                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Bray and
          Senior Judge Overton *
Argued at Norfolk, Virginia


GRADY W. PERRY
                                     MEMORANDUM OPINION** BY
v.    Record No. 1366-98-1     CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        FEBRUARY 2, 1999
CLARENCE H. CARTER, COMMISSIONER,
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    John C. Morrison, Jr., Judge

           Bernard T. Holmes (Holmes & Associates, P.C.,
           on brief), for appellant.

           Cheryl A. Wilkerson, Assistant Attorney
           General (Mark L. Earley, Attorney General;
           Ashley L. Taylor, Jr., Deputy Attorney
           General; Siran S. Faulders, Senior Assistant
           Attorney General; Daniel J. Poynor, Assistant
           Attorney General, on brief), for appellee.




     Grady W. Perry (appellant) appeals the trial court's order

granting judgment in his favor and dismissing the administrative

finding of child abuse against him.   He contends that the trial

court erred in dismissing the case on a basis other than one he

deemed appropriate.   He also appeals the trial court's denial of

attorneys' fees.   For the reasons that follow, we dismiss the

     *
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     **
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
appeal.




          - 2 -
                            I.   BACKGROUND

       The facts are undisputed.    On March 9, 1990, the Norfolk

Department of Human Services (local agency) received a complaint

alleging physical abuse by appellant of his five-year-old son,

M.S.   The local agency conducted an investigation and entered a

disposition of "Founded-Physical Abuse."      The notice to appellant

advising him of the results of the investigation and his appeal

rights was misaddressed and not timely received by appellant.
       In 1995 appellant discovered that his name was listed in the

Commonwealth's central registry with the disposition of

"Founded-Physical Abuse."    Appellant contacted the local agency

regarding the lack of notice and on October 10, 1995, the agency

responded.
             A review of our record indicates the
             notification letter was sent to an incorrect
             address, and, therefore, you may not have
             been formally notified of the disposition and
             your right to appeal the decision.

             By copy of this letter, I am informing you
             that you have thirty days to request an
             appeal of the disposition of the above
             mentioned matter.


       Within the appropriate time limitation, appellant formally

requested an appeal of the 1990 disposition finding by the local

agency.   Following an informal conference, the local agency

officer assigned to the case rendered a decision upholding the

original complaint and disposition of "Founded-Physical Abuse."

       Appellant requested further review by the Commissioner of

the Virginia Department of Social Services (Department).     The



                                   - 3 -
parties presented evidence and the designated hearing officer

upheld the local agency's founded disposition.

     On December 9, 1996, appellant filed a Petition for Appeal

in the Circuit Court of the City of Norfolk, seeking judicial

review of the hearing officer's decision.    A judicial review

hearing was conducted on December 2, 1997.   The trial court found

that deficiencies in the documentation of the investigation and

the delay in notice and opportunity to challenge the founded

disposition impaired appellant's ability to challenge the

disposition five years later.    The final order entered on May 1,

1998, read as follows:
          ADJUDGED, ORDERED and DECREED that the
          disposition is reversed and hereby amended to
          "Unfounded" and all records concerning the
          investigation and disposition of the March 9,
          1990 complaint shall be purged from the
          Central Registry and the records of the
          Norfolk Division of Social Services, as
          provided by departmental policy.


Additionally, the trial court denied appellant's request for

attorneys' fees.

                           II.   STANDING

     Appellant succeeded at the trial court level in his request

to reverse the Department's administrative finding of abuse and

to have purged from the central registry all records relating to

the case.   Nevertheless, he challenges on appeal the trial

court's reasoning in dismissing the case.    Appellant argues that

the trial court's failure to find any statutory or constitutional

violations will have a "chilling" effect on his parental rights.



                                 - 4 -
For the reasons that follow, we dismiss the appeal.

     Under Code § 17.1-405, recodifying Code § 17-116.05, only an

"aggrieved party" may appeal to the Court of Appeals.   "It is

elementary that an appellant must have been aggrieved by the

decree appealed from or he has no standing. . . ."    Stone v.

Henderson, 182 Va. 648, 651, 29 S.E.2d 845, 846 (1944).   "The

word `aggrieved' in a statute, it has been held, refers to a

substantial grievance, a denial of some personal or property

right, legal or equitable, or the imposition upon a party of a

burden or obligation."   D'Alessio v. Lukhard, 5 Va. App. 404,

408, 363 S.E.2d 715, 718 (1988).
          Before a person is entitled to an appeal or
          writ of error he must show that he has an
          immediate, pecuniary and substantial interest
          in the litigation, and not a remote or
          indirect interest. He must also show that he
          has been aggrieved by the judgment or decree
          of the lower court. Appeals and writs of
          error are not allowed for the purpose of
          settling abstract questions, however
          interesting and important to the public they
          may be, but only to correct errors
          injuriously affecting the appellant or
          plaintiff in error.

