Marrison v. Fairfax County Department of Family Services
717 S.E.2d 146
Va. Ct. App.2011Background
- In January 2010, M. died reportedly due to neglect; DFS found the Marrisons' home dirty and lacking food and cleanliness for A., C., and D.
- On February 1, 2010, DFS removed the children from the Marrisons and placed them in DFS custody.
- On February 3, 2010, DFS filed sworn petitions alleging each child was abused and/or neglected, and obtained ex parte emergency removal orders.
- Emergency removal hearing originally set for February 8, 2010; weather closures led to delays, with hearings rescheduled due to snow and court closures through February 2010.
- The juvenile and domestic relations (J&DR) court held the hearing on February 18, 2010; the Marrisons moved to dismiss for lack of jurisdiction under § 16.1-251(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of initial hearing under §16.1-251(B) | Marrison: five-day hearing requirement not met due to court closures | DFS: notice requirements precluded earlier hearing | Assumed not timely; still appellate court held jurisdiction existed |
| Whether §16.1-251(B) is mandatory or directory | Statute imposes mandatory timing affecting jurisdiction | Statute is directory and procedural, not jurisdictional | Code §16.1-251(B) is procedural and directory; did not destroy jurisdiction |
| Derivative jurisdiction of circuit court on appeal from J&DR | If J&DR lacked jurisdiction, circuit court lacks derivative jurisdiction | Because §16.1-251(B) is directory, circuit has derivative jurisdiction | Circuit court had derivative jurisdiction given the statute's directory nature |
| Prejudice required for dismissal based on §16.1-251(B) noncompliance | Noncompliance could prejudice the Marrisons | No prejudice shown by Marrisons | No harm or prejudice shown; dismissal not required |
Key Cases Cited
- Earley v. Landsidle, 257 Va. 365 (1999) (defines subject matter jurisdiction; derivative jurisdiction principles)
- Morrison v. Bestler, 239 Va. 166 (1990) (origin of jurisdiction concepts in Virginia)
- Addison v. Salyer, 185 Va. 644 (1946) (early articulation of jurisdiction concepts)
- Jamborsky v. Baskins, 247 Va. 506 (1994) (distinguishes mandatory vs. directory statutes via 'shall' language)
- Carter v. Ancel, 28 Va. App. 76 (1998) (shall as directory; procedural vs. mandatory distinction)
- Harris v. Commonwealth, 52 Va. App. 735 (2008) (directory/procedural nature of timing provisions)