Richard Epps v. Portsmouth Department of Social Services
0030211
Va. Ct. App.Jun 29, 2021Background:
- Child entered foster care on Sept. 21, 2015 after mother's arrest; adjudicated abused/neglected and remained in foster care with the same family since May 2016.
- Father lived in Texas and proposed paternal grandmother as placement; ICPC requests to place the child with grandmother were denied three times (most recently April 2019).
- Father was incarcerated for ~three years (beginning in 2017); while incarcerated the Department encouraged him to send letters/photos but he did not.
- Father’s contact while child in care was minimal: three or four brief phone calls (about five minutes each), no visits, no letters or gifts from father (grandmother sent items).
- Child is eight, has special needs (medication and therapy); mother voluntarily relinquished her rights and the JDR court terminated father’s rights and set adoption as goal; circuit court affirmed termination under Code § 16.1-283(C)(1).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination under Va. Code §16.1-283(C)(1) is supported (failure to maintain continuing contact and plan) | Epps: lived out-of-state and was incarcerated; therefore he had good cause for limited contact and did not fail to maintain contact without good cause | Dept./court: father made minimal contact, no substantial planning or visits, and did not initiate contact or services; prima facie failure established | Affirmed: clear and convincing evidence father failed to maintain contact/plan without good cause; termination under §16.1-283(C)(1) proper |
| Whether the Department failed to make reasonable and appropriate efforts to assist father | Epps: Department provided no services to him and thus efforts were inadequate | Dept./court: Department communicated, offered visitation, investigated grandmother placement, and had no duty to force services on or while father was incarcerated | Affirmed: Department’s efforts were reasonable under the circumstances; not required to provide or force services during incarceration |
| Whether termination was in the child’s best interests | Epps: argues termination harms bond and is not in child’s best interests | Dept./court: child has stable foster placement, special needs, no meaningful parent-child relationship, and father lacked a concrete care plan | Affirmed: termination found to be in child’s best interests |
Key Cases Cited
- Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539 (2018) (standard of review on termination appeals)
- Thach v. Arlington Cnty. Dep’t of Hum. Servs., 63 Va. App. 157 (2014) (reviewing evidence in favor of prevailing party)
- Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149 (2004) (reasonable efforts need not continue in impracticable circumstances such as incarceration)
- Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296 (2013) (Department not required to force services on an unwilling or disinterested parent)
- Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547 (2018) (trial court presumed to have weighed evidence and acted for child’s best interests)
- Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535 (1990) (court should not make a child wait indefinitely for a parent to become capable)