Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.
LUCRETIA PUTNAM COPELAND
v. Record No. 100929 OPINION BY JUSTICE DONALD W. LEMONS
September 16, 2011
LESLIE TODD
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred when it reversed the judgment of the Circuit Court of
Rockingham County and dismissed the petition for adoption filed
by Lucretia Putnam Copeland ("Copeland").
I. Facts and Proceedings Below
On April 11, 2003, Leslie Renee Todd ("Todd") gave birth to
a female child who is the subject of this petition for adoption.
At the time, Todd was incarcerated at Rockingham County Regional
Jail for felony shoplifting and contempt of court. The name of
the child's father does not appear on the birth certificate, and
his identity is unknown. Todd's relatives were not prepared to
take her newborn baby, and Todd agreed that Linda Guenther
("Guenther"), who worked as a minister to inmates at the jail,
and Guenther's friend, Copeland, would take temporary custody of
the child until Todd was released from incarceration.
On July 21, 2003, the Rockingham County Juvenile and
Domestic Relations District Court (the "J&DR court") entered an
order granting Guenther and Copeland "legal and physical
custody, subject to [Todd's] visitation at the discretion of
. . . Guenther and . . . Copeland." Guenther and Copeland took
the baby to visit Todd while she was incarcerated, usually on a
weekly basis. Although Guenther and Copeland both cared for the
baby during the first year, Copeland eventually became the
baby's primary physical custodian.
After Todd was released in September 2003, Copeland,
Guenther, and Todd all agreed that Todd could not take care of
the child due to her housing and financial situation. However,
both Guenther and Copeland encouraged Todd to spend time with
the child, and they facilitated visits by providing
transportation for Todd. Todd saw the child frequently through
April 2005. During this period, the child lived exclusively
with Copeland. Todd never offered financial support nor asked
that the child be returned to her.
Beginning in April 2005, Todd's contact with the child
began to wane. Between that time and June 2006, Todd only had
contact with the child three times through two telephone calls
and one chance encounter at a department store parking lot.
Between July 2006 and July 2007, Todd neither contacted nor
visited the child.
On June 21, 2007, Copeland met Todd at a local church and
asked Todd for her consent to adopt the child. At that meeting,
Todd refused Copeland's request, and she asked to see the child.
2
Copeland agreed, and Todd visited with the child for
approximately thirty minutes at Copeland's home.
After that visit, Todd asked that she be allowed to visit
the child more frequently. However, Copeland, upon the advice
of an attorney, refused further visitation. In response, Todd
sought and received court-ordered visitation with the child from
the J&DR court. The J&DR court appointed the Center for
Marriage and Family Counseling (the "CMFC"), a private,
non-profit counseling agency, to help set up a visitation plan
for Todd and the child.
On November 26, 2007, Copeland filed a petition in the
circuit court to adopt the child "without the consent of [Todd]
pursuant to [Code §] 63.2-1202(H)." In January 2008, Todd
completed orientation with the CMFC and began supervised visits
with the child. Todd visited the child on every occasion
allowed by the court order. Counselors at the CMFC monitored
these visits and reported that Todd and the child "interact[ed]
in a positive manner," and that "Todd has the knowledge, skills
and ability to maintain and nurture an appropriate relationship
with [the child]." Throughout these visits, the child was
unaware that Todd was her birth mother. In a report dated March
20, 2008, the CMFC recommended that "Todd have the opportunity
to have unrestricted visits with [the child] at her home and
without Ms. Copeland's presence." The CMFC further opined that
3
"[f]rom a developmental perspective, it would be detrimental
. . . to terminate a mother/daughter relationship at this
point." On April 24, 2008, the J&DR court issued an order
mandating continued weekly visitations between Todd and the
child at the CMFC, and ordered that "[d]isclosure of identity of
birth mother shall not occur [with]out the consent of present
custodians and birth mother."
