                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


CHAD R. SIMONDS
                                                 OPINION BY
v.   Record No. 2404-00-4                JUDGE ROSEMARIE ANNUNZIATA
                                                JULY 24, 2001
FAIRFAX COUNTY DEPARTMENT
 OF FAMILY SERVICES


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        R. Terrence Ney, Judge

          William M. Stanley (Gilbert K. Davis; Davis &
          Stanley, L.L.C., on brief), for appellant.

          Zaida C. Thompson, Assistant County Attorney
          (David P. Bobzien, County Attorney; Robert
          Lyndon Howell, Jr., Deputy County Attorney;
          Dennis R. Bates, Senior Assistant County
          Attorney, on brief), for appellee.


     The appellant, Chad R. Simonds, appeals the denial of his

motion for attorney's fees that were incurred in the course of

proceedings in which a petition for a protective order filed by

the Fairfax County Department of Family Services was

adjudicated.    Simonds contends:   (1) Code § 9-6.14:21 authorizes

the award of attorney's fees in this case; and (2) the circuit

court erred in concluding the Department was substantially

justified in filing its petition for a protective order.

Because we find Code § 9-6.14:21 does not authorize an award of

attorney's fees, we affirm the circuit court's order.
                             BACKGROUND

     On July 22, 1999, the Fairfax County Department of Family

Services filed a petition in the Fairfax Juvenile and Domestic

Relations District Court alleging that M.S., born March 22,

1997, was an abused and/or neglected child pursuant to Code

§ 16.1-241(A)(1), naming her father, Chad Simonds, as

respondent. 1   After a hearing on July 28, 1999, the juvenile

court determined that M.S. should be classified as an abused

and/or neglected child and entered a preliminary protective

order requiring that Simonds's visitation with the child be

supervised and that he fully cooperate with the Department's

investigation of the case.    The juvenile court denied Simonds's

motion for reconsideration and entered a final order on November

18, 1999.    The final order continued the Department's protective

supervision of the child, permitted Simonds to have supervised

visitation, and ordered him to undergo mental health counseling.




     1
         Code § 16.1-241(A)(1) provides:

            [E]ach juvenile and domestic relations
            district court shall have . . . exclusive
            original jurisdiction . . . over all cases,
            matters and proceedings involving [t]he
            custody, visitation, support, control or
            disposition of a child [w]ho is alleged to
            be abused, neglected, in need of services,
            in need of supervision, a status offender,
            or delinquent . . . .


                                - 2 -
     Simonds appealed the order to the circuit court where a

trial de novo was held on June 26-27 and July 19-20, 2000.     By

order entered on August 18, 2000, the circuit court dismissed

the protective order, finding the Department had failed to

establish that M.S. was an abused and/or neglected child.

Thereafter, Simonds filed a motion for the attorney's fees that

he incurred in conjunction with the proceedings.   The circuit

court denied the motion by order dated September 8, 2000.

Although the court found that Code § 9-6.14:21(A) applied, it

denied Simonds's request for attorney's fees.   The court

concluded that, although Simonds prevailed on the merits, the

Department was substantially justified in bringing the action.

It is from this order that Simonds appeals.

     We affirm the trial court's denial of Simonds's motion for

attorney's fees, although we do so on different grounds.

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,

313 (1992) ("An appellate court may affirm the judgment of a

trial court when it has reached the right result for the wrong

reason.").   As explained in this opinion, we find that Code

§ 9-6.14:21(A) does not permit an award of attorney's fees in

this case.




                               - 3 -
                             ANALYSIS

     Simonds concedes that "in the absence of a statute or

contract to the contrary, a court may not award attorney's fees

to the prevailing party."   Prospect Development Co. v.

Bershader, 258 Va. 75, 92, 515 S.E.2d 291, 300 (1999).    His

reliance upon Code § 9-6.14:21 to support an award of attorney's

fees in this case is misplaced, however.

     Code § 9-6.14:21(A) provides:

          In any civil case brought under Article 4
          (§ 9-6.14:15 et seq.) of this chapter and
          § 9-6.14:4.1 in which any person contests
          any agency action, as defined in § 9-6.14:4,
          such person shall be entitled to recover
          from that agency, as defined in the section
          referred to above . . . reasonable costs and
          attorney fees if such person substantially
          prevails on the merits of the case and the
          agency's position is not substantially
          justified, unless special circumstances
          would make an award unjust.

Code § 9-6.14:21(A), which is part of the Administrative Process

Act (APA), does not permit an award for attorney's fees in cases

that do not arise under Article 4, Code § 9-6.14:15 et seq., of

the APA, or if the party from whom attorney's fees are sought is

not an agency as defined in Code § 9-6.14:4.

     The case before us did not arise under Article 4, Code

§ 9-6.14:15 et seq. of the APA.   The Simonds matter arose by

original petition filed by the Fairfax County Department of

Family Services in the juvenile court pursuant to Code




                               - 4 -
§ 16.1-241(A)(1), alleging M.S. was an abused and/or neglected

child.    Furthermore, Code § 9-6.14:15(v) explicitly states that

Article 4 "does not apply to any agency action which . . .

encompasses matters subject by law to a trial de novo in any

court."   After the juvenile court found M.S. was an abused

and/or neglected child within the meaning of Code § 16.1-228,

Simonds appealed the juvenile court's finding and decision to

issue a protective order against Simonds to the circuit court

pursuant to Code § 16.1-296, where the circuit court conducted a

trial de novo of the allegations.

     Furthermore, the Department is not an agency as defined

under Code § 9-6.14:4. 2   It is a unit of the Fairfax County

Government, and counties are explicitly exempted from the

provisions of the APA under Code § 9-6.14:4.1(A)(5).    See Code

§ 63.1-248:2 (which defines the local department of social

services as the department of the county or city); see also

Schwartz v. Highland County School Board, 2 Va. App. 554, 556,

346 S.E.2d 544, 545 (1986) (holding that a school board is a

unit of county government, rather than state government, and is,

therefore, not an "agency" under the APA).




     2
       The APA defines "agency" as "any authority,
instrumentality, officer, board or other unit of the state
government empowered by the basic laws to make regulations or
decide cases." Code § 9-6.14:4.


                                - 5 -
     We accordingly find that this case does not come within the

ambit of the APA and affirm the trial court's denial of

attorney's fees. 3

                                                  Affirmed.




     3
       We deny the Department's motion to dismiss Simonds's
appeal for lack of subject matter jurisdiction. The
Department's motion is grounded on the fact that a separate
action involving Simonds and his alleged abuse of M.S. is
currently before the Virginia Department of Social Services.
However, the present appeal involves a separate action and
Simonds's request for attorney's fees is limited to the
proceeding under Code § 16.1-241(A)(1). Furthermore, as the
matter before the Virginia Department of Social Services is
still pending and is not presently before us, this opinion does
not address whether Simonds would be entitled to recover
attorney's fees in that proceeding.

                              - 6 -
