                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia


FREDERICKSBURG DEPARTMENT
 OF SOCIAL SERVICES

v.   Record No. 1952-99-2

CLYDE BROWN AND JOYCE WILLIAMS

JOYCE WILLIAMS
                                           OPINION BY
v.   Record No. 1969-99-2          JUDGE ROSEMARIE ANNUNZIATA
                                         AUGUST 29, 2000
FREDERICKSBURG DEPARTMENT
 OF SOCIAL SERVICES

CLYDE BROWN

v.   Record No. 2008-99-2

FREDERICKSBURG DEPARTMENT
 OF SOCIAL SERVICES


      FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

          Timothy W. Barbrow (Joseph A. Vance, IV;
          Joseph A. Vance, IV & Associates, on briefs),
          for Fredericksburg Department of Social
          Services.

          David H. Beck for Joyce Williams.

          Robert J. Barlow for Clyde Brown.


     The issues in these consolidated appeals arise from a

decision of the Circuit Court of the City of Fredericksburg

denying a petition filed by the Fredericksburg Department of

Social Services District ("DSS") to terminate the parental rights

of Clyde Brown ("father") and Joyce Williams ("mother"), parents
of four minor children.   DSS's petition was denied on the ground

that Code § 16.1-266(C) required the appointment of counsel for

the parents prior to the hearing held in the Fredericksburg

Juvenile and Domestic Relations District ("J&DR") Court in which

the J&DR court approved entrustment agreements transferring legal

custody from the children's maternal aunt, Nancy Conway ("aunt"),

to DSS.   DSS appeals this decision.     The parents appeal the

circuit court's finding that the entrustment agreements, entered

into solely by aunt, were valid, as well as the court's placement

of custody in DSS at the conclusion of the de novo appeal.        For

the reasons that follow, we affirm, in part, and reverse, in

part, the circuit court's decision.

                                 FACTS

     On appeal, we review the facts in the light most favorable

to the party prevailing below.     See Farley v. Farley, 9 Va. App.

326, 328, 387 S.E.2d 794, 795 (1990).     On March 24, 1998,

emergency removal petitions were filed by DSS against mother for

the removal of her four children on the ground that they were

abused and neglected.   The whereabouts of the father were unknown

at that time.   For reasons unspecified in court documents, the

J&DR court denied the petitions and relieved appointed counsel

for the mother and father.   However, in a separate order, the

court concomitantly placed temporary legal custody in the aunt,




                                 - 2 -
physical custody in the mother, and issued a preliminary

protective order against the mother, ordering her to refrain from

abusive actions and to comply with all DSS requests and service

plans.

     On April 29, 1998, the aunt, as the children's legal

custodian, signed four entrustment agreements, one for each

child, entrusting the children to DSS.    The agreements

transferred legal custody to DSS, thus allowing it to remove the

children from the mother's physical custody and place them in

foster care; the agreements did not provide for the termination

of parental rights or for a specific date for return of the

children to their mother. 1   On June 16, 1998, the agreements were

approved by the J&DR court, upon DSS's petition, at a hearing at

which mother and father were present but not represented, as

counsel had not been appointed for them. 2   DSS also sought and


     1
       At this time and thereafter in the proceedings, the father
was incarcerated.
     2
         Prior to the 1999 amendments, Code § 63.1-56 provided:

            Whenever a local board accepts custody of a
            child pursuant to a temporary entrustment
            agreement entered into under the authority of
            this section, except when the entrustment
            agreement between the parent or parents and
            the local department provides for the
            termination of all parental rights and
            responsibilities with respect to the child,
            such local board shall petition the juvenile
            and domestic relations district court of the
            city or county for approval of such agreement
            within a reasonable time, not to exceed
            thirty days, after it execution; however,
            such petition shall not be required when the
            agreement stipulates in writing that the

                                - 3 -
received approval of initial sixty-day foster care service plans

with a goal of "return to parent," and an initial permanency

planning hearing was set for hearing. 3   The mother and father did

not object to the order of June 16, 1998, approving the

entrustment agreements, nor did they appeal it to the circuit

court.

