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the Virginia Court of Appeals.
RICHMOND DEPARTMENT OF SOCIAL SERVICES
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
Record No. 1126-03-2
TARIQ KIRBY, SR.
RICHMOND DEPARTMENT OF SOCIAL SERVICES
SEPTEMBER 30, 2003
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
T. J. Markow, Judge
(Robin M. Morgan; Davis & Morgan, P.A., on
brief), for appellant.
(Sarah M. Denham, Assistant City Attorney;
Robert Shrader, Guardian ad litem for the
minor child, on brief), for appellee.
Tariq Kirby, Sr. appeals a decision terminating his parental
rights to his son. Kirby contends the evidence was insufficient
to support the termination. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
See Rule 5A:27.
The child was born on August 12, 1999. The child and his
mother, a minor who was in the custody of the Richmond
of Social Services, resided with a foster care family. On April
10, 2001, the child was removed from his mother’s custody and
placed in the custody of the Department. Prior to taking custody
of the child, the Department attempted to conduct a home study
Kirby’s residence but was unable to complete the study because
apartment in which Kirby indicated he was living was
contained trash throughout, and appeared to be vacant. When the
Department again attempted to conduct a home study in June 2001,
the woman with whom Kirby lived "did not want to be
social services." Therefore, the Department was unable to
complete the home study. Kirby has lived in four different
locations since the child has been in foster care, but he has
been a party to a lease agreement or owned a residence.
In April 2001, Kirby filed a petition seeking custody of the
child. Although the Department referred Kirby to parenting
classes, housing opportunities, and employment opportunities,
Rachel Winston, a social worker employed by the Department,
testified that Kirby said he did not need parenting classes. On
two other occasions, when the Department referred Kirby to
Virginia Cooperative Extension for parenting classes, Kirby
to follow through with the referrals. Winston also referred
to Goodwill Industries, the Virginia Employment Commission, Man
Power, and Labor Pro for employment options. He has worked
numerous jobs since Winston became involved with the case,
including jobs with three temporary agencies.
Kirby had scheduled visitation with the child. The court
suspended Kirby’s visitation with the child, however, because he
took the child for an overnight visit contrary to the
directive. Later, when the court ordered that the visitation be
re-instated, but supervised, the Department offered Kirby weekly
supervised visitation with the child. From April 2001 until June
2001, Kirby did not visit the child and indicated he did not
to visit the child unless he could keep the child overnight.
July 2001 until September 2001, Kirby visited the child four
times. From October 2001 to March 2002, he did not visit the
child. From April 2002 to September 2002, Kirby visited the
on three occasions. He saw the child eight times from October
2002 until January 2003, and he missed the last four scheduled
visits prior to the trial court hearing.
During the period the child has been in the Department’s
custody, Kirby has been incarcerated on three occasions. He was
convicted for heroin possession in 2002, was incarcerated for
months, and received a nine and one-half year suspended
While on supervised probation, Kirby has tested positive for
cocaine use three times, including the day before the trial
hearing. Kirby’s probation officer testified that Kirby has
missed three substance abuse treatment sessions and refuses to
admit that he uses cocaine. At the trial court hearing, Kirby
denied that he uses cocaine and testified that he tested
for cocaine because he touched or handled cocaine. The probation
officer testified that if Kirby fails to complete the substance
abuse program, he will be in violation of his probation. Winston
also referred Kirby to a substance abuse program; however, Kirby
failed to qualify for the program.
Winston testified that Kirby has not bonded with the child,
that the child moves toward the door during their visits, and
the child sometimes cries for the majority of the visit. Winston
has not heard the child refer to Kirby by any name, and she has
not seen him reach out for Kirby.
Winston also testified that the child is doing well with his
foster care family and that the family has a loving, nurturing,
and supportive relationship with the child. The child identifies
his foster parents as his mother and father. At the time of the
trial court hearing, the child was three and one-half years old
and had been in foster care for over twenty-two months.
Kirby testified that he lives with a friend, that he has no
formal lease agreement, and that he has been denied public
because of a felony drug charge. He works two or three days per
week for temporary agencies and another business. Kirby also
testified that he began attending a parenting class just prior
the court hearing.
The guardian ad litem for the child indicated that Kirby has
not responded positively to the Department’s efforts. He also
noted that Kirby attended only fifteen of eighty-eight scheduled
visits with the child.
The trial judge found by clear and convincing evidence that
it was in the child’s best interests to terminate Kirby’s
rights. The judge found that Kirby failed, without good cause,
maintain continuing contact with the child and to substantially
remedy within a reasonable period of time the conditions that
brought the child to foster care. The judge also found that the
Department made appropriate efforts to assist Kirby. Thus, the
trial judge terminated Kirby’s parental rights pursuant to Code
? 16.1-283(C)(1) and 16.1-283(C)(2).
Code ? 16.1-283(C)(1) provides, in pertinent part, that the
residual parental rights may be terminated if the judge finds by
clear and convincing evidence that termination is in the child’s
best interests and further finds as follows:
The parent . . . [has], without good cause,
failed to maintain continuing contact with
and to provide or substantially plan for the
future of the child for a period of six
months after the child’s placement in foster
care notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent
. . . and to strengthen the parent-child
Code ? 16.1-283(C)(2) requires proof, by clear and convincing
evidence, (1) that the termination is in the best interests of
child, (2) that "reasonable and appropriate" services
offered to help the parent "substantially remedy the
which led to or required continuation of the child’s foster care
placement," and (3) that, despite those services, the
failed, "without good cause," to remedy those
conditions "within a
reasonable amount of time not to exceed twelve months from the
date the child was placed in foster care." Code ?
Clear and convincing evidence is "that measure or degree of
which will produce in the mind of the trier of facts a firm
or conviction as to the allegations sought to be established. It
is intermediate, being more than a mere preponderance, but . . .
[less than] a reasonable doubt . . . ." Gifford v. Dennis,
Va. 193, 198 n. 1, 335 S.E.2d 371, 373 n. 1 (1985).
Viewed in the light most favorable to the party prevailing
below, Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991), the evidence supports the
trial judge’s findings. The evidence proved Kirby failed to
demonstrate a willingness or ability to alter the circumstances
that necessitated the child’s continued foster care placement.
Although Kirby asserts otherwise, the record proved the
offered him reasonable and appropriate services to assist him in
remedying these circumstances. Kirby failed to maintain
continuing contact with the child, failed to obtain adequate
housing, and only maintained irregular employment. The evidence
proved Kirby has failed to provide or substantially plan for the
future of the child without good cause. See Code
? 16.1-283(C)(1). The Department was not required "to
services upon an unwilling or uninterested parent." Harris
Lynchburg Div. of Soc. Servs., 223 Va. 235, 243, 288 S.E.2d 410,
415 (1982). Without good cause, Kirby has 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
substantially the conditions which led to or required
of the child’s foster care placement, notwithstanding the
reasonable and appropriate efforts of the Department. See Code
"When addressing matters concerning a child, including the
termination of a parent’s residual parental rights, the
consideration of a trial court is the child’s best
Logan, 13 Va. App. at 128, 409 S.E.2d at 463. "It is
in the best interests of a child to spend a lengthy period of
waiting to find out when, or even if, a parent will be capable
resuming his [or her] responsibilities." Kaywood v. Halifax
County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d
The record supports the trial judge’s finding that the
Department presented clear and convincing evidence satisfying
statutory requirements of Code ? 16.1-283(C)(1) and
and establishing that termination of Kirby’s residual parental
rights is in the child’s best interests. Accordingly, we affirm
Code ? 17.1-413, this opinion is not
designated for publication.