Wanda Strong v. Hampton Department of Social Services ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Felton
Argued at Chesapeake, Virginia
WANDA STRONG
v. Record Nos. 1287-04-1, 1288-04-1,
1289-04-1, 1290-04-1 and 1291-04-1
HAMPTON DEPARTMENT OF SOCIAL SERVICES OPINION BY
JUDGE JAMES W. BENTON, JR.
KEVIN STRONG MARCH 29, 2005
v. Record No. 1347-04-1
HAMPTON DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Fred C. Hardwick, II (Eusner & Hardwick, P.C., on brief), for
appellant Wanda Strong.
Carter Phillips (Weisbrod and Phillips, P.C., on brief), for appellant
Kevin Strong.
Lesa J. Yeatts, Deputy City Attorney; Lawrence A. Martin,
Guardian ad litem for the minor children (City Attorney’s Office;
Coyle & Martin, on briefs), for appellee.
The trial judge terminated the parental rights of Wanda Strong and Kevin Strong with
respect to their five children. Both the mother and the father contend that the trial judge erred in
terminating their parental rights because no foster care plan had been filed “pursuant to [Code]
§ 16.1-281, which documents termination of residual parental rights as being in the best interests
of the child[ren].” Code § 16.1-283. The parents also contend the evidence was not sufficient to
prove the elements of Code §§ 16.1-283(B) and 16.1-283(C), the statutory bases upon which the
trial judge terminated their parental rights. We agree that the Hampton Department of Social
Services filed a foster care plan that did not satisfy the requirements of Code § 16.1-283;
therefore, we reverse the orders terminating the parental rights.
I.
The record establishes that a judge of the Juvenile and Domestic Relations District Court
of the City of Hampton ordered the removal of five children from the care of their mother and
their father on October 12, 2000. The judge found that the children were abused and neglected,
and he ordered the children into the custody of the Hampton Department of Social Services.
Later, the Department filed a foster care plan with a goal of “Return to Parent.” The Department
returned the children to the physical custody of the mother and father in 2002; however, the
Department retained legal custody of the children until the judge entered further orders on
November 12, 2002. The district court judge also entered a protective order, which required the
parents to cooperate with the Department in the provision of reasonable services and programs
and to refrain from any offensive conduct toward the children. On December 12, 2002, the
district court judge entered a preliminary protective order against the father, barring him from
any contact with one of the children because of physical injury to her and removing the father
from the household.
On January 15, 2003, the district court judge granted petitions removing the children
from the home because of abuse and neglect, and he dismissed the protective order. Two months
later, on March 25, 2003, a hearing was held in the district court concerning the foster care plans
the Department filed. The plans recommended the goal of placing all five children with
relatives. Following the hearing, the district court judge rejected the plans and ordered the
Department to file another plan. The judge also ordered the mother and father to submit to
parental capacity evaluations.
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On May 23, 2003, the Department prepared foster care plans recommending a goal of
returning one child to the parents and placing the remaining four children with relatives.
Following a hearing on June 17, 2003, the district judge made findings of fact, including that the
children had remained in the jurisdiction of the district court for various reasons since October
12, 2000, that the mother and father did not always cooperate with the Department, that no
relative placement could be stable based upon the past behavior of the mother and the father, that
placement with relatives was not in the best interest of the children, and that termination of
parental rights was in the best interest of the children. The district judge then entered an order
that “approved” the plan with a “revised goal of adoption.” The judge’s orders also “directed
[the Department] to file petitions to terminate parental rights.”
On September 12, 2003, the Department filed petitions to terminate parental rights. The
district judge entered orders terminating the parental rights of the mother and the father on
December 11, 2003. The mother and the father appealed these orders to the circuit court. In the
circuit court, both the mother and the father objected, based on the Department’s failure to
comply with the requirements of Code § 16.1-283. They argued the record did not contain a
foster care plan providing for termination of their parental rights. The judge denied this motion.
At the conclusion of the evidence, the circuit judge adopted the district judge’s findings of fact
and found clear and convincing evidence that terminating the parental rights would be in the best
interest of the children.
II.
In pertinent part, Code § 16.1-283 provides that “[n]o 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.” We specifically addressed in Rader v. Montgomery County
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Dep’t of Social Servs., 5 Va. App. 523, 365 S.E.2d 234 (1988), the necessity of following the
statutory procedures, and we referenced Code § 16.1-283.
