Virginia Court Case: Social Services v. Heide

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES v. FLOYD ALLEN HEIDE, II 

Record No. 1157-00-3 

COURT OF APPEALS OF VIRGINIA 

35 Va. App. 328; 544 S.E.2d 890

April 24, 2001, Decided 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE. Robert P. Doherty, Jr., Judge. 

Affirmed. 

COUNSEL:
Allen T. Wilson, Assistant City Attorney (William M. Hackworth, City Attorney, on brief), for appellant.

John H. Kennett, Jr., for appellee. 

JUDGES:
Present: Judges Annunziata, Bumgardner and Frank. OPINION BY JUDGE ROBERT P. FRANK. 

OPINION:

OPINION BY JUDGE ROBERT P. FRANK
Roanoke City Department of Social Services (DSS) appeals the decision of the trial court denying DSS's petition to terminate the residual parental rights of Floyd Allen Heide, II, (father). Finding no error, we affirm the trial court's decision.

I. BACKGROUND
On January 11, 1999, the Juvenile and Domestic Relations District Court for the City of Roanoke (JDR court) approved the foster care plans requesting a change of goal to adoption for Kescha Lynn Heide and Floyd Allen Heide, III. On January 19, 1999, DSS filed petitions, pursuant to Code § 16.1-283(C)(2), with the JDR court requesting the termination of the residual parental rights of father to Kescha Lynn Heide and Floyd Allen Heide, III.
On October 22, 1999, the JDR court denied the petitions filed by DSS. DSS timely appealed the JDR court's decision to the Circuit Court for the City of Roanoke (trial court). On February 1, 2000, the parties presented evidence and the trial court denied the termination petitions, stating:
Had this case got into Court the next month after the J & D Court decision, then every single thing that the Department of Social Services has presented would be just as clear as could be, and terminating parental rights would be done just about as fast as I could find a rubber stamp to do it, but during that delay for some particular reason, I don't know what it is, the father has made enough changes to pull himself up above that level. ...
From what I have heard thus far, I am just plain not willing to cut off all parental rights. Six months or a year ago, I would have done it in a flash, but the delay it took to get this thing up and the way he has pulled himself up, I am not willing to do it.
In its order entered May 5, 2000, the trial court found:
Further, based only on the evidence presented by DSS, and excluding all consideration of the limited testimony of the children's father, the Court found that DSS had not born [sic] its burden of proof by clear and convincing evidence that termination of the father's parental rights were in the best interest of the children, or that the father had failed to communicate or visit with the children, or that the father had failed to meet the goals that were set for him by stopping his consumption of alcohol, by failing to get steady full time employment, by failing to pay his bills, by failing to complete parenting classes or by failing to establish an appropriate, clean and stable home environment in which to raise the children. The failure of this evidence was that it ended with respect to the father's situation in January, 1999. That was 13 months prior to the de novo hearing on the petitions to terminate the parental rights of the father. There was no evidence as to whether the father had substantially remedied the conditions which led to the foster care placement of the children since January, 1999. The Court was not presented with any evidence that it was in the best interest of the children to terminate their parental rights at the time of the de novo hearing. Evidence was not presented to overcome the presumption that the best interests of the children would be served by not separating them permanently from their natural parents.