Citizen Potawatomi Nation v. Dinwiddie Department of Social Services ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
UNPUBLISHED
Argued at Richmond, Virginia
CITIZEN POTAWATOMI NATION
v. Record No. 1713-12-2
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
CITIZEN POTAWATOMI NATION
MEMORANDUM OPINION BY
v. Record No. 1724-12-2 JUDGE WILLIAM G. PETTY
SEPTEMBER 10, 2013
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
CITIZEN POTAWATOMI NATION
v. Record No. 1725-12-2
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
CITIZEN POTAWATOMI NATION
v. Record No. 1726-12-2
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Pamela S. Baskervill, Judge
Lawrence D. Diehl (Ann Brakke Campfield; Brandy M. Poss;
Barnes & Diehl, P.C., on briefs), for appellant.
Joan M. O’Donnell for appellee.
Sherry L. Gill (Jacobs, Caudill & Gill, on brief), Guardian ad litem
for the infant children.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
This appeal involves the application of the Indian Child Welfare Act, 25 U.S.C.
§§ 1901-1963 (2012) (“ICWA”), to proceedings brought to terminate the parental rights of an
Indian parent. Citizen Potawatomi Nation (“Nation”), a federally recognized Native American
Indian Tribe, appeals from an order of the Circuit Court of Dinwiddie County (“circuit court”)
denying its motions to transfer the termination proceedings1 to the Citizen Potawatomi Nation
District Court, Juvenile Division (the “tribal court”). On appeal, the Nation assigns four errors to
the circuit court’s ruling. On brief, the Dinwiddie Department of Social Services (“DSS”) argues
that this Court does not have jurisdiction to hear this appeal because the circuit court’s order
denying the Nation’s motion to transfer was not a final order. We agree with DSS. The order from
which the Nation appealed is neither a final order nor an appealable interlocutory order; therefore,
we dismiss the appeal.
I. BACKGROUND
“On appeal, we view the evidence in the light most favorable to . . . the party prevailing
below, ‘and grant all reasonable inferences fairly deducible therefrom.’” Johnson v. Johnson, 56
Va. App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson, 29 Va. App.
673, 678, 514 S.E.2d 369, 372 (1999)).
In February 2009, Renee Bagley Nunnally (“mother”) gave birth to twins, R. and T.
(“twins”). The father of the twins is Timothy Nunnally (“father”). Mother is an enrolled
member of the Nation, and the circuit court found that the twins are members, or eligible to
become members, of the Nation. See 25 U.S.C. § 1903(4).
As a result of allegations of abuse and neglect, the twins’ guardian ad litem (“GAL”)
filed petitions in the Juvenile and Domestic Relations District Court for Dinwiddie County
1
This appeal involves four separate cases. The Dinwiddie Department of Social Services
filed two separate cases against each parent, one for each child. The Nation was involved in each
case. This appeal concerns only the Nation’s interests. Separate appeals have been filed by the
mother and father.
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(“JDR court”) alleging that the twins were children in need of services. The JDR court
subsequently transferred custody of the twins to DSS. While custody proceedings were pending
in the JDR court, DSS notified the Nation that it was pursuing termination of parental rights.
The Nation filed a motion to intervene2 and a motion to transfer3 the proceedings to the tribal
court. The JDR court denied the motion to transfer but granted the motion to intervene. On
October 14, 2011, the JDR court denied DSS’s petition to terminate parental rights. DSS and the
GAL appealed to the circuit court.
In the circuit court, the Nation again filed a notice of intervention and a motion to transfer
the case to the tribal court. The circuit court heard evidence on January 9, 2012; January 30,
2012; June 4, 2012; and September 11, 2012. At the end of the January 9, 2012 hearing, the
circuit court denied the Nation’s motion to transfer. But the circuit court continued to hear evidence
on the issue in the subsequent hearings. Ultimately, on August 27, 2012, the circuit court entered a
written order denying the motion to transfer and continued the case for further proceedings on the
issue of termination pursuant to ICWA and Virginia Code § 16.1-283. On September 26, 2012, the
Nation filed a notice of appeal. Following the denial of the motions to transfer, and subsequent to
2
25 U.S.C. § 1911(c) provides Indian tribes with the right to intervene “[i]n any State court
proceeding for the foster care placement of, or termination of parental rights to, an Indian child.”
