COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Raphael UNPUBLISHED
MICKEY WILSON MEMORANDUM OPINION* BY v. Record No. 0986-21-3 JUDGE MARY GRACE O’BRIEN MAY 10, 2022 RUSSELL COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF RUSSELL COUNTY Michael Lee Moore, Judge
(David R. Tiller; Tiller & Tiller, P.C., on brief), for appellant. Appellant submitting on brief.
(M. Katherine Patton; F. Bradley Pyott, Guardian ad litem for the minor child; Gillespie, Hart, Altizer & Whitesell, P.C., on brief), for appellee. Appellee and Guardian ad litem submitting on brief.1
Mickey Wilson (“father”) appeals a circuit court order terminating his parental rights under
Code § 16.1-283(C)(2) and approving a foster care goal of adoption. He argues the court lacked
subject matter jurisdiction to enter the termination order and, alternatively, erred by finding
sufficient evidence to terminate his parental rights.
BACKGROUND
J.W.,2 born April 12, 2019, is the child of father and Alyssa Franks (“mother”). In May
2019, the Russell County Department of Social Services obtained a protective order for J.W.
because mother was undergoing inpatient mental health treatment and father could not provide a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Pursuant to Rule 5A:19(d), the guardian ad litem filed a notice joining with appellee and relying on its brief. 2 To protect the child’s privacy, we use initials rather than the name. suitable home. At first, father and J.W. lived with father’s mother in a home DSS described as
“extremely cluttered as if ‘hoarders’ lived there.” J.W. then resided with a paternal uncle; however,
the uncle did not want to become a DSS-approved foster care provider, and father no longer wanted
J.W. to live with relatives.
On June 17, 2019, the juvenile and domestic relations district court (“JDR court”) ruled that
J.W. was abused or neglected. The JDR court transferred custody to DSS because “[c]ontinued
placement in the home would be contrary to the welfare of the child” and “[r]easonable efforts ha[d]
been made . . . to prevent removal of the child from the home.” The order noted that these findings
were “[b]y agreement of all parties” and granted father supervised visitation.
In August 2019, when she was approximately four months old, J.W. was placed in the foster
home where she remains today.
DSS provided services to both parents, including parenting classes and mentoring, mental
health services, and visitation assistance. Father rented an apartment and started preparing for
J.W.’s return. A DSS social worker visited the home and found that, although father was “making
progress with services,” the apartment’s condition had deteriorated, he had never set up a crib, and
his cluttered vehicle could not accommodate a car seat.
In March 2020, father moved into a mobile home with mother, who had been released from
the mental health facility. Father testified that they moved to have more room and privacy, and he
believed the mobile home was safer for J.W.
A social worker visited the mobile home and identified multiple safety hazards that “pose[d]
a risk of harm to the child.” Repairs were needed for the siding, ceilings, and exposed electrical and
plumbing components. An extension cord was running through a broken window in the bedroom
the parents had designated for J.W.
-2- When the social worker returned in August 2020, the necessary repairs had not all been
made, and the “same pattern of extensive clutter” from the prior living situations had expanded into
the “home, yard, and carport.” The social worker spoke to father about cleaning up the premises
and installing child safety devices.
The social worker and her supervisor returned in October 2020, again finding the mobile
home, yard, and carport cluttered. None of the child safety devices had been installed in the
residence. Although father had made some initial repairs, the residence still contained “multiple
safety hazards for the child,” including weak flooring, exposed nails, and the broken window in
J.W.’s designated room. Father advised the supervisor that he did not intend to fix the window.
Father had also purchased an old motor home that was parked in the yard and in disrepair.
Another social worker visited in July 2021. Father did not let her inside, so she returned a
week later. Although father had made some repairs to the home, the social worker still observed
several safety hazards. There were holes in the wall, and the extension cord was still running
through the broken window in J.W.’s room. She observed a gun on the couch and a crossbow and
knife in the yard. The carport had “[c]ords, wiring, tools, and nuts and bolts . . . scattered
everywhere,” and a “disassembled engine [was] scattered all over.”
At trial, father explained that he could have cleaned his car and residence “in five minutes”
if J.W. was coming home. He described the mobile home as a “fixer-upper,” and although he
acknowledged that it needed “multiple repairs to be suitable and safe” for a child, he “felt like he
was making progress in getting things fixed to [DSS’s] satisfaction.” Father also admitted hiding in
the woods when the child’s guardian ad litem visited in October 2020; the guardian knocked on the
door and took pictures of the property, and father threatened to bring criminal charges for trespass.
