Warren A. Picciolo, Guardian ad litem v. Shannon Shifflett and Elvis Gene Shifflett, Sr.

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and McClanahan
Argued by teleconference
HARRISONBURG ROCKINGHAM SOCIAL
SERVICES DISTRICT
v. Record No. 2375-04-3
SHANNON SHIFFLETT AND
ELVIS GENE SHIFFLETT, SR.
MEMORANDUM OPINION * BY
WARREN A. PICCIOLO, GUARDIAN AD LITEM JUDGE JEAN HARRISON CLEMENTS
JULY 19, 2005
v. Record No. 2379-04-3
SHANNON SHIFFLETT AND
ELVIS GENE SHIFFLETT, SR.
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Christopher Brown, County Attorney; Warren A. Picciolo, Guardian
ad litem for the infant children (Kim Van Horn Gutterman, Assistant
County Attorney, on brief), for appellants.
Thomas A. Howell for appellee Elvis Gene Shifflett, Sr.
(Kathleen M. Mizzi Todd, on brief), for appellee Shannon
Shifflett. Appellee Shannon Shifflett submitting on brief.
The Harrisonburg Rockingham Social Services District (HRSSD) and the guardian ad litem
for the eight minor children (children) of Shannon Shifflett (mother) and Elvis Shifflett (father)
appeal the decision of the Circuit Court of Rockingham County (circuit court) not to close to the
public the entire parental abuse and neglect hearing held in this case. Because the appeals are moot,
we dismiss them.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of these
appeals.
I. BACKGROUND
On July 23, 2004, the circuit court began hearing the de novo appeal of mother and father
(collectively, appellees) of the rulings of the juvenile and domestic relations district court finding
the children were abused or neglected under Code § 16.1-241(A)(2a) and continuing their
temporary custody with HRSSD.1 After the first witness had completed her testimony and the
examination of a second witness had begun, a reporter from the Daily News Record, a local
newspaper, entered the courtroom and sat in the public gallery. Upon noticing the reporter’s
presence in the courtroom, HRSSD and the children’s guardian ad litem (collectively, appellants)
moved to close the entire hearing to the public, arguing that Code §§ 16.1-302 and 17.1-513.1 each
mandated the complete closure of the parental abuse and neglect proceedings. Appellants further
argued that closure was necessary to protect the children’s privacy and save them from lasting
embarrassment and emotional harm that would result from the publication of the many humiliating
details that would emerge during the hearing. Appellees objected to closure. Denying the motion,
the circuit court stayed the parental abuse and neglect proceedings until August 26, 2004, “in order
to give [appellants] an opportunity to seek immediate appellate review of [the] decision.” No party
sought such review. The circuit court also “continued further argument in the case” until July 27,
2004, “in order to permit additional research, . . . briefing and argument on the closure issue.”
1
The juvenile and domestic relations district court had removed the children from appellees’
home and awarded their temporary custody to HRSSD because of poor hygiene, lack of basic
housekeeping, educational deficiencies, and neglect of the children’s mental and physical health.
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At the July 27, 2004 hearing, appellees indicated they no longer opposed closure. However,
a representative of the Daily News Record appeared and argued against closure on public policy
grounds. The circuit court advised the newspaper’s representative that the Daily News Record had
the right to file a motion to intervene in the proceedings as an interested party so that it could
participate in any appeal. No such motion was filed, however, and the newspaper is not a party to
the present appeals. The court took the matter of closure under advisement.
On August 4, 2004, the circuit court entered an order vacating its previous ruling and
ordering the parties to submit prehearing proffers of witness testimony and documentary evidence
and to “designate which part of that testimony or evidence they contend[ed] would be injurious to
the children if made public.” The court further stated in the order that, based on those proffers, it
would rule at the August 26, 2004 hearing “on which types of testimony and evidence, if any,
[would] be taken when the [hearing was] open to the public, and which type of evidence, if any
[would] be taken in closed session.”
