia Code 63.2-900 to the local board of social services (DSS) or 63.21817 to a child welfare agency: For less than 90 days, the board or agency shall file a petition for approval of the entrustment agreement within a reasonable period, no later than 89 days after the execution of the agreement, if the child is not returned to the caretaker from whom s/he was entrusted within the entrustment period.
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For 90 days or longer or for an unspecified period of time, the board or agency shall file a petition for approval of the entrustment agreement no later than 30 days after the execution of the entrustment agreement, unless the agreement provides for the termination of all parental rights and responsibilities with respect to the child. By a permanent entrustment agreement that provides for the termination of all parental rights and responsibilities with respect to the child, the board or agency may file a petition for court approval of the entrustment agreement. The petition for approval of an entrustment agreement should state the specific facts that necessitate the custodian being relieved of custody and the facts that necessitate approval of the entrustment agreement. A copy of the entrustment agreement should be filed with the PETITION, district court form DC-511. The local board of social services or child welfare agency shall file a foster care plan pursuant to Virginia Code 16.1-281 to be heard with any petition for approval of an entrustment agreement. A UCCJEA (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT) AFFIDAVIT, district court form DC-620, is filed with the petition for entrustment agreement. Pursuant to Virginia Code 20-146.1, a child custody proceeding includes a dependency proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. b. Pretrial The court shall, in accordance with 16.1-277.01 (B), schedule the matter for a hearing to be held as follows: within 45 days of the filing of the petition; or within 75 days of the filing of the petition, if an order of publication is necessary. Upon the filing of a petition for approval of an entrustment agreement, the court shall appoint a guardian ad litem (GAL) using the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514, to represent the child in accordance with the provisions of Virginia Code 16.1-266. Va. Code 16.1-277.01 (A). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia. The court may appoint a Court Appointed Special Advocate (CASA) in accordance with the provisions of Virginia Code 9.1-153 and local practice. Use the ORDER FOR CASA, district court form DC-544.
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Notice provisions applicable to a petition for approval of an entrustment agreement: The court shall provide notice of the hearing and a copy of the petition to the following, each of whom shall be a party entitled to participate in the proceeding. Va. Code 16.1-277.01 (B) (1)-(4):
NOTE: The court should provide a copy of the petition and notice of the date and time of the hearing to any attorneys of record.
The local board of social services. The child, if s/he is twelve years of age or older; The guardian ad litem for the child; The childs parents, custodian or other person standing in loco parentis to the child.
After the filing of a petition, the court shall direct a SUMMONS, district court form DC510, to the child, if he or she is 12 Notice of the right to counsel should be provided years of age or older, and another to the parents or guardian prior to the hearing on to the parent, guardian, legal the petition for approval of an entrustment custodian or other person agreement. Va. Code 16.1-266 (C). The standing in loco parentis, and to SUMMONS (DC-510) includes notice of the right other persons as appear to the to counsel. Court to be proper or necessary parties to the proceedings. Va. Code 16.1-263.
Proper and necessary parties may include individuals whose names appear on the petition, including foster parents. In accordance with Virginia Code 9-173.9, the provisions of Virginia Code 16.1264 regarding notice to parties shall apply to ensure that the CASA is notified of hearings and other proceedings concerning the case to which s/he is assigned.
No summons or notification of a parent or guardian shall be required if the judge certifies on the record that the identity of a parent or 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. Va. Code 16.1-263 (E). See AFFIDAVIT/CERTIFICATION OF PARENTAL IDENTITY OR LOCATION, district court form DC-509. The hearing on the petition shall be held although a parent fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained, after reasonable effort. Va. Code 16.1-277.01 (B)(4). In the case of a hearing for approval of a permanent entrustment agreement that provides for the termination of all parental rights and responsibilities with respect to the child:
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Notice to the parent whose rights may be affected shall be provided in accordance with the provisions of Virginia Code 16.1-263 and 16.1-264, including by order of publication as appropriate. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights by including the NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535. In accordance with Virginia Code 16.1-277.01 (B)(4), the remaining parents parental rights may be terminated even though that parent has not entered into an entrustment agreement if the court finds by clear and convincing evidence that:

the identity of the parent is not reasonably ascertainable; or the identity and whereabouts of the parent are known or reasonably ascertainable, and the parent is personally served with notice of the termination proceeding pursuant to Virginia Code 8.01-296 or 8.01-320; or the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings by certified or registered mail to the last known address and such parent fails to object to the proceedings within 21 days of the mailing of such notice; or the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings through an order of publication pursuant to Virginia Code 8.01-316 and 8.01-317, and such parent fails to object to the proceedings
The Court Improvement Program recommends filing an Affidavit of Efforts to Locate Absent Parent with the AFFIDAVIT and PETITION FOR ORDER OF PUBLICATION. It should include language from NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535, in the order of publication.
Pursuant to Virginia Code 16.1-264, the court may order service by publication in accordance with the provisions of Virginia Code 8.01-316 and 8.01-317.
The party who seeks service by order of publication must file an AFFIDAVIT AND PETITION FOR ORDER OF PUBLICATION, district court form DC-435 stating one of the following grounds:

The party to be served is a nonresident; or That diligence has been used without effect to ascertain the location of the party to be served; or That the last known residence of the party to be served was in the county or city where service is sought and a return of service has been filed by the sheriff that the service of process has been in his hands for 21 days and that he has been unable to make service; or If the identity of the party to be served is unknown (for example if the identity of the father is unknown) and the party to be served has been identified as unknown in the pleadings. VIRGINIA DISTRICT COURT MANUAL
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Every Affidavit FOR ORDER OF PUBLICATION shall state the last known post office address of the party to be served or if such address is unknown, the AFFIDAVIT shall so state. Every Order OF PUBLICATION, district court form DC-436, shall state the following:
Style of the suit: In the Juvenile and Domestic Relations District Court, In Re (name of child), the names of the adult parties (or that the respondent is unknown); and Object of the suit: To terminate the residual parental rights of the Respondent; and That the defendants or parties unknown are to appear and protect their interests on or before the date stated in the ORDER OF PUBLICATION, which is the date set in the courtroom or by the clerk and the date is to be no sooner than 50 days after entry of the order of publication.
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Parties shall be informed of their right to counsel in accordance with Virginia Code 16.1266. Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior Note: The discretionary authority of the court pursuant to to the hearing of any case 16.1-266 (E) to appoint a discreet and competent attorney at involving any other adult law to represent a child, children, parent or guardian as counsel charged with abuse or or guardian ad litem in all other cases may be interpreted to neglect of a child, and mean (i) cases other than those in which a parent or guardian prior to a hearing at is charged with abuse/neglect or could be subjected to the loss which a parent could be of residual parental rights and responsibilities; or (ii) cases in subjected to the loss of which a parent or guardian cannot be informed of an exercise residual parental rights, or waive his right to counsel. The latter interpretation would the childs parent or support the appointment of an attorney as counsel or guardian guardian or the other ad litem to represent the interests of a parent whose identity or adult shall be informed whereabouts is unknown. Such a parent or guardian could by a judge, clerk or also be subjected to the loss of residual parental rights and probation officer of his responsibilities. See Va. Code 16.1-266 (C); but see right to counsel and be Fredericksburg Dept of Social Servs. v. Brown and Williams, given an opportunity to Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (i) retain counsel; (ii) if (affirming on other grounds the trial courts denial of petitions qualified, have counsel to terminate the parents residual parental rights, where the appointed; (iii) waive children entered foster care based upon an invalid entrustment counsel using WAIVER OF agreement. The trial court had denied the petitions based RIGHT TO BE upon failure to appoint attorneys to represent the parents). A REPRESENTED BY A parent or guardian whose identity or whereabouts is unknown LAWYER, district court may also be under a disability in that s/he is unable to defend form DC-536. Va. Code his or her legal rights. See 8.01-2 (defining person under a 16.1-266 (C). disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving In the courts discretion, custody of a child of an unwed minor, guardian ad litem for the a discreet and competent unknown father had standing to appeal the entrustment attorney at law may be agreement decision by the juvenile and domestic relations appointed as counsel or district court). guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as is the case for appointment of a guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age of 18 years or under a disability such as incarceration or mental illness. The ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, should be used for this appointment. The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-at-law to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C).
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Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1-282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian. Transportation of incarcerated witness: If the presence of a prisoner is essential to the just adjudication and disposition of a petition for approval of an entrustment agreement, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. c. Hearing Standards for granting and burden of proof applicable to a petition for approval of an entrustment agreement: The court shall make a finding, based upon a preponderance of the evidence, whether approval of the entrustment agreement is in the best interest of the child in the case of a petition for approval of a temporary entrustment agreement. Va. Code 16.1-277.01 (D). The court shall make a finding, based upon clear and convincing evidence, whether termination of parental rights of the petitioner is in the best interest of the child, if the petition seeks approval of a permanent entrustment agreement that provides for the termination of all parental rights and responsibilities with respect to the child. Va. Code 16.1-277.01 (D). A parent under the age of 18 years has legal capacity to execute an entrustment agreement, including an agreement which provides for the termination of all parental rights and responsibilities with respect to the child, and shall be as fully bound thereby as if the parent had attained the age of 18 years. Va. Code 63.2-903 (B). At the hearing on the petition for approval of the entrustment agreement, the court shall review the foster care plan filed pursuant to Virginia Code 16.1-281. d. Disposition Dispositional alternatives: At the conclusion of the hearing on the petition for approval of the entrustment agreement, the court may, in accordance with Virginia Code 16.1-277.01 (D), make any of the orders of disposition permitted in a case involving an abused or neglected child pursuant to Virginia Code 16.1-278.2 using the DISPOSITIONAL ORDER FOR UNDERLYING FOSTER CARE PLAN, district court form DC-553. Any order transferring legal custody of the child shall include, but need not be limited to, the following findings:
That there is no less drastic alternative to granting the requested relief; and That reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to DSS. VIRGINIA DISTRICT COURT MANUAL
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When transferring custody of the child to a relative or other interested individual for disposition pursuant to Virginia Code 16.1-277.01 (D) the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-277.01 (D1):
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings. The courts order should further provide for, as appropriate: any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement.
Any ORDER FOR VOLUNTARY TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-534, shall be accompanied by an order: Continuing or granting custody to a local board of social services, to a licensed childplacing agency or the granting of custody or guardianship to a relative or other interested individual; and Indicating whether the board or agency shall have the authority to place the child for adoption and consent thereto, if the order of termination continues or grants to the local board of social services or to a licensed child-placing agency. Effect of the courts entry of a final order approving a permanent entrustment agreement, after making a finding by clear and convincing evidence that such approval is in the best interest of the child: The residual parental rights of the entrusting parent are thereby terminated. The parental rights of the remaining parent are thereby terminated, provided that the notice provisions specified in Virginia Code 16.1-277.01 (B)(4) are satisfied. The entrustment agreement is rendered irrevocable. If the court enters an order terminating parental rights and granting authority to the local board or licensed child-placing agency to place the child for adoption: The court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. Va. Code 16.1-277.01 (E). DSS shall file an Adoption Progress Report on the progress being made to place the child in an adoptive home with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.
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An order of disposition entered pursuant to Virginia Code 16.1-277.01 is a final order from which an appeal may be taken in accordance with Virginia Code 16.1-296. Va. Code 16.1-277.01 (D). 5. Foster Care and Permanency Planning. Va. Code 16.1-281, 16.1-282, 16.1-282.1, 16.1-282.2. a. Transportation of Incarcerated Witness If the presence of a prisoner is essential to the just adjudication and disposition of an initial foster care plan filed pursuant to 16.1-281, a petition for foster care review hearing filed pursuant to 16.1-282 or 16.1-282.2, or a petition for permanency planning hearing filed pursuant to 16.1-282.1, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. b. Foster Care Plan. Va. Code 16.1-281. The local department of social services (DSS) or child welfare agency shall prepare a foster care plan for each child in the legal custody of the public or private child-placing agency. Va. Code 16.1-281 (A). A foster care plan should also be prepared in those cases in which DSS or a public agency designated by the Community Policy and Management Team (CPMT) places a child through an agreement with the parent/guardian whereby the parent/guardian retains legal custody. In this case the local department of social services or public agency or Family Assessment and Planning Team (FAPT) shall prepare a foster care plan. The Individual Family Services Plan (IFSP) developed by FAPT may serve as the foster care plan if it meets the requirements of Virginia Code 16.1-281 as to content and development. Va. Code 16.1-281 (A).
Federal regulations, which were promulgated effective March 27, 2000 to interpret the Adoption and Safe Families Act of 1997, P. L. 105-89, state that a judicial determination of reasonable efforts to prevent removal must be made no later than 60 days from the date the child is removed from the home pursuant to a judicial order. C.F.R. 1356.21(b)(1)(i). See also C.F.R. 1356.21(k). For voluntary placements, including non-custodial foster care placements, federal financial participation is available beyond the first 180 days of placement only if a judicial determination has been made within the first 180 days of the placement to the effect that the continued voluntary placement is in the best interests of the child. 45 C.F.R. 1356.22(b). To obtain this finding in a timely manner, a hearing should be held within 75 days of the placement of a child by DSS or a public agency designated by the CPMT through an agreement where the parent or guardian retains legal custody. A petition is required to initiate a childs case. Va. Code 16.1-260 (A). The foster care plan pursuant to 16.1-281 should be filed by the agency having placement and care responsibility for the child within 60 days of the childs placement, to allow 15 days for the court to send a copy of the plan to the parties.
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Time requirements for the filing of foster care plans pursuant to Virginia Code 16.1-281: A foster care plan shall be filed with the court by the local department of social services, public agency designated by the community policy and management team or child welfare agency, within 60 days following the transfer of custody of placement of the child, unless the court, for good cause shown, allows an extension of time which shall not exceed an additional 60 days. The local department of social services or child welfare agency shall file a foster care plan in accordance with Virginia Code 16.1-277.01 with a petition for approval of an entrustment agreement. A foster care plan need not be prepared if the child is returned to his prior family or placed in an adoptive home within 60 days of transfer of custody or placement of the child by the local department of social services, public agency designated by the community policy and management team, or child welfare agency. Documents filed with the foster care plan: The FOSTER CARE PLAN TRANSMITTAL, district court form DC-552, should be included with the foster care plan when it is filed. A UCCJEA (UNIFORM CHILD The Court Improvement Program suggests that the public CUSTODY JURISDICTION AND or private caseworker should provide the current street ENFORCEMENT ACT) address, including any apartment number, for the AFFIDAVIT, district court form individuals whose addresses are listed. Parental rights DC-620, is filed with the initial terminated or deceased, as appropriate, should be foster care plan if one has not written on the transmittal form where parents address is listed. In the event that the clerks office receives a previously been filed in the pleading in a case in which parental rights have been proceeding, or to amend the terminated or the parent is deceased, this information affidavit that was previously should be included in place of the parents address in the filed if additional information is address field. available. Pursuant to Virginia Code 20-146.1, a child custody proceeding includes a dependency proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. Foster care services as defined in Virginia Code 16.1-228 means the provision of a full range of casework, treatment and community services for a planned period of time to a child who is abused or neglected as defined in Virginia Code 63.2-100 or in need of services as defined in this section and his family when the child: Has been identified as needing services to prevent or eliminate the need for foster care placement, Has been placed through an agreement between the local board of social services or a public agency designated by the community policy and management team and the parents or guardians,
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Has been committed or entrusted to a local board of social services or child welfare agency, or Has been placed under the supervisory responsibility of the local board pursuant to Virginia Code 16.1-293. As to the matters that should be included in the foster care plan, the representatives of DSS, public agency or team shall involve the childs parents in the development of the plan, except when parental rights have been terminated or the designated agency has made diligent efforts to locate the parent(s), who cannot be located, and with any other person in loco parentis at the time the agency obtained custody or placed the child. The child should be involved in the development of the plan, if such involvement is consistent with the best interest of the child. If the childs parents or the child is not involved in the development of the plan, the department, agency or team shall include in the plan a full description of the reasons why. Va. Code 16.1-281 (A). If consistent with the childs health and safety, the foster care plan shall be designed to support reasonable efforts that lead to the return of the child to his parents or other prior custodians within the shortest practicable time, which time shall be specified in the plan. Va. Code 16.1-281 (B). The childs health and safety shall be the paramount concern of the court and the agency throughout the placement, case planning, service provision and review process. Va. Code 16.1-281 (B). Pursuant to Virginia Code 16.1-281 (B), the foster care plan shall describe: The programs, care, services and other support which will be offered to the child and his parents and other prior custodians; The participation and conduct which will be sought from the child's parents and other prior custodians; The visitation and other contacts which will be permitted between the child and his parents and other prior custodians; The nature of the placement or placements which will be provided for the child; and In writing and where appropriate for children age sixteen or over, the programs and services that will help the child prepare for the transition from foster care to independent living. There shall be a separate section of the foster care plan if DSS or the placement agency or the team concludes that it is not reasonably likely that the child can be returned to his prior family within a practicable time consistent with the best interests of the child. This section shall: Include a full description of the reasons for this conclusion;
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Provide information on the opportunities for placing the child with a relative or in an adoptive home; Design the plan to lead to the childs successful placement with a relative if a subsequent transfer of custody to the relative is planned, or in an adoptive home within the shortest practicable time; and If neither of such placements is feasible, explain why permanent foster care, independent living for a child 16 years of age or older or continued foster care is the plan for the child. Note: This section of the plan is never sent to the foster parents. With such proposed plan the department may include a petition seeking termination of parental rights pursuant to Virginia Code 16.1-283. If the child has been found by the court to be abused or neglected and placed in foster care, the court shall review a foster care plan at the dispositional hearing. Va. Code 16.1278.2 (B). The court shall review a foster care plan at the hearing to approve an entrustment agreement. Va. Code 16.1-277.01 (C). A dispositional hearing shall be held for the purpose of reviewing and approving the foster care plan within 75 days of: The initial foster care placement if the child was placed through an agreement between the parents/guardians and local DSS or other public agency or child welfare agency; The preliminary removal hearing, if the child was placed in foster care, even if an adjudicatory hearing is requested separate from the preliminary removal order hearing; The disposition hearing at which the child was placed in foster care in an abuse or neglect case in which there was no emergency or preliminary removal; The disposition hearing at which the child was placed in foster care in a case involving a child in need of services or supervision, a delinquent child, or a status offender. District court form DC-562, ORDER FOR CUSTODY TRANSFER TO AGENCY, should be used for ordering placement or custody of the child with an agency dispositionally in these case types. A dispositional hearing shall be held for the purpose of reviewing and approving the foster care plan within 45 days of filing a petition pursuant to Virginia Code 16.1-277.01 for approval of an entrustment agreement, except where an order of publication has been ordered by the court. If an order of publication has been ordered, the hearing shall be held within 75 days of the filing of the petition. Whenever any minor who has been separated from the custody of his parent or guardian is in need of surgical or medical treatment, authority commensurate with that of a parent in like cases is conferred, for the purpose of giving consent to such treatment, upon the local
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director of social services or designee with respect to minors who are committed to the care and custody of the local board, taken into custody pursuant to Virginia Code 63.21517, and entrusted to the local board by the parent, parents or guardian, when the consent of the parent or guardian cannot be obtained immediately and, in the absence of such consent, a court order for such treatment cannot be obtained immediately. Va. Code 54.1-2969. c. Appointment of Guardian Ad Litem and Right To Counsel Virginia Code 16.1-281 (F) requires the appointment of a guardian ad litem (GAL) to represent the child pursuant to Virginia Code 16.1-266 any time a hearing is held to review the foster care plan or to review the childs foster care status. Pursuant to 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia.
The Court Improvement Program suggests that the GAL who has previously represented the child in related proceedings concerning the childs placement in foster care should continue to represent the child in subsequent foster care and permanency planning proceedings. Use the ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, to appoint the GAL. The clerk should inform the GAL of the date and time of any hearing to review the childs foster care plan or status in foster care, including foster care hearings held pursuant to Virginia Code 16.1-281, 16.1-282 and 16.1-282.2, and permanency planning hearings held pursuant to Virginia Code 16.1-282.1. The GAL should attend all of these hearings. The department of social services (DSS) and the childs parents should be provided with a copy of the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514, when it is entered.
Parties shall be informed of their right to counsel: Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1-266 (C).
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Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.01-2 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court). The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-atlaw to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian. d. Paternity If paternity has not previously been established, a petition for a determination of parentage pursuant to Virginia Code 16.1-241 (Q) should be filed such that paternity may be placed on the docket as an issue to be resolved. e. Notice Provisions Applicable to the Hearing on the Foster Care Plan Pursuant to Virginia Code 16.1-281 (C), the court shall send a copy of the entire foster care plan to: the child, if s/he is 12 years of age or older; the guardian ad litem for child;
The Court Improvement Program recommends that a copy of the foster care plan shall be served upon the following so that there will be proof of receipt of the plan: the childs parents, except it shall not be served on those parents whose residual parental rights have been terminated; any other person standing in loco parentis at the time child was placed; the child, if s/he is twelve or more years of age. Va. Code 16.1-263 (A).
the attorney for the childs parents or for any other person standing in loco parentis at the time the board or child welfare agency obtained custody or the board or public agency placed the child;
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the parents or other person standing in loco parentis, except a copy shall not be sent to a parent whose parental rights have been terminated; the foster parents (except for a copy of the section of the plan describing the reasons why the child cannot be returned home and the alternative chosen); the other persons who appear to the court to have a proper interest in the plan, such as:
the attorney for DSS; the other attorneys of record; the Court Appointed Special Advocate.
f. Foster Care Plan Hearing And Order If applicable, a reasonable efforts finding should be made pursuant to the Adoption and Safe Families Act of 1997, P. L. 105-89. This law makes federal funding to the states for child welfare services contingent upon documentation of social service agencies having made reasonable efforts to prevent the removal of children from their homes and reasonable efforts to finalize the childs permanent placement. A formal and systematic plan must be developed for services to remedy the problems that threaten the family ties of each child, outlining specific treatment services and action that will be expected of agencies and family members to make reunification possible. 42 U.S.C. 671(a)(15)(B)(i), (C). Reasonable efforts to reunite the child with a parent shall not be required if the court makes any of the following findings: the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; the parent has been convicted of an offense under the laws of the Commonwealth of Virginia or a substantially similar law of any other state, the United States or any foreign jurisdiction which constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred or the other parent of the child; the parent has been convicted of an offense under the laws of the Commonwealth of Virginia or a substantially similar law of any other state, the United States or any foreign jurisdiction which constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; based on clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to Virginia Code 16.1-283. Va. Code 16.1-281 (B). See also 42 U.S.C. 671(a)(15)(D)(i).
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Definitions relevant to determination that reasonable efforts to reunite the child with a parent are not required: Aggravated circumstances means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect: (i) evinces a wanton or depraved indifference to human life, or (ii) has resulted in the death of such a child or in serious bodily injury to such a child. Chronic abuse or chronic sexual abuse means recurring acts of physical abuse that place the childs health, safety and well-being at risk. Serious bodily injury means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty. Severe abuse or severe sexual abuse may include an act or omission that occurred only once, but otherwise meets the definition of aggravated circumstances. The court shall hold a permanency planning hearing pursuant to Virginia Code 16.1282.1 within thirty days of making a determination that reasonable efforts to reunite the child with the parents are not required. See Permanency Planning, later in this chapter. The DISPOSITIONAL ORDER FOR UNDERLYING PETITION, FOSTER CARE PLAN, district court form DC-553, should be used to enter the disposition of the foster care plan pursuant to Virginia Code 16.1-281. If the order entered at the conclusion of the hearing has the effect of achieving a permanent goal for the child by: (i) terminating residual parental rights pursuant to Virginia Code 16.1-277.01, 16.1-277.02, 16.1-278.3 or 16.1-283; (ii) placing the child in permanent foster care pursuant to Virginia Code 16.1-282.1 (A)(iv); or (iii) directing the board or agency to provide the child with services to achieve independent living status, if the child has attained the age of sixteen years pursuant to Virginia Code 16.1-282.1 (A)(v), the order shall state whether reasonable efforts have been made to place the child in a timely manner in accordance with the foster care plan and to complete the steps necessary to finalize the permanent placement of the child. Va. Code 16.1-281 (C2). When transferring custody of the child to a relative other than the childs prior family, the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-281 (C1): The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings.
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The courts order should further provide for, as appropriate: any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement. If the judge makes revisions to the foster care plan, a copy of the revisions shall be sent to all parties who received a copy of the original plan. Va. Code 16.1-281 (C). At the conclusion of the hearing at which the initial foster care plan is reviewed, the court shall schedule a foster care review hearing to be held within 6 months in accordance with Virginia Code 16.1-282. However, if the order entered at the conclusion of the hearing has the effect of achieving a permanent goal for the child pursuant to Virginia Code 16.1281 (C2) where a public or private child-placing agency will retain legal custody of the child, the court shall schedule an annual foster care hearing to be held within twelve months of the entry of such order in accordance with the provisions of Virginia Code 16.1-282.2. All parties present should receive a copy of the courts order. The parties also should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC-508, for the foster care review hearing. The courts order should be issued and served on any party who did not receive a copy of the order at the foster care service plan dispositional hearing. This order should be served with a summons for the foster care review hearing to parties not present at the initial foster care plan hearing. See Va. Code 16.1-281 (E). The order issued by the court at the conclusion of the hearing on the underlying petition and foster care plan (dispositional hearing) will normally be the first appealable order entered in a child abuse/neglect case where removal of a child has been ordered preliminarily. Va. Code 16.1-278.2 (D).
NOTE: The dispositional hearing date that is the basis for setting the foster care review date may not necessarily be the same date as the date at which the foster care plan was approved. If the court disapproves the original foster care plan and sets a hearing for review of a revised plan, the date for the foster care review hearing should be based on the original dispositional hearing date.
Upon appeal to the circuit court of any case involving a child placed in foster care and in any appeal to the Court of Appeals or Supreme Court of Virginia, the juvenile court shall retain jurisdiction to continue to hear petitions filed pursuant to Virginia Code 16.1-282 and 16.1-282.1. Orders of the juvenile court in such cases shall continue to be reviewed and enforced by the juvenile court until the circuit court, Court of Appeals or Supreme Court rules otherwise. Va. Code 16.1-242.1. g. Foster Care Review Petition Va. Code 16.1-282. The local board of social services, public agency designated by the community policy and management team (CPMT) or child welfare agency shall file a PETITION FOR FOSTER CARE REVIEW HEARING, district court form DC-554, for each child who was the subject of a foster care plan pursuant to Virginia Code 16.1-281 and who: was placed through an agreement between the parents or guardians and the board or public agency where legal
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custody remains with the parents or guardians and such agreement has not been dissolved by court order; or is in the legal custody of the board or a child welfare agency and has not had a petition to terminate parental rights granted, filed or ordered to be filed on the childs behalf; has not been placed in permanent foster care; or is not receiving services to achieve independent living status. Any interested party, including the parent, guardian or person standing in loco parentis prior to the assumption of legal custody by the board or a child welfare agency, or the placement of the child pursuant to a non-custodial foster care agreement by the board or public agency, may file the petition for foster care review hearing at any time after the initial foster care placement of the child. The board, public agency or child-placing agency shall file this same petition within 5 months of the dispositional hearing at which the foster care plan was reviewed pursuant to Virginia Code 16.1-281. The petition for foster care review hearing shall: Be filed in the court in which the foster care plan was reviewed and approved. However, upon order of the court the petition for foster care review hearing may be filed in the court of the county/city in which the board or child welfare agency having legal custody or having placed the child has its principal office or where the child resides. Va. Code 16.1-282 (B)(1). State, if such is reasonably obtainable, the current address of the child's parents; State, if such is reasonably obtainable, the current address of the person standing in loco parentis when DSS or child welfare agency obtained legal custody; Describe the childs placement or placements while in foster care; Describe the services or programs offered to the child and his parents and, if applicable, the person standing in loco parentis; Describe the nature and frequency of the contacts between the child and parents and, if applicable, person in loco parentis; Set forth in detail the manner in which the foster care plan is/was not complied with and the extent to which goals have been met; Set forth the disposition sought and grounds therefor; If continuation of foster care is recommended, include a foster care service plan, which shall address: .. .. Role the current foster parents or care providers will play in the future planning for the child, and; In the case of a child 16 or older, the services and programs needed to assist the child to make a transition from foster care to independent living.
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Documents filed with the petition for foster care review hearing: The FOSTER CARE PLAN TRANSMITTAL, district court form DC-552, should be included with the petition for foster care review foster care plan when it is filed. A UCCJEA (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT) AFFIDAVIT, district court form DC-620, is filed with the petition for foster care review hearing. Pursuant to Virginia Code 20-146.1, a child custody proceeding includes a dependency proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. The local board of public welfare or social services or other child welfare agency shall identify for the court such persons, including those listed in Virginia Code 16.1-282 (C)(1)-(5), as have a legitimate interest in the hearing, including but not limited to preadoptive parents for a child in foster care.
The Court Improvement Program suggests that the public or private agency caseworker should provide the current street address, including any apartment number, for the individuals whose addresses are listed. Parental rights terminated or deceased, as appropriate, should be written on the transmittal form where parents address is listed. In the event that the clerks office receives a pleading in a case in which parental rights have been terminated or the parent is deceased, this information should be included in place of the parents address in the address field.
The court shall schedule a hearing to be held within 30 days of receipt of the PETITION FOR FOSTER CARE REVIEW HEARING, district court form DC-554, if a hearing date was not set at the foster care plan hearing. A foster care review hearing shall be held within six months of the dispositional hearing at which the foster care plan was reviewed.
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h. Appointment of Guardian Ad Litem and Right to Counsel Virginia Code 16.1The Court Improvement Program suggests that the GAL who has 281 (F) requires the previously represented the child in related proceedings concerning the appointment of a childs placement in foster care should continue to represent the child in guardian ad litem (GAL) subsequent foster care and permanency planning proceedings. Use the ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court to represent the child form DC-514, to appoint the GAL. The clerk should inform the GAL pursuant to Virginia of the date and time of any hearing to review the childs foster care plan Code 16.1-266 any or status in foster care, including foster care hearings held pursuant to time a hearing is held to Virginia Code 16.1-281, 16.1-282 and 16.1-282.2, and permanency review the foster care planning hearings held pursuant to Virginia Code 16.1-282.1. The plan or to review the GAL should attend all of these hearings. The department of social childs foster care services (DSS) and the childs parents should be provided with a copy of status. Pursuant to the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district Virginia Code 16.1court form DC-514, when it is entered. 266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia.
Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.012 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court).
Parties shall be informed of their right to counsel: Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1-266 (C).
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In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as is the case for appointment of a guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age of 18 years or under a disability such as incarceration or mental illness. The court shall consider appointing an attorney-at-law: If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-atlaw to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian. i. Notice Provisions Applicable to the Foster Care Review Hearing The court shall provide notice of the hearing and a copy of the petition for foster care review hearing to the following, each of whom shall be a party entitled to participate in the proceeding. Va. Code 16.1-282 C (1)(5): the child, if age 12 or older; the guardian ad litem for child; the childs parents; however, no such notification shall be required if the Judge certifies on the record that the identity of the parent or 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 that would refute such an affidavit. any person standing in loco parentis at the time the child came into custody; the foster parents; the petitioning DSS or public agency or child welfare agency;
NOTE: The clerks office should not send to a parent a SUMMONS or other notice of any proceeding that involves a child in relation to whom that parents parental rights have been terminated.
any other interested parties as the court, in its discretion, may direct such as:
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the attorney for DSS; the other attorneys of record; the pre-adoptive parents for child; the Court Appointed Special Advocate.
Pursuant to Virginia Code 16.1-282 (C)(3), if a parent or guardian of the child did not appear at the dispositional hearing and was not noticed to return for the foster care review hearing in accordance with Virginia Code 16.1-281 (E), the parent or guardian shall be summoned to appear at the foster care review hearing in accordance with Virginia Code 16.1-263. j. Foster Care Review Hearing and Order The foster care review hearing shall be held although a parent or guardian fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent or guardian, or the court deems that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort.
The Court Improvement Program recommends that DSS provide the court with a notarized affidavit of efforts to locate the whereabouts of an absent parent.
Pursuant to Virginia Code 16.1-282 (D), at the conclusion of the foster care review hearing, the court shall enter a FOSTER CARE REVIEW ORDER, district court form DC-555, consistent with the dispositional alternatives available to court at the time of the original hearing. Refer to the appropriate statutes as indicated below for dispositional alternatives in the following case types: Virginia Code 16.1-278.2 for abused/neglected children in foster care; Virginia Code 16.1-277.01 for children entering foster care as a result of an entrustment agreement; Virginia Code 16.1-277.02 and 16.1-278.3 for children entering foster care as a result of a petition to be relieved of custody; Virginia Code 16.1-278.4 for CHINS services children in foster care; Virginia Code 16.1-278.5 for CHINS supervision children in foster care; Virginia Code 16.1-278.6 for status offenders in foster care; Virginia Code 16.1-278.8 for delinquent children in foster care.
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The court order shall state whether reasonable efforts, if applicable, have been made to reunite the child with his parents, guardian or other person standing in loco parentis to the child. Va. Code 16.1-282 (D). Reasonable efforts to reunite the child with a parent shall not be required if the court makes any of the following findings: the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; the parent has been convicted of an offense under the laws of the Commonwealth of Virginia or a substantially similar law of any other state, the United States or any foreign jurisdiction which constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred or the other parent of the child; the parent has been convicted of an offense under the laws of the Commonwealth of Virginia or a substantially similar law of any other state, the United States or any foreign jurisdiction which constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; based on clear and convincing evidence, the parent has subjected any child to aggravated circumstances, or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to Virginia Code 16.1-283. Va. Code 16.1-281 (B). See also 42 U.S.C. 671(a)(15)(D)(i). Definitions relevant to determination that reasonable efforts to reunite the child with a parent are not required: Aggravated circumstances means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect: (i) evinces a wanton or depraved indifference to human life, or (ii) has resulted in the death of such a child or in serious bodily injury to such a child. Chronic abuse or chronic sexual abuse means recurring acts of physical abuse that place the childs health, safety and well-being at risk. Serious bodily injury means bodily injury [that] involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty. Severe abuse or severe sexual abuse may include an act or omission that occurred only once, but otherwise meets the definition of aggravated circumstances.
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The court shall hold a permanency planning hearing pursuant to Virginia Code 16.1282.1 within thirty days of making a determination that reasonable efforts to reunite the child with the parents are not required. When transferring custody of the child to a relative other than the childs prior family, the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1282 (D1): The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings. The courts order should further provide for, as appropriate: any terms or conditions which would promote the childs interest and welfare; ongoing provision of social services to the child and the childs custodian; and court review of the childs placement. If the court disapproves the foster care plan, DSS should submit a new plan within a reasonable period of time not to exceed thirty days. A hearing shall be held with notice to all appropriate parties to review and approve the revised plan. In the event a foster care plan is disapproved and a subsequent hearing to approve the plan is required, the date for the permanency planning hearing pursuant to Virginia Code 16.1-282.1 is still set based on the original date for the foster care review hearing. If the order entered at the conclusion of the hearing has the effect of achieving a permanent goal for the child by: (i) terminating residual parental rights pursuant to Virginia Code 16.1-277.01, 16.1-277.02, 16.1-278.3 or 16.1-283; (ii) placing the child in permanent foster care pursuant to Virginia Code 16.1-282.1 (A)(iv); or (iii) directing the board or agency to provide the child with services to achieve independent living status, if the child has attained the age of sixteen years pursuant to Virginia Code 16.1-282.1 (A)(v), the order shall state whether reasonable efforts have been made to place the child in a timely manner in accordance with the foster care plan and to complete the steps necessary to finalize the permanent placement of the child. Va. Code 16.1-282 (E). The court shall possess continuing jurisdiction so long as the child remains in foster care or, when a child is returned to his prior family subject to conditions imposed by the court, for as long as such conditions are effective. Va. Code 16.1-282 (E). Upon appeal to the circuit court of any case involving a child placed in foster care and also in any appeal to the Court of Appeals or Supreme Court of Virginia, the juvenile court shall retain jurisdiction to continue to hear petitions filed pursuant to Virginia Code 16.1-282 and 16.1-282.1. Orders of the juvenile court in such cases shall continue to be reviewed and enforced by the juvenile court until the circuit, Court of Appeals or Supreme Court rules otherwise. Va. Code 16.1-242.1. The court shall schedule a permanency planning hearing on the case to be held:
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five months after the foster care review hearing ( 16.1-282 (E)); or within thirty days upon the petition of any party entitled to notice of the proceedings under Virginia Code 16.1-282, when the judge determines that there is good cause for the hearing (Va. Code 16.1-282 (E)); or within thirty days upon the petition of a board, public agency or child welfare agency, when a determination has been made that the childs need for long-term residential treatment for the childs disabling condition is eliminated, such that placement in another planned permanent living arrangement is no longer in the childs best interests and another permanent plan goal must be selected and approved for the child (Va. Code 16.1-282.1 (A1); within thirty days of making a determination that reasonable efforts to reunite the child with the parents are not required. Va. Code 16.1-281 (B). All parties present at the foster care review hearing should receive a copy of the courts order. The parties also should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC-508, for the permanency planning hearing. The courts order should be issued and served on any party who did not receive a copy of the order at the foster care plan hearing. This order should be served with a summons for the permanency planning hearing to parties not present at the foster care review hearing. k. Permanency Planning Petition Va. Code 16.1-282.1. The local board of social services, public agency designated by the community policy and management team (CPMT) or child welfare agency shall file a PETITION FOR PERMANENCY PLANNING HEARING, district court form DC-556, pursuant to Virginia Code 16.1-282.1 (A) in the case of a child who: was placed through an agreement between the parents or guardians and the board or public agency where legal custody remains with the parents or guardians and such agreement has not been dissolved by court order; or is in the legal custody of a board or a child welfare agency and has not had a petition to terminate parental rights granted, filed or ordered to be filed on the childs behalf; has not been placed in permanent foster care; or is not receiving services to achieve independent living status. A UCCJEA (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT) AFFIDAVIT, district court form DC-620, is filed with the petition for permanency planning hearing. Pursuant to Virginia Code 20-146.1, a child custody proceeding includes a dependency proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. The purpose of the permanency planning hearing is to establish a permanent goal for the child and either to achieve the permanent goal or to defer such action through the approval of an interim plan for the child.
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To achieve the permanent goal, the permanency planning petition shall request that the court order one of the following: Transfer custody of the child to his prior family or dissolve the boards or public agencys placement agreement and return the child to his prior family; Transfer custody of the child to a relative other than the childs prior family; Terminate residual parental rights pursuant to Virginia Code 16.1-277.01 or 16.1283; Place the child in permanent foster care; Provide the child with services to achieve independent living status if the child has attained the age of sixteen years;
NOTE: Virginia Code 16.1-281 (B) references design of a plan that includes the programs and services which help the child prepare for the transition from foster care to independent living.
Place the child in another planned permanent living arrangement in accordance with Virginia Code 16.1-282.1 (A2). For approval of an interim plan, which may be approved by the court for a maximum of six months, the petition for a permanency planning hearing shall seek to: Continue DSS custody or continue placement with the board or public agency through parental agreement; or Transfer custody to the board or child welfare agency from the parents or guardian of a child who has been in foster care through an agreement whereby the parent/guardian retains legal custody. If the board or child welfare agency petitions for approval of an interim plan to continue agency custody, continue placement through a parental agreement, or transfer custody to the board or agency from the parents or guardian, the board or agency shall also file a foster care plan which: Identifies a permanent goal for the child that corresponds with one of the alternatives for achieving a permanent goal; Includes provisions for accomplishing the permanent goal within six months; and Summarizes the investigation conducted of the placement alternatives listed below and states why they are not in the best interest of the child, if these goals have not been chosen:
Transfer custody of the child to his prior family or dissolve the boards or public agencys placement agreement and return the child to his prior family;
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Transfer custody of the child to a relative other than the childs prior family; Terminate parental rights pursuant to Virginia Code 16.1-277.01 or 16.1-283; Place the child in permanent foster care; Provide the child with services to achieve independent living status if the child has attained the age of sixteen years.
The following requirements apply to the selection and approval of another planned permanent living arrangement as the permanent goal for the child: The board, public agency or child welfare agency shall petition to place the child in another planned permanent living arrangement only if:
The child has a severe and chronic emotional, physical or neurological disabling condition for which the child requires long-term residential treatment; and The board or agency has thoroughly investigated the feasibility of placement in, and determined that the childs best interests would not be served by, any of the following: returning the child to the childs prior family, transferring custody of the child to a relative other than the childs prior family, terminating residual parental rights, providing services to the child to attain independent living status, and placing the child in permanent foster care.
With the petition filed pursuant to Virginia Code 16.1-282.1 (A), the board or agency shall file a foster care plan that documents the following, in accordance with the provisions of Virginia Code 16.1-282.1 (A1):