Father testified that he did not let the social worker into his home in July 2021 because he “had a
female companion inside the home and they had been drinking moonshine.” -3- Father maintained consistent visitation with J.W. Beginning in March 2020, and for
approximately another four months, visitation was virtual due to the COVID-19 pandemic.
However, all visits were in person in the eight months before March 2020 and in the four months
leading up to the termination of parental rights. By agreement of all parties, J.W.’s foster mother
attended the visitations to help J.W. adjust. The foster mother brought a diaper bag and necessities,
sometimes fed the child, and testified that the parents never offered to help. Father testified that the
“virtual visits did not work well because of [J.W.’s] age and attention,” and the in-person visits were
not long or frequent enough to facilitate parent-child bonding. Father also stated that he was “less
interactive with [J.W.]” during visitation because he wanted to give mother the chance to make up
for lost time; he also thought the foster mother’s presence interfered.
The JDR court approved interim foster care service plans in August 2019 and in October,
March, and August 2020. Initially, the goal was for J.W. to return home. At the August 2020
hearing, the court advised the parents “to have everything completed and in order by next court date
or the goal would have to be changed.” A hearing was set for December 7, 2020.
On November 2, 2020, DSS petitioned for a permanency planning hearing and identified a
new permanent goal of “relative placement/adoption.” DSS specifically stated that it was not
seeking termination of parental rights at that time because “the filing of such a petition is not in the
best interest of the child.”
DSS filed an updated foster care service plan on November 9, 2020, reflecting concurrent
goals of relative placement and adoption. In its filing, DSS emphasized that it had not found a
suitable relative placement for J.W. and the foster parents were interested in adopting the child. The
December 7, 2020 hearing was continued to January 14, 2021.
On January 14, the JDR court “reviewed the foster care plan with the permanent goal of
adoption” and entered a permanency planning order finding that “[t]ermination of parental rights -4- [was] documented as being in the best interest of the child.” The JDR court ordered DSS to “file
petitions to terminate parental rights pursuant to [Code] § 16.1-277.01 or 16.1-283.” Code
§ 16.1-277.01(D) authorizes a court to terminate parental rights based on a “petition seek[ing]
approval of a permanent entrustment agreement which provides for the termination of all parental
rights,” and Code § 16.1-283 authorizes the involuntary termination of parental rights.
On January 21, 2021, DSS filed a petition requesting that the JDR court “approve an
entrustment agreement for permanent surrender of the child.” DSS did not file a petition for
involuntary termination of parental rights pursuant to Code § 16.1-283.
The JDR court conducted a hearing on March 1, 2021. An order from that day states that
“the petition for termination of the father’s residual parental rights is granted.” Accordingly, the
JDR court terminated father’s parental rights under Code § 16.1-283(C)(2) and authorized adoption.
The court also terminated mother’s parental rights, and she did not appeal.
Father appealed to the circuit court, which held a de novo trial on July 26, 2021. The final
order states that the parties “appeared . . . on the petition for termination of residual parental rights
. . . and the petition for approval of the permanency plan entered [sic] by the [JDR court] on March
1, 2021.”
The final order also reflects the court’s factual findings from the trial, including that J.W.
entered DSS custody in June 2019 when mother was involuntarily hospitalized due to mental
instability and “with the consent and agreement of [father] given the unsuitable living conditions of
his mother’s home where he had been residing with the child.”
The court found that DSS provided services and visitation, including parenting classes and
psychological evaluations, in which father participated. Having reviewed video from the visitation,
the court found a “lack of bond between the child and the parents” and a “lack of actual
participation by the father with the child during visitation.” Additionally, the photographs from -5- father’s three residences during the pendency of the case (the paternal grandmother’s home, father’s
apartment, and the mobile home) depicted the conditions that led to the child first coming to DSS
custody and continued to serve as the basis for the child’s remaining in foster care. The court
acknowledged that father made some improvements requested by DSS and the guardian ad litem,
but he “did not maintain or repair any residence to allow DSS to even allow the child to have
overnight unsupervised visitation.” The court ruled that father did not provide a valid reason for not
obtaining and maintaining suitable housing within the twelve months of the child entering foster
care. The court noted that mother did not appeal the termination of her parental rights, that DSS
found no suitable or willing relatives to take J.W., and that removing the child from her current
foster home—where she had lived now for two years—would be detrimental to her well-being.