At the hearing regarding Copeland's petition for adoption,
the circuit court heard testimony from several witnesses,
including Guenther, Copeland, and Todd. Todd testified that she
was not seeking immediate custody and that "[her] goal is not to
take [the child] from [Copeland]." Todd testified that Copeland
has "done a phenomenal job raising [the child]" and stated that
it would probably be "traumatic" to move the child from
Copeland's home. However, Todd stated that she does
"eventually" want custody, but that "right now [her] plan is not
to rip [the child] from [Copeland]."
At the conclusion of the proceedings, the circuit court
granted Copeland's petition for adoption, holding that Todd
failed to maintain contact with the child for a period of six
months prior to the filing of the petition as provided in Code
§ 63.2-1202(H) and, in the alternative, that Todd had withheld
her consent contrary to the child's best interests as provided
in Code §§ 63.2-1203 and -1205.
4
Code § 63.2-1202(H) states that an adoption may proceed
without a birth parent's consent when the prospective adoptive
parent proves by clear and convincing evidence that the
biological parent "without just cause, has neither visited nor
contacted the child for a period of six months prior to the
filing of the petition for adoption." In interpreting this six
month time period, the circuit court stated that Todd's contact
with the child on June 21, 2007 "is solely, effectively the
result of [Copeland] approaching her on the issue of adoption,"
and "the evidence shows that if [Copeland] hadn't instituted
these adoption conversations this status quo could have
continued for years." Therefore, the circuit court held "that
as a matter of fact that [Copeland] has established by clear and
convincing evidence that [Todd] . . . without just cause has
neither visited nor contacted this child for a period of six
months prior to the filing of the petition for adoption," with
"[t]he said six month period being contained in the period of
June 10th, 2006, until June the 20th, 2007." Accordingly, the
circuit court held that under Code § 63.2-1202(H), Todd's
consent to the adoption "is not necessary." Alternatively, if
the six month period of abandonment was not met under Code
§ 63.2-1202(H), the circuit court held that Todd withheld her
consent for the adoption contrary to the child's best interests
under Code §§ 63.2-1203 and -1205.
5
Code § 63.2-1203 states that if,
after consideration of the evidence, the circuit court
finds that the valid consent of any person or agency whose
consent is required is withheld contrary to the best
interests of the child as set forth in Code § 63.2-1205, or
is unobtainable, the circuit court may grant the petition
without such consent.
When "determining whether the valid consent of any person
whose consent is required is withheld contrary to the best
interests of the child," a circuit court
shall consider all relevant factors, including
the birth parent(s)' efforts to obtain or
maintain legal and physical custody of the child;
whether the birth parent(s) are currently willing
and able to assume full custody of the child;
whether the birth parent(s)' efforts to assert
parental rights were thwarted by other people;
the birth parent(s)' ability to care for the
child; the age of the child; the quality of any
previous relationship between the birth parent(s)
and the child and between the birth parent(s) and
any other minor children; the duration and
suitability of the child's present custodial
environment; and the effect of a change of
physical custody on the child.
Code § 63.2-1205.
In support of its determination that Todd withheld her
consent contrary to the child's best interests, the circuit
court addressed each of the eight factors set forth in Code
§ 63.2-1205. The circuit court held that: (1) Todd's efforts to
obtain legal and physical custody of the child were "minimal and
after the first two years almost nonexistent;" (2) Todd was not
able financially or otherwise to assume full custody; (3) there
6
was no effort by any other individuals to thwart Todd's
assertion of parental rights; (4) Todd was not able to care for
the child because of "her financial situation, her financial
dependence[, and] her inability to legally operate a motor
vehicle even five years post-release from incarceration;" (5)
the child, at the age of five, has only known her home to be
with Copeland and needs finality in a stable home life; (6)
Todd's relationship with the child was poor, as she "in effect
abandoned this child" and "simply failed to assume her duties as
a parent" upon her release from jail; (7) the child's present
custodial home with Copeland is "safe and secure from a duration
standpoint it covers almost all of the child's life;" and (8)
considering the long periods of abandonment by Todd, a change of
physical custody from Copeland to Todd would "expose[] this
child to substantial risk." Accordingly, the circuit court held
that, "considering the factors set forth in [Code § 63.2-1205,
Todd's] consent is withheld contrary to the best interest of the
child."
