Opinion
Docket No.: CJ17-0126-00 Docket No.: CJ17-0126-01
03-29-2018
Re: Norfolk Department of Human Services v. Octavius Person
Erikka Massie, Esquire Deputy City Attorney 810 Union Street, Suite 900 Norfolk, Virginia 23510 Michael Hockaday, Esquire 5900 E. Virginia Beach Boulevard, Suite 208 Norfolk, Virginia 23502 Asha Pandya, Esquire 426 East Freemason Street, Suite 250 Norfolk, Virginia 23510 Michael E. Grey, Esquire Grey & Arsenault, P.C. 412 Oakmears Crescent, Suite 101 Virginia Beach, Virginia 23462
Erikka Massie, Esquire
Deputy City Attorney
810 Union Street, Suite 900
Norfolk, Virginia 23510 Michael Hockaday, Esquire
5900 E. Virginia Beach Boulevard, Suite 208
Norfolk, Virginia 23502 Asha Pandya, Esquire
426 East Freemason Street, Suite 250
Norfolk, Virginia 23510 Michael E. Grey, Esquire
Grey & Arsenault, P.C.
412 Oakmears Crescent, Suite 101
Virginia Beach, Virginia 23462 Dear Counsel:
Today the Court rules on an appeal, filed by Octavius Person ("Father"), of an order entered by the Juvenile and Domestic Relations District Court of the City of Norfolk terminating Father's residual parental rights to J.S. ("Child"). The issues before the Court are (1) whether termination of Father's parental rights is in Child's best interests; (2) whether the conditions that resulted in harm to Child can be substantially corrected or eliminated to allow Child's safe return to his parent within a reasonable period of time; (3) whether Father failed to maintain continuing contact with the Norfolk Department of Human Services ("NDHS") and to provide or substantially plan for the future of Child after placement in foster care; (4) whether Father has been unwilling or unable within a reasonable period of time to substantially remedy the conditions that led to or required continuation of Child's foster care placement; and (5) whether NDHS made reasonable and appropriate efforts to communicate and rehabilitate the relationship between Father and Child.
For the reasons stated herein, the Court finds that (1) termination of Father's parental rights is in Child's best interests; (2) the conditions that resulted in harm to Child did not involve Father and have been corrected or eliminated, as Child's mother's parental rights have been terminated; (3) Father, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of Child for six months after placement in foster care; (4) Father, without good cause, has been unwilling or unable within twelve months after Child was placed in foster care to substantially remedy the conditions that led to or required continuation of Child's foster care placement; and (5) NDHS made reasonable and appropriate efforts to communicate and rehabilitate the parent-child relationship given the circumstances. The Court therefore GRANTS NDHS's petition to terminate Father's residual parental rights.
Background
Child is twelve years old. (Trial Ex. ("Ex.") 1, at 1.) On March 18, 2011, Child Protective Services received a report of physical abuse indicating that Child's hands and feet were bound with shoelaces by his mother and her boyfriend and left that way overnight. (Ex. 3, at 1.) The mother and boyfriend were arrested, and Child was removed from their home. (Id.) Child entered foster care, and a finding of abuse and neglect was entered on April 8, 2011. (Parties' Stipulations ("Stip.").) Mother's parental rights were subsequently terminated on October 10, 2012. (Ex. 17, at 1.)
"As a result of being tied up over night, [Child's] hands, arms, and fingers became swollen, causing pain and restriction of his fingers." (Ex. 3, at 1.) Child also sustained "a friction burn with blisters, on his right arm, due to his attempt to free himself." (Id.)
After Child was removed from his mother's home, NDHS considered contacting Father, who was not involved in the abuse, but his location was unknown at that time. (Ex. 3, at 1.) NDHS also considered placing Child with other family members, but none were willing and able to care for Child. (Ex. 1, at 1.) Child was subsequently placed with his godfather, but long-term placement was not feasible due to the godfather's work schedule and "lack of child care." (Ex. 3, at 1.) Child ultimately was placed with his current foster parent, Eric Cain, on June 14, 2013, and has been in Cain's care since. (Ex. 17, at 2.) Child's current foster care service plan has a goal of adoption, and "[Cain] has verbally expressed a desire to adopt [Child]." (Id. at 1, 2)
Child's prior foster care program goals rotated between returning home and adoption, sometimes concurrently. (See Exs. 1, 3, 5, 7, 9, 11, 13, 15, 17.) The most recent Foster Care Service Plan Review provided to the Court, which was prepared November 14, 2016, indicates a program goal of "Adoption." (Ex. 17, at 1.)
