                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Huff and Senior Judge Annunziata
PUBLISHED


            Argued at Lexington, Virginia


            KEITH BOATRIGHT
                                                                                OPINION BY
            v.     Record No. 0789-14-3                                      JUDGE GLEN A. HUFF
                                                                              NOVEMBER 12, 2014
            WISE COUNTY DEPARTMENT
             OF SOCIAL SERVICES


                                   FROM THE CIRCUIT COURT OF WISE COUNTY
                                           Chadwick S. Dotson, Judge

                           Charles Herbert Slemp, III (Slemp Law Office, PLLC, on briefs),
                           for appellant.

                           Jeremy B. O’Quinn; Stephanie Kern, Guardian ad litem for the
                           minor child (The O’Quinn Law Office, P.L.L.C., on brief), for
                           appellee.


                   Keith Boatright (“father”) appeals a final order entered by the Circuit Court for Wise

            County (“circuit court”) terminating father’s parental rights on April 15, 2014. On appeal,

            father asserts four assignments of error:

                   1. The [circuit] court erred in denying the motion to reverse and remand the case
                      to juvenile court for scheduling defects in violation of Code § 16.1-296(D).

                   2. The [circuit] court erred in granting a continuance on January 30, 2014 at the
                      request of the Department and over [father]’s objection.

                   3. The [circuit] court erred in denying the motion to reconsider and terminating
                      parental rights when the court failed to consider any evidence concerning the
                      foster care plan, failed to make any rulings that the foster care plan should be
                      approved, and failed to enter a separate permanency planning order.

                   4. The [circuit] court erred in denying the motion to reconsider and terminating
                      parental rights because the court relied on the stipulations of the parties
                      instead of hearing testimony of the facts of the case, failed to give [father] an
                      opportunity to testify and present evidence and because the father’s stipulation
              to the Department’s proffer was revoked when he exercised his right to the
              revocation of the entrustment agreement.

For the following reasons, this Court affirms the circuit court’s rulings.

                                          I. BACKGROUND

          “When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle

requires us to ‘discard the evidence’ of [father] which conflicts, either directly or inferentially,

with the evidence presented by the [Department] at trial.” Id. (quoting Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence is

as follows.

          Father is the biological father of C.B., who was born on May 16, 2004. Initially, C.B.

was in the custody of his mother, Donna Boatright (“mother”); however, due to mother’s

apparent drug abuse, C.B. was removed from mother and placed with father. During C.B.’s

placement with father, father “was found to be intoxicated with [C.B.] . . . [and] continued

alcohol abuse.” C.B. was removed from father’s custody and placed in foster care in April 2012.

          On April 17, 2012, the Wise County Department of Social Services (“Department”) filed

a petition alleging abuse and neglect. An emergency removal order was entered by the juvenile

and domestic relations district court (“JDR court”) on April 17, 2012. On April 19, 2012, the

JDR court entered a preliminary removal order. On May 15, 2012, the JDR court entered an

adjudicatory order finding abuse and neglect of C.B., as defined in Code § 16.1-228, against

father.

          On June 12, 2012, an initial foster care service plan was filed with the goal of “[r]eturn to

[o]wn [h]ome.” On June 26, 2012, a dispositional hearing was held before the JDR court and the

                                                  -2-
initial foster care service plan was approved. On November 30, 2012, the Department submitted

another foster care plan with the goal of “[r]eturn to [o]wn [h]ome,” which the JDR court

approved and entered on December 18, 2012. Additionally, the JDR court set a permanency

planning hearing for June 19, 2013.

       On June 14, 2013, the Department filed a petition for a permanency hearing with a new

foster care plan and filed a petition for the termination of the parental rights of father and mother.

The new foster care plan changed the goal from “[r]eturn to [o]wn home” to “[a]doption.” At the

request of the Department, the permanency hearing was continued until August 20, 2013.