Nicholas v. Lawrence, 161 Va. 589, 593, 171 S.E. 673, 674 (1933)

(quoted in Virginia Employment Comm'n v. City of Virginia Beach,

222 Va. 728, 732, 284 S.E.2d 595, 597 (1981)).

     The case of Commonwealth v. Harley, 256 Va. 216, 504 S.E.2d

852 (1998), recently decided by the Supreme Court, is

dispositive.   In Harley, the defendant appealed his six felony

convictions to this Court, arguing that the trial court erred in



                               - 5 -
denying his motion for a transcript of a suppression hearing at

the Commonwealth's expense.      In a published opinion, we held that

the defendant was constitutionally entitled to a free transcript

of the suppression hearing.       See Harley v. Commonwealth, 25 Va.

App. 342, 350, 488 S.E.2d 647, 750 (1997).      However, we concluded

that the trial court's error was harmless because there were "no

significant discrepancies" between the witnesses' testimony at

the hearing and their testimony at trial.       Id. at 351, 488 S.E.2d

at 651.   Accordingly, we affirmed the defendant's convictions.
See id.

     The Commonwealth filed a petition for appeal with the

Supreme Court, seeking reversal of this Court's decision that the

defendant was constitutionally entitled to a free transcript of

the suppression hearing.      The Supreme Court dismissed the appeal

on the basis that the Commonwealth lacked standing as a "party

aggrieved."       Harley, 256 Va. at 220, 504 S.E.2d at 854.

                We do not agree that the Commonwealth is
           aggrieved by the Court of Appeals' ruling
           with respect to the issue of Harley's
           entitlement to a free transcript of his
           suppression hearing. That issue was rendered
           moot by the Court of Appeals' further ruling
           that the error in the trial court's denial of
           a free transcript was harmless.

              *       *      *      *      *      *      *

                In reality, the Commonwealth invites
           this Court to render an advisory opinion on a
           moot question based upon speculative facts.
           This is an exercise in which the Court
           traditionally declines to participate. "The
           reason . . . is that the courts are not
           constituted . . . to render advisory


                                   - 6 -
          opinions, to decide moot questions or to
          answer inquiries which are merely
          speculative."

Id. at 219-20, 504 S.E.2d at 853-54 (citations omitted).


     In the instant case, the trial court granted judgment in

appellant's favor and dismissed the finding against him.      The

disposition of founded physical abuse was changed to unfounded,

and the records were purged from the central registry.    In its

final order, the trial court held that the procedural defects in

the case "were so substantial that they impaired [appellant's]

ability to challenge the findings at the administrative review

proceedings."    In short, he won.   There was no other relief yet

to be afforded this litigant.
     While appellant may prefer that he prevail on a different or

broader ground, this does not give him standing to appeal the

trial court's decision in his favor.    We hold that appellant, as

the prevailing party, is not an "aggrieved party" within the

meaning of Code § 17.1-405, recodifying Code § 17-116.05.

     Appellant's argument that the trial court's decision will

have a "chilling" effect on his parental rights in the future,

which is sufficient to invoke standing, lacks merit.    His

apprehension that he will suffer from some future burden does not

qualify him as an "aggrieved party" within the meaning of Code

§ 17.1-405, recodifying Code § 17-116.05.     See id. at 219, 504

S.E.2d at 854.   Appellant's "concerns are hypothetical and can

only be based, at best, upon speculation and conjecture."      Id.




                                - 7 -
Accordingly, we dismiss the appeal as it relates to appellant's

first assignment of error.




                              - 8 -
                       II.   ATTORNEYS' FEES

     Appellant next argues that the trial court erred in denying

his request for attorneys' fees.   He contends that as the

prevailing party in the trial court, he was entitled to

reasonable costs and attorneys' fees under Code § 9-6.14:21.     The

Department argues that Code § 9-6.14:21 does not apply to appeals

of child protective services determinations because the local

agency is not subject to provisions of the statute.
     Assuming, without deciding, that Code § 9-6.14:21 applies to

the local agency, we hold that the trial court did not abuse its

discretion in denying the requested fees.      That statute provides

in pertinent part:
          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 (emphasis added).

     In the instant case, although appellant met the first prong

by prevailing on the merits of the case, we cannot say the local

agency was "not substantially justified" in its position.     The

trial court made no such finding and the record does not

establish it.   Appellant's lack of notice of the 1990

administrative finding was due to a mistake of fact by the local


                               - 9 -
agency and as soon as the mistake was discovered, appellant was

afforded a delayed appeal by the Department.   Appellant sought

judicial review of the Department's decision, and the trial court

reversed those findings and ruled in his favor.   The trial judge

did not abuse its discretion in denying the request for

attorneys' fees.   Accordingly, the trial court's decision is

affirmed.

     For the reasons stated, we dismiss the appeal and the

request for attorneys' fees.

                                                          Dismissed.




                               - 10 -
