Children - § 3-2 (J) - § 3-3 (A)
2015—Rubino v. Rubino, 64 Va. App. 256
The trial court erred in relying on the Virginia Military Parents Equal Protection Act (the “Act”) in making its child custody determination. While the Act provides military parents protection from alienation from the child while the parent cannot exercise visitation during deployment, it only applies in situations where the parent receives orders to report for active duty unaccompanied by any family member. Here, the Act does not apply because Father’s orders to report to Virginia Beach allowed his family to accompany him.
Additionally, the trial court abused its discretion because its erroneous reliance on the Act was the primary basis for the custody determination. Code of Virginia § 20-124.3 requires a court to consider ten factors when determining the best interests of a child for child custody and visitation purposes. A court may only consider the interests of the parents when benefits to the custodial parent also independently benefit the children. The Act does not contemplate Code § 20-124.3’s factors or establish a generalized preference for a military parent. Here, although the trial court determined that the first nine Code § 20-124.3 factors favored neither parent over the other, it concluded under the tenth “catchall” factor, that Father’s orders to report to Virginia Beach provided Father with special protection under the Act.
2014—Nkong v. Nkong, Va. Ct. of Appeals, Unpublished, No. 1624-14-4
The trial court did not err by awarding Father legal and primary custody of the children. In determining the best interests of a child for custody or visitation purposes, a court is required to consider the factors set forth in Code of Virginia § 20-124.3. The Virginia Court of Appeals has interpreted Code § 20-124.3 as requiring the court to identify the fundamental, predominating reason or reasons underlying its decision. Here, the evidence showed that that Mother was unemployed, moved the children to three different daycares within a short period of time, and suffered from a mental condition that affected her ability to co-parent the children. The trial court identified that the fundamental predominating reason for awarding Father primary custody of the children was that Father provided a more stable environment for the children. The evidence supported the trial court’s conclusion.
2014—Pham v. Bui, Va. Ct. of Appeals, Unpublished, No. 1170-14-4
The trial court did not err by granting Mother sole custody of the child where the totality of the evidence showed that Father lacked the ability to accurately assess and meet the child’s emotional needs, that Father had significant problems processing information, regulating his emotions, and controlling impulsivity, and that Mother and the child were fearful of Father.
2013—Wiencko v. Takayama, 62 Va. App. 217
In order to prevail on an “as applied” Equal Protection challenge to a custody determination, an appellant must unambiguously show that the trial court made its custody determination based on invidious discrimination.
The trial court did not abuse its discretion in considering the recommendation of the guardian ad litem regarding custody, even though guardian neglected to interview the children in connection with the divorce case as required by the standards governing gaurdians ad litem. The trial court was correct to consider all aspects of the guardian’s investigation, including her previous representation and interviews of the children, and to weigh her opinion accordingly, instead of disregarding her opinion entirely because she failed to comply with the standards.
2013—Forbes v. Forbes, Va. Ct. of Appeals, Unpublished, No. 1081-12-1
In determining the “best interest” of the child, Va. Code §20-124.3 does not require the court to explain what weight or consideration it has given to each of the statutory factors. Instead, it requires the court to identify the “fundamental, predominating reason or reasons underlying the decision.” Artis v. Jones, 52 Va. App. 356, 363 (2008). In this case, the court satisfied this requirement by identifying the mother’s family support network as an important factor in its decision.
2011—Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 2317-09-1
Trial court erred in excluding from evidence in a custody appeal psychological evaluations of the children, based solely on the fact that the evaluations had previously been ordered sealed by the juvenile court. The trial court’s only indication regarding the refusal to admit the evaluations was that the juvenile court “had a reason for sealing them” and that the trial court “would not disturb that ruling.” If the trial court was concerned about the need for the evaluations to remain sealed and inaccessible to the parties, the court should have simply reviewed the evaluations in camera and then ordered them resealed. The mere fact that the juvenile court had ordered them sealed was no reason for the trial court to ignore relevant evidence as it sought to determine the children’s best interests.
