Trial Court Erred in Terminating Father’s Parental Rights to His Autistic Child.

In the case of *, the Virginia Court Appeals, overturns the trial court’s ruling terminating a father’s parental rights to his autistic child.  The trial court terminated the father’s parental rights pursuant to Virginia Code § 16.1-283(C)(2). The father argued that the circuit court erred in finding that the DSS could not provide services to father because he was subject to a protective order for the first year that N.J. was in foster care. Accordingly, he argued that the evidence was insufficient to prove the DSS made reasonable and appropriate efforts with respect to father to substantially remedy the conditions which led to or required continuation of the child’s foster care placement.

The father challenges the circuit court’s finding that the Department could not provide services to him during the time the protective order placed restrictions on his contact with the child. The interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.”  This liberty interest of natural parents does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. The termination of parental rights is a “grave, drastic, and irreversible action.” “Statutes terminating the legal relationship between parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship.” “The law presumes that the child’s best interests will be served when in the custody of its parent. “The state cannot ‘infringe on the fundamental right of parents . . . simply because a state judge believes a better decision could be made.’”

Here, the circuit court terminated father’s parental rights under Code § 16.1-283(C)(2). This section permits a court to terminate residual parental rights when such a termination is in the best interests of the child and: [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, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Code § 16.1-283(C)(2). Stated differently, a court must make three separate findings by clear and convincing evidence: (1) that termination is in the child’s best interest, (2) that, without good cause, the parent failed to substantially remedy the conditions that led to, or required continuation of, the child’s placement in foster care, and (3) that the Department made reasonable and appropriate efforts to help the parent remedy those conditions. See id. Father challenges the circuit court’s ruling related to the third factor. Father argues the circuit court “erred in ruling that [father] being subject to the Protective Order for the first year that the child was in foster care relieved the Department of having to prove that it made reasonable and appropriate efforts to remedy the conditions that led to or required continuation of the child being in foster care.” It is undisputed that the Department offered no plan or services to father to help him parent the child. A parent’s residual parental rights cannot be terminated “[i]n the absence of evidence indicating that ‘reasonable and appropriate efforts’ were taken by social agencies to remedy the conditions leading to foster care . . . .”   We have held that the “reasonable and appropriate” efforts of the Department can only be judged with reference to the circumstances of a particular case and that “‘a court must determine what constitutes reasonable and appropriate efforts given the facts before the court.’” The statute “does not specify incarceration as a basis for terminating parental rights or waiving the need for efforts to be made by the Department.” And where “there is undisputed evidence that a parent has not been offered or provided services, . . . the party moving for termination is put to the burden of proving the factors listed in § 16.1-283(C)(2).” “[I]n the absence of such proof, reversal of a termination order is required.” t

