Opinion
Record No. 2792-05-3.
March 13, 2007.
Appeal from the circuit court of the city of Lynchburg J. Leyburn Mosby, Jr., Judge, Circuit Court No. CJ0500755, Upon a Petition for Rehearing En Banc.
Susan L. Hartman, Assistant City Attorney (City Attorney's Office, on brief), for appellant.
Betsy H. Phillips; Mark B. Arthur, Guardian ad litem for the minor child, for appellees James and Sandra Cook.
No brief or argument for appellee Jimmy Cook.
Present: Judges Humphreys, Mcclanahan and Petty.
Before the Full Court
On February 20, 2007 came the appellees, by counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on February 6, 2007, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on February 6, 2007 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellees shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellees' brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The Lynchburg Division of Social Services ("LDSS") appeals a custody order granting custody of the child to her grandparents, James and Sandra Cook ("the Cooks"). On appeal, LDSS argues that because the child was placed in the custody of LDSS pursuant to an emergency removal order alleging abuse and neglect, the trial court erred in transferring custody to the Cooks. Specifically, LDSS contends that the trial court (1) lacked "jurisdiction" "to hear an appeal of a custody determination for a child who was the subject of a foster care plan filed pursuant to § 16.1-281," (2) erred in "failing to make the findings required under §§ 16.1-281(C1), 16.1-282(D1) and 16.1-282.1(A1)," (3) erred in "transferring custody of a child who was the subject of a foster care plan to a relative when, at the time of the hearing, the mother had substantially corrected or eliminated the conditions which resulted in the neglect or abuse," and (4) erred in "allowing the father supervised visitation . . . when there was no evidence presented that the father had substantially corrected or eliminated the conditions which resulted in the neglect or abuse of the child."
For the following reasons, we hold that the issue of custody was properly before the circuit court. However, we hold that the trial court erred in granting custody pursuant to Code §§ 16.1-278.15 and 20-124.3, as the trial court failed to make specific factual findings as required by Code § 16.1-281. Moreover, we hold that the trial court erred in finding that LDSS "[did not] need to be involved" in the case once the Cooks obtained custody. We do not address whether the trial court erred in refusing to transfer custody back to the child's mother, or in allowing the child's father supervised visitation. Accordingly, we reverse and remand for a decision consistent with this opinion.
BACKGROUND
On appeal, "[w]e view the evidence in the light most favorable to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom." Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So viewed, the evidence established the following.
On April 7, 2004, LDSS removed the child from her parents' custody, and placed her in foster care. The juvenile and domestic relations district court ("J DR") entered an emergency removal order on April 8, 2004, and on July 1, 2004, the J DR entered an order transferring custody to LDSS, and approving a foster care plan with the goal of "return to home." On January 4, 2005, the J DR approved a foster care plan with a new goal of "continued foster care," and scheduled a permanency planning hearing to be held on May 27, 2005. None of the orders mentioned above were appealed.
In the meantime, three different parties filed petitions for custody of the child. On April 6, 2004, Amy Cook ("mother") filed for custody, and on April 8, 2004, the Cooks and Jimmy Cook ("father") filed for custody. On March 4 and March 11, 2005, the J DR conducted hearings on the petitions. The J DR then transferred custody from LDSS to the Cooks, pursuant to Code § 20-124.2. The custody order also allowed supervised visitation with the mother, and prohibited visitation with the father. The child's mother, the child's father, and LDSS appealed.
Code § 20-124.2 reads, in pertinent part, as follows:
A. In any case in which custody or visitation of minor children is at issue, whether in a circuit or district court, the court shall provide prompt adjudication, upon due consideration of all the facts, of custody and visitation arrangements, including support and maintenance for the children, prior to other considerations arising in the matter. The court may enter an order pending the suit as provided in § 20-103. The procedures for determining custody and visitation arrangements shall insofar as practical, and consistent with the ends of justice, preserve the dignity and resources of family members. Mediation shall be used as an alternative to litigation where appropriate. When mediation is used in custody and visitation matters, the goals may include development of a proposal addressing the child's residential schedule and care arrangements, and how disputes between the parents will be handled in the future.
B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.
