Lynchburg Div. of Social Services v. Cook

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, Agee, 1
and Goodwyn, JJ.

LYNCHBURG DIVISION OF SOCIAL SERVICES
OPINION BY
v. Record No. 071964 JUSTICE G. STEVEN AGEE
September 12, 2008
JAMES COOK, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

The Lynchburg Division of Social Services (“LDSS”) appeals

from the judgment of the Court of Appeals affirming the judgment

of the Circuit Court of the City of Lynchburg awarding custody

of a minor child to James and Sandra Cook. For the reasons set

forth below, we will reverse the judgment of the Court of

Appeals.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

A. FACTUAL BACKGROUND

Amy Cook lived in the City of Lynchburg with her husband,

Jimmy Cook, and their seventeen-month-old daughter, BC. 2 On

March 26, 2004, Amy presented to Lynchburg General Hospital with

severe depression and alleged that Jimmy had caused her

condition by taking pornographic pictures of BC and viewing

pornography with BC sitting in his lap.

1
Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
2
Except where otherwise noted, we refer to the adult
parties sharing a surname by their given names. We refer to the
minor child by her initials.
 In response to Amy’s allegations, Lisa Parks, a Child

Protective Service worker with the LDSS, and investigators from

the Lynchburg Police Department interviewed the Cooks and

obtained a search warrant, under which they seized computer

equipment and approximately 300 images from the Cooks’ home. In

an affidavit in support of an emergency removal petition under

Code § 16.1-251, Parks stated that most of the seized images

were pornographic and depicted participants under the age of 18.

According to Parks’ affidavit, Jimmy denied taking pornographic

pictures of his daughter and no objectionable pictures of BC

were found. However, Jimmy admitted that he took photographs of

his daughter for entry into photography contests and used the

other pictures for ideas of how to pose BC.

In addition to Amy’s accusations and the seized images, the

LDSS investigation revealed Jimmy had a criminal conviction for

assault against a six-year-old child in 1994. Amy admitted that

she and Jimmy’s family were aware of the earlier charges and

that Jimmy used pornography prior to BC’s birth. Though BC was

unable to verbalize or respond to interview questions, Parks

observed her engaging in sexual mimicry during a visit to the

Cooks’ home.

On April 6, 2004, Jimmy was arrested on two counts of

possession of child pornography in violation of Code § 18.2-

2
374.1:1. 3 That day, Amy took BC to Amy’s aunt’s home in

accordance with a safety plan developed by Parks. However, Amy

returned with BC to their home in Lynchburg that night, in

violation of the safety plan. On the afternoon of April 7,

following Jimmy’s release from custody and Amy’s violation of

the safety plan, the LDSS placed BC in protective custody. Amy,

Jimmy, and Jimmy’s mother, Sandra Cook, 4 each filed petitions for

custody of BC in the Juvenile and Domestic Relations District

Court of the City of Lynchburg (“Juvenile and Domestic Relations

Court”).

B. FOSTER CARE PROCEEDINGS

On April 8, 2004, the Juvenile and Domestic Relations Court

entered an emergency removal order under Code § 16.1-251

transferring temporary custody of BC to the LDSS based upon

findings that she “would be subjected to an imminent threat to

life or health to the extent that severe or irremediable injury

would be likely to result if she were returned to or left in the

custody of . . . her parents” and that reasonable efforts had

been made to prevent her removal from the home. The Juvenile

and Domestic Relations Court then entered a preliminary removal

3
The charges were dismissed by orders of nolle prosequi
entered January 5, 2005.
4
Though not named in the petition for custody, Sandra’s
husband, James, was a party to the custody proceedings below and

3
order under Code § 16.1-252 confirming the LDSS as BC’s

temporary legal custodian “pending the entry of a dispositional

order pursuant to Virginia Code § 16.1-278.2” and directing the

LDSS to complete the investigation required by that section. At

a subsequent hearing under Code § 16.1-252(G), the Juvenile and

Domestic Relations Court made the specific finding that BC “is

abused or neglected.” The court set the date for the Code

§ 16.1-278.2 dispositional hearing and directed the LDSS to file

a foster care plan under Code § 16.1-281.

