COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
FREDERICKSBURG DEPARTMENT
OF SOCIAL SERVICES
v. Record No. 1952-99-2
CLYDE BROWN AND JOYCE WILLIAMS
JOYCE WILLIAMS
OPINION BY
v. Record No. 1969-99-2 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 29, 2000
FREDERICKSBURG DEPARTMENT
OF SOCIAL SERVICES
CLYDE BROWN
v. Record No. 2008-99-2
FREDERICKSBURG DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Timothy W. Barbrow (Joseph A. Vance, IV;
Joseph A. Vance, IV & Associates, on briefs),
for Fredericksburg Department of Social
Services.
David H. Beck for Joyce Williams.
Robert J. Barlow for Clyde Brown.
The issues in these consolidated appeals arise from a
decision of the Circuit Court of the City of Fredericksburg
denying a petition filed by the Fredericksburg Department of
Social Services District ("DSS") to terminate the parental rights
of Clyde Brown ("father") and Joyce Williams ("mother"), parents
of four minor children. DSS's petition was denied on the ground
that Code § 16.1-266(C) required the appointment of counsel for
the parents prior to the hearing held in the Fredericksburg
Juvenile and Domestic Relations District ("J&DR") Court in which
the J&DR court approved entrustment agreements transferring legal
custody from the children's maternal aunt, Nancy Conway ("aunt"),
to DSS. DSS appeals this decision. The parents appeal the
circuit court's finding that the entrustment agreements, entered
into solely by aunt, were valid, as well as the court's placement
of custody in DSS at the conclusion of the de novo appeal. For
the reasons that follow, we affirm, in part, and reverse, in
part, the circuit court's decision.
FACTS
On appeal, we review the facts in the light most favorable
to the party prevailing below. See Farley v. Farley, 9 Va. App.
326, 328, 387 S.E.2d 794, 795 (1990). On March 24, 1998,
emergency removal petitions were filed by DSS against mother for
the removal of her four children on the ground that they were
abused and neglected. The whereabouts of the father were unknown
at that time. For reasons unspecified in court documents, the
J&DR court denied the petitions and relieved appointed counsel
for the mother and father. However, in a separate order, the
court concomitantly placed temporary legal custody in the aunt,
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physical custody in the mother, and issued a preliminary
protective order against the mother, ordering her to refrain from
abusive actions and to comply with all DSS requests and service
plans.
On April 29, 1998, the aunt, as the children's legal
custodian, signed four entrustment agreements, one for each
child, entrusting the children to DSS. The agreements
transferred legal custody to DSS, thus allowing it to remove the
children from the mother's physical custody and place them in
foster care; the agreements did not provide for the termination
of parental rights or for a specific date for return of the
children to their mother. 1 On June 16, 1998, the agreements were
approved by the J&DR court, upon DSS's petition, at a hearing at
which mother and father were present but not represented, as
counsel had not been appointed for them. 2 DSS also sought and
1
At this time and thereafter in the proceedings, the father
was incarcerated.
2
Prior to the 1999 amendments, Code § 63.1-56 provided:
Whenever a local board accepts custody of a
child pursuant to a temporary entrustment
agreement entered into under the authority of
this section, except when the entrustment
agreement between the parent or parents and
the local department provides for the
termination of all parental rights and
responsibilities with respect to the child,
such local board shall petition the juvenile
and domestic relations district court of the
city or county for approval of such agreement
within a reasonable time, not to exceed
thirty days, after it execution; however,
such petition shall not be required when the
agreement stipulates in writing that the
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received approval of initial sixty-day foster care service plans
with a goal of "return to parent," and an initial permanency
planning hearing was set for hearing. 3 The mother and father did
not object to the order of June 16, 1998, approving the
entrustment agreements, nor did they appeal it to the circuit
court.
