Virginia Family Law Appeals

PARENTAL RIGHTS TERMINATION – BEST INTEREST STANDARD –- ADOPTION OVER OBJECTION -- FOSTER CARE CASES.

Rollins v. Alexandria DSS, unpublished, (R. 1426-03-4, 1/28/04). Many of us used to believe that under the U.S. Constitution and even recent Supreme Court case law parents' rights could not be terminated without severe abuse or neglect, abandonment or unfitness or something else unforeseen and unprecedented that was equally bad.  If any of you still believe that, be advised that there are some cases in which mere best interests of the child is all it takes.

JUVENILE COURTS -- APPEAL: Jones v. DCSE

The Department of Child Support Enforcement can appeal from a juvenile judge's decision to overturn their administrative support order.  However, a party or an attorney for the party -- not a non-lawyer DCSE bureaucrat -- must sign the appeal.  9 VLW 630 (11/8/94).

ADOPTION – STEP-PARENT ADOPTION – NOTICE TO FATHER – SERVICE BY PUBLICATION – FRAUD – EXTRINSIC.

A rather complex question regarding how much notice fathers have a right to get when a child is adopted, and what they can do about violations of those rights, led the Court of Appeals to remand a father’s challenge to adoption of his child back to the trial court for determinations it had refused to make when it dismissed the father’s claims. In McCallum v. Salazar, 636 S.E.2d 486, 49 Va.App. 51, 21 VLW 682 (11/7/06), the father had argued that the mother misled the trial court to believe that he could not be located and service by publication was proper. Asking to have the adoption order vacated, he called what the mother had done fraud on the court.

PATERNITY -- ENTRUSTMENT -- ADOPTION.

When exactly the unknown father of an unwed mother's child can be considered fully and legally unknown is explicated to some degree in Unknown Father of Janet v. DSS, ___ Va. App., 422 S.E.2d 407 (1992). This involves the various statutes turning upon whether identity of such a father is "not reasonably ascertainable," (see Code Sections 16.1-263E, 16.1-283C, §63.1-204, 63.1-220.2). The identity of a father was not reasonably ascertainable, for purposes of terminating his parental rights, where the mother indicated she had had numerous sexual partners around the time of conception and was unable to identify them, and the unknown father, who had a guardian ad litem, failed to communicate with the infant for over 12 months after foster care placement. It matters not that he had no actual or constructive notice of the baby's existence.

ADOPTION – NEW BIRTH CERTIFICATE – HOMOSEXUAL PARENTS.

In Davenport v. Little-Bowser, ___ Va. ___, 611 S.E.2d 366, 19 VLW 1240 (4/22/05), the Virginia Supreme Court held that the State’s Registrar of Vital Records & Health Statistics could not lawfully refuse to issue a new birth certificate to a same-sex couple who had already been allowed to adopt a child as the “adoptive parents.”

HOME VISITATION REPORTS

ADOPTION — SOCIAL AGENCY HOME VISITATION REPORTS. An adoption that took place over the objection of the mother was overruled by the Court of Appeals as the appellate court agreed with her counsel that violation of the rules requiring that the social workers visit the intended adopting home and file the statutory reports required under §63.1-219.19 had to be complied with and the non-compliance was fatal to the adoption. Nor did it matter that this mother had been in prison most of the time since the birth of the child and the would-be adopting parents had had her since she was four months old. In fact there was some kind of report filed with the circuit court, but neither it nor any other evidence indicates that the visits were in fact made. Crockett v. McCray, 38 Va. App. 1, 560 S.E.2d 920 (3/26/02).

ADOPTION OF CHILD IN FOSTER CARE.

The Court of Appeals in Richmond DSS v. Carter reversed a Circuit Court's decision denying the Welfare Department's proposal to change a child's status from foster care to adoption, because the circuit court erroneously applied a "clear and convincing" standard rather than the easier burden established by the Court of Appeals in Padilla v. Norfolk DSS, 22 Va. App. 643, ___ S.E.2d ___ (1996).

ADOPTION — SOLICITING MONEY

ADOPTION — CRIMINAL VIOLATION — SOLICITING MONEY — CONSPIRACY — HUSBAND AND WIFE. A number of the same points as were made by the Court of Appeals in the Lillie Combs case were repeated in a slightly different context as the Court upheld the husband's convictions of adoption-solicitation and of conspiracy in Nathan Allen Combs v. Commonwealth, 30 Va. App. 802, 520 S.E.2d 400 (1999). The Court of Appeals makes the opinion considerably harder to follow by designating Mr. Combs as "appellant" and Mrs. Combs as "Combs," stating first that the wife initiated contact with Catholic Charities of Roanoke and then relating in detail how "Combs committed this conspiratorial act." In any case, after a representative of this adoption agency advised the couple that for the adopting parents to "help them out financially", as the Combses asked, would be a crime and could not be done, the mother withdrew the request to have a placement explored. The evidence related in this case also added that Mr. Combs offered the child to his landlord in exchange for the back rent that the couple owed on their trailer. It also seems to indicate an attempt to play off various potential adopters against one another in order to bid up the price. The argument that the appellant should not have been convicted because he never got around to actually agreeing to accept any particular price was unsuccessful, since the charge was, after all, "soliciting" money.

