COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

FAIRFAX COUNTY DEPARTMENT OF 

 FAMILY SERVICES 

 MEMORANDUM OPINIONTPF

*

F BY PT

v. Record No. 0821-00-4 JUDGE RUDOLPH BUMGARDNER, III 

 

USMAN IBRAHIM 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 Stephanie J. Scott (David P. Bobzien; Robert 

Lyndon Howell; Dennis R. Bates; Office of the 

Fairfax County Attorney, on brief), for 

appellant. 

 No brief or argument for appellee Usman 

Ibrahim. 

The Fairfax County Department of Family Services appeals 

the denial of its petition to terminate the parental rights of 

Usman Ibrahim in his three children.TPF

1

F The trial court found the PT

evidence insufficient, but the department contends the evidence 

mandated a termination under Code § 16.1-283(C)(2).TPF

2

F Finding no PT

error, we affirm. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.T T

TP

1

PT The three children are Adizza (b. 4/20/87), Ninat (b. 

4/14/89), and Farrizat (b. 6/2/93). 

TP

2

PT Code § 16.1-283 provides, in part: 

 C. The residual parental rights of a 

parent or parents of a child placed in 
- 2 -

 The father and mother were foreign nationals living in 

Virginia with their three minor children. The father and mother 

were arrested for importing drugs into the United States when 

they returned from a trip to their native country, Ghana. 

Federal authorities convicted and incarcerated them in 1994,TPF

3

F and PT

at that time, the parents placed the children with a friend, 

Felicia Springs. 

The department did not become involved until October 1997, 

when it removed the children from Springs's custody because she 

physically abused them. The department placed the children in a 

foster care home in November 1997. Two of them remain in the 

same foster care home, but the third child requires residential 

treatment. 

 

foster care . . . may be terminated if the 

court finds, based upon clear and convincing 

evidence, that it is in the best interests 

of the child and that: 

2. The parent or parents, without good 

cause, have 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. 

TP

3

PT The mother was deported upon her release in 1997 to reside 

in Ghana. Her parental rights were terminated based in part 

upon her instability and she did not appeal that decision. 
- 3 -

 The department's initial service plan would have placed the 

children with their maternal aunt. The department did not 

consider placing the children with the father because of his 

incarceration and the expectation that he would be deported upon 

release. The department did consider returning the children to 

the father if he remained in the United States but never acted 

on that possibility. 

 In January 1999, the department changed the goal to 

adoption because "[t]here has not been significant progress on 

the part of . . . [the father]. The goal of return home and 

placement with relative cannot realistically be achieved." It 

filed termination petitions, and the juvenile and domestic 

relations district court terminated the father's parental rights 

June 2, 1999. The father appealed to the circuit court which 

denied the termination for lack of evidence. 

On appeal, the department contends it proved that 

termination was proper under Code § 16.1-283(C)(2). The 

department argues the children entered foster care because the 

parents were incarcerated and unavailable when the department 

removed the children from Springs. Twenty months after the 

removal and placement in foster care, the father was unavailable 

because of his deportation. The department contends that 

rendering little or no service to the father amounted to 

rendering reasonable services because it could not offer 

services during his incarceration in a federal prison. After 
- 4 -

deportation, the department maintains it had no way to provide 

services in Ghana. The department stresses the father had not 

contacted the department during the two months following 

deportation. 

The evidence in this case is not in dispute, though the 

inferences arising from it and the interpretation of it are. We 

view the evidence in the light most favorable to the father, and 

grant to it all reasonable inferences fairly deducible from it. 

UFerguson v. Stafford County Dep't of Social Servs.U, 14 Va. App. 

333, 336, 417 S.E.2d 1, 2 (1992). When the trial court's 

judgment is based upon evidence heard UoreU UtenusU, it will not be 

disturbed on appeal unless plainly wrong or without evidence to 

support it. ULogan v. Fairfax County Department of Human Dev.U, 

13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). 

To terminate the parental rights under Code 

§ 16.1-283(C)(2), the trial court must find by clear and 

convincing evidence (1) that termination is in the best 

interests of the child, (2) that the father failed to remedy 

substantially the conditions leading to, or requiring 

continuation of, foster care, and (3) that the father failed to 

remedy the conditions despite receiving reasonable and 

appropriate services. The trial court's written opinion 

primarily addressed termination under Code § 16.1-283(C)(1): 

failure to maintain contact and plan for the future of a child. 

The juvenile court had terminated the father's rights under that 
- 5 -

subsection, and it best fit the facts presented to the trial 

court. However, the opinion addressed both bases for 

termination under Code § 16.1-283(C). The trial court's opinion 

makes clear the department failed to meet its burden under Code 

§ 16.1-283(C)(2) for three reasons: (1) the conditions that led 

to the placement had been remedied, (2) the only reason offered 

for termination was the father's initial incarceration and 

subsequent deportation, and (3) the department did not provide 

reasonable and appropriate services to the father. The evidence 

supports the trial court's decision to deny termination. 