On November 16, 1998, DSS petitioned for a foster care
review hearing because the mother was not in compliance with the
DSS service plan and was, therefore, in violation the J&DR
court's order. In the petition, DSS did not ask the court to
alter the previously approved service plan; rather, it reiterated
the need for the children to stay in foster care until the mother
temporary entrustment shall be for less than
ninety days and the child is returned to his
home within that period.
3
Code § 16.1-282(E) provides:
The court shall schedule a permanency
planning hearing on the case to be held five
months thereafter in accordance with
§ 16.1-282.1, except in the case of a child
placed in permanent foster care after a
hearing held pursuant to § 63.1-206.1, or
within 30 days upon the petition of any party
entitled to notice in the proceedings under
this section when the judge determines there
is good cause shown for such hearing.
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complied with the J&DR court's orders. On December 3, 1998, the
court again approved the original service plan, this time over
the objection of counsel for the mother. 4
On March 26, 1999, DSS petitioned the J&DR court, filing new
foster care plans together with petitions for permanent placement
and petitions for termination of parental rights. 5 The foster
4
The grounds for the objection were not noted in the
record.
5
Code § 16.1-283(C) provides:
The residual parental rights of a parent or
parents of a child placed in foster care as a
result of court commitment, an entrustment
agreement entered into by the parent or
parents or other voluntary relinquishment by
the parent or parents may be terminated if
the court finds, based upon clear and
convincing evidence, that it is in the best
interests of the child and that:
1. The parent or parents have, without good
cause, failed to maintain continuing contact
with and to provide or substantially plan for
the future of the child for a period of six
months after the child's placement in foster
care notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent or
parents and to strengthen the parent-child
relationship. Proof that the parent or
parents have failed without good cause to
communicate on a continuing and planned basis
with the child for a period of six months
shall constitute prima facie evidence of this
condition; or
2. The parent or parents, without good
cause, have been unwilling or unable within a
reasonable period of time not to exceed
twelve months from the date the child was
placed in foster care to remedy substantially
the conditions which led to or required
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care goal was changed from "return to home" to adoption because,
in addition to mother's failure to complete mandatory parenting
classes, she became pregnant, thereby violating DSS's
court-approved mandate that she use effective family planning.
The parents were each appointed separate counsel to represent
them in the termination proceedings. On April 22, 1999, the J&DR
court granted involuntary termination petitions, which were
subsequently appealed to the circuit court.
After argument by counsel for all parties, the circuit court
found that the parents should have been appointed counsel at the
J&DR court hearing which resulted in its approval of the
entrustment agreements. On that ground, it ruled that the
foundation for the termination proceedings was defective under
the provisions of Code § 16.1-283(C), and denied the DSS's motion
continuation of the child's foster care
placement, notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end. Proof that the parent
or parents, without good cause, have failed
or been unable to make substantial progress
towards elimination of the conditions which
led to or required continuation of the
child's foster care placement in accordance
with their obligations under and within the
time limits or goals set forth in a foster
care plan filed with the court or any other
plan jointly designed and agreed to by the
parent or parents and a public or private
social, medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition. The court
shall take into consideration the prior
efforts of such agencies to rehabilitate the
parent or parents prior to the placement of
the child in foster care.
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to terminate parental rights. It granted custody of the children
to DSS at the conclusion of the proceeding.
ANALYSIS
The issues raised here present mixed questions of law and
fact which we review de novo. See Fairfax County School Board v.
Rose, 29 Va. App. 32, 37, 509 S.E.2d 525, 527 (1999) (en banc).
The resolution of this case rests upon three issues: 1) whether
the parents could challenge the approval of the entrustment
agreements at the circuit court hearing; 2) whether the
entrustment agreements entered into solely by aunt were valid;
and 3) whether the circuit court could place the children with
DSS without terminating the parents' residual parental rights.
