Virginia Family Law Appeals

Adoption reversed because adoptive parent caused the mother's lack of relationship and contact with child

The Court of Appeals reversed a trial court that mis-applied the best-interests-of-the-child standard in approving an adoption by finding that the mother withheld consent to it contrary to the child's best interests. It said the trial court put too much emphasis on the mother's long time without contact, and lack of a relationship with, the child, and not enough emphasis on how that separation from the child was lengthened and worsened by the adoptive parent's deliberately interfering with and preventing contact, and lengthy litigation.

Gregory v. Martin, Record No. 0816-15-3 (July 19, 2018, unpublished)

The mother had a long history of drug abuse was incarcerated for grand larceny, breaking and entering, and larceny with intent to steal when the child turned one. The father also had a problem with drug abuse, therefore the child stayed with the paternal grandfather and the child's father's sister, who filed a petition for adoption. The child's father gave consent, but the mother did not. Upon the mother's release, she filed a motion to amend visitation, but the court denied her motion because it was not in the best interests of the child, and found that the mother unreasonably withheld her consent for the aunt to adopt her child. There was a court appointed GAL on the case, and the GAL stated that the mother never really had a relationship with the child. The court found that the child was in a good place and should stay with the aunt, and that the mother refused the child's best interest by withholding her consent for adoption.

Adoptive stepmother cannot have the adoption dissolved after divorce

Chand v. Chand, Record No. 0421-16-4 (October 4, 2016)

Father is the biological father to two daughters and his now ex-wife had adopted the girls in a stepparent adoption. Mother and father also are the biological parents to two sons. The parents divorced and mother filed petitions to dissolve the adoptions of the girls. She alleged that father had alienated the girls from her. According to mother, the girls have refused to talk with her or visit her for an extended period of time. In her petitions, mother expressed her concern that father's actions toward the girls are affecting her relationships with her sons. Mother argues that the trial court erred by failing to consider the facts in her petitions as admitted for purposes of the demurrers; failing to consider Code § 8.01-428 with regard to her petitions and father's demurrers; deciding the demurrers without considering the facts in her petitions; dismissing her petitions based on public policy, which went beyond the scope of father's demurrers; not citing any legal authority in its ruling to dismiss her petitions; and refusing to allow mother to amend her petitions. The circuit court based its decision to grant the demurrer and dismiss the petitions on the following reasons, "(a) that it has no authority to dissolve adoptions, and (b) that the dissolution of an adoption is against public policy, and (c) that the Supreme Court has consistently held same and there has been no legislative change on this issue at the time of the hearing." 

The Court of Appeals held that the circuit court did not err in dismissing the petitions because it lacked the jurisdiction to dissolve the adoptions, and thus "we need not address the public policy ruling." 

Adoption fraud claim rejected; mere “seen and objected to” insufficient, with one exception

The Court of Appeals upheld a refusal to overturn a grandparent adoption for fraud in Castillo v. Bell, unpub. 11/14/17. The mother was served by publication, but learned of the adoption in the same year that it happened, 2010. She filed to overturn it in 2016.  Code § 63.2-1216 prohibits ANY attack on an adoption judgment more than six months after it is made, for any reason, including fraud; but the Court had found it unconstitutional as applied to a non-English-speaking mother in an egregious fraud case, F.E. v. G.F.M., 35 Va. App. 648, 547 S.E.2d 531 (2001) (en banc). But in this case the trial court had found no evidence of fraud, and that the grandmother had done nothing to prevent her from learning of the adoption, and the mother had not appealed those findings.

The mother's appeal was also procedurally defaulted. Simply endorsing as “seen and objected to” does not preserve issues for appeal EXCEPT when ‘the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection,’” the Court writes, quoting Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000) (quoting Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)). As for other means of preserving issues,

Castillo endorsed the final order as “Seen and objected to” without further explanation. She did not file any post-trial motions. The written statement of facts does not include the parties’ closing arguments or objections to the trial court’s ruling.

Jailed father had right to participate in adoption hearing - Alvis v. Thornton

Virginia's Court of Appeals overturned an adoption because the incarcerated father was not allowed transportation to the hearing on whether his consent was being withheld contrary to the best interests of the child, nor any other way to participate, in Alvis v. Thornton, 4/10/18. The trial court, denying his motion for transportation, had cited Social Services' report and his convictions for burglary, larceny, and entering a house to commit assault. Remanded for a new hearing.