Child currently "is physically healthy and is up to date on all vaccines"; he also is current with respect to applicable medical and dental care. (Id. at 2.) During the years following the abuse, however, Child experienced problems, including having to repeat kindergarten due to "behavioral issues and learning deficits." (Ex. 1, at 3.) While with Cain, Child has received medication and assistance with socialization. (Id. at 1.) Child also was provided "intensive in-home services" for a time, which helped him "learn[] healthy social skills and coping skills" and resulted in Child's "physical and verbal aggression . . . decreas[ing] significantly." (Ex. 17, at 1.) Child repeated fifth grade and received summer academic tutoring in 2016. (Id. at 2.) An incident in November 2016 required Child's temporary removal from school, and an evaluation revealed that Child was having self-harmful and suicidal thoughts. (Id.) Testimony revealed that Child's behavioral and emotional needs continue to be addressed through therapy, medication, and an Individualized Educational Plan, and that Cain sometimes is required to assist teachers at Child's school with situations relating to Child. Child apparently was hospitalized for psychiatric treatment at the time of trial. At trial, both Cain and Child's psychologist opined that Child would benefit by a more permanent placement situation.
Father was not a significant figure in Child's life prior to the abuse (Ex. 9, at 1), and Father was incarcerated three months after Child entered foster care in 2011 (Stip.). NDHS noted that "prior to [Father's] incarceration there was no ongoing relationship" between Father and Child (Ex. 9, at 1), and Child's psychologist testified that during their sessions, Child only rarely talked about Father and has stated that he does not remember his father. NDHS documented that "[t]here [has been] no visitation between [Child] and his biological family." (Ex. 17, at 2.) Father has remained either incarcerated or civilly committed since his 2011 incarceration, which resulted from his conviction of sexual battery and then later for failing to register as a violent sex offender. (Id.) Father's original target release date from incarceration with the Department of Corrections was February 23, 2015. (Ex. 3, at 2.) NDHS opined that, primarily as a result of his incarceration, "[Father] has not been an active participant in [Child's] life" (Ex. 15, at 1) and noted that "[w]hile [Father] has been incarcerated he has not taken advantage of any courses that could have assisted him with working towards achieving the goal of Return to Own Home" (Ex. 11, at 1.) Additionally, Father was subject to restrictions during his incarceration based on violating prison rules and, at one point, was in "Segregation" and "refused to go to population at the institution multiple times." (Ex. 7, at 2.) NDHS noted that the refusal to go back to general population "[was Father's] decision [and] not the institution['s]." (Id.)
The sexual battery conviction did not involve, and was not related to, Child or another minor.
Prior to his release from the Department of Corrections, Father was determined to be a sexually violent predator ("SVP") and was civilly committed upon completion of his criminal incarceration pursuant to sections 37.2-908(D) and 37.2-912 of the Code of Virginia. (Ex. 23, at 1-2.) He was committed to the Virginia Center for Behavior Rehabilitation ("VCBR") for treatment. (Ex. 17, at 2.) Annual reviews of Father's civil commitment resulted in Recommitment Orders in 2017 and 2018, and he remains committed. (Ex. 24, at 1; Ex. 25, at 1-2.). Father currently is on level one—the lowest of three levels—of his treatment. (Stip.) Testimony revealed that Father had progressed beyond level one at some point but was subsequently placed back in level one for failing to comply with facility rules. Father's release date from VCBR remains uncertain. (Ex. 17, at 2.) His next annual review is scheduled for December 4, 2018. (Ex. 25, at 2.)
Father has had little documented communication with either Child or NDHS since Child entered foster care in 2011. Father apparently communicated with Child four times since March 2012, i.e., over the past six years, consisting of three letters and one birthday card. (Ex. 20, at 2-3, 9-11.) Father also sent four letters to NDHS social workers: in March 2012, in May 2013, in January 2015, and an undated letter. (Id. at 1, 3-8.)
NDHS presented documentation of two efforts to communicate with Father. The first was a May 2013 letter informing Father that Child's case was being transferred to a new social worker, and the second was a July 2016 letter. (Ex. 21, at 1; Ex. 22, at 1.) A third communication can be inferred from Father's January 25, 2015, letter to the case social worker, as it references receipt of a letter from the NDHS social worker. (Ex. 20, at 7.) Additionally, Father, Father's guardian ad litem ("GAL"), and/or Father's attorney were sent copies of each petition for a permanency planning order, as well as the May 2017 foster care review order. (Ex. 2, at 1; Ex. 4, at 1; Ex. 6, at 1; Ex. 8, at 1; Ex. 10, at 1; Ex. 12, at 1; Ex. 14, at 1; Ex. 16, at 1; Ex. 18, at 1.)