WAIVER OF PARENTS' CHALLENGE TO THE ENTRUSTMENT AGREEMENTS
DSS contends that the parents' challenge at the termination
hearing to the J&DR orders approving the entrustment agreements
was waived because the orders were entered as agreed orders with
no objection noted to their entry, and because their entry was
not appealed to the circuit court. We disagree on the ground
that entry of valid entrustment agreements was a mandatory
jurisdictional requirement which had to be met before the court
in this case could exercise its jurisdiction to adjudicate the
petition filed by DSS to terminate parental rights. As such, the
question of their validity is an issue that cannot be waived.
"The term 'subject matter jurisdiction' refers to the power
granted to the courts by constitution or statute to hear
specified classes of cases." Dennis Moore v. Commonwealth, 259
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Va. 405, 409, 527 S.E.2d 415, 417 (2000). The Supreme Court has
distinguished this constitutionally or statutorily granted power
from "[a] court's authority to exercise its subject matter
jurisdiction over a case," which "may be restricted by a failure
to comply with statutory requirements that are mandatory in
nature and, thus, are prerequisite to a court's lawful exercise
of [its] jurisdiction." Id. A challenge to a court's exercise
of its subject matter jurisdiction in a given case is not
waivable if the statutory requirements violated by the court are
mandatory in nature, but is waivable if the statutory
requirements in question are merely procedural. See Avery v.
Virginia Retirement System, ___ Va. App. ___, ___ S.E.2d ___
(2000) (en banc); Karim v. Commonwealth, 22 Va. App. 767, 775,
473 S.E.2d 103, 106 (1996) (en banc) ("An important consideration
in interpreting the meaning of a statute is whether it is
mandatory and jurisdictional or directory and procedural."); see
also Dennis Moore, 259 Va. at 409, 527 S.E.2d at 417 (where the
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exercise of subject matter jurisdiction is made dependant on
compliance with certain explicit statutory requirements, the
court has no power to adjudicate the cause when those
requirements are not satisfied). "A mandatory provision in a
statute is one that connotes a command and the omission of which
renders the proceeding to which it relates illegal and void,
while a directory provision is one the observance of which is not
necessary to the validity of the proceeding . . . ." Karim, 22
Va. App. at 775, 473 S.E.2d at 106-07 (internal quotation
omitted).
We find that the court's exercise of subject matter
jurisdiction was restricted by statutory prerequisites which are
mandatory in nature, see Dennis Moore, 259 Va. at 409, 527 S.E.2d
at 417, and that any challenge on that ground was therefore not
waivable and may be raised at any time. See Avery, ___ Va. App.
___, ___ S.E.2d ___. Code § 16.1-241(A)(4) grants jurisdiction
to J&DR courts in matters concerning the custody of children who
are "the subject of an entrustment agreement entered into
pursuant to § 63.1-56 . . . ." (emphasis added). 6 By the plain
6
The statute provides, in pertinent part:
[E]ach juvenile and domestic relations
district court shall have, within the limits
of the territory for which it is created,
exclusive original jurisdiction . . . over
all cases, matters and proceedings involving:
The custody, visitation, support, control or
disposition of a child: . . . Who is the
subject of an entrustment agreement entered
into pursuant to § 63.1-56 or § 63.1-204 or
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language of this statutory provision, a valid and effective
entrustment agreement which meets the requirements set forth in
Code § 63.1-56 must be executed before the court may adjudicate a
petition for the termination of parental rights.
Because the jurisdiction of the circuit court to hear and
decide the issues raised in DSS's petition to terminate parental
rights is wholly derivative of that of the J&DR court, its power
to adjudicate DSS's petition is coincident with that of the lower
court. See Fairfax County Dept. of Family Serv's v. D. N., 29
Va. App. 400, 405, 512 S.E.2d 830, 832 (1999). We hold that the
parents did not waive their challenge to the validity of those
agreements when the termination issue was tried de novo in the
circuit court, because the question of whether requirements of
Code § 16.1-241(A)(4) were met, and particularly whether the
children before the court on the DSS petition to terminate
appellants' parental rights were the subjects of a valid
entrustment agreement, is jurisdictional in nature. See Avery,
___ Va. App. ___, ___ S.E.2d ___ (a challenge to a court's
exercise of its subject matter jurisdiction in a given case is
not waivable if the statutory requirements violated by the court
are mandatory in nature). Furthermore, because the exercise of
subject matter jurisdiction could not be waived by the parties in
this case, we hold that the validity of the entrustment
whose parent or parents for good cause desire
to be relieved of his care and custody.