The LDSS foster care plan recommended placing BC in a

foster home with the goal of later returning her home. The

Juvenile and Domestic Relations Court adopted the foster care

plan submitted by the LDSS and entered a July 1, 2004, order

transferring custody of BC to the LDSS and setting a foster care

review hearing under Code § 16.1-282 for January 4, 2005.

The LDSS submitted a revised foster care plan, substituting

a goal of continuing foster care for the earlier goal of

returning BC to her parents’ home. The Juvenile and Domestic

Relations Court adopted that foster care plan at the January 4,

2005, foster care review hearing and set a permanency planning

hearing under Code § 16.1-282.1 for May 27, 2005.

is an appellee in the appeal before us. We refer to James and

4
 C. CUSTODY PROCEEDINGS

While the foregoing proceedings were in progress, the

Juvenile and Domestic Relations Court conducted hearings

regarding the three competing petitions for custody filed by

Amy, Jimmy, and the Grandparents, and ordered the court service

unit to conduct an investigation of them. Subsequent to the

January 4, 2005, foster care plan review order, but prior to the

scheduled May 27, 2005, permanency planning hearing, the

Juvenile and Domestic Relations Court entered a final custody

order on March 11, 2005, awarding custody of BC to the

Grandparents. Amy, Jimmy, and the LDSS separately appealed to

the Circuit Court for the City of Lynchburg.

D. APPELLATE PROCEEDINGS

Prior to trial de novo on the appeals in the circuit court,

a motion by the LDSS to suspend the Juvenile and Domestic

Relations Court’s March 11, 2005, custody order was denied. The

circuit court also determined in an interlocutory order that

“there is no requirement for or need for a permanency planning

hearing in the Juvenile Court on May 27, 2005.”

In October 2005, at the conclusion of a two-day trial, the

circuit court awarded custody of BC to the Grandparents. 5 The

Sandra Cook collectively as “the Grandparents.”
5
At the conclusion of the trial, the LDSS inquired, “Will
the Department of Social Services continue to be involved when

5
circuit court’s final order of November 22, 2005, stated that

“[u]pon consideration of the evidence and all of the statutory

factors set forth in Virginia Code § 20-124.3 . . . the court

finds by clear and convincing evidence that the best interests

of [BC] require that her custody be awarded to James and Sandra

Cook, her paternal grandparents, and it is so ORDERED.”

Additionally, the court’s order set forth that “[u]pon

consideration of all the evidence adduced at the hearing, this

Court finds that no further provision of social services to the

child are required.”

The LDSS timely objected to the circuit court’s order,

noting the circuit court failed to make the findings required in

foster care proceedings under Code §§ 16.1-281(C1), 16.1-

282(D1), and 16.1-282.1(A1) (collectively, “the foster care

statutes”). The LDSS also objected on the basis that the

evidence was insufficient to support transfer of custody to the

Grandparents as being in the best interests of the child.

On appeal to the Court of Appeals, a divided panel of that

court reversed the judgment of the circuit court in an

unpublished opinion. 6 Lynchburg Div. Soc. Servs. v. Cook, No.

you do the Review Hearing? Because there won’t be a Foster Care
Plan.” The court replied, “No, there won’t be; they don’t need
to be involved.”
6
The LDSS contended in the Court of Appeals that the
Juvenile and Domestic Relations Court, and consequently the

6
2792-05-3 (Feb. 6, 2007). The panel majority determined that

the circuit court erred in awarding custody of BC to the

Grandparents because the specific fact-finding requirements

under the applicable foster care statutes were not made. Id.,

slip op. at 9-12. The panel majority also held that the circuit

court erred in awarding custody without conducting the

permanency planning hearing and terminating the LDSS’s

involvement in the case. Id. at 13.

