COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, McClanahan an d Senior Judge Willis Argued at Chesapeake, Virginia

GLENN R. CARTWRIGHT OPINION BY v. Record No. 3010-05-1 JUDGE JERE M. H. WILLIS, JR. OCTOBER 24, 2006 KIMBERLY R. CARTWRIGHT

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge Steven F. Shames (Shames & Byru m, P.C., on briefs), for appellant. Samuel R. Brown, II (Kaufm an & Canoles, P.C., on brief), for appellee.

On appeal from an order di smissing his petitions to volunt arily relinquish his parental rights to his two minor children and awarding attorney’s fees to Kimberly R. Cartwright (mother), Glenn R. Cartwright (father) presents four questions, but appears to contend only that the trial court erred (1) in holding that Code §§ 16.1-277.02(C) and 16.1-278.3(D) do not permit a non-custodial parent to petition for voluntary reli nquishment and terminati on of parental rights, and (2) in awarding mother attorney’s fees. Moth er seeks an award of attorney’s fees and costs associated with this appeal. We affirm th e judgment of the trial court and award mother attorney’s fees and costs. Background On appeal, we view the evidence and all reas onable inferences in the light most favorable to mother as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).- 2 - Mother and father are the divorced natural pa rents of two minor chil dren, of whom mother, by court order, has sole custody. Father, the non-custodial parent, peti tioned the juvenile and

domestic relations district court (juvenile court) seeking “to be pe rmanently relieved of the care and custody of” the children and alleging that the term ination of his parental rights was in the children’s best interests. The juveni le court dismissed father’s petitions. Father appealed that ruling to the trial

court.

The trial court dismis sed father’s petitions, holding th at “voluntary relinquishment of parental rights by a party is contemplated only unde r circumstances not releva nt in this matter and therefore there is no statutory mechanism for the voluntary relinquishm ent or termination of parental rights as pled in this cas e.” It awarded mother $2,732.50 in attorney’s fees. Father appeals that ruling. Analysis

I. Jurisdiction to terminate pa rental rights can be found neither in the common law nor in a court’s inherent authority to proceed under its general equity powers. Willis v. Gamez , 20 Va. App. 75, 81-82, 455 S.E.2d 274, 277-78 (1995) (“‘there was [no] legal authority under the common law . . . for a total relinquishment of parental rights and obligations or any inherent authority in any court to termin ate them’”) (quoting Carroll County Dept. of Social Servs. v. Edelmann , 320 Md. 150, 577 A.2d 14, 25 (1990)). Accordingly, jurisdiction of the circuit cour ts to terminate parental rights must be found, if at all, within the statutory scheme. Id. at 81-83, 455 S.E.2d at 277-78. Church v. Church , 24 Va. App. 502, 505-06, 483 S.E.2d 498, 500 (1997) (footnote omitted). Father argues that Code § 16.1-277.02 pr ovides a mechanism whereby he, as a non-custodial parent, may voluntarily relinquish his residual parent al rights. However, Code § 16.1-277.02, by its terms, concerns only “[r]equest s for petitions for relief of the care and custody of a child . . . .” Father, as a non-cust odial parent, is not i nvested with “care and- 3 - custody” of his children from which he can be re lieved. Mother has sole custody of the children. “‘Sole custody’ means that [she alone] retains respons ibility for the care and control of [the children] and has primary authority to make d ecisions concerning [them].” Code § 20-124.1. Father argues that Code § 16.1-277.02 speaks al so to “a limited or secondary form of custody of the child” created by visi tation rights. The statute define s no such status. It is well settled that “when analyzing a stat ute, we must assume that ‘the legislature chose, with care, the

words it used when it enacted the relevant st atute, and we are bound by those words as we interpret the statute.’” City of Vi rginia Beach v. ESG Enterprises, Inc. , 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town and Country Properties , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). “The main purpose of statutory constructi on is to determine the intention of the legislature ‘which, absent constitu tional infirmity, must always prev ail.’” Last v. Virginia State

