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Parental Rights Terminated for Abuse

Deborah Elkins//January 12, 2012

Parental Rights Terminated for Abuse

Deborah Elkins//January 12, 2012

The Court of Appeals upholds termination of a father’s parental rights to his three small children, based on sufficient evidence to support findings of abuse and neglect by the father.

Father is correct in his primary position that, consistent with Santosky v. Kramer, 455 U.S. 745 (1982), the department needed to prove each of its allegations supporting termination of parental rights by clear and convincing evidence. Consistent with this standard, the trial court’s final orders did indeed indicate it held the department to that higher standard; and the department satisfied that burden. We find no merit in father’s first assignment of error.

Next, father charges the trial court erred in finding that Va. Code § 16.2-283(B) passes constitutional muster because it allows termination based on a finding of abuse or neglect by a preponderance of the evidence. In Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821 (1993), we recognized that when a state infringes on a parent’s constitutional right to the companionship of his or her child in order to protect the child from abuse and neglect, it must satisfy the mandates of procedural due process. In the context of terminating a parent’s rights, the Due Process Clause requires that the department prove each of the necessary allegations of parental unfitness by clear and convincing evidence. In Wright, we confirmed that Code § 16.1-283(B) complies with the Due Process Clause. A trial court cannot terminate a parent’s right to his child based solely upon a finding in a prior hearing that the child was abused or neglected. The trial court must find the abuse or neglect rose to a level that presented a substantial threat to the child’s life, health or development, and Code § 16.1-283(B)(1) requires that this finding be made upon a showing of clear and convincing evidence.

We reconfirm here that Virginia’s statutes provide parents with fundamentally fair procedures under the Due Process Clause.

Further, because the term “separate proceeding” in Code § 16.1-283(A) only requires the trial court to hold a separate hearing to ensure that the termination issue was not confused with other issues to be resolved under the statutory scheme, and the trial court did hold separate hearings for the abused and neglected determination and the termination decision, we find no merit in father’s third assignment of error. And because the trial court took rehabilitative services previously offered to the parents into consideration and did not err in refusing to order the department to provide any additional services, we find no merit in this assignment of error.

Father also argues the trial court could not legally terminate his parental rights without finding by clear and convincing evidence that the maintenance of any relationship between father and child would be a detriment to the child. Code § 16.1-283(B) requires the trial court to find only that father was unlikely to substantially remedy or eliminate the conditions that led to the abuse or neglect within a reasonable period of time. The trial court here made the requisite findings and we decline father’s invitation to add requirements to the statute the Supreme Court has indicated are not necessary.

Because record evidence supports the trial court’s decision and it is not plainly wrong, we affirm the trial court’s finding that father abused or neglected E. and W. and the abuse or neglect presented a serious and substantial threat to their lives, health and development. Further, we find the evidence was sufficient for the trial court to conclude father abused A. and intentionally inflicted A.’s injuries.

The court also rejects the father’s assignments of error relating to admission of the pediatrician Dr. Deborah Dunn’s testimony about the cause of A.’s injuries. Even assuming the trial court accepted Dr. Dunn’s conclusion on the issue of abuse, we cannot say that doing so was an abuse of discretion. Code § 8.01-401.3 allows an expert witness to testify to the ultimate issue if she qualifies by knowledge, skill, experience, training or education. Dr. Dunn concluded A.’s injuries were consistent with non-accidental trauma based on her knowledge of A.’s medical history, her experience with trauma injuries in children, and her medical education. She testified that these resources indicated to her that a child with both diffuse, bilateral subdural hematomas and bilateral retinal hemorrhages and no outward signs of physical injury did not incur these injuries accidentally. Dr. Dunn was also A.’s pediatrician from birth, examined him when he came into the hospital on April 30, 2008, and reviewed the reports of the various doctors who treated A. at UVA. These bases comport with our statutes and case law related to expert opinions and do not indicate that Dr. Dunn based her opinion on speculation.

We find the trial court did not abuse its discretion in allowing Dr. Dunn to testify to the cause of A.’s injuries.

We find no merit in any of father’s assignments of error.

Termination of parental rights affirmed.

Farrell v. Warren County Dep’t of Social Servs. (Alston) No. 2282-10-4, Jan. 10, 2012; Warren County Cir.Ct. (Hupp) Thomas D. Logie for appellant; Neal T. Knudsen for appellee; Thomas H. Sayre, GAL. VLW 012-7-001, 51 pp.

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