THE CIRCUIT COURT OF CAROLINE COUNTY Sarah L. Deneke, Judge
Airington-Fisher (Airington, Stone & Rockecharlie, PLLC,
on briefs), for appellant.
Jennifer C. Williamson, Senior Assistant Attorney General
(Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy
Attorney General; Kim F. Piner, Senior Assistant Attorney
General/Section Chief, on brief), for appellee.
Present: Judges O'Brien, Malveaux and Senior Judge
Clements Argued at Richmond, Virginia
BENNETT MALVEAUX, JUDGE
Washington ("appellant") appeals an order of the
Caroline County Circuit Court ("circuit court")
that sustained the Virginia Department of Social
Services' ("VDSS") plea in bar by special
appearance and dismissed his petition for appeal for lack of
jurisdiction. On appeal, he argues that the circuit court
erred in ruling that his failure to comply with the service
provisions of Rule 2A:4(a) divested the court of jurisdiction
and in sustaining the plea in bar on that ground. For the
following reasons, we affirm.
April 2017, after receiving and investigating a complaint
that appellant had physically abused his daughter, the
Caroline County Department of Social Services entered a
disposition of "Founded-Physical Abuse." Pursuant
to Code § 63.2-1526(A), appellant appealed this
disposition, which was sustained at a local conference appeal
hearing. Appellant then appealed to VDSS, which sustained the
disposition on March 27, 2018.
April 17, 2018, VDSS received correspondence from appellant
in which he requested to appeal VDSS's decision.
Appellant's letter did not indicate that he had also sent
a copy to his counsel or had made his counsel aware of the
April 19, 2018, counsel for appellant filed a notice of
appeal with VDSS.
21, 2018, counsel for appellant filed a petition for appeal
in the circuit court, a copy of which had been mailed to
VDSS. Along with the petition, counsel for
appellant included a cover letter to the court that stated,
"Enclosed please find a Petition for Appeal regarding
the above-referenced case along with a check for the filing
fee in the amount of $84.00." Appellant did not enclose
paper copies of his petition in order for the circuit court
clerk to prepare a summons and issue process, and he did not
pay the fees for service or request service.
October 16, 2018, the petition for appeal was served on Dr.
Daniel Carey, Virginia's Secretary of Health and Human
Resources. The proof of service indicates that the
summons was issued on August 22, 2018. There is no indication
in the record that VDSS itself was served with process.
October 24, 2018, VDSS, by special appearance, filed a plea
in bar asserting that the circuit court lacked jurisdiction
to hear the appeal. VDSS argued that the circuit court lacked
jurisdiction for two reasons: (1) appellant himself filed a
notice of appeal on April 17, 2018, and because his petition
for appeal was filed more than thirty days after that notice,
his petition was untimely under Rule 2A:4(a); and (2)
appellant failed to comply with Rule 2A:4(a)'s mandatory
provisions for service on VDSS.
circuit court heard argument on VDSS's plea in bar and
then issued a letter opinion in which it granted VDSS's
plea in bar and dismissed appellant's appeal for lack of