ADOPTION FRAUD – FOREIGN LANGUAGE SPEAKERS

ADOPTION – FRAUD – INTRINSIC AND EXTRINSIC – CONSTITUTIONAL RIGHTS – LIMITATIONS – NOTICE – PERSONAL JURISDICTION – CONSENT FORMS – FOREIGN LANGUAGE SPEAKERS. Many parents and counsel who have proved fraud, lack of notice, etc., and then found that Virginia statutes still prevent them from overturning an adoption of their children, have probably thought that the statutory scheme is unconstitutional, and in one isolated and narrow instance, the Court of Appeals decides that it too thinks so. Code §63.1-237 says that no parent can bring a collateral action asserting extrinsic fraud in order to set aside an adoption once six months from the adoption order has gone by. The Court of Appeals finds that statute unconstitutional as applied to a father who had participated in the rearing of his child, who accordingly had a fundamental and constitutional right to go on participating unless the relationship was altered by due process of law, and who alleged that he signed an adoption paper shoved at him by the maternal grandmother that was written in English, a language he cannot read. The mother had been killed in a car accident. And after that, the father, who had been injured in the same accident, let the maternal grandmother care for the child while the child got the necessary medical care for his own injuries. He says that the grandmother told him the form she had him sign in her lawyer's office was one which would allow her to get medical information on the child, rather than an adoption consent form. This father continued to see and care for the child, who lived primarily in the grandmother's home, for about three years after signing the adoption consent, until he came to claim his child back and was told that the boy had been adopted. His petition to set aside the adoption order alleged extrinsic and intrinsic fraud, and that application of the six month limitation statute on such challenges to prevent a set-aside on grounds of duress, fraud, lack of notice and lack of personal jurisdiction violated constitutional rights of due process and equal protection. The trial court sustained the grandmother's demurrer and the Court of Appeals reversed by finding it unconstitutionally applied to these facts. To the argument that the state has a compelling interest in "preserving stability in a family relationship," the Court of Appeals replied that actually, that principle applies to natural families too. It did not find application of the six-month limitation statute under these facts was sufficiently narrowly tailored to achieve that stability goal without violating fundamental constitutional rights to continue an existing relationship one has with one's own child, even if one is a mere "biological" parent. The trial court thought that it acquired personal jurisdiction by execution of the consent order, but the Court of Appeals majority states that such personal jurisdiction comes only from receipt of notice which measures up to the requirements of the Due Process Clause. The notice that this defrauded father got was not notice "reasonably calculated, under all the circumstances" to let interested parties know about the litigation and afford them an opportunity to participate and object. The father had also asked for appointment of a guardian ad litem, and that was properly denied by the trial court, since he had no standing to request such an appointment (nor, indeed, even to request visitation) so long as the invalid adoption order remains in effect. Judge Benton, joined by Judges Annunziata and Clements, concurs in the constitutional holding based on facts that were alleged but have not yet been tried. These consenting judges would also hold that the Adoption Act that was then in effect required notice to the father and that accordingly the adoption order is void. Dissenting Judge Bumgardner, joined by Judges Frank, Humphries and Agee, believes that these constitutional grounds have unnecessarily been dragged in and that this will have a harmful impact on the adoption process and the adoption industry, by undermining the implied promise to adopting parents that adoptions can be confidently accepted as final and unassailable. F.E. v. GFM, 35 Va. App. 648, 547 S.E.2d 531, 16 VLW 116 (6/26/2001).

ADOPTION-OVER-OBJECTION CASES

ADOPTION OVER OBJECTION -- PROCEDURE -- NOTICE -- APPEALS. The en banc Court of Appeals in Carlton v. Paxton, ___ Va. App. ___, ___ S.E.2d ___, 7 VLW 587, upheld its earlier ruling (6 VLW 1123) that a trial court erred as a matter of law in holding that service upon a father complied with the requirements of Code §8.01-317. It also agreed that the father's notice of appeal was sufficient, even though it incorrectly identified the adoption order being appealed.

ADOPTION OVER OBJECTION (PARENTAL RIGHTS TERMINATION). In what is apparently its first non-consented adoption case construing the new 1995 statute, the Court of Appeals makes several points. First, it holds that the new Code §63.1-225.1 (1995) merely codifies the law as it stood before, so that all the prior case law still holds. The new section requires the court to consider the best interests of the child as to the adoptive parent and the natural parent, and the court holds that when the evidence shows that the adoption would be in the child’s best interest, and continuing the relationship with the parent would be “detrimental,” it must necessarily follow that the other statutory prong is satisfied and failure to grant the adoption would be “detrimental.” When these are found, the court must necessarily conclude that consent is withheld contrary to the child’s best interests. In a case where the prospective adoptive parents are the paternal grandparents, the court finds all the tests satisfied by the evidence that this mother was not so great, and accordingly continuing the relationship would be detrimental. Hickman v. Futty, ___ Va. App. ___, ___ SE2d ___, 12 VLW 342 (8/19/97).