Upon rehearing en banc, the en banc majority of the Court

of Appeals affirmed the judgment of the circuit court. 7

Lynchburg Div. of Soc. Servs. v. Cook, 50 Va. App. 218, 228, 648

S.E.2d 328, 333 (2007). The en banc majority noted the

provision of Code § 16.1-241(A) stating that “[t]he authority of

the juvenile court to consider a petition involving the custody

of a child shall not be proscribed or limited where the child

has previously been awarded to the custody of a local board of

social services” and then referenced the provision in Code

§ 16.1-278.15 authorizing the court in a custody case under Code

circuit court, lacked “jurisdiction” to consider the Cooks’
various custody petitions because none of those parties asked
for custody under a Code § 16.1-282 foster care review petition.
The Court of Appeals, without dissent, determined the Juvenile
and Domestic Relations Court had subject matter jurisdiction
over the custody petitions. The LDSS does not raise this issue
on appeal to this Court.
7
Neither the panel nor en banc opinions addressed the
sufficiency of the evidence issue raised by the LDSS.

7
§ 16.1-241(A)(3) to “make any order of disposition . . . as may

be made by the circuit court.” Id. at 225, 648 S.E.2d at 331

(emphasis in original). Observing that the Grandparents had

filed their custody petition under Code § 16.1-241(A)(3), the

majority concluded the “any order” language of Code § 16.1-

278.15 authorized the juvenile and domestic relations district

courts and circuit courts to award custody of BC without meeting

any of the finding requirements in the foster care statutes:

In Code §§ 16.1-241(A) and 16.1-278.15(B), the General
Assembly has stated unequivocally that the JDR court’s
authority to consider such a petition is not
“proscribed or limited” by the fact that “custody of
the child has previously been awarded to [DSS].”
Consequently, through these provisions, the General
Assembly has made the foster care plan statutes
subordinate to the statutes under which the Cooks were
awarded custody of their granddaughter, and did not
conflate the two statutory schemes.
Given that the courts below had the authority to
adjudicate the Cooks’ petition and award them custody
apart from the foster care plan, the courts also
correctly applied the “best interest of the child”
standard in making that award, pursuant to Code
§§ 16.1-278.15(F), 20-124.2(B), and 20-124.3, rather
than the standard for approving foster care parents,
which did not apply. 8

Id. at 226, 648 S.E.2d at 332 (alteration in original).

8
The en banc majority further explained their reasoning in
a footnote: “In other words, the courts below were not
compelled, as DSS contends, to apply the standards and make the
findings required for placing a child with a relative as a
foster care parent, pursuant to Code §§ 16.1-281(C1), 16.1-
282(D1), and 16.1-282.1(A1).” Id. at 226 n.8, 648 S.E.2d at 332
n.8.

8
 Thus, in the en banc majority’s view, the general “best

interests of the child” determination required under Code §§ 20-

124.2 and 20-124.3 (collectively, the “general custody

statutes”) supersedes and replaces the findings required under

the foster care statutes when a Code § 16.1-241(A)(3) custody

petition is before the court. 9 Id. at 226-28, 648 S.E.2d at 332.

Echoing their panel majority opinion, the two en banc

dissenting judges observed that the specific foster care

statutes applicable to a child who, like BC, was statutorily

subject to a foster care plan, do not reference the general

custody statutes. The en banc dissent noted that each of the

foster care statutes require that:

Any order transferring custody of the child to a
relative other than the child's prior family shall be
entered only upon a finding, based upon a
preponderance of the evidence, that the relative is
one who, after an investigation as directed by the
court, (i) is found by the court to be willing and
qualified to receive and care for the child; (ii) is
willing to have a positive, continuous relationship
with the child; (iii) is committed to providing a
permanent, suitable home for the child; and (iv) is

9
Three judges of the Court of Appeals concurred in the en
banc majority opinion on the ground that the specific fact-
finding required under the foster care statutes is “nevertheless
subsumed in the best interests analysis. Any finding, pursuant
to the general custody statutes, that an award of custody to ‘a
relative other than the child's prior family,’ Code § 16.1-
282(D1), is in the child’s best interests includes an implicit
finding that the relative” meets the specific Code § 16.1-
282(D1) requirements. Id. at 229, 648 S.E.2d at 333 (Elder, J.,
concurring).

9
 willing and has the ability to protect the child from
abuse and neglect; and the order shall so state.

Code §§ 16.1-281(C1), 16.1-282(D1), 16.1-282.1(A1) (emphasis

added).