Based on these findings, the court concluded that father
without good cause, failed to or was unable to make substantial progress toward elimination of the unsafe and unsuitable living conditions which led to and required continuation of [J.W.]’s placement in foster care, and further failed to meet his obligations under and within the time limits and goals set forth in [J.W.]’s foster care service plan.
It further concluded that father had not made substantial progress “within a reasonable period of
time not to exceed [twelve] months,” despite the reasonable efforts of social services, and that
termination of parental rights was in J.W.’s best interests. Accordingly, the court terminated
father’s parental rights under Code § 16.1-283(C)(2).
-6- DISCUSSION
A. Jurisdiction
Father argues that the circuit court3 lacked subject matter jurisdiction to terminate his
parental rights because DSS filed a petition for approval of an entrustment agreement seeking
permanent surrender of the child, instead of a petition for termination of parental rights. Father
concedes that he did not present this argument at trial but contends that a lack of subject matter
jurisdiction can be raised at any point during proceedings, including for the first time on appeal.
The court’s exercise of jurisdiction raises a question of law that we review de novo. See
Gray v. Binder, 294 Va. 268, 275 (2017); Riddick v. Commonwealth, 72 Va. App. 132, 139 (2020).
Subject matter jurisdiction is “the power granted by the sovereignty creating the court to
hear and determine controversies of a given character.” Bd. of Supervisors v. Bd. of Zoning
Appeals, 271 Va. 336, 344 n.2 (2006) (quoting Farant Inv. Corp. v. Francis, 138 Va. 417, 427
(1924)). The Supreme Court has explained that “subject matter jurisdiction, perhaps best
understood as the ‘potential’ jurisdiction of a court, . . . becomes ‘active’ jurisdiction . . . only when
various elements are present,” including subject matter jurisdiction, territorial jurisdiction, notice
jurisdiction, “‘and the other conditions of fact [that] must exist which are demanded by the
unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or
decree.’” Ghameshlouy v. Commonwealth, 279 Va. 379, 388-89 (2010) (quoting Bd. of
Supervisors, 271 Va. at 343-44 & n.2).
3 Although this Court reviews the decision of the circuit court, the ultimate issue is whether the JDR court had jurisdiction to terminate father’s parental rights because the circuit court’s jurisdiction in this matter derives wholly from the JDR court. See Parrish v. Fed. Nat’l Mortg. Ass’n, 292 Va. 44, 49 (2016) (“[W]hen exercising its de novo appellate jurisdiction, the circuit court has no more subject matter jurisdiction than the [JDR court] had in that court’s original proceeding.”). -7- “[P]arties cannot waive the absence of subject matter jurisdiction or confer it upon a court
by their consent.” Cilwa v. Commonwealth, 298 Va. 259, 266 (2019). Any jurisdictional
requirement other than subject matter jurisdiction, however, may be waived. See Nelson v. Warden
of the Keen Mountain Corr. Ctr., 262 Va. 276, 284-85 (2001); see also Porter v. Commonwealth,
276 Va. 203, 228-29 (2008).
To determine whether father’s jurisdictional challenge can be raised for the first time before
this Court, we must determine whether the issue presented involves the JDR court’s subject matter
jurisdiction or active jurisdiction.
Code § 16.1-241(A) grants JDR courts jurisdiction over matters involving the “custody,
visitation, support, control or disposition of a child . . . [w]ho is alleged to be abused [or] neglected,”
“[w]hose custody, visitation or support is a subject of controversy or requires determination,”
“[w]ho is the subject of an entrustment agreement,” or “[w]here the termination of residual parental
rights and responsibilities is sought.” Code § 16.1-241(A)(1), (3), (4), (5).
Code § 16.1-283 provides a specific procedure for the involuntary termination of parental
rights.
The residual parental rights of a parent or parents may be terminated by the court as hereinafter provided in a separate proceeding if the petition specifically requests such relief. No petition seeking termination of residual parental rights shall be accepted by the court prior to the filing of a foster care plan, pursuant to [Code] § 16.1-281, which documents termination of residual parental rights as being in the best interests of the child. The court may hear and adjudicate a petition for termination of parental rights in the same proceeding in which the court has approved a foster care plan which documents that termination is in the best interests of the child.
