PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, Agee,1

and Goodwyn, JJ. 

LYNCHBURG DIVISION OF SOCIAL SERVICES 

 OPINION BY 

v. Record No. 071964 JUSTICE G. STEVEN AGEE 

 September 12, 2008 

JAMES COOK, ET AL. 

FROM THE COURT OF APPEALS OF VIRGINIA 

The Lynchburg Division of Social Services (“LDSS”) appeals 

from the judgment of the Court of Appeals affirming the judgment 

of the Circuit Court of the City of Lynchburg awarding custody 

of a minor child to James and Sandra Cook. For the reasons set 

forth below, we will reverse the judgment of the Court of 

Appeals. 

I. RELEVANT FACTS AND PROCEEDINGS BELOW 

A. FACTUAL BACKGROUND 

Amy Cook lived in the City of Lynchburg with her husband, 

Jimmy Cook, and their seventeen-month-old daughter, BC.2 On 

March 26, 2004, Amy presented to Lynchburg General Hospital with 

severe depression and alleged that Jimmy had caused her 

condition by taking pornographic pictures of BC and viewing 

pornography with BC sitting in his lap. 

 

1

 Justice Agee participated in the hearing and decision of 

this case prior to his retirement from the Court on June 30, 

2008. 

2

 Except where otherwise noted, we refer to the adult 

parties sharing a surname by their given names. We refer to the 

minor child by her initials. 
In response to Amy’s allegations, Lisa Parks, a Child 

Protective Service worker with the LDSS, and investigators from 

the Lynchburg Police Department interviewed the Cooks and 

obtained a search warrant, under which they seized computer 

equipment and approximately 300 images from the Cooks’ home. In 

an affidavit in support of an emergency removal petition under 

Code § 16.1-251, Parks stated that most of the seized images 

were pornographic and depicted participants under the age of 18. 

According to Parks’ affidavit, Jimmy denied taking pornographic 

pictures of his daughter and no objectionable pictures of BC 

were found. However, Jimmy admitted that he took photographs of 

his daughter for entry into photography contests and used the 

other pictures for ideas of how to pose BC. 

In addition to Amy’s accusations and the seized images, the 

LDSS investigation revealed Jimmy had a criminal conviction for 

assault against a six-year-old child in 1994. Amy admitted that 

she and Jimmy’s family were aware of the earlier charges and 

that Jimmy used pornography prior to BC’s birth. Though BC was 

unable to verbalize or respond to interview questions, Parks 

observed her engaging in sexual mimicry during a visit to the 

Cooks’ home. 

On April 6, 2004, Jimmy was arrested on two counts of 

possession of child pornography in violation of Code § 18.2-

2
374.1:1.3 That day, Amy took BC to Amy’s aunt’s home in 

accordance with a safety plan developed by Parks. However, Amy 

returned with BC to their home in Lynchburg that night, in 

violation of the safety plan. On the afternoon of April 7, 

following Jimmy’s release from custody and Amy’s violation of 

the safety plan, the LDSS placed BC in protective custody. Amy, 

Jimmy, and Jimmy’s mother, Sandra Cook,4 each filed petitions for 

custody of BC in the Juvenile and Domestic Relations District 

Court of the City of Lynchburg (“Juvenile and Domestic Relations 

Court”). 

B. FOSTER CARE PROCEEDINGS 

On April 8, 2004, the Juvenile and Domestic Relations Court 

entered an emergency removal order under Code § 16.1-251 

transferring temporary custody of BC to the LDSS based upon 

findings that she “would be subjected to an imminent threat to 

life or health to the extent that severe or irremediable injury 

would be likely to result if she were returned to or left in the 

custody of . . . her parents” and that reasonable efforts had 

been made to prevent her removal from the home. The Juvenile 

and Domestic Relations Court then entered a preliminary removal 

 

3

 The charges were dismissed by orders of nolle prosequi 

entered January 5, 2005. 