     On November 16, 1998, DSS petitioned for a foster care

review hearing because the mother was not in compliance with the

DSS service plan and was, therefore, in violation the J&DR

court's order.    In the petition, DSS did not ask the court to

alter the previously approved service plan; rather, it reiterated

the need for the children to stay in foster care until the mother




            temporary entrustment shall be for less than
            ninety days and the child is returned to his
            home within that period.
     3
         Code § 16.1-282(E) provides:

            The court shall schedule a permanency
            planning hearing on the case to be held five
            months thereafter in accordance with
            § 16.1-282.1, except in the case of a child
            placed in permanent foster care after a
            hearing held pursuant to § 63.1-206.1, or
            within 30 days upon the petition of any party
            entitled to notice in the proceedings under
            this section when the judge determines there
            is good cause shown for such hearing.


                                - 4 -
complied with the J&DR court's orders.   On December 3, 1998, the

court again approved the original service plan, this time over

the objection of counsel for the mother. 4

     On March 26, 1999, DSS petitioned the J&DR court, filing new

foster care plans together with petitions for permanent placement

and petitions for termination of parental rights. 5   The foster


     4
       The grounds for the objection were not noted in the
record.
     5
         Code § 16.1-283(C) provides:

            The residual parental rights of a parent or
            parents of a child placed in foster care as a
            result of court commitment, an entrustment
            agreement entered into by the parent or
            parents or other voluntary relinquishment by
            the parent or parents may be terminated if
            the court finds, based upon clear and
            convincing evidence, that it is in the best
            interests of the child and that:

            1. The parent or parents have, without good
            cause, failed to maintain continuing contact
            with and to provide or substantially plan for
            the future of the child for a period of six
            months after the child's placement in foster
            care notwithstanding the reasonable and
            appropriate efforts of social, medical,
            mental health or other rehabilitative
            agencies to communicate with the parent or
            parents and to strengthen the parent-child
            relationship. Proof that the parent or
            parents have failed without good cause to
            communicate on a continuing and planned basis
            with the child for a period of six months
            shall constitute prima facie evidence of this
            condition; or

            2. The parent or parents, without good
            cause, have been unwilling or unable within a
            reasonable period of time not to exceed
            twelve months from the date the child was
            placed in foster care to remedy substantially
            the conditions which led to or required

                                - 5 -
care goal was changed from "return to home" to adoption because,

in addition to mother's failure to complete mandatory parenting

classes, she became pregnant, thereby violating DSS's

court-approved mandate that she use effective family planning.

The parents were each appointed separate counsel to represent

them in the termination proceedings.   On April 22, 1999, the J&DR

court granted involuntary termination petitions, which were

subsequently appealed to the circuit court.

     After argument by counsel for all parties, the circuit court

found that the parents should have been appointed counsel at the

J&DR court hearing which resulted in its approval of the

entrustment agreements.   On that ground, it ruled that the

foundation for the termination proceedings was defective under

the provisions of Code § 16.1-283(C), and denied the DSS's motion


          continuation of the child's foster care
          placement, notwithstanding the reasonable and
          appropriate efforts of social, medical,
          mental health or other rehabilitative
          agencies to such end. Proof that the parent
          or parents, without good cause, have failed
          or been unable to make substantial progress
          towards elimination of the conditions which
          led to or required continuation of the
          child's foster care placement in accordance
          with their obligations under and within the
          time limits or goals set forth in a foster
          care plan filed with the court or any other
          plan jointly designed and agreed to by the
          parent or parents and a public or private
          social, medical, mental health or other
          rehabilitative agency shall constitute prima
          facie evidence of this condition. The court
          shall take into consideration the prior
          efforts of such agencies to rehabilitate the
          parent or parents prior to the placement of
          the child in foster care.

                               - 6 -
to terminate parental rights.    It granted custody of the children

to DSS at the conclusion of the proceeding.

                               ANALYSIS

     The issues raised here present mixed questions of law and

fact which we review de novo.    See Fairfax County School Board v.

Rose, 29 Va. App. 32, 37, 509 S.E.2d 525, 527 (1999) (en banc).