       On August 20, 2013, the JDR court entered orders for involuntary termination of parental

rights of father and mother, approving the foster care plan with the goal of adoption. Father

appealed the orders to the circuit court on August 20, 2013.1 The circuit court set a hearing date

for January 30, 2013. At the hearing, the Department moved for a continuance because a witness

had recently undergone a medical procedure and was unable to testify. The circuit court

informed the Department that the trial date was “supposed to have been set within 90 days of

perfection of the appeal. And, we’re past that time.” In response to the Department’s motion,

father proposed the Department start presenting its evidence and then “see how we’re doing at

five o’clock, and if they’re not finished, and they’ve not called two witnesses, I wouldn’t be

opposed to let’s pick a date in the next week or two and finish up.” After the circuit court

informed the parties that the next available date was six weeks away, father responded “we’re

ready whether it’s today, whether it’s two weeks, whether it’s two months . . . we don’t

necessarily object to the continuance. If the Department wants to give him more time, he is

willing to work with the Department on more time.” The circuit court ordered that the hearing



       1
           Mother also appealed on August 27, 2013.
                                               -3-
be continued to March 19, 2014. On March 17, 2014, father filed a motion to reverse and

remand the matter to the JDR court due to scheduling defects in violation of Code § 16.1-296(D).

         On March 19, 2013, the matter came before the circuit court. At trial, the Department

stated

                both of the parents have agreed to enter into trust—entrustment
                agreements, which would voluntarily terminate their parental rights
                through an agreement with the potential adoptive parents for
                continuing contact basically with the children. What we’ve agreed
                to do is, I’m going to proffer to the Court what the Department’s
                evidence would be in the event either party would revoke their
                entrustment agreement. There would already be a record of what
                our evidence would be and a stipulation by both – both Mother and
                Father as to what the evidence would be. So, maybe if they were
                to revoke their entrustment agreement, [I] wouldn’t have to bring
                all of these people back that we have here today.

As a condition of the entrustment agreement, both father and mother stipulated to the facts

presented by the Department.2 On March 25, 2014, the circuit court entered an order remanding

the case to the JDR court.

         On March 26, 2014, father exercised his right to revoke the entrustment agreement. A

hearing was set to review the matter before the circuit court on April 9, 2014. At that hearing the

circuit court ruled that father’s residual parental rights would be terminated, based on the

evidence included in the stipulations. Moreover, on April 10, 2014, the circuit court entered an

order rescinding its earlier remand order.

         On April 15, 2014, the circuit court entered a final order for involuntary termination of

father’s parental rights. Father filed a written motion to reconsider on April 15, 2014. After

hearing arguments on April 18, 2014, the circuit court denied father’s motion to reconsider by

order entered on April 28, 2014. This appeal followed.


         2
         Specifically, counsel for father stated “while as difficult as this may be, he wants to put
on the record that he does stipulate that facts are sufficient to terminate . . . .”
                                                 -4-
                                   II. STANDARD OF REVIEW

       “When addressing matters concerning a child, including the termination of a parent’s

residual parental rights, the paramount consideration of a trial court is the child’s best interest.”

Logan v. Fairfax Cnty. Dep’t of Hum. Servs., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).

“‘In matters of a child’s welfare, trial courts are vested with broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,

9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). The circuit court’s judgment will not be

disturbed on appeal unless plainly wrong or without evidence to support it. Id. “A

preponderance-of-the-evidence standard governs judicial review of the foster care plan

recommendations . . . .” Najera v. Chesapeake Div. of Soc. Servs., 48 Va. App. 237, 240, 629

S.E.2d 721, 722 (2006).

                                          III. ANALYSIS

                                         A. Code § 16.1-296(D)

       On appeal, father asserts the circuit court erred in denying the motion to reverse and

remand the case to juvenile court for scheduling defects in violation of Code § 16.1-296(D).

Specifically, father argues this issue presents a case of first impression and the circuit court

misapplied the rules for calculation of review time which are analogous to the criminal speedy

trial rules. The Department responds that father did not demonstrate he suffered prejudice as the

result of the circuit court’s failure to hear the case within 90 days of father’s appeal.