the investigation conducted of the placement alternatives listed in clauses (i) through (v) of subsection A and why each of these is not currently in the best interest of the child; at least one compelling reason why none of the alternatives listed in clauses (i) through (v) of subsection A is achievable for the child at the time placement in another planned permanent living arrangement is selected as the permanent goal for the child; the identity of the long-term residential treatment service provider; the nature of the childs disability; the anticipated length of time required for the childs treatment; and the status of the childs eligibility for admission and long-term treatment.
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Before approving another planned permanent living arrangement as the plan for the child, the court shall find:
that the child has a severe and chronic emotional, physical or neurological disabling condition; that the child requires long-term residential treatment for the disabling condition; and that none of the placement alternatives listed in clauses (i) through (v) of subsection A is achievable for the child at the time placement in another planned permanent living arrangement is approved as the permanent goal for the child.
Another planned permanent living arrangement may be approved as the permanent plan for the child for a period of 6 months at a time. District court form DC-557, PERMANENCY PLANNING ORDER, should be used to approve this plan. At the conclusion of the hearing at which another planned permanent living arrangement is approved as the permanent plan, the court shall schedule a hearing to be held within 6 months to review the childs placement. All parties present at the hearing at which another planned permanent living arrangement is approved as the permanent plan for the child shall be given notice of the date scheduled for the foster care review hearing. Parties not present shall be summoned to appear as provided in Virginia Code 16.1-263. If at any time during the allowable 6-month approval periods a determination is made by treatment providers that the childs need for long-term residential treatment for the childs disabling condition is eliminated, the board or agency shall:
begin immediately to plan for post-discharge services; and file a petition for a permanency planning hearing pursuant to 16.1-282.1 (A) within 30 days of determining that the childs need for long-term treatment for the childs disabling condition is eliminated.
As to the petition filed for the permanency planning hearing, the following provisions of Virginia Code 16.1-282 (B), subdivisions 1 through 7, apply in accordance with Virginia Code 16.1-282.1 (A1) and (B): Petition to be filed in the court in which the foster care service plan was reviewed and approved. However, upon order of the court the petition for foster care review hearing may be filed in the court of the county/city in which the board or child welfare agency having legal custody or having placed the child has its principal office or where the child resides. Va. Code 16.1-282 (B) (1). Petition to state, if such is reasonably obtainable, the current address of the child's parents;
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Petition to state, if such is reasonably obtainable, the current address of the person standing in loco parentis when DSS or child welfare agency obtained legal custody; Petition to describe childs placement(s) while in foster care; Petition to describe the services or programs offered to the child and his parents and, if applicable, the persons standing in loco parentis; Petition to describe nature and frequency of the contacts between the child and parents and, if applicable, persons standing in loco parentis; Petition to set forth in detail manner in which the foster care plan was/was not complied with and extent to which goals have been met; Petition to set forth the disposition sought and grounds therefore; If continuation of foster care is recommended, a foster care plan shall be included with the petition and shall address:
The Court Improvement Program recommends that any plan that contemplates the termination of residual parental rights should document that termination of parental rights is in the best interests of the child. Va. Code 16.1-283 (A).
Role current foster parents or care providers will play in the future planning for the child, and; In the case of a child 16 or older, the services and programs needed to assist the child to make a transition from foster care to independent living.
The local board of public welfare or social services or other child welfare agency shall identify for the court such persons, including those listed in Virginia Code 16.1-282 (C) (1)(5), as have a legitimate interest in the hearing, including but not limited to pre-adoptive parents for a child in foster care. Upon receipt of the petition for permanency planning hearing, the court shall schedule a hearing within thirty days unless one has previously been scheduled. This hearing shall be held: The Court Improvement Program suggests that the public or private agency caseworker should provide the current street address, including any apartment number, for the individuals whose addresses are listed. Parental rights terminated or deceased, as appropriate, should be written on the Transmittal form where parents address is listed. In the event that the clerks office receives a pleading in a case in which parental rights have been terminated or the parent is deceased, this information should be included in place of the parents address in the address field.
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Within eleven months of the dispositional hearing at which the foster care plan was reviewed pursuant to Virginia Code 16.1-281 (foster care plan hearing) Va. Code 16.1-282.1 (B); or Within thirty days upon the petition of a board, public agency or child welfare agency, when a determination has been made that the childs need for long-term residential treatment for the childs disabling condition is eliminated, such that placement in another planned permanent living arrangement is no longer in the childs best interests and another permanent plan goal must be selected and approved for the child (Va. Code 16.1-282.1 (A1); Within thirty days of making a determination that reasonable efforts to reunite the child with the parents are not required. Va. Code 16.1-281 (B). l. Appointment of Guardian Ad Litem and Right to Counsel Virginia Code 16.1-281 (F) requires The Court Improvement Program suggests that the the appointment of a guardian ad GAL who has previously represented the child in litem (GAL) to represent the child related proceedings concerning the childs placement pursuant to Virginia Code 16.1-266 and status in foster care should continue to represent any time a hearing is held to review the child in subsequent foster care review and the foster care plan or to review the permanency planning hearings. The clerk should childs foster care status. Pursuant to inform the GAL of the date and time of any hearing to Virginia Code 16.1-266.1, check review the childs foster care plan or status in foster the list of qualified guardians ad litem care, including foster care hearings held pursuant to maintained by the Office of the Virginia Code 16.1-281 and 16.1-282, and Executive Secretary of the Supreme permanency planning hearings held pursuant to 16.1282.1. The GAL should attend all of these hearings. Court before selecting a guardian ad The department of social services (DSS) and the litem. However, if no attorney who is childs parents should be provided with a copy of the on the list is reasonably available, the ORDER FOR APPOINTMENT OF GUARDIAN AD judge has discretion to appoint any LITEM, district court form DC-514, when it is entered. discreet and competent attorney admitted to practice law in Virginia. Parties shall be informed of their right to counsel: Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1-266 (C). In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age of 18 years or under a disability such as incarceration or mental illness. THE ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, should be used for this appointment.
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The court shall consider appointing an attorney-at-law: Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would Prior to a hearing at which a support the appointment of an attorney as counsel or child is the subject of an initial guardian ad litem to represent the interests of a parent foster care plan filed pursuant whose identity or whereabouts is unknown. Such a to Virginia Code 16.1-281, a parent or guardian could also be subjected to the loss foster care review hearing of residual parental rights and responsibilities. See Va. pursuant to 16.1-282 and a Code 16.1-266 (C); but see Fredericksburg Dept of permanency planning hearing Social Servs. v. Brown and Williams, Record Nos. pursuant to 16.1-282.1, the 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming court shall consider appointing on other grounds the trial courts denial of petitions counsel to represent the childs to terminate the parents residual parental rights, parent or guardian. where the children entered foster care based upon an invalid entrustment agreement. The trial court had m. Notice Provisions Applicable to the denied the petitions based upon failure to appoint Permanency Planning Hearing attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown In accordance with Virginia Code may also be under a disability in that s/he is unable to 16.1-282.1 (A2) and 16.1-282.1 defend his or her legal rights. See 8.01-2 (defining (B), the following provisions of person under a disability). See also Norfolk Div. of Virginia Code 16.1-282 (C) Social Servs. v. Unknown Father, 2 Va. App. 420, apply. The court shall provide (1986) (in proceedings involving custody of a child of notice of the hearing and a copy of an unwed minor, guardian ad litem for the unknown the petition to the following, each father had standing to appeal the entrustment of whom shall be a party entitled agreement decision by the juvenile and domestic to participate in the proceeding: relations district court). the child, if 12 years of age or older; the guardian ad litem for child; the childs parents; however, no such notification shall be required if the Judge certifies on the record that the identity of the parent or 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 that would refute such an affidavit. If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-at-law to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C).
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the person standing in loco parentis at the time the child came into custody; the foster parents; the petitioning DSS or public agency or child welfare agency; other interested parties as the court, in its discretion, may direct such as: .. .. .. .. .. the attorney for parents, if represented by counsel; the attorney for DSS; any other attorneys of record; the pre-adoptive parents for child; the Court Appointed Special Advocate.
NOTE: The clerks office should not send to a parent a summons or other notice of any proceeding that involves a child in relation to whom that parents parental rights have been terminated.
If a parent or guardian of the child did not appear at the previous foster care hearing and was not noticed to return for the permanency planning hearing, the parent or guardian shall be summoned to appear in accordance with Virginia Code 16.1-263. Va. Code 16.1-282 (C). n. Permanency Planning Hearing and Order The permanency planning hearing shall be held although a parent or guardian fails to appear and is not represented by counsel, provided personal or substituted service was made on the parent or guardian, or the court deems that such person cannot be found, after reasonable effort, or in the case of a The Court Improvement Program person who is without the recommends that DSS provide the court with Commonwealth, the person cannot be a notarized affidavit of efforts to locate the found or his post office address cannot be whereabouts of an absent parent. ascertained after reasonable effort. Before approving a continuation of foster care or the transfer to DSS custody of a child placed by parental agreement: When returning home remains the plan for the child, the court shall find:
That the parent has made marked progress toward reunification with the child, and That the parent has maintained a close and positive relationship with the child, and That the child is likely to return home within the near future, although it is premature to set an exact date for return at the time of this hearing; or VIRGINIA DISTRICT COURT MANUAL
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When returning home is not the plan for the child, the court shall find:
That marked progress is being made to achieve the permanent goal identified by the board, public agency or child welfare agency, and That it is premature to set an exact date for accomplishing the goal at the time of this hearing.
At the conclusion of the permanency planning hearing, if the following alternatives are the interim plan, the court shall schedule a hearing to be held within six months called a second permanency planning hearing to All parties present at the first permanency determine that the new permanent goal is planning hearing should receive a copy of accomplished: Continue DSS custody or continue placement with the board or public agency through parental agreement; or Transfer custody to the board or child welfare agency from the parents or guardian of a child who has been in foster care through an agreement whereby the parent/guardian retains legal custody.
the courts order. The parties also should sign and receive a copy of the ACKNOWLEDGMENT OF NOTICE OF NEXT HEARING DATE, district court form DC-508, for the second permanency planning hearing. The courts order should be issued and served on any party who did not receive a copy of the order at the first permanency planning hearing. This order shall contain a summons for the second permanency planning hearing for parties not present at the first permanency planning hearing.
The court shall enter an order that states whether reasonable efforts have been made to reunite the child with his or her family, if returning home remains the plan for the child; or whether reasonable efforts have been made to achieve the permanent goal identified by the board, when returning home is not the plan for the child. The PERMANENCY PLANNING ORDER, district court form DC-557, is used for this purpose. At the second permanency planning hearing, the court shall enter a PERMANENCY PLANNING ORDER, district court form DC-557, consistent with one of the following alternatives: Transfer custody of the child to his prior family or dissolve the boards or public agencys placement agreement and return the child to his prior family; Transfer custody of the child to a relative other than the childs prior family; Terminate residual parental rights pursuant to Virginia Code 16.1-277.01 or 16.1-283, after serving parents according to Virginia Code 16.1-264; Place the child in permanent foster care; Provide the child with services to achieve independent living status if the child has attained the age of sixteen years.
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When transferring custody of the child to a relative other than the childs prior family, the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-282.1 (A1):
Note: Virginia Code 16.1-281 (B) references design of a plan that includes the programs and services which help the child prepare for the transition from foster care to independent living.
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings. The courts order should further provide for, as appropriate: any terms or conditions that would promote the childs interest and welfare. A subsequent permanency planning hearing may be scheduled within thirty days upon the petition of any party entitled to notice in proceedings under this section when the judge determines there is good cause shown for such a hearing. Va. Code 16.1-282.1 (B), 16.1-282 (E). In the case of a child placed in permanent foster care after a hearing held pursuant to Virginia Code 63.1-206.1, there are no subsequent permanency planning hearings so long as that court order is in effect. Permanent foster care is an approved permanent goal for a child. Va. Code 16.1-282.1 (B), 16.1-282 (E). The court shall possess continuing jurisdiction so long as the child remains in a foster care placement or, when a child is returned to his prior family, subject to conditions imposed by the court for as long as such conditions are effective. Va. Code 16.1-282.1 (B), 16.1-282 (E). Upon appeal to the circuit court of any case involving a child placed in foster care and also in any appeal to the Court of Appeals or Supreme Court of Virginia, the juvenile court shall retain jurisdiction to continue to hear petitions filed pursuant to Virginia Code 16.1-282 and 16.1-282.1. Orders of the juvenile court in such cases shall continue to be reviewed and enforced by the juvenile court until the circuit court, Court of Appeals or Supreme Court rules otherwise. Va. Code 16.1-242.1. o. Post Permanency Planning Review of Children in the Legal Custody of the Board or Agency The court shall review a foster care plan for any child who is placed in another planned permanent living arrangement every six months from the date of the permanency planning hearing at which another planned permanent living arrangement is approved as the permanent plan for the child.
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The board, public agency or child welfare agency shall file district Court form DC-554, PETITION FOR FOSTER CARE REVIEW HEARING, pursuant to the provisions of Virginia Code 16.1-282 and shall, in addition, include the following information, in accordance with the provisions of Virginia Code 16.1-282.1 (A2): .. the investigation conducted of the placement alternatives listed in clauses (i) through (v) of subsection A and why each of these is not currently in the best interest of the child; at least one compelling reason why none of the alternatives listed in clauses (i) through (v) of subsection A is achievable for the child at the time placement in another planned permanent living arrangement is selected as the permanent goal for the child; the identity of the long-term residential treatment service provider; the nature of the childs disability; the anticipated length of time required for the childs treatment; and the status of the childs eligibility for admission and long-term treatment.
..
.. .. .. ..
The board or agency shall file the petition no later than 30 days prior to the foster care review hearing that has been scheduled pursuant to Virginia Code 16.1-282.1 (A1). The court order entered at the conclusion of the hearing held on such petition for review shall state whether reasonable efforts were made to place the child in a timely manner in accordance with the permanency plan and to monitor the childs status in another planned permanent living arrangement. The court shall review a foster care plan every twelve months from the date of the permanency planning hearing, so long as the child remains in the custody of the board, public agency or child welfare agency, in accordance with the following requirements: The children for whom the court shall review a foster care plan every twelve months include any child who remains in the custody of the board, public agency or child welfare agency and: .. .. .. on whose behalf a petition to terminate parental rights has been granted, filed or ordered to be filed; who is placed in permanent foster care; or who is receiving services to achieve independent living status .
The board, public agency or child welfare agency shall file district court form DC-554, PETITION FOR FOSTER CARE REVIEW HEARING, pursuant to the provisions of Virginia Code 16.1-282 for this foster care review hearing. (Refer to section E.5.g, above.)
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The court shall provide notice of the foster care review hearing in accordance with the provisions of Virginia Code 16.1-282. (Refer to section E.5.i., above.) The court order entered at the conclusion of the hearing held on such petition for review shall state whether reasonable efforts were made to place the child in a timely manner in accordance with the permanency plan and to complete the steps necessary to finalize the permanent placement of the child. A written Adoption Progress Report shall be filed with the juvenile court by the local board or licensed child-placing agency within six months from the date of the final order terminating parental rights and every six months thereafter until a final order of adoption is entered. Va. Code 16.1-277.01 (E), 16.1-277.02 (D), 16.1-278.3 (E), 16.1-283 (F). The report should detail the progress being made to place the child in an adoptive home. The court may schedule a hearing on the Adoption Progress Report with or without the request of a party. The court order entered at the following hearing shall indicate the date upon which the first report is due to be filed by the agency having authority to place the child for adoption:
annual foster care review hearing held pursuant to Virginia Code 16.1-282.2 in case of a child on whose behalf a petition to terminate parental rights has been granted, filed or ordered to be filed but who remains in the legal custody of a local board of social services or a child welfare agency. hearing to approve an entrustment agreement that provides for the termination of parental rights pursuant to Virginia Code 16.1-277.01. hearing at which parental rights are terminated pursuant to a petition to be relieved of custody permanently pursuant to Virginia Code 16.1-277.02 or 16.1-278.3. hearing on a petition to terminate residual parental rights pursuant to Virginia Code 16.1-183.
p. Permanent Foster Care Virginia Code 63.2-908. A local department of social services or child placing agency shall have authority pursuant to court order to place a child over whom it has legal custody in a permanent foster care placement where the child shall remain until he or she reaches the age of majority or thereafter, until the age of twenty-one years, if such placement is a requisite to providing funds for the care of such child, so long as the child is a participant in an educational, treatment or training program approved pursuant to rules and regulations of the State Board of Social Services. Va. Code 63.2-908 (A).
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Permanent foster care placement is defined in Virginia Code 16.1-228 as follows: The place of residence in which a child resides and in which he has been placed pursuant to the provisions of Virginia Code 63.2-900 and 63.2-908 with the expectation and agreement between the placing agency and the place of permanent foster care that the child shall remain in the placement until he reaches the age of majority unless modified by court order or unless removed pursuant to Virginia Code 16.1-251 or 63.2-1517. A permanent foster care placement may be a place of residence of any natural person or persons deemed appropriate to meet a childs needs on a long-term basis. A child may remain in permanent foster care until the age of twenty-one years, if such placement is requisite to providing funds for the care of such child, so long as the child is a participant in an educational, treatment or training program approved pursuant to rules and regulations of the State Board of Social Services. Va. Code 63.2-908 (A). The court shall not order a permanent foster care placement using the PERMANENT FOSTER CARE ORDER, district court form DC-558, unless it finds that: Diligent efforts have been made by DSS to place the child with his natural parents and such efforts have been unsuccessful; and Diligent efforts have been made by DSS to place the child for adoption and such efforts have been unsuccessful or adoption is not a reasonable alternative for a longterm placement for the child under the circumstances. Refer to the procedures in section J of this outline, regarding court proceedings pursuant to Virginia Code 16.1-282.1 to establish and achieve permanent foster care as the permanent goal for a child. At the conclusion of the permanency planning hearing at which the permanent foster care goal is achieved and a PERMANENCY PLANNING ORDER is entered, the court shall enter a separate order which specifies the names of the permanent foster care parents and establishes the permanent foster care placement. Once a PERMANENT FOSTER CARE PLACEMENT ORDER has been entered, the child cannot be removed from the physical custody of the permanent foster parents except by court order or based on an emergency removal for abuse or neglect under Virginia Code 16.1251 or 63.2-1517. The permanent foster parents shall have the authority to consent to surgery, entrance into the armed forces, marriage, application for a motor vehicle and driver's license, application for admission into college, and any other such activities which require parental consent, unless this authority is modified by court order. The permanent foster parents have the responsibility to inform the placing agency of any such action to which they consent on the childs behalf. Va. Code 63.2-908 (B). A child in permanent foster care has the right to the same services and benefits as other foster children. Va. Code 63.2-908 (C). If the child continues to have a relationship with his parents, DSS shall involve them in the planning of a permanent foster care placement, and the court order establishing permanent
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foster care shall set out visitation provisions with the natural parents. Va. Code 63.2-908 (F). The permanent foster parents, DSS or other appropriate party may file a petition or motion with the court that ordered the placement to request a change in the placement of the child in permanent foster care or in the responsibilities of the foster parents for the child. Va. Code 63.2-908 (G). A PETITION FOR PERMANENCY PLANNING HEARING pursuant to Virginia Code 16.1-282.1, district court form DC-556, must be filed by the agency to change the permanent plan for the child. A PETITION FOR FOSTER CARE REVIEW HEARING, district court form DC-554, shall be filed annually from the time a permanent foster care placement is established, so long as the child remains in the legal custody of a local board of social services or a child welfare agency. Va. Code 16.1-282.2. At the annual foster care review hearing, the court shall give consideration to the appropriateness of the services being provided to the child and permanent foster parents, to any change in circumstances since the entry of the order placing the child in permanent foster care, and to such other factors as the court deems proper. Va. Code 16.1-282 (B). At the conclusion of the annual foster care review hearing, the court shall enter a FOSTER CARE REVIEW ORDER, district court form DC-555, which states whether reasonable efforts have been made to place the child in a timely manner in accordance with the approved foster care plan that established a permanent goal for the child and to complete the steps necessary to finalize the permanent placement of the child. q. Interstate Compact on the Placement of Children Va. Code 63.2-1100-1103. If a child has been committed to the custody of the local department of social services or is otherwise in court custody, the Interstate Compact on the Placement of Children (ICPC) applies to an interstate placement in foster care or in a prospective adoptive placement. The ICPC must be followed whenever a local agency has custody of a child and the child goes to another state to live.
The Court Improvement Programs suggestion is to include within the applicability of the ICPC a non-offending parent or relative who lives out of state and wants custody of the subject child. However, note that the United States Third Circuit Court of Appeals has held, and other courts have agreed, that the Compact does not apply to out-of-state placements with parents. See McComb v. Wambaugh, 934 F.2d 474 (3rd Cir. 1991).
The term foster care should be construed broadly to include homes that are reimbursed for services to children and those that are not reimbursed (i.e., both paid and unpaid foster homes). Rationale of ICPC: The intent of the Act is to protect children moving across state lines and offer services, consistent with the best interests of the child.
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ICPC does not apply to the interstate placement of a child in a psychiatric or other hospital for acute medical care, except for placement in a residential treatment program or, if upon discharge from acute care, the child will be placed in a program for residential treatment. If a foster child is subject to placement out of state, the sending state must follow ICPC procedures including the request of a home study, and the receiving state must approve the prospective placement. Priority placement designation under Regulation 7, adopted in 1996, entitles the sending state to an expedited home study and recommendation on the prospective placement from the receiving state. The contemplated out-of-state placement must be with a relative who would otherwise be exempt from the Compact under ICPC Article VIII(a) and the child:
Is under two years of age; and/or Is in emergency shelter care; and/or Has spent substantial time with the relative.
Whenever a court determines that a proposed priority placement of a child from one state to another state is necessary, the court shall enter an order embodying that finding and include the basis therefor.
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6. Termination of Residual Parental Rights. Va. Code 16.1-283. a. Petition for Termination of Parental Rights Filed by the local department of social services (DSS) or licensed child-placing agency having custody of the child, by an attorney on behalf of the agency, or by the guardian ad litem for the child. See Va. Code 16.1-260. See also Stanley v. Fairfax County Dept of Social Servs., 10 Va. App. 596, (1990), affd, Stanley v. Fairfax County Dept of Social Servs., 242 Va. 60, (1991) (guardian ad litem has standing to file a petition for termination of parental rights as such action is implicit in the general charge of authority to represent faithfully the interests of the individual under disability for whom s/he is appointed). A UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) Affidavit, district court form DC-620, is filed with the petition. Pursuant to Virginia Code 20-146.1, a child custody proceeding means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue, including termination of parental rights cases. District court form DC-621, NON-DISCLOSURE ADDENDUM, may be completed if disclosure of identifying information would jeopardize the health, safety or liberty of a party or child. No petition to terminate the residual parental rights of a childs parent shall be accepted by the court prior to the filing of a foster care plan, pursuant to Virginia Code 16.1-281, which documents termination of residual parental rights as being in the best interests of the child. Va. Code 16.1-283 (A). Virginia Code 16.1-283 procedures are inapplicable to disputes between parents over the custody of their children. Prior to accepting and processing the petition, the intake officer or clerk should review the court file and determine that a foster care plan that documents termination of parental rights as being in the best interests of the child has previously been filed, or is filed with the termination petition. The court may hear and adjudicate a petition for termination of parental rights in the same proceeding in which the court has approved a foster care plan that documents that termination is in the best interests of the child. Va. Code 16.1-283 (A). The petition for termination should be processed and served as separate pleadings from the foster care plan. See Stanley v. Fairfax County Dept of Social Servs., 10 Va. App. 596, (1990), affd, Stanley v. Fairfax County Dept of Social Servs., 242 Va. 60, (1991).
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The Court Improvement Program recommends Filing petitions for permanency planning hearing and termination of residual parental rights at the same time. Specifying in the petition the subsection of Virginia Code 16.1-283 (ground) under which termination is sought,. The grounds need not be the same for the mother and father. Grounds may be pled in the alternative. That the court schedule a new date for the termination hearing to be held as soon as possible, if the petitions for permanency planning hearing and termination of parental rights cannot be heard at the same time. Providing the clerks office with the street address of the penal institution for proper service of process of an incarcerated parent. Providing childs actual address, not care of the agency. Providing current street addresses of parties to promote timely, effective service of process and adequate trial preparation time, and to avoid unnecessary delays.
DSS need not have identified an available and eligible family to adopt a child for whom termination of parental rights is being sought prior to the entry of an order terminating parental rights. Va. Code 16.1-283 (A). There must be a separate petition for each parent, because the court may terminate the residual parental rights of one parent without affecting the rights of the other parent. Va. Code 16.1-283 (A). Federal law: The Adoption and Safe Families Act of 1997, P. L. 105-89, provides that for children placed in foster care after July 1, 1998, petition(s) for termination of parental rights must be initiated for any child in foster care for 15 of the last 22 months, unless one of the following exceptions applies: the child is being cared for by a relative; the agency has documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interests of the child; or the agency has not provided services to the family of the child. 42 U.S.C. 675(5)(E). b. Pretrial Right to counsel and appointment of guardian ad litem Upon the filing of a petition for termination of parental rights, the court shall appoint a guardian ad litem (GAL) to represent the child. Va. Code 16.1-266 (A). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia.
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The Court Improvement Program recommends: The guardian ad litem who has previously been appointed for the child in removal hearings or in another proceeding which resulted in the childs placement in foster care, should continue to represent the child in the termination of parental rights proceeding. The clerk should inform the guardian ad litem of the time and date for all related hearings. The department of social services (DSS) and the childs parents should be provided with a copy of the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514, for the child when the order is entered.
Note: The discretionary authority of the court pursuant to 16.1-266 (E) to appoint a discreet and competent attorney at law to represent a child, children, parent or guardian as counsel or guardian ad litem in all other cases may be interpreted to mean (i) cases other than those in which a parent or guardian is charged with abuse/neglect or could be subjected to the loss of residual parental rights and responsibilities; or (ii) cases in which a parent or guardian cannot be informed of an exercise or waive his right to counsel. The latter interpretation would support the appointment of an attorney as counsel or guardian ad litem to represent the interests of a parent whose identity or whereabouts is unknown. Such a parent or guardian could also be subjected to the loss of residual parental rights and responsibilities. See Va. Code 16.1-266 (C); but see Fredericksburg Dept of Social Servs. v. Brown and Williams, Record Nos. 1969-99-2, 2008-99-2 (Va. Ct. App. 2000) (affirming on other grounds the trial courts denial of petitions to terminate the parents residual parental rights, where the children entered foster care based upon an invalid entrustment agreement. The trial court had denied the petitions based upon failure to appoint attorneys to represent the parents). A parent or guardian whose identity or whereabouts is unknown may also be under a disability in that s/he is unable to defend his or her legal rights. See 8.012 (defining person under a disability). See also Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, (1986) (in proceedings involving custody of a child of an unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court).
Parties shall be informed of their right to counsel: Prior to the adjudicatory hearing by the court of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in Virginia Code 16.1-241 (A)(2a), prior to the hearing of any case involving any other adult charged with abuse or neglect of a child, and prior to a hearing at which a parent could be subjected to the loss of residual parental rights, the childs parent or guardian or the other adult shall be informed by a judge, clerk or probation officer of his right to counsel and be given an opportunity to (i) retain counsel; (ii) if qualified, have counsel appointed; (iii) waive counsel using WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER, district court form DC-536. Va. Code 16.1-266 (C). Note: The SUMMONS, district court form DC-510, includes notice of the right to counsel. In the courts discretion, a discreet and competent attorney at law may be appointed as counsel or guardian ad litem to represent the interests of a parent or guardian. Va. Code 16.1-266 (D). If an attorney is to be appointed as a guardian ad litem for a parent or guardian (as opposed to appointment as counsel), reference should be made from the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court, as is the case for appointment of guardian ad litem for a child. This list can be found at www.courts.state.va.us. The court may appoint a guardian ad litem to represent a party, usually a parent, who is under the age VIRGINIA DISTRICT COURT MANUAL
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of 18 years or under a disability such as incarceration or mental illness. THE ORDER FOR APPOINTMENT OF A GUARDIAN AD LITEM, district court form DC-514, should be used for this appointment. The court shall consider appointing an attorney-at-law:
If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorneyat-law to represent the interests of the absent parent or guardian, and the hearing may be held. Va. Code 16.1-266 (C). Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to Virginia Code 16.1-281, a foster care review hearing pursuant to 16.1-282 and a permanency planning hearing pursuant to 16.1-282.1, the court shall consider appointing counsel to represent the childs parent or guardian.
Transportation of incarcerated witness: If the presence of a prisoner is essential to the just adjudication and disposition of a petition for termination of parental rights, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. Notice provisions applicable to termination of parental rights proceedings: The summons shall be served upon the parent or parents and the other parties specified in Virginia Code 16.1-263, as follows (Virginia Code 16.1-283 (A)):
The parent or parents, unless the judge certifies on the record pursuant to Virginia Code 16.1-263 (E) that the identity of a parent is not reasonably ascertainable; The child, if s/he is twelve or more years of age; The guardian, legal custodian or other person standing in loco parentis; Such other persons as appear to the court to be proper or necessary parties.
Documents to be served: SUMMONS, district court form DC-510. PETITION, district court form DC-511. NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535.
Service shall be made pursuant to Virginia Code 16.1-264. Va. Code 16.1-283 (A). Written notice of the hearing shall also be provided to the foster parents of the child, a relative providing care for the child, and any pre-adoptive parents for the child informing them that they may appear as witnesses at the hearing to give testimony and otherwise participate in the proceeding. Va. Code 16.1-283 (A). VIRGINIA DISTRICT COURT MANUAL
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In accordance with Virginia Code 9.1-157, the provisions of Virginia Code 16.1-264 regarding notice to parties shall apply to ensure that the Court Appointed Special Advocate is notified of hearings and other proceedings concerning the case to which s/he is assigned. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights. Va. Code 16.1-283 (A). Pursuant to Virginia Code 16.1-264, the court may order service by publication in accordance with the provisions of Virginia Code 8.01-316 and 8.01-317.
The party who seeks service by order of publication must file an AFFIDAVIT AND PETITION FOR ORDER OF PUBLICATION, district court form DC-435, stating one of the following grounds: The party to be served is a nonresident; or That diligence has been used without effect to ascertain the location of the party to be served; or That the last known residence of the party to be served was in the county or city where service is sought and a return of service has been filed by the sheriff that the service of process has been in his hands for 21 days and that he has been unable to make service; or The identity of the party to be served is unknown (for example if the identity of the father is unknown) and the party to be served has been identified as unknown in the pleadings.
..
Every AFFIDAVIT FOR ORDER OF PUBLICATION shall state the last known post office address of the party to be served or if such address is unknown, the Affidavit shall so state.
The Court Improvement Program recommends File AFFIDAVIT and PETITION FOR ORDER OF PUBLICATION with termination of parental rights petition to avoid delays. Consider as legal strategy when, during the course of the abuse/neglect, foster care, and termination stages, it is appropriate to provide notice by order of publication. For example, if a publication is run to provide notice of the abuse/neglect stage of the proceedings, such notice is insufficient to continue for termination proceeding. On the other hand, duplicating the ORDER OF PUBLICATION may be costly to the agency. Consider also that the court may proceed in abuse/neglect and foster care hearings on the basis of reasonable efforts to locate an absent parent. File a notarized affidavit of efforts to locate absent parent with the AFFIDAVIT and PETITION FOR ORDER OF PUBLICATION , district court form DC-435. Include language from NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS, district court form DC-535, in ORDER OF PUBLICATION.
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..
Every ORDER OF PUBLICATION, district court form DC-436, shall state the following: Style of the suit: In the Juvenile and Domestic Relations District Court, In Re (name of child), the names of the adult parties (or that the Respondent is unknown); and Object of the suit: To terminate the residual parental rights of the Respondent; and That the defendants or parties unknown are to appear and protect their interests on or before the date stated in the ORDER OF PUBLICATION, which is the date set in the courtroom or by the clerk and the date is to be no sooner than 50 days after entry of the ORDER OF PUBLICATION.
The clerk should send a copy of the pleadings and written notice of the hearing to:
the attorneys for parents; the DSS counsel; the GAL for child; any other attorneys of record.
c. Hearing Burden of proof: At the hearing on petition(s) to terminate parental rights, the petitioner must produce clear and convincing evidence of grounds for termination of parental rights and that such termination is in the best interests of the child. Va. Code 16.1-283 (B), (C), (D), (E). Childs objection to termination of parental rights pursuant to Virginia Code 16.1-283 (G): Notwithstanding any other provisions of Virginia Code 16.1-283, residual parental rights of a parent of a child shall not be terminated if it is established that the child objects to the termination and one of the following is true: The child is fourteen years of age or older; or The child is otherwise of an age of discretion as determined by the court.
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However, the court may terminate the residual parental rights of a parent over the objection of the child if the court finds that any disability of the child reduces the childs developmental age and that the child is not otherwise of an age of discretion. Interpretations of an age of discretion: The test for age of discretion is whether the child is sufficiently mature to have intelligent views and wishes on the subject. See Deahl v. Winchester Dept of Social Servs., 224 Va. 664, (1983). To determine whether the child is sufficiently mature, Virginia Code 16.1-283 requires the trial court to assess the particular childs circumstances, including his or her capacity, information, intelligence, and judgment. See Pamela J. Hawks, a/k/a Pamela J. Walker v. Dinwiddie Dept of Social Servs., 25 Va. App. 247, (1997).
The Court Improvement Program suggests that at the beginning of the termination proceeding, the court should make a threshold determination whether the child is of the age of discretion, if the child is under fourteen years of age. If the child is age fourteen or found to be of the age of discretion, the court should make a finding whether the child objects to the termination of parental rights. The method for determining whether the child objects to the termination is up to the discretion of the court. It is not necessary to ask the child directly whether or not s/he desires termination of parental rights, if the record is otherwise clear on the childs wishes. Both findings should be included in the courts order. See Deahl v. Winchester Dept of Social Servs., 224 Va. 664, 299 S.E.2d 863 (1983).
Grounds for termination of residual parental rights. Va. Code 16.1-283 (B), (C), (D), (E) Pursuant to Virginia Code 16.1-283 (B), residual parental rights of a parent of a child found by the court to be neglected or abused and placed in foster care as a result of court commitment, entrustment or other voluntary relinquishment by the parent or parents may be terminated if the court finds by clear and convincing evidence that it is in the best interests of the child and that:
The neglect or abuse suffered by the child presented a serious and substantial threat to his life, health or development; and It is not reasonably likely that the conditions that resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the childs safe return to his parent within a reasonable period of time. To make this determination, the court shall take into consideration the efforts made to rehabilitate the parent by any public or private social, medical, mental health or other rehabilitative agencies prior to the childs initial placement in foster care. Proof of any of the following shall constitute prima facie evidence of this condition:
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The parent is suffering from a mental or emotional illness or mental deficiency of such severity that there is no reasonable expectation that the parent will be able to undertake responsibility for the care needed by the child in accordance with his age and stage of development; or The parent has habitually abused or is addicted to intoxicating liquors, narcotics or other dangerous drugs to the extent that proper parental ability has been seriously impaired and the parent, without good cause, has not responded to or followed through with recommended and available treatment that could have improved the capacity for adequate parental functioning; or The parent, without good cause, has not responded to or followed through with appropriate, available and reasonable rehabilitative efforts on the part of social, medical, mental health or other rehabilitative agencies designed to reduce, eliminate or prevent the neglect or abuse of the child. Note: See Virginia Code 16.1-228 (A) for definition of abused or neglected child. Pursuant to Virginia Code 16.1-283 (C)(1), the residual parental rights of a parent of a child placed in foster care as a result of court commitment, an entrustment agreement or other voluntary relinquishment by the parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child, and that:
The parent has, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the childs placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent and to strengthen the parent-child relationship. Proof that the parent has failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition.
Pursuant to Virginia Code 16.1-283 (C)(2), the residual parental rights of a parent of a child placed in foster care as a result of court commitment, an entrustment agreement or other voluntary relinquishment by the parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child, and:
The parent, without good cause and notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies, has been unwilling or unable within a reasonable period not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditions that led to or required continuation of the childs foster care placement. VIRGINIA DISTRICT COURT MANUAL
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To make this determination, the court shall take into consideration the efforts made to rehabilitate the parent by any public or private social, medical, mental health or other rehabilitative agencies prior to the childs initial placement in foster care. Proof that the parent, without good cause, has failed or been unable to make substantial progress towards elimination of the conditions that led to or required continuation of the childs foster care placement in accordance with their obligations under and within the time limits or goals set forth in a foster care plan filed with the court or any other plan jointly designed and agreed to by the parent and agency shall constitute prima facie evidence of this condition.
Virginia Code 16.1-283 (D). The residual parental rights of a parent of a child found by the court to be neglected or abused upon the ground of abandonment may be terminated if the court finds by clear and convincing evidence that it is in the best interests of the child and that all of the following prongs are satisfied:
Child was abandoned under such circumstances that either the identity or the whereabouts of the parents or parents cannot be determined; and Childs parent, guardian or relatives have not come forward to identify such child and claim a relationship to the child within three months following the issuance of a court order placing the child in foster care; and Diligent efforts have been made to locate the childs parent or parents without avail.
Pursuant to Virginia Code 16.1-283 (E), residual parental rights of a parent of a child who is in the custody of a local board or licensed agency may be terminated by the court if the court finds by clear and convincing evidence that it is in the best interests of the child and the court makes any of the following findings. The custodial agency may not be required to make reasonable efforts to reunite the child with a parent under these circumstances:
The residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; or The parent has been convicted of an offense under the laws of the Commonwealth of Virginia or a substantially similar law of any other state, the United States or any foreign jurisdiction which constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to
The Court Improvement Program recommends that consideration be given to consider the type of evidence required to prove the underlying criminal offense that provides the ground for termination of parental rights, e.g., certified copy of criminal conviction and proof of relationship.
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commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred or the other parent of the child;
The parent has been convicted Serious bodily injury means bodily injury which involves substantial risk of of an offense under the laws of death, extreme physical pain, protracted the Commonwealth of Virginia and obvious disfigurement, or protracted or a substantially similar law of loss or impairment of the function of a any other state, the United bodily member, organ or mental faculty. States or any foreign jurisdiction which constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or The parent has subjected any child to aggravated circumstances.
Terms of ORDER FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS, district court form DC-531 : A separate order is needed for each parent. The order shall continue or grant custody to DSS or grant custody or guardianship to a relative or other interested individual. In such cases the court shall give consideration to relatives of the child, including grandparents. Va. Code 16.1-283 (A). The order continuing or granting custody to a local board of public welfare or social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto. Va. Code 16.1-283 (A). When transferring custody of the child to a relative or other interested individual, the SUPPLEMENT TO ORDER TRANSFERRING CUSTODY, district court form DC-559, should be used for the findings and orders required by Virginia Code 16.1-283 (A1):
The court shall find, after an investigation, that the prospective custodian is one who: is willing and qualified to receive and care for the child; is willing to have a positive, continuous relationship with the child; is committed to providing a permanent, suitable home for the child; and is willing and has the ability to protect the child from abuse and neglect. The courts order shall state these findings. The courts order should further provide for, as appropriate: any terms or conditions that would promote the childs interest and welfare.
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The juvenile court shall schedule a date by The Court Improvement Program recommends that the order be entered as expeditiously as possible in a which the board or termination of parental rights case to promote finality, and agency shall file the so that subsequent actions related to the entry of the order, first written Adoption including appeal and filing of the Adoption Progress Report, Progress Report at the are not delayed. conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or agency to place the child for adoption. Va. Code 16.1-283 (F). The effective date of an order terminating residual parental rights is the date the order is entered, or signed by the judge. Supreme Court of Virginia Rule 1:1. d. Post-hearing Adoption Progress Report A written Adoption Progress Report shall be filed with the juvenile court by the local board or licensed child-placing agency within six months from the date of the final order terminating parental rights and every six months thereafter until a final order of adoption is entered. Va. Code 16.1-283 (F).
The report should detail the progress being made to place the child in an adoptive home. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child.
The court may schedule a hearing on the report with or without the request of a party. Pursuant to Virginia Code 16.1-282.2, the court shall review a foster care plan every twelve months from the date of the permanency planning hearing held pursuant to Virginia Code 16.1-282.1 for any child on whose behalf a petition to terminate parental rights has been granted, filed or ordered to be filed but who remains in the legal custody of a local board of social services or a child welfare agency. DSS shall file a PETITION FOR FOSTER CARE REVIEW HEARING, district court form DC-554, pursuant to the provisions of Virginia Code 16.1-282. DSS shall file a written Adoption Progress Report pursuant to Virginia Code 16.1283 (F) with the petition for foster care review hearing. Va. Code 16.1-282.2 (A). The FOSTER CARE REVIEW ORDER, district court form DC-555 entered at the conclusion of the hearing held on such petition for review shall state whether reasonable efforts were made to place the child in a timely manner in accordance with the approved foster care plan that established a permanent goal for the child and to complete the steps necessary to finalize the permanent placement of the child. Va. Code 16.1-282.2 (A).
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e. Appeals of Termination of Residual Parental Rights Cases - Relevant Statutes and Procedures Notice of Appeal A DC-581 NOTICE OF APPEAL JUVENILE CIVIL APPEAL must be completed by each appellant to perfect an appeal of a termination of parental rights case. The DC-581 provides for the style of the case to reflect In Re: the childs name in addition to the appellants name and appellants relationship to the child. This form gives notice to parents and court staff that the matter is a civil juvenile appeal and, in the case of a termination of parental rights appeal, notice is given that the case should be set to be heard on the merits within 90 days of the date on the notice of appeal. The notice of appeal also requires information regarding the name of the Guardian ad litem and the attorneys representing the parties as well as an estimation of the time needed for a hearing. There is no bond or fee requirement for the appeal of termination of parental rights cases. Time Requirement In the case of an appeal of a termination of parental rights case, the trial on the appeal is to be held within ninety days of the date an appeal is noted. Va. Code 16.1-296 (D). Transmittal of File to Circuit Court Upon the filing of the notice of appeal, the appeal file must be prepared for transmittal to the circuit court clerks office. Since there is no statute authorizing the withdrawal of a civil juvenile appeal, these cases should be forwarded to the circuit court immediately. The juvenile court should not wait for expiration of the ten-day appeal period for preparation and transmittal of the appeal file. It is recommended that the transmittal of the appeal file be completed within three working days of the filing of the notice of appeal. Appeal File The appeal file includes the TRANSMITTAL FORM DC-575, NOTICE OF APPEAL FORM DC581, Involuntary Termination of Parental Rights Order entered by the juvenile court (DC 531), Petition for the Termination of Parental Rights and all exhibits and other papers filed in the trial of the termination of parental rights case in juvenile court. The documents in the file received from the juvenile court should not be reorganized by the circuit court clerks office since evidence sent forward in the file is in the order received by the juvenile court during the trial. Disposition of Foster Care Case during Circuit Court Appeal The juvenile court retains jurisdiction to hear petitions filed pursuant to 16.1282 (foster care review) and 16.1-282.1 (permanency planning hearing) during the time of an appeal. Orders of the juvenile court shall continue to be reviewed and enforced by the juvenile court until a circuit court, Court of Appeals of Virginia or Supreme Court of Virginia rules differently. Notice of subsequent foster care proceedings involving the child
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is not provided to parents after termination of parental rights, by court order, in juvenile court. 16.1-281(C). Remand of Appeal File The circuit court clerk shall transmit a certified copy of the circuit court order to the juvenile court before or within 21 days of entry of the circuit court final order. (Code of Virginia 16.1.-297) An appeal of the case to the Court of Appeals shall take precedence on the docket of the court. Va. Code 16.1-296 (D). G. REVERSAL OF VOLUNTARY TERMINATION OF PARENTAL RIGHTS A natural parent whose parental rights to a child have been voluntarily relinquished pursuant to a court proceeding may file a petition pursuant to Virginia Code 16.1-241 (K) to seek reversal of the court order terminating parental rights. A petition seeking reversal of a court order terminating parental rights shall not be accepted by the court after the child has been placed in the home of adoptive parents. Transportation of incarcerated witness If the presence of a prisoner is essential to the just adjudication and disposition of a petition seeking reversal of a court order terminating parental rights, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The transportation order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1-276.2. H. CONSENT TO PARENTAL PLACEMENT ADOPTION 1. Requirements for Consent to Adoption Whenever the birth parent or legal guardian wishes to place a child for adoption directly with the adoptive parents, Virginia Code 63.2-1233 requires that: a petition, which may be signed by the petitioners counsel upon information, must be filed in a juvenile and domestic relations district court of competent jurisdiction, and shall be advanced on the docket to be heard within ten days of filing or as soon thereafter as practicable; and a valid consent to the proposed adoption must be executed before the juvenile and domestic relations district court; and
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before accepting consent, the court must determine that The birth parents are aware of alternatives to adoption and that their consent is informed and not coerced. A licensed or authorized child-placement agency has counseled the prospective adoptive parents and they intend to file a petition for adoption and proceed toward a final order of adoption. The birth parents and adoptive parents have exchanged identifying information. Any financial agreement between the parties has been disclosed to the court. No violation of the provisions of Virginia Code 63.2-1218 has taken place. A licensed child placing agency has conducted a home study of the prospective adoptive home and provided the court a copy of a report of the home study, including recommendations regarding the suitability of the placement, and The birth parents have been informed of their opportunity to be represented by legal counsel. The court may appoint counsel for the birth parent(s). Appointment of guardian ad litem: Upon the filing of a petition for acceptance of consent to a parental placement adoption, the court shall appoint a guardian ad litem (GAL) to represent the child using the ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, district court form DC-514. Va. Code 16.1-266 (A). Pursuant to Virginia Code 16.1-266.1, check the list of qualified guardians ad litem maintained by the Office of the Executive Secretary of the Supreme Court before selecting a guardian ad litem. However, if no attorney who is on the list is reasonably available, the judge has discretion to appoint any discreet and competent attorney admitted to practice law in Virginia. 2. Execution and Acceptance of Consent to Adoption Transportation of incarcerated witness: If the presence of a prisoner is essential to the just adjudication and disposition of a petition for a parental placement adoption consent hearing, the judge may issue a CUSTODIAL TRANSPORTATION ORDER, district court form DC-354, upon the request of a party or the courts motion. The transportation order may direct the Director of the Department of Corrections or the administrator of the state, local or regional correctional institution to deliver the witness from a state, local or regional correctional institution to the sheriff of the jurisdiction of the court issuing the order. The order shall be executed in accordance with Virginia Code 8.01-410. Va. Code 16.1276.2. When the requirements for a valid consent to adoption have been met pursuant to Virginia Code 63.2-1232 with respect to at least one birth parent and the proposed adoptive child is at least 10 days old, the birth parent(s) shall execute consent to the proposed adoption while before the court in person and in the presence of the prospective adoptive parents. If the requirements have not been met, the judge must refer the birth parent to a licensed child-placing agency.
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The judge may accept consent to the proposed adoption and then shall transfer custody of the child to the prospective adoptive parents, pending notification to any non-consenting birth parent in accordance with Virginia Code 63.2-1233 (2). There is a rebuttable presumption that a child born to a married birth mother is the child of her husband and his consent shall be required. The courts order accepting consent to the proposed adoption should clearly evidence compliance with the applicable notice and consent requirements of Virginia Code 63.21233. The court shall review its order accepting consent to a parental placement adoption at least annually until the final order of adoption is entered. If consent from at least one birth parent cannot be obtained, the court shall deny the petition and determine custody of the child pursuant to 16.1-278.2. If the court denies the petition, the court shall order that any consent given for the purpose of placing the child for adoption shall be void and, if necessary, determine custody of the child. 3. Exceptions to Consent Hearing Requirements A petition for a consent hearing filed in connection with a parental placement adoption may be granted without the execution of consent by a birth parent before the court in person if: . with respect to a birth father who is not married to the mother at the time of conception or birth, the requirements of Virginia Code 63.2-1233 (1)(a) and (b) are satisfied; or consent of a birth parent whose consent is required pursuant to Virginia Code 63.21202 is withheld contrary to the best interests of the child or is unobtainable, in which case the order waiving the requirement of consent and transferring custody of the child to the prospective adoptive parents shall become effective fifteen days thereafter; or both birth parents have failed, without good cause, to appear at a hearing for which proper notice was given to execute consent; or both birth parents are deceased; or the child was placed by the birth parent(s) with prospective adoptive parents who are relatives identified in Virginia Code 63.2-1233 (6), in which case written consent to the proposed adoption may be accepted without a hearing; or the child was conceived as a result of a criminal offense listed in Virginia Code 63.21233 (7), in which case no consent shall be required from the birth father, nor shall he be entitled to notice of the proceedings.
. . .
When a child has been placed by the birth parent(s) with prospective adoptive parents who are the childs grandparents, adult brother or sister, adult uncle or aunt or adult great uncle
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or great aunt and such child has resided in the home of the prospective adoptive parent(s) continuously for three or more years, the requirements of Virginia Code 63.2-1233 do not apply and consent shall be executed in accordance with Virginia Code 63.2-1202 (E). 4. Revocation of Consent Either consenting birth parent may revoke consent to a proposed adoption for any reason for up to fifteen days from its execution, in writing and filed with the clerk of the court in which the petition was filed. Va. Code 63.2-1234 (1). Any party may revoke consent to a proposed adoption prior to the final order of adoption upon proof of fraud or duress; or after placement of the child in an adoptive home, upon written, mutual consent of the birth parents and prospective adoptive parents. Va. Code 63.2-1234 (2). I. PROTECTIVE ORDER PROCEDURES, FAMILY ABUSE AND CRIMINAL CASES 1. Definitions Family abuse means any act involving violence, force or threat including forceful detention, which results in physical injury or places one in reasonable fear of serious bodily injury and which is committed by a person against a persons family or household member. Virginia Code 16.1-228. Family or household member means (i) the persons spouse, whether or not he or she resides in the same home with the person, (ii) the persons former spouse, whether or not he or she resides in the same home with the person, (iii) the persons parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren regardless of whether such persons reside in the same home with the person, (iv) the persons mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them then residing in the same home with the person. Virginia Code 16.1-228. The Office of the Attorney General of Virginia has defined cohabitation to exclude persons of the same sex living together. General district courts have jurisdiction to try criminal warrants alleging assault and battery when the defendant and the victim are unrelated persons of the same sex sharing the same residence. Opinion of the Attorney General to The Honorable Everett A. Martin, Jr., Judge, Norfolk Juvenile and Domestic Relations District Court, 1994 Va. AG 60 (July 22, 1994). Stalking is perpetrated when any person who on more than one occasion engages in conduct directed at another person with the intent to place, or with knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault or bodily injury to that other person or that other persons family or household member. Va. Code 18.2-60.3.
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2. Firearms and Concealed Handgun Permit A person who is subject to any protective order for family abuse or for stalking is prohibited from transporting or purchasing a firearm. This prohibition also applies to someone who has a concealed handgun permit. A person who is subject to any protective order and who has a concealed handgun permit must surrender that permit to the court that entered the protective order, for the duration of the protective order. The concealed handgun permit will be returned only after the protective order is no longer in effect. A violation of these prohibitions or a failure to surrender a concealed handgun permit is a Class 1 misdemeanor. 3. Nondisclosure of Information about Protected Person
Certain locating information about the person (or people) and family protected by any protective order for family abuse or stalking must not be disclosed, except under certain conditions. The residential address, telephone number and place of employment of the person (or people) and family protected by a protective order shall not be disclosed unless that information is required by law enforcement purposes, required by a Rule of the Supreme Court or permitted by the court for good cause. District court form DC-621 NON-DISCLOSURE ADDENDUM, is used to protect the information. 4. Protective Orders - Family Abuse a. Emergency Protective Orders for Family Abuse An emergency protective order may be requested in person by a petitioner or a law enforcement officer or by telephone by a law enforcement officer of any circuit, general district or juvenile and domestic relations district court judge or by a magistrate. Va. Code 16.1-253.4. Grounds for issuance are a finding that (i) a warrant for violation of Virginia Code 18.2-57 has been issued and there is probable danger of further acts of family abuse or (ii) reasonable grounds exist to believe that respondent has committed family abuse and there is probable danger of a further such offense. Virginia Code 16.1-253.4. An officer requesting an order by telephone writes the request on the form, reads it to the judge, and writes the judges response in the order portion of the form. An emergency protective order will likely also be issued by a magistrate whenever a warrant for a violation of Virginia Code 18.2-57.2 is issued. An emergency protective order, if granted, provides protection to family and household members by prohibiting acts of family abuse, prohibiting such contacts by respondent with family or household members as the judge or the magistrate deems necessary to protect the safety of such persons and/or granting the family or household member possession of the premises occupied by the parties to the exclusion of the respondent. A grant of possession does not affect title to any real or personal property. The order is entered using EMERGENCY PROTECTIVE ORDER-FAMILY ABUSE, district court form DC-626. A copy of the order should be given to the allegedly abused person at the time it is issued and a copy shall be served on the respondent as soon as possible. The executed order is returned to the judge (or magistrate), who reviews it and forwards it within five days from issuance to the clerk of the juvenile and domestic relations district court. The order is indexed in the adult division of CMS as a new case, finalized and filed in the Disposed File. The order is not docketed for hearing by the court.
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As soon as practicable after receipt of an order for service, a local law enforcement agency shall enter the name of the person subject to the order and other appropriate information into the Virginia Crime Information Network (VCIN), along with the date and time of service. Where practical and feasible, the court or magistrate may transfer the information electronically to VCIN. The order expires after 72 hours, or if the 72 hour period expires at a time that the court is not in session, the emergency protective order shall be extended until 5:00 p.m. of the next business day that the juvenile and domestic relations district court is in session. The actual date and time of expiration should be entered on the order when it is issued. If the person in need of protection is physically or mentally incapable of filing a petition for a preliminary protective order or protective order, a law enforcement officer may request an extension of an emergency protective order for an additional time period not to exceed seventy-two hours after expiration of the original order. The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order. A hearing on this motion must be given precedence on the docket. If the order is dissolved or modified, a copy of the dissolution or modification order should be attested and forwarded to the local law enforcement agency and entered in VCIN. b. Preliminary Protective Order for Family Abuse The petitioner (spouse, ex-spouse, or person with whom the abuser also has a child in common, etc.) may initiate a civil action in which he or she seeks a protective order to prevent the abusing adult from further abusing the victim and other family or household member by filing a PETITION FOR PROTECTIVE ORDER-FAMILY ABUSE (ADULT), district court form DC611 with the intake officer or, if the petitioner is represented by counsel, counsel may file the petition with the clerk of the juvenile and domestic relations district court. Va. Code 16.1253.1. When a petition is filed with the intake officer, the person seeking a protective order shall be provided an information sheet that includes an explanation of the conditions, procedures and time limits applicable to various protective orders. The clerk, upon receiving the petition and the NON-DISCLOSURE ADDENDUM, district court form DC-621, should inquire as to whether a preliminary order of protection is being sought. If such an order is sought, an ex parte hearing is scheduled. To issue such an ex parte order, the judge must find that: . the petition alleges: .. . that the petitioner is or has been within a reasonable period of time subjected to family abuse,
the petition is sworn to as an affidavit or is supported by a separate affidavit that good cause for issuing the preliminary order exists. Either (i) an immediate and present danger of family abuse or (ii) evidence sufficient to establish probable cause that family abuse has recently occurred will constitute good cause.
If the judge so finds, then a PRELIMINARY PROTECTIVE ORDER-FAMILY ABUSE, district court form DC-627, is issued with any or all of the conditions imposed on the allegedly abusing person permitted by Virginia Code 16.1-253.1:
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. . . .
Prohibiting acts of family abuse Prohibiting such other contacts between the parties as the court deems appropriate Prohibiting such other contacts with the allegedly abused persons family or household members as the court deems necessary to protect the safety of such persons Granting the petitioner possession of the premises occupied by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession shall affect title to any real or personal property Granting the petitioner temporary possession or use of a motor vehicle owned by the petitioner alone or jointly owned by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession or use shall affect title to the vehicle. Requiring that the allegedly abusing person provide suitable alternative housing for the petitioner and any other family or household member, where appropriate.
The order will also contain the date and time of the hearing (to be held within 15 days from issuance of the order), which is served on the allegedly abusing adult personally. There is no sheriffs fee charged for service of this order. The clerk of court should enter the preliminary protective order into VCIN and forward a copy of the order to the local law enforcement agency which shall complete entry of other appropriate information into VCIN, upon receipt of the order, and upon service shall also enter the date and time of service of the order. The preliminary protective order becomes effective upon service on the allegedly abusing person. Upon request, after the order is entered, the clerk shall provide the petitioner with a copy of the order and information regarding the date and time of service. Either party may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket. If the order is dissolved or modified, a copy of the order of dissolution or modification shall also be attested by the clerk and forwarded to the local law enforcement agency for entry into VCIN. If a hearing is not requested earlier, a full hearing shall be held within fifteen days of issuance of the preliminary protective order. However, the respondent may move to continue the hearing. If the court finds good cause and does not continue the "15 day hearing," the preliminary protective order shall remain in effect until the hearing. Upon granting the continuance, the court should reissue the preliminary protective order, with a new expiration date reflecting the continuance. The conditions of the initial preliminary protective order will be reflected in this subsequent order. This subsequent order must be served on the parties, entered into VCIN by the clerk and forwarded to the local law enforcement agency. It is essential that these tasks be undertaken promptly so that there will be no lapse in the protection to be afforded the petitioner. At the hearing, the court may issue a protective order pursuant to Virginia Code 16.1-279.1 if the court finds that the petitioner has proven the allegation of family abuse by a preponderance of the evidence.
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c. Protective Order for Family Abuse If a preliminary ex parte protective order has been issued, a full adversarial hearing will be scheduled within fifteen days at which time a protective order may be issued. If there has been no preliminary protective order, a petitioner may file a petition for a protective order, PETITION FOR PROTECTIVE ORDER-FAMILY ABUSE (ADULT), district court form DC-611, alleging that the petitioner has been the victim of family abuse and that abuse is likely to occur in the future. A full adversarial hearing must be held and the clerk must issue a SUMMONS, district court form DC-510, to the respondent. If the judge finds by a preponderance of the evidence that the other adult has committed family abuse, then the judge may enter a protective order for a specified period not to exceed two years using the PROTECTIVE ORDER - FAMILY ABUSE, district court form DC-650. Va. Code 16.1-279.1. Any number or all of the conditions established in 16.1-279.1(A) can be imposed on the respondent and are included in the form order: . . . . Prohibiting acts of family abuse Prohibiting such other contacts between the parties as the court deems appropriate Prohibiting such other contacts with the allegedly abused persons family or household members as the court deems necessary to protect the safety of such persons Granting the petitioner possession of the premises occupied by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession shall affect title to any real or person property Granting the petitioner temporary possession or use of a motor vehicle owned by the petitioner alone or jointly owned by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession or use shall affect title to the vehicle. Requiring that the allegedly abusing person provide suitable alternative housing for the petitioner and any other family or household member, where appropriate Ordering the Respondent to participate in treatment, counseling or other programs as the court deems appropriate Any other relief necessary for the protection of the petitioner and family or household members of the petitioner, including a provision for temporary custody or visitation of a minor child.
. . .
A temporary child support order may be issued for the support of any children of the petitioner whom the respondent is obligated to support. The temporary support order is issued using page two of the PROTECTIVE ORDER FAMILY ABUSE, district court form DC-650. The petitioner should file a support case with the court for full evaluation of the issue of support and the issuance of an ORDER OF SUPPORT. The temporary support order terminates upon determination of support pursuant to Virginia Code 20-108.1.
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The order may be for a specified period, not to exceed two years. A copy of the order should be served on the Respondent and given to the petitioner as soon as possible. The clerk should enter the protective order in VCIN and forward an attested copy of the order to the local police or sheriffs office, which shall, upon receipt of the order, enter any other appropriate information into VCIN. The court may assess costs and attorneys fees against either party, regardless of whether an Order of Protection has been issued as a result of full hearing. Va. Code 16.1-279.1(D). As with the other protective orders, either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to dissolve or modify a protective order shall be given precedence on the docket. If an order of dissolution or modification is issued, an attested copy should to be forwarded to local law enforcement for entry into VCIN. d. Violation of a Family Abuse Protective Order Except as otherwise provided in Virginia Code 16.1-253.2 (see below), violation of the terms of a protective order, whether it be an emergency protective order, a preliminary protective order, an order of protection or an order issued pursuant to Virginia Code 20103(B), shall constitute contempt of court. Violations of a protective order when the order prohibits the abusing adult from going on or remaining upon land, buildings or premises shall constitute trespass, a class 1 misdemeanor, under Virginia Code 18.2-119. In addition to that sanction, violations of a protective order that prohibits the abusing adult from going on or remaining upon land, buildings or premises, further acts of family abuse or which prohibits contact between the respondent and the respondents family or household member shall constitute a class 1 misdemeanor. Va. Code 16.1-253.2. If a respondent commits an assault and battery upon a protected party that results in serious bodily injury, or violates the protective order by furtively entering the home of any protected party while the party is present or by entering and remaining in the home of the protected party until the party arrives, he or she is guilty of a Class 6 felony. Upon conviction under Virginia Code 16.1253.2, the person shall be sentenced to a term of confinement and in no case shall the entire term imposed be suspended. In addition, upon conviction under this section, the court shall enter a protective order pursuant to Virginia Code 16.1-279.1 for a specified period not exceeding two years from the date of the conviction. Under Virginia Code 18.2-308.1:4, the Respondent shall not purchase or transport any firearm while a protective order is in effect. Violation of this section is a class 1 misdemeanor and will result in forfeiture of the firearm in question. 5. Protective Orders Stalking a. Emergency Protective Order Stalking Any judge or magistrate may issue a written or oral ex parte emergency protective order prohibiting further acts of stalking against an alleged victim and prohibiting such contact with the allegedly stalked person or with the allegedly stalked persons family or household members
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as deemed necessary to protect their health and safety and requiring such other conditions as the judge or magistrate deems necessary to prevent further acts of stalking, communication or other contact of any kind by the Respondent. See EMERGENCY PROTECTIVE ORDER STALKING/SERIOUS BODILY INJURY, district court form DC-382. An emergency protective order can also be issued to protect an alleged victim of a criminal offense that resulted in serious bodily injury to the alleged victim. Generally, requests for a protective order in this circumstance would not be within the jurisdiction of the juvenile and domestic relations district court. If the persons involved come within the jurisdiction of the juvenile and domestic relations district court, the appropriate order to be issued would be a family abuse emergency protective order. An emergency protective order should be issued when an alleged victim or a law enforcement officer asserts under oath to a judge or magistrate and on that assertion or other evidence the judge or magistrate finds: . . there is probable danger of a further such offense being committed by the Respondent against the allegedly victim, and a warrant for the arrest of the Respondent has been issued.
A law enforcement officer may request an emergency protective order orally, in person or by electronic means. Such emergency orders are processed similarly to EMERGENCY PROTECTIVE ORDERS FAMILY ABUSE (see Section 4A, above). The order expires after 72 hours, or if the 72-hour period expires at a time that the court is not in session, the emergency protective order shall be extended until 5:00 p.m. of the next business day that the court that issued the order is in session. The actual date and time of expiration should be entered on the order. The respondent may at any time file a motion for a hearing to dissolve or modify the order, which shall be given precedence on the docket. After the order is issued for service, the law enforcement agency shall enter the name of the person and other required information into VCIN as well as the date and time of service. b. Preliminary Protective Order Stalking If the persons involved come within the jurisdiction of the juvenile court a PETITION FOR district court form DC-383, may be filed. When the petitioner alleges that he/she has been within a reasonable period of time subjected to stalking and that a warrant has been issued for the arrest of the alleged stalker, a preliminary protective order may be issued. The order may be issued ex parte when supported by an affidavit or sworn testimony before a judge or intake officer, upon good cause shown. Either (i) immediate and present danger of stalking or (ii) evidence sufficient to establish probable cause that stalking has recently occurred shall constitute good cause. A preliminary protective order may prohibit further acts of stalking, prohibit contact with petitioner or petitioners family or household members as the court shall direct and require such other conditions as the court deems necessary to prevent further acts of stalking, communication or other contact of any kind by the Respondent. Va. Code 19.2-152.9. This order is entered using PRELIMINARY PROTECTIVE ORDER STALKING/SERIOUS BODILY INJURY, district court form DC-384.
A PROTECTIVE ORDER STALKING/SERIOUS BODILY INJURY,
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A copy of the preliminary protective order shall be served on the alleged stalker in person as soon as possible. The preliminary protective order becomes effective upon personal service on the alleged stalker. The clerk should enter the preliminary protective order in VCIN and forward the order to the local law enforcement agency. As soon as possible after receipt of the preliminary protective order by the law enforcement agency, any other appropriate information shall be entered into VCIN, including the date and time of service when made. No fees shall be charged for filing or service of this order. Upon request, the clerk shall provide the petitioner with a copy of the order and information regarding the date and time of service. A hearing shall be held within 15 days of the issuance of the order and the order should specify a date for the full hearing. However, the respondent may move to continue the hearing. If the court finds good cause and does not continue the "15 day hearing," the preliminary protective order shall remain in effect until the hearing. Upon granting the continuance, the court should reissue the preliminary protective order, with a new expiration date reflecting the continuance. The conditions of the initial preliminary protective order will be reflected in this subsequent order. This subsequent order must be served on the parties, entered into VCIN and forwarded to the local law enforcement agency. It is essential that these tasks be undertaken promptly so that there will be no lapse in the protection to be afforded the petitioner. At the full hearing, the court may issue a protective order pursuant to Virginia Code 19.2152.10 if the court finds that the petitioner has proven the allegation of stalking by a preponderance of the evidence. The procedures for dissolution and modification of the order are the same as a preliminary protective order for family abuse. c. Protective Order Stalking A protective order, in response to stalking, may be issued upon the issuance of a warrant for the respondent for violation of Virginia Code 18.2-60.3, or a hearing held pursuant to a petition and the issuance of a preliminary protective order, or a conviction of the respondent for a violation of Virginia Code 18.2-60.3.
Virginia Code 19.2-152.10. If a hearing is held pursuant to a petition, the court must find that the petitioner has proven the allegation of stalking by a preponderance of the evidence The order is entered using PROTECTIVE ORDER STALKING/SERIOUS BODILY INJURY, district court form DC-385. This order may prohibit further acts of stalking, prohibit further contact with petitioner and petitioners family or household members and require any other relief necessary to prevent further acts of stalking, communication or other contact of any kind by the Respondent. The order may be issued for a period of up to two years. The order should be entered in VCIN and a copy of the protective order shall be served on the respondent and provided to the petitioner as soon as possible. The order shall be forwarded to local law
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enforcement for any other appropriate information to be entered into VCIN. Either party may, at any time, file a motion requesting a hearing to dissolve or modify the order. Proceedings to dissolve or modify a protective order should be given precedence on the courts docket. No fees shall be charged for filing or serving these petitions or orders. d. Violations of Stalking Protective Orders Except as otherwise provided in Virginia Code 18.2-60.4 (see below), violation of a protective order shall be punishable as contempt of court. Any person who violates any stalking protective order is guilty of a Class 1 misdemeanor. Conviction of this misdemeanor bars a finding of contempt for the same act. Va. Code 18.260.4. In addition to the other penalties under Virginia Code 18.2-60.4, the court shall, upon conviction, enter a protective order pursuant to Virginia Code 19.2-152.10 for a specified period not to exceed two years from the date of conviction. In addition, violations of a protective order when the order prohibits the alleged stalker from going on or remaining upon land, buildings or premises shall constitute trespass, a class 1 misdemeanor, under Virginia Code 18.2-119. Under Virginia Code 18.2-308.1:4, the Respondent shall not purchase or transport any firearm while a protective order is in effect. Violation of this section is a class 1 misdemeanor and will result in forfeiture of the firearm in question. 6. Foreign Protective Orders a. State Provisions Under Virginia Code 16.1-279.1 (E), the petitioner or other person entitled to protection under a foreign protective order (a protective order issued by the court of another state) issued for family abuse may file the order with any juvenile and domestic relations district court. This filing may be accomplished by completing FILING OF FOREIGN PROTECTIVE ORDER, district court form DC-684, and attaching an attested copy of the foreign protective order. The clerk should index the order in the Adult Division of CMS, finalize the case and file the order in the Disposed File unless a motion for modification or enforcement is filed simultaneously, at which time a sub-action number should be assigned to the motion, a hearing date set, and the order and motion filed in the appropriate pending data file. The clerk shall complete the Certification of Filing on the from DC-684, enter the protective order in VCIN and forward a copy to the appropriate local law enforcement agency. If so requested, the clerk shall make a copy of the filed order available to any law enforcement officer. Foreign protective orders prohibiting stalking are also eligible to be filed with the appropriate district court. Virginia Code 19.2-152.10. b. Federal Provisions The federal Violence Against Women Act of 1994 (VAWA), 18 U.S.C. 2265, provides that protection orders issued by a state or Indian tribe shall be afforded full faith and credit by the court of another state or Indian tribe and enforced as if it were the order of the enforcing state or tribe if: VIRGINIA DISTRICT COURT MANUAL
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. . .
the issuing jurisdiction had jurisdiction over the parties and over the subject matter reasonable notice and opportunity to be heard was given to the person against whom the order is sought sufficient to protect that persons right to due process. if the issuing jurisdiction has entered an ex parte order of protection, the notice and opportunity to be heard was provided within the time required by law of the issuing courts jurisdiction and in any event within a reasonable time after the order is issued, sufficient to protect the respondents due process rights.
This law further provides that a protection order issued against the person who filed a petition for protection against her/his spouse or intimate partner (otherwise known as mutual protection orders) is not entitled to full faith and credit if . . no cross or counter petition, complaint or written pleading was filed seeking such relief; or no cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order. Definitions applicable to the federal law are . spouse or intimate partner - a spouse, former spouse, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited with the abuser as a spouse, and any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the state in which the injury occurred or where the victim resides. Protection orders include any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with, or physical proximity to, another person.
Any order entered in response to a complaint, petition or motion filed by or on behalf of a person seeking protection, whether it be civil or criminal, temporary or final, is entitled to full faith and credit under VAWA. Under VAWA, registration of the protective order or notification of the appropriate law enforcement agency is not required. When enforcing a foreign protective order, the enforcement mechanisms available to the court, such as mandatory arrest or whether it is handled in a criminal or civil forum, are determined by the law of the enforcing state while the substantive provisions and relief granted in the order, such as duration, persons eligible for relief, use of property included in the order, are determined by the issuing jurisdiction.
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7. Criminal Cases in Juvenile and Domestic Relations District Court Criminal offenses tried in juvenile and domestic relations district court include crimes committed either by a family member in which another family member is the victim or against a child when the person accused is 18 years or older. Violations of the Child Restraint Devices Act are processed on a Virginia Uniform Summons as if they were adult criminal cases. Criminal case procedures in juvenile and domestic relations district court are the same as the procedures in criminal cases in general district court as presented in Section VI, CRIMINAL CASE PROCEDURES, including assessment of costs on appeal and preparation of victim impact statements. Virginia Code 16.1-259. Specific questions concerning adult criminal cases in the juvenile and domestic relations district court should be referred to Section VI, CRIMINAL CASE PROCEDURES, of this manual. a. Crimes against a child Any crime committed by an adult against a person under the age of 18 falls within the jurisdiction of the juvenile and domestic relations district court. Misdemeanor cases are tried by the juvenile and domestic relations district court while a preliminary hearing is held in this court in such felony cases. b. Criminal family abuse cases The current jurisdictional provisions include all offenses in which one family or household member is charged with an offense in which another family or household member is the victim. The same facts that allow the initiation of a civil abuse petition may also constitute a criminal offense under Virginia Code 18.2-57.2, assault and battery against a family or household member. If the petitioner seeks to use criminal process, the matter is handled as a criminal offense for case processing. It should be noted that when a warrant is issued for a violation of Virginia Code 18.2-57.2, the magistrate shall issue an emergency protective order pursuant to Virginia Code 16.1-253.4, except that when the alleged abuser is a minor, an emergency protective order is not required. In addition, if a warrant is issued under another statute, an alleged abuser adult, if arrested and charged with a criminal violation, may have as a condition of bail that his or her contacts with family or household members (such as the victimized person) be restricted for up to 72 hours. A violation of Virginia Code 18.2-57.2, assault and battery on a family or household member, is a Class 1 misdemeanor. However, on a third or subsequent conviction if the warrant, information or indictment alleged that the person has previously been convicted twice of assault and battery against a family or household member or of a similar offense under the law of another jurisdiction within twenty years of the third or subsequent offense and each of the prior convictions occurred on different dates, such person shall be guilty of a class 6 felony. A charge of assault and battery against a family or household member may not be dismissed by accord and satisfaction under Virginia Code 19.2-151. In addition, upon conviction under this section, the court shall enter a protective order pursuant to Virginia Code 16.1-279.1 for a specified period not exceeding two years from the date of the conviction. Under Virginia Code 18.2-57.3, the court may, without entering a judgment of guilt, defer further proceedings and place the person on probation upon terms and conditions if: . the person is over eighteen,
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the person has not previously been convicted of any offense relating to assault and battery against a family member under the laws of this state or any other state or any statute of the United States or any local ordinance, the person has not previously had a proceeding against him for violation of such a statute, law or ordinance dismissed as provided in this section, the person pleads guilty to or enters a plea of not guilty to violation of Virginia Code 18.2-57.2 and the court finds that the facts justify a finding of guilt, and the accused consents.
. . .
