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Two new Published Opinion from the Court of Appeals

| Apr 5, 2022 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals returns with two published opinion on this Tuesday, which also happens to be the first day that the Supreme Court has returned to in-person arguments for writ panels — which is why this post come to you from our fair Capitol City and not the Star City of the Blue Ridge as your humble correspondent is both presenting argument and observing argument.

Anita Shana-Nicole Simms v. Alexandria Department of Community and Human Services poses the question whether a circuit court has jurisdiction to consider a petition seeking termination of parental rights while an appeal of a prior determination of neglect and abuse is on appeal.  The short answer, for those who are not interested in procedural minutiae (which IMHO you should be, but I get that not everyone is a procedural geek) is “yes.”  The procedural minutiae are really not that complicated, but do tell a story that is tragically all too common in our society.  Simms was a drug-abuser and had previously had her parental rights to three other children terminated.  In June 2019, she gave birth to twins prematurely following a high risk pregnancy.  Simms admitted that she had abused drugs during the pregnancy.  Within a month of the birth, the Department made a finding of probable cause that the children were being abused or neglected and removed them from Simms’ care to foster care.  The juvenile court found that the allegations of abuse and neglect were substantiated and approved a plan for return to custody of the children’s birth father or adoption.  Simms appealed this decision to the circuit court.

While the appeal de novo was pending and after it was determined that the father did not wish to seek custody, the Department filed a petition to change the goal to non-family adoption which was approved by the juvenile court.  The circuit court meanwhile found that the allegations of abuse and neglect were substantiated and Simms appealed this judgment to the Court of Appeals.

While the appeal of right was pending in the Court of Appeals, the Department filed a petition to terminate Simms’ parental rights and proceed to a permanent placement adoption.  The juvenile court terminated Simms’ parental rights and approved the adoption.  Simms appealed this decision and moved for a stay of the proceedings pending the outcome of the appeal of the abuse and neglect determination.  The Department opposed the stay, contending that the termination petition was based on considerable evidence apart from the initial finding of abuse and neglect.  The Department further contended that a delay in the proceedings would not be in the best interest of the children.  The circuit court refused the motion for stay, but noted that the Department conceded that a reversal of the judgement of well-founded abuse and neglect would necessarily render the subsequent proceedings “null and void.” The petitions were approved by the circuit court, and Simms appeal this judgment to the Court of Appeals.

Although the Court of Appeals notes that the first appeal was resolved in favor of the Department, this does not resolve the issue of whether the circuit court erred in not staying the proceedings to await that outcome.  The Court first addresses whether the circuit court had active jurisdiction (as opposed to subject matter jurisdiction).  This question turns on the interpretation of the various statutes involved, which expressly reserve continuing jurisdiction in abuse and neglect matters while those issues are one appeal, but are silent on whether the court has jurisdiction to terminate parental rights pending an appeal of those matters.  The Court concludes that the parties are not addressing the proper issue — because both assumed that the reservation of jurisdiction in one proceeding necessarily implied something — either positive or negative — about the jurisdiction in a related, but separate, statutory process.  Because termination of parental rights is a separate proceeding from removal for abuse and neglect, the reservation of jurisdiction by statute in the latter has no impact whether the circuit court can exercise jurisdiction in the former.

The Court next addresses whether the circuit court abused its discretion in not staying the proceedings because, while the pending appeal did not impact the court’s jurisdiction, it did nonetheless have a potentially significant impact on the outcome of the case, as the Department acknowledged.  Because this is a matter committed to the court’s discretion, and because there was considerable evidence apart from the finding of abuse and neglect that Simms was not capable of regaining custody of the children, the Court of Appeals concludes that the circuit court did not abuse its discretion.  A challenge to the sufficiency of the evidence is likewise found to be without merit.

Jacques Lamar Walker v. Commonwealth of Virginia involves charges stemming from an armed bank robbery with four victims.  The principal issues are whether the evidence showed that Walker “abducted” one of the victims for pecuniary gain and whether the circuit court correctly charged the jury that it could find that the second, third and fourth use of a firearm in the commission of a felony were “subsequent offense” because Walker threatened all four victims simultaneously.  There are additional issues concerning an in court identification and the search of Walker’s cell phone.

Abduction is often charged along with armed robbery, and requires the Commonwealth to prove that the victim was detained in a manner which exceeded that necessary to accomplish the robbery.  Here, the evidence was that Walker struck the victim who then fell to the floor and remained there until the robbery was complete and Walker had left.  Walker contends that because he never verbally ordered the victim to the ground that the the blow was not sufficient to force the victim to the ground, the victim voluntarily chose to lie down rather than as the result of any overt action by Walker.  The Court of Appeals disagrees, saying that Walker’s argument “stretches the concept of voluntariness beyond its breaking point and ignores the context—an ongoing bank robbery—in which the events occurred.”

With respect to whether convictions for use of a firearm are “subsequent” convictions when obtained in the same trial, the Court notes that its prior decisions have held that when a conviction for use of a firearm is obtained in a separate proceeding, the conviction cannot be treated as a subsequent conviction is no final order has been entered in a prior proceeding where a conviction for use of a firearm was obtained.  Here, however, the convictions were all obtained in a single proceeding based on a single transaction — thus Walker’s guilt or innocence rises or falls on all four convictions together, thus either there is an initial and three subsequent offenses or none at all

On the suppression issues, the Court addresses the particular statute that Walker replied upon in seeking to suppress the evidence of the cell phone search based on a defective warrant.  The phrase in that last sentence is that Walker relied upon a “particular statute” and not the 4th amendment.  The majority finds that Walker’s reliance on Code § 19.2-56(A), which contains no exclusionary remedy, dooms Walker’s appeal because the remedy he sought, exclusion of the evidence, was not available under the basis of his argument.

A majority of the panel also affirms on the identification issue as one committed to the circuit court’s discretion. But this decision garners a dissent from Judge Lorish.  The majority inserts a footnote in which it says that Judge Lorish’s issue is based in a general distrust of eyewitness identification.  Given that the defendant was well disguised and the testimony was based on the victim “remembering his eyes,” this is probably a valid criticism by the dissent — but not one that has yet gained purchase with the appellate courts in Virginia.

Finally, while Judge Lorish felt constrained to accept the majority’s view on the three subsequent use of a firearm convictions under the precedent of prior cases, the dissent notes that this result is somewhat absurd in its view in that a conviction not yet final in a separate case cannot be used as a qualification conviction, but a conviction not yet final in the same case can be.  Expect to see a petition for rehearing en banc and/or a petition to the Supreme Court on at least the two issues raised by the dissent.