The dissent observed that the majority opinion failed to

harmonize the general custody and foster care statutory schemes.

The dissent saw those schemes, correctly read, as not in

conflict; thus the majority’s conclusion that the foster care

statutes were “subordinate” to the general custody statutes was

erroneous. Rejecting the majority’s construction of Code

§ 16.1-278.15(B), the dissent noted “placement with DSS does not

proscribe or limit the circuit court’s ability to consider a

petition for custody. In other words, the child’s placement

does not remove the trial court’s jurisdiction over issues such

as custody.” 50 Va. App. at 234, 648 S.E.2d at 335 (Humphreys,

J., dissenting).

Concluding, the en banc dissent observed:

Code § 16.1-281 was not intended to “divest” the trial
court of jurisdiction over the custody matter, nor was
it intended to limit or proscribe the trial court's
authority to entertain the custody matter. Nor does
Code § 16.1-281 limit the trial court to considering
just the foster care plan or the objectives set forth
by DSS. In fact, Code § 16.1-241 makes it perfectly
clear that the trial court has jurisdiction over
custody matters. . . . [W]hen read in conjunction
with the other pertinent statues, Code § 16.1-281
simply requires that when the custody of an abused and
neglected child is at issue, the trial court must make
specific written findings of fact, designed to protect
the child from the dangers for which he or she was

10
 removed from the home. See Code §§ 16.1-281, 16.1-
282, 16.1-282.1. In other words, the trial court is
free to decide the issue of custody as it sees fit, so
long as it incorporates into the record [the required
findings of the foster care statutes].

50 Va. App. at 235-36, 648 S.E.2d at 336 (Humphreys, J.,

dissenting) (emphasis in original).

The en banc Court of Appeals denied the Grandparents’

request of an award under Code § 16.1-278.19 for the attorney’s

fees and costs incurred by them in that court: “[W]e cannot say

DSS’s position in this case was unreasonable . . . because the

litigation addressed appropriate and substantial issues . . . .”

Id. at 228, 648 S.E.2d at 332 (internal quotation marks

omitted). 10 We awarded the LDSS an appeal and also awarded the

Grandparents an appeal on their assignment of cross-error

regarding the denial of attorney’s fees.

II. ANALYSIS

The LDSS makes two assignments of error to the judgment of

the Court of Appeals. Initially, the LDSS contends the Court of

Appeals erred by “holding that the detailed statutory scheme for

custody of abused or neglected children . . . is ‘subordinate’

to the general custody and visitation provisions of Title 20,

10
Apparently the Grandparents did not request an award of
attorney’s fees in either the Juvenile and Domestic Relations
Court or the circuit court and no claim for an award relating to
attorney’s fees in those courts is before us in this appeal.

11
and in declining to enforce the requirements of Title 16.1.”

Because we find this assignment of error dispositive, we do not

address the second assignment of error by the LDSS challenging

the sufficiency of the evidence to support the award of custody

to the Grandparents.

A. THE FOSTER CARE AND GENERAL CUSTODY STATUTORY SCHEMES

The LDSS argues that the Court of Appeals erred in holding

that “the General Assembly has made the foster care plan

statutes subordinate to the statutes under which the Cooks were

awarded custody of their granddaughter,” 50 Va. App. at 226, 648

S.E.2d at 332, a child subject to a foster care plan and who had

been found to have been abused or neglected. The LDSS contends

the Court of Appeals failed to harmonize the two statutory

schemes, the foster care statutes and the general custody

statutes, which the court saw as conflicting, and ignored the

plain language of the more specific statutory scheme in

unwarranted deference to statutes of general application. As a

result of the Court of Appeals’ opinion, the LDSS argues any

“person with a legitimate interest” under Code § 20-124.1

entitled to file a petition for custody of a child subject to a

foster care plan could effectively circumvent the foster care

statutes by simply filing a petition for custody. Consequently,

the LDSS contends the Court of Appeals’ decision eliminates the

statutory safeguards embedded in the foster care statutes

12
intended to protect vulnerable children like BC. The LDSS

concludes the General Assembly did not intend such “far-reaching

and deleterious consequences” when it created the two statutory

frameworks. We agree with the LDSS.

