Weaver v. Roanoke Dept. of Human Resources, s. 791059

• Citation: 220 Va. 921,265 S.E.2d 692
• Decision Date: 18 April 1980
• Docket Number: Nos. 791059,791070,s. 791059
• Parties: Kenneth Charles WEAVER v. The ROANOKE DEPARTMENT OF HUMAN RESOURCES et al. Deborah Richards WEAVER v. The ROANOKE DEPARTMENT OF HUMAN RESOURCES et al. Record
• Court: Supreme Court of Virginia

Page 692

265 S.E.2d 692

220 Va. 921

Kenneth Charles WEAVER v. The ROANOKE DEPARTMENT OF HUMAN RESOURCES et al.

Deborah Richards WEAVER v. The ROANOKE DEPARTMENT OF HUMAN RESOURCES et al.

Record Nos. 791059, 791070.

Supreme Court of Virginia.

April 18, 1980.

Lamar W. Davis, Roanoke (Copenhaver, Ellett & Cornelison, Roanoke, on brief), for Kenneth Charles Weaver.

Jonathan M. Apgar, Asst. Commonwealth's Atty. (Michael J. Aheron, Roanoke, on brief), for Roanoke Dept. of Human Resources, et al.

Dennis L. Montgomery, Roanoke (Harris & Montgomery, on brief), for Deborah Richards Weaver.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, THOMPSON, POFF and COMPTON, JJ.

I'ANSON, Chief Justice.

These two cases, consolidated for hearing before us, concern the termination of residual parental rights pursuant to Code § 16.1-283(C) (Cum.Supp.1979). The trial court entered orders terminating the appellants' residual parental rights and awarding these rights (including the right to consent to an adoption) to the Roanoke Department of Human Resources. The appellants, Deborah Richards Weaver and Kenneth Charles Weaver, brought these appeals in which the only assignments of error are that the evidence is insufficient to support the termination of their residual parental rights under the provisions of Code § 16.1-283(C).

The appellants were married on October 9, 1969. Kimberly Sue Weaver was born in March 1972, and Kenny Charles Weaver, Jr., was born in October 1973. The parents have been separated since 1974. Although both parents claimed prior to trial in the court below to be in the process of obtaining a divorce, the record does not reveal whether a divorce has been granted.

Following a brief period during which the children were placed in a foster home, the father was granted custody of both children subsequent to a court hearing held on March 5, 1975. On October 30, 1975, after obtaining the Weavers' consent, a couple petitioned to adopt Kimberly; another couple petitioned to adopt Kenny. The petition to adopt Kimberly was withdrawn on April 3, 1976; the petition to adopt Kenny was denied on June 17, 1976. On July 1, 1976, Mr. Weaver petitioned the Juvenile and Domestic Relations District Court to be relieved of custody of the two children because he was financially unable to provide for their care. On July 6, 1976, custody of both children was granted to the Roanoke Department of Human Resources for placement in foster care.

The Department developed a plan designed to transfer custody to either parent meeting the following goals: 1. "Provide adequate housing and stable living arrangements (same address at least ninety days)," 2. "Locate employment (same job at least ninety days) or show evidence of ability to provide for child," 3. "Visit child regularly," and 4. "Pay support."

Mr. Weaver visited the children eighteen times from August 1976 until March 1978. The social worker in charge of the case testified that his visitation had been sporadic but that since December 1978 his visits had been more regular. She also testified that during these visits the children showed affection for him, that he reciprocated this affection, that there seemed to be a genuine bond between Mr. Weaver and his children, and that the children know and recognize him as their father. Kimberly's foster mother stated that although Mr. Weaver's first visitation left little impression on Kimberly, she "has gotten more attached to him lately."

During the children's foster care, Mr. Weaver changed jobs frequently or was out of work. He failed to pay support for his children during this period. He gave the Department six addresses from July 1976 until August 1978 and reported he had insufficient space for his children at any of his addresses. During mid-1978, he embarked on a career as a building subcontractor and spent as many as twelve hours a day traveling from his Roanoke home to various job sites. According to the agreed statement of facts, Mr. Weaver was only beginning to become financially independent when this case was heard by the circuit court. He testified, however, concerning his continuing affection for his children and his future plans to be reunited with them. Mr. Weaver also testified that he had purchased a home suitable for his children and that his mother was fully willing and able to provide care and supervision for the children while he worked.