LDSS filed a motion to suspend execution of the J DR order. The circuit court denied the motion and incorporated the March 11, 2005 order into the new order. The new order contained the following modifications: (1) the Cooks were to have two visits per week for the remainder of the month of March, (2) beginning in April, the Cooks were to have one overnight visit in addition to the two visits per week, (3) beginning in May, the Cooks were to have three overnights per week, and (4) by May 30, the child was to commence residing with the Cooks.
On May 25, 2005, the circuit court entered an interlocutory order addressing whether the foster care plan remained in effect in light of the March 11, 2005 custody order. Finding that there "was no procedural defect in the Juvenile Court proceedings that would result in the foster care plan's remaining in effect after entry of the . . . custody order," the trial court found that there was no requirement or need for the permanency planning hearing. Thus, the trial court denied LDSS's motion to stay the J DR order pending a trial de novo.
On October 4 and 5, 2005, the circuit court heard the custody appeal. Pursuant to Code § 20-124.2, the court transferred custody to the Cooks. The court also allowed unsupervised visitation with the mother, and supervised visitation with the father, as long as both remained in counseling. The court denied the father's petition for custody, and reserved the right to revisit the mother's petition for custody on July 11, 2006. The court also held that LDSS "[did not] need to be involved" with the case. LDSS now appeals.
ANALYSIS
LDSS argues that because the J DR entered an order delineating a foster care plan with the goal of "continued foster care," the J DR, and ultimately the Lynchburg Circuit Court, "lacked jurisdiction" to entertain the petitions for custody. Specifically, LDSS argues that a petition for foster care review, conforming to the requirements set forth in Code § 16.1-282, should have been filed and that the J DR was obligated, pursuant to Code § 16.1-282.1(A), to conduct a permanency planning hearing before it could entertain the issue of custody. In the alternative, LDSS argues that even if the court had "jurisdiction" to transfer custody to the Cooks, the trial court erred in not making the required findings pursuant to Code §§ 16.1-281(C1), 16.1-282(D1) and 16.1-282.1(A1).
LDSS contends that because the parties failed to file the appropriate petitions, the trial court lacked "jurisdiction." We assume LDSS inartfully uses this term in the context of the issue it presents. Although failure to file the appropriate petition may result in the matter being improperly before the trial court, the failure to file the appropriate petition does not result in a lack of jurisdiction over the subject matter.
In general, juvenile and domestic relations district courts have exclusive original jurisdiction over proceedings involving the custody, visitation, support, control or disposition of a child. See Code § 16.1-241(A). "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." Id. Moreover, "[n]othing in [Code § 16.1-281] shall limit the authority of the juvenile judge or the staff of the juvenile court, upon order of the judge, to review the status of [a child] in the custody of local boards of social services." Code § 16.1-281(F). See Walla v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 363-64, 488 S.E.2d 653, 657 (1997) (quoting Code § 16.1-281(E) and holding that a "juvenile court judge retain[s] the authority to 'review the status' of [a] minor even after [the child is] placed in the custody of Social Services").
In Walla, we held that the clear meaning of the statute indicates that "[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. Thus, to the extent that LDSS's argument may be read to suggest that the trial court lacked subject matter jurisdiction to entertain the custody order, we disagree.
Whether the custody matter was properly before the trial court, and whether the trial court used the appropriate standard to determine custody, are issues of statutory construction which we review de novo. See Conkling v. Commonwealth, 45 Va. App. 518, 521, 612 S.E.2d 235, 237 (2005) ("We consider questions of pure statutory construction de novo."). When faced with an issue of statutory construction, we are bound by the "plain meaning rule," and we must give full effect to the plain meaning of the words chosen by the legislature. See Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
We also must heed a fundamental principle of statutory construction, expressio unius est exclusio alterius, or "'where a statute speaks in specific terms, an implication arises that omitted terms were not intended to be included within the scope of the statute.'"Conkling, 45 Va. App. at 522, 612 S.E.2d at 237 (quotingCommonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000)). Thus, when construing a statute, we recognize that, "when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way." Grigg v. Commonwealth, 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982).
I.