2010—Flanagan v. Flanagan, Va. Ct. of Appeals, Unpublished, No. 0468-10-4
Despite the trial court’s statement that it was “not in a position to articulate what specific inappropriate conduct in the form of an act, or series of acts, might have occurred between the child and her father,” the trial court did not err in awarding sole physical and legal custody to mother with supervised visitation to father, based on the court’s finding that “it is more likely than not that this inappropriate act or series of acts occurred.” The trial court was not required to make specific findings of acts of sexual abuse in order to consider evidence related to sexual abuse when deciding the best interests of the child.
2010—Alexander v. Allen, Unpublished, No. 1680-09-1
he following language, contained in the trial court’s opinion letter, failed to meet the requirement, pursuant to Virginia Code §20-124.3, that the trial court communicate case-specific reasons for custody and visitation awards: “after considering the mandatory provisions of Code §20-124.3, and after considering the testimonies of the witnesses, the parties, the recommendation of the guardian ad litem and the best interest of the child, the Court orders….”
2009—Haring v. Haring, Va. Ct. of Appeals, Unpublished, No. 1085-08-4
Trial court was not required to communicate the basis of its decision finding no material change in circumstances pursuant to Virginia Code §20-124.3. Communication pursuant to the statute is required only when the court makes a determination as to the best interests of the child. However, because the court ruled that no material change in circumstances existed, it did not reach the “best interests of the child” prong of the test, and was therefore not required to communicate the basis of its decision pursuant to §20-124.3.
2008—Artis v. Jones, 52 Va. App. 356
Trial court erred by failing to explain how the factors contained in Va. Code §20-124.3 applied to determine how the best interests of the child would be served by the specific change in custody and visitation ordered by the court. “While communicating the basis of the [custody] decision does not rise to the level of providing comprehensive findings of fact and conclusions of law, it does mean that the trial court must provide more to the parties than boilerplate language or a perfunctory statement that the statutory factors have been considered.” (citing Lanzalotti v Lanzalotti, 41 Va. App. 500 (2003)). The trial court must provide a case-specific explanation of the fundamental, predominating reason or reasons for the decision.
2003—Kane v. Szymczak, 41 Va. App. 365
When ruling on the “best interests” of a child, Va. Code §20-124.3 requires the trial court to identify the fundamental, predominating reason or reasons underlying its decision. This level of specificity does not require the court to address all aspects of the decision making process, as one would expect from comprehensive findings of fact and conclusions of law, nor require the court to quantify or elaborate as to exactly what weight or consideration it has given to each of the statutory factors. However, the statutory command cannot be satisfied by formulaic and generalized explanations such as “I’ve considered all the factors and I rule thus...” or “the best-interest test generally favors...” To satisfy the statute, the trial court must provide a case-specific explanation of the fundamental, predominating reason or reasons for the decision. Arguments that the parties could infer the court’s underlying reasons from reports, or closing arguments, or some other contextual source should likewise fail. If the parties must infer the reasons, it is probably because the judge did not communicate them directly. An unspoken and unwritten inference, no matter how strong, cannot substitute for what the statute requires: an express communication to the parties of the basis for the decision.
1984—Armistead v. Armistead, 228 Va. 352
The trial court erred by limiting the evidence to facts and circumstances that occurred subsequent to the entry of a temporary custody order. The temporary order, which incorporated an agreement of the parties, was regarded by the parties as a mere experiment, with which neither party was fully satisfied. Therefore, neither the agreement nor the temporary order were entitled to conclusive effect on the paramount question before the trial court, which was in whose custody would the child’s best interests be served.
2017—Vechery v. Cottet-Moine, Va. Ct. of Appeals, Unpublished, No. 1143-16-4
The trial court did not abuse its discretion in prohibiting the child from playing competitive golf for one year. Although the trial record indicated that the child was a talented golf player who had played in nineteen tournaments in the year prior to the custody hearing, the record also showed that Father removed the child from school for a golf tournament, became upset when Mother participated in the child’s golfing events, and essentially forbid Mother’s involvement with the child’s golfing activities. Under these facts, the trial court acted within its discretion in concluding that competitive golf negatively affected the child’s welfare.
