Introduction


     In Virginia, terminating a parent’s rights requires clear and convincing evidence that the parent is unfit or unable to remedy the conditions that led to foster care placement. A recent Court of Appeals decision underscores that due process protections must be strictly observed before such an extreme measure can be imposed. Background


     In Jorge Guevara-Martinez v. City of Alexandria Department of Community and Human Services (Record No. 1848-22-4, Oct. 1, 2024), the circuit court terminated a father’s parental rights and approved adoption as the foster care goal. The father appealed, arguing that there was insufficient evidence of unfitness and that his constitutional rights had been violated. The record showed prior concerns, including allegations of abuse toward the child’s mother and physical discipline of the children. While these issues supported the child’s initial placement in foster care, they did not prove that the father had failed to make reasonable changes or remedy the conditions over time.


Legal Analysis


     The Court of Appeals reversed the termination order, holding that the Department had not presented clear and convincing evidence that the father was an “unfit parent” under Code § 16.1-283(C)(2). The only evidence offered at trial was that the father had not sufficiently altered how he participated in virtual visits. The Court found this inadequate to justify permanently severing parental rights.


     The opinion emphasized that past conduct, though sufficient to support foster care placement, cannot substitute for proof that a parent continues to pose a risk or has failed to address the underlying issues. The circuit court’s reliance on insufficient evidence deprived the father of due process, and its approval of adoption as the permanency goal was likewise premature. A concurring opinion agreed with reversal but cautioned against addressing all of the father’s additional arguments, while a partial dissent argued that the record contained enough evidence of aggression and neglect to support termination.

Implications


     This case underscores the high evidentiary threshold required for terminating parental rights, where courts must distinguish between circumstances justifying temporary foster care placement and those that permanently end a parent-child relationship. Even where foster care placement is justified, courts must make a separate and rigorous finding of ongoing unfitness before terminating rights. Procedural safeguards - including the requirement of clear and convincing evidence - serve to protect parents from overreach. Without clear and convincing evidence that a parent remains unfit, termination cannot stand.


Smith Strong Can Help


     Cases involving parental rights and child custody carry serious consequences. Our experienced family law attorneys at Smith Strong, PLC understand both the statutory framework and the constitutional protections that apply in these matters. If you are facing a parental rights or custody dispute, call our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg) to schedule a confidential consultation.