A three-judge panel of the Court of Appeals reversed the
circuit court and held that "the Fourteenth Amendment to the
United States Constitution requires prospective adoptive parents
to prove, by clear and convincing evidence, both that the entry
of an adoption order over the objection of a nonconsenting
parent is in the best interest of the child and that a
7
continuing relationship with the birth parent would be
detrimental to the child's welfare." Todd v. Copeland, 55 Va.
App. 773, 778, 689 S.E.2d 784, 787 (2010) (emphasis in
original).
The panel held that "the detriment to the child standard
exists independent of the Virginia Code to protect the parental
rights of biological parents – rights that the United States
Supreme Court has recognized are protected by the Fourteenth
Amendment to the United States Constitution." Id. at 789, 689
S.E.2d at 792. Therefore, "a trial court must make a detriment
to the child determination, regardless of the language of the
relevant statute, before entering an adoption order, in order to
protect the Fourteenth Amendment rights of a nonconsenting
biological parent." Id. at 790, 689 S.E.2d at 792.
Additionally, after finding that the General Assembly did not
intend to abandon the "detriment to the child standard" through
its 2006 amendment to Code § 63.2-1205, the panel concluded that
the circuit court erred in granting Copeland's petition for
adoption because it did not consider whether a continuing
relationship between Todd and the child would be detrimental to
the child's welfare. Id. at 792, 689 S.E.2d at 793.
Additionally, the Court of Appeals panel determined that the
trial court erred in its interpretation of Code § 63.2-1202 (H)
because "the plain language of [the statute] refers to the six
8
months immediately preceding the filing of the adoption
petition." Id.
Copeland's petition for a rehearing en banc was denied, and
she timely filed her notice of appeal to this Court. We awarded
her an appeal on the following assignments of error:
1. The Court of Appeals erred in interpreting Virginia Code
§ 63.2-1202(H) so that, after the birth mother had
abandoned her child for over a year, a single 30-minute
visit with the child within six months of the petition for
adoption – occurring only because the mother's consent to
adoption was sought – was sufficient to defeat the
statute's application.
2. The Court of Appeals erred in reading the "detriment to the
child" requirement – specifically removed from the statute
by the General Assembly – back into the statute in direct
contravention of the legislature's intent.
We also granted Todd's two assignments of cross-error:
1. The Court of Appeals erred by declining to consider Todd's
claim that Code §§ 63-1203 and 1205 are unconstitutional on
equal protection grounds.
2. The Court of Appeals erred by declining to consider whether
the sufficiency of the evidence presented at trial proved
that [the child's] adoption was in [its] best interest.
II. Analysis
A. Standard of Review
The rules of statutory construction govern our analysis
here. "Principal among these rules is that we determine, and
adhere to, the intent of the legislature reflected in or by the
statute being construed." Virginia Soc'y for Human Life v.
9
Caldwell, 256 Va. 151, 156, 500 S.E.2d 814, 816 (1998)(citation
omitted).
Where the words used in the statute are not
sufficiently explicit, we may determine the
intent of the legislature "from the occasion and
necessity of the statute being passed [or
amended]; from a comparison of its several parts
and of other acts in pari materia; and sometimes
from extraneous circumstances which may throw
light on the subject."
Id. (quoting Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E.
470, 471 (1913)).
Additionally, “constitutional arguments are questions of
law that [this Court reviews] de novo.” Shivaee v.
Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005).