2015—Salvato v. Salvato, Va. Ct. of Appeals, Unpublished, No. 0399-15-4
The trial court did not abuse its discretion in enjoining Mother from having any contact with her alcoholic husband during her visitation time with the child where the restriction was in the best interests of the child. The trial court properly found that the child would be irreparably harmed if Mother contacted her husband during visitation, and the injunction was not vague or overbroad. The no-contact provision was an essential element of the visitation awarded in the order.
2013—Koss v. Brown, Va. Court of Appeals, Unpublished, No. 1032-13-4
The trial court did not err by ordering that during Father’s telephone calls with the children, Father could not discuss or supervise German homework that Father had assigned to the children. Protection of children from harm, whether moral, emotional, mental, or physical is a valid and compelling state interest, (citing Knox v. Lynchburg Div. of Soc. Serv., 223 Va. 213 (1982)). Here, the evidence showed that when Father supervised the children’s German homework over the telephone, Father yelled at the children and verbally abused them. Although the trial court prohibited Father from discussing the German Homework with the children over the telephone, Father was free to do German homework with the children when they were face-to-face. Thus, the trial court’s remedy was appropriate to advance the compelling state interest in protecting the children in the least restrictive manner and was consistent with Father’s First Amendment right to free speech, (citing Roberts v. Roberts, 41 Va. App. 513 (2003)).
2011—Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 0068-11-2
The trial court did not err in ordering mother to pay the pro-rata costs for her visitation with the children while the children were with her in the U.S., nor in requiring her to pay the entire costs of her visitation with the children in Japan, where they resided with the father. Despite the fact that the father earned significantly more than the mother, the father, as primary custodian, bore most of the costs of the children’s upbringing, and resided with the children in Tokyo, Japan, which the court noted was “one of the most expensive cities in the world.” The mother worked full-time and lived with her own father, and demonstrated through the hiring of an expert and the payment of over $150,000 in legal fees that she had the ability to pay the costs of visitation.
2011—Freeman v. Golden, Va. Ct. of Appeals, Unpublished, No. 1550-10-4
Having determined that the father’s inability to agree on co-parenting matters with the mother negatively affected the child, the trial court did not err in granting mother (i) all final decision-making authority with regard to the child’s sporting and extra-curricular activities, (ii) allowing mother to select one sport that could occur during father’s visitation time, thereby requiring father to meet all obligations for that sport that occurred during his time, and (iii) allowing the mother to give the nine-year-old child a cell phone, over father’s objection, that the child could use to make and receive calls from the mother while in father’s custody.
2011—Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
The trial court did not err in granting father decision-making authority regarding the child’s education and daycare arrangements, where the mother had placed the child in three different day care facilities in three years, had used at least three different baby sitters in the same period, and had used a nanny to care for the child for extended periods of time, even when the mother wasn’t working. Where the parents’ exercise of joint responsibility for and authority to make decisions for the child is not consistent with the child’s best interest, the court may modify their joint legal status by fashioning and applying any combination of joint legal and physical custody which the court deems to be in the best interest of the child.
2011—Barrett v. Barrett, Unpublished, No. 0753-10-3
The trial court did not inappropriately decide a matter of child support by requiring as part of a custody/visitation order that Father be responsible for all transportation to and from visitation. The requirement merely apportioned the responsibility of transportation, not the costs. The legislature’s inclusion of the cost of visitation travel as a permitted factor in deviating from a general child support calculation does not mean that a determination of who is responsible for transportation as it relates to visitation is an imposition of costs and thus solely a child support matter.
2007—Sirney v. Sirney, Va. Ct. of Appeals, Unpublished, No. 0754-07-4
The trial court’s restriction on Mother having overnight guests when the children were visiting did not violate Mother’s equal protection or due process rights. The overnight restriction did not impose a limitation based upon mother’s homosexual relationship and it did not restrict or deprive her of a liberty interest. Rather, the restriction was gender neutral, applying to both male and female overnight guests, thereby applying equally to both heterosexual and homosexual relationships. Furthermore, the trial court specifically stated that the focus of its analysis was not Mother’s homosexual relationship, but the conduct and relationship of each parent with the children and the best interests of the children. Further, the trial court emphasized that Mother’s homosexual relationship was significant only in its consideration of how the children had reacted to the relationship.