Code § 16.1-283(A). The statute therefore “demand[s]” other “conditions of fact [to] exist . . . as
the prerequisites of the authority of the court to proceed to judgment or decree.” Ghameshlouy, 279
Va. at 389 (quoting Bd. of Supervisors, 271 Va. at 344). DSS must file a petition that “specifically
-8- requests” termination of parental rights, after filing a foster care plan documenting that termination
is in the child’s best interests. Code § 16.1-283(A). This statute does not define the class of cases
—i.e., the subject matter jurisdiction—which the JDR court has authority to adjudicate. Instead,
that class of cases is established in Code § 16.1-241(A). Therefore, the requirements of Code
§ 16.1-283 are not aspects of subject matter jurisdiction but, rather, constitute statutory prerequisites
for a JDR court to proceed to adjudicate the termination of parental rights in a specific case. See Bd.
of Supervisors, 271 Va. at 345; Farant Inv. Corp., 138 Va. at 427-28.
The Supreme Court made a similar distinction in Nelson, when considering a statute
providing for the transfer of a juvenile to circuit court for trial as an adult. 262 Va. at 281-85. The
Court distinguished between subject matter jurisdiction granted by constitution or statute and the
statutory requirements that enable a court to exercise its subject matter jurisdiction. Id. at 282. The
Court determined that a statutory requirement of notice to parents was procedural and therefore
could be waived by a failure to raise a timely objection to the lack of notice. Id. at 285.
Similarly, in Boatright v. Wise County Department of Social Services, 64 Va. App. 71
(2014), this Court differentiated between statutes containing “prohibitory or limiting language” that
preclude a court from exercising its subject matter jurisdiction if the statutory requirements are not
met, and statutes that are “merely directory and procedural” and allow a court to exercise its subject
matter jurisdiction despite a failure to comply with the requirements. Id. at 80 (quoting Marrison v.
Fairfax Cnty. Dep’t of Fam. Servs., 59 Va. App. 61, 68 (2011)). In Boatright, we concluded that a
statute requiring a circuit court to hear a JDR appeal within ninety days was procedural, not
mandatory, and therefore did “not prevent the circuit court from exercising its subject matter
jurisdiction absent some showing of harm or prejudice.” Id. at 81.
We recognize that “termination of parental rights is a grave, drastic, and irreversible action.”
Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986) (quoting Lowe v. -9- Richmond Dep’t of Pub. Welfare, 231 Va. 277, 280 (1986)). We have often emphasized the
importance of strict adherence to the statutory scheme. See, e.g., Strong v. Hampton Dep’t of Soc.
Servs., 45 Va. App. 317, 320, 322-23 (2005) (reversing where DSS failed to file a foster care plan
recommending termination as required by statute, but the JDR sua sponte amended and “approved”
a plan with a “revised goal of adoption”). However, we have never stated that the procedural
requirements in Code § 16.1-283 are aspects of subject matter jurisdiction that are exempt from the
contemporaneous objection requirement.
Furthermore, this is not a situation where DSS failed to invoke the JDR court’s subject
matter jurisdiction in the first instance. Cf. Rader v. Montgomery Cnty. Dep’t of Soc. Servs., 5
Va. App. 523, 526-28 (1988) (reversing an order terminating parental rights where DSS failed to
“invoke the jurisdiction” of the JDR court by filing a custody petition, but where the JDR court had
instead sua sponte transferred custody to DSS). Here, unlike in Rader, at the time of the hearing,
the JDR court’s subject matter jurisdiction had already been invoked and exercised: J.W. was
previously determined to be an abused or neglected child, had been transferred to DSS custody, and
had been the subject of multiple foster care plan review hearings. See Code § 16.1-241. A
permanency planning order already found that DSS had sufficiently documented that termination of
parental rights was in J.W.’s best interest. Although DSS was ordered to file a petition either for
approval of a permanent entrustment agreement, or a petition to terminate parental rights, the JDR
court’s subject matter jurisdiction—already invoked and exercised—was not somehow suspended
until DSS did so. Any challenge to the JDR court’s authority to act, therefore, is a challenge to the
JDR court’s active jurisdiction to proceed with the termination case already open and pending.
Despite framing his appeal as a matter of subject matter jurisdiction, father actually asserts a
defect in the JDR court’s active jurisdiction, which means that he was required to raise the issue
below to preserve it for appellate review. See Porter, 276 Va. at 228-29 (“In contrast [to defects in - 10 - subject matter jurisdiction], defects in the other jurisdictional elements generally will be considered
waived unless raised in the pleadings filed with the trial court and properly preserved on appeal.”