3
Under ICWA, an Indian tribe, or the parents of an Indian child, may file a motion to
transfer a child custody proceeding to the jurisdiction of an Indian tribe. See 25 U.S.C. § 1911. 25
U.S.C. § 1911(b) contains the jurisdictional provisions of ICWA concerning Indian children who
are not domiciled on an Indian reservation:
In any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child’s tribe, the
court, in the absence of good cause to the contrary, shall transfer such
proceeding to the jurisdiction of the tribe, absent objection by either
parent, upon the petition of either parent or the Indian custodian or
the Indian child’s tribe: Provided, that such transfer shall be subject
to declination by the tribal court of such tribe.
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the Nation’s notice of appeal, the circuit court held hearings on DSS’s termination of parental rights
petition. The Nation participated in these hearings as interveners. On October 2, 2012, the circuit
court entered orders for the involuntary termination of the parents’ parental rights.4
II. ANALYSIS
DSS argues on brief that we do not have jurisdiction to hear this appeal because the circuit
court’s August 27 order denying the Nation’s motion to transfer was not a final order. We agree.
“‘The Court of Appeals is a court of limited jurisdiction.’” de Haan v. de Haan, 54 Va. App.
428, 436, 680 S.E.2d 297, 301 (2009) (quoting Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22
Va. App. 595, 599, 471 S.E.2d 827, 829 (1996)). Our jurisdiction is specified by statute. Id. “This
Court has appellate jurisdiction over final decrees of a circuit court in domestic relations matters
arising under Titles 16.1 or 20, and any interlocutory decree or order involving the granting,
dissolving, or denying of an injunction or ‘adjudicating the principles of a cause.’” Wells v.
Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551 (1999) (quoting and citing Code
§ 17.1-405(3)(f), (4)). “Generally, a final order ‘is one which disposes of the whole subject,
gives all the relief contemplated, provides with reasonable completeness for giving effect to the
sentence, and leaves nothing to be done in the cause save to superintend ministerially the
execution of the order.’” Prizzia v. Prizzia, 45 Va. App. 280, 285, 610 S.E.2d 326, 329 (2005)
(quoting James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 (2002)). However, “[a]n order
that ‘retains jurisdiction to reconsider the judgment or to address other matters still pending’ is
not a final order.” Id. (quoting Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 561,
561 S.E.2d 734, 737 (2002)). Therefore, “a ‘decree which leaves anything in the cause to be
4
The parents also appealed the circuit court’s orders. Those appeals are disposed of in a
separate memorandum opinion: Nunnally v. Dinwiddie Dep’t of Soc. Servs., Nos. 1947-12-2,
1948-12-2, 1949-12-2 (Va. Ct. App. Sept. 10, 2013).
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done by the court is interlocutory,’ rather than final, in nature.” Id. (quoting Dearing v. Walter,
175 Va. 555, 561, 9 S.E.2d 336, 338 (1940)).5
A. The August 27 order was not a final order
The ultimate issue that the circuit court had to resolve in this case was whether the
parents’ parental rights should be terminated. Before it could reach this issue, however, the
circuit court had to determine which court had jurisdiction—it or the tribal court. The motion to
transfer was merely a procedural step that the circuit court had to navigate along the road to
deciding whether the parents’ parental rights should be terminated. It was not, contrary to the
Nation’s argument, the circuit court’s final destination in adjudicating the merits of the case.
In its notice of appeal, the Nation appealed “from the Order Denying Motions to Transfer
of [the circuit court] entered on August 27, 2012[,] which was a final order as it relates to the
rights of the [Nation].” Contrary to the Nation’s contention, the August 27 order denying the
motions to transfer was not a final order.6 The August 27 order did not “‘dispose[] of the whole
subject, give[] all the relief that is contemplated, and leave[] nothing to be done by the court.’”
Wells, 29 Va. App. at 85-86, 509 S.E.2d at 551 (quoting Erikson v. Erikson, 19 Va. App. 389,
390, 451 S.E.2d 712, 713 (1994)). Instead, the order explicitly states that “[t]his cause is
continued for further proceedings consistent with this Order.” Thus, the circuit court retained
jurisdiction of the case to consider other matters still pending before it. The “further
proceedings” contemplated by the August 27 order were the termination of parental rights
5
On brief, DSS argues that the Nation should have appealed under Code § 8.01-670.1.
