COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Felton Argued at Chesapeake, Virginia

WANDA STRONG

v. Record Nos. 128 7-04-1, 1288-04-1, 1289-04-1, 1290-04-1 and 1291-04-1

HAMPTON DEPARTMENT OF SOCI AL SERVICES OPINION BY JUDGE JAMES W. BENTON, JR. KEVIN STRONG MARCH 29, 2005

v. Record No. 1347-04-1

HAMPTON DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Fred C. Hardwick, II (Eusner & Hardwick, P.C., on brief), for appellant Wanda Strong. Carter Phillips (Weisbrod and Phillips, P.C., on brief), for appellant Kevin Strong. Lesa J. Yeatts, Deputy City Attorney; Lawrence A. Martin, Guardian ad litem for the minor children (City Attorney’s Office; Coyle & Martin, on briefs), for appellee.

The trial judge terminated the parental rights of Wanda Strong and Kevin Strong with respect to their five children. Both the mother a nd the father contend that the trial judge erred in terminating their parental rights because no fost er care plan had been f iled “pursuant to [Code] § 16.1-281, which documents termination of residual pa rental rights as being in the best interests of the child[ren].” Code § 16.1-283. The parents also contend the evidence was not sufficient to prove the elements of Code §§ 16.1-283(B) and 16.1-283(C), the statutory bases upon which the trial judge terminated their parental rights. We agree that the Hampton Department of Social- 2 - Services filed a foster care plan that did not satisfy the requirements of Code § 16.1-283; therefore, we reverse the orders terminating the parental rights.

I. The record establishes that a judge of the J uvenile and Domestic Re lations 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 th at the children were abused and neglected, and he ordered the children into the custody of the Hampton Department of Social Services. Later, the Department filed a foster care plan with a goal of “Return to Pa rent.” The Department returned the children to the phys ical custody of the mother a nd father in 2002; however, the Department retained legal custody of the child ren 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, the district court judge entered a preliminary protec tive order against the fa ther, barring him from any contact with one of the child ren because of physical injury to her and removing the father

from the household. On January 15, 2003, the district court judg e 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 wa s held in the district court c oncerning the foster care plans the Department filed. The plans recommende d the goal of placing all five children with relatives. Following the hearing, the district court j udge rejected the pl ans and ordered the Department to file another plan. The judge al so ordered the mother and father to submit to parental capacity evaluations.- 3 - On May 23, 2003, the Department prepared foster care plans recommending a goal of returning one child to the pare nts and placing the remaining f our children with relatives. Following a hearing on June 17, 2003, th e district judge made findings of fact, including that the children had remained in the jurisdiction of the district court for variou s reasons since October 12, 2000, that the mother and father did not alwa ys 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 inte rest of the children, and that termination of parental rights was in the best interest of the children. The dist rict judge then entered an order that “approved” the plan with a “revised goal of adoption.” The judge’s orders also “directed [the Department] to file petitions to terminate parental rights.” On September 12, 2003, the Department filed peti tions to terminate parental rights. The district judge entered orders te rminating the parental rights of the mother and the father on December 11, 2003. The mother and the father appealed these orders to the ci rcuit court. In the circuit court, both the mother and the father objected, based on the Department’s failure to comply with the requirements of Code § 16.1-28 3. They argued the record did not contain a foster care plan providing for termination of thei r parental rights. The ju dge denied this motion. At the conclusion of the evidence, the circuit judge adopted the di strict judge’s findings of fact and found clear and convincing evidence that termina ting the parental rights would be in the best

interest of the children.

II. In pertinent part, Code § 16.1-283 provides that “[n]o petition seeking termination of residual parental rights shall be accepted by the c ourt prior to the filing of a foster care plan, pursuant to [Code] § 16.1-281, which documents term ination of residual parental rights as being in the best interests of the child.” We sp ecifically addressed in Rader v. Montgomery County- 4 - Dep’t of Social Servs. , 5 Va. App. 523, 365 S.E.2d 234 (1988), the necessity of following the statutory procedur es, and we referenced Code § 16.1-283. That scheme provides detailed pro cedures designed to protect the rights of the parents and their ch ild. 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 identi ty of the parents cannot be determined, that scheme provides th at after the filing of a foster care plan which documents terminat ion 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 right s 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. Recogni zing that “‘termination of parental rights is a grave, drastic, and irreversible action,’” Martin v. Dep’t of Social Servs. , 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted), we ha ve held that “[i]t is implicit in the statutory scheme . . . that the natural parent, at subsequent he arings concerning that child, is entitled to prior and specific no tice 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 intere st at stake in these proceedings, “due process re quires the trial courts to comp ly 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 plan that recommended termination of the pare ntal rights of the mother or th e 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 wa s in the best interest of th e children.” Nevertheless, the Department contends that the district judge’s order satisfie d the mandate of Code § 16.1-283 because although the order “approved” its foster car e plans, providing for the return of one child- 5 - to the parents and placement of four children with relatives, the order also revised the plan by mandating a “goal of adoption.” We disagree th at the statutory mandate has been followed. The statute places on the Department the oblig ation to prepare a foster care plan. See Code §§ 16.1-281 and 16.1-282. These statutory pr ovisions are designed to place with the Department, the administrative entity with expertise and resources to aid families and to provide for foster care, the initial determination that te rmination of parental rights is the recommended remedy. “The foster care plan documenting the need for termination can only be filed by the local board of public welfare or so cial services or the child welfare agency that has been given custody of the child.” Stanley v. Dep’t of Social Servs. , 10 Va. App. 596, 602, 395 S.E.2d 199, 202 (1990). “[N]othing in the stat utory scheme . . . removes the burden on [the Department] to establish compliance with the statutes.” Rader , 5 Va. App. at 527, 365 S.E.2d at 236. Code § 16.1-283 . . . directly limit[s] the right to initiate a termination petition by also requir ing the filing of a foster care plan submitted in conformance with Code § 16.1-281, documenting termination as being in the best interests of the child. Therefore, under Code § 16.1-283, no termination petition can be accepted by the court unless the loca l board of public welfare or social services, or other child we lfare agency which has custody of the child, presents the court with a foster care plan recommending termination as being in the best interests of the child. 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 parent al rights but, rather, re commended 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 objectiv e and to protect the parental interests, the Department and the courts are required to follow the statutory scheme the legislature enacted. In addition to assuring that the Department perf orms its legitimate functions, the requirement “to comply strictly with the statutor y scheme” guarantees proper notice is given to the parents before- 6 - the irreversible disposition of termin ating 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 j udge “approved” and “revised” a fo ster care plan in which the Department had not recommended termination of parental rights. Thus, if the Department wished to pursue termination of th e parental rights, the Department had a duty to first file a foster care plan in the district court with the goal of terminating parental rights in compliance with Code § 16.1-283. The statute mandates that this be done before filing a petition to terminate parental rights. We hold that because the Depa rtment did not file a foster care plan that recommended termination of parental rights in this case, the circuit judge was not authorized to terminate the parental rights of th e mother or the father. In vi ew of this holding, we need not address the further issue of the sufficiency of the evidence. For these reasons, we reverse the orders terminating the parental rights of the moth er and father with respect to the children, and we dismiss the petitions.

Reversed and dismissed.