ADOPTION – OVER OBJECTION – PARENTAL PRESUMPTION – CONSTITUTIONAL ISSUES – CODE § 63.2 1202-1205. Copeland v. Todd, ___ Va. ___, 715 S.E.2d 11, 26 VLW 476 (9/16/11), reversing 55 Va. App. 773, 689 S.E.2d 784 (2010), 30/1 FLN 20.
On September 16 our Supreme Court reversed last year’s Court of Appeals holding that had come to the rescue of natural parents facing adoption over objection, Todd v. Copeland. Applying the 2006 version of the adoption statute, a trial judge had held that it determined the mother was withholding her consent “contrary to the best interests of the child,” and ruled that that was all he had to hold. The Court of Appeals said you can’t take people’s children permanently away and completely destroy parenthood with a mere best-interests finding – though the 2006 adoption statute does exactly that – and reversed this unnamed circuit court. The Court of Appeals held that only by giving the statute a constitutional limiting construction which reads the “detriment” requirement into it, and knocks out this particular adoption, can its constitutionality be saved. The state Supreme Court now differs with that reasoning, and reinstates the trial court’s. The trial judge had made an alternative holding that he could grant the adoption on the ground that although the parent had not let the child go uncontacted by her for six months, her contacts could be disregarded for the purpose of constitutional analysis because they were not good enough or solid enough to be meaningful quality time, and the Supreme Court lets stand the reversal on that one. The mother too had tried an alternative argument that this adoption amounted to a parental rights termination without giving her the constitutional and statutory rights that attach to that, but the Supreme Court doesn’t buy it. (It’s difficult to tell whether the Court of Appeals had bought that alternative argument or not, a matter now of only passing academic interest, though they did hold that termination requires a whole battery of tests reaching beyond that “best interest”.) In a long and scholarly disquisition the Virginia Supreme Court warmly embraces the 2006 adoption statute and the best-interest test that it uses, because, as the Justices explain in their unanimous opinion, in this context it’s better because it’s something different. And now Virginia has a constitutionally approved statute that makes judges happy, makes adoptive parents happy, makes lots of social workers, etc. happy, and leaves really only one group out in the cold. The Court is not afraid to come to grips and wrestle with some mighty and powerful abstract concepts to do so.
If an appellate court is going to issue rulings directly contradicting all the things the U.S. Supreme Court has explicitly said in all its recent cases on the point, it is well advised to do so at the expense of some group which lacks any powerful constituency or advocacy/interest groups to take up its cause. Natural parents fighting involuntary adoption of their children have long been such a group.
Abstractions usually do tend to be difficult and slippery, and not all lawyers are of such a Jesuitical turn of mind that they take easily to them. They abound in substantive criminal law, for instance, and family law is not without them. Appellate courts often take to them with relish, of course, and in Copeland v. Todd, the Virginia Supreme Court, which so often solemnly intones that it does not write language into the statutes, reasons you around in a great circle to convince you that for constitutional purposes the “best interests of the child” language in the adoption statute does not mean that, but something greater and finer, and more invincible to constitutional attack. At the end of this fine and carefully constructed opinion it is difficult for the reader to say whether the Court is saying that “it means it because it says it does,” or “it means it because they say it does” or “it means that because we say it does.” But we will let the cleverest among us parse all that out.
But above all abstractions are first and foremost words. Abstractions used in the legal world have definitions, but those definitions are long enough and wide enough to fill an entire library, including contradictions, overlappings, and airy puzzlements that may leave you quite empty handed at the end of your inquiry. We live by words after all, and scientists tell us they are what makes us human in the final analysis, but words can kill too, for they can be very deadly missiles indeed, especially in the hands and in the mouths of the all-powerful. And they surely can be fatal in their effect, not least in this business of adoption of your child over your objection. And don’t go trying to drag in the body of law that has grown up around parental rights terminations. Oh no, for the Supreme Court tells us they are quite different – different creatures altogether. Yes, different entirely – notwithstanding that the two might seem awfully much the same when you are on the receiving end of either one. Abstractions are just that. You can sift through to the very end and find nothing solid, nothing concrete in them. But the effect when they are turned on you can be as hard and concrete as a lump of that stuff falling on you. The Court of Appeals reasoned one way, and lo and behold the Supreme Court reasons differently, and one’s child, along with all one’s hopes, disappears too.
To be precise, we should go through the matter step by step with the Virginia Supreme Court. From 1995 to 2006, there’s no dispute that the Virginia statute was constitutional, meeting the demands of the U.S. Supreme Court opinions, which the Court of Appeals read in the instant case as requiring more than “best interests of the child,” with that “more” including that it would be “detrimental” if the natural parent kept the child. In 2006, another wave of pro-adoption and adoption-industry sentiment, incensed with the “detrimental” standard, persuaded the General Assembly to remove it. Whatever it may have thought of the looming constitutional problems, the General Assembly didn’t painstakingly and sensitively craft a substitute, but simply deleted the “would be detrimental” phrasing and replaced it with “against the best interests” as the answer to any constitutional problems. So the General Assembly passed this 2006 “best interest” statute, which the Court of Appeals in Todd v. Copeland held less than sufficient – insufficient that is, without a constitutional limiting construction reading “detrimental” back in.
Which, of course, required reversal of the instant case and the adoption there. The Virginia Supreme Court thinks otherwise, reading Quilloin v. Walcott, 434 U.S. 246, 255 (1978), and all of its constitutional companions differently, and reversing the reversal, sustains the trial court ruling, the 2006 statute, and the present involuntary adoption. Although the wording of the 2006 statute is different from the 1995 statute, in its substitution of “best interest” for “detrimental,” the Virginia Supreme Court says that you do not have to do this using exactly that word to conform to Quilloin, etc., if you use other words that are adequate, and the 2006 statute did that – by using – (The envelope, please.) “best interest.” It has the same string of careful, sensitive factors that the 1995 statute had – exactly the same – only with “best interest” replacing “detriment.” The Virginia Supreme Court obviously thinks the law before 1995 was O.K. anyway, and the General Assembly shouldn’t have added a “detrimental” test. So contrary to best interest equates with detriment and the present statute constitutionally conforms, and therefore it requires more than best interests – to-wit, best interest.
But the two best interests do not mean the same thing, because, well, everyone knows they are different. Why? Because best interest is used – meaning “also used”, but let that pass – in mother-father custody contests, which are, we all have to admit – different from adoption. QED.
So is there at the end of the loop a crucial factor that distinguishes the one best interest from the other any better than that? Apparently it would have to be the only one left here, the factor that the Court of Appeals labored mightily to apply, but felt it just couldn’t: the Presumption of Constitutionality.