The resolution of this case rests upon three issues:     1) whether

the parents could challenge the approval of the entrustment

agreements at the circuit court hearing; 2) whether the

entrustment agreements entered into solely by aunt were valid;

and 3) whether the circuit court could place the children with

DSS without terminating the parents' residual parental rights.

   WAIVER OF PARENTS' CHALLENGE TO THE ENTRUSTMENT AGREEMENTS

     DSS contends that the parents' challenge at the termination

hearing to the J&DR orders approving the entrustment agreements

was waived because the orders were entered as agreed orders with

no objection noted to their entry, and because their entry was

not appealed to the circuit court.      We disagree on the ground

that entry of valid entrustment agreements was a mandatory

jurisdictional requirement which had to be met before the court

in this case could exercise its jurisdiction to adjudicate the

petition filed by DSS to terminate parental rights.     As such, the

question of their validity is an issue that cannot be waived.

     "The term 'subject matter jurisdiction' refers to the power

granted to the courts by constitution or statute to hear

specified classes of cases."    Dennis Moore v. Commonwealth, 259

                                - 7 -
Va. 405, 409, 527 S.E.2d 415, 417 (2000).   The Supreme Court has

distinguished this constitutionally or statutorily granted power

from "[a] court's authority to exercise its subject matter

jurisdiction over a case," which "may be restricted by a failure

to comply with statutory requirements that are mandatory in

nature and, thus, are prerequisite to a court's lawful exercise

of [its] jurisdiction."   Id.   A challenge to a court's exercise

of its subject matter jurisdiction in a given case is not

waivable if the statutory requirements violated by the court are

mandatory in nature, but is waivable if the statutory

requirements in question are merely procedural.    See Avery v.

Virginia Retirement System, ___ Va. App. ___, ___ S.E.2d ___

(2000) (en banc); Karim v. Commonwealth, 22 Va. App. 767, 775,

473 S.E.2d 103, 106 (1996) (en banc) ("An important consideration

in interpreting the meaning of a statute is whether it is

mandatory and jurisdictional or directory and procedural."); see

also Dennis Moore, 259 Va. at 409, 527 S.E.2d at 417 (where the




                                - 8 -
exercise of subject matter jurisdiction is made dependant on

compliance with certain explicit statutory requirements, the

court has no power to adjudicate the cause when those

requirements are not satisfied).    "A mandatory provision in a

statute is one that connotes a command and the omission of which

renders the proceeding to which it relates illegal and void,

while a directory provision is one the observance of which is not

necessary to the validity of the proceeding . . . ."    Karim, 22

Va. App. at 775, 473 S.E.2d at 106-07 (internal quotation

omitted).

     We find that the court's exercise of subject matter

jurisdiction was restricted by statutory prerequisites which are

mandatory in nature, see Dennis Moore, 259 Va. at 409, 527 S.E.2d

at 417, and that any challenge on that ground was therefore not

waivable and may be raised at any time.    See Avery, ___ Va. App.

___, ___ S.E.2d ___.    Code § 16.1-241(A)(4) grants jurisdiction

to J&DR courts in matters concerning the custody of children who

are "the subject of an entrustment agreement entered into

pursuant to § 63.1-56 . . . ." (emphasis added). 6   By the plain



     6
         The statute provides, in pertinent part:

            [E]ach juvenile and domestic relations
            district court shall have, within the limits
            of the territory for which it is created,
            exclusive original jurisdiction . . . over
            all cases, matters and proceedings involving:
            The custody, visitation, support, control or
            disposition of a child: . . . Who is the
            subject of an entrustment agreement entered
            into pursuant to § 63.1-56 or § 63.1-204 or

                                - 9 -
language of this statutory provision, a valid and effective

entrustment agreement which meets the requirements set forth in

Code § 63.1-56 must be executed before the court may adjudicate a

petition for the termination of parental rights.

