2006 Code of Virginia § 16.1-283 - Termination of residual parental rights

16.1-283. Termination of residual parental rights.

A. The residual parental rights of a parent or parents may be terminated bythe court as hereinafter provided in a separate proceeding if the petitionspecifically requests such relief. No petition seeking termination ofresidual parental rights shall be accepted by the court prior to the filingof a foster care plan, pursuant to 16.1-281, which documents termination ofresidual parental rights as being in the best interests of the child. Thecourt may hear and adjudicate a petition for termination of parental rightsin the same proceeding in which the court has approved a foster care planwhich documents that termination is in the best interests of the child. Thecourt may terminate the residual parental rights of one parent withoutaffecting the rights of the other parent. The local board of social servicesor a licensed child-placing agency need not have identified an available andeligible family to adopt a child for whom termination of parental rights isbeing sought prior to the entry of an order terminating parental rights.

Any order terminating residual parental rights shall be accompanied by anorder continuing or granting custody to a local board of social services, toa licensed child-placing agency or the granting of custody or guardianship toa relative or other interested individual, subject to the provisions ofsubsection A1 of this section. However, in such cases the court shall give aconsideration to granting custody to relatives of the child, includinggrandparents. An order continuing or granting custody to a local board ofsocial services or to a licensed child-placing agency shall indicate whetherthat board or agency shall have the authority to place the child for adoptionand consent thereto.

The summons shall be served upon the parent or parents and the other partiesspecified in 16.1-263. Written notice of the hearing shall also be providedto the foster parents of the child, a relative providing care for the child,and any preadoptive parents for the child informing them that they may appearas witnesses at the hearing to give testimony and otherwise participate inthe proceeding. The persons entitled to notice and an opportunity to be heardneed not be made parties to the proceedings. The summons or notice of hearingshall clearly state the consequences of a termination of residual parentalrights. Service shall be made pursuant to 16.1-264.

A1. Any order transferring custody of the child to a relative or otherinterested individual pursuant to subsection A of this section shall beentered only upon a finding, based upon a preponderance of the evidence, thatthe relative or other interested individual is one who, after aninvestigation as directed by the court, (i) is found by the court to bewilling and qualified to receive and care for the child; (ii) is willing tohave a positive, continuous relationship with the child; (iii) is committedto providing a permanent, suitable home for the child; and (iv) is willingand has the ability to protect the child from abuse and neglect; and theorder shall so state. The court's order transferring custody to a relative orother interested individual should further provide, as appropriate, for anyterms and conditions which would promote the child's interest and welfare.

B. The residual parental rights of a parent or parents of a child found bythe court to be neglected or abused and placed in foster care as a result of(i) court commitment; (ii) an entrustment agreement entered into by theparent or parents; or (iii) other voluntary relinquishment by the parent orparents may be terminated if the court finds, based upon clear and convincingevidence, that it is in the best interests of the child and that:

1. The neglect or abuse suffered by such child presented a serious andsubstantial threat to his life, health or development; and

2. It is not reasonably likely that the conditions which resulted in suchneglect or abuse can be substantially corrected or eliminated so as to allowthe child's safe return to his parent or parents within a reasonable periodof time. In making this determination, the court shall take intoconsideration the efforts made to rehabilitate the parent or parents by anypublic or private social, medical, mental health or other rehabilitativeagencies prior to the child's initial placement in foster care.

Proof of any of the following shall constitute prima facie evidence of theconditions set forth in subdivision B 2 hereof:

a. The parent or parents are suffering from a mental or emotional illness ormental deficiency of such severity that there is no reasonable expectationthat such parent will be able to undertake responsibility for the care neededby the child in accordance with his age and stage of development;

b. The parent or parents have habitually abused or are addicted tointoxicating liquors, narcotics or other dangerous drugs to the extent thatproper parental ability has been seriously impaired and the parent, withoutgood cause, has not responded to or followed through with recommended andavailable treatment which could have improved the capacity for adequateparental functioning; or

c. The parent or parents, without good cause, have not responded to orfollowed through with appropriate, available and reasonable rehabilitativeefforts on the part of social, medical, mental health or other rehabilitativeagencies designed to reduce, eliminate or prevent the neglect or abuse of thechild.

C. The residual parental rights of a parent or parents of a child placed infoster care as a result of court commitment, an entrustment agreement enteredinto by the parent or parents or other voluntary relinquishment by the parentor parents may be terminated if the court finds, based upon clear andconvincing evidence, that it is in the best interests of the child and that:

1. The parent or parents have, without good cause, failed to maintaincontinuing contact with and to provide or substantially plan for the futureof the child for a period of six months after the child's placement in fostercare notwithstanding the reasonable and appropriate efforts of social,medical, mental health or other rehabilitative agencies to communicate withthe parent or parents and to strengthen the parent-child relationship. Proofthat the parent or parents have failed without good cause to communicate on acontinuing and planned basis with the child for a period of six months shallconstitute prima facie evidence of this condition; or

2. The parent or parents, without good cause, have been unwilling or unablewithin a reasonable period of time not to exceed twelve months from the datethe child was placed in foster care to remedy substantially the conditionswhich 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. Proof that theparent or parents, without good cause, have failed or been unable to makesubstantial progress towards elimination of the conditions which led to orrequired continuation of the child's foster care placement in accordance withtheir obligations under and within the time limits or goals set forth in afoster care plan filed with the court or any other plan jointly designed andagreed to by the parent or parents and a public or private social, medical,mental health or other rehabilitative agency shall constitute prima facieevidence of this condition. The court shall take into consideration the priorefforts of such agencies to rehabilitate the parent or parents prior to theplacement of the child in foster care.