When the parental abuse and neglect hearing recommenced on August 26, 2004, appellants
renewed their motion to close the entire hearing to the public and objected to the circuit court’s
anticipated ruling that only limited portions of the hearing would be closed to the public. Changing
their positions again, appellees argued against closure. Clarifying the terms of its August 4, 2004
order, the circuit court expressly denied appellants’ motion to close the proceedings completely and
ruled that the hearing would be closed only when testimony or evidence was presented relating to
“personal, medical and other private matters of the children.”
The parental abuse and neglect hearing lasted three days. Much of the proceedings were
open to the public, but the courtroom was closed when evidence was presented regarding the
children’s personal hygiene habits and their mental, medical, physical, and educational conditions.
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At the conclusion of the hearing, the circuit court found that the children were in an abused and
neglected condition prior to their removal from appellees’ home and that the condition continued.
Between July 24 and August 30, 2004, the Daily News Record published six articles
concerning appellees and the children. Some of the later articles included information clearly
gleaned from direct observation of the parental abuse and neglect hearing, including quotes of
argument, colloquy, and testimony detailing the substandard conditions to which it was alleged the
parents had subjected the children.
On September 11, 2004, the circuit court entered dispositional orders memorializing its
finding of parental abuse and neglect and continuing the children’s temporary legal custody with
HRSSD. These appeals followed.
II. ANALYSIS
Appellants contend on appeal that the circuit court erred in not closing the parental abuse
and neglect hearing to the public. In support of that position, appellants articulate injuries the
children suffered as a result of the hearing not being closed to the public, namely, the publication in
the Daily News Record of embarrassing facts adduced during the hearing. Citing Code §§ 16.1-296,
16.1-302, and 16.1-307, appellants urge us to establish a rule that parental abuse and neglect
proceedings on de novo appeal to the circuit court proceed under a presumption that they are closed
to the public. Upon review of the record, we conclude that the instant claim of error must be
dismissed because it is moot.
“As a general rule, ‘[m]oot questions are not justiciable and courts do not rule on such
questions to avoid issuing advisory opinions.’” In re Times-World Corporation, 7 Va. App. 317,
323, 373 S.E.2d 474, 476 (1988) (quoting United States v. Peters, 754 F.2d 753, 757 (7th Cir.
1985)). This is so because
“[t]he duty of this court, as of every other judicial tribunal, is to
decide actual controversies by a judgment which can be carried
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into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it.”
Hankins v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944) (quoting Mills
v. Green, 159 U.S. 651, 653 (1895)). Indeed,
“[w]henever it appears or is made to appear that there is no actual
controversy between the litigants, or that, if it once existed it has
ceased to do so, it is the duty of every judicial tribunal not to
proceed to the formal determination of the apparent controversy,
but to dismiss the case. It is not the office of courts to give
opinions on abstract propositions of law, or to decide questions
upon which no rights depend, and where no relief can be afforded.
Only real controversies and existing rights are entitled to invoke
the exercise of their powers.”
Id. at 643-44, 29 S.E.2d at 832 (quoting Franklin v. Peers, 95 Va. 602, 603, 29 S.E. 321, 321
(1898)); see also Baldwin v. Commonwealth, 43 Va. App. 415, 421, 598 S.E.2d 754, 757 (2004)
(“‘[A] case is moot when the issues presented are no longer “live,”’ Powell v. McCormack, 395
U.S. 486, 496 (1969), because ‘an actual controversy must be extant at all stages of review,’ to
escape the notion that a case is moot, Preiser v. Newkirk, 422 U.S. 395, 401 (1975).”).
“It necessarily follows that when, pending an appeal from the
judgment of a lower court, and without any fault of the defendant,
an event occurs which renders it impossible for this court, if it
should decide the case in favor of the plaintiff, to grant him any
effectual relief whatever, the court will not proceed to a formal
judgment but will dismiss the appeal.”