ADOPTION OVER OBJECTION. Applying the new Code §63.1-225.1 to uphold a finding of unreasonably-withheld natural-parent consent, the Court of Appeals says that a man who is serving a prison sentence for murdering the children’s mother could not possibly have a reasonable objection to interpose. He deprived them of both parents by the homicide and the imprisonment, and it doesn’t take any more than this. Winfield v. Urquhart, ____Va. App.______, ______SE2d_______, 12 VLW 680 (11/4/97).

ADOPTION — OVER PARENTAL OBJECTION — ADOPTING-PARENT ELIGIBILITY — CONVICTED SEX OFFENDERS. What kind of case could possibly lead a trial court to rule, and a Court of Appeals to affirm, that it’s O.K. for a man convicted of child sex abuse to adopt a child? Well of course. A case where it’s only a natural father who is objecting. With all that said, the Court of Appeals in Gray v. Bourne, 46 Va. App. 11, 614 S.E.2d 661 (6/21/05), produced a fascinating opinion with careful and conscientious analysis of statutory issues and the many strong public policy reasons for having this married convicted adopted father to adopt. Over the dissent of Judge McClanahan, the majority quickly went through all the statutes involved, pointing out that the statute listing criteria for eligible adoptive parents says not a word about child molesting and the statutes requiring registration of sex offenders never mention the word "adoption", while Judge McClanahan says that any common sense interpretation of any of these statutes could not possibly attribute to the Legislature an intent to let such people adopt children. The majority’s response to that is of course that if the Legislature intends something, the Legislature can say so. It also points out that the trial judge recognized all the issues in play here and carefully went through a comprehensive analysis of facts and factors explaining everything and keeping his eye on the best-interests-of-the-child ball. The natural parents, objecting from their prison cells, were unmarried, and complete losers in every way. If nature had not made them parents, they would never have been considered for an instant as applicants for the job. (The mother objected at trial but did not appeal). The married adoptive father was the mother’s cousin. He told a very affecting story to show how he ended up taking a plea to a charge of which, in any sane world, he could have counted on being acquitted, for an act which could not have been committed for sexual gratification, and would have had to be committed without any intent at all since he was asleep, and which no one would ever have known a thing about if he had not told his girl friend (who must have decided to share it with the world when she no longer liked him). Of course the man had gone through all of the trainings, counselings, classes, etc. that flowed from his guilty plea and in his odyssey through the administrative and court system ended up being tested on the infamous machine three different times. And the psychologist testified about these tests, each of which produced scores indicating he would be about the last person in the world to think of children in a sexual way. Much was made, however, of his failure to register until recently as a sex offender. He explained that he really did not realize that he had to do that, but when told, he hastened down to the Sheriff’s office to start the process, being told each time he inquired after that the process wasn’t over yet. Irrespective of whether he complied with the registration statute or not, Judge McClanahan goes to it as clear evidence of a General Assembly attitude that would not be compatible with convicted sex offenders adopting children. The Legislature does not have to use the word adoption, she says, for such meaning to be clear. Nor does the statute concerning adoption have to speak of sex offenders as such for you to get that legislative intent out of it. During the course of all this, the appellate judges or their law clerks really do their homework. The opinion is full of citations concerning standard of review, legislative intent, and statutory interpretation. And finally, as the majority points out, the statute allowing adoption of children over the objection of the parents, despite everything the U.S. Supreme Court has recently said, is now nothing but a “best interest” test. Judge McClanahan in her dissent points out that the statute requiring registration of sex offenders, §9.1-900, expressly says that its purpose is “to prevent such individuals from being allowed to work directly with children,” so it certainly does not contemplate their being allowed to adopt them.

ADOPTION – OVER PARENTS' OBJECTION – RELATIVE FAULT OF NATURAL AND ADOPTING PARENTS. In Starkell v. Geris, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 670 (11/26/02), the Court of Appeals affirmed an adoption that was granted over the objection of the father to an unrelated couple who had some problems of their own. The couple, however, had been given the child by the father when she was 18 months old, have taken care of her ever since, and are now the only parents – or at least the only decent parents – this child has ever known, their home being the child's only home. The adopting husband had had two DWI convictions, one as recently as 1999, but the Court of Appeals found that this regrettable unlawful conduct did not endanger any child, nor make him an unfit parent. As for the wife, now 48, she had had two of her children taken away in her early twenties due to drug problems and being in contempt of court for non-payment of child support. However, the evidence shows that she has turned her life around and has given this little girl and her own six-year-old son wonderful loving care. As for the girl's father, however, the evidence showed not only that he relinquished custody of the child when she was an infant, but also that he was convicted of sexually abusing the daughter between April of 1997 and June of 1998, and ordered to have no contact.