As a term or condition of probation, the court may require, where assessment or evaluation services are available, the accused to be assessed or evaluated and, based on the results of the assessment or evaluation, require the accused to enter an education or treatment program, if available. When assessment or evaluation services are not available, the court may require education or treatment services that are in the opinion of the court, best suited to the needs of the accused. The person entering the program shall be required to pay all or part of the costs of the program, including any cost of the assessment, evaluation, testing, education and treatment, based on the accuseds ability to pay unless the person is determined to be indigent by the court. The court may order that the defendant be placed in a local community-based probation program, if such program is available. As a condition of local community-based probation, the court shall require that the accused successfully complete all education or treatment programs required. The court shall further order the defendant to be of good behavior during the period of supervised probation and for a period of not less than two years following the completion of probation. The court shall order the defendant to be of good behavior for a period of not less than two years following the finding of facts that would justify a finding of guilt when no supervised probation is ordered. The person shall be ordered to report to the original arresting law enforcement agency for fingerprinting if it was not done at the time of arrest. Upon violation of a term or condition of supervised probation or of the period of good behavior, the court may enter an adjudication of guilt and impose sentence. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal in this instance shall be without adjudication of guilt and is a conviction only for purposes of applying this section in subsequent proceedings and for purposes of 18.2-308. The dismissed charges shall not be eligible for expungement under Virginia Code 19.2-392.2. Virginia Code 18.2-57.4 requires that the court report any conviction of a member of the United States Armed Forces under Virginia Code 18.2-57.2 to family advocacy representatives of the United States Armed Forces. A report is generated by the case management system to be mailed to the appropriate representative. The names and addresses of the family advocacy representatives are contained on a list distributed by the Technical Assistance Department of the Office of the Executive Secretary.
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J.
CUSTODY, VISITATION AND SUPPORT The authority of the juvenile court to adjudicate matters involving the custody, visitation, support, control or disposition of a child is not limited to the consideration of petitions filed by a mother, father or legal guardian, but shall include petitions filed at any time by any party with a legitimate interest, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members. Va. Code 16.1-241(A). Separate petitions should be used for custody and visitation and support issues regarding the same child. Petitions should not intermingle custody, visitation and support proceedings. Separate pleadings should be filed and uniform state forms should be used. Witness subpoenas and subpoenas duces tecum may be issued by attorneys in these proceedings. Va. Code 8.01-407, 16.1-265. For a more detailed discussion of these subpoenas, see Chapter VII, section E. 3.b. 1. Custody and Visitation Circuit courts and juvenile and domestic relations district courts have concurrent jurisdiction in custody and visitation matters; however, when a divorce suit is filed in which custody or visitation is at issue, only the circuit court has jurisdiction to enter orders unless both spouses consent to referring custody and visitation matters to the juvenile and domestic relations district court or until the circuit court, pursuant to Virginia Code 20-79(c) transfers the case to the juvenile and domestic relations district court. Interstate custody cases are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is a multi-state uniform law that governs cases involving custody and visitation where the interested parties live in different states or countries or where a custody or visitation order has been entered in another state and one party is requesting enforcement in a Virginia court. a. Case Initiation Proceedings concerning the custody of and rights to visitation with a child are instituted by a petition filed with the intake officer or if an attorney is filing the petition, with the clerks office of the juvenile and domestic relations district court. The standard PETITION, district court form DC-511, should be used for this purpose. A separate petition should be filed for custody and for visitation and for each child. The petition must be sworn to and include the childs name, age, date of birth and address mothers name and address fathers name and address current custodians name and address specific facts that bring the child into the courts jurisdiction
The Code of Virginia specifically permits anyone, including grandparents, stepparents, former stepparents, and other blood relatives and family members with a legitimate interest (which shall be broadly construed to include the childs best interest) to petition for custody or visitation. Va. Code 16.1-241(A). This same code section also identifies those who do not by statute have a legitimate interest. Upon the initial commencement of a custody or visitation case, a filing fee of $25.00 must be paid unless the petitioner is granted in forma pauperis status. Only one $25.00 fee will be required for all custody and visitation petitions simultaneously initiated by a single petitioner.
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The fee should be paid to the clerk not the intake officer and no hearing should be set in the case until this fee is paid or in forma pauperis status has been granted. In cases in which the custody of a child (including those children to whom a duty of support is owed under Virginia Code 20-61) is an issue to be determined, the petitioner (and other parties filing pleadings) shall also file a completed AFFIDAVIT (UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT), district court form DC-620, with the initial pleadings in both interstate and intrastate cases. A child custody proceeding is defined as a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear . . . [but] does not include a proceeding involving juvenile delinquency. When an affidavit is submitted, If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child. In such a hearing the court shall make a written finding that the disclosure is or is not in the interest of justice. Such hearing and written finding of the issue of disclosure shall be held and made by the court within fifteen days of the filing of a pleading. Va. Code 20-146.20. District court form DC-620, AFFIDAVIT (UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT), contains a vehicle for a party to make the appropriate allegations regarding the possible harm which may ensue from disclosure of identifying information. In such an instance, the protected information must not be included in the affidavit or pleading. That protected information must be sealed and not disclosed, unless after a hearing the court directs that it may be disclosed. Form DC-621, NON-DISCLOSURE ADDENDUM should be used to capture the protected information. If the AFFIDAVIT indicates involvement by a court of any other state or country in the determination of custody or visitation (this will be indicated by a yes answer to any of the questions on page 1 of the AFFIDAVIT) or if the child has not resided in Virginia for the past six months, the UCCJEA would apply. See subsection e. of this section. Proper venue for custody and visitation cases can be determined by reference to Virginia Code 16.1-243 which is discussed in detail at Section B., Venue, in this Chapter of the DISTRICT COURT MANUAL. Following initiation of a custody case through the filing of a petition, the clerks office performs several pre-trial procedures to properly prepare the case for court. The clerks office
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will complete the indexing and filing functions by assigning a case number and entering the case into the automated system. Following the assignment of a case number, the clerks office should issue a SUMMONS, district court form DC-510 with a copy of the PETITION and the UCCJEA affidavit to the juvenile if the juvenile is twelve years of age or older to the parents, guardian, legal custodian or other person standing in loco parentis to such other persons as appear to the court to be proper or necessary parties to the proceedings where the custodian is summoned and such person is not the parent of the juvenile, the parent shall also be served with a summons.
If a summons is issued for a teacher or other school personnel and the summons will be served on school property, it must be served by a sheriff or deputy sheriff. If notice is to be served out of state, it should be in a manner calculated to give actual notice, and may be by: Personal service in the manner provided for service of process in Virginia or in the other state. Certified or registered mail, return receipt requested, addressed to the person to be served. Order of publication if other means are ineffective.
Proof of service outside Virginia may be by: Affidavit by process server or as provided by Virginia law. Receipt signed by addressee if notice sent by mail.
A $12.00 service fee is charged for summoning a witness in a custody or visitation case. Following the issuance of the SUMMONS, the clerks office should attach the original petition, the affidavit, copies of the summonses and file the case in the pending court date file. Upon receipt of the returns on the summonses, the returns should be filed with the case papers. b. Pretrial The clerks office will prepare the docket of pending cases prior to the court date by: Retrieving cases from the pending court files for cases to appear on the docket. Printing a docket via CMS as per the instructions in the CMS USERS MANUAL.
Counsel cannot be appointed by the court for the parties in these cases. However, counsel or a guardian ad litem may be appointed to represent the child. The court may not appoint counsel or a guardian ad litem for the child in custody cases where each of the persons claiming
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a right to custody is represented by an attorney unless the court finds that the interest of the child are not being adequately represented. Va. Code 16.1-266. Prior to the hearing, the court may order a social history report, using the ORDER FOR INVESTIGATION AND REPORT, district court form DC-542, which the court service unit or other entity must complete and file with the court at least five days prior to the hearing. In addition, a court may order an independent mental health or psychological evaluation to assist the court in its determination. Payment of the costs of this evaluation should be borne by the parties as directed by the court. While parentage determinations can be a separate cause of action or may be an issue in a custody or visitation case, it is most frequently litigated in juvenile and domestic relations district courts in child support cases; therefore, it is discussed in detail in the section on Paternity Determinations, below, which should be consulted when a parentage case is filed or a parentage issue is litigated. The court may enter a pendente lite order to provide for the custody and maintenance of minor children of the parties pending a final determination in the custody and visitation proceedings. Where appropriate, the court shall send the parties to mediation as an alternative to litigation. In custody and visitation matters, the goals of mediation may include the development of a proposal addressing the childs residential schedule and care arrangements, and how disputes between the parents will be handled in the future. See, 3. Mediation in Custody and Support Cases, below. The parties to a contested custody or visitation case must attend an educational seminar or other similar program on the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. Parties to uncontested cases may be required to attend a seminar if the courts finds good cause. Va. Code 16.1-278.15. See, 4. Educational Seminars in Custody and Support Cases. c. Trial District court form DC-573, ORDER FOR CUSTODY/VISITATION GRANTED TO INDIVIDUALS, has been developed to memorialize the courts order regarding custody and visitation. In determining custody, the court shall give primary consideration to the best interests of the child. There is no presumption or inference of law in favor of either parent. When appropriate, in keeping with the best interests of the child, the court should assure minor children frequent and continuing contact with both parents. In cases where someone other than a parent is requesting custody or visitation with the child, the court shall give due regard to the primacy of the parent-child relationship, but may, upon a showing of clear and convincing evidence that the best interest of the child would be served, award custody or visitation to any other person with a legitimate interest. In awarding custody, the court may award sole custody to one party - one person retains responsibility for the care and control of the child and has primary authority to make decisions concerning the child; or
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joint custody joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the childs primary residence may be with only one parent joint physical custody where both parents share physical and custodial care of the child, or any combination of joint legal custody and joint physical custody that the court deems to be in the best interest of the child.
. .
In the disposition of visitation matters, the judge may provide visitation privileges for grandparents, stepparents and other family members. In determining the best interest of the child with regard to custody or visitation, the court shall consider the age and physical and mental condition of the child, keeping in mind the childs changing developmental needs, the age and physical and mental condition of each parent, the existing relationship between each parent and each child, considering the positive involvement with the childs life and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child, the needs of the child, considering other important relationships of the child including siblings, peers, extended family members and others, the role that each parent has played and will play in the future in the upbringing and care of the child, the propensity of each parent to actively support the childs contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child, the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such preference, any history of family abuse. If the court finds a history of family abuse, the court need not consider the factors in the sixth item listed above, such other factors as the court deems necessary and proper to the determination.
The judge shall communicate to the parties the basis of the decision either orally or in writing. Va. Code 20-124.3. Every order involving custody and visitation must contain as a condition a requirement that any party intending to relocate must give thirty days advance written notice to the court and the other party of any intended change of address, unless the court, for good cause, orders otherwise. Va. Code 20-124.5. In addition, a parent cannot be denied access to the academic or health records of that parents child unless otherwise ordered
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by the court for good cause shown. In preparing orders regarding access to records, be aware that in the case of health care records, access may be denied if the minors treating physician or treating clinical psychologist has made a part of the minors record a written statement that, in the exercise of his or her professional judgment, the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person. Va. Code 20-124.6. A noncustodial parent shall not be denied the opportunity to participate in public school or day care events unless there is a court order prohibiting such contact. Va. Code 22.1-279.5. d. Motions to Modify Motions to modify custody orders may be filed directly with the clerks office of the juvenile and domestic relations district court on the MOTION TO AMEND OR REVIEW ORDER, district court form DC-630. e. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) This Act can be found at Virginia Code 20-146.1 et seq. The court should treat an Indian tribe or a foreign country as a state under this Act. Once it is found that a court has jurisdiction to make a child custody determination under this Act, the case would proceed like any other custody or visitation case. (1) Jurisdiction If a question arises as to whether the court has jurisdiction under this act, the court should determine the appropriate forum for the current dispute following reasonable notice to the parties and opportunity to be heard. The matter should be set for a jurisdictional hearing and a guardian ad litem should be appointed. The grounds for jurisdiction in an initial filing are contained in Virginia Code 20-146.12. Once a court of this Commonwealth has made a child custody determination, it retains exclusive continuing jurisdiction as long as the child, the childs parents or any person acting as a parent continues to live in the Commonwealth. Va. Code 20-146.13. The basis for jurisdiction to modify a child custody determination made by another court can be found at Virginia Code 20-146.14. Even though the exercise of jurisdiction would be improper under Virginia Code 20-146.12 or 20-146.14, the court may exercise temporary emergency jurisdiction if the child is in the Commonwealth and has been abandoned or if it is necessary to protect the child because the child, or a sibling or a parent is subjected to or is placed in reasonable apprehension of mistreatment or abuse. Va. Code 20-146.15. A court of this Commonwealth should not exercise jurisdiction if a proceeding has been commenced in a court of another state. Va. Code 20-146.17. Under the inconvenient forum provisions of the Act, the court may decline to exercise jurisdiction even when jurisdiction may be proper. Va. Code 20-146.18. In any instance where there appears to be a court in another state that would have jurisdiction in the case, the court must communicate with that court prior to exercising jurisdiction. (2) Registration and Enforcement The Act provides that orders issued in other states may be registered in the juvenile and domestic relations district court and enforced as Virginia orders. There are specific requirements for registering such an order. Va. Code 20-146.26. While such a request
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may be made by letter (as long as it meets the statutory criteria and contains the necessary information), a form, REQUEST FOR VIRGINIA REGISTRATION OF A CHILD CUSTODY AND/OR VISITATION DETERMINATION FROM ANOTHER STATE, district court form DC-582, has been developed for the convenience of requestors. One would expect that unrepresented requestors are particularly likely to want to use the form, but it is not required that a request for registration be on this form. Once a child custody determination is registered, a party may use any of the methods available under Virginia law to enforce that determination. (3) Enforcement Proceedings Unique to Foreign Orders There are two proceedings for enforcement included in the Act that are specific to foreign orders. The first is the expedited enforcement proceeding. Va. Code 20-146.29. A verified petition must be filed with an attached certified copy of any order sought to be enforced. The petition must contain certain information that is detailed in subsection B of Va. Code 20-146.29. A summons must be issued immediately to the respondent to appear at a hearing that must be held on the next judicial day after service of the order unless that date is impossible. The summons must contain certain notices to the respondent. Va. Code 20-146.29 (D). The court may also issue any order necessary to ensure the safety of the parties and the child at that time. The court may extend the date of the hearing at the request of the petitioner. Virginia Code 20-146.31 provides the bases for the order in this proceeding. At the time of filing of the petition for an expedited hearing, the petitioner may request that an ex parte order be issued requiring that immediate physical custody of the child be taken. Va. Code 20-146.32. The court must find, based on testimony by the petitioner or another witness, that the child is likely to suffer serious physical harm or be removed from this Commonwealth. An ex parte order must Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based; Direct law-enforcement officers to take physical custody of the child immediately; and Provide for the placement of the child with the petitioner, suitable relative, other suitable interested individual or the local department of social services pending final relief.
A hearing on this order must be held the next judicial day after the ex parte order is issued unless that date is impossible. Under Virginia Code 20-146.33, the court must award the prevailing party necessary and reasonable expenses incurred . . . , including costs, communication expenses, attorneys fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would clearly be inappropriate. 2. Support Cases Support cases in the juvenile and domestic relations district court can be divided into three major categories, criminal non-support, civil support and interstate support cases. Cases of criminal
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non-support include persons charged with deserting, abandoning, or failing to provide support for any dependent, including parents in necessitous circumstances in violation of the law. Cases of civil support include the support aspect of divorce cases which have been transferred entirely or for enforcement purposes to the juvenile and domestic relations district court, non-criminal custody, visitation and/or child or (after separation) spousal support cases which originate in the juvenile and domestic relations district court and child support and child and spousal support matters from the Division of Child Support Enforcement that are appealed to the juvenile and domestic relations court. Interstate support cases encompass those cases where there is a support order that has been entered in another state and one party is requesting either enforcement or modification in a Virginia court. These cases are handled under the Uniform Interstate Family Support Act. a. Case Initiation of In-state Support Cases A support proceeding may be instituted on a petition, on a warrant, or upon the courts own motion, Virginia Code 16.1-259, or by the filing of a certified copy of an administrative support order by the Division of Child Support Enforcement Programs for enforcement purposes. Appeals from the Division of Child Support Enforcement administrative support or enforcement orders are initiated by the filing of a written notice of appeal in the clerks office. Va. Code 63.1-268.1. No sheriffs fee should be charged for service of process in cases involving child support. Petitions for spousal support that contain no request for child support do require a service fee of $12.00 per service issued. An individual is not required to obtain support services from the Department of Social Services prior to filing a petition seeking support for a child, nor is anyone required to obtain support services from the Department of Social Services prior to commencing a judicial proceeding to establish, modify, enforce or collect a child support obligation. Cases seeking support from Virginia residents are initiated in the juvenile and domestic relations district court by a petitioner filing a PETITION FOR SUPPORT (CIVIL), district court form DC-610, or a plaintiff filing a DESERTION/NON-SUPPORT PETITION (CRIMINAL), district court form DC-612, with an intake officer. If the parents are married to each other but parentage is in dispute or if the parents are not married to each other, a PARENTAGE SUPPLEMENT TO PETITION, form DC-641, should be prepared and attached to each copy of the petition. Upon receipt of a petition, the intake officer will: Determine whether the defendant is within the jurisdiction of the court. Determine if the defendant is about to flee the jurisdiction of the court. If the defendant is within the courts jurisdiction: If the defendant is not likely to flee the jurisdiction of the court: . . The petitioner files a PETITION FOR SUPPORT, district court form DC-610, or a DESERTION/NON-SUPPORT PETITION, district court form DC-612. The clerks office, directly or through the court services unit, sets a court date, completes the juvenile SUMMONS, district court form DC-510, to accompany the PETITION FOR SUPPORT, district court form DC-610, or the DESERTION/NON-
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SUPPORT PETITION, district court form DC-612. The clerks office signs the juvenile SUMMONS and issues papers for service of process. If the defendant is likely to flee the jurisdiction of the court: . . . The petitioner files an AFFIDAVIT--DESERTION AND NON-SUPPORT, district court form DC-614, with the clerk or magistrate. The clerks office or magistrate reviews the Affidavit, and if approved, the clerks office or magistrate issues a WARRANT OF ARREST, district court form DC-314. The court later proceeds on the case with a DESERTION/NON-SUPPORT PETITION, which supplants the WARRANT OF ARREST. This Petition is issued at the same time as or shortly after the issuance of the Warrant.
In cases in which custody of a juvenile is also an issue to be determined, see custody and visitation, above. The Division of Child Support Enforcement Programs or an attorney may file a support petition in the clerks office rather than with the intake officer. Va. Code 16.1-260. The clerks office proceeds to handle the case in the same manner as petitions forwarded to the clerks office by the intake officer. When a support order is referred from any circuit court in the state, the juvenile and domestic relations district court has only such authority as is contained in the order of referral. Either party may file a MOTION TO AMEND OR REVIEW ORDER, district court form DC-630, to request review or change of the support order. The clerks office issues notice on the motion or SUMMONS, district court form DC-510, for service by the sheriff on the defendant. Appeals from a hearing officers decision regarding an administrative support order, an order to withhold funds for child support, an income withholding order, or an order to establish a debt owed for AFDC payments may be taken by written appeal filed in the clerks office of the juvenile and domestic relations district court within 10 days from the obligors receipt of the decision. Since it is an appeal de novo, the civil support case processing provision should be followed. The clerk gives notice of the date, time and place of the hearing to the parties (to DCSE if it is representing a party). A certified copy of an administrative order for support entered by the Division of Child Support Enforcement Programs may be filed in the clerks office for enforcement through the court. A separate document certifying the order will be attached to the order when it is filed in the clerks office. The Division of Child Support Enforcement may initiate a review of any support order. Va. Code 63.1-252.2. If a material change in circumstances is found, the Department shall present a modified order to the court that entered the previous order. After notice, either party may request a hearing on the modified order. If neither party requests a hearing within 30 days, the court shall either enter the modified order, effective on the date of service on respondent, or else schedule a hearing on its own motion.
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Process is served in the same manner as used in delinquency cases (whether original jurisdiction or by referral from circuit court). However, in cases filed to enforce child support, if sufficient showing is made that a diligent effort was made to ascertain the location of a party, that party may be served with any required notice by delivery of a copy of the notice to the persons residential or business address, as filed with the court. Va. Code 63.1-250.2:1. The intake officer or clerk with whom the petition or motion is filed shall inquire whether the petitioner is receiving child support services or public assistance. No individual who is receiving support services or public assistance shall be denied the right to file a petition or motion to establish, modify or enforce an order for support of a child. If the petitioner is seeking or receiving child support services or public assistance, the clerk, upon issuance of process, shall forward a copy of the petition or motion together with notice of the court date to the Division of Child Support Enforcement. Intake officers must accept and file all support petitions (Virginia Code 16.1-260); they cannot exercise any discretion in reviewing such petitions. NOTE: While circuit courts and juvenile and domestic relations district courts have concurrent jurisdiction over spousal support and child support (including children to whom a duty of support is owed under Virginia Code 20-61), the filing of a divorce suit in which support of the child or spouse is raised by the pleadings and the setting of a hearing by the circuit court on any such issue for a date certain to be heard within 21 days of the filing of the divorce suit divests the juvenile and domestic relations district court of jurisdiction except to enforce existing orders unless both spouses agree to referral of the matter to the juvenile and domestic relations district court or until the case is transferred pursuant to Virginia Code 20-79(c). Va. Code 16.1-244.
b. Pre-trial Procedures of In-State Support Cases (1) In General Following initiation of a support or a desertion/non-support case through the filing and ultimate service of a petition and summons, the clerks office performs several pretrial procedures to properly prepare the case for court. The clerks office will complete the indexing and filing functions by: Assigning a case number and entering the case into the automated system. Attaching executed process to the case papers.
The clerks office will prepare the docket of pending or support cases prior to the court date by: Retrieving cases from the pending court files for cases to appear on the docket. Printing a docket via CMS as per the instructions in the CMS USERS MANUAL.
The court may require that certain investigations be done and reports made to the court for use in disposing of the matter. See Section 5. Investigations and Reports, below.
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(2) Voluntary Income Assignments Prior to trial, the defendant may wish to enter into a contract providing for a specified level of support and authorizing an assignment of his income to meet the support obligation. Alternatively, the defendant may execute a RESPONDENTS REQUEST FOR INCOME DEDUCTION, district court form DC-615, authorizing such an assignment. Such contracts and assignments are subject to acceptance by the judge. See Trial Procedures, below. (3) Preliminary Support Order A pendente lite order for support may be entered prior to the final adjudication, provided that such proceeding is not ex parte. Va. Code 16.1-278.17. The provisions regarding child support guidelines apply to pendente lite orders. Va. Code 20-108.1, 108.2. (4) Juvenile Putative Fathers If the putative father in a support action is between ages 14 and 18, a guardian ad litem shall be appointed to represent him. Va. Code 20-49.6. These cases are entered in the juvenile division of the case management system of the court instead of the adult division; however, once the juvenile reaches age 18, it is recommended that the court enter an order transferring the case to the adult division of the court. (5) Transfer of Venue Venue in civil support cases may be transferred on the courts own motion or on motion of a party for good cause shown or by agreement of the parties to wherever the respondent resides as defined by Virginia Code 16.1-243(B). If, however, there is a companion custody or visitation case, the venue provisions regarding custody and visitation shall govern. Venue in criminal desertion/non-support cases may be transferred pursuant to Virginia Code 20-83.1 to the locality where the spouse, child or the accused resides. c. Trial Procedures in In-state Support Cases NOTE: In civil support cases, the court can order support only for children under age 18 unless the order requires that support be paid to a child who is a full-time high school student, is not self-supporting, and is living in the home of the parent receiving child support, until the child either reaches age 19 or graduates from high school, whichever occurs first. The court may also order the continuation of support for any child over the age of eighteen who is severely and permanently disabled, unable to live independently and resides in the home of the parent seeking support. Va. Code 16.1-278.15. However, the court may confirm a stipulation or agreement of the parties that extends a support obligation beyond when it would otherwise terminate. Va. Code 20-107.2. In criminal desertion/non-support cases, the court can order support for children 18 years of age or over who are disabled or otherwise substantially incapacitated from earning a living and for children under age 18 and for parents entitled to support. Va. Code 20-61, -88.
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The types of cases to be heard include: Petitions for support Petitions of desertion and non-support
In court, the judge hears the evidence in the case, the respective parties present their pleadings, and the judge renders a NOTE: The filing in circuit court of a divorce suit in judgment based on evidence which custody, visitation or child or spousal support relevant to the individual case. The is raised by the pleadings and a hearing is set by the parties to a contested support circuit court on any such issue for a date certain to be proceeding must attend an heard within 21 days of the filing of the divorce case education seminar or other similar divests the judge of the right to enter further orders program on the effects of separation in the matter but does not divest the judge of the and divorce on children, parenting power to enforce pre-existing orders, prior to the responsibilities, options for conflict entry of a conflicting circuit court order for any resolution and financial period during which the order was in effect. responsibilities. Parties to uncontested cases may be required to attend a seminar if the courts finds good cause. Va. Code 16.1-278.15. See, 4. Educational Seminars in Custody and Support Cases. The judge completes the ORDER OF SUPPORT (CIVIL), district court form DC-628, or the ORDER OF SUPPORT (CRIMINAL), district court form DC-629, as she tries the case. If the putative father fails to appear after being personally served with certain statutory notice alleging that he is the father of the minor child, the court shall proceed to hear evidence as if he were present, but a copy of the order must be served upon him. Va. Code 20-61.3. If the alleged father voluntarily testifies under oath or affirmation that he is the father of a child whose parents are not married, or not married to each other, the judge may require that he complete an acknowledgment of paternity on a form provided by the Division of Child Support Enforcement. Va. Code 20-49.5. Within 30 days after completion of the form, it is sent to the Division of Child Support Enforcement. This provision applies to all cases involving parentage, including cases in which the Division of Child Support Enforcement has no involvement. The completion of this form is an evidentiary process which does not eliminate the necessity for an ORDER DETERMINING PARENTAGE, district court form DC-644. Calculation of the amount of an award of support pursuant to the guidelines for determining support awards contained in Virginia Code 20-108.2 creates a rebuttable presumption as to the correctness of the amount. The only factors that can be used to rebut the presumption are found in Virginia Code 20-108.1(B), and only if the application of the guidelines would be unjust or inappropriate, as determined by using these statutory provisions for rebutting the presumption. The guidelines statute defines many of the terms used in this calculation. Va. Code 20-108.2. The SUGGESTED CHILD SUPPORT GUIDELINES WORKSHEET, district court form DC-637, is used for this purpose. The child support court order, indicating the amount of support and attorneys fees, if any, and containing the information required by Virginia Code 20-60.3 and 20-60.5, is issued by the court and sent to the clerks office.
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The child support order is required to contain: If known, the name, date of birth and social security number of each parent of the child and, if different and if known, the name, date of birth and social security number of each person responsible for support and, unless otherwise ordered, each parent or responsible persons residential address, residential and employer telephone number, drivers license number and name and address of his or her employer. If the mailing address is different from the residential address, it should also be included. When a protective order has been issued, or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order. Va. Code 20-60.3. Names and dates of birth of each child for whom a duty of support is owed by the person responsible for support. The amount of periodic support expressed in fixed sums, together with the payment interval, the date that the payments are due, and the date that the first payment is due. An order for health care coverage, including health insurance policy information, for dependent children provided such coverage is available and can be obtained by the payer at a reasonable cost and a statement as to whether there is an order for health care coverage for a spouse or former spouse. A statement as to whether any unreimbursed medical expenses are to be paid by or reimbursed to a party pursuant to subsections D and G of 20-108.2, and if such expenses are ordered, then the provisions governing how such payment is to be made; if a support arrearage exists, . . . to whom an arrearage is owed and how much the period of time for which such arrearage is calculated a direction that all payments are to be credited to current support obligations first, with any excess applied to the arrearage. Va. Code 20-60.3(8).
All new initial child support orders must include a provision for income withholding unless the obligor/respondent and obligee/petitioner, or the Department of Social Services if applicable, agree in writing to another arrangement. Va. Code 20-79.2. If withholding is not ordered, the court must state the cause shown for such action. An INCOME DEDUCTION ORDER must require payment to the Division of Child Support Enforcement. See Income Deduction discussion below. If child support payments are ordered to be paid through the Department of Social Services, and unless the court for good cause shown orders otherwise, the parties shall give each other and the Department of Social Services at least 30 days written notice, in advance, of any proposed change of address and/or change in telephone number. If support payments are ordered to be paid directly to the obligee/petitioner, the parties shall give each other and the court at least 30 days written notice of any change in address and/or change in telephone number. In addition, the order must include a provision that the obligor/respondent must keep the Department of Social Services or the court,
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whichever is applicable, informed of the name, address and telephone number of his or her current employer. The separate amounts due to each person unless the court orders a unitary award of child and spousal support or the order affirms a separation agreement containing this provision. Notice that the support obligation as it becomes due and unpaid creates a judgment by operation of law. Va. Code 20-60.3(12). Notice that support payments may be withheld as they become due from the obligor/respondents income without further amendment of this order or having to file an application for services with the Department of Social Services. Notice that support payments may be withheld from the obligor/respondents income without further amendment to the order upon the application of services with the Virginia Department of Social Services. Notice that if the obligor becomes delinquent in his support obligations for 90 days or more or the delinquency is for $5,000 or more, a petition may be filed to suspend his professional or occupational license. Va. Code 20-60.3. The order shall also note if either parent holds such a license and the type held. An amount for interest on any arrearage at the judgment rate of interest, unless the obligee waives the collection of interest, in writing, or, in DCSE cases, where the obligor is a minor. Va. Code 20-78.2. Notice that the Department of Social Services may initiate a review of any court support order. Va. Code 20-108.2, 63.1-252.2. The order of support may constitute a lien on real estate pursuant to Va. Code 8.01-460 and 16.1-278.15 if it so states and is recorded in the appropriate circuit court. Support payments received by the Department of Social Services shall be prorated based upon the current amounts due pursuant to more than one judicial or administrative order. Any remaining amounts shall be prorated for accrued arrearages in the same proration as the current support payments. Va. Code 63.1-251.2. If parentage was in dispute, the order may include an equitable apportionment of the expenses incurred on behalf of the child from the date that notice of the case involving parentage was given to the alleged parent, which may be in favor of the parent or agency that incurred the expense. In desertion/non-support cases and in support cases, the judge may award attorneys costs on behalf of any party and require the respondent, if he or she is found to owe a duty of support, to enter into a recognizance. Va. Code 16.1-278.16 and 20-114. In cases in which spousal support is ordered, the court may also enter an appropriate order to protect the welfare of the spouse seeking support. In cases in which the Division of Child Support Enforcement participates in enforcing support, the court may award to the Division its actual blood testing costs, intercept costs, attorneys fees, (as limited by Virginia Code 19.2-163(1)), and other costs (as specified in Virginia Code 63.1-274.10), if the Division prevails.
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An order in a spousal support only case must contain the following provisions: If known, the name, date of birth and social security number of each party and, unless otherwise ordered, each partys residential and, if different, mailing address, residential and employer telephone number, drivers license number, and the name and address of his employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order. The amount of periodic spousal support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due. A statement as to whether there is an order for health care coverage for a party. If support arrearages exist (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current spousal support obligations first, with any payment in excess of the current obligation applied to arrearages. If spousal support payments are ordered to be paid directly to the obligee, and unless the court for good reason shown orders otherwise, the parties shall give each other and the court at least 30 days written notice, in advance, of any change of address and any change of telephone number within 30 days after the change. Notice that in determination of spousal support obligation, the support obligation as it becomes due and payable creates a judgment by operation of law. The ORDER OF SUPPORT, district court form DC-628 may be used in spousal support cases. If a contract or stipulation regarding spousal support has been agreed to by the parties, the order must conform to such contract. If the contract or stipulation is entered into after the order is entered, the order shall be modified to conform to the contract or stipulation. Spousal support shall terminate on the finding of the court that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage, for one year or more, unless (i) otherwise provided by a contract or stipulation, or (ii) such termination would be unconscionable. Va. Code 20-109. Unless otherwise provided by contract or stipulation, spousal support shall cease upon remarriage. A spouse entitled to support has an affirmative duty to notify the payor spouse of remarriage. Failure of the remarried spouse to notify shall entitle the payor to restitution as specified in Virginia Code 20-110. The clerks office, depending on the type of case, will prepare: either an ORDER OF SUPPORT (CIVIL), district court form DC-628, or an ORDER OF SUPPORT (CRIMINAL), district court form DC-629, and an income deduction order unless the court has specifically ordered otherwise.
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if parentage was determined, an ORDER DETERMINING PARENTAGE, district court DC644, with a copy being sent to the Division of Vital Records. if a custody or visitation determination is made, an ORDER FOR CUSTODY/VISITATION GRANTED TO INDIVIDUALS, district court form DC-573. If the case is handled by the Division of Child Support Enforcement or payment to or through the Division of Child Support Enforcement is ordered, send a copy of each of the above orders entered to the local Division of Child Support Enforcement Office. At the request of either parent subject to an administrative support order, the Division shall initiate a review of the order every three years, without requiring proof of a change in circumstances. Va. Code 63.1-250.1. d. Income Deduction Orders All initial child support orders entered after July 1, 1995, shall include an income deduction for support payments, unless the court orders otherwise. An income deduction order may be entered for earlier support orders that are modified. Income deduction orders for support must mirror the provisions of the underlying order of support as to payment provisions and, if ordered, provisions for providing health care coverage through employer-provided health care benefits. If both support payments and health care coverage is ordered, the judge shall determine which provision will take priority if there is insufficient disposable income available to fully cover both provisions. The procedure for entry of such orders is as follows: Unless the court orders otherwise, upon entry of an ORDER OF SUPPORT, the judge enters an INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645A, and the clerk will issue conforming EMPLOYERS INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645B, to each current employer and, when made known to the clerk, to each future employer. If the court did not enter an INCOME DEDUCTION ORDER FOR SUPPORT at the time of entry of the ORDER OF SUPPORT, the Respondent may voluntarily request that support be withheld from his or her income. Voluntary requests will be received by the court either by the filing of RESPONDENTS REQUEST FOR INCOME DEDUCTION ORDER, district court form DC-615, or a contract or other stipulation that provides for such deductions. While entry into such voluntary agreement waives notice as provided in Virginia Code 20-79.1(B), the court can enter such an order only if the court approves the agreement and for good cause shown. A copy shall be either served on the employer, or sent by electronic means. The employer should also be sent COMPLIANCE PROVISIONS - INCOME WITHHOLDING ORDER, district court form DC-646. Along with the employers copy, the employee/obligors copy of the INCOME DEDUCTION ORDER FOR SUPPORT is sent to the employer to be delivered to the employee. If the employer is a corporation, service must be made on an officer, an employee designated by the corporation other than an officer, or if there is no designated employee or if the designated employee cannot be found, upon a managing employee. If the creditor files a certificate that she used due diligence and an officer, designated employee or managing employee cannot be found or the designated or managing employee is the debtor, it may be served on the registered agent or upon the clerk of the State Corporation Commission. If the corporation intends to designate an employee for receipt of service, the corporation shall file the designation with the
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State Corporation Commission. Va. Code 8.01-513. (For address for service of process on federal government entities, see Appendix K, Federal Government--Service of Process.) Employers response of inability to comply. If the employer files or mails within five business days from service of process, a reply that the EMPLOYERS INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645B, does not meet certain statutory requirements, the order is void from transmission of the reply if not materially false. Virginia Code 20-79.3 requires that the order: . . . . . . must contain the respondents correct social security number. must contain a single monetary amount to be deducted for each pay period. must contain the maximum percentage to be withheld. Va. Code 34-29. must not contain information in conflict with the employers current payroll records. must not order payment other than to the Department of Social Services (of which the Division of Child Support Enforcement is a part) or its contractor. must not require that an employer of 10,000 or more persons make payment other than by combined single payment in the case of withholdings from multiple employees.
The reverse side of the EMPLOYERS INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645B, may be used for such purposes. If used, it will frequently tell the clerk the information that is needed to issue a new order with correct information. If the pay period interval on the order differs from the interval reported by the employer or employee, the clerk should use the Payroll Conversion Table (below) approved by the Committee on District Courts and the instructions with the Table to calculate an equivalent single monetary amount for the correct pay period interval as reported by the employer. In so doing, the new order will cause the employer to attempt to deduct enough income to meet the overall level of support even though the timing and amount of payments is not the same as in the INCOME DEDUCTION ORDER OF SUPPORT, district court form DC-645A.
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PAYROLL CONVERSION TABLE

