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FREDERICKSBURG DEPARTMENT OF SOCIAL SERVICES v. BROWN and WILLIAMS



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


FREDERICKSBURG DEPARTMENT OF
SOCIAL SERVICES

v.

BROWN and WILLIAMS


AUGUST 29, 2000

Record No. 1952-99-2

Record No. 1969-99-2

Record No. 2008-99-2

Argued at Alexandria, Virginia

Fredericksburg Department

of Social Services

v.

Clyde Brown and Joyce Williams

JOYCE WILLIAMS

v.

Fredericksburg DePARTMENT

of SocIAl ServICEs

Clyde Brown

v.

Fredericksburg Department

of Social Services

From the Circuit Court of THE CITY OF
FREDERICKSBURG

John W. Scott, Jr., Judge

OPINION BY JUDGE ROSEMARIE ANNUNZIATA

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.


Present: Judges Elder, Annunziata and Frank

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,

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 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

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

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 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 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

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 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
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 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 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 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 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 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.

FOOTNOTES:

[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 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.

[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 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.

[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 whose parent or parents
for good cause desire to be relieved of his care
and custody.

Code ? 16.1-241(A)(4) (emphasis added).

[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 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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