However, “Code § 8.01-670.1 applies only to interlocutory appeals to the Supreme Court of
Virginia. Thus, the Court of Appeals has no jurisdiction to consider an appeal under Code
§ 8.01-670.1.” Commonwealth v. Fairfax Cnty. Sch. Bd., 49 Va. App. 797, 805, 645 S.E.2d 337,
341 (2007).
6
We note, however, that if a court grants a motion to transfer, then it is a final order
because there is nothing left to be done by the court.
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proceedings. Accordingly, because the August 27 order failed to resolve the whole subject of
DSS’s cause—the termination of parental rights—we find that the August 27 order was not a
final order.7
B. The August 27 order was not an appealable interlocutory order
The August 27 order clearly was an interlocutory order. But it is not an appealable
interlocutory order because it did not adjudicate the principles of the cause.
An interlocutory decree adjudicates the principles of a cause when
“the rules or methods by which the rights of the parties are to be
finally worked out have been so far determined that it is only
necessary to apply those rules or methods to the facts of the case in
order to ascertain the relative rights of the parties, with regard to
the subject matter of the suit.”
Whitaker v. Day, 32 Va. App. 737, 743, 530 S.E.2d 924, 927 (2000) (quoting Pinkard v. Pinkard,
12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)). “An interlocutory decree that adjudicates
the principles of a cause is one which must ‘determine the rights of the parties’ and ‘would of
necessity affect the final order in the case.’” Wells, 29 Va. App. at 86, 509 S.E.2d at 551
(quoting Erikson, 19 Va. App. at 391, 451 S.E.2d at 713). Further, “‘[t]he mere possibility that
7
We note that the final order in this case was entered while this appeal was pending
before this Court.
Under settled appellate practice, a notice of appeal of an
interlocutory order must rise or fall based upon the Court’s
authority under Code § 17.1-405(4). Rule 5A:6(a) provides that no
appeal “shall be allowed” unless a notice of appeal has been filed
within 30 days “after” the appealable order. We have recognized
an exception to this rule in cases where the appellant files the
notice of appeal after the pronouncement of judgment, but before
the formal entry of the judgment order. But we have never
suspended the timing requirement altogether to resurrect an
otherwise unsuccessful interlocutory appeal.
Alliance v. Va. Marine, 43 Va. App. 724, 727, 601 S.E.2d 684, 685-86 (2004) (citations
omitted). Thus, this appeal was premature and did not become timely simply because a final
order was entered while the appeal was pending.
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an interlocutory decree may affect the final decision in the trial does not necessitate an
immediate appeal.’” Id. (quoting Erikson, 19 Va. App. at 391, 451 S.E.2d at 713).
Finally, an interlocutory order that adjudicates the principles of the cause “‘must respond
to the chief object of the suit.’” Id. (quoting Erikson, 19 Va. App. at 391-92, 451 S.E.2d at 713).
We have analyzed what constitutes “the chief object of the suit” on several occasions. In Wells
we held that the trial court’s order denying the appellant’s motion to dismiss for lack of subject
matter jurisdiction was not an appealable interlocutory order because it did not respond to the
chief object of the suit, which was to either make a final custody determination or enter a divorce
decree. Id. In Erikson, we held that the trial court’s ruling that the parties were validly married
was not an appealable interlocutory order because it did not respond to the chief object of the
suit, which was to determine whether a divorce would be granted. 19 Va. App. at 391, 451
S.E.2d at 713. In Pinkard, we held that the trial court’s ruling on a pendente lite award was not
an appealable interlocutory order because it did not respond to the chief object of the suit, which
was to secure a divorce. 12 Va. App. at 852-53, 407 S.E.2d at 341-42.
