Lynchburg Division of Social Services v. Cook

HUMPHREYS, J.

with whom PETTY, J. joins, concurring in part, dissenting in part, and dissenting from the judgment.

I agree with the majority that the JDR court and the circuit court had jurisdiction to adjudicate the issue of custody with regard to the child. However, because I believe that the foster care statutes—specifically, Code §§ 16.1-281 and 16.1-282—must govern the manner in which the trial court must address the issue of custody of a child who has been deemed abused and neglected, I respectfully dissent from the majority view on the remaining issues.

In this case, DSS argues that the trial court erred in transferring custody to the Cooks pursuant to Code §§ 16.1— 278.15 and 20-124.3. Specifically, DSS contends that once a child is taken into custody, and is subject to a foster care plan, the trial court is required to make findings pursuant to Code § 16.1-282 in order to transfer custody to an interested party, even a relative. I agree. Moreover, I would further hold that although an abused or neglected child has been placed with a relative or other interested party, DSS is not relieved of its duty to comply with the statutory mandates of Code §§ 16.1— 281, 16.1-282, and 16.1-282.1, and thus the trial court erred in holding that DSS no longer “need[ed] to be involved.”

A. Custody Standard

A child who is taken into custody pursuant to an emergency removal order, and then placed in the custody of social services, is statutorily subject to a foster care plan. Code § 16.1— 281; see also Strong v. Hampton Dep’t of Soc. Servs., 45 Va.App. 317, 321-22, 610 S.E.2d 873, 875 (2005) (“The statute [Code § 16.1-281] places on the Department the obligation to prepare a foster care plan.”). In order for the court to transfer custody of a child who is deemed abused or neglected, *231either pursuant to a foster care plan, or a petition for custody, the court must make specific factual findings. Specifically, Code § 16.1-281 requires that,

[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, 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; (in) 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. The court’s order transferring custody to a relative should further provide for, as appropriate, any terms or conditions which would promote the child’s interest and welfare; ongoing provision of social services to the child and the child’s custodian; and court review of the child’s placement.

(Emphasis added.)

Noticeably absent from this statute is any reference to the general custody statute relied upon by the majority, Code § 20-124.3, regarding the “best interests of the child” standard. In fact, none of the statutes addressing the foster care plan, the foster care review hearing, or the permanency planning hearing, incorporate, by reference, the general standard for determining custody. See Code §§ 16.1-281, 16.1-282, and 16.1-282.1.9 Instead, the statutes set forth a more *232stringent standard that the court must follow in order to transfer the custody of an abused or neglected child to a relative. Moreover, rather than specifying that these findings of fact are limited to orders resulting from a foster care review hearing or a permanency planning hearing, the statute requires that any order transferring custody of a child in foster care to a relative contain specific findings of fact.

The majority holds that because Code §§ 16.1-241(A) and 16.1-278.15(B) state that the JDR court’s authority to consider a petition for custody “shall not be proscribed or limited where the custody of the child has previously been awarded to [DSS],” the trial court correctly entertained and disposed of the custody petition pursuant to Code §§ 20-124.2 and 20-124.3, and therefore any discussion of the foster care statutes is moot. Moreover, the majority holds that the language contained in Code §§ 16.1-241(A) and 16.1-278.15(B) manifests the General Assembly’s intent not to conflate, in any way, the two statutory schemes, and to make the foster care statutes subordinate to the general custody statutes. I disagree.

*233Although the majority correctly notes that the trial court has jurisdiction over “[t]he custody, visitation, support, control or disposition of a child ... [which] is a subject of controversy or requires determination,” see Code § 16.1-241(A)(3), it seemingly dismisses, in a footnote, the fact that Code § 16.1-241(A)(1) grants the trial court jurisdiction over “[t]he custody, visitation, support, control or disposition of a child ... [w]ho is alleged to be abused [or] neglected ...,” see Code § 16.1-241(A)(1) (emphasis added). The majority then erroneously relies, as did the circuit court, upon Code § 16.1-241(A)(3) to determine that the circuit court had authority to dispense with the issue of custody without taking into consideration the standards set forth in the foster care statutes, specifically Code § 16.1-281. In my view, the error is two-fold.

First, construing these statutes in the manner suggested by the majority fails to take into consideration an important canon of statutory construction. That is, “a statute [must] be construed from its four corners and not by singling out a particular word or phrase.” First Virginia Bank v. O'Leary, 251 Va. 308, 312, 467 S.E.2d 775, 777 (1996). Moreover, “a legislative enactment ‘should be interpreted, if possible, in a manner which gives meaning to every word.’” Id. (citing Monument Assoc. v. Arlington County Bd., 242 Va. 145, 149, 408 S.E.2d 889, 891 (1991)).

Here, as the majority notes, the General Assembly has granted jurisdiction to the juvenile and domestic relations district courts over the custody disposition of a child who is alleged to be abused or neglected separate and apart from the jurisdiction over the disposition of a child whose custody is the subject of controversy. Under the rules of statutory construction, had the legislature intended for subsection (A)(3) to govern the cases where a child is alleged to be abused or neglected, it would not have included subsection (A)(1), which specifically addresses such cases. To hold that the trial court did not err in entertaining the issue of custody of an abused and neglected child pursuant to Code § 16.1-241(A)(3) renders Code § 16.1-241(A)(1) meaningless.

*234Second, the majority implicitly contends that construing the statutes as I suggest would proscribe, or limit, the trial court’s authority to consider a custody petition by an interested party for a child who is alleged to be abused and neglected. However, in my view, the statute’s plain meaning indicates that once a child is placed in the custody of social services, the child’s 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.

