Judith Adele Plotkin v. Fairfax Co.D.F.S. & Richey ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
JUDITH ADELE PLOTKIN
MEMORANDUM OPINION * BY
v. Record No. 0085-98-4 JUDGE NELSON T. OVERTON
OCTOBER 13, 1998
FAIRFAX COUNTY DEPARTMENT OF
FAMILY SERVICES AND MICHAEL RICHEY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
John M. DiJoseph (Kavrukov, Mehrotra &
DiJoseph, L.L.P., on briefs), for appellant.
Louise M. DiMatteo, Assistant County Attorney
(David P. Bobzien, County Attorney; Robert
Lyndon Howell, Deputy County Attorney;
Dennis R. Bates, Senior Assistant County
Attorney, on brief), for appellee Fairfax
County Department of Family Services.
Corrine N. Lockett (Marcia M. Maddox, on
brief), for appellee Michael Richey.
Judith A. Plotkin (Plotkin) appeals an order of the Circuit
Court for the County of Fairfax (trial court) removing her
children pursuant to Code § 16.1-278.2. She contends on appeal
that: (1) the trial court's order is void due to res judicata
arising from the decision of a Department of Social Services
(DSS) review officer, (2) the trial court erred by admitting the
testimony of Rabbi Jack Moline and Louis Hofheimer and (3) the
removal of her children violated Plotkin's rights under the
Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (1998)
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(Rehabilitation Act) and the Americans with Disabilities Act, 42
U.S.C.A. § 12101-12212 (1995) (ADA). 1 One of the appellees,
Michael Richey (Richey) asks that he recover attorney's fees and
costs of appeal. For the following reasons, the trial court's
order is affirmed, and Richey's request for attorney's fees is
denied.
I. Facts
We view the evidence in the light most favorable to the
party prevailing below, in this case the Fairfax County
Department of Family Services (DFS). See Martin v. Pittsylvania
County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13,
16 (1986). So viewed, the record reveals that on January 29,
1997, DFS obtained an Emergency Removal Order pursuant to Code
§ 16.1-251 for Plotkin's three children: Abby, Daniel and Bracha
Plotkin. The juvenile court, ex parte, removed the children on
the basis of an affidavit submitted by DFS detailing the alarming
conditions of the Plotkin household. The affidavit described
physical and verbal abuse of all the children, the presence of a
menagerie of reptiles, insects and arachnids living free in the
home, filthy living conditions and a lack of food preparation by
Plotkin for the children. Abby, the eldest child, had drug and
alcohol problems which caused frequent conflict with Plotkin to
1
Plotkin also claims that the removal violated her rights to
substantive due process under the United States Constitution.
Because she failed to preserve this objection for appeal, we
decline to consider it. See Knight v. Commonwealth, 18 Va. App.
207, 216, 443 S.E.2d 165, 170 (1994) (citing Rule 5A:18).
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such an extent that Plotkin had evicted her from the home.
On April 11, 1997, the juvenile court held a dispositional
hearing pursuant to Code § 16.1-278.2. The parties stipulated
the facts contained in the affidavit were true. Therefore, the
juvenile court found the children had been abused and neglected
within the meaning of Code § 16.1-228. Abby was placed in the
custody of DFS, and Bracha and Daniel were given to Richey, their
natural father. Plotkin appealed the order to the circuit court
pursuant to Code § 16.1-296.
While these proceedings continued, Plotkin also asked for
review of DFS's initial report. Accordingly, on October 21,
1997, DSS held an administrative review hearing of DFS's findings
regarding Plotkin's treatment of her daughter Abby. The other
children were not addressed by the review. The DFS report had
found Plotkin guilty of "Founded-Physical Neglect/Inadequate
Shelter-Level 3" and "Founded-Physical Abuse-Level 1."
Commissioner Carlson downgraded the abuse charge to Level 2 and
changed the neglect/inadequate shelter charge to "unfounded."
On December 1, 1997, the trial court held a hearing de novo.
Plotkin argued the trial court was bound by Commissioner
Carlson's findings and, therefore, the issue of neglect was res
judicata. She also asserted that the removal of her children
violated her rights under the ADA and Rehabilitation Act. The
trial court denied all her motions. DFS presented two witnesses:
Rabbi Jack Moline and Louis Hofheimer. Moline testified he last
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saw the Plotkin family about five years ago at temple. He
testified the children were unkempt and out of control and
Plotkin was verbally abusive to them. He described one occasion
when Plotkin disciplined Bracha by tripping her with a cane.