     Because the jurisdiction of the circuit court to hear and

decide the issues raised in DSS's petition to terminate parental

rights is wholly derivative of that of the J&DR court, its power

to adjudicate DSS's petition is coincident with that of the lower

court.   See Fairfax County Dept. of Family Serv's v. D. N., 29

Va. App. 400, 405, 512 S.E.2d 830, 832 (1999).   We hold that the

parents did not waive their challenge to the validity of those

agreements when the termination issue was tried de novo in the

circuit court, because the question of whether requirements of

Code § 16.1-241(A)(4) were met, and particularly whether the

children before the court on the DSS petition to terminate

appellants' parental rights were the subjects of a valid

entrustment agreement, is jurisdictional in nature.   See Avery,

___ Va. App. ___, ___ S.E.2d ___ (a challenge to a court's

exercise of its subject matter jurisdiction in a given case is

not waivable if the statutory requirements violated by the court

are mandatory in nature).   Furthermore, because the exercise of

subject matter jurisdiction could not be waived by the parties in

this case, we hold that the validity of the entrustment


           whose parent or parents for good cause desire
           to be relieved of his care and custody.

Code § 16.1-241(A)(4) (emphasis added).

                              - 10 -
agreements was properly before the circuit court even assuming

the parents had entered an agreed order approving the execution

of the challenged agreements.

               VALIDITY OF THE ENTRUSTMENT AGREEMENTS

     The parents contend the entrustment agreements which the

aunt executed were invalid, noting that 1) although she had legal

custody of the children, physical custody was placed with the

mother; and 2) neither parent signed the entrustment agreements.

In addressing this issue, the circuit court found that the

hearing at which the J&DR court approved the entrustment

agreements constituted the "commencement of a case" in which the

parents could be subjected to the loss of residual parental

rights and responsibilities and, as such, the parents were

entitled to counsel pursuant to Code § 16.1-266(C). 7   Because the



     7
         Code § 16.1-266(C) provides:

            Prior to the hearing by the court of any case
            involving a parent, guardian or other adult
            charged with abuse or neglect of a child or a
            parent or guardian who could be subjected to
            the loss of residual parental rights and
            responsibilities, such parent, guardian or
            other adult shall be informed by a judge,
            clerk, or probation officer of his right to
            counsel and be given an opportunity to:

            1. Obtain and employ counsel of the
            parent's, guardian's or other adult's own
            choice; or

            2. If the court determines that the parent,
            guardian or other adult is indigent with the
            contemplation of the law pursuant to the
            guidelines set forth in § 19.2-159, a
            statement substantially in the form provided

                                - 11 -
parents were not represented at this hearing, the circuit court

held that the entrustment agreements were invalid and denied the

petition to terminate parental rights.

     While we affirm the court's denial of the petition to

terminate parental rights, we do so on different grounds.    We

hold that the court erred in finding, under the facts of this

case, that counsel for the parents was required at the time of

the hearing in which the entrustment agreements were signed by

the aunt and approved by the J&DR court, because neither parent

"could be subjected to the loss of residual rights and

responsibilities" at the time of that hearing.   See Code

§ 16.1-266(C).   The foster care plan concomitantly submitted by

DSS for approval stated as its goal "return to home," not

termination of parents rights and responsibilities.   Indeed, no

petition for termination of parental rights was either filed or

pending at that time.   In the absence of such a petition, the

parents' residual parental rights could not be terminated.    See

Code § 16.1-283 (setting out the requirements for termination of

residual parental rights); Stanley v. Dept. of Soc'l Serv's, 10

Va. App. 596, 601-02, 395 S.E.2d 199, 202 (1990) ("[b]efore the

residual parental rights of an individual may be terminated, a


          by § 19.2-159 and a financial statement shall
          be executed by such parent, guardian or other
          adult and the court shall appoint an
          attorney-at-law to represent him; or

          3. Waive the right to representation by an
          attorney in accordance with the provisions of
          § 19.2-160.

                              - 12 -
separate proceeding must be conducted upon the filing of a

petition specifically requesting such relief (emphasis added)),

aff'd, 242 Va. 60, 405 S.E.2d 621 (1991).    Appellants' parental

rights were placed at risk only after the hearing.    The later

petition to terminate those rights was based on appellants'

subsequent conduct.   In sum, the loss of their parental rights at

the hearing in which the entrustment agreements were signed and

presented to the court for approval was neither anticipated nor

possible.