4

 Though not named in the petition for custody, Sandra’s 

husband, James, was a party to the custody proceedings below and 

3
order under Code § 16.1-252 confirming the LDSS as BC’s 

temporary legal custodian “pending the entry of a dispositional 

order pursuant to Virginia Code § 16.1-278.2” and directing the 

LDSS to complete the investigation required by that section. At 

a subsequent hearing under Code § 16.1-252(G), the Juvenile and 

Domestic Relations Court made the specific finding that BC “is 

abused or neglected.” The court set the date for the Code 

§ 16.1-278.2 dispositional hearing and directed the LDSS to file 

a foster care plan under Code § 16.1-281. 

The LDSS foster care plan recommended placing BC in a 

foster home with the goal of later returning her home. The 

Juvenile and Domestic Relations Court adopted the foster care 

plan submitted by the LDSS and entered a July 1, 2004, order 

transferring custody of BC to the LDSS and setting a foster care 

review hearing under Code § 16.1-282 for January 4, 2005. 

The LDSS submitted a revised foster care plan, substituting 

a goal of continuing foster care for the earlier goal of 

returning BC to her parents’ home. The Juvenile and Domestic 

Relations Court adopted that foster care plan at the January 4, 

2005, foster care review hearing and set a permanency planning 

hearing under Code § 16.1-282.1 for May 27, 2005. 

 

is an appellee in the appeal before us. We refer to James and 

4
C. CUSTODY PROCEEDINGS 

While the foregoing proceedings were in progress, the 

Juvenile and Domestic Relations Court conducted hearings 

regarding the three competing petitions for custody filed by 

Amy, Jimmy, and the Grandparents, and ordered the court service 

unit to conduct an investigation of them. Subsequent to the 

January 4, 2005, foster care plan review order, but prior to the 

scheduled May 27, 2005, permanency planning hearing, the 

Juvenile and Domestic Relations Court entered a final custody 

order on March 11, 2005, awarding custody of BC to the 

Grandparents. Amy, Jimmy, and the LDSS separately appealed to 

the Circuit Court for the City of Lynchburg. 

D. APPELLATE PROCEEDINGS 

Prior to trial de novo on the appeals in the circuit court, 

a motion by the LDSS to suspend the Juvenile and Domestic 

Relations Court’s March 11, 2005, custody order was denied. The 

circuit court also determined in an interlocutory order that 

“there is no requirement for or need for a permanency planning 

hearing in the Juvenile Court on May 27, 2005.” 

In October 2005, at the conclusion of a two-day trial, the 

circuit court awarded custody of BC to the Grandparents.5 The 

 

Sandra Cook collectively as “the Grandparents.” 

5

 At the conclusion of the trial, the LDSS inquired, “Will 

the Department of Social Services continue to be involved when 

5
circuit court’s final order of November 22, 2005, stated that 

“[u]pon consideration of the evidence and all of the statutory 

factors set forth in Virginia Code § 20-124.3 . . . the court 

finds by clear and convincing evidence that the best interests 

of [BC] require that her custody be awarded to James and Sandra 

Cook, her paternal grandparents, and it is so ORDERED.” 

Additionally, the court’s order set forth that “[u]pon 

consideration of all the evidence adduced at the hearing, this 

Court finds that no further provision of social services to the 

child are required.” 

The LDSS timely objected to the circuit court’s order, 

noting the circuit court failed to make the findings required in 

foster care proceedings under Code §§ 16.1-281(C1), 16.1-

282(D1), and 16.1-282.1(A1) (collectively, “the foster care 

statutes”). The LDSS also objected on the basis that the 

evidence was insufficient to support transfer of custody to the 

Grandparents as being in the best interests of the child. 

On appeal to the Court of Appeals, a divided panel of that 

court reversed the judgment of the circuit court in an 

unpublished opinion.6 Lynchburg Div. Soc. Servs. v. Cook, No. 

 

you do the Review Hearing? Because there won’t be a Foster Care 

Plan.” The court replied, “No, there won’t be; they don’t need 

to be involved.” 

6

 The LDSS contended in the Court of Appeals that the 

Juvenile and Domestic Relations Court, and consequently the 

6
2792-05-3 (Feb. 6, 2007). The panel majority determined that 

the circuit court erred in awarding custody of BC to the 

Grandparents because the specific fact-finding requirements 

under the applicable foster care statutes were not made. Id., 

slip op. at 9-12. The panel majority also held that the circuit 

court erred in awarding custody without conducting the 

permanency planning hearing and terminating the LDSS’s 

involvement in the case. Id. at 13. 

