Chad R. Simonds v Fairfax County Dept. Family Svcs

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
CHAD R. SIMONDS
OPINION BY
v. 	Record No. 2404-00-4 	JUDGE ROSEMARIE ANNUNZIATA
JULY 24, 2001
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
William M. Stanley (Gilbert K. Davis; Davis &
Stanley, L.L.C., on brief), for appellant.
Zaida C. Thompson, Assistant County Attorney
(David P. Bobzien, County Attorney; Robert
Lyndon Howell, Jr., Deputy County Attorney;
Dennis R. Bates, Senior Assistant County
Attorney, on brief), for appellee.
The appellant, Chad R. Simonds, appeals the denial of his
motion for attorney's fees that were incurred in the course of
proceedings in which a petition for a protective order filed by
the Fairfax County Department of Family Services was
adjudicated. 	Simonds contends: 	(1) Code § 9-6.14:21 authorizes
the award of attorney's fees in this case; and (2) the circuit
court erred in concluding the Department was substantially
justified in filing its petition for a protective order.
Because we find Code § 9-6.14:21 does not authorize an award of
attorney's fees, we affirm the circuit court's order.

BACKGROUND
On July 22, 1999, the Fairfax County Department of Family
Services filed a petition in the Fairfax Juvenile and Domestic
Relations District Court alleging that M.S., born March 22,
1997, was an abused and/or neglected child pursuant to Code
§ 16.1-241(A)(1), naming her father, Chad Simonds, as
respondent.1 After a hearing on July 28, 1999, the juvenile
court determined that M.S. should be classified as an abused
and/or neglected child and entered a preliminary protective
order requiring that Simonds's visitation with the child be
supervised and that he fully cooperate with the Department's
investigation of the case. 	The juvenile court denied Simonds's
motion for reconsideration and entered a final order on November
18, 1999. 	The final order continued the Department's protective
supervision of the child, permitted Simonds to have supervised
visitation, and ordered him to undergo mental health counseling.
1 Code § 16.1-241(A)(1) provides:
[E]ach juvenile and domestic relations
district court shall have . . . exclusive
original jurisdiction . . . over all cases,
matters and proceedings involving [t]he
custody, visitation, support, control or
disposition of a child [w]ho is alleged to
be abused, neglected, in need of services,
in need of supervision, a status offender,
or delinquent . . . .
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Simonds appealed the order to the circuit court where a
trial de novo was held on June 26-27 and July 19-20, 2000. 	By
order entered on August 18, 2000, the circuit court dismissed
the protective order, finding the Department had failed to
establish that M.S. was an abused and/or neglected child.
Thereafter, Simonds filed a motion for the attorney's fees that
he incurred in conjunction with the proceedings. 	The circuit
court denied the motion by order dated September 8, 2000.
Although the court found that Code § 9-6.14:21(A) applied, it
denied Simonds's request for attorney's fees. 	The court
concluded that, although Simonds prevailed on the merits, the
Department was substantially justified in bringing the action.
It is from this order that Simonds appeals.
We affirm the trial court's denial of Simonds's motion for
attorney's fees, although we do so on different grounds.
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,
313 (1992) ("An appellate court may affirm the judgment of a
trial court when it has reached the right result for the wrong
reason."). 	As explained in this opinion, we find that Code
§ 9-6.14:21(A) does not permit an award of attorney's fees in
this case.
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ANALYSIS
Simonds concedes that "in the absence of a statute or
contract to the contrary, a court may not award attorney's fees
to the prevailing party." 	Prospect Development Co. v.
Bershader, 258 Va. 75, 92, 515 S.E.2d 291, 300 (1999). 	His
reliance upon Code § 9-6.14:21 to support an award of attorney's
fees in this case is misplaced, however.
Code § 9-6.14:21(A) provides:
In any civil case brought under Article 4
(§ 9-6.14:15 et seq.) of this chapter and
§ 9-6.14:4.1 in which any person contests
any agency action, as defined in § 9-6.14:4,
such person shall be entitled to recover
from that agency, as defined in the section
referred to above . . . reasonable costs and
attorney fees if such person substantially
prevails on the merits of the case and the
agency's position is not substantially
justified, unless special circumstances
would make an award unjust.
Code § 9-6.14:21(A), which is part of the Administrative Process
Act (APA), does not permit an award for attorney's fees in cases
that do not arise under Article 4, Code § 9-6.14:15 et seq., of
the APA, or if the party from whom attorney's fees are sought is
not an agency as defined in Code § 9-6.14:4.
The case before us did not arise under Article 4, Code
§ 9-6.14:15 et seq. of the APA. 	The Simonds matter arose by
original petition filed by the Fairfax County Department of
Family Services in the juvenile court pursuant to Code
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§ 16.1-241(A)(1), alleging M.S. was an abused and/or neglected
child. 	Furthermore, Code § 9-6.14:15(v) explicitly states that
Article 4 "does not apply to any agency action which . . .
encompasses matters subject by law to a trial de novo in any
court." 	After the juvenile court found M.S. was an abused
and/or neglected child within the meaning of Code § 16.1-228,
Simonds appealed the juvenile court's finding and decision to
issue a protective order against Simonds to the circuit court
pursuant to Code § 16.1-296, where the circuit court conducted a
trial de novo of the allegations.
Furthermore, the Department is not an agency as defined
under Code § 9-6.14:4.2 It is a unit of the Fairfax County
Government, and counties are explicitly exempted from the
provisions of the APA under Code § 9-6.14:4.1(A)(5). 	See Code
§ 63.1-248:2 (which defines the local department of social
services as the department of the county or city); see also
Schwartz v. Highland County School Board, 2 Va. App. 554, 556,
346 S.E.2d 544, 545 (1986) (holding that a school board is a
unit of county government, rather than state government, and is,
therefore, not an "agency" under the APA).
2 The APA defines "agency" as "any authority,
instrumentality, officer, board or other unit of the state
government empowered by the basic laws to make regulations or
decide cases." 	Code § 9-6.14:4.
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We accordingly find that this case does not come within the
ambit of the APA and affirm the trial court's denial of
attorney's fees.3
Affirmed.
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3 We deny the Department's motion to dismiss Simonds's
appeal for lack of subject matter jurisdiction. 	The
Department's motion is grounded on the fact that a separate
action involving Simonds and his alleged abuse of M.S. is
currently before the Virginia Department of Social Services.
However, the present appeal involves a separate action and
Simonds's request for attorney's fees is limited to the
proceeding under Code § 16.1-241(A)(1). 	Furthermore, as the
matter before the Virginia Department of Social Services is
still pending and is not presently before us, this opinion does
not address whether Simonds would be entitled to recover
attorney's fees in that proceeding.