The judicial department comes home in its effects to every man's fireside. It passes on his property, his reputation, his life, his all.
Chief Justice John Marshall, 1829
When the judicial department "comes home to the fireside" it is rarely a welcome visitor. Courts are more often than not the arenas in which the sorrows and tragedies of the world are played out. The judge must pass judgment on the criminal or tortfeasor, but must also at times tell the victim that there is no recourse to succor their injury. The role of the judge is rarely one to bestow joy. But there are a few notable exceptions -- the power to bind in marriage, the power to affirm citizenship, and the power to place in office a servant of the people are among these happy duties. Without exception, every judge to whom I have had the opportunity to ask, however, has cited the power to finalize an adoption and give a child to a loving set of parents is the happiest of these.
But the granting of an adoption is not always a happy duty. Too frequently it requires the judge to determine that a parent is not fit and that the child is better off with another. That decision is most difficult when the contest for not merely custody, but legal control, is between the child's natural parents. In the lone published opinion from the Court of Appeals this week, Lindsey Nicole Perkins v. Rebecca Lynn (Hicks) Howington, et al., the Court must review just such a case.
Perkins is the mother of J.H., Justin Lee Howington is the child's father, and Rebecca Howington is the child's step-mother. Mother and father were never married and shared joint legal custody of J.H. Following father's marriage to step-mother in 2020, they were granted temporary legal and physical custody. Mother was given restricted visitation under the supervision of the Department of Social Services.
As you can probably guess, mother was deemed to be neglecting the child due to substance abuse issues. DSS advised the court that she had been uncooperative with efforts to remedy her situation. Mother continued to be uncooperative and ceased having contact with the child after July 3, 2020.
In 2021, mother sought to restore her visitation, but failed to prosecute the petition. The DSS subsequently reported that it had lost contact with her. Contact was eventually reestablished through mother's probation officer. The court restored her visitation and had periodic contact with the child. When she missed a court date, the court again withdrew her visitation.
Father and step-mother had filed for adoption during this period and the matter was brought to trial in June 2023. The circuit court ruled that mother had not contacted the child for more than six months before the filing of the petition for the adoption without just cause, so her consent was not required under Code § 63.2-1202(H). Mother countered that her inability to have contact with the child was for reasons beyond her control. The court, however, found that her reasons either were not sufficient or did not impact her ability to seek contact. The court granted the petition for adoption, effectively terminating the mother's residual parental rights.
It should be noted that while DSS was involved in the case, it is not a party to the appeal and this is not a termination of parental rights based upon the failure to remedy the conditions of abuse or neglect. While this may seem a distinction without a difference given that the outcome is essentially the same, there is one significant factor that separates this type of case from one brought by DSS. When the DSS brings a petition for termination and adoption, the judge is passing judgment on a legal standard that required another branch of government to prove its case. In this case, however, the judge is the government. While the judge is still guided by the applicable law and the burden of proof remains with the petitioning party, it cannot be denied that the judge is the only authority which will pass on whether a parent should have their legal connection to their child severed.
The Court of Appeals, Judge Ortiz joined by Judge O'Brien and Sr. Judge Humphreys, recognize that this is an awesome and unenviable responsibility. What's more, the Court found that there has been no prior interpretation of Code § 63.2-1202(H)'s "just cause" requirement for terminating the parent's rights, and more specifically whether the specific provision of that statute that six-months of no contact is sufficient to support that standard.
Mother maintained that father's burden was to show that her lack of contact was not excused by clear and convincing evidence and, thus, could not constitute just cause to terminate her rights. She alleged, inter alia, that DSS "thwarted" her efforts to maintain contact with the child.
The Court rejects this argument, finding that DSS's intervention, which led to the court's removal of visitation, was "because of mother's own actions," and her failure to abide by the directive of the court's order to cooperated with DSS and her subsequent failure to pursue a review or otherwise have the court restore her visitation was chargeable to her, not the DSS. The Court further noted that the circuit court nonetheless gave mother the opportunity to argue that, even without the requirement to seek her consent, it was not in the child's best interest to terminate her rights and permit the adoption, but was not persuaded by her arguments.
A further issue was whether the circuit court improperly considered the mother's probation records. However, the Court found that in the context of the court's statements referencing these records, it was clear that it was not basing its decision on any content of those records, but only referring to the probation officer's role in locating the mother after DSS lost contact.
I do not think the circuit courts or the Court of Appeals take any pleasure in affirming judgments terminating parental rights. In the first instance, parents who do not want to maintain a connection to their children do not bother to show up for court, let alone to take the case to the appellate courts.
I have yet to encounter a case where I did not believe that the parent who was taking the last full measure to retain their rights was not sincere in wanting to be a good parent to their child. Unfortunately, in most cases I am also forced to concede that whatever the reason, the parent cannot overcome the demons of their own soul in order to give the child the focus that it deserves. The state does not lightly step in to sever the bond of parent and child, but when it does so, it does so for the best interests of the child.
Comments