The trial court found the conditions that brought the 

children into foster care had been substantially corrected 

because Springs was no longer their caretaker and the father was 

no longer incarcerated. The trial court concluded the father's 

deportation was the determining factor in the department's 

decision to seek termination of rights. It found the department 

never developed a service plan for the father, though he had a 

substantial relationship with his children before his 

incarceration. The trial court found the department had offered 

no services to the father to assist in having the children 

returned to him, and it had not considered returning the 

children to him in Ghana. The trial court ruled deportation 

alone was an insufficient basis for terminating residual 

parental rights. 
- 6 -

 The children lived with their mother and father prior to 

their incarceration. Nothing suggested the father abused them, 

and the trial court found he had never abused or neglected them. 

The children were not removed from their father's care but from 

the person with whom the parents entrusted them. The father 

maintained regular contact with his children during his 

incarceration. He called them every Sunday morning until the 

foster parents changed their telephone number. He wrote them 

letters and they wrote to him. In June 1998, the children's 

caseworker took them to see their father. In June 1999, he was 

released from incarceration. 

The father was incarcerated when the children entered 

foster care, but even long-term incarceration alone is an 

insufficient basis upon which to terminate parental rights. 

UFergusonU, 14 Va. App. at 340, 417 S.E.2d at 5. The father's 

sentence was not long-term or unknown. The initial service plan 

dated December 8, 1997 anticipated the father would be released 

within a year. The department would have considered returning 

the children to the father if he remained in the United States. 

While a parent's long-term incarceration is a factor for the 

court to consider, along with "other evidence concerning the 

parent/child relationship," it "does not, UperU UseU, authorize 

termination of parental rights or Unegate the Department's 

obligation to provide servicesU." UId.U (emphasis added). 
- 7 -

Code § 16.1-283(C)(2) requires the department to provide 

reasonable and appropriate services to the father. UHarris v. 

Lynchburg Div. of Social Servs.U, 223 Va. 235, 243, 288 S.E.2d 

410, 415 (1982) (the department must provide reasonable and 

appropriate services to a delinquent parent prior to terminating 

his rights); UCain v. CommonwealthU, 12 Va. App. 42, 46, 402 

S.E.2d 682, 684 (1991) (evidence did not show that with the 

services required by statute the mother would not have been able 

to correct neglect which preceded her incarceration). The 

services offered by the department must be reasonable and 

appropriate given the circumstances of a particular case. USeeU

UFergusonU, 14 Va. App. at 338, 417 S.E.2d at 4; UCainU, 12 Va. App. 

at 45, 402 S.E.2d at 684 (termination order reversed). When 

there is undisputed evidence that the department has not offered 

a parent reasonable and appropriate services, "reversal of a 

termination order is required." UHarrisU, 223 Va. at 243, 288 

S.E.2d at 415 (citation omitted). 

Despite the department's assertion that it provided 

services, the department failed to maintain contact with the 

father or to provide him with any services.TPF

4

F It did not keep the PT

father abreast of Adizza's condition or residence, nor did it 

advise him of the children's new foster care caseworker in April 

 

TP

4

PT The department provided the children with extensive 

services, but that does not satisfy the requirement it provide 

the parent with reasonable and appropriate services. 
- 8 -

1999. The children's guardian UadU UlitemU did not send him an 

introductory letter, and the children's therapist never 

addressed reunification with their father. The department knew 

the father wanted to regain custody upon his release and the 

mother supported that placement. Nonetheless, the department 

never evaluated him, assisted in his transition from 

incarceration, or investigated the possibility of coordinating 

efforts with an agency in Africa. The trial court found the 

department's expectation that the father contact the department 

unreasonable because he did not know who was working with the 

children. It also found the period of two months after 

deportation an unreasonably short period in which he was to 

establish contact. 

 Finally, the department did not establish a UprimaU UfacieU

case under Code § 16.1-283(C)(2)TPF

5

F because the father never failed PT

to do what the department or the court required of him. The 

department never advised the father to seek parenting skills 

training or mental health or substance abuse services despite 

 

TP

5

PT "Proof that the parent . . ., without good cause, [has] 

failed or been unable to make substantial progress towards 

elimination of the conditions which led to or required 

continuation of the child's foster care placement in accordance 

with Utheir obligations under and within the time limits or goals 

set forth in a foster care plan filed with the courtU . . . and 

agreed to by the parent . . . shall constitute UprimaU UfaciUe 

evidence of this condition." Code § 16.1-283(C)(2). 
- 9 -

its contact with the father's caseworker in June 1998. No court 

order required him to seek services. 

