Torrence Jenkins (s/k/a Torrance) v. Rich Dept SocS ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
TORRENCE JENKINS, SOMETIMES KNOWN AS
TORRANCE JENKINS
MEMORANDUM OPINION * BY
v. Record No. 1224-01-2 JUDGE G. STEVEN AGEE
JANUARY 29, 2002
RICHMOND DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Robert P. Dickinson (Clarke, Prince &
Dickinson, on brief), for appellant.
Kate D. O'Leary, Assistant City Attorney
(Robert Carl, Guardian ad litem for the minor
child, on brief), for appellee.
Torrance Jenkins (Jenkins) appeals from a decision
terminating his parental rights to his infant son. The circuit
court found that the Richmond Department of Social Services
(RDSS) presented clear and convincing evidence establishing the
statutory requirements set out in Code § 16.1-283(C)(1) and (2)
for termination of Jenkins' parental rights. Jenkins contends
the circuit court erred (1) in finding that the statutory
requirements were met and (2) in allowing hearsay testimony. We
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reverse the decision of the circuit court to terminate Jenkins'
residual parental rights for the following reason.
BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
On September 30, 1999, RDSS assumed emergency custody of
Jenkins' son when the child's mother was arrested. At that
time, Jenkins' whereabouts were unknown. He learned of his
son's placement in late 1999.
On November 29, 1999, RDSS filed an initial foster care
plan with the goal of returning the child to his mother's home.
The plan was approved by the Richmond Juvenile and Domestic
Relations (J&DR) District Court on March 3, 2000. The child was
returned to his mother, on a trial basis, on March 28, 2000.
Subsequently, Jenkins resumed a relationship with his son and
the mother.
On April 21, 2000, RDSS visited the mother's home and was
witness to an argument between Jenkins and the child's mother.
Jenkins was asked to leave the home. At that time, the
hysterical mother insisted she did not want custody of her son.
The mother was subsequently hospitalized, and Jenkins was, at
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that time, not in the position to take custody of his son. He
was unemployed and did not have a place to live.
Jenkins, however, contacted RDSS and asked for assistance
in obtaining custody of his son. RDSS then began to plan for
Jenkins' eventual custody of his son. On June 17, 2000, RDSS
submitted a foster care plan with the goal of placing the child
with Jenkins. In order to obtain custody of the child, Jenkins
was to maintain contact with RDSS, participate in visitation and
cooperate in the child's transition to his home. Jenkins was
incarcerated in June 2000, and the J&DR court did not approve of
the submitted plan.
In August 2000, RDSS submitted a third foster care plan,
this time with the goal of terminating parental rights and
placing the child for adoption. On September 19, 2000, RDSS
sent Jenkins a letter requesting his incarceration status,
informing him of the need to keep in contact with the agency and
of the adoption plan which provided for services, referrals,
counseling and ongoing visitation rights. This letter was sent
because RDSS recognized the interest Jenkins stated in April
2000 for his son was "a barrier to goal achievement
[(adoption)]." Jenkins responded to the letter on October 13,
2000, and provided what he believed to be his incarceration
status.
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On December 11, 2000, the parties appeared before the J&DR
court in regards to the petition to terminate parental rights to
the child. The J&DR court proceeded to terminate Jenkins'
residual rights to his son. Afterwards, in anticipation of an
appeal to the circuit court, RDSS arranged to speak with Jenkins
after the hearing. He was instructed to maintain contact.
On appeal de novo to the circuit court, Jenkins' residual
parental rights were terminated in April 2001. The circuit
court's letter opinion found RDSS made "reasonable" efforts to
assist Jenkins, but "less than in other cases." Neither the
circuit court's letter opinion nor its order terminating
parental rights referenced any specific evidence to support a
finding of reasonable and appropriate efforts of social,
medical, mental health or other rehabilitative agencies.
STATUTORY REQUIREMENTS WERE NOT MET
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the
paramount consideration of a [circuit] court is the child's best
interests." Logan v. Fairfax County Dep't of Human Dev., 13 Va.
App. 123, 128, 409 S.E.2d 460, 463 (1991).
"In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests." The
[circuit] court's judgment, "when based on
evidence heard ore tenus, will not be
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disturbed on appeal unless plainly wrong or
without evidence to support it."
Id. (internal citations omitted).
The circuit court found that RDSS presented clear and
convincing evidence meeting the statutory requirements set out
in Code § 16.1-283(C)(1) and (2). "Code § 16.1-283 embodies
'the statutory scheme for the . . . termination of residual
parental rights in this Commonwealth' [which] . . . 'provides
detailed procedures designed to protect the rights of the
parents and their child,' balancing their interests while
seeking to preserve the family." Lecky v. Reed, 20 Va. App.
306, 311, 456 S.E.2d 538, 540 (1995) (citations omitted).
Code § 16.1-283(C)(1) provides, in pertinent part, that the
residual parental rights of a parent of a child placed in foster
care may be terminated if the court finds by clear and
convincing evidence that it is in the best interests of the
child and that
[t]he parent . . . [has], 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 . . .
[has] failed without good cause to
communicate on a continuing and planned
basis with the child for a period of six
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months shall constitute prima facie evidence
of this condition.
(Emphasis added).
Code § 16.1-283(C)(2) provides in pertinent part:
The parent . . . without good cause, [has]
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.
(Emphasis added).
The evidence is clear that Jenkins did not have continuing
contact with his son or participate in planning for his child
for at least six months prior to the termination of his residual
parental rights. However, despite Jenkins' non-involvement with
his son, there is no evidence in the record before us that RDSS
offered any services to Jenkins, much less services equating to
reasonable and appropriate efforts. There is no indication in
the record that Jenkins was offered any services from any
social, medical, mental health or other rehabilitative agency.
While the social worker, Ms. Brice, testified that she "offered
services," she never identified any. Instead she simply "let
him know what needed to be done in order for him to gain custody
of [his son]." Nothing in the record indicates that RDSS ever
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offered assistance to Jenkins, a condition precedent to the
termination of parental rights pursuant to either subsection of
Code § 16.1-283(C).
The Supreme Court of Virginia has held that the failure of
the petitioning agency to satisfy this condition precedent
prohibits the termination of parental rights. See Weaver v.
Roanoke Dep't of Human Resources, 220 Va. 921, 265 S.E.2d 692
(1980).
In the absence of evidence indicating that
"reasonable and appropriate efforts" were
taken by social agencies to remedy the
conditions leading to foster care, residual
parental rights cannot be terminated under
Code § 16.1-283(C)[]. Although the circuit
court made a finding that the failure to
remedy the conditions leading to the
children's foster case placement occurred
"notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitation
agencies to such end," nothing in the record
supports the court's conclusions. Since
"conclusions unsupported by facts are
insufficient to sever for all time the legal
connection between parent and child," Ward
v. Faw, 219 Va. 1120, 1125, 253 S.E.2d 658,
662 (1979), and the record contains no
evidence indicating what measures, if any,
the Department or any other social agency
took to provide [the father] with assistance
in remedying his financial difficulties, the
circuit court's orders terminating [the
father's] residual parental rights are
reversed.
Id. at 928-29, 265 S.E.2d at 697.
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For the foregoing reason we reverse the decision of the
circuit court. 1
Reversed.
1
As we reverse for failure to prove compliance with the
statutory condition precedent, we do not address Jenkins' second
assignment of error.
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