Lynchburg Division of Social Services v. Cook

648 S.E.2d 328, 50 Va. App. 218, 2007 Va. App. LEXIS 299

Opinions

ELDER, J.,

with whom BENTON and HALEY, JJ., join, concurring.

I concur in the result reached by the majority. However, I write separately to articulate my understanding of the interplay between the findings required for placement of a child with a non-parent “party” or “person with a legitimate interest” pursuant to the more general child custody statutes, see Code §§ 16.1-241(A)(3), 16.1-278.15, 20-124.2, 20-124.3, and the findings required for placement of a child with a foster care parent pursuant to the abuse and neglect statutes, see Code §§ 16.1-281 to -282.1.

In my view, the criteria in Code §§ 20-124.2 and 20-124.3 for determining what is in the best interests of the child set out the overarching standard to be applied in any case involving a custody determination, but all best interests determinations are made in the context in which they arise. Neither Code § 16.1-282(D1) nor Code § 20-124.2 is intended to provide an all-inclusive list of factors to be considered in making the “best interests” determination. See Code § 20-124.3(10) (providing “the court shall consider,” inter alia, certain factors enumerated (1) to (9) and “such other factors as the court deems necessary and proper to the determination”).

The standard for approving a foster care placement set out in Code § 16.1-282(D) expressly requires compliance with the “best interests of the child” test and specifically incorporates the criteria of Code § 16.1-282(D1), which, although not specifically listed in Code §§ 20-124.2 or 20-124.3, are 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

(i) is ... 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....

Id. Further, Code § 20-124.2 expressly provides that, in the case of an award of custody to a non-parent, the best interest finding must be made by clear and convincing evidence rather than by a mere preponderance, as is required by Code § 16.1-282(D1) for the above four specific criteria.

Thus, here, the court’s award of custody included an implicit finding, by clear and convincing evidence, that the Cooks were “willing and qualified to receive and care for the child; ... willing to have a positive, continuous relationship with the child; ... committed to providing a permanent, suitable home for the child; and ... willing and ... [able] to protect the child from abuse and neglect,” as set out in Code § 16.1-282(D1). The court was not bound by the requirement of Code § 16.1-282(D1) to set out any subsidiary findings in its order because it proceeded under Code §§ 20-124.2 and 20-124.8 instead.