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
21
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
22
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
23
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
24
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