FROM (Original Order) Daily TO (New/ Replacement Order) weekly bi-weekly semi-monthly monthly daily bi-weekly semi-monthly monthly daily weekly semi-monthly monthly daily weekly bi-weekly monthly daily weekly bi-weekly semi-monthly HOW TO CONVERT TO NEW PAYMENT AMOUNT Multiply original order amount by 5. Multiply original order amount by 10. Multiply original order amount by 10.83. Multiply original order amount by 21.67. Divide original order amount by 5. Multiply original order amount by 2. Multiply original order amount by 2.167. Multiply original order amount by 4.3. Divide original order amount by 10. Divide original order amount by 2. Multiply original order amount by 1.083. Multiply original order amount by 2.167. Divide original order amount by 10.83. Divide original order amount by 2.167. Divide original order amount by 1.083. Multiply original order amount by 2. Divide original order amount by 21.67. Divide original order amount by 4.3. Divide original order amount by 2.167. Divide original order amount by 2.
Weekly
Bi-Weekly
Semi-Monthly
Monthly
All other conversions should be made using computations based on 260 workdays during 52 workweeks per year. Fractional amounts (regardless of the size of the fraction) should be rounded up to the next whole cent. Example: $28.942 should be rounded up to $28.95.
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HOW TO CALCULATE NEW INCOME DEDUCTION AMOUNT Step 1 Step 2 Step 3 Step 4 Step 5 Examine original order (Income Deduction Order for Support). Find and transcribe the amount of payment and the pay period interval (frequency of payments) stated in the original order. Identify the new pay period interval (frequency of payment). If same as in original order, no change in payment terms are needed. If different, transcribe the new payment period interval. Find pay period interval from original order in From column, Then move to the right to find the applicable new pay period interval in the To column. Next to the new payroll interval in the To column is the conversion factor under the How to convert to new payment amount. Multiply or divide the amount of payment in the original order by this factor, rounding up any fractional cent. This result is the amount of payment to go into the new Employers Income Deduction Order for Support. If the clerk is unable to make the correction needed to re-issue the Employers Income Deduction Order for Support, DC-645B, then the clerk sends a letter to the payee (whether the payee be an individual or the Division of Child Support Enforcement) which contains this information: when the employers response was received. that the clerk was unable to issue a corrected Employers Income Deduction Order of Support, DC-645B, for the reasons stated in the employers reply, and no further action will be taken to issue a corrected order until the clerk receives the information needed to issue a corrected order or until the payee requests a hearing to obtain such information from the respondent.
If an employer allegedly fails to comply with an income deduction order, then a SHOW CAUSE SUMMONS, district court form DC-360, should be served on the employer alleging the compliance failure. Modification or Termination of Order. Such orders must be modified or terminated when, after notice and a hearing, the court finds that the whereabouts of the children and their custodian have become unknown, or the support obligation to an obligee ceases, or the arrearages have been paid in full. Note: An employer who withholds money from the pay of his employee for payment of child support and wrongfully or fraudulently fails to make payment is guilty of embezzlement. Virginia Code 18.2-111.2.
The clerk should use a MOTION TO AMEND OR REVIEW ORDER, district court form DC-630, to schedule such a hearing. If the whereabouts of the children and custodian are unknown or the support obligation for all obligees in the case cease, the order portion of the form can be completed with a copy being served on the employer. If the support obligation is modified, a new
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INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645A, and an EMPLOYERS INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-645B, for each employer must be entered and the underlying order for support must be examined to determine if it must be modified. e. Post-Trial Procedures Following the case hearing, the clerks office is responsible for updating the docket with the disposition. (1) Appeals The NOTICE OF APPEAL - SUPPORT PROCEEDING, district court form DC-602, should be used to note the appeal of a support case. Appeal bonds are paid when an appeal is filed in a support case only in particular circumstances. No appeal bond shall be required when a party is appealing an order of the juvenile and domestic relations district court except for that portion of any order (1) adjudicating support arrearage or (2) suspending payment of support during the appeal. See Appeals of Support Enforcement Process, below. No appeal is allowed in cases involving support until the party requesting appeal provides a bond in an amount sufficient, as determined by the judge, to cover a judgment that may be rendered on appeal or if the appeal is not perfected, to cover the amount of the judgment issued in the juvenile and domestic relations district court. The appeal is not perfected if the bond is not filed within thirty days of entry of the final judgment or order. (2) Motions to Modify Motions to modify support may be filed directly with the clerks office of the juvenile and domestic relations district court on the MOTION TO AMEND OR REVIEW ORDER, district court form DC-630. The terms of a modified order may be made retroactive only to the date of the filing of such petition or, if earlier, to the date an order of the Department of Social Services directing payment of support was delivered to the sheriff or process server for service on the obligor/respondent. (3) Change of Payee Without a Court Hearing Normally, to modify any terms of an order, there must be a motion for modification, which must be served, after which the case is docketed, a hearing held, and an order entered. For a change of payee where DCSE seeks to become the payee or seeks to cease being the payee, the following procedure can be used by DCSE to change the payee. Va. Code 20-60.5(F). Upon any obligees application for public assistance benefits or child support services, the DCSE may change the payee to DCSE so that payment is sent to DCSE at its address as contained in the notice of change as described in Virginia Code 2060.5(F). Upon the obligees request that support services no longer be provided, DCSE may change the payee to the obligee so that payment is sent to the obligee at the address provided by the obligee as contained in the notice of change as described in Virginia VIRGINIA DISTRICT COURT MANUAL
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Code 20-60.5(F). Notice of such change shall be served on the obligor by certified mail, return receipt requested, or in accordance with Chapter 8 ( 8.01-285 et seq.) or Chapter 9 ( 8.01-328 et seq.) of Title 8.01. The change described in the notice shall be effective as to all payments paid on or after the date that notice was served regardless of when such payments were due. Return of service shall be made to DCSE at the location described in the notice. Upon obtaining service of the notice on the obligor, DCSE shall transmit a copy of such notice together with a copy of the proof of service to the court having jurisdiction for enforcement of the order and to the custodial parent. The notice and proof of service are filed in the appropriate case file. f. Support Payment Enforcement Process The clerks office does not handle support payments or initiate action if support arrearages occur. Assistance in such matters is provided through the Division of Child Support Enforcement. The court may punish any failure to comply with a support order including administrative support orders, by requiring an income deduction order, a recognizance bond, or sentencing the violator to jail for up to 12 months. The following sub-sections describe the payment enforcement remedies available in a juvenile and domestic relations district court: (1) Involuntary Income Deduction Orders If the court did not enter an income deduction order under Virginia Code 2079.2, the person entitled to support may file a MOTION AND NOTICE OF PROPOSED INCOME DEDUCTION ORDER FOR SUPPORT, district court form DC-617. Upon receipt of this motion, the clerk completes the notice portion of the form and has the notice served on or sent by certified mail or by electronic means, including facsimile transmission, to the obligors employer who shall deliver the notice to the obligor (person responsible for payment of support). Before the clerk enters such an order, the clerk must attempt to ascertain the obligors pay period interval. This act should be done when the NOTICE AND MOTION FOR PROPOSED INCOME DEDUCTION ORDER OF SUPPORT, district court form DC-617, is filed. Only one attempt is statutorily required. If a notice of contest is filed, the hearing must be held and a decision rendered within ten days from the filing of the notice of contest except for good cause, but no later than 45 days after receipt of the notice by the obligor under any circumstances. Use NOTICE OF HEARING, district court form DC-512, or NOTICE OF HEARING DATE, district court form DC-346, to notify the parties of the hearing date and time. At the hearing, only disputes as to mistakes of fact concerning compliance with the existing order or entry of an income deduction order may be heard. If the judge finds that an order should be entered, then the orders described in the Income Deduction Order section of Trial Procedures, above, shall be entered. (2) Military Person as Delinquent Defendant If the delinquent defendant is an active duty military person, then the Statutory Required Allotment (SRA) is available as a support collection device under 32 C.F.R. Part 54 when a military service member is delinquent in support payments in a total amount
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equal to two months worth of payments. The original support obligation can arise from an order providing for child support or child and spousal support issued by a court of competent jurisdiction. To obtain an allotment, a court or the Division of Child Support Enforcement must notify the military finance center concerned of the two-month delinquency. This signed notice should include the service members full name, social security number, and military service (e.g. Army, Air Force). This notice must also include the following supplemental information: 1. 2. 3. 4. 5. 6. 7. A written statement of delinquent support payments that equal or exceed the amount of support payable for two months; A certified copy of the underlying court support order; If provided for in a court order, the amount of arrearages and the amount that is to be applied each month toward liquidation of the arrearages; If appropriate, a statement that the delinquent support payments are more than 12 weeks in arrears; The full name and address of the allottee; Any limitation on the duration of the support allotment; and A certification that the serving official is authorized to act under SRA.
The notice shall be served by certified or registered mail, return receipt requested, or by personal service, on the appropriate military finance center. See APPENDIX J. The finance center will notify the individual service member within five days. Once served, a service member is entitled to consultation with a judge advocate or legal officer to discuss the members legal obligations and the consequences of the failure to make support payments. The service members commanding officer shall notify the finance center when the individual has received legal assistance. The finance center will initiate the allotment by the first end-of-month payday after it receives confirmation that the service member has had legal consultation, or after 30 days have elapsed since the notice was given to the service member, whichever comes first. Once initiated, the allotment is automatic and continuous. Only the initiating court or agency can modify or terminate the allotment. A military finance center will begin an allotment for the amount of monthly support presently owed and for future payments as required by a court or agency order. To collect support arrearages, however, a court judgment order must accompany the delinquency notice. If several notices are served against a service members pay, payments will be satisfied on a first-come, first serviced basis. The maximum amount of an allotment, together with any other moneys withheld or garnished for family support, may not exceed:
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1. Fifty percent of the members disposable income for any month in which the member asserts by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both, other than a party in the support order. 2. Sixty percent of the members disposable income for any month in which the member fails to assert by affidavit or other acceptable evidence that he or she is supporting another spouse, dependent child, or both. 3. Regardless of the limitations in (1.) and (2.), an additional five percent of the members disposable income shall be withheld when it is stated in the notice that the member is in arrears in an amount equivalent to twelve or more weeks support under a court order for support. (3) Reducing Arrearages to Judgment If the court finds that the defendant is in arrears on his or her support payments, then the court may enter judgment for the principal amount of support and interest on the arrearage at the judgment rate of interest, if proven by the requesting party. Reasonable attorneys fees may also be ordered if the total arrearage is equal to or greater than three months of support and maintenance. Va. Code 20-78.2. A petitioner or plaintiff may ask to have arrearages reduced to a judgment which may be enforced through civil remedies provisions in general district court or circuit court. Va. Code 16.1-278.18. The steps are: Petitioner or plaintiff completes the motion portion of MOTION AND NOTICE OF JUDGMENT FOR ARREARAGES, district court form DC-625, and files it in the clerks office. The clerks office prepares the notice portion of MOTION AND NOTICE OF JUDGMENT FOR ARREARAGES, and issues these papers for service of process. The matter is heard by the judge. If an arrearage is found to exist, judgment is entered for the arrearage and the clerk prepares an ABSTRACT OF JUDGMENT, district court form DC-465 to be given to the obligee/petitioner or the Division of Child Support Enforcement. If the amount of the judgment does not exceed $15,000, exclusive of interest and any attorneys fees, the obligee/petitioner or the Division of Child Support Enforcement may deliver an abstract of any such judgment entered to the clerk of the general district court of the same judicial district, and executions upon such judgment shall be issued by the clerk of such general district court. Abstracts may also be similarly delivered to the circuit court clerk for the issuance of execution. (4) Contempt for Failure to Pay Support If the respondent fails to pay support as provided for in an order of support, the petitioner may file a MOTION FOR SHOW CAUSE SUMMONS, district court form DC-635, VIRGINIA DISTRICT COURT MANUAL
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in the juvenile and domestic relations district court. The petitioner may request that the summons be issued pursuant to Virginia Code 16.1-278.16 or 18.2-456. Upon receipt of the MOTION FOR SHOW CAUSE SUMMONS, the clerk should consult with the judge as to whether a criminal or civil show cause order should be issued. This determination has a substantial affect on the dispositions available to the judge when the respondent appears in court. If the clerk is instructed to issue a criminal show cause, then the SHOW CAUSE SUMMONS (CRIMINAL), district court form DC-360, should be issued and served on the respondent. If a civil show cause is desired, the SHOW CAUSE SUMMONS (CIVIL), district court form DC-481, should be issued and served on the respondent. At the hearing on the show cause, if the court finds the respondent guilty of contempt of court for failure to pay support as ordered, the court may determine the amount of arrearage and order that the respondent: if it is a civil contempt proceeding: pay a civil fine be incarcerated until payment is made for a maximum of 12 months
if it is a criminal contempt proceeding: pay a fine be incarcerated for up to 12 months if the Show Cause Summons was issued pursuant to Virginia Code 16.1-278.16 or 20-115 be assigned to a work release program pursuant to Virginia Code 53.1-131 (any sums earned shall be used for the support and maintenance of the child and/or spouse) be required to perform public service work be incarcerated for up to 10 days if the Show Cause Summons was issued pursuant to Virginia Code 18.2-456
In addition, if a support order is violated, in cases of willful failure to comply, the violator may be committed to a jail, workhouse, city farm, work squad or public service work, for a fixed or indeterminate term not to exceed 12 months, with the sums paid for the work performed being applied to the child and/or spousal support. Va. Code 16.1-292, 20-61 and 20-115. (5) Suspension of Occupational and Other Licenses Upon 30 days notice to an obligor alleged to be delinquent in child support payments for 90 days or in the amount of $5,000 or more, or alleged to have failed to comply with a subpoena, summons or warrant relating to paternity or child support, the obligee/petitioner or Division of Child Support Enforcement may petition for the suspension of any occupational license or license to engage in a recreational activity issued by the Commonwealth held by the obligor/respondent. Va. Code 63.2-1937. The court shall not suspend the license if it finds (i) that the obligor/respondent has made a good faith effort to reach an agreement regarding the arrearage, (ii) an alternate remedy is available or (iii) the license suspension would either result in irreparable harm
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to the obligor/respondent or his employees, or would not result in collection of the delinquency. (6) Suspension of Drivers License for Failure to Pay Child Support or Failure to Comply with Process Issued by DCSE The Department of Social Services, Division of Child Support Enforcement (DCSE), may seek to suspend the drivers license for any parent who is either 90 days or $5,000 delinquent in child support payments or who has failed to comply with process issued by DCSE in a paternity or child support matter. Va. Code 46.2-320. DCSE initiates this process by sending to the delinquent parent a notice of intent to suspend the drivers license. If the delinquent parent does not respond to this notice of intent, then the license is suspended through an administrative process between DCSE and the Division of Motor Vehicles (DMV). The delinquent parent has the right to a hearing in court prior to the suspension by submitting a written request for such a hearing to DCSE within ten days from service of the notice of intent. DCSE will petition the circuit or juvenile and domestic relations district court which entered or is enforcing the support order in question for a hearing by using PETITION AND ORDER FOR SUSPENDED LICENSE, district court form DC-280. After a showing by DCSE of the support arrearage, or non-cooperation, if the court determines that the failure of the delinquent parent to pay child support is willful, the court shall suspend the drivers license. At any time after the delinquent parent is served with the notice of intent to suspend his drivers license for failure to pay child support, or failure to comply, the parent may petition the juvenile and domestic relations district court of his residence for the issuance of a restricted drivers license. This petition is submitted using PETITION FOR RESTRICTED DRIVERS LICENSE - FAILURE TO PAY CHILD SUPPORT, district court form DC-281. Upon a demonstration of good cause, the court may provide that the delinquent parent be issued a restricted drivers license for the conditions specified in Virginia Code 46.2-320, including travel to and from child visitation. However, this condition of a restricted drivers license does not override any contrary provisions of a protective order. This order to issue a restricted license is contained in the RESTRICTED DRIVERS LICENSE ORDER - FAILURE TO PAY CHILD SUPPORT, district court form DC282. The delinquent parent may have his license restored by paying in full the support arrearage, or else by establishing a payment plan which provides that the amount will be paid in full within 10 years and making one payment pursuant to that plan or by complying with the process. In either instance, DCSE will automatically notify DMV that the individual is eligible for restoration of full driving privileges and the individual will have his license restored upon application to DMV.
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(7)
Appeals of Enforcement Process The NOTICE OF APPEAL - SUPPORT PROCEEDING, district court form DC-602, should be used to note an appeal of any finding of arrearage, and civil or criminal contempt. An appeal of this finding of an arrearage in a civil contempt case means that both the finding of an arrearage and the contempt finding are appealed to the circuit court. Opinion of the Attorney General to the Honorable J. Dean Lewis, Judge. (April 11, 2002). Three separate bonds may be required in an appeal of a conviction for criminal nonsupport or of a finding of criminal or civil contempt for failure to pay support. Arrearage Bond: A bond for the amount of the arrearage is required to be filed within 30 days or that portion of the appeal is not perfected. Va. Code 16.1-296(H). If the contempt finding was for civil contempt, then failure to post the arrearage bond means that appeal is not perfected and will not be heard by the circuit court. If the appellant was convicted of criminal contempt, then failure to post the arrearage bond is to be treated as the violation of a condition of bail, but the appeal goes forward. Appearance Bond: The court may require the appellant to give bond, with or without surety, to ensure his appearance. If the respondent is ordered to post a bond to ensure his appearance, the respondent would not be released if he or she failed to post. The appeal would still progress and be heard, despite the failure to post this bond. Accrual Bond: The court may also require bond in an amount and with sufficient surety to secure the payment of any ongoing support that will accrue while the appeal is pending. The posting of this bond is treated as a condition of release. If the respondent is ordered to post this future support bond and on district court form DC-330, BOND FOR APPEARANCE, if the bond is not posted within thirty days and the respondent has been released, a capias should issue for failure to abide by the conditions of bail. As is the case with the appearance bond, failure to post the accrual bond does not prevent the appeal from going forward. The progression of the appeal is not affected by the failure to post the accrual bond, if required.
g. Interstate Support Cases Chapter 673 of the 1994 Acts of the General Assembly repealed the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), Virginia Code 20-88.12 through 20-88.31, and enacted the Uniform Interstate Family Support Act (UIFSA), Virginia Code 20-88.32 through 20-88.82. The theory motivating UIFSA is that it is simpler and more efficient to have a one order system where there is only one order in effect at any one time and one state that has continuing, exclusive jurisdiction over the support order. All other actions in all other states will only be proceedings to enforce the order. Federal law now requires that all states adopt the Uniform Interstate Family Support Act by January 1, 1998. The situations in which juvenile and domestic relations district courts will confront UIFSA are registration of foreign support orders, modification of those orders, and enforcement of those orders.
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The state that issued the support order has continuing, exclusive jurisdiction as long as one of the parties continues to live in that state. The state may change if the parties enter into a written agreement for jurisdiction to rest in another state or if neither party lives in the state that issued the order. The clerk will receive a REGISTRATION STATEMENT (OMB NO. 0970-0085) with two copies (including one certified copy) of the order to be registered, including any modification of the order. The following information must also be provided: 1. A sworn statement by the party requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage; and 2. The name of the obligor/respondent, and, if known, a) his or her address and social security number; b) the name and address of his or her employer and any other source of income of the obligor/respondent; and c) a description and the location of the property of the obligor/respondent in the Commonwealth not exempt from execution; and 3. The name and address of the obligee/petitioner unless there is a finding that the health, safety or liberty of the obligee would be unreasonably put at risk by the disclosure or an existing order so provides as provided in Virginia Code 20-88.55, and if applicable, the support enforcement agency to whom support payments are to be remitted. Va. Code 20-88.67. This form will be filed with the court by the Division of Child Support Enforcement in cases handled by DCSE. Parties proceeding with private counsel will utilize the same form. The clerk will register the order of support by assigning a new number, entering it via the Case Entry into the Case Management System, and setting an administrative docket date for confirming the order if no further hearing is requested by the parties. If two or more orders are in effect, the individual or support enforcement agency requesting registration shall furnish a copy of every support order asserted to be in effect to the court in addition to the documents required above, shall specify the order alleged to be the controlling order, if any, and specify the amount of consolidated arrears, if any. A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. In that case, the individual or support enforcement agency requesting registration shall give notice of the request to each party whose rights may be affected by the determination. Va. Code 20-88.67. The clerk will then notify the other parties (those parties who did not seek registration). If an income withholding order is received for registration, the clerk shall notify the obligors employer. Va. Code 20-88.70. If a non-registering party wishes to contest the validity or enforcement of a registered order, that party must request a hearing within 20 days. If that party fails to request a hearing, the registered order is confirmed by operation of law. Va. Code 20-88.71. If a hearing is requested, the clerk shall schedule a hearing date and notify all parties by first-class mail. A foreign support order registered in Virginia is enforceable in the same manner and subject to the same procedures as an order issued by a Virginia court. Va. Code 20-88.68. Except as provided in the following section, Virginia courts may recognize and enforce, but not modify, a registered order that has been properly entered by the issuing tribunal.
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A party seeking to contest the validity or enforcement of a registered order or to vacate the registration must prove that either (i) the issuing court or administrative agency lacked jurisdiction to issue the order, (ii) the order was obtained by fraud, (iii) the order had previously been vacated, suspended, stayed or modified, (iv) Virginia law provides a defense to the remedy sought, (v) full or partial payment has been made, (vi) the statute of limitations in Virginia Code 20-88.69 precludes enforcement of some or all of the arrearages or (vi) the alleged controlling order is not the controlling order. Va. Code 20-88.72. Uncontested portions of the order may be enforced. If the contesting party does not prevail, the court shall issue an order confirming the order. Confirmation of the registered order precludes any further contest of any matter that could have been previously asserted. Va. Code 20-88.73. (1) Modification of Foreign Support Orders A party seeking to modify a foreign support order must file a MOTION TO AMEND OR REVIEW ORDER, district court form DC-630, with a copy of the foreign order. The clerk will sign and date the notice provision of the Motion and transmit it to the appropriate jurisdiction for notification of all parties, including respondent, and DCSE. Although a court of the Commonwealth may have personal jurisdiction over a nonresident under Virginia Code 20-88.35, the court may not modify a child support order issued by a tribunal of another state unless the requirements for modification under Virginia Code 20-88.76 or 20-88.77:3 have been met. A registered order may be modified only if, after notice and a hearing, the court finds that either (i) neither the child, nor the obligee nor the obligor reside in the state which issued the order, the petitioner seeking modification is a nonresident of Virginia, and the respondent is subject to the personal jurisdiction of the court; or (ii) a party who is an individual (or the child) reside in Virginia and is subject to the personal jurisdiction of the court and all the individual parties who are individuals have agreed in a record that a Virginia court may modify the order and assume continuing, exclusive jurisdiction. Va. Code 20-88.76. No Virginia court may modify any aspect of a support order that cannot be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the controlling order establishes the aspects of the support order that cannot be modified. The modification of a foreign support order is subject to the same requirements and procedures as modification of a support order issued in Virginia. If the order is modified, the Virginia court becomes the court of continuing, exclusive jurisdiction. A party obtaining modification of a child support order shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and also with each tribunal in which the party knows that the earlier order had been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions in a court where the failure to file becomes an issue. Such failure does not affect the validity of the modified order. Virginia Code 20-88.77:2. (2) Appeals In any case arising under UIFSA, a party has up to 30 days from the entry of a final order or judgment to appeal. Va. Code 16.1-296. To note an appeal, use the NOTICE OF APPEAL SUPPORT PROCEEDING, district court form DC-602.
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(3) Mediation in Custody and Support Cases Generally a court, on its own motion or on a motion of one of the parties, may refer any contested civil matter to a dispute resolution orientation session in order to encourage the early settlement of disputes. The court shall set a date for the parties to return to court in accordance with its regular docket and procedure, irrespective of the referral to an orientation session. The parties shall notify the court, in writing, if the dispute is resolved prior to the return date. Va. Code 8.01-576.5. In any appropriate custody and visitation case, the court shall refer the parents or persons with a legitimate interest to a dispute resolution orientation at no cost to the parties and in accordance with Virginia Code 8.01-576.4 et seq. Va. Code 20-124.4. The ORDER OF REFERRAL AND MEDIATOR APPOINTMENT FORM, district court form DC-604 should be used for this purpose. This session shall be conducted by a mediator certified pursuant to guidelines set forth by the Judicial Council. In assessing the appropriateness of a referral, the court shall ascertain upon motion of a party, whether there is a history of family abuse. In custody and visitation matters, the goals of mediation may include the development of a proposal addressing the childs residential schedule and care arrangements, and how disputes between the parents will be handled in the future. If an agreement is not reached on any issue through further mediation as agreed to by the parties prior to the return date, the court shall proceed with a hearing on any unresolved issue, unless a continuance is granted by the court. The fee of any mediator appointed by the court shall be $100 per appointment and shall be paid from the funds used for appointments under Virginia Code 16.1-267 (B). (4) Educational Seminars in Custody and Support Cases The parties in any contested proceeding for custody, visitation or support must show the court proof that they have attended within the 12 months prior to their initial court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court. Parties to uncontested cases may be required to attend an educational seminar if the court finds good cause. The program must be at least four hours in length and should address the effects of separation and divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. A list of Parent Education Providers can be found on the courts homepage. The fee charged a party by the program shall be based on the party's ability to pay, but shall not exceed fifty dollars to each party may be charged. The court may grant an exemption from attendance for good cause shown or if there is no program reasonably available. Whenever possible, each party should attend the educational seminar before participating in mediation or alternative dispute resolution. If desired, the court may use district court form DC-605, ORDER FOR REFERRAL TO PARENT EDUCATION SEMINAR to ensure attendance by the parties. (5) Parentage Determinations The issue of paternity may arise in a number of proceedings that involve children. Parentage may be established prima facie, for a woman, by proof of her having given birth to the child. Va. Code 20-49.1 (A).
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by genetic testing which affirms at least a 98% probability of paternity. Va. Code 20-49.1 (B). by voluntary acknowledgment of parentage. Va. Code 20-49.1 (B). by administrative establishment pursuant to Va. Code 63.1-250.1:2. by court order after hearing pursuant to Va. Code 20-49.8. for an adoptive parent, by proof of lawful adoption. Va. Code 20-49.1 (C). A PETITION, district court form DC-511, to determine parentage may be filed by the child, a parent, a person claiming parentage, a person standing in loco parentis to the child, a party having legal custody or a representative of the Department of Social Services or the Department of Juvenile Justice. The PARENTAGE SUPPLEMENT TO PETITION, district court form DC-641, must be filed with the PETITION. If the child is made a party, a guardian ad litem must be appointed for the child. The decision on parentage is not binding on anyone who is not made a party to this proceeding. Parentage must be proven by clear and convincing evidence and an ORDER DETERMINING PARENTAGE, district court form DC-644, must be entered except where parentage is proven by genetic test affirming at least 98% probability or paternity or a voluntary acknowledgment has been provided. (a) Blood Tests as Evidence Regarding Paternity Upon a motion of either party or upon the courts own motion in any matter in which the question of paternity arises (when the motion is accompanied by an affidavit affirming or denying paternity), the judge may order the alleged father, the mother and the child to submit to blood grouping tests pursuant to Virginia Code 20-49.3. A MOTION FOR GENETIC TESTING, district court form DC-623, may be used. However, if paternity is at issue in a child support matter, the judge shall order the blood tests. The PARENTAGE TEST ORDER, district court form DC-624, should be used in ordering such tests, with copies distributed as shown in the data elements for completing the form (see DISTRICT COURT MANUAL--FORMS volume). The form order provides numerous details regarding the procedures and filing deadlines. The judge, at his discretion, may order the person requesting such tests to pay for such tests. Va. Code 20-49.3. The blood test may be admitted as evidence in criminal desertion/non-support cases and in civil support cases. Va. Code 20-49.4. If the evidence is by sworn written report, it must be filed with the court at least 15 days prior to the hearing or trial to comply with Virginia Code 20-49.3. (b) Voluntary Acknowledgment of Paternity A voluntary written statement of the father or mother made under oath acknowledging paternity and confirming that the parties have been provided with a statement of the rights and responsibilities of paternity and the consequences arising from the signed acknowledgment, shall have the same legal effect as a judgment of paternity, after the passage of sixty days from its signing. It shall be conclusive, unless
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the person challenging it establishes that the acknowledgment was the result of fraud, duress or material mistake of fact. Virginia Code 20-49.1. However, the voluntary acknowledgment should be used as evidence and the ORDER DETERMINING PARENTAGE, district court form DC-644, still is required if the acknowledgment is accepted by the court. (6) Investigations and Reports When the appropriate local department of social services is ordered to conduct an investigation in connection with a custody, visitation or support matter, the court may assess a fee (pursuant to a state fee schedule) against either the petitioner or the respondent or both not to exceed the actual cost. The fee is to be paid to the local Department of Social Services, locally operated court services unit or Department of Juvenile Justice, whichever performed the service, unless payment is waived. The method and medium for payment for such services shall be determined by the Department of Social Services, Department of Juvenile Justice, or the locally operated court services unit that provided the services. K. JUDICIAL AUTHORIZATION OF ABORTION (JUDICIAL BYPASS PROCEEDINGS) Virginia Code 16.1-241(V) requires consent by or notice to a parent (or another authorized person) before a doctor may perform an abortion on an unemancipated minor. Consent is not required if the minor fits within certain narrow exceptions or if she receives judicial authorization for the abortion. A minor may petition a juvenile and domestic relations district court for judicial authorization of an abortion without consent or notice. Venue lies in the jurisdiction where the petitioner resides or is present when the proceedings commence. Virginia Code 16.1243(A)(1)(d). There are no fees associated with these cases. Judicial bypass proceedings are subject to a greater depth of confidentiality than other juvenile court proceedings. No person, other than the juvenile petitioner, her counsel and any guardian ad litem appointed for that case may have access to the records relating to the bypass proceedings. The parents, guardians or legal custodians of a juvenile filing a bypass petition are not considered parties to the proceeding and do not receive notice of the hearing. 1. Filing the Petition Petitions under Virginia Code 16.1-241(V) are filed with the intake officer by a juvenile petitioner who is pro se, or with the clerk by counsel for a juvenile petitioner. The PETITION FOR JUDICIAL AUTHORIZATION OF ABORTION, district court form DC502(A), should be used instead of district court form DC-511, the generic petition form. If the petition is filed with the intake officer, the intake officer may set the date and time of the VIRGINIA DISTRICT COURT MANUAL