"[W]hen, as here, the constitutionality of a statute is
challenged, our determination of legislative intent is guided by
the recognition that 'all actions of the General Assembly are
presumed to be constitutional.' " Caldwell, 256 Va. at 157, 500
S.E.2d at 816-17 (1998) (quoting Hess v. Snyder Hunt Corp., 240
Va. 49, 52, 392 S.E.2d 817, 820 (1990)). Although "a
presumption normally arises that a change in law was intended
when new provisions are added to prior legislation by an
amendatory act" or "existing rights" are "withdraw[n] from [an]
act," Boyd v. Commonwealth, 216 Va. 16, 20, 215 S.E.2d 915, 918
(1975), we have a duty to construe statutes subject to a
constitutional challenge in a manner that "avoid[s] any conflict
10
with the Constitution." Commonwealth v. Doe, 278 Va. 223, 229,
682 S.E.2d 906, 908 (2009) (citations omitted).
B. Birth Parent Consent under Code § 63.2-1202(H)
Code § 63.2-1202(H) states that an adoption may proceed
without a birth parent's consent when the prospective adoptive
parent proves by clear and convincing evidence that the
biological parent has failed, without just cause, to visit or
contact the child "for a period of six months prior to the
filing of the petition for adoption." Here, Todd visited the
child on June 21, 2007, within the six month period prior to
Copeland's petition for adoption filed on November 26, 2007.
In support of its holding that Todd's consent to the
adoption was not necessary under Code § 63.2-1202(H), the
circuit court stated that "it would be an unreasonable
interpretation of that statute to find that the mere fact that
the potential adoptive mother had the decency to call [Todd]
somehow or another undo[es] or cancel[s] out the abandonment."
Accordingly, the circuit court held that the applicable six
month period for purposes of Code § 63.2-1202(H) was "the period
of June 10th, 2006, until June the 20th, 2007," and because Todd
did not contact or visit the child during this period, her
consent was not required to grant Copeland's petition for
adoption.
11
The Court of Appeals did not err in reversing this ruling
of the circuit court. The Court of Appeals held that the phrase
"prior to" in Code § 63.2-1202(H) "refers to the six months
immediately preceding the filing of the adoption petition."
Todd, 55 Va. App. at 792-93, 689 S.E.2d at 794. "The phrase
'prior to' may be clumsy, but its meaning is clear." United
States v. Locke, 471 U.S. 84, 95 (1985) (holding that a
statutory deadline of "prior to December 31" to mean "on or
before December 30," the date immediately preceding the date
certain).
Copeland urges this Court to interpret Code § 63.2-1202(H)
to require meaningful or significant visitation or contact to
satisfy the terms of the statute. However, this interpretation
goes beyond the plain meaning of the statute and would require
courts to evaluate the quality and value of time spent between a
birth parent and child. We refuse to adopt such an
interpretation. See, e.g., Evans v. Evans, 280 Va. 76, 82, 695
S.E.2d 173, 176 (2010) (courts are bound by the plain meaning of
language appearing in unambiguous statutes); Gilliam v. McGrady,
279 Va. 703, 709, 691 S.E.2d 797, 800 (2010) ("It is not the
function of the courts to add to or to amend clear statutory
language.").
C. The "Best Interests of the Child" in Adoption Cases
12
Alternatively, the circuit court granted Copeland's
petition for adoption under Code § 63.2-1205 because Todd
withheld her consent "contrary to the best interest of the
child." Although the Code of Virginia has long provided a
procedure by which a court may enter an adoption order in the
absence of the birth parents' consent, we consistently have
interpreted those statutes to balance the best interests of the
child in question and the Fourteenth Amendment rights of the
biological parents.
Before 1995, the applicable adoption statute governing the
parental consent requirement for adoptions provided in pertinent
part that: "If after hearing evidence the court finds that the
valid consent of any person or agency whose consent is
hereinabove required is withheld contrary to the best interests
of the child . . . the court may grant the petition without such
consent." Former Code § 63.1-225(E) (Supp. 1994). However,
this statute lacked a standard to determine when consent is
withheld contrary to the best interests of the child.
