Fairfax County Dept Family Serv v. Usman Ibrahim ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
FAIRFAX COUNTY DEPARTMENT OF
FAMILY SERVICES
MEMORANDUM OPINION * BY TPF FPT
v. Record No. 0821-00-4 JUDGE RUDOLPH BUMGARDNER, III
USMAN IBRAHIM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Stephanie J. Scott (David P. Bobzien; Robert
Lyndon Howell; Dennis R. Bates; Office of the
Fairfax County Attorney, on brief), for
appellant.
No brief or argument for appellee Usman
Ibrahim.
The Fairfax County Department of Family Services appeals
the denial of its petition to terminate the parental rights of
Usman Ibrahim in his three children. 1 TPF FPT The trial court found the
evidence insufficient, but the department contends the evidence
mandated a termination under Code § 16.1-283(C)(2). 2 TPF FPT Finding no
error, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. T T
1
The three children are Adizza (b. 4/20/87), Ninat (b.
TP PT
4/14/89), and Farrizat (b. 6/2/93).
2
TP PT Code § 16.1-283 provides, in part:
C. The residual parental rights of a
parent or parents of a child placed in
The father and mother were foreign nationals living in
Virginia with their three minor children. The father and mother
were arrested for importing drugs into the United States when
they returned from a trip to their native country, Ghana.
Federal authorities convicted and incarcerated them in 1994, 3 and TPF FPT
at that time, the parents placed the children with a friend,
Felicia Springs.
The department did not become involved until October 1997,
when it removed the children from Springs's custody because she
physically abused them. The department placed the children in a
foster care home in November 1997. Two of them remain in the
same foster care home, but the third child requires residential
treatment.
foster care . . . may be terminated if the
court finds, based upon clear and convincing
evidence, that it is in the best interests
of the child and that:
2. The parent or parents, without good
cause, have been unwilling or unable
within a reasonable period of time not
to exceed twelve 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,
notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end.
3
TPThe mother was deported upon her release in 1997 to reside
PT
in Ghana. Her parental rights were terminated based in part
upon her instability and she did not appeal that decision.
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The department's initial service plan would have placed the
children with their maternal aunt. The department did not
consider placing the children with the father because of his
incarceration and the expectation that he would be deported upon
release. The department did consider returning the children to
the father if he remained in the United States but never acted
on that possibility.
In January 1999, the department changed the goal to
adoption because "[t]here has not been significant progress on
the part of . . . [the father]. The goal of return home and
placement with relative cannot realistically be achieved." It
filed termination petitions, and the juvenile and domestic
relations district court terminated the father's parental rights
June 2, 1999. The father appealed to the circuit court which
denied the termination for lack of evidence.
On appeal, the department contends it proved that
termination was proper under Code § 16.1-283(C)(2). The
department argues the children entered foster care because the
parents were incarcerated and unavailable when the department
removed the children from Springs. Twenty months after the
removal and placement in foster care, the father was unavailable
because of his deportation. The department contends that
rendering little or no service to the father amounted to
rendering reasonable services because it could not offer
services during his incarceration in a federal prison. After
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deportation, the department maintains it had no way to provide
services in Ghana. The department stresses the father had not
contacted the department during the two months following
deportation.
The evidence in this case is not in dispute, though the
inferences arising from it and the interpretation of it are. We
view the evidence in the light most favorable to the father, and
grant to it all reasonable inferences fairly deducible from it.
Ferguson v. Stafford County Dep't of Social Servs., 14 Va. App.
U U
333, 336, 417 S.E.2d 1, 2 (1992). When the trial court's
judgment is based upon evidence heard ore tenus, it will not be
U U U U
disturbed on appeal unless plainly wrong or without evidence to
support it. Logan v. Fairfax County Department of Human Dev.,
U U
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
To terminate the parental rights under Code
§ 16.1-283(C)(2), the trial court must find by clear and
convincing evidence (1) that termination is in the best
interests of the child, (2) that the father failed to remedy
substantially the conditions leading to, or requiring
continuation of, foster care, and (3) that the father failed to
remedy the conditions despite receiving reasonable and
appropriate services. The trial court's written opinion
primarily addressed termination under Code § 16.1-283(C)(1):
failure to maintain contact and plan for the future of a child.
The juvenile court had terminated the father's rights under that
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subsection, and it best fit the facts presented to the trial
court. However, the opinion addressed both bases for
termination under Code § 16.1-283(C). The trial court's opinion
makes clear the department failed to meet its burden under Code
§ 16.1-283(C)(2) for three reasons: (1) the conditions that led
to the placement had been remedied, (2) the only reason offered
for termination was the father's initial incarceration and
subsequent deportation, and (3) the department did not provide
reasonable and appropriate services to the father. The evidence
supports the trial court's decision to deny termination.