       Code § 16.1-296(D), in pertinent part, provides “When an appeal is taken in a case

involving termination of parental rights brought under § 16.1-283, the circuit court shall hold a

hearing on the merits of the case within 90 days of the perfecting of appeal.” As a threshold

issue, this Court must determine whether the statutory language is mandatory or merely directory

and procedural.
                                                 -5-
       “Where a statute contains ‘prohibitory or limiting language,’ the statute is mandatory, and

a court cannot exercise its subject matter jurisdiction if the requirements of the statute have not

been met.” Marrison v. Fairfax Cnty. Dep’t of Family Servs., 59 Va. App. 61, 68, 717 S.E.2d

146, 149 (2011) (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638-39

(1994)). “In contrast, where a statutory directive is merely directory and procedural, as opposed

to mandatory and jurisdictional, failure to comply with the statutory requirement does not

necessarily divest the court of the power to exercise its subject matter jurisdiction.” Id. at 68,

717 S.E.2d at 149-50 (citing Jamborsky, 247 Va. at 511, 442 S.E.2d at 638-39). Moreover, the

Supreme Court has held “that ‘the use of “shall,” in a statute requiring action by a public official,

is directory and not mandatory unless the statute manifests a contrary intent.’” Id. at 69, 717

S.E.2d at 150 (quoting Jamborsky, 247 Va. at 511, 442 S.E.2d at 638). Furthermore, “the failure

to follow a procedural requirement will not prevent a court from exercising its subject matter

jurisdiction unless a party can show ‘some harm or prejudice caused by the failure’ to follow the

procedural requirement.” Id. at 68-69, 717 S.E.2d at 150 (quoting Carter v. Ancel, 28 Va. App.

76, 79, 502 S.E.2d 149, 151 (1998)).

       Code § 16.1-296(D) requires the circuit court to hear an appeal within 90 days. The

context in which the statute utilizes the directory “shall” language, demonstrates that the

statutory language is procedural and not mandatory. Although not binding upon this Court, an

unpublished opinion persuasively suggests that “Code § 16.1-296(D) ‘is not prohibitive or

limiting, and does not contain any manifestation of contrary intent . . . .’” Daniels v. Culpeper

Cnty. Dep’t of Soc. Servs., No. 1133-13-4, 2013 Va. App. LEXIS 328, at *6 (Va. Ct. App. Nov.

12, 2013) (quoting Marrison, 59 Va. App. at 70, 717 S.E.2d at 150). Accordingly, Code

§ 16.1-296(D) is procedural and will not prevent the circuit court from exercising its subject

matter jurisdiction absent some showing of harm or prejudice.
                                                -6-
       In the current matter, father cannot demonstrate he suffered harm or prejudice after the

circuit court granted the Department’s motion for a continuance on January 30, 2014. At trial,

the circuit court informed the Department that the hearing was “supposed to have been set within

90 days of perfection of the appeal. And, we’re past that time.” Father, however, did not object

to the continuance; instead he suggested that the circuit court “see how we’re doing at five

o’clock, and if they’re not finished, and they’ve not called two witnesses, I wouldn’t be opposed

to let’s pick a date in the next week or two and finish up.” Moreover, when the circuit court

determined that the next available date for trial would be seven months after father’s perfection

of appeal, father nevertheless acquiesced to the continuance. Despite the circuit court’s

reluctance to continue the case, father expressly informed the circuit court that “we don’t

necessarily object to the continuance.”

       Thus, this Court finds no error by the trial court’s decision to grant the Department’s

motion to continue the case until March 19, 2014. Similarly, therefore, the trial court committed

no error in denying the motion to reverse and remand the case to JDR court due to scheduling

defects in violation of Code § 16.1-296(D).

                                          B. Motion to Continue

       Next, father contends the circuit court erred by granting a continuance on January 30,

2014 at the request of the Department and over his objection. Specifically, father argues the trial

court abused its discretion because the continuance allowed the Department to subpoena

additional witnesses and gather additional evidence, which prejudiced father. The Department

argues that father cannot establish he was prejudiced by the continuance.

       On appeal, “a circuit court’s ruling on a motion for a continuance will be disturbed only

if that ruling was plainly erroneous and the circuit court abused its discretion.” Haugen v.

Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 33, 645 S.E.2d 261, 264 (2007) (citing
                                               -7-
Bryant v. Commonwealth, 248 Va. 179, 182, 445 S.E.2d 667, 669 (1994)). Moreover, “‘the

granting or refusal of a continuance is always addressed to the sound discretion of the [circuit]

court, and to entitle a party to a reversal on that ground it must be clearly shown that the court

abused its discretion and that injury resulted to the party complaining from abuse.’”

Rosenberger v. Commonwealth, 159 Va. 953, 957, 166 S.E. 464, 465 (1932) (quoting Virginia

Iron, Coal & Coke Co. v. Kiser, 105 Va. 695, 697, 54 S.E. 889, 889 (1906)). The Supreme Court

has previously determined that

               [t]he circuit court’s ruling on a motion for a continuance will be
               rejected on appeal only upon a showing of abuse of discretion and
               resulting prejudice to the movant. Additionally, in the application
               of these principles, we will be guided by our holding over a
               century ago in Myers v. Trice, 86 Va. 835, 842, 11 S.E. 428, 430
               (1890), that when a circuit court’s refusal to grant a continuance
               “seriously imperil[s] the just determination of the cause,” the
               judgment must be reversed

Haugen, 274 Va. at 34, 645 S.E.2d at 265.

       In the current matter, father argues the prejudice he suffered is clear from the record.

Father contends that he was prejudiced because the Department only subpoenaed two witnesses

to the January 30, 2014 trial but subpoenaed eleven witnesses to court for the March 19, 2014

trial. Father offers no case law in support of this argument. Prejudice is not shown merely by

the number of witnesses under subpoena. Of greater import here, moreover, is the fact that

father failed to clearly object to the Department’s motion for a continuance at the January 30,

2014 trial, stating “we don’t necessarily object to the continuance.” Father acquiesced to the

Department’s motion to continue, thereby foregoing any issue with the circuit court’s

continuance. “This Court has stated that a party may not ‘in the course of the same litigation

occupy inconsistent positions.’” Matthews v. Matthews, 277 Va. 522, 528, 675 S.E.2d 157, 160

(2009) (quoting Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934)). Acquiescence

                                                -8-
to the continuance forecloses an attempt on appeal to claim an abuse of discretion. Accordingly,

father has neither established an abuse of discretion, nor a resulting prejudice.

        Consequently, father has failed to demonstrate the circuit court’s granting of the

Department’s motion to continue ‘“seriously imperil[ed] the just determination of [his] cause.”’

Haugen, 274 Va. at 34, 645 S.E.2d at 265 (quoting Myers, 86 Va. at 842, 11 S.E. at 430).

Accordingly, the circuit court did not abuse its discretion by granting a continuance on

January 30, 2014 at the request of the Department.

                            C. Foster Care Plan & Permanency Planning Order

        Next, father asserts that the circuit court erred in terminating father’s parental rights when

it did not consider any evidence concerning the foster care plan or enter a separate permanency

planning order. Specifically, father argues that the initial approval of the goal change was

annulled by his de novo appeal of the JDR court’s August 20, 2013 order and the circuit court

never addressed the goal change, permanency planning order, or foster care plan on appeal. The

Department contends that the circuit court strictly followed the statutory scheme under

Code §§ 16.1-281 and -283.

        Code § 16.1-283(A) provides “no petition seeking termination for residual parental rights

shall be accepted by the court prior to the filing of a foster care plan, pursuant to § 16.1-281. . . .”

This Court has stressed the importance of following the statutory procedures outlined in Code

§ 16.1-283 by stating “[t]hese procedures must be strictly followed before the courts are

permitted to sever the natural and legal bond between parent and child.” Rader v. Montgomery

Cnty Dep’t of Soc. Servs., 5 Va. App. 523, 526, 365 S.E.2d 234, 236 (1988). Further, only

                after the filing of a foster care plan which documents termination
                of residual parental rights as being in the best interests of the child,
                and after proper notice to the parents and an opportunity to be
                heard, the courts may terminate residual parental rights based on

                                                  -9-
               specified statutory factors, such as abuse, neglect, or failure to
               provide essential needs of the child.