LDSS argues that a general petition for custody is not sufficient to bring the custody matter properly before the court. Instead, LDSS argues that a petition for review of the foster care plan, pursuant to Code § 16.1-282, or a petition for a permanency planning hearing, pursuant to Code § 16.1-282.1, must be filed in order for the custody issue to be properly before the J DR. We disagree with LDSS.
Code §§ 16.1-281, 16.1-282, and 16.1-282.1(A) delineate the steps that a local department of social services must take in order to make any decision relevant to the placement of a child, or which affects an individual's parental rights to that child. Specifically, Code § 16.1-281 requires LDSS to create a "foster care plan" in situations where "legal custody of a child is given to a local board of social services or a child welfare agency." Moreover, LDSS must file a specific petition in the juvenile and domestic relations district court to initiate a foster care review hearing or a permanency planning hearing.See Code §§ 16.1-282 and 16.1-282.1. And, any "interested party" seeking a review of the foster care plan must also file a petition that conforms to the statutory requirements. Code § 16.1-282.
However, these code sections do not address how an "interested party" should petition the court for temporary custody of a child who is subject to a foster care plan. See Code § 16.1-282. In other words, although these sections of the Code require LDSS or an "interested party" to file a specific petition for a review of the plan, these statutes do not require an "interested party" who is seeking temporary custody — as opposed to a review — to submit a petition different from that set forth in Code §§ 16.1-260 and 16.1-262. As such, a petition for custody brought under Code § 16.1-241, and containing the information required under Code §§ 16.1-260 and 20-124.1 et seq., is sufficient to bring the issue of custody before the court. Accordingly, we hold that the issue regarding the custody of the child was properly before the trial court.
According to Code § 16.1-260, "[a]ll matters alleged to be within the jurisdiction of the court shall be commenced by the filing of a petition" which shall conform to Code § 16.1-262. Code § 16.1-262 requires that the petition for custody contain the following:
1. Statement of name, age, date of birth, if known, and residence of the child.
2. Statement of names and residence of his parents, guardian, legal custodian or other person standing in loco parentis and spouse, if any.
3. Statement of names and residence of the nearest known relatives if no parent or guardian can be found.
4. Statement of the specific facts which allegedly bring the child within the purview of this law. If the petition alleges a delinquent act, it shall make reference to the applicable sections of the Code which designate the act a crime.
5. Statement as to whether the child is in custody, and if so, the place of detention or shelter care, and the time the child was taken into custody, and the time the child was placed in detention or shelter care.
II.
LDSS argues the trial court erred in transferring custody to the Cooks pursuant to Code §§ 16.1-278.15 and 20-124.3. Specifically, LDSS 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. We agree and further hold that, when a trial court transfers custody to an interested party pending the disposition of an LDSS foster care plan, the interested party merely "steps into the shoes" of a foster care parent.
Accordingly, although the child has been placed with a relative or other interested party, LDSS 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.
Although acknowledging that Code § 16.1-241, which sets forth the J DR court's subject matter jurisdiction, contains two separate provisions: one granting jurisdiction over "[t]he custody, visitation, support, control or disposition of a child . . . [which] is a subject of controversy or requires determination," Code § 16.1-241(A)(3), and the other granting jurisdiction over "[t]he custody, visitation, support, control or disposition of a child . . . [w]ho is alleged to be abused [or] neglected . . .," Code § 16.1-241(A)(1), the dissent 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. The error is two-fold.
First, construing these statutes in the manner suggested by the dissent fails to take into consideration an important canon of statutory construction. That is, "'where a statute speaks in specific terms, an implication arises that omitted terms were not intended to be included within the scope of the statute.'" Conkling, 45 Va. App. at 522, 612 S.E.2d at 237 (quoting Brown, 259 Va. at 704-05, 529 S.E.2d at 100). Thus, when construing a statute, we must recognize that, "when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way." Grigg, 224 Va. at 364, 297 S.E.2d at 803.
Here, as the dissent 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.