The statutes governing foster care proceedings are detailed

and require specific findings by the court at each stage of the

process whether involving a child, like BC, found to be abused

or neglected, or a child who is abandoned or otherwise within

the statutory ambit. In emergency situations, an allegedly

abused or neglected child may be removed upon an order entered

after an ex parte emergency removal hearing. The petitioning

party must prove that “[t]he child would be subjected to an

imminent threat to life or health to the extent that severe or

irremediable injury would be likely to result” without the

removal and that “[r]easonable efforts have been made to prevent

removal . . . and there are no alternatives less drastic than

removal . . . which could reasonably protect the child’s life or

health pending a final hearing on the petition.” Code § 16.1-

251(A).

A juvenile and domestic relations district court may also

order the removal of an allegedly abused or neglected child by

entering a preliminary removal order under Code § 16.1-252(A).

The party petitioning for removal must prove the same facts as

required for an emergency removal order. Code § 16.1-252(E).

13
Following the preliminary removal hearing, the juvenile and

domestic relations district court may place the child in the

custody of a suitable agency or of a suitable person under the

supervision of the local department of social services. Code

§ 16.1-252(F).

The court must conduct a dispositional hearing within

seventy-five days of the initial preliminary removal hearing.

Code §§ 16.1-252(H), 16.1-278.2(A). As a result of the

dispositional hearing, “[i]f the child is found to be . . .

abused or neglected,” the court may transfer custody subject to

a foster care plan under Code § 16.1-281 “[a]fter a finding that

there is no less drastic alternative.” Code § 16.1-278.2(A).

This statute also requires that:

Any order transferring custody of a child to a
relative . . . shall be entered only upon a finding,
based upon a preponderance of the evidence, that the
relative . . . is one who, after an investigation as
directed by the court, (i) is found by the court to be
willing and qualified to receive and care for the
child; (ii) is willing to have a positive, continuous
relationship with the child; (iii) is committed to
providing a permanent, suitable home for the child;
and (iv) is willing and has the ability to protect the
child from abuse and neglect; and the order shall so
state.

Code § 16.1-278.2(A1) (emphasis added).

The juvenile and domestic relations district court must

conduct a foster care plan hearing within seventy-five days of

the dispositional hearing. Code § 16.1-281(C). While the court

14
may revise the foster care plan, “[a]ny order transferring

custody of the child to a relative other than the child's prior

family shall be entered only upon a finding, based upon a

preponderance of the evidence” of the same facts required to be

found under Code § 16.1-278.2(A1), “and the order shall so

state.” Code § 16.1-281(C1) (emphasis added). Within six

months of the foster care plan hearing, the court must conduct a

foster care review hearing under Code § 16.1-282(A). However,

“[a]ny order transferring custody of the child to a relative

other than the child’s prior family shall be entered only upon a

finding, based upon a preponderance of the evidence” of the same

facts required to be found under Code §§ 16.1-278.2(A1) and

16.1-281(C1), “and the order shall so state.” Code § 16.1-

282(D1) (emphasis added).

The General Assembly has further mandated that the juvenile

and domestic relations district court must conduct a permanency

planning hearing within eleven months of the dispositional

hearing “to establish a permanent goal for the child and either

to achieve the permanent goal or to defer such action through

the approval of an interim plan for the child.” Code § 16.1-

282.1(A). Again, “[a]ny order transferring custody of the child

to a relative other than the child’s prior family shall be

entered only upon a finding, based upon a preponderance of the

evidence” of the same facts required to be found under Code

15
§§ 16.1-278.2(A1), 16.1-281(C1), and 16.1-282(D1), “and the

order shall so state.” Code § 16.1-282.1(A1) (emphasis added).

Thus, once the foster care statutory process has commenced,

the juvenile and domestic relations district court may not

transfer custody of a child to a relative, other than the

child’s prior family, without making the four specific findings

of fact required by Code §§ 16.1-278.2(A1) and the foster care

statutes. Those findings, under the plain terms of the

statutes, must be stated in the order transferring custody.