D. The residual parental rights of a parent or parents of a child found bythe court to be neglected or abused upon the ground of abandonment may beterminated if the court finds, based upon clear and convincing evidence, thatit is in the best interests of the child and that:

1. The child was abandoned under such circumstances that either the identityor the whereabouts of the parent or parents cannot be determined; and

2. The child's parent or parents, guardian or relatives have not come forwardto identify such child and claim a relationship to the child within threemonths following the issuance of an order by the court placing the child infoster care; and

3. Diligent efforts have been made to locate the child's parent or parentswithout avail.

E. The residual parental rights of a parent or parents of a child who is inthe custody of a local board or licensed child-placing agency may beterminated by the court if the court finds, based upon clear and convincingevidence, that it is in the best interests of the child and that (i) theresidual parental rights of the parent regarding a sibling of the child havepreviously been involuntarily terminated; (ii) the parent has been convictedof an offense under the laws of this Commonwealth or a substantially similarlaw of any other state, the United States or any foreign jurisdiction thatconstitutes murder or voluntary manslaughter, or a felony attempt, conspiracyor solicitation to commit any such offense, if the victim of the offense wasa child of the parent, a child with whom the parent resided at the time suchoffense occurred or the other parent of the child; (iii) the parent has beenconvicted of an offense under the laws of this Commonwealth or asubstantially similar law of any other state, the United States or anyforeign jurisdiction that constitutes felony assault resulting in seriousbodily injury or felony bodily wounding resulting in serious bodily injury orfelony sexual assault, if the victim of the offense was a child of the parentor a child with whom the parent resided at the time of such offense; or (iv)the parent has subjected any child to aggravated circumstances.

As used in this section:

"Aggravated circumstances" means torture, chronic or severe abuse, orchronic or severe sexual abuse, if the victim of such conduct was a child ofthe parent or a child with whom the parent resided at the time such conductoccurred, including the failure to protect such a child from such conduct,which conduct or failure to protect: (i) evinces a wanton or depravedindifference to human life, or (ii) has resulted in the death of such a childor in serious bodily injury to such a child.

"Chronic abuse" or "chronic sexual abuse" means recurring acts ofphysical abuse which place the child's health, safety and well-being at risk.

"Serious bodily injury" means bodily injury that involves substantial riskof death, extreme physical pain, protracted and obvious disfigurement, orprotracted loss or impairment of the function of a bodily member, organ ormental faculty.

"Severe abuse" or "severe sexual abuse" may include an act or omissionthat occurred only once, but otherwise meets the definition of "aggravatedcircumstances."

The local board or other child welfare agency having custody of the childshall not be required by the court to make reasonable efforts to reunite thechild with a parent who has been convicted of one of the felonies specifiedin this subsection or who has been found by the court to have subjected anychild to aggravated circumstances.

F. The local board or licensed child-placing agency to which authority isgiven to place the child for adoption and consent thereto after an orderterminating parental rights is entered shall file a written Adoption ProgressReport with the juvenile court on the progress being made to place the childin an adoptive home. The report shall be filed with the court every sixmonths from the date of the final order terminating parental rights until afinal order of adoption is entered on behalf of the child in the circuitcourt. At the conclusion of the hearing at which termination of parentalrights is ordered and authority is given to the local board or licensedchild-placing agency to place the child for adoption, the juvenile courtshall schedule a date by which the board or agency shall file the firstwritten Adoption Progress Report required by this section. A copy of theAdoption Progress Report shall be sent by the court to the guardian ad litemfor the child. The court may schedule a hearing on the report with or withoutthe request of a party.

G. Notwithstanding any other provisions of this section, residual parentalrights shall not be terminated if it is established that the child, if he isfourteen years of age or older or otherwise of an age of discretion asdetermined by the court, objects to such termination. However, residualparental rights of a child fourteen years of age or older may be terminatedover the objection of the child, if the court finds that any disability ofthe child reduces the child's developmental age and that the child is nototherwise of an age of discretion.

(1977, c. 559; 1978, c. 340; 1979, c. 281; 1980, c. 295; 1985, c. 584; 1987,c. 6; 1988, c. 791; 1998, c. 550; 1999, c. 889; 2000, c. 385; 2002, cc. 664,729.)

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