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hearing by telephone with the clerks office, or may escort the petitioner to the clerks office for the setting of a hearing date and time. If the petition is filed directly with the clerks office by counsel, the clerk will set the date and time of hearing. The date of the hearing must not be later than four days after the filing of the petition. If the petition is filed with an intake officer, the four-day period begins when the petition is filed with the intake officer, not when the petition is later filed with the clerk. In those jurisdictions where an intake officer is not present every day and is in a neighboring jurisdiction when a petitioner seeks to file her petition, the pro se petitioner may either (i) travel to the intake officers current location or (ii) return to the original location when the intake officer will be present. The choice rests with the petitioner. The data field on form DC-502(A) for a contact telephone number is explicitly identified as optional. Petitions shall be accepted without this optional data field being completed. It is anticipated that most petitioners will not have a contact telephone number which they wish to list and, therefore, that the data field will be left blank on most petitions. Due to the short time frame for these proceedings and the depth of confidentiality required, courts must make every effort to complete all the necessary pre-hearing tasks while the petitioner is present in the clerks office (or the intake office). The date and time of the hearing should be noted in the space provided for that information on form DC-502(A). If the petition is filed in a jurisdiction where a judge does not sit every day, arrangements must be made for a judge to return and hear the case within four days of the filing. If the hearing is not held within that period, the court must authorize a physician to perform the abortion without the consent of or notice to an authorized person. There is also a place on this form for an acknowledgment by the petitioner that she has received notice of the hearing date and time. The petitioner receives a copy of the completed petition, including the hearing date and time. 2. Right to Counsel A petitioner in a judicial bypass case may participate in the proceedings on her own behalf. In addition, she has the right to be represented by counsel. Upon her request, the court shall appoint counsel for her. The cost of such appointed counsel shall be paid by the Commonwealth. Va. Code 16.1-267. Accordingly, it is important to determine at the time the petition is filed whether the petitioner has retained her own attorney and if not, whether she desires either to have counsel appointed for her or to waive her right to counsel. The court may also choose to appoint a guardian ad litem for the petitioner. A guardian ad litem appointed in a bypass proceeding is compensated in the same manner and at the same rate as other guardians ad litem appointed for juveniles. If the judge is available at the time the petition is filed, the judge may advise the petitioner of her right to counsel and appoint counsel, a guardian ad litem or both. The ADVISEMENT OF YOUR RIGHT TO COUNSEL, district court form DC-502(B) and the ACKNOWLEDGMENT OF RIGHT TO COUNSEL AND APPOINTMENT OF COUNSEL, district court form DC-502(C), should be used to apprise the petitioner of her right to counsel and to reflect the appointment of counsel and/or a guardian ad litem.
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If the judge is not likely to be available when a judicial bypass petitioner is present, the judge may authorize the clerk, deputy clerk and/or intake officer to advise the petitioner of her right to counsel and direct the clerk to select counsel and/or a guardian ad litem from a pre-approved list. The forms described above will be used to advise the petitioner regarding counsel, to note her request for representation, and to eventually appoint counsel and/or a guardian ad litem. The judge may sign the ADVISEMENT OF YOUR RIGHT TO COUNSEL, district court form DC-502(B), in advance. The availability of counsel and/or the guardian ad litem is to be ascertained while the petitioner is present, so that she can then be informed of their identity. The judge would not sign the ACKNOWLEDGMENT OF RIGHT TO COUNSEL AND APPOINTMENT OF COUNSEL, district court form DC-502(C), until counsel and/or the guardian ad litem are actually appointed by the court, prior to or at the hearing. Copies of the petition, with the hearing date and time, are to be provided to counsel and to the guardian ad litem. 3. Confidentiality and Notice of Hearing Because of the extremely confidential nature of these proceedings, notice of the hearing is provided only to the petitioner, her counsel and the guardian ad litem. The petitioners parents, guardians or legal custodians are not parties to the petition and are not to be sent a summons or notice. The clerks office should not confirm the existence of pending petitions to anyone other than the petitioner, her counsel or the guardian ad litem. Judicial bypass petitions are to be numbered JJ-999999-01-01 through JJ-999999-01-99. They are entered into the case management system using case type "JB." In the field for the juveniles name, the following should be entered: First Initial of Last Name of Petitioner and In re: Va. Code 16.1-241(V). The case papers should be kept in a locked drawer or office. The docket page for these cases must not be distributed or posted, and shall be destroyed after the hearing. 4. Hearing The judge will determine whether the minor meets the criteria established in Virginia Code 16.1-241(V) for granting the bypass petition. The courts findings are conveyed using the ORDER IN PROCEEDING FOR JUDICIAL AUTHORIZATION OF ABORTION, district court form DC-502(D). Regardless of the courts disposition of the petition, an attested copy of the order reflecting the judges finding is to be provided to the petitioner. A copy may be provided to counsel and/or to the guardian ad litem. If the court denies the petition, the petitioner may appeal to the circuit court of that jurisdiction (see subsection (5) below). An order granting judicial authorization of an abortion cannot be appealed. If the court fails to hold a hearing within the four days required by the statute, the court must enter an order authorizing a physician to perform an abortion. The ORDER IN PROCEEDING FOR JUDICIAL AUTHORIZATION OF ABORTION, district court form DC-502(D), should be used to enter this default authorization.
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5. Appeal A petitioner whose petition is denied or granted without consent but requires notice is entitled to an expedited confidential appeal to circuit court. The appeal may be noted within ten days of the date of entry of the order denying the petition. The NOTICE OF APPEAL - JUDICIAL AUTHORIZATION, district court form DC-502(E), should be used to note the appeal. Because the circuit court must hear and decide the appeal no later than five days after the appeal is filed, a hearing time and date should be obtained from the clerk of the circuit court while the petitioner is present to note her appeal and entered in the appropriate space on district court form DC-502(E). A copy of this form is then given to the petitioner, which she acknowledges by signing the notice. Counsel may note the appeal on behalf of the petitioner. After the appeal is heard, the circuit court shall file a copy of its order with the juvenile court. Va. Code 16.1-297. L. STANDBY GUARDIANS A proceeding for the appointment of a standby guardian facilitates the appointment of a temporary guardian for a minor child in the event that a parent, who suffers from a progressive or chronic condition, disease or illness, dies, becomes incompetent or becomes debilitated. The standby guardian will assume the role of guardian of the person or guardian of the property, or both, of the minor child until a permanent guardian can be appointed. A standby guardian may either be approved by the court or designated by the parent prior to the triggering event: death, consent, incompetence or debilitation. Article 17 of Title 16.1 of the Virginia Code provides for proceedings for approval of a standby guardian by the court prior to the triggering event, approval of a designated standby guardian after the occurrence of the triggering event and revocation by the parent or refusal by the appointed standby guardian. 1. Appointment of Standby Guardian Prior to the Triggering Event A petition may be filed by any person requesting that the juvenile and domestic relations district court approve a person as a standby guardian for a child of a qualified parent upon the occurrence of a triggering event. The petition may also request that the court appoint an alternate standby guardian. Va. Code 16.1-350. . A qualified parent is one who has been diagnosed by a licensed physician to be suffering from a progressive or chronic condition caused by an injury, disease or illness from which, to a reasonable degree of medical probability, the patient cannot recover. Va. Code 16.1349. In cases where the standby guardian is judicially approved, the triggering event occurs .. .. .. where there is a determination that the parent is incompetent, and/or upon the death of the parent, and/or upon the provision of the parents written consent to the commencement of the standby guardians authority. Va. Code 16.1-349.
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The petition must contain the information requested at Virginia Code 16.1-350(B). The PETITION FOR APPROVAL OF STANDBY GUARDIAN, district court form DC-503, has been designed specifically to elicit the information required by this section. Notice of the filing of the petition must be given promptly to each parent of the child whose identity and whereabouts are known to the petitioner. Va. Code 16.1-350(C). The NOTICE OF PETITION FOR COURT APPROVAL OF STANDBY GUARDIAN, district court form DC-503, must be used. Summonses should be served in accordance with 16.1-264 upon . . . . the child, if he/she is twelve years of age or older. the proposed standby guardian. the proposed alternate standby guardian, if any. any other persons that appear to the court to be proper or necessary parties to the proceedings including the childs parents, guardian, legal custodian or other person standing in loco parentis, if the identity and whereabouts are known.
An order approving the standby guardian may be entered without a hearing unless . . a known parent, stepparent, adult sibling or other adult related to the child by blood, marriage or adoption requests a hearing within ten days of the date the notice of filing was sent, or if there is other litigation pending regarding the custody of the child.
If a hearing is held, the court may appoint and, in the case of a petition filed by someone other than a parent, shall appoint a guardian ad litem to represent the child. Va. Code 16.1-350(C). Following consideration of the best interests of the child as provided in Virginia Code 20124.3, the court shall issue an order on the ORDER APPROVING STANDBY GUARDIAN, district court form DC-505, appointing a proper and suitable person as the standby guardian and an alternate, if requested upon finding that . . The childs parent is a qualified parent, and Appointment of a standby guardian is in the best interest of the child.
The order must specify the triggering event. If one of the triggering events is written consent by the qualified parent, the standby guardians authority will not become effective until the written consent is filed with the court. Va. Code 16.1-351. The ORDER APPROVING STANDBY GUARDIAN should be served on the standby guardian as soon as is practicable. 2. Court Approval of a Written Designation of a Standby Guardian A parent may execute a written designation of a standby guardian at any time. The written designation must be signed by the parent, or another adult on behalf of the parent if the parent is physically unable to do so, provided the designation is signed at the express request of and in the presence of the parent. It must contain . .
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The name, address and birth date of the child affected The triggering event VIRGINIA DISTRICT COURT MANUAL
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The name and address of the person designated as standby guardian. Va. Code 16.1352(A).
The triggering event in the case of a designated standby guardian may be . . . A determination of incompetence of the parent, and/or The death of the parent, and/or A determination of debilitation and written consent of the parent to the commencement of the authority of the standby guardian. Va. Code 16.1-349.
The standby guardians authority to act shall commence upon the occurrence of the specified triggering event and receipt by him of evidence of that event as specified in Virginia Code 16.1352(B). As soon as practicable and in no event later than thirty days after the date of commencement of the designated standby guardians authority, he or she must file a PETITION FOR APPROVAL OF STANDBY GUARDIAN, district court form DC-503, with the court. Included with the petition should be a copy of the designation and any determinations of incapacity or debilitation or a certificate of death. Va. Code 16.1-352(D). The provisions regarding notice, service of summonses and the holding of a hearing applicable to court approval of a standby guardian prior to the triggering event must be followed here as well. See above. An order approving the designated standby guardian shall be entered upon a finding that . . The person was duly designated as a standby guardian pursuant to law and the designation has not been revoked; and A determination of incompetence was made; a determination of debilitation was made and the parent consented to commencement of the standby guardians authority; or the parent has died as evidenced by a death certificate; and The best interests of the child will be served by approval of the standby guardian; and If the petition is by an alternate, the designated standby guardian is unwilling or unable to serve. Va. Code 16.1-352 (D).
. .
Use the ORDER APPROVING STANDBY GUARDIAN, district court form DC-505. 3. Revocation, Refusal, Termination of Standby Guardianship The qualified parent may revoke the authority of a standby guardian approved by the court by filing a notice of revocation with the court. District court form DC-506, NOTICE OF REVOCATION/STATEMENT OF REFUSAL may be used by the parent but its use is not mandatory. The notice of revocation must identify the standby guardian or alternate to which the revocation will apply and a copy must be delivered to the standby guardian whose authority is revoked and any alternate standby guardian who may then be authorized to act. Va. Code 16.1-354(A). At any time following his approval by the court, a standby guardian may decline to serve by filing a written statement of refusal with the court and having the statement served on the qualified parent VIRGINIA DISTRICT COURT MANUAL
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and any alternate standby guardian who may then be authorized to act. The NOTICE OF REVOCATION/STATEMENT OF REFUSAL, district court form DC-506, may be used for this purpose but its use is not mandatory. Va. Code 16.1-354(A). When the standby guardians authority has become effective upon the debilitation or incompetence of the qualified parent, his or her authority continues even though the parent is restored to health unless the parent notifies the guardian and, if appropriate, the court, in writing that the standby guardians authority is revoked upon restoration or otherwise. Va. Code 16.1-354(C). If at any time the court finds that the parent no longer meets the definition of qualified parent, the court shall rescind its approval of the standby guardian. Va. Code 16.1-354(C). 4. Review of Standby Guardian Under Virginia Code 16.1-355, a childs parent, stepparent, adult sibling, or any adult related to the child by blood, marriage or adoption may petition the court which approved the standby guardian at any time following the approval and prior to any termination for review of whether continuation of the standby guardianship is in the best interests of the child. Notice of the filing of a petition shall promptly be given to the standby guardian, the child, if the child is twelve years of age or older, and each parent of the child whose identity and whereabouts are known or could reasonably be ascertained. Virginia Code 16.1-350 details the requirements of a petition for court approval of a standby guardian. Virginia Code 16.1-352 D requires the filing of a petition by a designated standby guardian no later than thirty days after the occurrence of the triggering event. Therefore, a separate petition form, the PETITION FOR APPROVAL OF STANDBY GUARDIAN, district court form DC-503, has been created to encompass both of these proceedings. A notice must be sent to specified persons of the filing of petitions in both of these proceedings. There are also separate forms to approve for standby guardians and to revoke or refuse the guardianship. See NOTICE OF PETITION FOR COURT APPROVAL OF STANDBY GUARDIAN, district court form DC-504, ORDER APPROVING STANDBY GUARDIAN, district court form DC-505 and NOTICE OF REVOCATION/STATEMENT OF REFUSAL - STANDBY GUARDIAN, district court form DC-506. M. MISCELLANEOUS PROCEEDINGS 1. Authorization of Medical Treatment of Juveniles Cases involving requests for court-ordered authorization for medical treatment of juveniles should be initiated on a PETITION REQUESTING AUTHORIZATION FOR MEDICAL TREATMENT OF JUVENILE, district court form DC-550. In emergency situations, this petition may be completed after an oral request has been granted and insufficient time exists for preparation of the petition prior to the issuance of the order; nevertheless, the petition and the appropriate order should always be completed to protect all parties involved in the case. District court form DC-551, ORDER AUTHORIZING MEDICAL TREATMENT OF JUVENILE, is used when parental consent is unobtainable with reasonable promptness or when one or both parents refuse to consent to medical treatment for a juvenile. 2. Mental Illness or Retardation The procedures used in mental retardation certification proceedings under Title 37.2 are the same for juveniles as for adults, except that only a judge of the juvenile and domestic relations district court or a substitute judge for that court may conduct the certification hearing for a juvenile. Mental commitments for juveniles are governed by special provisions in Title 16.1.
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Under Virginia Code 16.1-339, if a child is age 14 or older and objects to admission based on parental consent, then the hospital files a PETITION, district court form DC-511, for judicial approval of the admission. An evaluator designated by the community services board must examine the child within 24 hours of admission and prepare a report as to whether: the minor presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or is experiencing a serious deterioration of his ability to care for himself in a developmentally age appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection or self-control; the minor is in need of impatient treatment for a mental illness and is reasonable likely to benefit from the proposed treatment; and inpatient treatment is the least restrictive alternative that meets the minors needs.
Upon receipt of the petition and an evaluators report, the juvenile and domestic relations district court judge or a special justice appointed pursuant to Virginia Code 37.2-803 shall appoint a guardian ad litem for the child. Based upon the courts review and the recommendations of the guardian ad litem, the court shall order one of the following dispositions: if the court finds that the child does not meet the criteria for admission, the court shall issue an order directing the facility to release the child into the custody of the parent who consented to the childs admission if the court finds that the minor meets the criteria for admission, the court shall issue an order authorizing continued hospitalization of the child for up to 90 days on the basis of the parents consent. if the court determines that the available information is insufficient to permit an informed determination, the court shall schedule an involuntary commitment hearing that will be conducted in accordance with the involuntary commitment of childrens section. Va. Code 16.1-341. A new petition is not required if the original petition complies in substance with Virginia Code 16.1-341.
The JUVENILE CIVIL MENTAL DISPOSITION--ADMISSION BY PARENTAL CONSENT, district court form DC-597, is designed to be used as the dispositional order in these proceedings. If involuntary commitment is sought, any parent files the PETITION, district court form DC511. If a parent is unable or unwilling to do so, then any responsible adult, including the person having custody over a minor in detention or shelter care pursuant to an order of a juvenile and domestic relations district court, may file the PETITION, district court form DC-511. A minor who has been properly detained by a juvenile and domestic relations district court, and who meets the criteria for involuntary commitment, does not have the right to make application for voluntary admission and treatment. The PETITION should be filed in the jurisdiction in which the juvenile is located. Even if commenced with a temporary detention order, a PETITION, district court form DC-511 should be filed. If a proceeding arises out of the issuance of a temporary detention order,
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the hearing should be held in the jurisdiction in which the juvenile is located or resides. The hearing must be scheduled to be heard no earlier than 24 hours after filing the petition, and no later than 72 hours after filing the petition. If the seventy-two hour period expires on a Saturday, Sunday or legal holiday, or day on which the court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday or legal holiday or day on which the court is lawfully closed. In no case may the time period between the filing of the petition and the hearing under Virginia Code 16.1-344 exceed ninety-six hours. One continuance (not to exceed 72 hours) may be granted on request of the childs attorney, for good cause shown. Va. Code 16.1-341. Copies of the petition with a notice of hearing must be served immediately upon the minor and the minors parents, if they are not petitioners. If the minor was in detention, the attorney for the minor, the attorney for the Commonwealth in the jurisdiction giving rise to the detention, and the juvenile and domestic relations district court having jurisdiction over the minor in detention or shelter care shall be given notice prior to the hearing. The court shall appoint counsel to represent the minor no later than 24 hours prior to the hearing, unless it is determined that the minor has retained counsel. Appointed counsel shall be compensated in an amount not to exceed $100. The court shall order that an evaluation be conducted by a qualified evaluator designated by the community services board who is not and will not be treating the minor and who has no significant financial interest in the facility to which the minor would be committed unless an evaluation has already been done in conjunction with a proceeding held following the admission of an objecting minor 14 years of age or older. The report should provide an evaluation based on the same criteria as indicated above and should be provided to the court at least 24 hours before the scheduled hearing. The evaluator shall attend the hearing as a witness. If a minor has been detained, this fact shall have no effect on the recommendation of the evaluator. If the evaluator finds that the detained minor meets the criteria for involuntary commitment, he or she shall provide a recommendation in accordance with that finding to the court. The hearing must be scheduled to be heard no earlier than 24 hours after filing the petition, and no later than 72 hours after filing the petition. If the seventy-two hour period expires on a Saturday, Sunday or other legal holiday, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday or legal holiday. One continuance (not to exceed 72 hours) may be granted on request of the childs attorney, for good cause shown. The hearing shall be closed unless the minor and the petitioner request that it be open. The rules of evidence shall apply except the evaluators report shall be admissible by stipulation of the parties. The court shall order involuntary commitment of the minor if it finds by clear and convincing evidence that all of the commitment criteria (above) are present. If the parent or parents with whom the child resides are not willing to approve the proposed commitment, the court must further find that such treatment is necessary to protect the minors life, health or normal development and that issuance of a removal order or protective order is authorized by Virginia Code 16.1-252 or 16.1-253. The JUVENILE CIVIL MENTAL DISPOSITION-INVOLUNTARY COMMITMENT, district court form DC-598, is designed to be used as the dispositional order in these proceedings. If the child is committed to inpatient treatment, the child shall be placed in a mental health facility designated by the community services board or if the community services board does not provide a placement recommendation, the child shall be placed in a facility designated by the commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse
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Services. The judge shall order the sheriff to transport the minor or may authorize the childs parent to transport the child. A minor who has been hospitalized while properly detained for a criminal offense by a juvenile and domestic relations district court shall be returned to the detention home following completion of a period of inpatient treatment, unless the court having jurisdiction over the criminal case orders that the minor be released from custody. 3. Emancipation of Minors In certain factual situations, a juvenile may be found by a judge to be capable of being an adult for certain purposes. This process is called emancipation of minors. The petition to start this proceeding may be filed only by the juvenile seeking her/his emancipation or by such juveniles parent or guardian. The petition must include the requirements contained in Virginia Code 16.1262 plus the juveniles gender and, if filed by someone other than the juvenile, the relationship of the petitioner to the juvenile. A service fee of $12.00 per service issued is assessed and must be paid before the service can be issued in the case. A guardian ad litem must be appointed for the juvenile. The court may appoint counsel for the juveniles parents or guardian. The court can order the limited emancipation provided in Virginia Code 16.1-334 only if one of the situations described in Virginia Code 16.1-333 exists: the juvenile entered into valid marriage, whether or not the marriage has been terminated by dissolution, or the juvenile is on active duty in any U.S. armed services, or the juvenile willingly lives separate and apart from his parents or guardian, with the consent or acquiescence of the parents or guardian, and the juvenile is or is capable of supporting himself and competently managing his own financial affairs. In emancipation of minors cases, a copy of the order shall be issued to the child if emancipated. 4. Treatment, Rehabilitation or Other Services In some instances, a party will petition the court to require a public entity to provide treatment, rehabilitation and other services. Jurisdiction over such claims are concurrent with circuit court jurisdiction. Va. Code 16.1-244. 5. Special Work Permits A juvenile may petition the court seeking judicial consent to apply to the applicable governmental entity for a work permit. Va. Code 16.1-278.13.
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6. Petition for Parental Participation The school board of a jurisdiction may file a petition against the parents or other legal guardian of a juvenile for willful failure to participate in efforts to improve the juvenile students behavior or ensure the students attendance at school. The court may impose a civil fine and may order the parent or guardian to participate in such programs as the court may order. Va. Code 16.1-241.2. The ORDER FOR COURT-APPOINTED SPECIAL ADVOCATE, district court form DC-544, is designed for appointment of a court-appointed special advocate to provide assistance in the case. It specifies the powers and duties of this appointee. Va. Code 9-173.8 to -173.13. 7. Drivers License Ceremony Drivers under age 18 are required to obtain their operators licenses through the juvenile and domestic relations district court except persons who hold valid drivers licenses issued by other states. The judge is required by Virginia Code 46.2-336 to issue licenses in a formal, appropriate ceremony in which he stresses the responsibilities incumbent upon drivers. Parents, guardians or other persons standing in loco parentis are also required to attend. The courts should use a NOTICE OF PRESENTATION OF DRIVERS LICENSE, district court form DC-565, to notify the juvenile of the date and time of the ceremony. If the juvenile is attending school out of state, the license may be mailed to him without prior attendance at a ceremony. Temporary licenses should be collected from juveniles and destroyed or sent to DMV with a cover letter explaining that they are being forwarded to DMV for disposal. Similarly, documentation of licenses collected and destroyed is not required or recommended. It is not required that the court note or account for licenses not collected. 8. Petition for Cancellation of Juvenile's Drivers License Any custodial parent or guardian of an unemancipated minor may request in writing that DMV cancel the driver's license of that minor. Va. Code 46.2-334 (B). However, in the case of a minor whose parents have been awarded joint legal custody, both parents must sign the request. If the parents do not agree or if one of the parents is not available, then a parent may petition the juvenile and domestic relations district court for a determination that the license of the minor be canceled. These petitions can be accepted on the usual blue PETITION form, district court form DC-511. The petition would be filed with the intake office. Va. Code 16.1-260. It should be considered a juvenile case and would be styled In re (name of juvenile). When entering the case into the Case Management System, the clerk to use the case type Status Offense/CHINS/Other (ST). Because it is a disagreement between two custodial parents that prompts this proceeding, the petition should be served on the other parent, as well as on the juvenile. Va. Code 16.1-263. Section 46.2-334 provides that the parent may petition for a determination of whether the juvenile's license should be canceled. Therefore, the dispositional options are simply whether or not DMV is to be directed to cancel the juvenile's license. There is no provision in the statute for a restricted driver's license or for other options. Despite using the Status case type for case classification purposes, the issue in this proceeding does not meet the definition of a status offense and, therefore, the dispositional options for a status offense are not applicable. Va. Code 16.1-228, 278.6. Courts should use district court form DC- 570 (ORDER) for the disposition.
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If the court determines that the juvenile's license should be canceled, that disposition would be conveyed to DMV by a copy of the court order and not through the interface. Dispositions should be sent to DMV at the following address: Driver Licensing Work Center Room 309 Department of Motor Vehicles P.O. Box 27412 Richmond, VA 23269 To close out the case, the clerk would use the dispositional codes Dismissed/Denied (D) or Granted (GR). 9. Restricted Drivers License for 90 Day Suspension Any person who has had their drivers license suspended by the Department of Motor Vehicles for 90 days pursuant to Virginia Code 46.2-334.01 may petition the juvenile and domestic relations district court for a restricted license to authorize the person to driver to and from his or her home and place of employment, provided there is no other means of transportation by which the person could travel between home and employment. A restricted drivers license can be granted only for the purpose of travel between the persons home and place of employment. The PETITION, district court form DC511, is used to request the restricted drivers license and district court form DC-578, RESTRICTED DRIVERS LICENSE must be used in proceedings under this provision. 10. Petition for Relief from Legal Determination An individual may file a petition for relief from a legal determination of paternity. Va. Code 2049.10. Juvenile courts and circuit courts have concurrent jurisdiction over these proceedings. Va. Code 20-49.2. The petition maybe filed on district court form DC-511, PETITION, in the manner as other petitions. However, upon the filing of the petition with the court, the clerk shall have a copy of the petition served on the local office of the Division of Child Support Enforcement along with the mother and guardian ad litem for the child. This should be done with regard to every proceeding and the clerk need not verify that the proceeding at hand involves a DCSE case. The court shall appoint a guardian ad litem to represent the best interests of the child. The petitioner shall pay the costs of any genetic test taken to demonstrate non-paternity. If the genetic test excludes the petitioner as the father, the court may set aside any legal determination of paternity, shall order the complete of a new birth record, and may set aside an obligation to pay child support. A support order may not be retroactively modified, but may be modified from the date on which the petition was served on the other parties to the matter. The court shall not grant relief to the petitioner if the individual named as the father either (i) acknowledged paternity knowing that he was not the father, (ii) adopted the child or (iii) knew that the child was conceived through artificial insemination.
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11. Testing for Blood-Borne Pathogens Whenever any school board employee as defined in Virginia Code 32.1-45.1, is exposed to the body fluids of another person or any other person is exposed to the body fluids of a school board member, in a manner which may transmit human immunodeficiency virus or hepatitis B or C viruses, the person whose body fluids were involved is deemed to have consented to testing and the release of the test results to the person exposed. If the person is a minor, consent for testing shall be obtained from a parent, guardian or person standing in loco parentis of such minor prior to initiating the testing. If the parent, guardian or person standing in loco parentis withholds consent, the school board may petition the juvenile and domestic relations district court of the county or city in which the minor resides for an order requiring such testing. The process is: A PETITION TO REQUIRE BLOOD TEST, district court form DC-406 is filed and the case scheduled. The clerks office prepares the notice portion of the PETITION TO REQUIRE BLOOD TEST, district court form DC-406, and the petition is served. The petition is also sent for service on the Director of the local Health Department, along with a summons to attend the hearing. The judge conducts a hearing and enters an appropriate order in the order section of the PETITION TO REQUIRE BLOOD TEST, district court form DC-406 as provided in Virginia Code 32.1-45.1. In determining whether testing should be required, the judge shall be advised by the Director of the local Health Department, as the designee of the State Health Commissioner. The results of the tests and the case record shall be confidential as provided in Virginia Code 32.1-36.1. The case record shall be sealed. N. CONFIDENTIALITY OF RECORDS 1. Fingerprints and Photographs of Juveniles Fingerprints and photographs of a juvenile must be taken by law enforcement officers if the juvenile is taken into custody and charged with an offense which, if committed by an adult, would be reportable to the Central Criminal Records Exchange (CCRE) pursuant to paragraph A of Virginia Code 19.2-390. The fingerprint records must be maintained separately from the adult records and a copy must be filed with the juvenile court on forms provided by CCRE. If a juvenile of any age is adjudicated delinquent or found guilty of an offense which, if committed by an adult, would be a felony or otherwise reportable to CCRE pursuant to paragraph C of Virginia Code 19.2-390, the clerk of the juvenile court shall forward copies of the juveniles fingerprints and the courts disposition to the CCRE. Fingerprints and photographs shall be retained or disposed of by law enforcement officers as follows: If a petition or warrant is not filed against the juvenile, all fingerprint cards and photographs shall be destroyed within sixty days after the fingerprints were taken.
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If a juvenile charged with a delinquent act other than a violent juvenile felony or an ancillary crime is found not guilty or in any other case resulting in a disposition for which fingerprints are not required to be forwarded to the Central Criminal Records Exchange, the court shall order that the fingerprint card, all copies of the fingerprints and all photographs be destroyed within six months of the date of disposition of the case. The class of violent juvenile felonies consists of: . . . . . . . . . . . . . . . . Capital murder, 18.2-31 First and Second degree murder, 18.2-32 Lynching, 18.2-40 Aggravated malicious wounding, 18.2-51.2 Felony homicide, 18.2-33 Felonious injury by mob, 18.2-41 Abduction, 18.2-48 Malicious wounding, 18.2-51 Malicious wounding of a law enforcement officer, 18.2-51.1 Felonious poisoning, 18.2-54.1 Adulteration of products, 18.2-54.1 Robbery, 18.2-58 Carjacking, 18.2-58.1 Rape, 18.2-61 Forcible sodomy, 18.2-67.1 Object sexual penetration, 18.2-67.2
Ancillary crime is defined as any delinquent act committed by a juvenile as a part of the same act or transaction as, or which constitutes a part of a common scheme or plan with, a delinquent act which would be a felony if committed by an adult. 2. Confidentiality of Department of Juvenile Justice Records (including the Court Services Unit), Virginia Code 16.1-300 The records and reports in the records of children who are or have been before the court, under the supervision or receiving services from the court services unit or who are committed to the Department of Corrections shall be confidential and shall be open to inspection only to: The judge, prosecuting attorney, probation officers and professional staff assigned to the court who has the child before it. Any person or agency treating the child pursuant to a contract with the department or to the Virginia Juvenile Community Crime Control Act (Va. Code 16.1-309.2 et seq.). The childs parent, guardian, legal custodian, or person standing in loco parentis and the childs attorney. Any person previously a ward of the department and who has reached his majority, and requests access to his records. Any other person, agency or institution, by order of the court, having a legitimate interest in the case or the work of the court.
