On the withdrawal of appeals from the Juvenile Court

I read with interest the opinion for the panel of Judges Alston, Chafin, and Haley in Spear v. Omary, decided today by the Court of Appeals. Somewhat unusually, the opinion cites two of our appeals from the Barrett cases, that I argued before the Court of Appeals.

I think the panel got it wrong in Spear, and the legislative history from the Boyd-Graves Conference is instructive. The intent behind the language of section 16.1-106.1(F) was that "upon withdrawal of any such appeal, the case should be remanded to the Juvenile Court unless the Circuit Court judge determined that the case should remain in Circuit Court" and therefore "[l]anguage setting out a presumption of remand" was added. 2007 Boyd-Graves Subcommittee Report, Withdrawal of Civil Appeals (September 17, 2007). The subcommittee included Judge Klein from Fairfax Circuit Court and Judge Tower from Virginia Beach Juvenile Court, along with Gail Starling Marshall (whose husband John was the chairman of the Philosophy Department during my undergraduate days at the University of Virginia).

The point of section 16.1-106.1 was to rationalize and codify the withdrawal of civil appeals from the District Courts, for which there was no express statute.

Section 16.1-106.1(F) provides, in pertinent part:

"Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297."

In my view, having spent way too many hours in this obscure nook of the law, section 16.1-106.1(F) passed in 2008 causes a remand for purposes of section 16.1-297 to occur as a matter of law, and "the requirements of § 16.1-297" include the provision that "thereafter such child or adult shall be and remain under the jurisdiction of the juvenile court in the same manner as if such court had rendered the judgment in the first instance." It makes no sense that to say that the provision that"unless the circuit court orders ... the case shall be remanded" does not apply unless the Circuit Court also enters a remand order in compliance with section 16.1-297.

The Court in Spear looked at this language, however, and went the other way, finding no remand where the Circuit Court said nothing, the opposite of what was intended.

The Barrett cases are not especially relevant to the Court's conclusion. The issue in Barrett II was the res judicata effect of a withdrawn appeal from the Juvenile Court, and the panel in that case concluded that the withdrawal had the effect of reviving the prior order of the Juvenile Court and making it the final order for purposes of the res judicata analysis.

The Court also cited Austin v. Com., which did not involve the withdrawal of an appeal, and was decided years before section 16.1-106.1 became law.