September 01, 2013

12-Year-Old Child Did Not Possess Maturity to Veto Termination

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Tackett v. Dep’t of Human Servs., 2013 WL 4081294 (Va. Ct. App.).

Child, under the statutory age of 14, lacked maturity to veto termination. Her testimony showed she was inconsistent in her position about her preference for a placement and she had been manipulated by the grandmother.

Child was born while mother was incarcerated and grandmother was given custody after child’s release from the hospital. She lived with her grandmother until she was nine when she was removed after her grandmother’s arrest for shoplifting and amid concerns she lacked stable housing and supervision for the child.

The child’s mother was explored as a placement option, but she was unable due to lack of housing and medical problems. The agency also noted she had an extensive criminal history and had year and multi-year periods where she had no contact with the child. The court approved a permanency plan for return to the grandmother’s home. 

The grandmother did not comply with the case plan, which required she obtain employment, housing, and a psychological evaluation. The agency made multiple referrals and appointments for a psychological evaluation and discussed the need several times. The agency had noted the grandmother’s comments about suicide as showing a need for an evaluation.

The grandmother repeatedly called the police alleging abuse by the child’s foster parents, none of which were substantiated. Her first foster parents requested the child’s removal after the grandmother presented surveillance photos she had taken of them at a sporting event. 

The mother also did not complete a psychological evaluation as requested as a prerequisite to unsupervised visits. By the review hearing, the mother still maintained she was not able to be a placement resource. At this point, the child said she wanted to live with her mother rather than her grandmother. 

The agency filed for termination and changed the goal to adoption. At that time, the mother stated she did not oppose termination if she could have continued visitation. 

The court granted termination. 

The circuit court also held a hearing on a new custody petition filed by the grandmother. The court denied motions for counsel to be appointed for the child in addition to her guardian ad litem (GAL). 

The child, now 12, testified at the hearing. She testified that she wanted to live with her mother and grandmother. She stated she believed they could provide a stable home for her. 

Testimony from the mother confirmed her criminal history and previous statements expressing disagreement with the placement goal with her mother. 

The circuit court denied the grandmother’s custody petition and ordered no contact between the child and the mother and grandmother until she was 18. 

On appeal of the termination and custody orders to the Virginia Court of Appeals, the appellants argued the court abused its discretion in not appointing an attorney for the child. 

First, the court of appeals noted the child’s wishes were made known to the court through her testimony. Thus the goal of the GAL guidelines and statute requiring the GAL to inform the court of the child’s wishes if they conflict with the child’s best interests opinion of the GAL was met.

Second, the court discussed the appellants’ challenge that the court erroneously found the child could not veto the termination of parental rights. 

State statue affords a child 14 years and older or a younger child with sufficient intelligence and maturity to veto a termination. The court noted the standard for younger children is discretionary. In this regard, the court found the circuit court carefully considered the issue and ultimately found the child had been manipulated by the grandmother. The record showed that despite telling therapists and others she had been happy in her foster homes previously, her testimony in the presence of her mother and grandmother was contradictory.

The court of appeals agreed that the record supported the finding that the child was manipulated and not of sufficient maturity or understanding to exercise a veto. 

Regarding termination grounds, the court of appeals agreed with the circuit court that the mother had failed to remedy the conditions that led to removal. Though it was not the mother’s actions that directly led to removal, her inability to be a placement contributed to the child’s continued placement in foster care. 

Second, the mother’s arguments that reasonable efforts were not provided lacked merit. The agency is not required to force services on an unwilling parent and the mother did not request placement until the goal was changed to adoption. 

On the grandmother’s appeal of the denial of her custody petition and the change of the goal to adoption, the court of appeals found the circuit court properly found the grandmother had not availed herself of services to allow her to safely care for the child. 

The court of appeals therefore affirmed the circuit court orders.