Code § 16.1-241(A)(4) (emphasis added).
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agreements was properly before the circuit court even assuming
the parents had entered an agreed order approving the execution
of the challenged agreements.
VALIDITY OF THE ENTRUSTMENT AGREEMENTS
The parents contend the entrustment agreements which the
aunt executed were invalid, noting that 1) although she had legal
custody of the children, physical custody was placed with the
mother; and 2) neither parent signed the entrustment agreements.
In addressing this issue, the circuit court found that the
hearing at which the J&DR court approved the entrustment
agreements constituted the "commencement of a case" in which the
parents could be subjected to the loss of residual parental
rights and responsibilities and, as such, the parents were
entitled to counsel pursuant to Code § 16.1-266(C). 7 Because the
7
Code § 16.1-266(C) provides:
Prior to the hearing by the court of any case
involving a parent, guardian or other adult
charged with abuse or neglect of a child or a
parent or guardian who could be subjected to
the loss of residual parental rights and
responsibilities, such parent, guardian or
other adult shall be informed by a judge,
clerk, or probation officer of his right to
counsel and be given an opportunity to:
1. Obtain and employ counsel of the
parent's, guardian's or other adult's own
choice; or
2. If the court determines that the parent,
guardian or other adult is indigent with the
contemplation of the law pursuant to the
guidelines set forth in § 19.2-159, a
statement substantially in the form provided
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parents were not represented at this hearing, the circuit court
held that the entrustment agreements were invalid and denied the
petition to terminate parental rights.
While we affirm the court's denial of the petition to
terminate parental rights, we do so on different grounds. We
hold that the court erred in finding, under the facts of this
case, that counsel for the parents was required at the time of
the hearing in which the entrustment agreements were signed by
the aunt and approved by the J&DR court, because neither parent
"could be subjected to the loss of residual rights and
responsibilities" at the time of that hearing. See Code
§ 16.1-266(C). The foster care plan concomitantly submitted by
DSS for approval stated as its goal "return to home," not
termination of parents rights and responsibilities. Indeed, no
petition for termination of parental rights was either filed or
pending at that time. In the absence of such a petition, the
parents' residual parental rights could not be terminated. See
Code § 16.1-283 (setting out the requirements for termination of
residual parental rights); Stanley v. Dept. of Soc'l Serv's, 10
Va. App. 596, 601-02, 395 S.E.2d 199, 202 (1990) ("[b]efore the
residual parental rights of an individual may be terminated, a
by § 19.2-159 and a financial statement shall
be executed by such parent, guardian or other
adult and the court shall appoint an
attorney-at-law to represent him; or
3. Waive the right to representation by an
attorney in accordance with the provisions of
§ 19.2-160.
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separate proceeding must be conducted upon the filing of a
petition specifically requesting such relief (emphasis added)),
aff'd, 242 Va. 60, 405 S.E.2d 621 (1991). Appellants' parental
rights were placed at risk only after the hearing. The later
petition to terminate those rights was based on appellants'
subsequent conduct. In sum, the loss of their parental rights at
the hearing in which the entrustment agreements were signed and
presented to the court for approval was neither anticipated nor
possible.
