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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Beales Argued at Alexandria, Virginia

ALLEN LEWIS v. Record No. 2575-06-4 OPINION BY JUDGE LARRY G. ELDER JULY 31, 2007

CULPEPER COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF CULPEPER COUNTY John R. Cullen, Judge V. R. Shackelford, III (Shackelford, Thomas & Gregg, P.L.C., on briefs), for appellant. Robert F. Beard for appellee. J. Michael Sharman (Commonwealth Law Offices, P.C., on brief), Guardian ad litem for the infant child.

Allen Lewis appeals from a decision terminating his parental rights to his daughter, V.L. On appeal, he contends the circuit court improperly exercised jurisdiction over the matter following entry of a nonsuit at the request of the Culpeper County Department of Social Services (DSS). He argues that DSS was instead required to refile in the juvenile and domestic relations district court. He also contends that DSS failed to file a foster care service plan documenting that termination of his parental rights was in V.L.'s best interests. We conclude the circuit court lacked jurisdiction over the petition filed after DSS's nonsuit. Thus, we vacate the order terminating Lewis's parental rights to V.L. and dismiss the petition. Because we dismiss, we do not consider Lewis's claim that the foster care plan DSS filed failed to document that terminating Lewis's parental rights was in V.L.'s best interests.

I. BACKGROUND1 V.L. was born on January 24, 2005, at a time when her older brother, A.L., was already in the custody of DSS and living in a foster home. V.L.'s mother, Sally Butler, had left a court-ordered substance abuse program approximately two months prior to giving birth to V.L. and voluntarily relinquished custody of V.L. to DSS two days after V.L.'s birth. The foster care plan prepared by a DSS case worker on January 28, 2005, indicated Ms. Butler signed a permanent entrustment agreement with DSS and "wishe[d] to see [V.L.] placed and adopted by the same foster family that is caring for [A.L.]," Ms. Butler's older child. The plan noted that at the time Butler entrusted V.L. to DSS, "services were available" to Butler but "she chose not to receive them by leaving her treatment program." It also noted that when V.L. was born, Butler tested positive for cocaine and admitted to hospital personnel that she used cocaine, amphetamines, marijuana, and alcohol while pregnant with V.L. As to Lewis, the plan indicated only that "[f]ather was incarcerated[;] therefore he did not take part in the planning." On July 1, 2005, DSS filed in the juvenile and domestic relations district court (J&DR court) a petition for the involuntary termination of Lewis's parental rights to V.L. On August 23, 2005, the J&DR court granted DSS's petition terminating Lewis's parental rights, and Lewis

Both DSS and the child's guardian ad litem contend this Court should not consider the appeal because Lewis failed to include all relevant material in the appendix, particularly the foster care service plan and the transcript of the trial court's ruling from the bench. However, because the relevant evidence and transcript are part of the record on appeal, we consider Lewis's questions presented. See Rule 5A:25(c), (h) (providing that the "appendix shall include" specified items and that "[i]t will be assumed that the appendix contains everything germane to the question presented" but that "[t]he Court of Appeals may . . . consider other parts of the record" (emphasis added)); see also Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 764-65 (2003) (noting importance of presenting an appendix that contains all parts of record "essential to the resolution of the issue" and stating that in absence of certain exhibits, "we will not decide the issue," but not discussing provision of Rule 5A:25(h) permitting court, in its discretion, to consult material contained in record but not in appendix). -2-

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appealed. At a hearing in the circuit court on January 3, 2006, on appeal of case number "J&DR 2005-C-174," DSS moved to nonsuit the termination petition. The trial court granted the request and entered an order to that effect on February 10, 2006. On February 9, 2006, DSS filed a new petition for involuntary termination of Lewis's parental rights, indicating Lewis was an inmate at Haynesville Correctional Center and had "a projected release date" of June 15, 2007. DSS filed that petition in the circuit court rather than the J&DR court. Lewis, through his guardian ad litem, moved to dismiss the termination petition filed in circuit court, alleging that pursuant to Code

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