Several foster care service plans indicate that NDHS would be unable to provide reunification services while Father was incarcerated. Although NDHS indicated that it would inquire into prison-based services available to Father, his time in segregation resulted in him being "unable to receive any resources in preparation for reunification with" Child, at least during that time (Ex. 5, at 2; Ex. 7, at 2), and NDHS noted that Father "would [have] be[en] able to obtain services if he [had] transitioned to general population." (Ex. 7, at 2.) NDHS verified its understanding that Father was willingly housed in segregation multiple times. (Id.) Father testified that he refused to cut his hair while incarcerated for religious reasons and that he understood that, if he would have complied with the facility's hair regulations, he would have been able to return to the general population.
In 2015, NDHS observed that "[w]hile [Father] has been incarcerated he has not taken advantage of any courses that could have assisted him with working towards achieving the goal of 'Return to Own Home.'" (Ex. 11, at 1; Ex. 13, at 1;Ex. 15, at 1.) In late 2015, NDHS noted that "[r]eportedly, services/programs were offered at Sussex State prison where [Father] is incarcerated" but, again, Father elected not to participate in such programs. (Ex. 15, at 1.) When NDHS changed the permanency planning goal to adoption on December 4, 2015, the explanation included the following: "The Norfolk Department of Human Services is no longer working towards the goal of 'Return Home.' There has been no progress towards achieving that goal as [Father] has not participated in any services nor does he have a[n] established ongoing relationship with [Child]." (Id. at 6.) Of note, Father claimed in one letter to NDHS that the institutions in which he was incarcerated did not provide "parenting classes" but that he was willing to complete services upon his release. (Ex. 20, at 5-6.)
NDHS previously filed a petition to terminate Father's parental rights, which was granted by the Norfolk Juvenile and Domestic Relations District Court on October 10, 2012. (Ex. 17, at 1.) Father appealed that decision, and this Court reversed it on March 7, 2013, opining that "[Father's] incarceration 'was not so interminabl[y] long that [it could] easily find that [termination is] in the best interest of the child'" and ultimately finding no evidence regarding the parent-child relationship to support termination. City of Norfolk v. Person, 2014 Va. App. LEXIS 9, at *9-11 (Jan. 14, 2014) (quoting Tr. 196, City of Norfolk v. Person, No. CJ12-191 (Norfolk Cir. Ct. June 7, 2013)). The Virginia Court of Appeals affirmed the circuit court's decision on January 14, 2014. Id. at *13.
Although this Court heard the initial appeal, it was before a different judge.
In evaluating the parent-child relationship, the Court considered that "[Father] was making plans to regain custody of [Child] upon his release, and there was evidence of a growing positive child/parent relationship." City of Norfolk v. Person, 2014 Va. App. LEXIS 9, at *10-11 (Jan. 14, 2014). Significantly, there was no evidence presented at the hearing in the instant case acknowledging any plans for Father to regain custody of Child or any substantial relationship between Father and Child.
In response to a subsequent petition filed by NDHS in 2017, the Norfolk Juvenile and Domestic Relations District Court entered an Order on May 10, 2017, terminating Father's parental rights pursuant to Virginia Code section 16.1-283(B)-(C). (Ex. 19, at 1-2.). Father subsequently appealed the termination decision to this Court, which is the subject of the instant litigation.
A de novo trial was held on February 15, 2018. Father was represented by counsel and a guardian ad litem. Father participated via video conference from VCBR. The Court received stipulations from the parties, including that the evidence presented during this proceeding would relate only to the time period after the April 2013 Norfolk Circuit Court decision denying the petition for termination of parental rights. (Stip.) At trial, the Court heard evidence from NDHS social workers; Cain, the prospective adoptive parent; and Child's current psychologist, Melissa Miller. After presentment of evidence, Child's GAL recommended termination of Father's parental rights.
At the conclusion of the hearing, the Court took the matter under advisement and now rules.
Analysis
Legal Standard
A circuit court reviews the decision of a juvenile and domestic relations district court de novo. Va. Code § 16.1-296(A) (2016 Repl. Vol.). On appeal, a circuit court has only the power and authority granted to the juvenile and domestic relations district court. Id. § 16.1-296(1). As such, the statutory provisions regarding termination of parental rights apply equally in both the circuit court on appeal and the juvenile and domestic relations district court from which the appeal arose.