Second, the dissent also ignores another primary rule of statutory interpretation which requires that, whenever possible, we must attempt to harmonize apparently conflicting statutes and make every effort to give effect to both. See Lake Monticello Owners' Assoc. v. Lake, 250 Va. 565, 570, 463 S.E.2d 652, 655 (1995). By placing emphasis on Code § 16.1-241(A)(1), instead of attempting to harmonize the alleged "conflict" within the subsections of the statute, the dissent ignores the clear intent of the legislature that the courts specifically address the issue of custody for children in the temporary custody of social services. Contrary to the dissent's assertion that our application of the canons of statutory construction is "tantamount to deleting the language" in Code §§ 16.1-241(A) and 16.1-278.15(B) 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," our construction is an effort to give effect to both subsections. (Emphasis added.)
In fact, when considered in the context of the entire statutory scheme, the two can easily be reconciled. That is, the statute's plain meaning indicates that once a child is placed in the custody of social services, the child's placement with social services does not proscribe or limit the circuit court's ability to consider a petition for custody. In other words, the child's placement with social services does not remove the trial court's jurisdiction over issues such as custody. We enunciated a similar holding in Walla.
Essentially the dissent argues that our construction of Code § 16.1-281 proscribes or limits 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. To the contrary, and as we held inWalla, "the juvenile court judge retain[s] the authority to 'review the status' of [a] minor even after she [i]s placed in the custody of Social Services." Walla, 25 Va. App. at 363, 488 S.E.2d at 657. In fact, "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." Id. "Thus, 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.
Although the dissent would like to distinguish the holding inWalla from that of the present case, the issue of jurisdiction remains the same. Ultimately, in Walla, we held that although the statutes grant social services the power to oversee the treatment and care of a child who is in custody, the trial court still retains jurisdiction to oversee that care. This necessarily includes granting the trial court the authority to entertain the issue of custody, either pursuant to a third party petition for custody, or pursuant to a foster care plan as set forth in Code § 16.1-281.
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 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 to a relative either 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; (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 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, Code § 20.124.3, regarding the "best interests of the child." 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. Instead, the statutes set forth a more stringent standard 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.
Code § 20-124.3 states, in pertinent part, the following:
In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall consider the following:
1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
The statute requires that specific findings be made prior to the entry of a court order placing a child with relatives once that child has come into the custody of social services. See Code §§ 16.1-281, 16.1-282, 16.1-282.1. As such, we find that the legislature has spoken in "specific terms," see Conkling, 45 Va. App. at 522, 612 S.E.2d at 237, thus "limit[ing] the manner in which" custody of a child, who is subject to a foster care plan, may be transferred to a relative, see Grigg, 224 Va. at 364, 297 S.E.2d at 803. Therefore, the trial court erred in failing to recognize that Code § 16.1-281 applied to the disposition of the petition for custody filed by the Cooks.
Even Code § 16.1-278.1 contains similar language to the foster care statutes. According to Code § 16.1-278.1, once a court enters an order permitting social services to place an abused or neglected child, social services 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.
We recognize that under the harmless error doctrine, we 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, LDSS 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. Because the statute requires the court to make this specific finding, we cannot say that the error is harmless. Therefore, we hold that the trial court erred in failing to make the required findings, as mandated by Code § 16.1-281.
LDSS concedes that the trial court made factual findings that correspond with the remaining required findings listed in 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 granted, 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.)
By using the word shall, we hold that 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 "[n]othing 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.
While acknowledging that the statute contemplates that the child may be placed in the custody of an interested party pursuant to a petition for custody, we hold that the statute merely contemplates that such interested party "steps into the shoes" of a foster care family under the supervision of social services. 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 LDSS to comply with certain provisions, the trial court erred in terminating LDSS's involvement in the case.
CONCLUSION
For the foregoing reasons, we hold that the custody matter was properly before the trial court. We also hold that the trial court erred in awarding custody pursuant to Code §§ 16.1-278.15 and 20-124.3, and in removing LDSS from the case. Accordingly, we reverse and remand with instructions that this matter be remanded to the Juvenile and Domestic Relations District Court for the City of Lynchburg for further proceedings consistent with this opinion.
Reversed and remanded.