Here, the order denying the motion to transfer did not adjudicate the principles of the
cause. The order, like the denial of the motion to dismiss in Wells, simply decided which court
should adjudicate those principles. It did not address the chief object of the suit, which was to
determine whether the parents’ parental rights should be terminated. Thus, like the orders in
Wells, Erikson, and Pinkard, the August 27 order was not an appealable interlocutory order.8
8
We have noted that there are “significant policy interests [which] counsel against
frequent interlocutory appeals.” de Haan, 54 Va. App. at 440, 680 S.E.2d at 303. Indeed, “the
general rule prohibiting interlocutory appeal ‘preserves the [trial] court’s independence and
protects parties from harassment of separate appeals of individual rulings.’” Id. (alteration in
original) (quoting Commonwealth v. Lancaster, 45 Va. App. 723, 733, 613 S.E.2d 828, 832
(2005)). In other words, “interlocutory appeals often result in inefficiency and unnecessary
delay and expense.” Id. The requirement of a final judgment, on the other hand, “‘promotes
judicial efficiency, avoiding piecemeal appeals.’” Id. (quoting State Treasurer of the State of
Michigan v. Barry, 168 F.3d 8, 16 (11th Cir. 1999)).
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III. CONCLUSION
For the foregoing reasons, we hold that we lack jurisdiction to consider the merits of the
Nation’s appeal; therefore, we dismiss the appeal.
Appeal dismissed.
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Elder, J., concurring in the result.
The majority dismisses the appeal from the Citizen Potawatomi Nation (“Nation”)
because the August 27, 2012 order denying the Nation’s motion to transfer (“denial order”) was
not an appealable interlocutory order. Although I agree that the denial order was not a final
order, I believe it “adjudicat[es] the principles of a cause,” Code 17.1-405(4), under the Indian
Child Welfare Act (“ICWA”) and is therefore appealable. However, I would dismiss the
Nation’s appeal as moot and, accordingly, concur in the result reached by the majority.
Whether an interlocutory order adjudicates the principles of the cause depends on the
subject matter of the suit. E.g., Wells v. Wells, 29 Va. App. 82, 86, 509 S.E.2d 549, 551 (1999).
Although the primary goal of a termination of parental rights proceeding under Virginia law is to
determine whether the best interests of the child require the termination of the residual parental
rights of a parent or parents, see Code § 16.1-283, ICWA alters this end goal by recognizing the
separate tribal interests in children who are members of federally recognized Native American
Indian tribes, see 25 U.S.C. §§ 1901-1902. Under ICWA, the purpose of the proceedings
focuses not only on the status of the residual parental rights, but also on whether the proceedings
comply with the procedural safeguards enunciated in ICWA in order to protect the interests of
the intervening tribe. We must therefore analyze the denial order from the perspective of the
Nation as the party who filed the motion to transfer.
Here, the Nation sought to transfer the termination proceedings to the tribal court.
Although the Nation had continued involvement with the termination proceedings, its primary
cause had concluded. By denying its motion to transfer, the circuit court adjudicated the primary
goal of the suit as it related to the Nation’s involvement because “if the request were granted, the
pending proceedings would stop and these matters would be transferred to another forum.” State
v. Nona M. (In re Interest of Brittany C.), 693 N.W.2d 592, 601 (Neb. Ct. App. 2005).
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Notwithstanding my belief that the denial order is an appealable interlocutory order, I
believe the proper course of action is to dismiss the appeal as moot. In a separate memorandum
opinion, we remanded the appeal of the biological parents for further proceedings consistent with
our opinion in Thompson v. Fairfax County Department of Family Services., ___ Va. App. ___,
___ S.E.2d ___ (Sept. 10, 2013). See Nunnally v. Dinwiddie Dep’t of Soc. Servs., Nos.
1947-12-2, 1948-12-2, 1949-12-2 (Va. Ct. App. Sept. 10, 2013). Because “we conclude[d] that
the circuit court and the parties should be afforded the opportunity to reconsider this case in light
of our newly adopted standards[,]” id. (emphasis added), the Nation will be able to renew its
motion to transfer in the parents’ remanded proceeding. The Nation therefore “lack[s] a legally
cognizable interest in the outcome” of this appeal, Powell v. McCormack, 395 U.S. 486, 496-97,
89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491, 503 (1969), and we should dismiss the appeal as moot.
Because I would dismiss the present appeal for reasons different from the majority, I
respectfully concur in the result.
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