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KIRBY v. RICHMOND DEPARTMENT OF SOCIAL SERVICES




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KIRBY

v.

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.

v.

RICHMOND DEPARTMENT OF SOCIAL SERVICES

 

MEMORANDUM OPINION[1]PER
CURIAM

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
court.

See Rule 5A:27.

I.

The child was born on August 12, 1999. The child and his

mother, a minor who was in the custody of the Richmond
Department

of Social Services, resided with a foster care family. On April

10, 2001, the child was removed from his mother’s custody and
was

placed in the custody of the Department. Prior to taking custody

of the child, the Department attempted to conduct a home study
at

Kirby’s residence but was unable to complete the study because
the

apartment in which Kirby indicated he was living was
unfurnished,

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
involved with

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
not

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
failed

to follow through with the referrals. Winston also referred
Kirby

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
Department’s

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
want

to visit the child unless he could keep the child overnight.
From

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
child

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
six

months, and received a nine and one-half year suspended
sentence.

While on supervised probation, Kirby has tested positive for

cocaine use three times, including the day before the trial
court

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
positive

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
that

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
housing

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
to

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
parental

rights. The judge found that Kirby failed, without good cause,
to

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).

II.

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

relationship.

Code ? 16.1-283(C)(2) requires proof, by clear and convincing

evidence, (1) that the termination is in the best interests of
the

child, (2) that "reasonable and appropriate" services
have been

offered to help the parent "substantially remedy the
conditions

which led to or required continuation of the child’s foster care

placement," and (3) that, despite those services, the
parent has

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 ?
16.1-283(C)(2).

Clear and convincing evidence is "that measure or degree of
proof

which will produce in the mind of the trier of facts a firm
belief

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,
230

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
Department

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
force its

services upon an unwilling or uninterested parent." Harris
v.

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
remedy

substantially the conditions which led to or required
continuation

of the child’s foster care placement, notwithstanding the

reasonable and appropriate efforts of the Department. See Code

? 16.1-283(C)(2).

"When addressing matters concerning a child, including the

termination of a parent’s residual parental rights, the
paramount

consideration of a trial court is the child’s best
interests."

Logan, 13 Va. App. at 128, 409 S.E.2d at 463. "It 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." Kaywood v. Halifax

County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d
492,

495 (1990).

The record supports the trial judge’s finding that the

Department presented clear and convincing evidence satisfying
the

statutory requirements of Code ? 16.1-283(C)(1) and
16.1-283(C)(2)

and establishing that termination of Kirby’s residual parental

rights is in the child’s best interests. Accordingly, we affirm

the decision.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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