14.2 Termination of Residual Parental Rights

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

14.2 TERMINATION OF RESIDUAL PARENTAL RIGHTS ⁴⁹

14.201 In General. Section 16.1-283 of the Virginia Code provides the framework and standards for seeking termination of residual parental rights in an adversarial proceeding. ⁵⁰ This section applies to termination proceedings for a child who is in foster care and not to custody disputes between parents. At the hearing on a petition for termination of parental rights, the petitioner must produce clear and convincing evidence of grounds for termination of parental rights and that such termination is in the best interests of the child. The different avenues for termination of rights set forth in section 16.1-283 are discussed in paragraphs 14.202 through 14.205.

14.202 No Reasonable Likelihood of Rehabilitation in Cases of Serious Child Abuse and Neglect.

A. In General. Section 16.1-283(B) provides that, if a child who has come into foster care is found by the court to be abused or neglected, the court can terminate residual parental rights if it finds, by clear and convincing evidence, that termination is in the child's best interests. The court must further find that (i) the abuse or neglect suffered by the child presented a serious and substantial threat to the child's life, health, or development; and (ii) the conditions that resulted in the abuse or neglect are not likely to be substantially corrected to allow the child's safe return home in a reasonable period. In making the latter finding, the court must consider the efforts

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of service agencies to rehabilitate the parents before the child's initial placement in foster care.

B. Application. Section 16.1-283(B)(2) acknowledges that service agencies may have already attempted to work with the parents but, in spite of those efforts, the child was seriously abused or neglected and had to be removed. The section allows the court to find that the parents' condition and history make it unlikely that they will change and it is therefore unnecessary for the department to continue trying to work with the family. ⁵¹

C. Prima Facie Cases. Section 16.1-283(B)(2) gives three examples of prima facie cases in which it is unlikely that conditions resulting in abuse or neglect will be corrected:

		1.	The parents have a mental or emotional illness or intellectual disability of such severity that there is no reasonable expectation of their being able to properly care for the child;
2.	The parents are disabled by drug or alcohol abuse and have not followed through with offered treatment; and
3.	The parents, without good cause, have not responded to services offered to them to "reduce, eliminate or prevent the neglect or abuse of the child."

14.203 Failure of Parents to Communicate with Child or Change Conditions That Resulted in Removal.

A. In General. Section 16.1-283(C) covers children who are in foster care as a result of a court commitment or an entrustment agreement or other voluntary relinquishment, regardless of whether abuse or neglect has been found by the court, and authorizes termination of residual parental rights whenever it is in the child's best interests and:

1. The parents, without good cause, have failed to maintain continuing contact with the child and to provide or substantially plan for the future of the child for a period of six months following the child's

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		foster care placement, in spite of efforts by service agencies to help them do so; or
2.	The parents, without good cause, have been unwilling or unable within a reasonable period, not to exceed 12 months from the date the child was placed in care, to remedy substantially the conditions that led to the child's foster care placement, despite the efforts of service agencies to help them.

B. Application. Section 16.1-283(C) requires "continuing" contact and planning for the child's future during the six months following the child's foster care placement. It is unlikely, therefore, that infrequent contact, such as a phone call every two or three months, would defeat an effort to pursue termination of parental rights under this section.

C. Prima Facie Cases. Under section 16.1-283(C)(1), "proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence" of lack of communication.

Under section 16.1-283(C)(2), proof that the parent or parents have failed to comply within a reasonable period (not to exceed 12 months) with the foster care plan filed with the court, or with any other plan agreed to by the parents and a public or private agency, is prima facie evidence of failure to remedy the conditions that led to foster care placement. This provision allows the court to consider rehabilitation efforts offered to the parents before the child's placement in foster care.

14.204 Abandonment. Section 16.1-283(D) authorizes the court to terminate residual parental rights when the child has been abused or neglected due to abandonment and the court finds, by clear and convincing evidence, that termination is in the child's best interests and:

		1.	The identity or the whereabouts of the parents cannot be determined;
2.	The parents have not come forward to claim the child within three months of the child's placement in foster care; and
3.	Diligent efforts have been made to locate the parents, to no avail.

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14.205 Prior Termination of Parental Rights or Intra-family Criminal Conduct by Parent. Section 16.1-283(E) authorizes the court to terminate residual parental rights when it finds, by clear and convincing evidence, that termination is in the child's best interests and:

		1.	The residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated;
2.	The parent has been convicted of an offense in Virginia, or a similar offense in another jurisdiction, that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim was a child of the parent, a child with whom the parent resided at the time of the offense, or the other parent of the child;
3.	The parent has been convicted of an offense in Virginia, or a similar offense in another jurisdiction, that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury, or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of the offense; or
4.	The parent has subjected the child to aggravated circumstances.

This section repeats the language of section 16.1-281, which states that the local department "shall not" be required by the court to make reasonable efforts to reunite the child with a parent if the court finds that any of these conditions exists.

14.206 Child's Objection to Termination of Parental Rights. Section 16.1-283(G) states that if the child is 14 years of age or older, or "otherwise of an age of discretion as determined by the court," and objects to the termination, then no termination of residual parental rights can occur. ⁵²

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However, residual parental rights of a child 14 years of age or older may be terminated over the objection of the child if the court finds that any disability of the child reduces the child's developmental age and that the child is not otherwise able to understand the proceedings because of this developmental disability.

14.207 Foster Care Plan with Goal of Termination of Parental Rights Required. Section 16.1-283(A) requires that, before the court can accept a petition for termination of residual parental rights, the department must file, either before or at the time of the filing of the termination petition, a foster care plan documenting that termination of residual parental rights is in the child's best interests. Any petition for termination that is filed before a foster care plan is filed is void. ⁵³

14.208 Authority to File Petition Requesting Termination. A guardian ad litem has the authority to file a petition on behalf of the child for the termination of the parents' residual parental rights. ⁵⁴ However, a termination petition is valid only if there is a foster care service plan filed with the court documenting that adoption is in the child's best interests. Presumably, if the department has filed such a plan, it will also be filing a petition requesting termination of residual parental rights. There must be a separate petition for each parent, because the court may terminate the parental rights of one parent without affecting the rights of the other parent. ⁵⁵

The Adoption and Safe Families Act of 1997 provides that each child in foster care under the supervision of the state shall be assured a permanency planning hearing to be held no later than 12 months after the date that child is considered to have entered foster care. ⁵⁶ The Act further provides that a petition for termination of parental rights must be initiated on behalf of any child:

		1.	Who has been in foster care for 15 of the preceding 22 months;
2.	Who has been found by a court of competent jurisdiction to be an "abandoned infant" according to the law of the state;

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		3.	Whose parent had been adjudicated to have committed murder or voluntary manslaughter of a child of that parent or who has committed a felony assault resulting in serious injury to that child or another child of the parent; or
4.	Whose

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