Despite the erroneous reasoning of the court, we may affirm
its decision "when it has reached the right result for the wrong
reason." Twardy v. Twardy, 14 Va. App. 651, 657, 419 S.E.2d 848,
851 (1992). Code § 63.1-56 requires that an entrustment
agreement be entered by either a "parent" or a "guardian." The
aunt is clearly not the former, and under Virginia law she cannot
be found to enjoy the legal status of the latter. See In Re
O'Neil, 18 Va. App. 674, 679, 446 S.E.2d 475, 479 (1994) (in
adjudicating legal custodians' petition to be appointed guardians
of a child, while "[t]he term 'guardian,' is not defined by any
statute in this Commonwealth, nor does any statute or court
decision in this Commonwealth adequately distinguish guardianship
and custody . . . it is certain that there is a distinction
between the two" (emphasis added)). Furthermore, the distinction
between the two terms is maintained in various sections of the
Code where "legal custodian" and "guardian" are referred to
separately. See, e.g., Code § 16.1-228 (defining an abused or
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neglected child, in part, as one who is without care due to the
unreasonable absence of a "parent, guardian, legal custodian or
other person"). See also, e.g., Code § 16.1-227(3); Code
§ 16.1-241.2(C); Code § 16.1-247(A); Code § 16.1-250(C); Code
§ 16.1-250.1. "[W]e . . . assume that the legislature chose,
with care, the words it used when it enacted the relevant statute
and we are bound by those words as we interpret the statute."
City of Virginia Beach v. ESG Enterprises, Inc., 243 Va. 149,
153, 413 S.E.2d 642, 644 (1992) (citation omitted).
Based on the plain language of Code § 63.1-56, we hold that
the aunt did not have authority to enter into an entrustment
agreement with DSS and that the agreements at bar are invalid and
ineffective. For this reason, we find the circuit court did not
err in finding the entrustment agreements to be invalidly
executed.
CIRCUIT COURT'S GRANT OF CUSTODY TO DSS
The parents contend the circuit court erred in granting
custody of the children to DSS upon denying DSS's petition to
terminate their parental rights. We agree.
At the time of the hearing in question, DSS had custody
pursuant to the entrustment agreements signed by the aunt.
Because the agreements were invalid, DSS's custody of the
children could not be established by those agreements, and the
court could not simply reinstate custody in DSS based on them.
Furthermore, DSS has identified no statutory provision, and
we have found none, that arguably grants authority to the circuit
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court to place custody of the children in DSS upon its denial of
the petition to terminate parental rights under the facts of this
case. The circuit court's authority, coincident with that of the
J&DR court, to grant legal custody of minor children to local
boards of social services is specifically and expressly granted
under limited circumstances, none of which is applicable here.
See, e.g., Code § 16.1-277.01 (allowing transfer of custody
pursuant to the approval of an entrustment agreement); Code
§ 16.1-277.02 (allowing court to place custody in a department of
social services pursuant to a petition for relief of care and
custody); Code § 16.1-278.2 (defining procedures by which court
can transfer custody of abused, neglected or abandoned children
or children without parental care); Code § 16.1-278.3 (defining
procedures for granting custody to DSS pursuant to petition for
relief of care and custody of child); Code § 16.1-278.4
(elaborating on circumstances under which legal custody of
children in need of services can be transferred); Code
§ 16.1-278.5 (defining circumstances under which DSS can assume
legal custody of children in need of supervision); Code
§ 16.1-283 (describing circumstances under which termination of
residual parental rights can occur). We accordingly find the
court erred in placing custody in DSS upon its denial of DSS's
petition to terminate parental rights. Pursuant to the J&DR
court's order of March 24, 1998, the only remaining effective
order in this case entered by a court with proper jurisdiction to
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adjudge the issue, legal custody of the children resides in the
aunt and physical custody in the mother.
For the reasons stated herein, we affirm, in part, and
reverse, in part, the decision of the circuit court, and remand
the case to the circuit court with instructions to remand to the
J&DR court for further proceedings consistent with this opinion.
Affirmed, in part,
and reversed, in part.
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