The "liberty interest . . . of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). Furthermore, "there is a presumption that fit parents act in the best interests of their children." Id. at 68. "Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69 (citation omitted); see also Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 652 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417 (1998) (holding that state interference with the fundamental right to autonomy in child rearing must be justified by a compelling state interest).
In conjunction with the fundamental recognition of parental rights, "[i]n 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." Logan v. Fairfax Cty. Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). As such, "[w]hen 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 interests." Id.
According to Virginia law, a court may terminate residual parental rights to a child who the court finds has been abused or neglected and placed in foster care "if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child[;] . . . [t]he neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development"; and "it is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his parent or parents within a reasonable period of time." Va. Code § 16.1-283(B) (2010 Repl. Vol.).
Residual parental rights regarding a child who is in foster care may also be "terminated if the court finds, based upon clear and convincing evidence," that a two-part inquiry is met. Va. Code § 16.1-283(C) (2010 Repl. Vol.). Initially, the court must analyze whether termination is in the child's best interests. Richmond Dep't of Soc. Servs. v. Crawley, 47 Va. App. 572, 579, 625 S.E.2d 670, 673 (2006).
In determining what is in the best interests of the child, a court might evaluate and consider many factors, including the age and physical and mental condition of the child or children; the age and physical and mental condition of the parents; the relationship existing between each parent and each child; the needs of the child or children; the role which each parent has played, and will play in the future, in the upbringing and care of the child or children; and such factors as are necessary in determining the best interests of the child or children.Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
If the circuit court finds that termination is in the best interest of the child, the circuit court may only terminate parental rights if it also finds clear and convincing evidence that either: (1) [NDHS] made reasonable and appropriate efforts to "communicate with the parent" and "strengthen the parent-child relationship," and despite those efforts, the parent failed "without good cause" "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" . . . ; or, alternatively (2) [NDHS] "offered 'reasonable and appropriate' services" to the parent to help them remedy the conditions which led to or required continuation of the child's foster care placement, and despite those services, the parent failed "'without good cause' to remedy those conditions 'within a reasonable amount of time not to exceed twelve months from the date the child was placed in foster care,'" Harrison v. Tazewell Cty. Dep't of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d 575, 581 (2004) (quoting Va. Code § 16.1-283(C)).City of Norfolk v. Person, 2014 Va. App. LEXIS 9, at *6-7 (Jan. 14, 2014).
In order to terminate parental rights under section 16.1-283(C) of the Code of Virginia, "[r]easonable and appropriate efforts must be made to assist a delinquent parent in remedying the conditions that lead to a parent's temporary relinquishment of the children to the care of the department," and "[t]he offer of such assistance is a prerequisite to termination of parental rights." Scott v. Spotsylvania Dep't of Soc. Servs., 2005 Va. App. LEXIS 321, at *3 (Aug. 23, 2005) (quoting Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E.2d 682, 683 (1991)). What is considered '"reasonable and appropriate' efforts can only be judged with reference to the circumstances of a particular case." Id. at *3-4 (quoting Ferguson v. Stafford Cty. Dep't of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992)).
As is appropriate, the Court does not consider unpublished Court of Appeals opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5.1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
"[T]he Fourteenth Amendment's Due Process Clause simply requires that a statute allowing a court to permanently sever the relationship between a biological parent and his child must 'provide for consideration of parental fitness and detriment to the child' but need not explicitly use those terms." Farrell v. Warren Cty. Dep't of Soc. Servs., 59 Va. App. 375, 411, 719 S.E.2d 329, 347 (2012) (quoting Copeland v. Todd, 282 Va. 183, 199, 715 S.E.2d 11, 20 (2011)). In the context of termination of parental rights in support of nonparent adoption, the Virginia Supreme Court has held as follows:
Inclusion of the precise language of "detriment" is not necessary for [adoption] statutes to pass constitutional muster. The phrase 'detriment to the child' is no term of art or requisite mantra. Rather, for these statutes to pass constitutional due process scrutiny, they must provide for consideration of parental fitness and detriment to the child. The Virginia statutory scheme does so.Copeland, 282 Va. at 199, 715 S.E.2d at 20.