That scheme provides detailed procedures designed to protect the
rights of the parents and their child. These procedures must be
strictly followed before the courts are permitted to sever the natural
and legal bond between parent and child. Except in the case of
abandonment and where the identity of the parents cannot be
determined, that scheme provides that after the filing of a foster
care plan which documents termination of residual parental rights
as being in the best interests of the child, and after proper notice to
the parents and an opportunity to be heard, the courts may
terminate residual parental rights based on specified statutory
factors, such as abuse, neglect or failure to provide for essential
needs of the child.
Rader, 5 Va. App. at 526, 365 S.E.2d at 235-36. Recognizing that “‘termination of parental
rights is a grave, drastic, and irreversible action,’” Martin v. Dep’t of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted), we have held that “[i]t is implicit in the
statutory scheme . . . that the natural parent, at subsequent hearings concerning that child, is
entitled to prior and specific notice of the disposition sought by the agency in whose custody a
child has been placed.” Id. at 22, 348 S.E.2d at 17. In view of the parental interest at stake in
these proceedings, “due process requires the trial courts to comply strictly with the statutory
scheme for disposition of child custody cases.” Rader, 5 Va. App. at 528, 365 S.E.2d at 237
(citing Martin, 3 Va. App. at 22, 348 S.E.2d at 17).
The record in this case establishes that the Department never filed a foster care plan that
recommended termination of the parental rights of the mother or the father. Indeed, on brief, the
Department “concedes that the plans as they were filed on May 23, 2003, did not document that
termination of parental rights was in the best interest of the children.” Nevertheless, the
Department contends that the district judge’s order satisfied the mandate of Code § 16.1-283
because although the order “approved” its foster care plans, providing for the return of one child
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to the parents and placement of four children with relatives, the order also revised the plan by
mandating a “goal of adoption.” We disagree that the statutory mandate has been followed.
The statute places on the Department the obligation to prepare a foster care plan. See
Code §§ 16.1-281 and 16.1-282. These statutory provisions are designed to place with the
Department, the administrative entity with expertise and resources to aid families and to provide
for foster care, the initial determination that termination of parental rights is the recommended
remedy. “The foster care plan documenting the need for termination can only be filed by the
local board of public welfare or social services or the child welfare agency that has been given
custody of the child.” Stanley v. Dep’t of Social Servs., 10 Va. App. 596, 602, 395 S.E.2d 199,
202 (1990). “[N]othing in the statutory scheme . . . removes the burden on [the Department] to
establish compliance with the statutes.” Rader, 5 Va. App. at 527, 365 S.E.2d at 236.
Code § 16.1-283 . . . directly limit[s] the right to initiate a
termination petition by also requiring the filing of a foster care
plan submitted in conformance with Code § 16.1-281,
documenting termination as being in the best interests of the child.
Therefore, under Code § 16.1-283, no termination petition can be
accepted by the court unless the local board of public welfare or
social services, or other child welfare agency which has custody of
the child, presents the court with a foster care plan recommending
termination as being in the best interests of the child.
Stanley, 10 Va. App. at 603, 395 S.E.2d at 202. Thus, in Stanley, where the most recent foster
plan did not recommend termination of parental rights but, rather, recommended placing the
child with a relative, 10 Va. App. at 600, 395 S.E.2d at 201, we held that the trial judge was not
authorized to terminate the parental rights. Id. at 605, 395 S.E.2d at 204.
To accomplish the legitimate governmental objective and to protect the parental interests,
the Department and the courts are required to follow the statutory scheme the legislature enacted.
In addition to assuring that the Department performs its legitimate functions, the requirement “to
comply strictly with the statutory scheme” guarantees proper notice is given to the parents before
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the irreversible disposition of terminating parental rights occurs. Rader, 5 Va. App. at 528, 365
S.E.2d at 237. Succinctly stated: “Due process demands it.” Martin, 3 Va. App. at 23, 348
S.E.2d at 17.
In these cases, the district judge “approved” and “revised” a foster care plan in which the
Department had not recommended termination of parental rights. Thus, if the Department
wished to pursue termination of the parental rights, the Department had a duty to first file a foster
care plan in the district court with the goal of terminating parental rights in compliance with
Code § 16.1-283. The statute mandates that this be done before filing a petition to terminate
parental rights. We hold that because the Department did not file a foster care plan that
recommended termination of parental rights in this case, the circuit judge was not authorized to
terminate the parental rights of the mother or the father. In view of this holding, we need not
address the further issue of the sufficiency of the evidence. For these reasons, we reverse the
orders terminating the parental rights of the mother and father with respect to the children, and
we dismiss the petitions.
Reversed and dismissed.
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