Neither the Juvenile and Domestic Relations Court nor the

circuit court did so in this case.

By comparison, the statutes of general application

governing custody of a child are much less specific than the

foster care statutory scheme. For example, under Code § 16.1-

278.15, titled “Custody or visitation, child or spousal support

generally,” subsection F requires “[i]n any case . . . the court

shall consider the best interests of the child” and references

Code §§ 20-124.1 et seq. Code § 20-124.2(B) also states that

“the court shall give primary consideration to the best

interests of the child” and Code § 20-124.3 sets forth ten non-

exclusive factors the court “shall consider.” However, in

contrast to the findings required under Code § 16.1-278.2(A1)

and the foster care statutes, there is no statutory requirement

that a court’s findings on the child’s best interests under the

16
general custody statutes be stated in the resulting custody

order. See Code § 20-124.3 (“In determining best interests of a

child for purposes of determining custody . . . [a] judge shall

communicate to the parties the basis of the decision either

orally or in writing.”).

“Statutory construction is a question of law which we

review de novo on appeal.” Parker v. Warren, 273 Va. 20, 23,

639 S.E.2d 179, 181 (2007) (citing Boynton v. Kilgore, 271 Va.

220, 227, 623 S.E.2d 922, 925 (2006)). “[C]ourts apply the

plain language of a statute unless the terms are ambiguous.”

Boynton, 271 Va. at 227, 623 S.E.2d at 926 (citing Tiller v.

Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952)); see

also Alliance to Save the Mattaponi v. Commonwealth, 270 Va.

423, 439, 621 S.E.2d 78, 86-87 (2005) (“Courts are bound by the

plain meaning of statutory language.”). “[I]f the language is

plain, certain and unambiguous, so that no doubt arises from its

own terms as to its meaning, then there is no room for

interpretation.” Boynton, 271 Va. at 228 n.10, 623 S.E.2d at

926 n.10 (quoting Golden Valley County v. Lundin, 203 N.W. 317,

319 (N.D. 1925)).

“[W]henever ‘a given controversy involves a number of

related statutes, they should be read and construed together in

order to give full meaning, force, and effect to each.’ ”

Boynton, 271 Va. at 229, 623 S.E.2d at 927 (quoting Ainslie v.

17
Inman, 265 Va. 347, 353, 577 S.E.2d 246, 249 (2003)); see also

Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609

(1998) (“[W]hen two statutes seemingly conflict, they should be

harmonized, if at all possible, to give effect to both.”). A

cardinal rule of statutory interpretation is that “[w]hen one

statute addresses a subject in a general manner and another

addresses a part of the same subject in a more specific manner,

the two statutes should be harmonized, if possible, and when

they conflict, the more specific statute prevails.” Alliance to

Save the Mattaponi, 270 Va. at 439-40, 621 S.E.2d at 87.

As illustrated above, the foster care statutes are much

more specific and contain mandatory findings that must be made

by the court when custody of a child is placed with “a relative

other than the child’s prior family,” such as the Grandparents.

The Court of Appeals failed to apply the plain language of the

more specific statutory requirements of the foster care statutes

and give those provisions effect in a custody proceeding

involving a child subject to a foster care plan. When the Court

of Appeals concluded the foster care statutes were “subordinate”

to the general custody statutes in that circumstance, it also

erred by not reading those statutes in harmonious effect with

the general custody statutes.

The Court of Appeals mistakenly read certain language in

Code §§ 16.1-241(A) and 16.1-278.15(B) as subordinating the

18
foster care statutes to the general custody statutes. Both Code

§ 16.1-241(A) and 16.1-278.15(B) contain the following language:

“The authority of the juvenile court to consider a petition

involving the custody of a child shall not be proscribed or

limited where the child has previously been awarded to the

custody of a local board of social services.” The Court of

Appeals read this statutory provision in conjunction with the

Code § 16.1-278.15(A) provision that “the court may make any

order of disposition” in a Code § 16.1-241(A)(3) custody case as

eliminating any application of the foster care statutes to the

custody determination of BC. However, the “shall not be

proscribed or limited” language merely confirms the Juvenile and

Domestic Relations Court’s authority to exercise its

jurisdiction, granted by Code § 16.1-241, in a custody case

involving a child subject to a foster care plan. Nothing in

that language reflects any curtailment of the application of the

foster care statutes.