Hankins, 182 Va. at 644, 29 S.E.2d at 832 (quoting Mills, 159 U.S. at 653). “Moreover, even
when the parties do not raise the issue of mootness, appellate courts should raise the issue sua
sponte when the record does not present a live case or controversy.” Baldwin, 43 Va. App. at
421-22, 598 S.E.2d at 757 (citing Friedman’s Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)).
In the instant case, even if, assuming arguendo, the circuit court erred in deciding not to
close the entire parental abuse and neglect hearing to the public, it is clear that during the interval
of time between that decision and our review thereof an event has occurred that renders it
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entirely impossible for this Court to grant effectual relief to appellants: a hearing open in part to
the public has already taken place, and the information appellants seek to protect from public
consumption has been irretrievably disseminated. Plainly, the granting of appellants’ requested
relief—that we “overrule” the circuit court’s decision to open the hearing to the public—would
neither rectify the particular judicial action that made that dissemination possible nor cure the
dissemination itself. Likewise, appellants describe no conceivable injury to the rights of the
children that may result from our inaction on the merits. Indeed, the outcome of these appeals
will have no foreseeable effect on the children whatsoever. Thus, no controversy survives for
our review, and any opinion we render would only serve to advise, rather than adjudicate.
Accordingly, the appeals are moot.
There are, however, two exceptions to the mootness doctrine. First, cases involving
voluntary cessation of allegedly illegal activity are exempted from the mootness doctrine. See
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (noting that, “as a general rule,
‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear
and determine the case, i.e., does not make the case moot’” (quoting United States v. W. T. Grant
Co., 345 U.S. 629, 632 (1953))); City of Virginia Beach v. Brown, 858 F. Supp. 585, 590 (E.D.
Va. 1994). Second, cases that are “‘capable of repetition, yet evading review’” remain
justiciable. State Water Control Bd. v. Appalachian Power Co., 12 Va. App. 73, 75, 402 S.E.2d
703, 705 (1991) (en banc) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)); In re
Times-World Corp., 7 Va. App. at 323, 373 S.E.2d at 477.
Neither exception to the mootness doctrine applies here, however. This case does not
involve the voluntary cessation of allegedly illegal activity. The only cessation in this case
concerning appellants’ present claim was the conclusion of the parental abuse and neglect
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hearing. Such a cessation does not constitute “voluntary cessation” as contemplated by the
Supreme Court in Davis.
Moreover, the second exception “only applies when ‘(1) the challenged action [is] in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would be subjected to the same action
again.’” Brown, 858 F. Supp. at 589-90 (emphases added) (alterations in original) (quoting
Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). The second prong requires more than “a mere
physical or theoretical possibility”; rather, “there must be a ‘reasonable expectation’ or a
‘demonstrated probability’ that the same controversy will recur involving the same complaining
party.” Murphy, 455 U.S. at 482.
Here, while the circumstances of this case were such that the challenged action of the
circuit court arguably could not have been fully litigated prior to its cessation or expiration, there
is no reasonable expectation that appellants will ever again be subjected, in their respective
capacities as legal custodian and guardian ad litem of the children, to the same judicial action of
not closing the circuit court’s entire parental abuse and neglect hearing to the public. Indeed, the
facts relevant to the circuit court’s parental abuse and neglect determination in this case having
already been established, an occurrence of circumstances necessitating a renewed open-court
elicitation of the same facts is neither expected nor probable. The exception, therefore, does not
apply.
Accordingly, we “‘will not proceed to a formal judgment but will dismiss’” these appeals
as moot. Hankins, 182 Va. at 644, 29 S.E.2d at 832 (quoting Mills, 159 U.S. at 653); see
Jackson v. Marshall, 19 Va. App. 628, 635, 454 S.E.2d 23, 27 (1995) (stating that “[d]ismissal is
the proper remedy” when an appeal is moot).
Dismissed.
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