The trial court found the conditions that brought the
children into foster care had been substantially corrected
because Springs was no longer their caretaker and the father was
no longer incarcerated. The trial court concluded the father's
deportation was the determining factor in the department's
decision to seek termination of rights. It found the department
never developed a service plan for the father, though he had a
substantial relationship with his children before his
incarceration. The trial court found the department had offered
no services to the father to assist in having the children
returned to him, and it had not considered returning the
children to him in Ghana. The trial court ruled deportation
alone was an insufficient basis for terminating residual
parental rights.
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The children lived with their mother and father prior to
their incarceration. Nothing suggested the father abused them,
and the trial court found he had never abused or neglected them.
The children were not removed from their father's care but from
the person with whom the parents entrusted them. The father
maintained regular contact with his children during his
incarceration. He called them every Sunday morning until the
foster parents changed their telephone number. He wrote them
letters and they wrote to him. In June 1998, the children's
caseworker took them to see their father. In June 1999, he was
released from incarceration.
The father was incarcerated when the children entered
foster care, but even long-term incarceration alone is an
insufficient basis upon which to terminate parental rights.
Ferguson, 14 Va. App. at 340, 417 S.E.2d at 5.
U U The father's
sentence was not long-term or unknown. The initial service plan
dated December 8, 1997 anticipated the father would be released
within a year. The department would have considered returning
the children to the father if he remained in the United States.
While a parent's long-term incarceration is a factor for the
court to consider, along with "other evidence concerning the
parent/child relationship," it "does not, per se, authorize
U U U U
termination of parental rights or negate the Department's
U
obligation to provide services." U Id.U U (emphasis added).
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Code § 16.1-283(C)(2) requires the department to provide
reasonable and appropriate services to the father. Harris v.
U
Lynchburg Div. of Social Servs., 223 Va. 235, 243, 288 S.E.2d
U
410, 415 (1982) (the department must provide reasonable and
appropriate services to a delinquent parent prior to terminating
his rights); Cain v. Commonwealth, 12 Va. App. 42, 46, 402
U U
S.E.2d 682, 684 (1991) (evidence did not show that with the
services required by statute the mother would not have been able
to correct neglect which preceded her incarceration). The
services offered by the department must be reasonable and
appropriate given the circumstances of a particular case. See
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Ferguson, 14 Va. App. at 338, 417 S.E.2d at 4; Cain, 12 Va. App.
U U U U
at 45, 402 S.E.2d at 684 (termination order reversed). When
there is undisputed evidence that the department has not offered
a parent reasonable and appropriate services, "reversal of a
termination order is required." Harris, 223 Va. at 243, 288
U U
S.E.2d at 415 (citation omitted).
Despite the department's assertion that it provided
services, the department failed to maintain contact with the
father or to provide him with any services. 4 TPF FPT It did not keep the
father abreast of Adizza's condition or residence, nor did it
advise him of the children's new foster care caseworker in April
4
The department provided the children with extensive
TP PT
services, but that does not satisfy the requirement it provide
the parent with reasonable and appropriate services.
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1999. The children's guardian ad litem did not send him an
U U U U
introductory letter, and the children's therapist never
addressed reunification with their father. The department knew
the father wanted to regain custody upon his release and the
mother supported that placement. Nonetheless, the department
never evaluated him, assisted in his transition from
incarceration, or investigated the possibility of coordinating
efforts with an agency in Africa. The trial court found the
department's expectation that the father contact the department
unreasonable because he did not know who was working with the
children. It also found the period of two months after
deportation an unreasonably short period in which he was to
establish contact.
Finally, the department did not establish a prima facie U U U U
case under Code § 16.1-283(C)(2) 5 because the father never failed
TPF FPT
to do what the department or the court required of him. The
department never advised the father to seek parenting skills
training or mental health or substance abuse services despite
5
"Proof that the parent . . ., without good cause, [has]
TP PT
failed or been unable to make substantial progress towards
elimination of the conditions which led to or required
continuation of the child's foster care placement in accordance
with their obligations under and within the time limits or goals
U
set forth in a foster care plan filed with the court . . . and U
agreed to by the parent . . . shall constitute prima facie U U U U
evidence of this condition." Code § 16.1-283(C)(2).