Stepparent adoption's evidentiary requirements straightened out

Virginia's Court of Appeals reversed and remanded the denial of a stepparent adoption in Graves v. Jones, 5/9/17. The trial court erred in requiring proof that a continuing relationship with the father would be detrimental to the child, because that requirement had been removed from Code § 63.2-1205. The factors that had been listed as part of that determination were moved to become part of the determination of the child's best interests. It also erred by finding that Code § 63.2-1202(H), which says a parent's consent is not required if he has not contacted the child for six months without just cause, does not apply to stepparent adoptions.

The trial court's order said that the DSS's report "did not investigate factors relevant to determining whether consent of the birth parent is withheld contrary to the best interest of the child." It was not error for the trial court to say that, the appeals court says. However, the DSS was not required to have done so. Code § 63.2-1241(C) only says that the court may order the DSS to do that, and in this case the court had not ordered that. So while the appeals court rejects this assignment of error, it corrects the trial court to the extent that it considered the DSS's omission as a reason to deny the adoption.

On the trial court's finding that the petitioners had not proven that consent was withheld contrary to the best interests of the child, the appeals court said it could not determine from the record what the trial court's findings were on the specific factors that § 63.2-1205 requires it to consider in making that determination. It remands for that.

Continuance denial upheld; Indian Child Welfare Act N/A: George v. Traylor

The Indian Child Welfare Act does not apply in an adoption where nobody asserted a good faith belief that the child "is an Indian child," the Court of Appeals says. In fact the appellees, though the burden was not on them to do so, contacted all the Cherokee tribes the mother said she might be descended from, and learned that the child did not qualify for membership in any of the tribes.

There was also abundant evidence that the drug-using, incarcerated mother was withholding consent contrary to the best interests of the child.

The court also upholds the trial court's denial of a continuance, because it will reverse such a ruling only when shown and abuse of discretion AND resulting prejudice to the party who asked for the continuance. There was no prejudice because the mother was fully able to participate in the trial and make her case, and she did so. She was represented, appeared, testified, called numerous witnesses, filed many motions, and made substantial arguments. And the lack of a continuance did not change the basic facts of the case: the mother's sorry history and uncertain future. 

George v. Traylor, Va. App. 12/27/17

 

6 months without contact waives adoption consent rights; child's best interests irrelevant; consent statute applies to all kinds of adoption.

In a stepparent adoption case where the other natural parent has not contacted the child for six months without just cause, that parent's consent is not needed, and so, nor is a determination of whether consent is withheld contrary to the child's best interest, the Virginia Court of Appeals says in Graves v. Jones (unpublished, 5/9/17). It was wrong for the trial judge to ask whether an ongoing relationship with the father would be detrimental to the child, it adds.

Code § 63.2-1205 dispenses with consent after six months of unjustified lack of contact. The trial court had held that that this section, which is near the beginning of the Code's adoption chapter,  did not apply in a stepparent adoption, which is authorized and governed by Code § 63.2-1241. It does apply, covering  adoption generally, the Court of Appeals says.

For another reason, as well, the social services department did not have to investigate the factors that Code § 63.2-1205 lists for determining the "best interests of the child" and whether the father's withholding of consent was contrary to best interests, the Court said. Because the order referring the case to the DSS for an investigation did not specify that they should do so.

Even in family court, ruling without hearing evidence is unconstitutional - Va. Ct. of App.

A Circuit Court Judge went too far, too fast, by announcing his ruling based on his knowledge of the case in earlier years and possible review of the file, and a Guardian Ad Litem's presentation, without letting the petitioner present evidence. (The respondent did not even try to present evidence.) A mother whose child had been placed for adoption, with an aunt, filed for visitation, but the judge discontinued the trial in the middle of the mother's presentation of evidence, in order to go to hear another case in another county. Despite repeated requests from counsel, a hearing to conclude the case was not set for nearly two years, and the judge said at the beginning of the hearing, after hearing from the Guardian Ad Litem, that the mother could not have visitation because she had now gone too long without it. The Court of Appeals holds that it was error to deny the visitation, and grant the final adoption, without hearing all the evidence. Gregory v. Martin, 9/16/14 (unpublished).

Mom loses visitation while adoption pending; appeals court explains why in Murray v. Sensabaugh,

The recent case of Murray v. Sensabaugh denies a "biological" mother any presumption in favor of her versus a prospective adoptive couple, because she had "abandoned" the child and "voluntarily relinquished custody" to the couple. Thus it evaluated whether her visitation should continue without any presumption, but solely based on the child's best interest, and found "clear and convincing" evidence in favor of terminating the mother's visitation The opintion lists some facts that justified this: 

• Before the couple sought custody, she and another person regularly brought the child to them dirty, unwell, injured and/or hungry; asked the couple for money; and often drove the child wihtout a valid driver's license.
• The couple claimed she posed "scantily clad" and holding weapons for "vulgar photos" used on "a commercial web site."
• She posted online that her job was "selling sex toys".
• The child called her by her name, not "mom".
• When court-ordered to take a parenting class and get a driver's license, she took a year to take the class and longer to get the license.