1995—Forrest v. Ruhlin, Va. Ct. of Appeals, Unpublished, No. 2256-94-4
Trial court did not err in ordering that mother's new husband not make derogatory comments about the children's father in the presence of the children. Mother's husband had testified as a witness, was present in court, and was subject to the court's authority. In exercising its authority to promote the best interests of children, a trial court may impose restrictions which affect non-parties.
1986—Eichelberger v. Eichelberger, 2 Va. App. 409
Unless circumstances justify placing restrictions or conditions on visitation privileges, the relationship between a child and non-custodial parent should not be subject to the dictates of the custodial parent. In instances in which visitation privileges have been liberally granted without restriction, and absent a court finding that the non-custodial parent has acted without concern for the child’s well-being or best interest, has demonstrated irresponsible conduct, or has interfered with basic decisions which are the responsibility of the custodial parent, or a finding that the activity questioned by the custodial parent presents a danger to the child’s safety or well-being, neither the custodial parent nor the Court may intervene to restrict activities during visitation. The specific issue was the child’s use of a mini bike.
2012—Layne v. Layne, 61 Va. App. 32Va. Ct. of Appeals, No. 2175-11-3
The trial court erred in finding that the mother’s parental rights had been terminated by a settlement agreement. Although the parties entered into a property settlement agreement in which mother relinquished her parental rights to the child, and although said agreement was incorporated into a final order of divorce, Va. Code § 16.1-283 must be strictly complied with in order to terminate parental rights. Here, none of the procedural or substantive requirements of the statute were met by the mere inclusion of the language in the parties’ agreement nor by the incorporation of that agreement into a final order of divorce.
2012—Ferrell v. Alexandria Department of Community & Human Services, Va. Ct. of Appeals, Unpublished, No. 0155-12-4
The trial court did not err in terminating mother’s parental rights to her youngest child pursuant to an Entrustment Agreement, despite her latest efforts to obtain employment and housing, when mother’s past actions with respect to her three older children indicated that the youngest child was at risk of being abused and neglected by mother. A psychological evaluation revealed that mother had inadequate coping skills and limited cognitive abilities, which led to impulsivity and poor decision-making. In addition, mother stopped her individual therapy sessions and stopped taking her psychotropic medications in spite of the evaluator’s recommendation. Moreover, mother failed to recognize any deficiencies in her parenting and believed she was adequately taking care of her children.
2007—Battle v. City of Portsmouth Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 0593-06-1
Trial court did not err in terminating both Mother’s and Father’s parental rights under Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Mother’s overwhelming addiction to illicit drugs was the basis for the abuse and neglect determination by the Portsmouth Juvenile & Domestic Relations District Court. Additionally, Father’s mental deficiency is of such severity that there is no reasonable expectation that he will be able to undertake responsibility for the child. Nothing in the record suggested additional time will make either parent able to properly care for the child. In the twenty-three months that the child had been in foster care, neither parent had completed the services offered to remedy the problems that brought the child into foster care.
2007—Buchanan v. Bedford County Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 2318-06-3
Trial judge did not err in terminating appellant’s residual parental rights to her minor child pursuant to Va. Code §16.1-283(C)(2). Mother was diagnosed with bipolar schizophrenia and schizophrenia with delusional episodes, and suffers from alcoholism, and child was born with severe medical problems. Mother missed meetings convened by family assessment and planning teams as well as individual counseling sessions and a substance abuse evaluation, did not attend parenting classes, lived in inappropriate housing, and was unemployed. In general, Mother was unable to show any progress in meeting the child’s needs.
2007—Caddell v. Spotsylvania Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 2307-06-2
Trial court did not err in terminating Father’s parental rights. Father was incarcerated for sexual crimes involving his stepson and acknowledged extensive alcohol and marijuana use. Father also revealed prior convictions for driving under the influence, domestic violence, and sexual battery. Additionally, Father had no plans for housing or employment upon his release from prison.
