ADOPTION – CONTESTED – GOVERNING CONSTITUTIONAL
STANDARD – “DETRIMENTAL” REQUIREMENT.
Yet another case from the appellate courts reiterates the basic truth
and constitutional requirement that you can’t have an adoption over parental
objection, terminating the natural parent’s rights and permanently extinguishing her status as a parent,
without the court’s making a finding that for the child to continue a filial
relationship with the natural parent would constitute an “actual detriment” to
the child. Except that this time the Court of Appeals puts its finger squarely
on the real problem. And the culprit — and temporarily, at least, the solution.
In Todd v. Copeland, ___ Va. App.
___, ___ S.E.2d ___, 24 VLW 1075 (3/9/10), that detriment finding was not made
by the trial judge, and thus the trial court’s use against the mother of §§
63.2-1203 and 1205 was a deprivation of Fourteenth Amendment Due Process of
Law. That’s so even though this
child was born in prison, the mother did not have relatives to take the child,
and she voluntarily let the jail chaplain and a friend of hers have temporary
custody. (It was only the friend
who then kept custody and tried to adopt the child.) This friend was unable to say that the mother hadn’t visited
the child or maintained a good relationship with her, and in fact the
court-appointed “mental health professional” (name, sex and credentials
unspecified) had recommended (A) that the child should be told who her real
mother was, and (B) that the mother should have unrestricted and unlimited
visitation, and in fact, (C) that
what would be detrimental would be a termination of the mother-daughter
relationship. What the mother had
done, it turns out, is to be out of contact with the child for six months. (Oh
yes, and of course, the classic ground, that the mother’s withholding of her
consent to this made-in-heaven matchup was against the child’s best interests.)
The appellate court officially explains that (contrary, perhaps, to some very
surprising things it has said before in such situations) the “detriment to the
child” requirement and mere best interests are two different things, and that
the detriment standard derives not from the Virginia Code but from the United
States Constitution’s Fourteenth Amendment as explicated (many times) by the
U.S. Supreme Court. Our Court of
Appeals even makes, this time, the candid statement, “We conclude that a trial
court must make a detriment-to-the-child determination regardless of the
language of the relevant [Virginia] statute, before entering an adoption order,
in order to protect the Fourteenth Amendment rights of a non-consenting
biological parent.” It adds that: “Since the Virginia Supreme Court decided Malpass in 1972, Virginia courts have
emphasized that there must be more than a mere finding that granting an
adoption over the parent’s objection would be in the child’s best interests.”
It even makes the further candid statement that before 1995, Virginia’s adoption statutes, as interpreted by our
appellate courts, were constitutional.
They didn’t have to have an express “detrimental,” etc. standard because
the Court had read that requirement into our law. It was clear back then, the Court says, that both (A) best
interests and (B) that it would have
to be detrimental to continue the natural parent-and-child relationship have to
be found.
Between 1995 and 2006, the statutes were
facially constitutional because they were amended to expressly include the
requirement. But in 2006, spurred by aggressive federal and state campaigns to
accelerate “freeing children up for adoption”, a new adoption statute was
passed which deleted the “detrimental” standard. Until this is fixed by the
Legislature, it will be fixed by the Court of Appeals, once again saving the
constitutionality of our defective statute by reading that requirement in.