In Walla v. Prince William County Dep’t of Social Servs., 25 Va.App. 356, 363-64, 488 S.E.2d 653, 657 (1997), this Court addressed whether a juvenile court judge had the authority to consider a FAPT report and order social services to obtain treatment for a minor in a residential treatment facility. Social services argued that the juvenile court judge divested himself of that authority when he granted social services legal custody of the minor under Code § 16.1-278.4(6)(c).10 Id. However, this Court held that

the juvenile court judge retained the authority to “review the status” of the minor even after she was placed in the custody of Social Services. Code § 16.1-281(E) expressly states that children in the custody of Social Services are those the juvenile court judge can review pursuant to that section. See id. (giving the juvenile court judge the power “to review the status of children in the custody of local boards of ... social services”).
Contrary to the argument of Social Services, Code § 16.1— 278.4(6)(c) does not mandate a different result. The statement that “the [local] board [of social services] to which the child is committed shall have the final authority to determine the appropriate placement for the child,” Code § 16.1-278.4(6)(c), was intended to give Social Services the power to override the wishes or recommendations of the child’s parents, the FAPT, or any other interested party. That *235section was not intended to divest the juvenile court judge of power to review the status of the minor.

Id. at 368, 488 S.E.2d at 657. Moreover, in Walla we continued, stating, “the scope of the judge’s power to oversee the provision of treatment and care to a particular child is not limited to a review of the plan submitted by Social Services,” and “[t]he General Assembly clearly intended to provide the juvenile courts, under Code § 16.[1]—281, broad authority to oversee the status of children in the custody of Social Services.” Id. at 364, 488 S.E.2d at 657.

Likewise, in my view, 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. And, in my view, when read in conjunction with the other pertinent statutes, 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, 16.1-282.1.11 In *236other 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

the relative or other interested individual 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.

Code § 16.1-278.2(A1). Therefore, I would hold that the trial court erred in addressing the issue of custody pursuant to Code §§ 16.1~241(A)(3) and 16.1-278.15, and in failing to recognize that Code § 16.1-281 applied to the disposition of the petition for custody filed by the Cooks.

Nevertheless, I recognize that under the harmless error doctrine, this Court must affirm the judgment of the trial court if “the error complained of could not have affected the result.” See Rhoades v. Painter, 234 Va. 20, 24, 360 S.E.2d 174, 176 (1987). However, in this case, DSS asserts, and the record reflects, that the trial court failed to make a finding that the Cooks were “willing and ha[d] the ability to protect the child from abuse and neglect,” as required by Code § 16.1-281. In my view, because the statute requires the court to make this specific finding, this error is not harmless. Therefore, I would hold that the trial court erred in failing to make the required findings, as mandated by Code § 16.1-281.

B. Continuation of the Foster Care Plan

According to Code § 16.1-282, the court “shall” conduct a foster care review hearing for “a child who was the subject of a foster care plan filed with the court pursuant to § 16.1-281.” The court must conduct this hearing “if the child ... is under the legal custody of ... social services or a child welfare agency and has not had a petition to terminate parental rights *237granted, filed or ordered to be filed on the child’s behalf.” Code § 16.1-282.Code § 16.1-282 also mandates that, “[a]fter the hearing required pursuant to subsection C, the court shall schedule a permanency planning hearing on the case to be held five months thereafter in accordance with § 16.1-282.1 or within thirty days upon the petition of any party entitled to notice in proceedings under this section.” (Emphasis added.)

In my view, by using the word “shall,” the legislature intended for any department of social services to follow specific statutory provisions once a child has been taken into custody because of abuse or neglect. In fact, we have held that “the statute places on the Department the obligation to prepare a foster care plan” and that “[njothing in the statutory scheme ... removes the burden on [the Department] to establish compliance with the statutes.” Strong, 45 Va.App. at 321-22, 610 S.E.2d at 875. In other words, although the trial court may grant temporary custody to a relative or other interested party, the statute contemplates that a foster care review hearing, pursuant to Code § 16.1-282, and ultimately a permanency planning hearing, pursuant to Code § 16.1-282.1, will take place. Accordingly, because the statutory scheme requires DSS to comply with certain provisions, I would hold that the trial court erred in terminating DSS’s involvement in the case.

For these reasons, I would reverse the judgment of the circuit court and remand for further proceedings consistent with this analysis.

. In footnote 8, the majority notes that "Code § 16.1-282(D) incorporates the 'best interests of the child’ standard as part of the court’s review of a foster care plan.” However, the entire sentence is as follows:

At the conclusion of the hearing, the court shall, upon the proof adduced in accordance with the best interests of the child and subject to the provisions of subsection Dl, enter any appropriate order of disposition consistent with the dispositional alternatives available to the court at the time of the original hearing.

*232Code § 16.1-282(D) (emphasis added). Subsection D1 reiterates the language set forth in Code § 16.1-281. Specifically, subsection D1 states,

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 willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court’s order transferring custody to a relative should further provide for, as appropriate, any terms and conditions which would promote the child’s interest and welfare; ongoing provision of social services to the child and the child’s custodian; and court review of the child’s placement.

Clearly, the “best interests of the child” will always be of importance when determining custody of a child. However, in the case of an abused or neglected child who has been placed in the custody of social services for his or her protection, the statute requires that the court make specific findings of fact to maintain the safety and welfare of the child.

. This statute states that social services “shall have the final authority to determine the appropriate placement.” Code § 16.1-278.4(6)(c).

. Even Code § 16.1-278.2 contains similar language to the foster care statutes. According to Code § 16.1-278.2, once a court enters an order permitting DSS to place an abused or neglected child, DSS may transfer custody of the child to a relative only upon a finding that,

the relative or other interested individual 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. The court’s order transferring custody to a relative or other interested individual should further provide for, as appropriate, any terms or conditions which would promote the child’s interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child’s placement.

*236Code § 16.1-278.2(A1).