2007—Hart v. Arlington County Department of Human Services, Va. Ct. of Appeals, Unpublished, No. 1653-06-4
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283. Department of Human Services proved by clear and convincing evidence that termination of Father’s parental rights was in his child’s best interest. The evidence proved that the child lived with his Mother until the Mother was no longer able to care for him. During that time, Father’s whereabouts were unknown. When Father requested custody after the child as placed in foster care, Department of Human Services found that Father’s criminal history included “barrier crimes” that prevented Department of Human Services from placing the child in Hart’s care. Also, the trial court did not abuse its discretion in denying a motion for continuance so that Father could have additional time to assist counsel and for family members to file for custody before his parental rights were involuntarily terminated. The evidence showed Father never gave the names of his relatives to Department of Human Services and that even when his relatives heard that the child was in foster care, they did not inquire about the child or file a petition for custody.
2007—Jackson v. City of Portsmouth Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 2757-06-1
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283. At the time of the termination hearing, the child had been in foster care for more than two years. During that period, appellant made no provisions for or made any contact with the child. The evidence proved appellant completely failed to avail herself of the assistance and resources provided by Department of Social Services. Appellant did not maintain contact with Department of Social Services or with the attorney representing her in the termination action.
2007—Kasey v. Roanoke City Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 2896-06-3
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Both children have significant special needs that require highly competent skills, which Mother simply does not possess. Mother’s lack of parenting skills was revealed not only by her psychological evaluation, but also through her impact on the children, both of whom shared a “trauma bond.” Based upon such evidence, the trial court properly concluded that it was not reasonably likely that the conditions which resulted in the children’s neglect or abuse could be substantially corrected or eliminated so as to allow their safe return to Mother within a reasonable period of time.
2007—Luciano v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 169
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(C)(2). The evidence sufficiently proved that he was unwilling or unable within a reasonable period of time to remedy substantially the conditions causing the child to be placed in Department of Social Services custody. He failed to participate in and/or complete programs and services offered by Department of Social Services. He never found safe housing for the child. He was unemployed. He did not maintain contact with Department of Social Services. He had difficulty managing his anger. He was unstable as reflected by his recent attempt to commit suicide. He suffered from mental conditions requiring treatment and management.
2007—Rothgeb v. Harrisonburg Rockingham Department of Social Services, 2007 Va. App. Unpublished, 23
Trial court did not err in terminating Mother’s parental rights to her three children pursuant to Va. Code Section 16.1-283(B). Evidence showed, inter alia, the children were subjected to repeated instances of physical abuse by Father, and Mother failed to protect them; Mother and Father often engaged in physical violence with each other in view of the children; the children were found to be inadequately supervised on numerous occasions; while she was in training with the National Guard she did not maintain contact with the children; all the children had special needs; and Mother demonstrated inadequate parenting skills.
2007—Shallcros's v. Hanover County Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 1861-06-2
Trial court did not err in terminating Mother’s parental rights pursuant to Va. Code §16.1-283(B). Mother, an admitted alcoholic, made no effort to follow the treatment recommendations as Department of Social Services required. In fact, after the child entered foster care, Mother continued to drink and to engage in behavior resulting in criminal convictions. Mother was incarcerated for a significant portion of time while the child was in foster care.
2007—Snead v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 12
Trial court did not err in terminating appellant’s parental rights to her child pursuant to Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Mother was diagnosed with schizoaffective disorder and denied being pregnant until the day the child was born and at times later still denied she had a child. Expert testified that Mother was unable to plan appropriately, unable to understand what she sees, and unable to execute a response to events. Mother was unable to complete or even begin recommended services offered to her and often went without taking her medication.
2007—Sprouse v. Orange County Department of Social Services, 2007 Va. App. Unpublished, 79 Trial court did not err in terminating father’s parental rights under Va. Code §16.1-283(C)(1) and Va. Code §16.1-283(C)(2) where the record indicated that it would be in the child’s best interest by clear and convincing evidence.
2007—Sylvia v. Hampton Department of Social Services, 2007 Va. App. Unpublished, 109
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283(C)(2). While Mother completed most of the Department of Social Services recommendations, she still did not have the cognitive ability to care for the child. She could not tell time, thus imperiling the child’s need to be fed and timely given medication. The evidence clearly proves that additional time would not remedy Mother’s cognitive functioning nor her inability to ensure the health, safety, and well-being of the child.