Here, the circuit court distilled the issue on the record at the hearing: “I agree with the Department that they could not provide services during that period of time because of the protective order and for that reason I’m granting the petition on the child as, as well.” We disagree. The protective order was in place when N.J. entered foster care and expired twelve months later. The protective order allowed father to have visitation with N.J. at Sabrina’s Place. The subsequent JDR court order transferring custody of N.J. to the Department in August 2019 provides for visitation between father and N.J. in the discretion of the Department. However, despite the temporary nature of the protective order and the possibility of visitation under the protective order and the custody order, the evidence establishes that the Department offered no services to father and facilitated no visitation with the child. The Department proceeded on the premise that the protective order rendered the father unreachable and exempted the Department from offering any services to father. The circuit court’s finding that the Department could not offer father services was based on the protective order in place against father. As we have done in Cain and Ferguson regarding the mere fact of incarceration for a crime, we reject a per se rule that a protective order alone satisfies the evidentiary requirement of proving that the Department offered “reasonable and appropriate” services in accordance with the termination of parental rights statute. Code § 16.1-283(C)(2). II. Sufficiency of the Evidence In his second assignment of error, father argues that the circuit court erred when it terminated his parental rights to N.J. under Code § 16.1-283(C)(2), because the evidence in the – 10 – record is insufficient to support a finding that reasonable and appropriate efforts were made with respect to father to substantially remedy the conditions which led to or required continuation of N.J.’s foster care placement. Father addresses the insufficiency of the evidence, acknowledging that this Court could agree with his first argument but still find that the circuit court reached the right result for the wrong reason when viewing all the evidence in the record. Notwithstanding our finding rejecting a per se rule, we consider whether the evidence supports a finding that the Department made reasonable and appropriate efforts regarding father. Once again, Code § 16.1-283(C)(2) requires the Department to offer father “reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies” to remedy the conditions which led to or required continuation of N.J.’s foster care placement. “Reasonable and appropriate” efforts of the Department “can only be judged with reference to the circumstances of a particular case.” Harrison, 42 Va. App. at 163 (quoting Ferguson, 14 Va. App. at 338). The Department explained in its foster care plans and at the circuit court hearing that there were reasons besides the protective order for its refusal to allow visitation. Specifically, the Department was concerned about father’s “health issues” and N.J.’s autism diagnosis. At the hearing, the Department acknowledged that it was not fully aware of father’s “health issues,” but the foster care case manager noticed that at “a couple of the court hearings he sat there and just shook, could hardly speak or anything.” The Department did not consult with father on his health status or his ability to parent an autistic child. The Department failed to make a good faith effort to engage father on his health matters or other assistance he may need to remedy conditions that required N.J.’s continuation in foster care. The Department claims that it was not required to provide services to father after N.J. had been in foster care for twelve months and during those twelve months the protective order prevented the Department from offering services to father. “The twelve-month time limit established by Code – 11 – § 16.1-283(C)(2) was designed to prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness by the courts and social services in addressing the circumstances that resulted in the foster care placement.” L.G. v. Amherst Cnty. Dep’t of Soc. Servs., 41 Va. App. 51, 56 (2003). “The legislation established a reasonably presumptive time frame of twelve months for parents to receive rehabilitative services to enable them to correct the conditions that led to foster care placement.” Id. at 57. The twelve-month time frame operates, in part, to encourage social services to act with timeliness.

We do not see how the protective order prevented the Department from developing a plan or offering services to father within the twelve months to allow father to parent N.J. after the protective order expired. We disagree with the Department that the presumptive statutory twelve-month time frame exempts it from engaging with father after the twelve months has passed, especially considering father’s attempts to contact the Department to visit his son and the temporary nature of the protective order. On appeal, the Department argues that it was “not required to force its services upon an unwilling or disinterested parent.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 323 (2013). However, the record before us shows that father demonstrated interest in N.J. when he appeared at court hearings concerning N.J.’s custody and called the Department seven times to initiate visitation with N.J. The Department asserts on appeal that visitation was available to father all along at Sabrina’s Place and that father could have had visitation if he had tried harder; yet the Department offers no explanation as to why father’s phone calls were insufficient steps towards arranging visitation with N.J., which had to occur within the Department’s discretion. Furthermore, when the Department provides no services to a parent, “we have no way of knowing whether he would have been willing or interested” in receiving the services. Harris, 223 Va. at 243-44. Accordingly, because the Department provided no services to father, we reverse the order terminating his parental rights and remand the case to allow father “an – 12 – opportunity to show what progress he can make with the assistance of the [Department] and other agencies toward establishing, within a reasonable period, a suitable home” for N.J. Id. at 244.2 CONCLUSION For the reasons stated above, we reverse the judgment of the circuit court, vacate the order terminating father’s parental rights to N.J., and remand the case to the circuit court for further proceedings consistent with this opinion.

3 Reversed, vacated, and remanded. 2 Father also asserts that the circuit court’s decision violated his parental rights under the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Section 11 of Article I of the Virginia Constitution. We need not address this issue. “It is a well recognized principle of appellate review that constitutional questions should not be decided if the record permits final disposition of a cause on non-constitutional grounds.” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64 (2006) (quoting Keller v. Denny, 232 Va. 512, 516 (1987)). Accordingly, given our decision concerning the circuit court’s erroneous interpretation of Code § 16.1-283(C)(2) and the Department’s failure to provide services, we need not address father’s due process argument. 3 We previously have held that, “[i]t is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.” Tackett, 62 Va. App. at 322 (second alteration in original) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)). This observation applies to the time it takes a parent to address the issues that necessitated a disruption of the normal parent-child relationship. The time a parent is apart from a child while successfully pursuing an appeal of the termination of that parent’s rights regarding the child is different in kind. Accordingly, in any proceeding on remand, the fact that father has been separated from N.J. since the JDR court terminated his parental rights may not be used to justify any diminution in father’s parental rights