The mother also appealed the denial of her "motion to strike" the adoption petition, and the court refused to hear the appeal because what the mother chose to appeal was not a final order;  the adoption itself was still pending at the time of the denial of the motion to strike, and the judge had referred the case to the DSS for home studies and a report.

Va. rejects "Existing Indian Family" doctrine & other attacks on Indian Child Welfare Act

INDIAN CHILD WELFARE ACT – TRANSFER TO TRIBAL COURTS – NEW LEGAL STANDARD. Giving an enormous boost to the adoption industry, the U.S. Supreme Court this summer drastically whacked away at the scope of the Indian Child Welfare Act, 25 USC §§ 1901 - - 1963, moving justices Scalia and Sotomayor to pen some of the most eloquent and outraged dissents heard in a long time. But much as that opinion demonstrated how much the majority love the adoption industry and all of its marketing publicity, the peculiar posture of the case dictated a result that left plenty of flexibility for the state courts in their continuing discretionary application of this Act. Now it seems the Virginia Court of Appeals has had some time to read and ponder the strong anti-tribal sentiments so forcefully expressed by the U.S. Supreme Court majority, but passes up at least one opportunity to jump on the bandwagon. Here, a Fairfax trial court decision gave the appellate court its chance to decide whether to embrace or reject the so-called “Existing Indian Family Exception” to the requirements of the ICWA. That is, the proposition that the Act applies only when the child is being removed from “an existing Indian family.” The argument raised by the foster parents and the Guardian ad Litem was that because one of the parents of the child in question was a non-Indian, the exception applied, the Act did not apply, and thus the case should stay in the Fairfax Circuit Court. (Note: this is slightly different from the “intact Indian family” exception that the U.S. Supreme Court came up with this summer in the Baby Girl case, which was that if one parent is a mere visitation parent, the Act doesn’t apply.) However, the Court of Appeals says, “we decline to recognize the Existing Indian Family Exception, and join the growing chorus of courts that have rejected the Exception.” The appellate court’s reasons are very clearly and very patiently explained, but like so many of the decisions in this 29-page opinion, can’t be detailed here. Basically, the exception is entirely court-created, Congress didn’t put it in the statute, the voluminous case law rejecting the theory is indeed a chorus, and “we decline to rewrite ICWA…” Next, the statute allows state courts to deny transfer if “good cause” is shown. The foster parents and GAL argued that “good cause” is synonymous with “best interests”. The Court of Appeals disagreed, saying it takes “a substantial risk of causing immediate, serious emotional or physical damage to the child, from the transferred decision itself, and adding that it has to be shown by clear and convincing evidence. Moreover, best interest is not pertinent to jurisdictional decisions. Nor, the Court of Appeals says, is there a rule that both parents have to be Indians for the Act to apply: Congress didn’t put any such thing in the act, and it’s clear that they didn’t intend to. Same with GAL/foster parents’argument that the case had to stay in Fairfax because that is the only court that has jurisdiction over both parents: the Act doesn’t say that, and besides, the Vietnamese father has consented to tribal jurisdiction. The Court of Appeals ruling promulgating the “immediate, serious damage” standard required a reversal and remand of the trial court decision, since the circuit court had articulated a slightly different one. Thompson v. Fairfax County DFS, _______ Va. App.________,_______SE 2d______ (9/10/13), Record No. 2185-2-4, was four consolidated appeals. It also necessitated the unpublished remand in Nunnally v. Dinwiddie DSS.

 INDIAN CHILD WELFARE ACT – APPEALABILITY OF JURISDICTIONAL DECISION – FINAL ORDER VEL NON. The unpublished Citizen Potawatomi Nation v. Dinwiddie DSS, however, presented another legal question which was not governed by the Thompson case. And it is a disturbing, infuriating and illogical ruling to those who use the ICWA or the Hague Abduction Convention, where the idea that a ruling on jurisdiction is in practical terms anything but final is nothing but laughable, and for 99.9% of litigants, justice by appeal is an impossibly moot abstraction. Of course it should not have been disturbing to anyone familiar with UCCJEA litigation, since the same court some time ago decided that the result in a UCCJEA decision on jurisdiction is non-final and can’t be appealed. And so it is with a decision under the ICWA denying a transfer to the courts of an Indian tribe. Record Nos. 1713-12-2, 1724-12-2, 1725-12-2, 1726-12-2.