This is not a case involving an absentee father with no 

relationship with his children. The department contends the 

home and the services that the father could provide in Ghana 

justify severing the relationship between the children and their 

father. However, the trial court would have to speculate about 

the children's future because the department offered no 

information about the situation in Ghana and made no efforts to 

determine the conditions there. While it may well be best for 

the children to remain in the United States, the decision must 

be based on fact not supposition. 

"The termination of parental rights is a grave, drastic, 

and irreversible action." ULowe v. Dept. of Public WelfareU, 231 

Va. 277, 280, 343 S.E.2d 70, 72 (1986). The statutory framework 

for terminating parental rights, primarily set forth in Code 

§ 16.1-283, "provides detailed procedures designed to protect 

the rights of the parents and their child[ren]. These 

procedures must be strictly followed before the courts are 

permitted to sever the natural and legal bond between parent and 

child." URader v. Montgomery County Dep't of Social Servs.U, 5 

Va. App. 523, 526, 365 S.E.2d 234, 235 (1988). The trial court 

did not err in denying the petition because the evidence was 
- 10 -

insufficient to sever this bond between the father and his 

children. Accordingly, we affirm. 

 UAffirmed.
- 11 -

Clements, J., concurring. 

 I join the majority because I am compelled to accept as 

correct its interpretation of Code § 16.1-283(C)(2) and, thus, 

I, too, cannot say that the trial court erred as a matter of 

law. I write separately, however, to address an issue 

heretofore not addressed. 

 To grant the department's prayer for termination pursuant 

to Code § 16.1-283(C)(2) the trial court was required to find by 

clear and convincing evidence (1) that termination was in the 

best interests of the children, and (2) that the father failed 

to remedy substantially the conditions leading to, or requiring 

continuation of, foster care, and (3) that the father failed to 

remedy the conditions despite receiving reasonable and 

appropriate services. 

 While I agree that a failure of proof on any prong of the 

three-prong test defeats termination, nowhere in its opinion or 

order did the trial court address or make findings concerning 

the best interests of the children. The trial court focused 

solely on the father and the department. 

 While the father and mother were foreign nationals, the 

children are citizens of the United States and speak English 

only. The children first came to the department's attention in 

1995 when it was alleged that Springs was abusive to and 

neglectful of these children and their sibling Fatima, now an 

adult. That petition was dismissed as to these children. 
- 12 -

 Mr. Ibrahim completed his federal penitentiary sentence and 

was deported in approximately June 1999, and he is prohibited 

from returning to the United States. He is reported to be 

working at a family business in Ghana. 

 Each of the children has special needs. Adizza, the 

oldest, has suffered from serious psychological disturbance and 

has been hospitalized multiple times. By age eleven she was on 

three significant medications for depression, mood 

stabilization, and hallucinations. She has a low frustration 

tolerance and can be aggressive, explosive, and hostile. 

Several times she has attempted to harm herself and commit 

suicide. Dr. James Steg, her psychiatrist, testified to her 

need for required residential treatment. 

 Ninat, who has been provided with individual and family 

therapy, is on Ritalin. Her therapists believe that she, too, 

is at risk for suffering psychological problems without 

continued intervention. 

 The youngest child, Farrizat, also known as Fifi, has no 

recollection of her father and no attachment or bond to him. 

When placed in her foster home she suffered from significant 

separation anxiety. She would become hysterical for up to an 

hour if separated from her foster parents. Individual and 

family therapy has also been provided to her. 

 Tawanda Turner-Brown, licensed clinical social worker and 

therapist for the children, testified that they were fearful of 
- 13 -

their father and that he would come and take them to Africa, as 

he told them in a phone call from prison that he would. That 

call by the father resulted in two weeks of "chaos" in the home 

with Ninat and Fifi crying and screaming. Ms. Turner-Brown was 

met with resistance from the children when she attempted to 

guide them to the possibility of resuming a relationship with 

their father. Dr. Steg testified that the children would need 

to have a gradual transition to the father's home to overcome 

their fear, made difficult by the father's inability to 

participate in such a process. Ms. Turner-Brown recommended 

that the children stay with their current foster parents, with 

whom they had a bonded, loving relationship. 

 The record in this case reveals that the Guardian UadU UlitemU

for the children argued to the trial court that termination was 

in "these children's best interest." 

 To me, the evidence before us is clear and convincing that 

it is in the best interests of these children that the father's 

parental rights be terminated. However, in this case we have 

been required by statute to elevate the "technical legal rights 

of the parent" over the paramount consideration--the best 

interests of the children. UForbes v. HaneyU, 204 Va. 712, 716, 

133 S.E.2d 533, 536 (1963). I can only reflect upon the sadness 

and turmoil in the lives of these children that the uncertainty 

of continued foster care will bring.