Upon rehearing en banc, the en banc majority of the Court 

of Appeals affirmed the judgment of the circuit court.7 

Lynchburg Div. of Soc. Servs. v. Cook, 50 Va. App. 218, 228, 648 

S.E.2d 328, 333 (2007). The en banc majority noted the 

provision of Code § 16.1-241(A) stating 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” and then referenced the provision in Code 

§ 16.1-278.15 authorizing the court in a custody case under Code 

 

circuit court, lacked “jurisdiction” to consider the Cooks’ 

various custody petitions because none of those parties asked 

for custody under a Code § 16.1-282 foster care review petition. 

The Court of Appeals, without dissent, determined the Juvenile 

and Domestic Relations Court had subject matter jurisdiction 

over the custody petitions. The LDSS does not raise this issue 

on appeal to this Court. 

7

 Neither the panel nor en banc opinions addressed the 

sufficiency of the evidence issue raised by the LDSS. 

7
§ 16.1-241(A)(3) to “make any order of disposition . . . as may 

be made by the circuit court.” Id. at 225, 648 S.E.2d at 331 

(emphasis in original). Observing that the Grandparents had 

filed their custody petition under Code § 16.1-241(A)(3), the 

majority concluded the “any order” language of Code § 16.1-

278.15 authorized the juvenile and domestic relations district 

courts and circuit courts to award custody of BC without meeting 

any of the finding requirements in the foster care statutes: 

In Code §§ 16.1-241(A) and 16.1-278.15(B), the General 

Assembly has stated unequivocally that the JDR court’s 

authority to consider such a petition is not 

“proscribed or limited” by the fact that “custody of 

the child has previously been awarded to [DSS].” 

Consequently, through these provisions, the General 

Assembly has made the foster care plan statutes 

subordinate to the statutes under which the Cooks were 

awarded custody of their granddaughter, and did not 

conflate the two statutory schemes. 

Given that the courts below had the authority to 

adjudicate the Cooks’ petition and award them custody 

apart from the foster care plan, the courts also 

correctly applied the “best interest of the child” 

standard in making that award, pursuant to Code 

§§ 16.1-278.15(F), 20-124.2(B), and 20-124.3, rather 

than the standard for approving foster care parents, 

which did not apply.8

Id. at 226, 648 S.E.2d at 332 (alteration in original). 

 

8

 The en banc majority further explained their reasoning in 

a footnote: “In other words, the courts below were not 

compelled, as DSS contends, to apply the standards and make the 

findings required for placing a child with a relative as a 

foster care parent, pursuant to Code §§ 16.1-281(C1), 16.1-

282(D1), and 16.1-282.1(A1).” Id. at 226 n.8, 648 S.E.2d at 332 

n.8. 

8
Thus, in the en banc majority’s view, the general “best 

interests of the child” determination required under Code §§ 20-

124.2 and 20-124.3 (collectively, the “general custody 

statutes”) supersedes and replaces the findings required under 

the foster care statutes when a Code § 16.1-241(A)(3) custody 

petition is before the court.9 Id. at 226-28, 648 S.E.2d at 332. 

Echoing their panel majority opinion, the two en banc 

dissenting judges observed that the specific foster care 

statutes applicable to a child who, like BC, was statutorily 

subject to a foster care plan, do not reference the general 

custody statutes. The en banc dissent noted that each of the 

foster care statutes require that: 

Any 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 

 

9

 Three judges of the Court of Appeals concurred in the en 

banc majority opinion on the ground that the specific factfinding required under the foster care statutes is “nevertheless 

subsumed in the best interests analysis. Any finding, pursuant 

to the general custody statutes, that an award of custody to ‘a 

relative other than the child's prior family,’ Code § 16.1-

282(D1), is in the child’s best interests includes an implicit 

finding that the relative” meets the specific Code § 16.1-

282(D1) requirements. Id. at 229, 648 S.E.2d at 333 (Elder, J., 

concurring). 