Id. Moreover, “‘it is implicit in the statutory scheme . . . that the natural parent, at subsequent

hearings concerning that child, is entitled to prior and specific notice of the disposition sought by

the agency in whose custody a child has been placed.’” Strong v. Hampton Dep’t of Soc. Servs.,

45 Va. App. 317, 321 610 S.E.2d 873, 875 (2005) (quoting Martin v. Dep’t of Soc. Servs., 3

Va. App. 15, 22, 348 S.E.2d 13, 17 (1986)).

       In the current matter, the record establishes that the circuit court strictly complied with

the statutory procedures relating to the foster care plan under Code § 16.1-281, et. seq.3 The

Department filed the last foster care plan with the JDR court on June 10, 2013 with the program

goal of “[a]doption.” Thereafter, father filed a de novo appeal to the circuit court. Before the

circuit court on March 19, 2014, the Department explained, without objection, the last foster care

plan. By agreement, the Department proffered that in June 2012, “the initial foster care plan was

entered” but both father and mother failed to comply with the requirement that they abstain from

alcohol and drugs and seek specific services to help them with their substance abuse problems.

       The Department then cited several specific instances where father violated the foster care

plan and offered evidence of C.B.’s academic progress since entering foster care. Furthermore,

father conceded that “there has been some alcohol issues that he’s working on” and the “facts are

sufficient to terminate [his parental rights.]” After hearing the evidence, the circuit court entered

an order terminating father’s parental rights. The order provided in part, “[a] foster care plan,

which documents termination of parental rights as being in the best interests of the child, has

been filed pursuant to Virginia Code § 16.1-281 and has been approved by the Court.”



       3
         Code § 16.1-283 does not require that there be a separate foster care order from the
termination order entered by the circuit court, which father appears to argue.
                                                - 10 -
Accordingly, the circuit court committed no error because it followed the express language of

Code §§ 16.1-281 and -283.

                                 D. Entrustment Agreement

        Next, father contends that the circuit court erred when it relied on the stipulation of

counsel in order to terminate parental rights and refused to give father an opportunity to testify or

present evidence. Specifically, father argues that the circuit court should have required the

Department to present evidence and allow him to testify at trial because he exercised his right to

revoke the entrustment agreement. The Department contends that there was not an agreement

between the parties that the stipulations would be revoked upon father’s revocation of the

entrustment agreement.

        Code § 63.2-1223 states “A valid entrustment agreement terminating all parental rights

and responsibilities to the child shall be revocable by either of the birth parents until (i) the child

has reached the age 10 days and (ii) seven days have elapsed from the date of execution of the

agreement.” The Code does not indicate that stipulations made in connection with an

entrustment agreement are revoked in the event that the entrustment agreement is revoked.

Rather, the Supreme Court has held that “if the stipulation was agreed to, there can be no

objection to it.” Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951).

        At trial on March 19, 2014, the parties presented stipulations along with an entrustment

agreement. The Department stated, without objection from father, that

                What we’ve agreed to do is, I’m going to proffer to the Court what
                the Department’s evidence would be in the event either party
                would revoke their entrustment agreement. There would already
                be a record of what our evidence would be and a stipulation . . . .
                So, maybe if they were to revoke their entrustment agreement, [I]
                wouldn’t have to bring all of these people back that we have here
                today.



                                                 - 11 -
Moreover, after the stipulation was entered, father stipulated to additional facts and conceded

that the “facts are sufficient to terminate.” Appellant could have presented additional evidence

or added to the stipulation before the stipulation was entered but elected not to do so.

Consequently, the circuit court did not err in relying on the stipulations in terminating father’s

parental rights.

                                        IV. CONCLUSION

        This Court finds that the circuit court did not err by denying father’s motion to reverse

and remand for scheduling defects in violation of Code § 16.1-296(D). Additionally, this Court

finds that the circuit court did not abuse its discretion in granting the Department’s motion to

continue. Next, this Court finds that the circuit court did not err by failing to consider evidence

concerning an additional foster care plan or enter a separate permanency planning order. Lastly,

this Court finds that the circuit court did not err by relying on the Department’s stipulations in

order to terminate father’s parental rights. Therefore, the rulings of the circuit court are affirmed.

                                                                                           Affirmed.




                                                - 12 -