The en banc dissent succinctly described the interrelation

of these statutory schemes, and why the Court of Appeals

conclusion was erroneous, when it noted that the foster care

statutes do not

limit the trial court to considering just the foster
care plan or the objectives set forth by DSS. In fact,
Code § 16.1-241 makes it perfectly clear that the
trial court has jurisdiction over custody
matters. . . . [W]hen read in conjunction with the

19
 other pertinent statues, Code § 16.1-281 simply
requires that when the custody of an abused and
neglected child is at issue, the trial court must make
specific written findings of fact, designed to protect
the child from the dangers for which he or she was
removed from the home. See Code §§ 16.1-281, 16.1-282,
16.1-282.1. In other words, the trial court is free
to decide the issue of custody as it sees fit, so long
as it incorporates into the record a finding that
[states the requirements of the foster care statutes].

50 Va. App. 235-36, 648 S.E.2d at 336 (Humphreys, J.,

dissenting).

The requirement that the trial court make the findings

mandated by the foster care statutes in no way “proscribe[s] or

limit[s]” the authority of the Juvenile and Domestic Relations

Court to exercise its subject matter jurisdiction over child

custody cases. To the contrary, the statutory schemes of the

foster care and general custody statutes are harmonized, and the

plain meaning of the more specific foster care statutes is

applied, when the trial court adjudicates a custody case

involving a child subject to a foster care plan by making the

required foster care statutory findings and stating those

findings in its order.

The Court of Appeals’ reliance on the Code § 16.1-278.15(A)

provision that the “court may make any order” as a form of

plenary authority to ignore the foster care statutes is also

misplaced. Code § 16.1-241(A) is the statutory grant of

jurisdiction to the Juvenile and Domestic Relations Court in

20
custody cases. The Code § 16.1-278.15(A) language only applies

in the Code § 16.1-241(A)(3) subset of custody cases which are

of general application: “of controversy or requires

determination.” The Code § 16.1-278.15(A) language merely

provides that the Juvenile and Domestic Relations Court’s

authority in Code § 16.1-241(A)(3) custody cases is as extensive

as that of the circuit court: it in no way applies any

limitation on the applicability of the foster care statutes.

Moreover, the jurisdictional basis in BC’s case was more

appropriately Code § 16.1-241(A)(1), which is the specific

jurisdictional statute applicable to custody of a child “who is

alleged to be abused [or] neglected.” As the en banc dissent

noted, the Court of Appeals’ expansive reading of Code § 16.1-

241(A)(3) through Code § 16.1-278.15(A) “renders Code § 16.1-

241(A)(1) meaningless.” 50 Va. App. at 233, 648 S.E.2d at 335.

The only interpretation of the relevant provisions of Title

16.1 and Title 20 that gives effect to both statutory schemes,

and the intent of the General Assembly, is that a trial court

must make the specific factual findings required by the foster

care statutes in a custody case involving a child subject to a

foster care plan. The interpretation offered by the Court of

Appeals would permit any “[p]erson with a legitimate interest”

under Code § 20-124.1 entitled to file a petition for custody to

circumvent a pending foster care proceeding. Such a general

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custody exception to the statutory provisions governing foster

care proceedings would eviscerate the General Assembly’s

detailed framework intended to safeguard a child, like BC, who

was subject to a foster care plan.

Once a child has become subject to proceedings under the

foster care statutes, a court may not transfer custody without

the specific, written factual findings required by the foster

care statutes. This statutory mandate holds true whether the

custody order is entered upon a petition for custody, a petition

for a foster care review hearing, or a petition for a permanency

planning hearing. An award of custody without such findings, as

in the case at bar, is error as a matter of law.

