Lynchburg Division of Social Services v. Cook, Record No. 2792-05-3 (Va. App. 2/6/2007)
| Decision Date | 06 February 2007 |
| Docket Number | Record No. 2792-05-3. |
| Parties | LYNCHBURG DIVISION OF SOCIAL SERVICES v. JAMES COOK, SANDRA COOK AND JIMMY COOK. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of the City of Lynchburg, J. Leyburn Mosby, Jr., Judge.
Upon a Rehearing En Banc
Upon Remand from the Supreme Court of Virginia
Susan L. Hartman (Mark B. Arthur, Guardian ad litem for the minor child; City Attorney's Office, on briefs), for appellant.
Betsy H. Phillips for appellees James and Sandra Cook.
No brief or argument for appellee Jimmy Cook.
Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty and Beales
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.
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 § 20-124.2.1 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.
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.
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"2 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).
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) (). 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 (quoting Commonwealth 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).
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 §§ 16.1-2603 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.
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