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its contact with the father's caseworker in June 1998. No court
order required him to seek services.
This is not a case involving an absentee father with no
relationship with his children. The department contends the
home and the services that the father could provide in Ghana
justify severing the relationship between the children and their
father. However, the trial court would have to speculate about
the children's future because the department offered no
information about the situation in Ghana and made no efforts to
determine the conditions there. While it may well be best for
the children to remain in the United States, the decision must
be based on fact not supposition.
"The termination of parental rights is a grave, drastic,
and irreversible action." Lowe v. Dept. of Public Welfare, 231
U U
Va. 277, 280, 343 S.E.2d 70, 72 (1986). The statutory framework
for terminating parental rights, primarily set forth in Code
§ 16.1-283, "provides detailed procedures designed to protect
the rights of the parents and their child[ren]. These
procedures must be strictly followed before the courts are
permitted to sever the natural and legal bond between parent and
child." Rader v. Montgomery County Dep't of Social Servs., 5
U U
Va. App. 523, 526, 365 S.E.2d 234, 235 (1988). The trial court
did not err in denying the petition because the evidence was
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insufficient to sever this bond between the father and his
children. Accordingly, we affirm.
Affirmed.
U
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Clements, J., concurring.
I join the majority because I am compelled to accept as
correct its interpretation of Code § 16.1-283(C)(2) and, thus,
I, too, cannot say that the trial court erred as a matter of
law. I write separately, however, to address an issue
heretofore not addressed.
To grant the department's prayer for termination pursuant
to Code § 16.1-283(C)(2) the trial court was required to find by
clear and convincing evidence (1) that termination was in the
best interests of the children, and (2) that the father failed
to remedy substantially the conditions leading to, or requiring
continuation of, foster care, and (3) that the father failed to
remedy the conditions despite receiving reasonable and
appropriate services.
While I agree that a failure of proof on any prong of the
three-prong test defeats termination, nowhere in its opinion or
order did the trial court address or make findings concerning
the best interests of the children. The trial court focused
solely on the father and the department.
While the father and mother were foreign nationals, the
children are citizens of the United States and speak English
only. The children first came to the department's attention in
1995 when it was alleged that Springs was abusive to and
neglectful of these children and their sibling Fatima, now an
adult. That petition was dismissed as to these children.
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Mr. Ibrahim completed his federal penitentiary sentence and
was deported in approximately June 1999, and he is prohibited
from returning to the United States. He is reported to be
working at a family business in Ghana.
Each of the children has special needs. Adizza, the
oldest, has suffered from serious psychological disturbance and
has been hospitalized multiple times. By age eleven she was on
three significant medications for depression, mood
stabilization, and hallucinations. She has a low frustration
tolerance and can be aggressive, explosive, and hostile.
Several times she has attempted to harm herself and commit
suicide. Dr. James Steg, her psychiatrist, testified to her
need for required residential treatment.
Ninat, who has been provided with individual and family
therapy, is on Ritalin. Her therapists believe that she, too,
is at risk for suffering psychological problems without
continued intervention.
The youngest child, Farrizat, also known as Fifi, has no
recollection of her father and no attachment or bond to him.
When placed in her foster home she suffered from significant
separation anxiety. She would become hysterical for up to an
hour if separated from her foster parents. Individual and
family therapy has also been provided to her.
Tawanda Turner-Brown, licensed clinical social worker and
therapist for the children, testified that they were fearful of
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their father and that he would come and take them to Africa, as
he told them in a phone call from prison that he would. That
call by the father resulted in two weeks of "chaos" in the home
with Ninat and Fifi crying and screaming. Ms. Turner-Brown was
met with resistance from the children when she attempted to
guide them to the possibility of resuming a relationship with
their father. Dr. Steg testified that the children would need
to have a gradual transition to the father's home to overcome
their fear, made difficult by the father's inability to
participate in such a process. Ms. Turner-Brown recommended
that the children stay with their current foster parents, with
whom they had a bonded, loving relationship.
The record in this case reveals that the Guardian ad litem
U U U U
for the children argued to the trial court that termination was
in "these children's best interest."
To me, the evidence before us is clear and convincing that
it is in the best interests of these children that the father's
parental rights be terminated. However, in this case we have
been required by statute to elevate the "technical legal rights
of the parent" over the paramount consideration--the best
interests of the children. Forbes v. Haney, 204 Va. 712, 716,
U U
133 S.E.2d 533, 536 (1963). I can only reflect upon the sadness
and turmoil in the lives of these children that the uncertainty
of continued foster care will bring.
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