Louis Hofheimer testified that he had known Abby for the
four or five years preceding and that she was emotionally
unstable. He also testified he saw Plotkin yelling at her
children. Plotkin objected to the relevance of the witnesses but
then stipulated that "the evidence which would be submitted by
the Department would prove by a preponderance of the evidence
that all of the children are abused and/or neglected within the
meaning of Virginia Code Section 16.1-228." The trial court
entered an order affirming the juvenile court.
II. Res Judicata
Plotkin asserts that principles of collateral estoppel and
res judicata should have barred the trial court's order. She
reasons that the DSS administrative hearing officer was an
adjudicative body and the officer's order was tantamount to a
finding that Plotkin's children were not neglected. We disagree
with her argument on both points.
While there are several kinds of procedural bars encompassed
by the term res judicata, see Bates v. Devers, 214 Va. 667,
670-72, 202 S.E.2d 917, 920-21 (1974), all share a common
prerequisite: the allegedly preclusive judgment must have been
rendered on the merits by a court with competent jurisdiction.
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See, e.g., American Surety Co. v. White, 142 Va. 1, 12, 127 S.E.
178, 181 (1925); Highsmith v. Commonwealth, 25 Va. App. 434,
439-40, 489 S.E.2d 239, 241 (1997). Without a judgment from such
a court, a plea of res judicata, in any form, must fail.
Under Plotkin's definition of res judicata, DSS
administrative officers appointed pursuant to Code § 63.1-248.6:1
are, themselves, a court. We decline to adopt this definition.
A DSS administrative hearing, which lacks due process guarantees,
enforcement power or even an impartial adjudicator, is not a
court. See Simmons v. Commonwealth, 252 Va. 118, 120, 475 S.E.2d
806, 807 (1996) (holding that "by no stretch of the imagination"
can an administrative act be considered a judgment rendered by a
court of competent jurisdiction). We hold that the DSS hearing
was not a court of competent jurisdiction for purposes of a res
judicata plea.
III. Testimonial Evidence
"The admission of evidence is left to the broad discretion
of the trial judge. However, if evidence has probative value, it
is normally admissible and should be excluded only when its
probative value is outweighed by policy considerations which make
its use undesirable in the particular case." Farley v.
Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310, 311 (1995).
Rabbi Moline testified that he saw the children abused and they
looked neglected. His testimony was certainly relevant because
this abuse and neglect was the central issue of the trial. That
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his testimony was stale may have weakened it, but did not make it
inadmissible as a matter of law. Similarly, Louis Hofheimer's
intermittent contact with the Plotkin family did not make his
statements inadmissible. We hold that the trial court was within
its discretion when admitting their testimony into evidence.
IV. Rehabilitation Act and ADA
Plotkin also claims that the removal constitutes
discrimination under the Rehabilitation Act and the ADA. The
Rehabilitation Act prohibits discrimination against a "qualified
individual with a disability" by "any program or activity
receiving Federal financial assistance." 29 U.S.C.A. § 794(a).
The ADA also provides that a person with a disability not "be
denied the benefits of the services, programs, or activities of a
public entity." 42 U.S.C.A. § 12132. Therefore, assuming DFS is
covered under the acts, Plotkin was required to make out a prima
facie case of discrimination for her claim to be considered.
The two acts overlap significantly, and the courts and
Congress have established the same "substantive standards for
determining liability." Myers v. Hose, 50 F.3d 278, 281 (4th
Cir. 1995). The first element of a prima facie case under either
act is proof that the plaintiff has a disability. See, e.g., Doe
v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265
(4th Cir. 1995); Gates v. Rowland, 39 F.3d 1439, 1445 (9th Cir.
1994). If Plotkin did not demonstrate that she "(i) has a
physical or mental impairment which substantially limits one or
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more of such person's major life activities, (ii) has a record of
such an impairment, or (iii) is regarded as having such an
impairment," then her claim fails. Id. (citing 29 U.S.C.A.
§ 708(8)(b)).
Plotkin claims her impairment is "multiple chemical
sensitivity." Unfortunately, she has failed to provide any
evidence substantiating the nature of this ailment or the
disability resulting from it. The record does not contain a
medical report, doctor's testimony or even layman's testimony
verifying Plotkin's diseased condition. As an appellate court we
are bound by the record before us. Because that record contains
not a scintilla of evidence supporting Plotkin's assertion of
disability, we hold that she failed to make out a prima facie
case under the acts.
V. Attorney's Fees
Because we do not feel the circumstances of this appeal
warrant it, Richey's request for an award of attorney's fees is
denied.
We hold that the trial court committed no reversible error
by removing the Plotkin children from the custody of their
mother. Therefore, the order doing so is affirmed.
Affirmed.
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