The Virginia Court of Appeals has applied this concept to cases involving termination of parental rights under section 16.1-283. See, e.g., Farrell, 59 Va. App. at 411, 719 S.E.2d at 347. In Farrell, the court held that section 16.1-283(B) meets the standard required under the Due Process Clause "by requiring the trial court to consider implicitly both parental fitness and detriment to the child." Id. at 411, 719 S.E.2d at 347. Similarly, subsections (C)(1) and (C)(2) implicitly address detriment to the child and parental fitness by requiring a lengthy period of time in which the parent has either "failed [without good cause] to maintain continuing contact with and to provide or substantially plan for the future of the child" or has "been unwilling or unable, without good cause . . . to remedy substantially the conditions which led to or required continuation of the child's foster care placement." Va. Code § 16.1-283(C)(1), 283(C)(2). As such, the standard required by the Fourteenth Amendment for termination of parental rights is met by the requirements delineated in section 16.1-283 of the Code of Virginia.
With respect to section 16.1-283(B), the Court of Appeals further explained as follows:
Before a trial court may terminate residual parental rights under subsection (B), the trial court must find that the abuse or neglect the child suffered "presents a serious and substantial threat to the child's health, life or development," thereby considering the detriment to the child. The trial court must also conclude that the parent is unlikely to be able to substantially remedy or eliminate the conditions that led to the neglect or abuse within a reasonable period of time to allow the child's safe return to his care. Consequently, the trial court must consider the parent's ability and thereby, the parent's fitness, but also must consider the detriment to the child in waiting for the parent to be able to remedy the conditions that resulted in the neglect or abuse. Accordingly, we find that Code § 16.1-283(B) comports with the Supreme Court's . . . enunciation of constitutional requirements even though it does not require the trial court to make an explicit finding regarding detriment to the child.
Discussion
The Court has considered the pleadings, evidence and oral argument presented at trial, the Child's GAL's recommendation, and applicable authorities. The Court now rules on the matters before it.
NDHS contends that termination of Father's parental rights is in Child's best interests and relies on three separate statutory grounds to justify termination: (1) Child's foster care placement resulted from abuse or neglect that presented a serious and substantial threat to Child's life, health, or development without a reasonable likelihood that the harmful conditions could be corrected to allow Child to go into Father's custody within a reasonable period of time; (2) Father failed to maintain continuing contact with or plan for the future of Child within six months after Child was placed in foster care despite reasonable and appropriate efforts of NDHS; and (3) Father has been unwilling or unable within twelve months after Child was placed in foster care to substantially remedy the conditions that led to Child's foster care placement despite reasonable and appropriate efforts of NDHS.
A. Termination of Father's Parental Rights Is in Child's Best Interests.
A requirement common to all three statutory grounds on which NDHS relies is that termination be in the best interests of the child. The Virginia Court of Appeals has set forth a number of factors that courts must consider when determining the child's best interests. These include: (1) "the age and physical and mental condition of the child"; (2) "the age and physical and mental condition of the parents"; (3) "the relationship existing between each parent and each child"; (4) "the needs of the child"; (5) "the role which each parent has played, and will play in the future, in the upbringing and care of the child"; and (6) "such other factors as are necessary in determining the best interests of the child or children." Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
Child is twelve years old and has resided with Cain since June 14, 2013, when Child was eight years old. Child is in good physical health. Testimony from Child's foster parent, Child's psychologist, and social workers—as well as information in the Foster Care Service Plans—indicate that since he was placed with his foster parent almost five years ago, Child has exhibited numerous behavioral and mental health issues, which have required therapy, hospitalization, and adult monitoring. The Court finds, based on the evidence presented, that Child's mental health needs did not result from Cain's care. The Court further finds that Cain has appropriately addressed—and continues to properly address—these needs. Of note, at the time of trial, Child was hospitalized as a result of mental health concerns.
The Court finds that Father did not form any substantive relationship with Child before or during Father's incarceration, as well as while Father has been undergoing his current treatment. The Court recognizes that Father's current mental health treatment at VCBR affects his ability to have a relationship with Child. Nevertheless, aside from the four letters Father sent Child over the past six years, there is no evidence of other communication between them. Child's psychologist indicated that Child rarely mentions Father during counseling sessions and has stated that Child cannot remember Father. Although Child's needs are currently being met by his foster parent, both Child's psychologist and Cain opined that—after being in limbo for approximately seven years—Child's emotional well-being would benefit from a more permanent status.
