PARENTAL RIGHTS TERMINATION – OTHER CHILD TOO AS PACKAGE DEAL. The Welfare Department’s nasty but understandable habit of termination of rights as to all the kids because a parent has abused or neglected one is not always acceptable to the courts. And properly so, the Court of Appeals held in Fauquier County DSS v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811 (12/6/11). A circuit court agreed to terminate a mother’s parental rights as to her older child, but rejected the petition as to the younger one, holding that the statutory standard had not been met. The DSS of course appealed. Of the couple’s four children, the oldest two were the most “special needs,” and all the children had been taken away from the parents and put in foster care. This mother non-complied with her subsequent “service plan goal agreement” in several ways and the evidence showed that the oldest had been sexually abused because he exhibited explicit sexualized behavior. The court granted the termination as to the oldest two children, but denied it as to the younger two, and the DSS appealed as to the third oldest. The Court of Appeals starts its analysis by citing a case saying that the paramount consideration in a termination case is best interests. The DSS of course argued that it wouldn’t be reasonable not to make an inference that if the mother was unable to parent two children she will necessarily end up having the same bad things happening to the younger kids, and therefore she should lose custody of all. The Court of Appeals thought otherwise, as a court must carefully consider individually what the evidence has been as to each child and apply the statutory criteria to each. One of the several things the trial court took note of was that when the mother was granted visitation with her foster cared kids, a lot of her attention had to be devoted to managing the two unruly older boys. It did not find that enough evidence had been shown to analyze the mother’s parenting skills as to the younger two children. It observed that if she had only the younger two, she wouldn’t be as outnumbered and overwhelmed by the management of those, without the ill-behaved older boys making it impossible. The trial judge found nothing to suggest that the mother and maternal grandmother could not properly supervise nor focus attention on the two younger children. The court did not err in so reasoning, the Court of Appeals said. But aha, the DSS countered: the trial court erred by returning custody of the third child to the mother because that would violate an outstanding foster care plan in the form of a JDR court order that the mother had not appealed to circuit. No, the Court of Appeals patiently explained, as clearly stated in a 2005 opinion, an order denying termination and transferring custody back to the mother entirely moots the foster care decision and plan. After all, termination and foster care recommendation approval have very different burdens of proof, and the one for termination is considerably more stringent. And it necessarily includes, the Court of Appeals held, a custody decision.