Moreover, it is contrary to the clear and plain language of

the foster care statutes to conclude those specific statutory

findings are subsumed by findings under the best interests of

the child standard. For example, each of the foster care

statutes requires a finding that the child’s relative seeking

custody “is willing and has the ability to protect the child

from abuse and neglect.” That distinct and required finding is

not within any mandated parameter of the best interests of the

child inquiry and such a finding was clearly not made in the

case at bar. Allowing the best interests of the child standard

to subsume these explicit statutory requirements would render

those requirements meaningless and write out of the foster care

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statutes the mandatory directive that “the order shall so

state.” We avoid such interpretations. “The rules of statutory

interpretation argue against reading any legislative enactment

in a manner that will make a portion of it useless, repetitious,

or absurd. On the contrary, it is well established that every

act of the legislature should be read so as to give reasonable

effect to every word . . . .” Jones v. Conwell, 227 Va. 176,

181, 314 S.E.2d 61, 64 (1984). “[E]very part of a statute is

presumed to have some effect and no part will be considered

meaningless unless absolutely necessary.” Hubbard v. Henrico

Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998).

For the foregoing reasons, we conclude the Court of Appeals

erred in affirming the judgment of the circuit court which

awarded custody of BC to the Grandparents.

B. ATTORNEY’S FEES

The Grandparents assign as cross error the denial by the

Court of Appeals of an award of attorney’s fees under Code

§ 16.1-279.1 for the fees relating to their appeal in that

court. Ordinarily, when a claim for attorney’s fees is

cognizable, we review a refusal to award attorney’s fees for

abuse of discretion. Wilkerson v. Wilkerson, 214 Va. 395, 398,

200 S.E.2d 581, 584 (1973); Monahan v. Monahan, 212 Va. 406,

408, 184 S.E.2d 812, 813 (1971). A “ ‘court by definition

abuses its discretion when it makes an error of law. . . . The

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abuse-of-discretion standard includes review to determine that

the discretion was not guided by erroneous legal conclusions.’ ”

Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445

(2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

Code § 16.1-278.19 provides that “the court may award

attorney’s fees and costs on behalf of any party as the court

deems appropriate based on the relative financial ability of the

parties.” The Court of Appeals has determined that it may order

the award of appellate attorney’s fees and costs under that

statute. Cartwright v. Cartwright, 49 Va. App. 25, 31, 635

S.E.2d 691, 694 (2006); Gottlieb v. Gottlieb, 19 Va. App. 77,

95-96, 448 S.E.2d 666, 677 (1994). However, the Court of

Appeals did not base its decision in the case at bar upon the

statutory factor of the “relative financial ability of the

parties.” Instead, the Court of Appeals enunciated a non-

statutory standard, which was that the Grandparents were not

entitled to attorney’s fees because the position of the LDSS was

not unreasonable. 50 Va. App. at 228, 648 S.E.2d at 332-33

(“[W]e cannot say DSS’s position in this case was unreasonable

. . . because the litigation addressed appropriate and

substantial issues . . . . Therefore, we do not award

attorney’s fees associated with this appeal.”).

In so much as the Court of Appeals made its determination

without regard to the statutory standard, but used a standard

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not set forth in the statute, it erred as a matter of law in

rejecting the attorney’s fees claim of the Grandparents. 11

III. CONCLUSION

For the reasons stated, we will reverse the judgment of the

Court of Appeals which affirmed the judgment of the circuit

court awarding custody of BC to the Grandparents. We will also

reverse the judgment of the Court of Appeals denying the

attorney’s fees claim of the Grandparents. We will remand the

case to the Court of Appeals with instructions to remand the

case to the circuit court for further proceedings in accordance

with this opinion. Such proceedings include the application of

the proper statutory standards for the determination of the

custody of BC and whether attorney’s fees should be awarded the

Grandparents with regard to the appellate proceedings in the

Court of Appeals and this Court. Pending such hearing and

further order of the circuit court, custody of BC shall remain

with the Grandparents with visitation to Amy Cook and Jimmy

Cook, respectively, as set forth in the circuit court’s order of

November 22, 2005.

Reversed and remanded.

11
We address in this opinion only the statutory standard
under Code § 16.1-278.19 and express no opinion as to whether
the Grandparents, on remand, are entitled to any attorney’s fees
and costs upon application of the proper standard.

25