In the case of McDonald v. the Henrico County Department of Social Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court correctly terminated the parental rights of a father who was incarcerated for part of the child's time in foster care where clear and convincing evidence proved appellant failed to maintain contact with or substantially plan for the future of the child.
Code § 16.1-283(C)(1) requires proof, by clear and convincing evidence that:
The parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationship. 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 this condition.
[W]hile long-term incarceration does not, per se, authorize termination of parental rights or negate the Department’s obligation to provide services, it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court’s finding by clear and convincing evidence that the best interests of the child will be served by termination.
In this case, father wrote child a few times, but stopped, failed to maintain phone contact with the child or with the DSS and failed to provide them any meaningful plan for how he would raise the child once released.
The father also argued that the DSS never provided him services to strengthen his relationship with his son. Code § 16.1-283(C)(1) required DSS to prove that it made "reasonable and appropriate" efforts to communicate with the father and strengthen his relationship with the child. What constitutes "reasonable and appropriate" efforts can only be judged with reference to the circumstances of a particular case. In this case, the DSS had letter and phone contact with father, but father discontinued the contact, and will not be released from jail until 2013, which combined with the child's special needs, supports a finding that the DSS used reasonable and appropriate efforts.
Comments