2007—Trent v. Prince Edward County Department of Social Services, 2007 Va. App. Unpublished, 168
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(B). At the time of the termination hearing, the child was forty-six months old and had spent forty-one of those forty-six months in foster care. The child was first removed from Mother at four months of age when it was discovered the child had shaken baby syndrome. The baby was removed again when Mother was found to be with her estranged boyfriend in violation of a condition of the child’s return to Mother’s custody. Additionally, following a weekend visit Mother returned the child with a third-degree burn. Despite the provision of rehabilitative services, Mother failed to show that she is capable of resuming responsibility in caring for the child.
2007—Watkins v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 268
Trial court did not err in termination of Father’s parental rights pursuant to Va. Code §16.1-283(C)(2). The termination hearing occurred while Father was incarcerated. Department of Social Services attempted to reunite the two children with their Mother, but her parental rights were eventually terminated. Father failed to maintain any contact with the children while he was in incarcerated. Father failed to participate in substance abuse counseling or job training while he was incarcerated. After Father was released from incarceration, he did not secure employment, but was arrested and convicted on a new charge.
2007—Wilson v. Fairfax County Department of Family Services, 2007 Va. App. Unpublished, 116
Trial court did not abuse its discretion in denying Mother’s motion to vacate the order terminating her residual rights to her son. Mother signed the order as “Seen and Agreed.” Her parental rights to her four older children already had been terminated and, therefore, Mother certainly understood the consequences of a parental rights termination proceeding. Mother argued that she had signed the order under duress, but was unable to specify how she had been under duress. Mother also claimed there were family members who could care for her son, but was unable to give the court any names.
2007—Wooten v. Henrico County Department of Social Services, 2007 Va. App. Unpublished, 96
Trial judge erred in terminating Mother’s parental rights where the sole basis for the termination was Mother’s incarceration. Mother has demonstrated the willingness and ability to take advantage of all the parenting and skill development classes offered to her during her incarceration and has had continual contact with her child during her incarceration. Upon her release, Mother has a plan that will enable her to pay off her debts, provide stable housing, and provide stable care for her child.
2006—Abbitt v. Lynchburg Division of Social Services, 2006 Va. App. Unpublished, 484
There was no error in trial court’s decision terminating Father’s residual parental rights. Division of Social Services presented clear and convincing evidence that Father could not correct the conditions that resulted in abuse and neglect of the child within a reasonable period of time and that Division of Social Services provided adequate services based on Father’s needs. Father would not leave Mother despite her history of child abuse. Father failed to keep some of his appointments with professionals, and he struggled with basic safety concepts.
2006—Butler v. Culpeper County Department of Social Services, 48 Va. App. 537
Trial court properly relied on entrustment agreements entered into between appellant Mother and Department of Social Services, and clear and convincing evidence supported terminating Mother’s parental rights to her two children. Because appellant did not provide the Department of Social Services with written revocation of the entrustment agreements, they were properly before the court. Moreover, evidence supported termination as Mother, inter alia, suffers from drug addiction, has been incarcerated due to her conduct, and is not reasonably likely to correct the problems.
2006—Cartwright v. Cartwright, 49 Va. App. 25
Father, non-custodial parent, was not invested with “care and custody” of his children and thus could not be relieved of parental rights and obligations. Thus, his petition for voluntary relinquishment and termination of his parental rights was properly denied.
2006— Fauncher-Whitney v. City of Hampton Department of Social Services, 2006 Va. App. Unpublished, 449
Trial court did not err by terminating appellant’s parental rights to her child pursuant to Va. Code §16.1-283(C)(2). Family failed to clean home adequately and remove safety hazards. The four-year-old child weighed 20 pounds. She frequently cried at school. She suffered from a genetic disorder, severe mental retardation and physical delay. Since being in foster care, her condition had improved drastically. She gained weight, learned to communicate, and was placed in a school that could address her special needs. Mother did not take advantage of visitation opportunities. In short, Mother did not remedy substantially the conditions which led to or required the continuation of child’s foster care.
