family law lawyer

Can the Family Court terminate the parental rights of an incarcerated inmate?

Andrew Myers was serving a prison sentence in Virginia. Prior to his incarceration his girlfriend became pregnant with their child and she gave birth after he was incarcerated. At some point, Social Services became involved and the child was removed from the mother’s home and placed in foster care. After a trial the Family Court terminated Mr. Myers’ rights and granted the foster parents’ request to adopt.

On appeal the court affirmed their prior holdings stating that a person’s incarceration, standing alone, is not a sufficient basis to terminate parental rights. A person’s parental rights may be terminated by the Family Court if they willfully fail to visit or provide meaningful support for a minor child for 6 or more consecutive months and the court finds the termination to be in the best interests of the minor child.

On December 18, 2016 the court of appeals, in an unpublished opinion, held that Mr. Myers did provide meaningful support, to the extent he was able given his circumstances. Trial testimony showed that Mr. Myers had told his mother to stop sending him money in prison, and instead use that money for the support of the child, which she did. The court ruled that father did not evidence a “settled purpose to forego his parental duty” but rather provided meaningful support to the extent possible given his circumstances.

The court found that during the pendency of the family court action the minor child was in the custody of Social Services. At trial, the child’s social worker indicated that Social Services would not take the minor child to visit with Mr. Myers during his incarceration in Virginia. However, in spite of this, the court found that “notwithstanding his inability to visit Child, Father showed a commitment to Child by writing her, writing DSS to inquire about Child, and communicating with Child’s guardian ad litem.”

Finally, the court of appeals disagreed with the trial court that Mr. Myers had abandoned his child. The court found that, to the contrary, the evidence at trial “established that Father—who had criminal charges pending prior to Mother’s pregnancy—turned himself in when Mother became pregnant so he could serve his prison sentence before Child was born. Father communicated with Child, DSS, and Child’s guardian ad litem through letters and provided material support to Child. Father also attempted to arrange for Child to be placed with Grandmother during his incarceration; however, that plan was hindered by the lengthy Interstate Compact on the Placement of Children process and Foster Parents’ adoption action.”

This case establishes the guidelines that an incarcerated parent should follow to avoid losing their parental rights while serving a prison sentence.

Editorial note:  Mr. Myers was incarcerated on drug charges and his case is another example of the the failure of our ‘war on drugs’.  Not only is our rate of incarceration unsustainable, and the militarization of peace officers inappropriate, the Myers case clearly illustrates how this ‘war’ contributes to the devastation of  families for very little social benefit.

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