In the absence of such a standard, we developed the
"detriment to the child" standard in order to balance the
child's best interests with the constitutional rights of the
biological parents. In Malpass v. Morgan, 213 Va. 393, 397-99,
192 S.E.2d 794, 797-98 (1972), we held that to conclude that a
birth parent's consent is withheld contrary to the best
13
interests of the child, it is insufficient simply to prove that
the best interests of the child would be promoted by the
adoption. If this were the case, the consent requirement would
be rendered meaningless, and "the effect would have been to
permit a court to dispense with consent in all cases in which it
found that adoption would promote the best interests of the
child." Id. at 398, 192 S.E.2d at 798. Therefore, we held that
to hold that a birth parent's consent is being withheld contrary
to the best interests of the child, "it must be shown that
continuance of the relationship between the [birth parent and
child] would be detrimental to the child's welfare." Id. at
399, 192 S.E.2d at 798 (emphasis added).
In 1995, the General Assembly codified the detriment to the
child standard when it enacted former Code § 63.1-225.1. See
1995 Acts chs. 772, 826. From 1995 to 2006, that statute and
its successors required courts to consider not only the child's
best interests, but also whether the continuing relationship
between the biological parent and the child would be
"detrimental to the child":
In determining whether the valid consent of
any person whose consent is required is withheld
contrary to the best interests of the child, or
is unobtainable, the court shall consider whether
the failure to grant the petition for adoption
would be detrimental to the child. In
determining whether the failure to grant the
petition would be detrimental to the child, the
court shall consider all relevant factors,
14
including the birth parent(s)' efforts to obtain
or maintain legal and physical custody of the
child, whether the birth parent(s)' efforts to
assert parental rights were thwarted by other
people, the birth parent(s)' ability to care for
the child, the age of the child, the quality of
any previous relationship between the birth
parent(s) and the child and between the birth
parent(s) and any other minor children, the
duration and suitability of the child's present
custodial environment and the effect of a change
of physical custody on the child.
Id. (emphasis added). *
Most recently, after establishing a joint subcommittee to
study Virginia's adoption laws, see S.J. Res. 331, Va. Gen.
Assem. (Reg. Sess. 2005), the General Assembly amended Code
§ 63.2-1205 to remove the language requiring a finding of
detriment to the child to permit adoption without parental
consent. See 2006 Acts chs. 825, 848 (effective July 1, 2006).
As applicable to the present proceedings, this statute focuses
on the "best interests of the child," stating:
In determining whether the valid consent of
any person whose consent is required is withheld
contrary to the best interests of the child, or
is unobtainable, the circuit court . . . shall
consider whether granting the petition pending
before it would be in the best interest of the
child. The circuit court . . . shall consider
all relevant factors, including the birth
parent(s)' efforts to obtain or maintain legal
and physical custody of the child; whether the
*
In 2000, the General Assembly repealed former Code § 63.1-
225.1 and recodified it as former Code § 63.1-219.13. See 2000
Acts ch. 830. Then, in 2002, the General Assembly repealed
former Code § 63.1-219.13 and recodified it as Code § 63.2-1205.
See 2002 Acts ch. 747.
15
birth parent(s) are currently willing and able to
assume full custody of the child; whether the
birth parent(s)' efforts to assert parental
rights were thwarted by other people; the birth
parent(s)' ability to care for the child; the age
of the child; the quality of any previous
relationship between the birth parent(s) and the
child and between the birth parent(s) and any
other minor children; the duration and
suitability of the child's present custodial
environment; and the effect of a change of
physical custody on the child.
Id. (emphasis added).
Therefore, although the General Assembly retained the
factors previously required to determine whether the failure to
grant the petition for adoption would be detrimental to the
child, they are now factors relevant to determining whether
consent is withheld contrary to the "best interests" of the
child." Id.
