Wanda STRONG v. HAMPTON DEPARTMENT OF SOCIAL SERVICES. Kevin Strong v. Hampton Department of Social Services.
Record Nos. 1287-04-1, 1288-04-1, 1289-04-1, 1290-04-1, 1291-04-1 and 1347-04-1
Court of Appeals of Virginia, Chesapeake
March 29, 2005
610 S.E.2d 873
JAMES W. BENTON, JR., Judge.
Fred C. Hardwick, II (Eusner & Hardwick, P.C., on brief), Hampton, for appellant Wanda Strong.
Carter Phillips (Weisbrod and Phillips, P.C., on brief), Hampton, for apрellant Kevin Strong.
Present: BENTON, FRANK and FELTON, JJ.
JAMES W. BENTON, JR., Judge.
The trial judge terminated the parental rights of Wanda Strong and Kevin Strong with respect to their five children. Both the mother and the father contend that the trial judge erred in terminating their parental rights because no foster care plan had been filed “pursuant to [Code] § 16.1-281, which documents termination of residual parental rights as being in the best interests of the child[ren].”
I.
The record establishes that a judge of the Juvenile and Domestic Relations District Court of the City of Hampton ordered the removal of five children from the care of their mother and their father on October 12, 2000. The judge found that the children were abused and neglected, and he ordered the children into the custody of the Hampton Department оf Social Services. Later, the Department filed a foster care plan with a goal of “Return to Parent.” The Department returned the children to the physical custody of the mother and father in 2002; however, the Department retained legal custody of the children until the judge entered further orders on November 12, 2002. The district court judge also entered a protective order, which required the parents to cooperate with the Department in the provision of reasonable services and programs and to refrain from any offensive conduct toward the children. On December 12, 2002, thе district court judge entered a preliminary protective order against the father, barring him from any contact with one of the children because of physical injury to her and removing the father from the household.
On January 15, 2003, the district court judge granted petitions removing the children from the home because of abuse and neglect, and he dismissed the protective order. Two months later, on March 25, 2003, a hearing was held in the district court concerning the foster care plans the Department filed. The plans recommended the goal of placing all five children with relatives. Following the hearing, thе district court judge rejected the plans and ordered the Department to file another plan. The judge also ordered the mother and father to submit to parental capacity evaluаtions.
On May 23, 2003, the Department prepared foster care plans recommending a goal of returning one child to the parents and placing the remaining four children with relatives. Following a heаring on June 17, 2003, the district judge made findings of fact, including that the children had remained in the jurisdiction of the district court for various reasons since October 12, 2000, that the mother and father did not always cooperate with the Department, that no relative placement could be stable based upon the past behavior of the mother and the father, that placement with relatives was not in the best interеst of the children, and that termination of parental rights was in the best interest of the children. The district judge then entered an order that “approved” the plan with a “revised goal of adoption.” The judgе‘s orders also “directed [the Department] to file petitions to terminate parental rights.”
On September 12, 2003, the Department filed petitions to terminate parental rights. The district judge entered ordеrs terminating the parental rights of the mother and the father on December 11, 2003. The mother and the father appealed these orders to the circuit court. In the circuit court, both the mother and thе father objected, based on the Department‘s failure to comply with the requirements of
II.
In pertinent part,
That scheme provides detailed procedures designed to protect the rights of the parents and their child. These procedures must be strictly followed before the courts are permitted to sever the natural and legal bond between parent and child. Except in the case of abandonment and where the identity of the parents cannot be determined, that scheme provides that after the filing of a foster care plan which documents termination of residual parental rights as being in the best interests of the child, and after proper notice to the parents and an opportunity to be heard, the courts may terminate residual parental rights based on specified statutory factors, such as abuse, neglect or failure to provide for essential needs of the child.
Rader, 5 Va.App. at 526, 365 S.E.2d at 235-36. Recognizing that “termination of parental rights is а grave, drastic, and irreversible action,” Martin v. Pittsylvania County Dep‘t of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted), we have held that “[i]t is implicit in the statutory scheme ... that the natural parent, at subsequent hearings concerning that child, is entitled to prior and specific notice of the disposition sought by the agency in whose custody a child has been placed.” Id. at 22, 348 S.E.2d at 17. In view of the parental interest at stake in these proceedings, “due process rеquires the trial courts to comply strictly with the statutory scheme for disposition of child custody cases.” Rader, 5 Va.App. at 528, 365 S.E.2d at 237 (citing Martin, 3 Va.App. at 22, 348 S.E.2d at 17).
The record in this case establishes that the Department never filed a foster care plаn that recommended termination of the parental rights of the mother or the father. Indeed, on brief, the Department “concedes that the plans as they were filed on May 23, 2003, did not document that termination of parental rights was in the best interest of the children.” Nevertheless, the Department contends that the district judge‘s order satisfied the mandate of
The statute places on the Department the obligation to prepare a foster care plan. See
Stanley, 10 Va.App. at 603, 395 S.E.2d at 202. Thus, in Stanley, where the most recent foster plan did not recommend termination of parental rights but, rather, recommended placing the child with a relative, 10 Va.App. at 600, 395 S.E.2d at 201, we held that the trial judge was not authorized to terminate the parental rights. Id. at 605, 395 S.E.2d at 204.
To accomplish the legitimate governmental objective and to protect the parental interests, the Depаrtment and the courts are required to follow the statutory scheme the legislature enacted. In addition to assuring that the Department performs its legitimate functions, the requirement “to comply strictly with thе statutory scheme” guarantees proper notice is given to the parents before the irreversible disposition of terminating parental rights occurs. Rader, 5 Va.App. at 528, 365 S.E.2d at 237. Succinctly stated: “Due process demands it.” Martin, 3 Va.App. at 23, 348 S.E.2d at 17.
In these cases, the district judge “apprоved” and “revised” a foster care plan in which the Department had not recommended termination of parental rights. Thus, if the Department wished to pursue termination of the parental rights, the Deрartment had a duty to first file a foster care plan in the district court with the goal of terminating parental rights in compliance with
Reversed and dismissed.