Rights Ended for Dad’s Lack of Progress
By Deborah Elkins
Published: August 4, 2011
The Court of Appeals affirms termination of father’s parental rights based on record evidence showing father had failed to make substantial progress remedying the conditions requiring foster care, and he could not state with certainty when he would be able to provide a home for the children.
Father was convicted of possessing drugs in the home he lived in with his child, the child’s mother and her other two children. His second child was born while he was incarcerated. The children were removed from mother’s home in February 2008. After the circuit court denied petitions to terminate father’s rights in August 2009, DSS in October 2009 formed a new plan to return the children to the home. The plan included requirements for father to participate in services such as a parenting class, family therapy and visitation.
Father was released from prison in February 2010 and living with an aunt whose custody petition was denied after a home study. DSS again petitioned the Juvenile and Domestic Relations (JDR) court to terminate father’s parental rights. The petition was granted and father appealed. A DSS employee testified about arranging services for father but he failed to follow through with a recommended parenting class and mental health services. Father testified he got lost and missed his appointment for a psychological exam. He stated he is employed but at risk to his felony conviction. The circuit court terminated father’s parental rights to his two children.
On appeal father argues that DSS failed to support termination by clear and convincing evidence. We disagree and affirm. Section 16.1-283 (C) (2) authorizes termination based on clear and convincing evidence the child’s best interests will be served and the parent has failed to substantially remedy the conditions requiring foster care in a 12-month period. Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535 (1990), holds 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.” When specifically asked, father was unable to tell the trial court how long it would take for him to be able to have the children returned to his care. He did not avail himself of services offered by DSS. Harrison v. Tazewell County Dep’t of Social Servs., 42 Va. App. 149 (2004) held that DSS is not required to offer services during incarceration. The trial court did not err in finding that father was not making sufficient progress.
Lee v. Fredericksburg Dep’t of Social Servs. (Powell) No. 2217-10-2, Aug. 2, 2011, Fredericksburg Cir.Ct. (Willis) Timothy W. Barbrow for appellant, Joseph A. Vance, IV for appellee, Sonya B. Costanzo, GAL. VLW 011-7-259(UP), 8 pp.
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
Tucker Griffin Barnes – Where deep insight equals powerful advantage.
Tucker Griffin Barnes P.C.