9
willing and has the ability to protect the child from 

abuse and neglect; and the order shall so state. 

Code §§ 16.1-281(C1), 16.1-282(D1), 16.1-282.1(A1) (emphasis 

added). 

The dissent observed that the majority opinion failed to 

harmonize the general custody and foster care statutory schemes. 

The dissent saw those schemes, correctly read, as not in 

conflict; thus the majority’s conclusion that the foster care 

statutes were “subordinate” to the general custody statutes was 

erroneous. Rejecting the majority’s construction of Code 

§ 16.1-278.15(B), the dissent noted “placement with DSS does not 

proscribe or limit the circuit court’s ability to consider a 

petition for custody. In other words, the child’s placement 

does not remove the trial court’s jurisdiction over issues such 

as custody.” 50 Va. App. at 234, 648 S.E.2d at 335 (Humphreys, 

J., dissenting). 

Concluding, the en banc dissent observed: 

Code § 16.1-281 was not intended to “divest” the trial 

court of jurisdiction over the custody matter, nor was 

it intended to limit or proscribe the trial court's 

authority to entertain the custody matter. Nor does 

Code § 16.1-281 limit the trial court to considering 

just the foster care plan or the objectives set forth 

by DSS. In fact, Code § 16.1-241 makes it perfectly 

clear that the trial court has jurisdiction over 

custody matters. . . . [W]hen read in conjunction 

with the other pertinent statues, Code § 16.1-281 

simply requires that when the custody of an abused and 

neglected child is at issue, the trial court must make 

specific written findings of fact, designed to protect 

the child from the dangers for which he or she was 

10
removed from the home. See Code §§ 16.1-281, 16.1-

282, 16.1-282.1. In other words, the trial court is 

free to decide the issue of custody as it sees fit, so 

long as it incorporates into the record [the required 

findings of the foster care statutes]. 

50 Va. App. at 235-36, 648 S.E.2d at 336 (Humphreys, J., 

dissenting) (emphasis in original). 

The en banc Court of Appeals denied the Grandparents’ 

request of an award under Code § 16.1-278.19 for the attorney’s 

fees and costs incurred by them in that court: “[W]e cannot say 

DSS’s position in this case was unreasonable . . . because the 

litigation addressed appropriate and substantial issues . . . .” 

Id. at 228, 648 S.E.2d at 332 (internal quotation marks 

omitted).10 We awarded the LDSS an appeal and also awarded the 

Grandparents an appeal on their assignment of cross-error 

regarding the denial of attorney’s fees. 

II. ANALYSIS 

The LDSS makes two assignments of error to the judgment of 

the Court of Appeals. Initially, the LDSS contends the Court of 

Appeals erred by “holding that the detailed statutory scheme for 

custody of abused or neglected children . . . is ‘subordinate’ 

to the general custody and visitation provisions of Title 20, 

 

10 Apparently the Grandparents did not request an award of 

attorney’s fees in either the Juvenile and Domestic Relations 

Court or the circuit court and no claim for an award relating to 

attorney’s fees in those courts is before us in this appeal. 

11
and in declining to enforce the requirements of Title 16.1.” 

Because we find this assignment of error dispositive, we do not 

address the second assignment of error by the LDSS challenging 

the sufficiency of the evidence to support the award of custody 

to the Grandparents. 

A. THE FOSTER CARE AND GENERAL CUSTODY STATUTORY SCHEMES 

The LDSS argues that the Court of Appeals erred in holding 

that “the General Assembly has made the foster care plan 

statutes subordinate to the statutes under which the Cooks were 

awarded custody of their granddaughter,” 50 Va. App. at 226, 648 

S.E.2d at 332, a child subject to a foster care plan and who had 

been found to have been abused or neglected. The LDSS contends 

the Court of Appeals failed to harmonize the two statutory 

schemes, the foster care statutes and the general custody 

statutes, which the court saw as conflicting, and ignored the 

plain language of the more specific statutory scheme in 

unwarranted deference to statutes of general application. As a 

result of the Court of Appeals’ opinion, the LDSS argues any 

“person with a legitimate interest” under Code § 20-124.1 

entitled to file a petition for custody of a child subject to a 

foster care plan could effectively circumvent the foster care 

statutes by simply filing a petition for custody. Consequently, 

the LDSS contends the Court of Appeals’ decision eliminates the 

statutory safeguards embedded in the foster care statutes 

12
intended to protect vulnerable children like BC. The LDSS 

concludes the General Assembly did not intend such “far-reaching 

and deleterious consequences” when it created the two statutory 

frameworks. We agree with the LDSS. 