Bd. of Med. , 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992) (quoting Board of Supervisors v. King Land Corp. , 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989)). “When, as here, a statute contains no express definition of a term, the genera l rule of statutory cons truction is to infer the legislature’s intent from the plain meaning of the language us ed.” Hubbard v. Henrico Ltd. P’ship , 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). We may not, by interpretation or otherwise, “add to a statute language which the legi slature has chosen not to include.” County of Amherst Bd. of Supervisors v. Brockman , 224 Va. 391, 397, 297 S.E.2d 805, 808 (1982). Code § 16.1-278.3, which defines the procedures for granting custody to the Department of Social Services pursuant to a petition for relief of care and custody of a child, addresses situations where “the parent or other custodian seeks to be relieved perm anently of the care and custody of any child.” Again, beca use father is not the children’ s custodial parent, he provides- 4 - no actual care and custody from which he can be relieved. Thus, Code § 16.1-278.3 provides him no basis for seeking termination of his parental rights and obligations. Code § 16.1-278.3(D) provides that upon granti ng the petition of a “parent or other custodian” for relief, etc., “[i]f the remaining pare nt has not petitioned for permanent relief . . .,” the residual rights of that parent may be terminated pursuant to Code § 16.1-283. Father argues that this provision contemplates and acknowledges the right of a non-custodial parent to petition

for relief. Father misconstrues the m eaning of the term “remaining parent.” Code § 16.1-278.3 provides procedures to be followed successive to proceedings under Code § 16.1-277.02. Its purpose is not to provide an avenue for relief from parental obligation,

but rather to ensure that a child is not left w ithout proper care and support. The petition to which it refers is a petition authori zed by Code § 16.1-277.02. This is made clear in subsection (D) by reference to a request fo r relief by “a parent or other custodian .” (Emphasis added). Thus, the reference to a “remaining custodial parent [who] has not petitioned” is to a parent who could have petitioned under Code § 16.1-277.02 for relief from care and custody that he/she is providing. Father is not such a party. Furthermore, Code § 16.1-278.3(D) authorizes

consideration of the status and rights of a remaining parent on ly following the granting of a petition properly filed under Code § 16.1-277.02. No such petition has been filed or granted in

this case. The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself. . . . Statutes terminating the le gal relationship between parent and child should be interpreted cons istently with the governmental objective of preserving, when possible, the parent-child relationship. Weaver v. Roanoke Dep’t of Human Res. , 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). It is well established that “[b]oth parents owe a duty of support to their minor children.” Kelley v. Kelley , 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994) (cit ing Code § 20-61; Featherstone v.- 5 - Brooks , 220 Va. 443, 448, 258 S.E.2d 513, 516 (1979)). See also Hur v. Dep’t of Social Servs., Div. of Child Support Enforcement ex rel. Klopp , 13 Va. App. 54, 58, 409 S.E.2d 454, 457 (1991) (“Child support has long been recognized as an obligation ow ed to the infant child, not the payee parent. This duty arises from prin ciples of natural law.” (citation omitted)). Interpreting the statutes in the manner father proposes would undermine these important objectives. The 1984 Attorney General’s Opinion cited by father does not support his interpretation of the statutes. The opinion does not address a non-custodial parent’s voluntary relinquishment of his parental rights and duties. See 1984-1985 Op. Va. Att’y Gen. 155 (Sept. 25, 1984). As we find no support for father’s contentions, we affirm the trial court’s dismissal of his petitions.

II. In pertinent part, Code § 16.1-296(I) provides that “[i]n a ll cases on appeal, the circuit court in the disposition of such cases shall have all the powers and authority granted by the chapter to the juvenile and domes tic relations district court.” Code § 16.1-278.19 provides as follows: In any matter properly before the court, the court may award attorneys’ fees and costs on behalf of any party as the court deems appropriate based on the re lative financial ability of the parties. Thus, the trial court was authorized to award co sts and attorney’s fees in this case. We

find no error in its award to mother. Mother also seeks costs and attorney’s fees a ssociated with this appeal. We find such an award appropriate under Code § 16.1-278.19. See Gottlieb v. Gottlieb , 19 Va. App. 77, 95, 448 S.E.2d 666, 677 (1994). Therefore, we award attorney ’s fees to mother and remand this case to- 6 - the trial court for determination of attorney’s f ees and costs incurred in responding to this appeal, and for any fees and costs incu rred at the hearing on remand.

Affirmed and remanded.