The Court of Appeals has "long held that '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.'" Harrison v. Tazewell Cty. Dep't of Soc. Servs., 42 Va. App. 149, 162, 590 S.E.2d 575, 582 (2004) (quoting Kaywood v. Halifax Cty. Dep't of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)). The court relied on its holding in Harrison to opine that being forced to wait for a parent to remedy conditions is detrimental to a child. See Farrell v. Warren Cty. Dep't of Soc. Servs., 59 Va. App. 375, 411, 719 S.E.2d 329, 347 (2012) (citing Harrison for the proposition that a court "must consider the detriment to the child in waiting for the parent to be able to remedy the conditions that resulted in the neglect or abuse").
[W]hile long-term incarceration does not, per se, authorize termination of parental rights or negate the [agency's] obligation to provide services, it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court's finding by clear and convincing evidence that the best interests of the child will be served by termination.Ferguson v. Stafford Cty. Dep't of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 11-12 (1992).
Wooten v. County of Henrico Department of Social Services involved a mother who participated in all of the parenting and skill development classes offered during her incarceration, had continual contact with her child while incarcerated, and had a post-incarceration plan to create a stable environment to raise her child. See 2007 Va. App. LEXIS 96, at *8-9 (Mar. 13, 2007). The court held that "[b]ecause Wooten's incarceration was the only factor supporting the termination of her parental rights and the only reason that Wooten was unable to remedy the conditions within a reasonable period of time that led to her child's placement in foster care," the trial court's termination of Wooten's parental rights based on the child's best interests was erroneous. Id.
See supra note 6.
In contrast to the parent's situation in Wooten, Father's incarceration is not the sole factor supporting termination of rights. His failure to take any steps to prepare to care for his son after release from confinement is a strong indicator that he would be unable to properly parent even if not confined. Father has not taken classes or facilitated a post-release plan to care for Child. Before and during his confinement, Father has not had a meaningful relationship with his son. Furthermore, Father has taken no steps to develop a relationship with Child and, in fact, Father willfully remained in solitary confinement while incarcerated, recognizing he would be unable to participate in any programs that would support reunification. As such, if Father were to receive custody of Child upon release, Child would be thrust into a new environment with a father with whom he has no substantive relationship.
Unlike most convicts who are confined in a penal institution, Father's release date from VCBR is not fixed. Although he has a scheduled review date in December 2018, there is no assurance that he will be released from civil commitment at that time and, even if he were, what restrictions would be imposed on him. This is a main distinguishing factor between the facts in the instant case and the facts before this Court when it denied a petition to terminate Father's rights in 2013. See City of Norfolk v. Person, 2014 Va. App. LEXIS 9 (Jan. 14, 2014). At that time, which was prior to Father's civil commitment, the Court concluded that "[Father's] incarceration was 'not so interminabl[y] long that [it could] easily find that [termination is] in the best interest of the child.'" Id. at *9 (quoting Tr. 196, City of Norfolk v. Person, No. CJ12-191 (Norfolk Cir. Ct. June 7, 2013)). As of now, Father's term of confinement is not fixed, but rather is indeterminable. Of significant note, Father had progressed through the initial stage of his civil commitment program when his voluntary noncompliance caused him to revert to level one, exacerbating the uncertainty regarding when, if ever, he will be available to take custody of Child. As such, Father's release date—and any certainty regarding Child's future with Father—has diminished since this Court last heard argument on a similar petition. Meanwhile, the parent-child relationship has not progressed at all during the five years that have passed since this matter was last before the Court. In short, the Court holds that the Child is entitled to long-term stability.
Based on the forgoing, the Court finds that termination of Father's residual parental rights is in the best interests of Child and, as such, that this requirement has been met for all three statutory grounds on which NDHS bases its petition.
B. The Abusive Conditions Have Been Corrected.
To terminate residual parental rights to a child who has been abused or neglected and placed in foster care pursuant to section 16.1-283(B) of the Code of Virginia, a court must find that—in addition to the requirement that termination of parental rights be in the best interests of the child—"[t]he neglect or abuse suffered by such child presented a serious and substantial threat to his life, health and development" and that "it is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his parent or parents within a reasonable period of time." Va. Code § 16.1-283(B) (2010 Repl. Vol.).
The evidence supports that the abuse Child suffered posed "a serious and substantial threat to his life, health and development," as evidenced by the testimony of the witnesses who described Child's emotional trauma. Tying Child up overnight clearly risked physical harm. The Court therefore finds that the abuse posed a serious and substantial threat to Child's life, health, or development.