The statutes governing foster care proceedings are detailed 

and require specific findings by the court at each stage of the 

process whether involving a child, like BC, found to be abused 

or neglected, or a child who is abandoned or otherwise within 

the statutory ambit. In emergency situations, an allegedly 

abused or neglected child may be removed upon an order entered 

after an ex parte emergency removal hearing. The petitioning 

party must prove that “[t]he child would be subjected to an 

imminent threat to life or health to the extent that severe or 

irremediable injury would be likely to result” without the 

removal and that “[r]easonable efforts have been made to prevent 

removal . . . and there are no alternatives less drastic than 

removal . . . which could reasonably protect the child’s life or 

health pending a final hearing on the petition.” Code § 16.1-

251(A). 

A juvenile and domestic relations district court may also 

order the removal of an allegedly abused or neglected child by 

entering a preliminary removal order under Code § 16.1-252(A). 

The party petitioning for removal must prove the same facts as 

required for an emergency removal order. Code § 16.1-252(E). 

13
Following the preliminary removal hearing, the juvenile and 

domestic relations district court may place the child in the 

custody of a suitable agency or of a suitable person under the 

supervision of the local department of social services. Code 

§ 16.1-252(F). 

The court must conduct a dispositional hearing within 

seventy-five days of the initial preliminary removal hearing. 

Code §§ 16.1-252(H), 16.1-278.2(A). As a result of the 

dispositional hearing, “[i]f the child is found to be . . . 

abused or neglected,” the court may transfer custody subject to 

a foster care plan under Code § 16.1-281 “[a]fter a finding that 

there is no less drastic alternative.” Code § 16.1-278.2(A). 

This statute also requires that: 

Any order transferring custody of a child to a 

relative . . . 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. 

Code § 16.1-278.2(A1) (emphasis added). 

The juvenile and domestic relations district court must 

conduct a foster care plan hearing within seventy-five days of 

the dispositional hearing. Code § 16.1-281(C). While the court 

14
may revise the foster care plan, “[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” of the same facts required to be 

found under Code § 16.1-278.2(A1), “and the order shall so 

state.” Code § 16.1-281(C1) (emphasis added). Within six 

months of the foster care plan hearing, the court must conduct a 

foster care review hearing under Code § 16.1-282(A). However, 

“[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” of the same 

facts required to be found under Code §§ 16.1-278.2(A1) and 

16.1-281(C1), “and the order shall so state.” Code § 16.1-

282(D1) (emphasis added). 

The General Assembly has further mandated that the juvenile 

and domestic relations district court must conduct a permanency 

planning hearing within eleven months of the dispositional 

hearing “to establish a permanent goal for the child and either 

to achieve the permanent goal or to defer such action through 

the approval of an interim plan for the child.” Code § 16.1-

282.1(A). Again, “[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” of the same facts required to be found under Code 

15
§§ 16.1-278.2(A1), 16.1-281(C1), and 16.1-282(D1), “and the 

order shall so state.” Code § 16.1-282.1(A1) (emphasis added). 

Thus, once the foster care statutory process has commenced, 

the juvenile and domestic relations district court may not 

transfer custody of a child to a relative, other than the 

child’s prior family, without making the four specific findings 

of fact required by Code §§ 16.1-278.2(A1) and the foster care 

statutes. Those findings, under the plain terms of the 

statutes, must be stated in the order transferring custody. 

Neither the Juvenile and Domestic Relations Court nor the 

circuit court did so in this case. 