Upon the Cooks' petition for custody of their granddaughter, the juvenile and domestic relations district court (JDR court) found that transferring custody of the child from the Lynchburg Division of Social Services (DSS) to the Cooks was in the child's best interest. Denying DSS's motion to suspend the transfer, the circuit court ordered the transfer pending DSS's de novo appeal of the JDR court's ruling. Noting that disposition of the child's custody had proceeded in JDR court on "two track[s] . . . at the same time," the circuit court ruled that the JDR court clearly had the statutory authority to award custody of the child to the Cooks, separate and apart from the foster care plan. After a two-day evidentiary hearing, the circuit court, like the JDR court, found that awarding the Cooks custody of their granddaughter, and dispensing with the foster care plan, was in the child's best interest. In my opinion, the circuit court ruled correctly and, therefore, I dissent from the majority opinion.
Title 16.1 of the Code sets forth several procedural means of obtaining child custody. Here, DSS initially obtained in the JDR court custody of the Cooks' granddaughter for placement in foster care, pursuant to Code §§ 16.1-281 through-282.1, based on alleged abuse by the child's father. The day after the child was taken from her parents by DSS, the Cooks filed their own petition for custody of the child in JDR court, pursuant to Code §§ 16.1-241, 16.1-278.15 and 20-124.2.
Code § 16.1-241 sets forth the JDR court's subject matter jurisdiction, including, among other things, "[t]he custody, visitation, support, control or disposition of a child . . . [which] is a subject of controversy or requires determination." Code § 16.1-241(A)(3). This statute further provides 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," as in the instant case. Code § 16.1-241(A) (emphasis added).
This is separate and apart from the jurisdiction granted to the JDR court over "[t]he custody, visitation, support, control or disposition of a child . . . [w]ho is alleged to be abused [or] neglected. . . ." Code § 16.1-241(A)(1).
Code § 16.1-278.15 then provides, in relevant part, that "[i]n cases involving the custody, visitation or support of a child pursuant to subdivision A 3 of Code § 16.1-241, the court may make any order of disposition to protect the welfare of the child and family as may be made by the circuit court." Code § 16.1-278.15(A) (emphasis added). Specifically, the JDR court "may award custody upon petition to any party with a legitimate interest therein, including, but not limited to, grandparents. . . ." Code § 16.1-278.15(B). This statute then reiterates verbatim that the JDR court's authority to consider such a petition for child custody " shall not be proscribed or limited where the custody of the child has previously been awarded to a local board of social services." Id. (emphasis added). In addition, the court is directed "[i]n any case or proceeding involving the custody or visitation of a child" to "consider the best interest of the child, including the considerations for determining custody and visitation set forth in Chapter 6.1 ( § 20-124.1 et seq.) of Title 20." Code § 16.1-278.15(F).
Code § 20-124.2, in turn, provides, in relevant part: that "[i]n any case in which custody or visitation of minor children is at issue, whether in a circuit court or district court, the court shall provide prompt adjudication, upon due consideration of all the facts, . . . [including] custody and visitation arrangements . . ."; that "[i]n determining custody, the court shall give primary consideration to the best interests of the child," as set forth in Code § 20-124.3; and that "[t]he court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest," including grandparents, as set forth in Code § 20-124.1. Code § 20-124.2(A) and (B).
In filing the petition for custody of their granddaughter under this statutory scheme, the Cooks were not seeking "to merely 'step into the shoes' of a foster care parent" under a foster care plan, and were not limited to such status upon their petition. Rather, pursuant to the express terms of these statutes, the Cooks were clearly entitled to bring a direct, independent action seeking a change in the child's custody from DSS to the Cooks, separate and apart from any foster care plan. And both the JDR court and the circuit court, upon de novo review, were clearly authorized to adjudicate the Cooks' petition unrestricted by the fact that "custody of the child ha[d] previously been awarded to [DSS]." Code § 16.1-241(A); Code § 16.1-278.15(B).