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Any person, agency or institution having a legitimate interest when release of the confidential information is (i) for the provision of treatment or rehabilitation services for the juvenile who is the subject of the information or (ii) when the requesting party has custody or is providing supervision for a juvenile and the release of the confidential information is in the interest of maintaining security in a secure facility as defined by 16.1-228. Any attorney for the Commonwealth, any pretrial services officer, local community-based probation officer and adult probation and parole officer for the purpose of preparing pretrial investigation, including risk assessment instruments, presentence reports, including those provided in 19.2-299, discretionary sentencing guidelines worksheets, including related risk assessment instruments, as directed by the court pursuant to subsection C of 19.2-298.01 or any court-ordered post-sentence investigation report. Any agency required to audit or monitor program effectiveness or for conducting authorized research. 3. Confidentiality of Law Enforcement Records, Virginia Code 16.1-301 The court shall require all law enforcement agencies to take special precautions to ensure their files and records concerning a juvenile are protected against disclosure. The law enforcement agencies shall keep separate records as to violations of law committed by juveniles except violations of the motor vehicle laws. Such records or files shall not be open to public inspection except in the case of a juvenile 14 years of age or older who is charged with a violent juvenile felony. Va. Code 16.1-301. Such records and files may be inspected only by: A court having the juvenile currently before it in any proceeding. Any agency to which the juvenile is committed and those responsible for his supervision after release therefrom. Any person, institution or agency, by order of court, having a legitimate interest in the case or the work of the law enforcement agency. Law enforcement officers of other jurisdictions when necessary for the discharge of their official duties, and then only on order of the court. Probation officers and professional staff of any court in which the juvenile is subsequently convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding and officials of penal institutions to which he is committed or a parole board. The juvenile, his parent, guardian or other custodian or the juveniles attorney. As provided in the procedures for dissemination of CCRE information contained in Virginia Code 19.2-389.1 and 19.2-390.
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The exchange of criminal investigative or intelligence information among law enforcement agencies shall be permitted. Law enforcement may release current information on juvenile arrests or juvenile victims to the Virginia Workers Compensation Commission solely for the purpose of determining whether to make an award to the victim of a crime. The information shall not be disseminated or used by the Commission for any other purpose.
4. Docket and Order Books, Hearings and Records, Public Trial, Presence in Court Each juvenile and domestic relations district court and circuit court shall keep a separate docket of cases arising under this law. The Case Management System (CMS) is considered the court docket record. In cases not involving violations of criminal laws or traffic infractions, the general public shall be excluded from all juvenile and domestic relations district court hearings and only such persons admitted as the judge shall deem proper. In a hearing on violation of a criminal law, the child or adult so charged shall have a right to be present and a right to a public hearing unless expressly waived. In custody matters, the presence of a child of tender years may be waived by the judge. Hearings in proceedings where a juvenile has been charged with what would be a felony if committed by an adult are open, but may be closed by the court for good cause. Va. Code 16.1-302. 5. Disposition of Papers All papers shall be properly indexed, filed and preserved in the juvenile and domestic relations district court unless a case is appealed, transferred, or certified to the circuit court. 6. Confidentiality of Court Records, Virginia Code 16.1-305 Social, medical, psychiatric or psychological records, including all reports or preliminary inquiries, predisposition studies and supervision records of all children shall be filed with the other papers in the juveniles file, but shall be filed separately from adult files and records of the court and juvenile records may be inspected only by: The judge, probation officers and professional staff assigned to serve the court. Agencies providing supervision or having legal custody of the child or furnishing treatment of a child ordered or requested by the court. The attorney for any party to the case. Adult probation officers including United States Probation Officers doing a presentence report upon a finding of guilty. Local pre-trial agencies and local community-based probation programs Any person or agency by order of court, having a legitimate interest in the case or in the work of the court.
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A copy of the court order of disposition in a delinquency case must be provided to a probation officer or a Commonwealths attorney, when requested for the purpose of calculating sentencing guidelines. The Commonwealths Attorney and any local pretrial services or community-based probation officer or state adult probation or parole officer shall have electronic access to a defendants delinquency records for the strictly limited purposes of preparing a pretrial investigation report, including any related risk assessment instrument, any presentence report, any discretionary sentencing guidelines worksheets, including related risk assessment instruments, any post-sentence investigation report or preparing for any transfer or sentencing hearing. A licensed bail bondsman is entitled to determine the status of a bond he or she has posted or provided surety on for a juvenile. This does not authorize access to or the right to inspect any other portion of the juveniles court records. All of the records enumerated above or information secured from such records which are presented to the judge in court or otherwise presented in a proceeding under the juvenile and domestic relations district court law shall also be made available to the parties to the proceeding and their attorneys. All other juvenile records, including the docket, petitions, motions and other papers filed with a case, transcripts of testimony, findings, verdicts, orders and decrees, shall be open to inspection only by those persons and agencies named above. However, if a juvenile 14 years or older is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records relating to that adjudication and any subsequent adjudication of delinquency shall be open to the public, other than those records specified in section A of Virginia Code 16.1-305 (social, medical and psychiatric or psychological records, including reports or preliminary inquiries, predisposition studies and supervision records). If the hearing in this proceeding was closed by the court, the records or portions of the records may be kept confidential in order to protect a juvenile victim or juvenile witness. See RECORDS RETENTION AND DESTRUCTION, APPENDIX B, for detailed records requirements for juvenile cases. In certain instances, disposition of delinquency cases shall be reported by the clerk of the court to the superintendent of the school division in which the child is enrolled at the time of disposition or was enrolled at the time of the offense. Va. Code 16.1-305.1. Attested copies of the papers file din connection with an adjudication of guilt for a delinquent act that would be a felony if committed by an adult, which show the charge, finding, disposition, name of attorney for the juvenile or waiver of attorney by the juvenile, shall be furnished to an attorney for the Commonwealth upon certification that such papers are needed as evidence in a pending criminal prosecution for a violation of Virginia Code 18.2-308.2 and that such papers will be used only for such evidentiary purpose. Upon request, a copy of the court order of disposition in a delinquency case shall be provided to the Virginia Workers Compensation Commission, solely for the purpose of determining whether to make an award to the victim of a crime. Va. Code 16.1-305(E). Attested copies of papers filed in connection with an adjudication of guilty for an offense for which the clerk is required by Virginia Code 46.2-383 to furnish an abstract to the Department of Motor Vehicles shall be furnished to a Commonwealths Attorney upon certification that such papers are needed as evidence in a pending criminal, traffic or habitual offender proceeding and will be used only for such evidentiary purpose.
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The court service unit or the Commonwealths Attorney shall provide notice of the disposition of any case involving a juvenile committed to state care after adjudication for a sexual assault (as specified in Virginia Code 18.2-61 et seq.) to the victim or parent of a minor victim. Va. Code 16.1-305(F). When the public interest requires, the court shall make available to the public the name and address of a juvenile and the nature of the offense for which a juvenile has been adjudicated delinquent (i) for an act which would be a Class 1, 2 or 3 felony, forcible rape, robbery or burglary or a related offense as set out in Article 2 ( 18.2-89 et seq.) of Chapter 5 of Title 18.2 if committed by an adult, or (ii) in any case where a juvenile is sentenced as an adult in circuit court. When a juvenile 14 years of age or older is charged with delinquent act that would be a criminal violation of Article 2 of Chapter 4 of Title 18.2 (crimes by mobs), a felony involving a weapon, a felony violation of Article 1 of Chapter 7 of Title 18.2 (drug violations), or an act of violence, (e.g. murder, mob violence, kidnapping) as defined in 19.2-297.1 if committed by an adult, the court may, where consideration of the public interest requires, make the juveniles name and address available to the public. A copy of any court order that imposes a curfew or other restriction on a juvenile may be provided to the chief law-enforcement officer of the county or city where the juvenile resides. The chief law-enforcement officer shall only disclose information contained in the court order to other law-enforcement officers in the conduct of official duties. 7. Confidentiality of Circuit Court Records In proceedings against a child in circuit court, where the court deals with the child as a juvenile, the clerk thereof shall preserve all records connected with the proceeding in files separate from other files; such files shall be open for inspection pursuant to the provisions of Virginia Code 16.1-305, except as provided in the procedures for dissemination of CCRE information. Va. Code 16.1-307. 8. Disclosure of Vital Records The judge may order disclosure of information in vital records pursuant to Virginia Code 32.1-271. 9. Sex Offenders and Crimes Against Minors Registry Any adult convicted of a misdemeanor violation of 18.2-63, carnal knowledge of a minor, shall be remanded to the local law enforcement agency to provide fingerprints and photographs of a type and kind specified for inclusion in the Sex Offender and Crimes Against Minors Registry and shall be required to provide to the law enforcement agency of the county or city in which he or she resides all information required by the State Police for inclusion in the Registry. Va. Code 9.1-901; 9.1-903. Juveniles adjudicated delinquent are not generally required to register. However, if a juvenile over the age of 13 at the time of the offense is adjudicated delinquent of one of the offenses listed in Virginia Code 9.1-902 requiring registration, the court may, in its discretion and upon motion of the attorney for the Commonwealth, find that the circumstances of the offense require offender registration. In determining whether it is appropriate to require registration, the court shall consider all of the following factors that are relevant to the case:
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The degree to which the delinquent act was committed with the use of force, threat, or intimidation, The age and maturity of the complaining witness, The age and maturity of the offender, The difference in the ages of the complaining witness and the offender, The nature of the relationship between the complaining witness and the offender, The offenders prior criminal history, Any other aggravating or mitigating factors relevant to the case. Virginia Code 9.1-902 (C).
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APPENDIX STANDARDS TO GOVERN THE PERFORMANCE OF GUARDIANS AD LITEM FOR CHILDREN These standards apply to all attorneys serving as Guardians ad litem for children in child protection1, custody and visitation, juvenile delinquency, child in need of supervision, child in need of services, status offense and other appropriate cases, as determined by the court, in juvenile and domestic relations district courts, circuit courts, the Court of Appeals and the Supreme Court of Virginia. These standards augment the policies governing the qualification of attorneys as Guardians ad litem. INTRODUCTORY COMMENT: Many of the competencies required to represent children are the same as those required for many other types of litigation. There are skills, abilities and actions expected of attorneys in all cases such as conducting interviews, framing and evaluating pleadings, engaging in discovery techniques, thoroughly preparing for trial, and negotiating on behalf of a client. These skills are of equal importance to other types of civil cases such as labor, tort, contract or family law. The need for practices such as comprehensive client interviews is present in every case. Likewise attorneys involved in any form of litigation must make choices and determine strategic options. For example, the need to interview non-parties depends on the nature of the case and the litigators goal. Hence, qualifying phrases like as appropriate or in so far as possible are found in several standards and commentaries. Representing children, however, is also different from other forms of litigation. The importance of the dispositional process and the potential for court proceedings to affect the very nature of a family provide the basis for these distinctions. The long-term consequences to the child client make the role of a Guardian ad litem (GAL) as crucial at the dispositional stage as at any other phase of the case. These consequences demand full attention to the formulation and articulation of well-supported arguments and appropriate recommendations, as well as critical evaluation of plans proposed by others. The GAL acts as an attorney and not a witness, which means that he or she should not be crossexamined and, more importantly, should not testify. The GAL should rely primarily on opening statements, presentation of evidence and closing arguments to present the salient information the GAL feels the court needs to make its decisions.
1 Child protection cases includes cases where a public or private child welfare agency is involved and concern children who are the subject of any of the following petitions: child abuse or neglect; child at-risk for abuse or neglect; approval of an entrustment agreement or for relief of custody; foster care review; permanency planning and termination of parental rights.
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The implicit set of checks and balances operative in non-juvenile cases is generally not likely to work for children. In a civil action involving adults, the successful party knows when a judgment is paid or a court order is implemented. In proceedings involving children this may not be so; the child may be too young to understand or monitor orders, or the legal proceedings may be too complex for the child to understand. Thus, these standards incorporate provisions regarding communication with the child, the implementation of orders and appeals. Attorneys who serve as GALs are subject to the Rules of Professional Conduct promulgated by the Virginia State Bar as they would be in any other case, except when the special duties of a GAL conflict with such rules. For example, an attorney would follow the general conflict rule (1.7) to determine if there would be a possible conflict of interest if the attorney served as GAL. But unlike the Rules for Professional Conduct as they apply to confidentiality, there may be times when attorneys serving as a GAL must, in furtherance of their role as GAL, disclose information provided by the child to the court. A GAL appointed to represent siblings should be alert to potential conflicts and, when appropriate, request that the court appoint a separate GAL for each child. The role and responsibility of the GAL is to represent, as an attorney, the childs best interests before the court. The GAL is a full and active participant in the proceedings who independently investigates, assesses and advocates for the childs best interests. Decision-making power resides with the court.
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Standards Governing Performance In fulfilling the duties of a Guardian ad litem (GAL), an attorney shall: A. Meet face-to-face and interview the child. COMMENT: The first duty of the GAL is to establish a relationship with the child client, as an attorney would with any client. This interview should be conducted face-to-face at a time and place that allows the GAL to observe the child and ascertain: the childs wishes, the safety and adequacy of the childs current placement, and the need for further testing, evaluation or interim judicial relief. Such interviews are best conducted on a date prior to the first court appearance and at a location other than the courthouse. It is important to meet with the child in a private setting, such as the GALs office, the childs home, school or placement, away from the litigants so that the child can talk openly. There should be sufficient time between the interview and court appearances for the GAL to fully analyze the information gleaned, take appropriate actions and formulate meaningful arguments and recommendations. The content and direction of the interview should take into account the childs age, maturity and potential stress created by the circumstances of the case and prior interviews, especially in cases involving allegations of sexual or other abuse. In such cases, GALs should rely upon videotapes of forensic interviews or attend interviews of the child conducted by trained experts rather than conducting their own independent investigation and interviewing the child about the facts of their alleged victimization. As appropriate, children should be encouraged to articulate their concerns and views. In custody and visitation cases, care should be taken so that the child never feels compelled to state a preference or choose between parents or placements. In juvenile delinquency, child in need of supervision, child in need of services, and status offense cases, the GAL should exercise caution when talking to the child about the circumstances of the offense and advise the child about the limitations on confidentiality that may apply. Young children present a challenge, but the age and verbal ability of the child do not abrogate the responsibility to meet face-to-face with the child. In meetings with young children, and with children with limited language abilities or those with disabilities, the GAL will rely much more heavily on observation. Conducting such meetings at the childs home or placement allows the GAL to observe the surroundings and the childs interactions with others, as well as to interview the childs caretaker.
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If the child expresses wishes that are contrary to the GALs assessment of the childs interests and welfare, the GAL is obligated to inform the court of these wishes. If appropriate, the GAL should request that an attorney be appointed to serve as counsel for the child. If the child is uncooperative or appears to have been influenced by a parent or custodian, the GAL should inform the court of these circumstances. B. Conduct an independent investigation in order to ascertain the facts of the case. COMMENT: The GAL shall review any and all relevant records, which may include court, social service, medical, mental health, and school records. The GAL should attach a copy of the Supreme Court of Virginias Form DC-514, ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, to any written request for records since it delineates the statutory authority for access to records. The GAL shall interview the parties to the dispute and any other persons with relevant knowledge of the child and the facts that gave rise to the allegations. Such other persons would include, for example, the childs parents, current caretaker including foster parents, an assigned Court-Appointed Special Advocate (CASA) worker, social worker, child care provider, clergy, neighbors, relatives, school personnel, and health and mental health providers. When the child is young, there is a greater need to seek independent sources of information and obtain verification of salient facts. Such interviews are best conducted on a date prior to the court appearances and at a location other than the courthouse. GALs should communicate their role and responsibilities clearly to the parents and/or other partys attorneys including the GALs legal status in the proceeding and responsibility to participate fully to protect the childs interests and express the childs wishes. In juvenile delinquency, child in need of supervision, child in need of services, and status offense cases, the GAL should contact the childs defense attorney. There should be sufficient time between the interview and court appearances for the GAL to fully analyze the information gleaned, take appropriate actions such as issuing subpoenas, filing motions for temporary or protective relief or appointment of an independent expert to evaluate the child, and formulate a meaningful strategy. If the home environment is at issue, the GAL should visit the childs home and any proposed alternative placement. GALs should independently evaluate all allegations of child abuse or neglect, or of risk to the childs safety or welfare, including but not limited to physical or mental abuse, sexual abuse, lack of supervision, educational neglect, and exposure of the child to domestic violence or substance abuse, regardless of whether such abuse or neglect or risk is identified in the parties pleadings.
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C. Advise the child, in terms the child can understand, of the nature of all proceedings, the childs rights, the role and responsibilities of the GAL, the court process and the possible consequences of the legal action. COMMENT: The GAL shall make every effort to ensure that the child understands, by using language appropriate to the childs age and verbal abilities, the nature of the proceedings, the consequences which may result, the possibility of future modifications, the attorneys responsibilities as a GAL, and how to contact the GAL. If the child has significant emotional problems, the GAL should consult with a mental health specialist or the childs therapist in order to determine the best manner to present this information. In juvenile delinquency, child in need of supervision, child in need of services, and status offense cases, the GAL should explain how the GALs role and responsibilities differ from that of the childs defense attorney and advise the child about the limitations on confidentiality that may apply. The GAL must inform the child that there may be circumstances when confidentiality will apply to communication between the child and GAL, and circumstances when it may not. The GAL may use information received from the child to further the childs best interest. For example, the GAL may learn from the child that a custodian is taking illegal drugs and may use that information to request that the court order drug testing of the custodian. The GAL should keep the child apprised of any developments in the case and actions of the court or parties involved. The GAL shall maintain meaningful contact with the child throughout the term of the case to monitor the childs welfare and the parties compliance with court orders.
D. Participate, as appropriate, in pre-trial conferences, mediation and negotiations. COMMENT: The GAL should be involved, as appropriate, in all pre-trial conferences and negotiations including phone calls, formal or informal conferences and mediation. Additionally, the GAL should take any action necessary to attempt to resolve the case in the least adversarial manner possible; however, a GAL should clarify, when necessary, that he or she is not acting as a mediator. The GALs role in such meetings is to represent and advocate for the best interests of the child. A GAL who participates in mediation is bound by the confidentiality rules governing mediation as found in 8.01-576.10 of the Code of Virginia. As a general rule, the GAL should encourage settlements. In exceptional cases where the GAL reasonably believes that a proposed settlement would be contrary to the welfare of the child, the GAL should first discuss these concerns with the parties and their counsel. If these concerns are not addressed, the GAL should bring the facts that led to the concerns about the
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settlement to the courts attention by filing a motion to vacate the agreement in accordance with 8.01-576.12 of the Code of Virginia. Any proposed settlement which is deleterious to the child should be opposed despite the agreement of the other parties. E. Ensure the childs attendance at all proceedings where the childs attendance would be appropriate and/or mandated. COMMENT: In so far as possible, the GAL should assure the meaningful participation of the child in all phases of the proceedings which would include attendance at appropriate court hearings. The GAL should consult the child, caretaker, therapist and any other relevant individuals to determine the appropriateness of the childs attendance at a hearing. A decision to exclude the child from a hearing should be based on a particularized determination. In making this determination, the GAL should consider the age, maturity and desires of the child; the purpose of the hearing; the advice of those consulted; and the potential risk of trauma to the child evoked by such attendance. In cases when the child has the right to attend hearings, the GAL should ensure that the child is informed of that right. As appropriate, the child should be provided sufficient information about such hearings to make an informed decision about whether to attend. F. Appear in Court on the dates and times scheduled for hearings prepared to fully and vigorously represent the childs interests. COMMENT: As in any case, the GAL is expected to act as an advocate for the client child. This demands attendance at all hearings with the intention of presenting a well formulated position based on the facts. This position should be supported by the GALs independent investigation, and through the development of a theory and strategy for the case. The GAL should prepare, present and crossexamine witnesses, offer exhibits, and provide independent evidence as necessary. Although the childs position may overlap positions of other parties such as the parents, the GAL should be prepared to participate fully in every hearing and not merely defer to or endorse the positions of other parties. The GAL acts as an advocate and uses every attorney skill appropriate to further a result favorable to the childs best interest. The GAL should never engage in ex parte communications with the court or submit written material to the court without promptly delivering a copy to the other parties and their counsel.
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G. Prepare the child to testify, when necessary and appropriate, in accord with the childs interest and welfare. COMMENT: The GAL should determine whether to call the child as a witness based on consideration of the childs need or desire to testify, developmental and verbal capabilities of the child and the childs ability to withstand cross-examination. For some children testifying is therapeutic and empowering, while for others it may be very traumatic. The GAL must determine the possible benefits and repercussions of testifying and the necessity of the childs direct testimony. The GAL shall consult a mental health specialist or therapist working with the child, if there is one, to assist in evaluating whether testifying will cause trauma to the child. Consideration should also be given to the availability of other evidence or hearsay exceptions that may substitute for direct testimony. If the child does not wish to testify or would, in the GALs opinion, be harmed by being forced to testify, the GAL should seek an agreement of the parties not to call the child as a witness or utilize other remedies such as an order from the court to limit the scope or circumstances of the testimony. If the child is compelled to testify, the GAL should seek to minimize the adverse consequences by seeking appropriate accommodations as allowed by law, such as testimony taken by closed circuit television in accord with 63.2-1521 of the Code of Virginia or an in camera interview of the child in the judges chambers. The GAL should prepare the child for in camera interviews or testimony by explaining the nature and purpose of the proceeding and the use or disclosure that may be made of the information that the child provides during the proceeding. In juvenile delinquency, child in need of supervision, child in need of services, and status offense cases, the childs defense attorney will take responsibility for preparing the child to testify when necessary. H. Provide the court sufficient information including specific recommendations for court action based on the findings of the interviews and independent investigation. COMMENT: The GAL is obligated to assure that all facts relevant to the case, available dispositional remedies and possible court orders are presented to the court. The GALs arguments to the court should address every appropriate aspect of the litigation including: analysis of any allegations of abuse, neglect or risk; analysis of factors to be considered in a determination related to custody and visitation; placement of the child; services to be made available to the child and family; dispositional alternatives for the child or parents in juvenile delinquency, child in need of supervision, child in need of services, status offense cases and custody and visitation arrangements; and any other orders the GAL deems to be in the childs interest. Recommendations for placements outside the home should take into
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consideration the availability and appropriateness of placement with relatives or friends, parental visitation and keeping a sibling group together. The GALs arguments should contain, but not be limited to, an analysis of and comment on plans presented by other parties such as the Department of Social Services, court services staff, or as a result of mediation. In certain circumstances, a summary of the GALs findings with recommendations and the basis for those recommendations may be presented to the court. Such circumstances include the dispositional phase of a case involving both an adjudicatory and dispositional phase or, at the request of the court, in a custody/visitation case. This summary may be written or oral. If written, copies of the summary should be provided to the other parties and their counsel at least five days prior to the hearing unless otherwise directed by the court. In foster care placement, permanency planning, foster care review proceedings, and mediated agreements, the GAL should be aware of the proposed plans, should consult with the child about the proposal, and explore any alternatives the GAL believes are more appropriate. If the GAL disagrees with such plans, the court should be advised of this disagreement supported by evidence or information gleaned from the GALs independent investigation. I. Communicate, coordinate and maintain a professional working relationship in so far as possible with all parties without sacrificing independence. COMMENT: Whenever it is appropriate to the childs needs and consistent with the direction of the court, the GAL should attend all meetings or hearings involving legal, educational and therapeutic issues specifically related to the case. These would include meetings of the Family Assessment and Planning Team, Individualized Education Plan (IEP) meetings, school disciplinary or other educational meetings, and foster care placement and review meetings. The GAL can present the childs perspective, gather information necessary to proper representation, and potentially achieve a negotiated settlement of all or some issues of the case at such meetings. The GAL should contact any CASA volunteer assigned to the case and coordinate all aspects of the investigation with the CASA volunteer. Such volunteers can offer significant information and assistance to the GAL. The GAL should contact the attorneys for the other parties to the case as soon as possible and at least seventy-two hours prior to any hearing. Counsel for other parties to the case may have information not included in any of the available records and can provide their respective clients perspectives. Appropriate communication should be maintained between the GAL and all agencies and professionals involved in the case.
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J. File appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is represented by a GAL in any appeal involving the case. COMMENT: The GAL should make appropriate motions, including motions in limine and evidentiary objections, to advance the childs best interest in court and during other proceedings. When necessary, the GAL should file briefs in support of legal issues. The GAL should file a show cause against a party who is not following a court order or a motion under 16.1-278 to compel an agency to provide services if it is not doing so as ordered. If the GAL believes the courts determination is contrary to the childs interest or welfare, after considering the wishes of the child, a notice of appeal should be filed and measures taken to assure that the appeal is perfected expeditiously. The GAL should file any appropriate pleadings on behalf of the child, including responses to pleadings of other parties. The GAL should also ensure that the child has representation in any appeal related to the case regardless of who files the appeal. During an appeal process initiated by another party, the GAL for a child may file a brief and participate fully at oral argument. If the GAL feels he or she lacks the necessary experience or expertise to handle an appeal, the GAL should notify the court and seek to be replaced. K. Advise the child, in terms the child can understand, of the courts decision and its consequences for the child and others in the childs life. COMMENT: The GAL should review all orders to ensure they conform to the courts verbal orders and statutorily required findings and notices. The GAL should discuss all such orders and their consequences with the child. The child is entitled to understand what the court has done and what that means to the child. The GAL should explain whether the order may be modified or whether the actions of the parties may affect how the order is carried out. For example, an order may permit an agency to return the child to the parents if certain goals are accomplished. ___________________ The American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, approved by the American Bar Association House of Delegates, February 5, 1996; American Bar Association Family Law Section Standards of Practice for Lawyers Representing Children in Custody Cases, Committee final draft approved April 24, 2003, and approved by the Section Council on May 2, 2003; The New York State Bar Association Committee on Children and the Law: Law Guardian Representation Standards, Volume II, Custody Cases, November 1999;
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Representing Children: Standards for Attorneys and Guardians Ad Litem in Custody and Visitation Proceedings, American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (NACC Revised Version), National Association of Counsel for Children, February 1996; American Academy of Matrimonial Lawyers, 1995; and Richmond Juvenile and Domestic Relations District Court Guardian Ad Litem Standards were heavily relied upon in the development of these standards. Effective Date: September 1, 2003
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Juv & Dom Rel Dist Ct Proc

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CHAPTER IX

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

2. Venue of Proceedings Arising Out of Chapter 5 of Title 20 ( 20-61 et seq.) ........................................................... 6

2. Pre-trial Procedures .......................................................................................................................................................... 15

3. Trial Procedures ................................................................................................................................................................ 25

3. Pre-trial Procedures .......................................................................................................................................................... 41

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

2. Preliminary Protective Proceedings. Va. Code 16.1-253......................................................................................... 61

3. Petition by Custodian for Relief of Custody. Va. Code 16.1-277.02, 16.1-278.3................................................ 71

4. Petition for Approval of Entrustment Agreement. Va. Code 16.1-277.0163.2-903. .......................................... 80

6. Termination of Residual Parental Rights. Va. Code 16.1-283. .............................................................................. 119

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

5. Protective Orders Stalking ......................................................................................................................................... 139

2. Support Cases.................................................................................................................................................................. 152

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

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JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

information about the alleged offense.

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES

VIRGINIA DISTRICT COURT MANUAL

JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT PROCEDURES