By comparison, the statutes of general application 

governing custody of a child are much less specific than the 

foster care statutory scheme. For example, under Code § 16.1-

278.15, titled “Custody or visitation, child or spousal support 

generally,” subsection F requires “[i]n any case . . . the court 

shall consider the best interests of the child” and references 

Code §§ 20-124.1 et seq. Code § 20-124.2(B) also states that 

“the court shall give primary consideration to the best 

interests of the child” and Code § 20-124.3 sets forth ten nonexclusive factors the court “shall consider.” However, in 

contrast to the findings required under Code § 16.1-278.2(A1) 

and the foster care statutes, there is no statutory requirement 

that a court’s findings on the child’s best interests under the 

16
general custody statutes be stated in the resulting custody 

order. See Code § 20-124.3 (“In determining best interests of a 

child for purposes of determining custody . . . [a] judge shall 

communicate to the parties the basis of the decision either 

orally or in writing.”). 

“Statutory construction is a question of law which we 

review de novo on appeal.” Parker v. Warren, 273 Va. 20, 23, 

639 S.E.2d 179, 181 (2007) (citing Boynton v. Kilgore, 271 Va. 

220, 227, 623 S.E.2d 922, 925 (2006)). “[C]ourts apply the 

plain language of a statute unless the terms are ambiguous.” 

Boynton, 271 Va. at 227, 623 S.E.2d at 926 (citing Tiller v. 

Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952)); see 

also Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 

423, 439, 621 S.E.2d 78, 86-87 (2005) (“Courts are bound by the 

plain meaning of statutory language.”). “[I]f the language is 

plain, certain and unambiguous, so that no doubt arises from its 

own terms as to its meaning, then there is no room for 

interpretation.” Boynton, 271 Va. at 228 n.10, 623 S.E.2d at 

926 n.10 (quoting Golden Valley County v. Lundin, 203 N.W. 317, 

319 (N.D. 1925)). 

“[W]henever ‘a given controversy involves a number of 

related statutes, they should be read and construed together in 

order to give full meaning, force, and effect to each.’ ” 

Boynton, 271 Va. at 229, 623 S.E.2d at 927 (quoting Ainslie v. 

17
Inman, 265 Va. 347, 353, 577 S.E.2d 246, 249 (2003)); see also 

Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 

(1998) (“[W]hen two statutes seemingly conflict, they should be 

harmonized, if at all possible, to give effect to both.”). A 

cardinal rule of statutory interpretation is that “[w]hen one 

statute addresses a subject in a general manner and another 

addresses a part of the same subject in a more specific manner, 

the two statutes should be harmonized, if possible, and when 

they conflict, the more specific statute prevails.” Alliance to 

Save the Mattaponi, 270 Va. at 439-40, 621 S.E.2d at 87. 

As illustrated above, the foster care statutes are much 

more specific and contain mandatory findings that must be made 

by the court when custody of a child is placed with “a relative 

other than the child’s prior family,” such as the Grandparents. 

The Court of Appeals failed to apply the plain language of the 

more specific statutory requirements of the foster care statutes 

and give those provisions effect in a custody proceeding 

involving a child subject to a foster care plan. When the Court 

of Appeals concluded the foster care statutes were “subordinate” 

to the general custody statutes in that circumstance, it also 

erred by not reading those statutes in harmonious effect with 

the general custody statutes. 

The Court of Appeals mistakenly read certain language in 

Code §§ 16.1-241(A) and 16.1-278.15(B) as subordinating the 

18
foster care statutes to the general custody statutes. Both Code 

§ 16.1-241(A) and 16.1-278.15(B) contain the following language: 

“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.” The Court of 

Appeals read this statutory provision in conjunction with the 

Code § 16.1-278.15(A) provision that “the court may make any

order of disposition” in a Code § 16.1-241(A)(3) custody case as 

eliminating any application of the foster care statutes to the 

custody determination of BC. However, the “shall not be 

proscribed or limited” language merely confirms the Juvenile and 

Domestic Relations Court’s authority to exercise its 

jurisdiction, granted by Code § 16.1-241, in a custody case 

involving a child subject to a foster care plan. Nothing in 

that language reflects any curtailment of the application of the 

foster care statutes. 