(quoting Morrison v. Bestler, 239 Va. 166, 170 (1990))). Father did not object to the circuit court
exercising jurisdiction. Although he faults the court for terminating his parental rights based on
DSS’s petition for an entrustment agreement for permanent surrender of the child, rather than a
petition for termination of parental rights, father did not specifically object or otherwise seek
correction of the final order’s statement that the parties “appeared . . . for a hearing on the petition
for termination of residual parental rights of father.” (Emphasis added).
Absent the necessary contemporaneous objection below, this Court is precluded from
considering father’s jurisdictional challenge on appeal. See Rule 5A:18. Father cannot salvage this
waiver by characterizing the issue as one of subject matter jurisdiction. See Morrison, 239 Va. at
170 (cautioning against “attempts . . . to mischaracterize serious procedural errors as defects in
subject matter jurisdiction to gain an opportunity for review of matters not otherwise preserved”).
B. Sufficiency of the Evidence
Father argues that the court erred by finding sufficient evidence to warrant termination of his
parental rights under Code § 16.1-283(C)(2). “On appeal from the termination of parental rights,
this Court is required to review the evidence in the light most favorable to the party prevailing in the
circuit court.” Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach
v. Arlington Cnty. Dep’t of Hum. Servs., 63 Va. App. 157, 168 (2014)). Further, where “the court
hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty. Dep’t of Soc. Servs.
v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin, 3 Va. App. at 20).
Here, the court terminated father’s parental rights based on the provisions of Code
§ 16.1-283(C)(2). That statute requires proof by clear and convincing evidence that (1) termination - 11 - is in the best interests of the child, (2) “reasonable and appropriate” services have been offered to
help the parent “remedy substantially the conditions which led to or required continuation of the
child’s foster care placement,” and (3) despite those services, the parent has failed, “without good
cause,” to remedy those conditions “within a reasonable period of time not to exceed [twelve]
months from the date the child was placed in foster care.” Code § 16.1-283(C)(2). See Harrison v.
Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 161 (2004).
The statute expressly provides that a parent’s efforts to substantially remedy the conditions
requiring foster care are “constrained by time.” Lecky v. Reed, 20 Va. App. 306, 312 (1995).
Absent good cause, a parent has a “reasonable period of time not to exceed [twelve] months” to
make the necessary changes. Code § 16.1-283(C)(2). This provision balances the preservation of
the family unit with the child’s rights to permanency. Lecky, 20 Va. App. at 312. “It is clearly not
in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if,
a parent will be capable of resuming his responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc.
Servs., 10 Va. App. 535, 540 (1990).
At the time of the termination hearing in circuit court, J.W. had been in foster care for
twenty-five of her twenty-seven months. Although father complied with some services offered by
DSS and regularly attended both virtual and in-person visitation, the court found that the evidence
demonstrated a “lack of bond” and “lack of actual participation by the father with the child during
visitation.” The record supports this conclusion: father failed to interact with J.W. during visitation,
and he left the child’s feeding and care to her foster mother.
Significantly, father did not make substantial progress on the situation that brought J.W. into
foster care—his inability to provide safe, appropriate housing. J.W. was placed in foster care
because father was living with his mother in a house cluttered with debris. When he obtained an
apartment, its condition quickly deteriorated and became just as cluttered. The pattern continued - 12 - when he moved to the mobile home, and the excessive clutter extended to the surrounding yard and
carport. DSS social workers visited several times and identified safety hazards, itemized necessary
repairs, and advised on installation of child safety devices—all to no avail. Although father made
some repairs, the house remained an inappropriate residence for a small child, from the broken
window with the extension cord in her bedroom to the landscape of heavy mechanical debris and
discarded tool parts and appliances outside. The gun on the couch and the weaponry in the yard
presented additional dangers.
Father’s reluctance to cooperate with DSS and his failure to understand the gravity of the
situation were also demonstrated when he threatened the guardian ad litem on one occasion, hid
from a social worker on another, and denied a social worker access to the residence because he was
inside with a female companion.
Therefore, the record supports the court’s determination that DSS proved by clear and
convincing evidence that termination of father’s parental rights was in J.W.’s best interest and that
father, without good cause, had been either unwilling or unable to remedy the conditions that led to
foster care within twelve months, notwithstanding the reasonable and appropriate efforts of DSS.
CONCLUSION
Rule 5A:18 precludes us from reviewing father’s challenge to the court’s exercise of
jurisdiction, and the evidence was sufficient to terminate his parental rights under Code
§ 16.1-283(C)(2). Therefore, we affirm the judgment of the circuit court.
Affirmed.
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