The Court of Appeals overturns a parental rights termination, and a change of goals from reunification to adoption, for lack of evidence that the mother was unwilling or unable to remedy what caused the child's removal, in Sternberg v. Spotsylvania DSS, 5/8/18. Mother had a history of some very non-extreme acts of abuse and neglect, and some cognitive disabilities, but complied almost completely with recommendations, visitations, safety plans and reunification plans, and complied with all court orders. She proved able to meet her child's needs and was beginning to bond and be an effective authority figure to the child.
However, the DSS changed the plan to termination and adoption. An evidentiary hearing in Circuit Court, with the mother representing herself, nonetheless revealed how flimsy their grounds for this were. The DSS witness cited her "defensiveness and argumentativeness" and that there were “incidents with safety” -- but the Court notes that these
"were not situations involving any type of physical or emotional abuse or even corporal punishment. Rather, they involved circumstances such as D.S. continuing to run at a pool after his mother had instructed him to stop doing so and crossing a Wal-Mart parking lot in a manner deemed unsafe."
The DSS was concerned about how the mother responded to information about unspecified criminal charges against her pastor, though they could not point to anything like the mother leaving the child alone with him. They also noted "dysregulation" and a lack of follow-through with discipline of the child.
The Circuit Court rightly dismissed the DSS's concerns about relatively trivial and everyday imperfections, but said that the child was taken away in the first place because of "physical abuse" and the mother had not done anything to acknowledge or remove the causes of that, and so terminated her parental rights. However, (1) it had refused to let the mother introduce evidence of what exactly led to the child's removal in the first place, and (2) what the Court found the mother had failed to do was not at all what the safety plans, recommendations, court orders, etc. had told her to do.
The Court of Appeals says it is unnecessary to address the trial court's refusal to hear evidence of what led to the child's removal, because, it says, there was absolutely no evidence to show, as Code § 16.1-283(C)(2) requires,
"clear and convincing evidence, that it is in the best interests of the child and that . . . [t]he parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 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 ...
In other words, the burdens of production and proof, regarding remedying the conditions, are on the state, not the parent.
The Department asked the Court to affirm on the grounds that there was other evidence in the record supporting other grounds for termination, but the Court notes that the Circuit Court had, rightly, found such evidence of poor parenting skills immaterial. Accordingly, "we reverse the decision of the circuit court and vacate both its order terminating mother’s parental rights to D.S. and its order approving the change in goal for the foster care plan from “return home” to “adoption.”"
The Court also finds that the guardian ad litem failed to provide effective representation, though it does not affect its decision. The GAL sent a colleague from another firm to represent her at the circuit court trial and present her recommendation, "after reaching her conclusions regarding the case without the benefit of the evidence at the hearing," the Court notes with concern.
"Accordingly, no guardian, whether appointed or serving as a substitute, offered an opinion that was formed based on all of the evidence. Thus, D.S. was denied a fully informed guardian to represent his interests, and the circuit court, in reaching its decision, was denied the benefit of a validly formed opinion of a guardian ad litem."