Fredericksburg Dep't Soc. Serv. v. Williams
| Decision Date | 29 August 2000 |
| Docket Number | No. 1969-99-2,R,No. 1952-99-2,No. 2008-99-2,1952-99-2,1969-99-2,2008-99-2 |
| Citation | 533 S.E.2d 12 |
| Parties | (Va.App. 2000) 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 Recordecordecord |
| Court | Virginia Court of Appeals |
Argued at Alexandria, Virginia
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.
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.
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.
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) (); 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 ___ (...
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