The en banc dissent succinctly described the interrelation 

of these statutory schemes, and why the Court of Appeals 

conclusion was erroneous, when it noted that the foster care 

statutes do not 

limit the trial court to considering just the foster 

care plan or the objectives set forth by DSS. In fact, 

Code § 16.1-241 makes it perfectly clear that the 

trial court has jurisdiction over custody 

matters. . . . [W]hen read in conjunction with the 

19
other pertinent statues, Code § 16.1-281 simply 

requires that when the custody of an abused and 

neglected child is at issue, the trial court must make 

specific written findings of fact, designed to protect 

the child from the dangers for which he or she was 

removed from the home. See Code §§ 16.1-281, 16.1-282, 

16.1-282.1. In other words, the trial court is free 

to decide the issue of custody as it sees fit, so long 

as it incorporates into the record a finding that 

[states the requirements of the foster care statutes]. 

50 Va. App. 235-36, 648 S.E.2d at 336 (Humphreys, J., 

dissenting). 

The requirement that the trial court make the findings 

mandated by the foster care statutes in no way “proscribe[s] or 

limit[s]” the authority of the Juvenile and Domestic Relations 

Court to exercise its subject matter jurisdiction over child 

custody cases. To the contrary, the statutory schemes of the 

foster care and general custody statutes are harmonized, and the 

plain meaning of the more specific foster care statutes is 

applied, when the trial court adjudicates a custody case 

involving a child subject to a foster care plan by making the 

required foster care statutory findings and stating those 

findings in its order. 

The Court of Appeals’ reliance on the Code § 16.1-278.15(A) 

provision that the “court may make any order” as a form of 

plenary authority to ignore the foster care statutes is also 

misplaced. Code § 16.1-241(A) is the statutory grant of 

jurisdiction to the Juvenile and Domestic Relations Court in 

20
custody cases. The Code § 16.1-278.15(A) language only applies 

in the Code § 16.1-241(A)(3) subset of custody cases which are 

of general application: “of controversy or requires 

determination.” The Code § 16.1-278.15(A) language merely 

provides that the Juvenile and Domestic Relations Court’s 

authority in Code § 16.1-241(A)(3) custody cases is as extensive 

as that of the circuit court: it in no way applies any 

limitation on the applicability of the foster care statutes. 

Moreover, the jurisdictional basis in BC’s case was more 

appropriately Code § 16.1-241(A)(1), which is the specific 

jurisdictional statute applicable to custody of a child “who is 

alleged to be abused [or] neglected.” As the en banc dissent 

noted, the Court of Appeals’ expansive reading of Code § 16.1-

241(A)(3) through Code § 16.1-278.15(A) “renders Code § 16.1-

241(A)(1) meaningless.” 50 Va. App. at 233, 648 S.E.2d at 335. 

The only interpretation of the relevant provisions of Title 

16.1 and Title 20 that gives effect to both statutory schemes, 

and the intent of the General Assembly, is that a trial court 

must make the specific factual findings required by the foster 

care statutes in a custody case involving a child subject to a 

foster care plan. The interpretation offered by the Court of 

Appeals would permit any “[p]erson with a legitimate interest” 

under Code § 20-124.1 entitled to file a petition for custody to 

circumvent a pending foster care proceeding. Such a general 

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custody exception to the statutory provisions governing foster 

care proceedings would eviscerate the General Assembly’s 

detailed framework intended to safeguard a child, like BC, who 

was subject to a foster care plan. 

Once a child has become subject to proceedings under the 

foster care statutes, a court may not transfer custody without 

the specific, written factual findings required by the foster 

care statutes. This statutory mandate holds true whether the 

custody order is entered upon a petition for custody, a petition 

for a foster care review hearing, or a petition for a permanency 

planning hearing. An award of custody without such findings, as 

in the case at bar, is error as a matter of law. 

