Payne v. D.S.S. of Lynchburg

Full title: BERTHA PAYNE v. DIVISION OF SOCIAL SERVICES OF THE CITY OF LYNCHBURG

Court: Court of Appeals of Virginia

Date published: Dec 15, 1992

Record No. 1132-92-3 (Va. Ct. App. Dec. 15, 1992)

Opinion

Record No. 1132-92-3

December 15, 1992

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG RICHARD S. MILLER, JUDGE.

(William R. Light, on brief), for appellant.

(Joyce M. Coleman, Sr. Assistant City Attorney, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick.

MEMORANDUM OPINION^_

_ Pursuant to Code § 17-116.010 this opinion is not designated publication.

PER CURIAM

Upon reviewing the record and briefs of the parties we conclude that the appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.

Bertha Payne appeals an order of the circuit court which dismissed her appeal from an order of the family court. The circuit court held that it lacked jurisdiction over the appeal and that the appeal should have been taken to this Court.

Payne argues that because the primary issue in the underlying case is child abuse, appeal to the circuit court was appropriate under Code § 20-96.1(E), which provides in part: "Appeals from the experimental family courts shall be taken to either the Court of Appeals as provided in §§ 17-116.05 and 17-116.05:5, or, if not appealable to the Court of Appeals, to the appropriate circuit court as an appeal from a juvenile and domestic relations district court." Code § 17-116.05:5 provides in part:

Any aggrieved party may appeal to the Court of Appeals from:

1. Any final judgment, order, or decree of an experimental family court . . . involving:

* * *

b. Cases originating in the experimental family courts involving the custody, visitation or civil support of a child . . . when such cases are heard by a judge sitting as a judge of an experimental family court[.]

Payne contends that, as the case concerns child abuse and not custody, appeal is to the circuit court.

The Division of Social Services of the City of Lynchburg (LDSS) argues that the main issue in the case is whether LDSS should maintain custody of the four children. These children were removed from Payne and placed in the custody of LDSS on a finding by the family court that they were abused and that it would be in their best interests to remain in LDSS custody.

We find no merit in Payne's assertion that this is not a case "involving the custody . . . of a child" under Code § 17-116.05:5(1)(b). Her claim ignores the plain meaning of the statute. See Ward v. Commonwealth, Dep't of Social Servs., 13 Va. App. 144, 146, 408 S.E.2d 921, 922 (1991). Therefore, Payne's route of appeal was to this Court, rather than to the circuit court.

For the reasons stated, we affirm the trial court's decision.

Affirmed.