This fact alone is insufficient, however, to justify termination of Father's parental rights. Child's abuse was sustained while in the care of his mother in the mother's house, in which Father did not reside. The mother's parental rights subsequently were terminated. Thus, "the conditions which resulted in such neglect or abuse" have been substantially corrected and eliminated such that the abuse or neglect is no longer a reason that Child cannot be placed in Father's custody. Of note, there may be other reasons—addressed elsewhere in this opinion letter—that may delay or prohibit Child's placement in Father's custody. However, the Court finds that those reasons are unrelated to the abuse or neglect Child suffered.
Termination of Father's parental rights based upon section 16.1-283(B) therefore is not appropriate. C. Father, Without Good Cause, Failed to Maintain Continuing Contact with and to Provide or Substantially Plan for Child's Future.
For the Court to terminate residual parental rights under section 16.1-283(C)(1) of the Code of Virginia, the Court must find that—in addition to termination being in the best interests of the child—"the parent [has,] 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." Va. Code § 16.1-283(C)(1) (2010 Repl. Vol.).
Here, Father has failed to maintain continuing contact with Child and has made no effort to plan for Child's future. Specifically, in addition to the challenges presented by incarceration and commitment, Father failed to have continuing contact with Child when he voluntarily remained in solitary confinement, knowing that he would be unable to take advantage of services to communicate with Child or plan for Child's future under such conditions. Although the Court recognizes that an incarcerated parent may be unable to undertake the same efforts as an unincarcerated parent, and that such a situation could—under certain circumstances—provide the requisite good cause, the Court cannot ignore Father's continuous failure to communicate and plan for Child's future. In addition to the opportunities Father missed while incarcerated or committed, the evidence demonstrates that Father failed to establish any meaningful relationship with Child prior to his incarceration. The Court finds this fact instructive regarding the role Father likely would choose to have in Child's life were Father not incarcerated. See Hatcher v. Bristol, 2012 Va. App. LEXIS 311, at *8 (Oct. 9, 2012) (opining in a case involving section 16.1-283(C)(1) that "past actions and relationships over a meaningful period serve as good indicators of what the future may be expected to hold" (quoting Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990))).
See supra note 6.
Accordingly, the Court finds that Father has, without good cause, failed to maintain contact with Child or to plan for Child's future. D. Father, Without Good Cause, Has Been Unwilling or Unable Within a Reasonable Period of Time to Substantially Remedy the Conditions that Led to or Required Continuation of Child's Foster Care Placement.
In order to terminate residual parental rights to a child placed in foster care under section 16.1-283(C)(2) of the Code of Virginia, the court must find—in addition to the termination being in the best interests of the child, as discussed above—that "[t]he parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child's foster care placement" and that this has occurred despite "reasonable and appropriate efforts of social, medical mental health or other rehabilitative agencies to such end." Va. Code § 16.1-283(C)(2) (2010 Repl. Vol.).
The Court recognizes that incarceration normally precludes a parent from remedying conditions keeping a child in foster care. The Virginia Court of Appeals has held that section 16.1-283(C)(2) does not require an agency to offer a parent services while the parent is incarcerated, however. Harrison v. Tazewell Cty. Dep't of Soc. Servs., 42 Va. App. 149, 163, 590 S.E.2d 575, 583 (2004). In fact, the court has held that "[i]t would be patently unreasonable to require [an agency], under such circumstances, to continue to offer services." Id. at 163-64, 590 S.E.2d at 583. Additionally, "[t]he law does not require [an agency] to force its services upon an unwilling and disinterested parent." Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986).
In Barkey, the Virginia Court of Appeals affirmed a trial court's decision to terminate parental rights. Id. at 670, 347 S.E.2d at 192. There, a child was placed in foster care due to his mother's mental health issues; based on the child's improvement while in foster care and the mother's lack of contact with the child despite efforts of the agency, the trial court terminated parental rights. Id. at 663-67, 347 S.E.2d at 188-91. In doing so, the court acknowledged that there was "ample evidence in the record to support the finding of the trial court that the mother, without good cause, was unwilling or unable within a reasonable period to remedy substantially the conditions which led to the child's foster care placement" because "[t]he record ma[de] it abundantly clear that [the parent] refused to accept treatment for her mental illness before and after the child was placed in foster care, and that at the time of the trial, had dropped out of the [treatment program] to accept employment." Id. at 670, 347 S.E.2d at 192. The court opined that "[w]hen [the parent] dropped out of this program prior to the hearing in the trial court, she diminished the reasonable probability that there would be improvement in her mental condition within a reasonable period of time." Id.