Moreover, it is contrary to the clear and plain language of 

the foster care statutes to conclude those specific statutory 

findings are subsumed by findings under the best interests of 

the child standard. For example, each of the foster care 

statutes requires a finding that the child’s relative seeking 

custody “is willing and has the ability to protect the child 

from abuse and neglect.” That distinct and required finding is 

not within any mandated parameter of the best interests of the 

child inquiry and such a finding was clearly not made in the 

case at bar. Allowing the best interests of the child standard 

to subsume these explicit statutory requirements would render 

those requirements meaningless and write out of the foster care 

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statutes the mandatory directive that “the order shall so 

state.” We avoid such interpretations. “The rules of statutory 

interpretation argue against reading any legislative enactment 

in a manner that will make a portion of it useless, repetitious, 

or absurd. On the contrary, it is well established that every 

act of the legislature should be read so as to give reasonable 

effect to every word . . . .” Jones v. Conwell, 227 Va. 176, 

181, 314 S.E.2d 61, 64 (1984). “[E]very part of a statute is 

presumed to have some effect and no part will be considered 

meaningless unless absolutely necessary.” Hubbard v. Henrico 

Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). 

For the foregoing reasons, we conclude the Court of Appeals 

erred in affirming the judgment of the circuit court which 

awarded custody of BC to the Grandparents. 

B. ATTORNEY’S FEES 

The Grandparents assign as cross error the denial by the 

Court of Appeals of an award of attorney’s fees under Code 

§ 16.1-279.1 for the fees relating to their appeal in that 

court. Ordinarily, when a claim for attorney’s fees is 

cognizable, we review a refusal to award attorney’s fees for 

abuse of discretion. Wilkerson v. Wilkerson, 214 Va. 395, 398, 

200 S.E.2d 581, 584 (1973); Monahan v. Monahan, 212 Va. 406, 

408, 184 S.E.2d 812, 813 (1971). A “ ‘court by definition 

abuses its discretion when it makes an error of law. . . . The 

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abuse-of-discretion standard includes review to determine that 

the discretion was not guided by erroneous legal conclusions.’ ” 

Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 

(2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). 

Code § 16.1-278.19 provides that “the court may award 

attorney’s fees and costs on behalf of any party as the court 

deems appropriate based on the relative financial ability of the 

parties.” The Court of Appeals has determined that it may order 

the award of appellate attorney’s fees and costs under that 

statute. Cartwright v. Cartwright, 49 Va. App. 25, 31, 635 

S.E.2d 691, 694 (2006); Gottlieb v. Gottlieb, 19 Va. App. 77, 

95-96, 448 S.E.2d 666, 677 (1994). However, the Court of 

Appeals did not base its decision in the case at bar upon the 

statutory factor of the “relative financial ability of the 

parties.” Instead, the Court of Appeals enunciated a nonstatutory standard, which was that the Grandparents were not 

entitled to attorney’s fees because the position of the LDSS was 

not unreasonable. 50 Va. App. at 228, 648 S.E.2d at 332-33 

(“[W]e cannot say DSS’s position in this case was unreasonable 

. . . because the litigation addressed appropriate and 

substantial issues . . . . Therefore, we do not award 

attorney’s fees associated with this appeal.”). 

In so much as the Court of Appeals made its determination 

without regard to the statutory standard, but used a standard 

24
25

not set forth in the statute, it erred as a matter of law in 

rejecting the attorney’s fees claim of the Grandparents.11

III. CONCLUSION 

For the reasons stated, we will reverse the judgment of the 

Court of Appeals which affirmed the judgment of the circuit 

court awarding custody of BC to the Grandparents. We will also 

reverse the judgment of the Court of Appeals denying the 

attorney’s fees claim of the Grandparents. We will remand the 

case to the Court of Appeals with instructions to remand the 

case to the circuit court for further proceedings in accordance 

with this opinion. Such proceedings include the application of 

the proper statutory standards for the determination of the 

custody of BC and whether attorney’s fees should be awarded the 

Grandparents with regard to the appellate proceedings in the 

Court of Appeals and this Court. Pending such hearing and 

further order of the circuit court, custody of BC shall remain 

with the Grandparents with visitation to Amy Cook and Jimmy 

Cook, respectively, as set forth in the circuit court’s order of 

November 22, 2005. 

Reversed and remanded. 

 

11 We address in this opinion only the statutory standard 

under Code § 16.1-278.19 and express no opinion as to whether 

the Grandparents, on remand, are entitled to any attorney’s fees 

and costs upon application of the proper standard.