The majority ascribes a different meaning to these provisions, and makes them subordinate to the foster care plan. Under settled principles, however, "[w]hen statutory language is unambiguous," as with the statutes cited above, "we are bound by the plain meaning of that language. Therefore, when the General Assembly has used words of a definite import, we cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed." Britt Constr., Inc. v. Magazzine Clean, LLC, 271 Va. 58, 62-63, 623 S.E.2d 886, 888 (2006)) (citations omitted). In short, we "'are not permitted to rewrite statutes.'" Boynton v. Kilgore, 271 Va. 220, 230, 623 S.E.2d 922, 927 (2006) (quotingAnderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). Contrary to these principles, the majority's holding is "tantamount to deleting the language" in Code §§ 16.1-241(A) and 16.1-278.15(B) granting the court authority to consider the Cooks' petition without limitation relative to DSS's prior custody award. Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327-28 (2006) (rejecting construction of statute that effectively deleted part of the statutory language).
In making the foster care plan statutes subordinate to the statutes under which the Cooks were awarded custody of their granddaughter, the General Assembly did not conflate the two statutory schemes. The fallacy in the majority's analysis in this regard is highlighted by the fact that the foster care plan statutes specifically address or reference only three types of petitions, none of which pertain to a separate custody petition like that filed by the Cooks. More specifically, Code § 16.1-281, in addressing the requirements of the foster care plan, indicates that, when applicable, a petition for approval of an entrustment agreement shall be filed with the foster care plan; and that, under certain circumstances, the proposed plan may include a petition seeking termination of parental rights. Code § 16.1-282 only addresses a petition for a foster care placement review hearing. Finally, Code § 16.1-282.1 is limited to a petition filed for either a permanency or interim foster care plan hearing.
The majority's reliance on Walla v. Prince William County Dep't of Social Servs., 25 Va. App. 356, 488 S.E.2d 653 (1997), is also misplaced. Walla does not support the conflation of the two statutory schemes. In Walla, the child was in the department's custody and subject to a foster care plan. On the recommendations of a family assessment and planning team (pursuant to Code § 16.1-254), the JDR court ordered that the child be treated at a therapeutic foster home or a residential treatment facility. Id. at 360, 488 S.E.2d at 655. The department challenged the JDR court's authority to enter the order, arguing that the department had the "final authority" to make such decisions for the child while in its custody. Id. at 361, 488 S.E.2d at 656. Rejecting the department's argument, we ruled that Code § 16.1-281(E) granted the JDR court specific statutory authority to oversee the treatment and care of a child while in the custody of social services. Id. at 363-64, 488 S.E.2d at 657. We did not address in Walla, in any way, the authority of an interested party to file a petition for child custody separate and apart from a foster care plan.
I also disagree with the majority that the foster care statutes "set forth a more stringent standard" for "transfer[ring] the custody of an abused or neglected child to a relative" than does the best interest of the child standard under the above cited statutes. If a child has been subjected to abuse or neglect, protection from further exposure to the same is clearly a factor to be considered by the court in determining what is in the child's best interest. Under factor number 9 of Code § 20-124.3, the court shall consider "[a]ny history of family abuse." Then more broadly under factor number 10, the court shall consider, on a case-by-case basis, "[s]uch other factors" that are "necessary and proper" when determining the custody or visitation arrangements. Code § 20-124.3.
Nor do I agree that the circuit court, in "looking at the best interest of the child under [Code § ] 20-124.3," failed to find that the Cooks were "willing and had the ability to protect the child from abuse and neglect." The court made numerous findings pertaining to that issue in its oral ruling, following a two-day evidentiary hearing devoted solely to what custody and visitation arrangements were in the child's best interest. It was the Cooks' son who allegedly abused his daughter, the evidence of which the court concluded was "somewhat suspect." Nevertheless, the court found that the Cooks had been "willing to report their son when he was on restricted visitation and to keep him following the court's orders." The court also found that the Cooks "were above average intelligence," had "stable employment," were "willing to step up and take custody," had "a stable home," had "no emotional or mental problems;" that "the child's doing very well in their home;" and that the court had "every confidence that they'll be able to provide [the child] good support."
The circuit court judge explained:
I'm not sure that the juvenile court, if [it] heard everything I heard in the last two days, will even find there was abuse and neglect. I think there was some question about that. . . . And I think Social Services did right by stepping in and trying to take over a situation they thought might be bad. But I don't think the situation was bad, as it turned out.
For these reasons, I would affirm the decision of the circuit court, and thus dissent from the majority opinion.