Stacy L. Roberts v. Virginia Department of Social Services ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED
STACY L. ROBERTS
MEMORANDUM OPINION*
v. Record No. 1383-16-3 PER CURIAM
FEBRUARY 14, 2017
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge
(Stacy Roberts, pro se, on brief).
(Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy
Attorney General; Kim F. Piner, Senior Assistant Attorney General;
Eric J. Reynolds, Assistant Attorney General, on brief), for appellee.
Appellant is appealing an order that granted appellee’s plea in bar and dismissed
appellant’s appeal because the circuit court lacked jurisdiction over the matter. The circuit court
found that appellant did not timely file a petition for appeal as required by Rule 2A:4.
On September 28, 2015, the hearing officer for the Department of Social Services issued
a decision that sustained a child protective services finding of Physical Neglect – Inadequate
Supervision – Level One against appellant. Appellant sent a letter dated October 22, 2015 to the
Appeals and Fair Hearings Unit of the Department of Social Services and informed them that she
wished to appeal the hearing officer’s decision. Subsequently, appellant sent a handwritten
“Notice of Appeal,” dated November 19, 2015, to the Appeals and Fair Hearings Unit and filed it
with the clerk of the circuit court on November 20, 2015. The “Notice of Appeal” simply stated,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“A disposition of ‘Founded – Physical Neglect – Inadequate Supervision – Level One’ dated on
October 21, 2014.” In the attached certificate, appellant included the following paragraphs:
4. Upon received notification of receipt by Commissioner,
Appellant’s “Notice to Appeal” per phone confirmation. Appellant
appropriately purses petition to the appropriate Court of Appeals.
5. Once said petition is appropriately acknowledged by herein
established Circuit Court, Court of Appeals . . . Appellant will
proceed with making the appropriate arrangements to ensure the
Commissioner will be served notice of said petition to Appeal.
On March 22, 2016, appellee filed a plea in bar and motion to dismiss. Appellee argued
that appellant did not comply with Rule 2A:4 because she did not file a petition for appeal within
the required timeframe. Appellee asserted that appellant’s failure to perfect her appeal rendered
the circuit court without jurisdiction to hear the matter. Appellant filed a pleading in response
and argued that the circuit court should hear her appeal.
On June 30, 2016, both parties appeared before the circuit court.1 After hearing the
parties’ arguments, the circuit court granted the plea in bar and dismissed the appeal. The circuit
court found that appellant did not timely file a petition for appeal pursuant to Rule 2A:4, so the
circuit court lacked jurisdiction to hear the matter. The circuit court entered an order reflecting
this ruling on July 27, 2016. This appeal followed.
Part 2A of the Rules of the Supreme Court of Virginia governs “appeals pursuant to the
Administrative Process Act,” and Rule 2A:4 states:
(a) Within 30 days after the filing of the notice of appeal, the
appellant shall file a petition for appeal with the clerk of the circuit
court named in the first notice of appeal to be filed. Such filing
shall include within such 30-day period both the payment of all
fees and the taking of all steps provided in Rule 3:2, 3:3 and 3:4 to
cause a copy of the petition for appeal to be served (as in a civil
action) on the agency secretary and on every other party. The
petition may be filed electronically as provided under Rule 1:17.
1
Although a court reporter was present, the record does not include a transcript or written
statement of facts from this hearing.
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(b) The petition for appeal shall designate the regulation or case
decision appealed from, specify the errors assigned, state the
reasons why the regulation or case decision is deemed to be
unlawful and conclude with a specific statement of the relief
requested.
In Mayo v. Dep’t of Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761 (1987), this
Court held that the time limit of Rule 2A:4(a) is mandatory. See also Chabolla v. Va. Dep’t of
Soc. Servs., 55 Va. App. 531, 538, 687 S.E.2d 85, 88-89 (2010). The Court further explained:
[T]he orderly administration of justice requires that certain rules
must be obeyed, however technical they may seem to be. This is
particularly true of important time limits.
....
The purpose of the specific time limit is not to penalize the
appellant but to protect the appellee. If the required papers are not
[timely] filed, the appellee is entitled to assume that the litigation is
ended, and to act on that assumption. Litigation is a serious and
harassing matter, and the right to know when it is ended is a
valuable right.
Mayo, 4 Va. App. at 523, 358 S.E.2d at 761 (quoting Avery v. Cty. Sch. Bd., 192 Va. 329, 331,
333, 64 S.E.2d 767, 768, 770 (1951)).
“[A] person aggrieved by a case decision is required to follow the appeal procedure . . .
by resorting to an appropriate and timely court action . . . in the manner provided by the Rules of
the Supreme Court of Virginia.” Id. (quoting Kenley v. Newport News Gen. & Non-Sectarian
Hosp. Assoc., Inc., 227 Va. 39, 46, 314 S.E.2d 52, 56 (1984) (emphasis added)).
In this case, appellant failed to file a petition for appeal within thirty days of filing her
notice of appeal. Therefore, appellant did not comply with the requirements of Rule 2A:4. The
circuit court did not err in granting the plea in bar and dismissing the matter because it did not
have jurisdiction.
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Accordingly, we summarily affirm the judgment of the circuit court.2 See Rule 5A:27.
Affirmed.
2
On December 9, 2016, appellee filed a motion to dismiss in this Court. In light of the
obvious jurisdictional problems in the circuit court and our decision, therefore, to summarily
affirm the circuit court’s granting of the plea in bar and dismissing of the appeal, we deny
appellee’s motion to dismiss in this Court.
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