From July 1976 until November 1977, Mrs. Weaver lived outside Virginia and did not maintain regular contact with the children. Upon her return to Virginia, she was arrested for passing a bad check and obtaining merchandise under false pretenses. She was convicted of both charges, sentenced to sixty days in jail, and placed on probation for thirteen months thereafter. From July 1976 until January 25, 1978, Mrs. Weaver did not contact the agency. When she did establish contact, she stated that she wished to work towards obtaining the custody of her children. From February 4, 1978, through April 9, 1979, she visited the children on twenty-two occasions, at least once a month except for August 1978, during which she did not visit.

The statement of facts indicates that "Mrs. Weaver did not work" during the time period at issue. According to the Department's records, she stated that she had worked for a few weeks but was unable to continue her work because of high blood pressure. These records also reveal that Mrs. Weaver was, at least until December 1978, financially dependent upon money received from the Department of Human Services and food-stamp benefits. She had no additional source of subsistence. The statement of facts indicates that she paid no support for her children during their period of foster care. During 1978, she moved at least six times.

On April 16, 1979, the trial court entered orders terminating the residual parental rights of both Mr. and Mrs. Weaver and awarded these rights, including the right to consent to an adoption, to the Department. The court found that "the parents, without good cause, have been unwilling or unable within a reasonable period to remedy substantially the conditions which led to the foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health, and other rehabilitation agencies to such end . . . ." The court also found that it was in the best interests of the children that the Weavers' residual parental rights be terminated. In addition, the court concluded that "the homes of the parents are unstable and inadequate for the placement" of the children.

Issues concerning the termination of residual parental rights can arise in the context of an adoption proceeding or a proceeding terminating residual parental rights and granting a social agency the right to consent for adoption. Unlike the termination of parental rights accompanying an adoption proceeding, ¹ the termination of parental rights apart from adoption is a rather recent statutory addition. In Lowe v. Grasty, 203 Va. 168, 172-73, 122 S.E.2d 867, 870 (1961), we held that, absent express statutory authority, a court cannot terminate parental rights permanently and award those rights to a governmental agency. Since no statute providing such authority existed at the time of the lower court's decision in Lowe, we reversed the order permanently committing the child to the Department of Public Welfare. Subsequent to the trial court's order in Lowe, the General Assembly amended Code § 16.1-178 to allow for the termination of parental rights "(i)f proper studies indicate that it is for the child's best interest and that of the State that such child be separated permanently from its parent, parents or guardian . . . ." Acts 1960, c. 331, at 393. In Rocka v. Roanoke Co. Dep't of Welfare, 215 Va. 515, 518, 211 S.E.2d 76, 78 (1975), and Berrien v. Greene County, 216 Va. 241, 244, 217 S.E.2d 854, 856 (1975), we held, however, that parental rights may be not be terminated without a finding of parental unfitness. Subsequent to these decisions, the General Assembly repealed Code § 16.1-178 and substituted Code § 16.1-283 (Cum.Supp.1979), which allows for the termination of residual parental rights on the grounds of neglect, abuse, abandonment, and voluntary relinquishment. Acts 1977, c. 559, at 863.

Whether the termination of parental rights occurs in the context of an adoption or as a separate proceeding, the termination of the legal relationship between parent and child is a grave proceeding. A court order terminating parental rights renders the parent "a legal stranger to the child" and severs "all parental rights." Shank v. Dept. Social Services, 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976). Our prior decisions clearly indicate a respect for the natural bond between children and their natural parents. The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself. While it may be occasionally necessary to sever the legal relationship between parent and child, those circumstances are rare. 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 Department stresses the significance of the prior court orders divesting both parents of their custodial rights and responsibilities. We have, as the Department notes, repeatedly held that where a court has entered a final order divesting a parent of custodial rights, the burden is on the parent seeking custody to show that circumstances have so changed that it would be in the children's best interests to restore custody to the parent. McEntire v. Redfearn, 217 Va. 313, 315-16, 227 S.E.2d 741, 743 (1976); Dyer v. Howell, 212 Va. 453, 456, 184 S.E.2d 789, 792 (1971). See also Harper v. Harper, 217 Va. 477, 479, 229 S.E.2d 875, 876 (1976). The proceeding...