2006—Richmond Department of Social Services v. Crawley, 47 Va. App. 572
Trial court did not err in denying the Department of Social Services petition to terminate Mother’s parental rights where the Department of Social Services did not prove by clear and convincing evidence that termination was in the children’s best interests. Evidence indicated that Mother was a loving mother who made efforts to find housing for the children and employment for herself; while in the hospital and in jail she maintained contact with her children; and she attended substance abuse classes. Foster care was necessary only because of the situation in which the mother found herself.
2006— Rothgeb, Sr., v. Harrisonburg Rockingham Department of Social Services, 2006 Va. App. Unpublished, 583
Trial court did not err in terminating appellant’s parental rights to his three children under Va. Code §16.1-283(B). Evidence showed that Father sometimes drank excessively so that he would pass out and he had four DUI convictions. There was evidence of domestic violence and specifically of violence toward the children. Children told counselors of their fear of their father. Father failed to meet the basic needs of the children.
2006—Seibert v. Alexandria Division of Social Services, 2006 Va. App. Unpublished, 521
Trial court did not err in terminating Father’s parental rights to his daughter. Court Appointed Special Advocates (CASA) reports were properly prepared and admitted. The admission of any hearsay evidence was harmless. There was no error in admitting expert testimony that adoption was in the child’s best interests.
2006—Varick v. Newport News Department of Social Services, 2006 Va. App. Unpublished, 472
Trial court did not err in terminating father’s residual parental rights to his minor son under either Va. Code §16.1-283(C)(1) or Va. Code §16.1-283 (C)(2). Father was incarcerated and had not seen his son since 1998. Father did not respond to foster care service plans. Meanwhile, the child was thriving in foster care.
2005—Fields v. Dinwiddie County Department of Social Services, 46 Va. App. 1
Trial court did not err in terminating appellant’s residual parental rights. Mother had been diagnosed with schizophrenia but refused to take her medicine or regularly attend counseling sessions or appointments with her psychiatrist, refused to take parenting classes, and on supervised visitation failed to handle or feed the child in an age appropriate manner. Termination was in the child’s best interests.
2005—Toms v. Hanover Department of Social Services, 46 Va. App 257
Trial court did not err in terminating father’s parental rights to six of his children under Va. Code §16.1-283(B). A psychologist testified to profound neglect as evidenced by the children’s underdeveloped speech, intelligence, motor skills, and social and emotional functioning. Moreover, the residence was so pathetically substandard that it in itself demonstrated abuse and neglect. Psychological testing of Father revealed mental illness and evidence showed history of alcoholism. Record supported circuit court’s finding that Father could not within a reasonable amount of time substantially remedy the situation that resulted in his children being placed in foster care. Neither statutory nor constitutional law requires that the court order rehabilitative services.
2000—Fields v. Hopewell DSS, Va. Ct. of Appeals, Unpublished, No. 1936-99-2
Evidence meeting the requirements of Virginia Code §16.1-283 is sufficient to rebut the natural-parent presumption. Trial court did not err in holding that DSS rebutted the presumption in favor of the child’s father based on evidence that the father had no contact with the child for years, provided no support, and made no attempt to plan for the child’s future.
1990—Kaywood v. Halifax County of Department of Social Services, 10 Va. App. 535
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 (or her) responsibilities.
2013—Thompson v. Fairfax County Department of Family Services, Va. Ct. of Appeals, Nos. 2185-12-4, 2216-12-4, 2217-12-4, 2232-12-4 (accord, Dinwiddie Department of Social Services v. Nunnally, Va. Sup. Ct., No. 131584 (Oct. 31, 2014))
Under the Indian Child Welfare Act, a state court shall transfer a termination of parental rights case involving an Indian child not domiciled on a reservation unless the court finds “good cause” not to transfer the case. “Good cause” exists where the transfer of jurisdiction itself would cause immediate, serious emotional or physical damage to the child.
1982 --- Walker, Sr. v. Dept. of Public Welfare, 223 Va. 557
As with the majority of final orders entered by a juvenile court, a final order terminating residual parental rights is heard de novo on appeal in the circuit court.