Similar to the parent in Barkey, Father is being treated in a mental health program that he must complete before he can remedy the conditions requiring Child's continued foster care placement. Evidence presented at trial, including Father's own admissions, indicates that Father voluntarily made decisions and engaged in actions during his mental health treatment that resulted in him reverting to level one status. He therefore reduced—of his own accord—the reasonable probability that he would complete his program within a reasonable period of time. Furthermore, any services that might have been offered to Father during his incarceration or commitment would have provided little assistance in creating or strengthening a parental bond with Child, who had no substantial relationship with Father during his life. See Scott v. Spotsylvania Dep't of Soc. Servs., 2005 Va. App. LEXIS 321, at *6 (Aug. 23, 2005) (holding that "any services offered by DSS during [the parent's] incarceration would not have assisted him in creating a bond with a child who has never known any other parent than her foster mother").
See supra note 6.
The Court therefore finds that Father, without good cause, has not been willing or able to remedy Child's foster care situation within a reasonable period of time.
E. NDHS Made Reasonable and Appropriate Efforts to Communicate and Rehabilitate Father and Child's Relationship.
As mentioned in the previous two sections, in order for the Court to terminate a parent's residual rights under Virginia Code section 16.1-283(C)(1) or 16.1-283(C)(2), NDHS must have made reasonable and appropriate efforts to communicate and rehabilitate the parent-child relationship. The Court finds that, under the circumstances, NDHS made such efforts.
In Harrison v. Tazewell County Department of Social Services, the parent whose rights were at issue argued that section 16.1-283(C)(2) required the agency offer him "reasonable and appropriate" services. 42 Va. App. 149, 163, 590 S.E.2d 575, 582 (2004). On this point, the Virginia Court of Appeals opined that "'[r]easonable and appropriate' efforts can only be judged with reference to the circumstances of a particular case. Thus, a court must determine what constitutes reasonable and appropriate efforts given the facts before [it]." Id. at 163, 590 S.E.2d at 583. The court went on to find "no merit in [the parent's] contention on appeal that Code § 16.1-283(C)(2) required the [agency] to offer him services during his incarceration." Id. It further stated that "[i]t would be patently unreasonable to require the [agency], under such circumstances, to continue to offer services. . . . [A]s long as he was incarcerated, the [agency] would have had no avenue available to offer [the parent] services aimed at assisting him in regaining custody of the child." Id. at 163-164, 590 S.E.2d at 583; see also Moore v. Lee Cty. Dep't of Soc. Servs., 2015 Va. App. LEXIS 322, at *7-8 (Nov. 10, 2015) (opining that under both sections 16.1-283(B) and 16.1-283(C) the agency was not required to provide services to father while he is incarcerated).
See supra note 6. --------
In the case at bar, despite the fact that NDHS was not required to communicate and provide services to Father—as he was incarcerated or committed—NDHS did in fact communicate with him on multiple occasions, including providing him copies of Child's updated foster care service plans. Simply stated, Father has not been in a position—either while in solitary confinement or while being treated at VCBR—to complete any services offered by NDHS. Any further communication between NDHS and Father therefore would have been futile in rehabilitating the parent-child relationship from a practical perspective.
The Court therefore finds that NDHS's efforts to communicate and rehabilitate Father's relationship with Child were reasonable and appropriate considering the context of Father's incarceration and confined SVP status.
In light of the foregoing, the Court holds that termination of Father's residual parental rights based upon either section 16.1-283(C)(1) or section 16.1-283(C)(2) is appropriate and GRANTS NDHS's petition to terminate Father's parental rights.
Conclusion
Considering the evidence presented at trial, argument of counsel, Child's GAL's recommendations, and appropriate authorities, the Court finds that there is insufficient evidence to terminate Father's residual parental rights pursuant to section 16.1-283(B) of the Code of Virginia. However, the Court finds, by clear and convincing evidence, that (1) it is in the best interests of Child to terminate Father's parental rights, (2) Father, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of Child despite NDHS's reasonable and appropriate efforts to strengthen the parent-child relationship, and (3) Father, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of Child despite NDHS's reasonable and appropriate efforts to communicate and rehabilitate the relationship between Father and Child. As such, the Court GRANTS NDHS's Petition to terminate Father's residual parental rights to Child.
Counsel for NDHS is directed to prepare and circulate an order consistent with this Opinion and submit it to the Court within fourteen days. All future matters regarding the custody and visitation of Child are transferred to the Juvenile and Domestic Relations District Court of the City of Norfolk for further enforcement or modification, as necessary.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/kml
Farrell, 59 Va. App. at 411-12, 719 S.E.2d at 347 (citations omitted).