     Despite the erroneous reasoning of the court, we may affirm

its decision "when it has reached the right result for the wrong

reason."    Twardy v. Twardy, 14 Va. App. 651, 657, 419 S.E.2d 848,

851 (1992).   Code § 63.1-56 requires that an entrustment

agreement be entered by either a "parent" or a "guardian."    The

aunt is clearly not the former, and under Virginia law she cannot

be found to enjoy the legal status of the latter.     See In Re

O'Neil, 18 Va. App. 674, 679, 446 S.E.2d 475, 479 (1994) (in

adjudicating legal custodians' petition to be appointed guardians

of a child, while "[t]he term 'guardian,' is not defined by any

statute in this Commonwealth, nor does any statute or court

decision in this Commonwealth adequately distinguish guardianship

and custody . . . it is certain that there is a distinction

between the two" (emphasis added)).     Furthermore, the distinction

between the two terms is maintained in various sections of the

Code where "legal custodian" and "guardian" are referred to

separately.    See, e.g., Code § 16.1-228 (defining an abused or

                               - 13 -
neglected child, in part, as one who is without care due to the

unreasonable absence of a "parent, guardian, legal custodian or

other person").     See also, e.g., Code § 16.1-227(3); Code

§ 16.1-241.2(C); Code § 16.1-247(A); Code § 16.1-250(C); Code

§ 16.1-250.1.    "[W]e . . . assume that the legislature chose,

with care, the words it used when it enacted the relevant statute

and we are bound by those words as we interpret the statute."

City of Virginia Beach v. ESG Enterprises, Inc., 243 Va. 149,

153, 413 S.E.2d 642, 644 (1992) (citation omitted).

     Based on the plain language of Code § 63.1-56, we hold that

the aunt did not have authority to enter into an entrustment

agreement with DSS and that the agreements at bar are invalid and

ineffective.    For this reason, we find the circuit court did not

err in finding the entrustment agreements to be invalidly

executed.

                CIRCUIT COURT'S GRANT OF CUSTODY TO DSS

     The parents contend the circuit court erred in granting

custody of the children to DSS upon denying DSS's petition to

terminate their parental rights.    We agree.

     At the time of the hearing in question, DSS had custody

pursuant to the entrustment agreements signed by the aunt.

Because the agreements were invalid, DSS's custody of the

children could not be established by those agreements, and the

court could not simply reinstate custody in DSS based on them.

     Furthermore, DSS has identified no statutory provision, and

we have found none, that arguably grants authority to the circuit

                                - 14 -
court to place custody of the children in DSS upon its denial of

the petition to terminate parental rights under the facts of this

case.   The circuit court's authority, coincident with that of the

J&DR court, to grant legal custody of minor children to local

boards of social services is specifically and expressly granted

under limited circumstances, none of which is applicable here.

See, e.g., Code § 16.1-277.01 (allowing transfer of custody

pursuant to the approval of an entrustment agreement); Code

§ 16.1-277.02 (allowing court to place custody in a department of

social services pursuant to a petition for relief of care and

custody); Code § 16.1-278.2 (defining procedures by which court

can transfer custody of abused, neglected or abandoned children

or children without parental care); Code § 16.1-278.3 (defining

procedures for granting custody to DSS pursuant to petition for

relief of care and custody of child); Code § 16.1-278.4

(elaborating on circumstances under which legal custody of

children in need of services can be transferred); Code

§ 16.1-278.5 (defining circumstances under which DSS can assume

legal custody of children in need of supervision); Code

§ 16.1-283 (describing circumstances under which termination of

residual parental rights can occur).   We accordingly find the

court erred in placing custody in DSS upon its denial of DSS's

petition to terminate parental rights.   Pursuant to the J&DR

court's order of March 24, 1998, the only remaining effective

order in this case entered by a court with proper jurisdiction to



                              - 15 -
adjudge the issue, legal custody of the children resides in the

aunt and physical custody in the mother.

     For the reasons stated herein, we affirm, in part, and

reverse, in part, the decision of the circuit court, and remand

the case to the circuit court with instructions to remand to the

J&DR court for further proceedings consistent with this opinion.

                                           Affirmed, in part,
                                           and reversed, in part.




                             - 16 -
