Does a Virginia juvenile court have to issue a subpoena to the local social services department before placing a child in its custody?

Plain-English summary

A juvenile and domestic relations district court judge asked whether Title 16.1 dispositional statutes require a subpoena to be issued to the local department of social services when the court is considering transferring custody of a child to that department, where the department itself is not a party to the case.

The Attorney General concluded that the statutes do not require a subpoena. They require only that the local board receive reasonable notice of the pendency of the case and an opportunity to be heard. Notice and a subpoena were treated as separate things: notice tells the agency the case is coming and lets it appear if it wishes, while a subpoena compels attendance. Because the department was not a party, the AG read the statutes as not obligating its presence absent a court command.

The opinion also said that if the court wants the local department to show up, the judge can issue a subpoena or other court order compelling appearance. The failure to subpoena the local board did not block the court from transferring custody so long as proper notice was given.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was the local social services department considered a party in these proceedings?
No. The AG treated the local department as a non-party even though custody could be transferred to it. That non-party status was the basis for the holding that no subpoena was required.

What did the statutes actually require before custody could be transferred?
Reasonable notice of the pending case and an opportunity to be heard. The opinion stressed that the form of notice was not prescribed, just that it had to be timely and describe the nature, date, and time of the proceeding.

Could a court issue a subpoena anyway?
Yes. The AG said a court could still issue a subpoena or other court order to compel the local department to appear if the judge wanted them there. The opinion was about what the statutes required, not what a judge was permitted to do.

Background and statutory framework

The opinion read several juvenile dispositional statutes together: §§ 16.1-278.2, 16.1-278.3, 16.2-278.4, 16.1-278.5, 16.1-278.6, and 16.1-278.8. Each authorizes a juvenile court to transfer custody of a child to a local board of social services. Those statutes require the receiving local board to "accept the juvenile for care and custody, provided that it has been given reasonable notice of the pendency of the case and an opportunity to be heard."

The AG drew a distinction between notice and process. A subpoena could serve as notice, but notice is not the same as a subpoena. And being entitled to an opportunity to be heard was not the same as being required to attend, because the local board was treated as a non-party.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code §§ 16.1-278.2, 16.1-278.3, 16.2-278.4, 16.1-278.5, 16.1-278.6, 16.1-278.8 (juvenile dispositions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-027_Carr.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

May 25, 2012

The Honorable Gayl Branum Carr
Juvenile and Domestic Relations District Court
19th Judicial District
4110 Chain Bridge Road, Third Floor
Fairfax, Virginia 22030-4043

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Judge Carr:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You ask whether certain statutes in Title 16.1 of the Code of Virginia require the court to issue a subpoena to the local department of social services when the court is considering placing a child in the custody of that local department and the local department is not a party to the proceedings.

Response
It is my opinion that §§ 16.1-278.2, 16.1-278.3, 16.2-278.4, 16.1-278.5, 16.1-278.6 and 16.1-278.8 do not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding under those statutes. It is further my opinion that, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear.

Applicable Law and Discussion
As you note in your letter, there are various types of cases before the juvenile and domestic relations district courts where one of the dispositional alternatives is transferring the custody of the child to the local board of social services. These statutes require the local board to "accept the juvenile for care and custody, provided that it has been given reasonable notice of the pendency of the case and an opportunity to be heard."

Although the statutes require that the local board be given notice and an opportunity to be heard, the manner in which that is done is not prescribed in the statutes. Notice is not equivalent to a summons or subpoena. Although a subpoena could provide notice to the local board, one is not required to comply with the statutory notice requirement. Regardless of form, the notice must be timely and provide a description of the nature of the proceeding and the date and time it will take place.

Further, the opportunity to be heard is not the same as a requirement to attend. Nowhere in these statutes is there a provision requiring the local board to appear at the proceedings. As a non-party to the proceeding, the local board, absent a command of the court, is not obligated to attend and may choose not to appear. Thus, there is no requirement that a subpoena or other court order be issued to ensure the local department appear at the proceeding. Rather, provided proper notice has been given, the local department's opportunity to be heard obviates the need for the subpoena by entitling the local department to be present at the proceeding and offer testimony on the matter before the court. Nonetheless, if the court wishes to have the local department present for these type of proceedings, then a subpoena or other court order can be issued to compel the local department to appear.

Conclusion

Accordingly, it is my opinion that the specified statutes do not require the issuance of a subpoena to a local department of social services because the department is not required to attend any proceeding under those statutes. It is further my opinion that, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General