D. The Constitutionality of Code § 63.2-1205
Copeland assigns error to the Court of Appeals' holding
that "the trial court's application of Code §§ 63.2-1203 and -
1205 violated Todd's due process rights because it failed to
make the necessary finding under Virginia law that a continuing
relationship with her child would be detrimental to the child's
welfare." Todd, 55 Va. App. at 796, 689 S.E.2d at 795.
Additionally, Todd's assignment of cross-error requires us to
consider whether the same statutes violate her Equal Protection
rights. Therefore, we must determine whether, after the 2006
16
amendments, Virginia's adoption statutes pass constitutional
muster.
1. Due Process
The phrase "best interests of the child" is most commonly
used in the context of custody disputes between natural parents.
Code § 20-124.2(B) provides that "[i]n determining custody, the
court shall give primary consideration to the best interests of
the child," and Code § 20-124.3 delineates ten factors to be
weighed in assessing the best interests of children in custody
and visitation matters. In this context, a court weighs these
factors to determine what custody or visitation arrangement
would best promote the child's interests. In these cases, "the
best interests of the child are paramount and form the lodestar
for the guidance of the court in determining the dispute."
Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986)
(quoting Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198
(1962)).
However, the meaning of "the best interests of the child"
is different in the context of adoptions, and must be read in
light of the biological parent's due process rights in her
relationship to her child. Therefore, although Code § 63.2-1205
uses the same phrase as our custody statutes, its definition is
much more demanding.
17
We consistently have held that to grant a petition for
adoption over a birth parent's objection, there must be more
than a mere finding that the adoption would promote the child's
best interests. Malpass, 213 Va. at 398-99, 192 S.E.2d at 798-
99. Our rationale is clear: if a mere finding of promotion is
all that is required to determine that the birth parent's
consent is withheld contrary to the child's best interests, a
court effectively could divest a natural parent of all rights
and obligations with respect to the child simply by finding that
placement in the prospective adoptive home is more suitable to
the child than placement with the birth parent. Id. at 398, 192
S.E.2d at 798. We further have explained:
While in both adoption and custody cases the
primary consideration is the welfare and best
interest of the child, it does not necessarily
follow that the natural bond between parent and
child should be ignored or lightly severed. On
the contrary, this bond should be accorded great
weight. We should apply neither the fitness test
nor the best interest test to the exclusion of
the other. We must determine whether the
consequences of harm to the child of allowing the
parent-child relationship to continue are more
severe than the consequences of its termination.
Doe v. Doe, 222 Va. 736, 747, 284 S.E.2d 799, 805 (1981).
The United States Supreme Court also has emphasized that
the Constitution requires more than a showing of the best
interests of the child to terminate parental rights. The
Supreme Court has explicitly recognized that the relationship
18
between a parent and child is constitutionally protected by the
Due Process Clause of the Fourteenth Amendment. Quilloin v.
Walcott, 434 U.S. 246, 255 (1978). "The liberty interest at
issue in this case – the interest of parents in the care,
custody, and control of their children – is perhaps the oldest
of the fundamental liberty interests recognized by this Court."
Troxel v. Granville, 530 U.S. 57, 65 (2000). Therefore,
adoption cases invoke significant substantive and procedural
safeguards to protect the biological parent's due process
rights. See Armstrong v. Manzo, 380 U.S. 545, 550-52 (1965).
When, as here, the biological parent protests the adoption, the
involuntary termination of her parental rights makes these
safeguards all the more critical.
In Quilloin, 434 U.S. at 255, the Supreme Court explained,
[w]e have little doubt that the Due Process Clause would be
offended [if] a State were to attempt to force the breakup
of a natural family, over the objections of the parents and
their children, without some showing of unfitness and for
the sole reason that to do so was thought to be in the
children's best interest.
(Citation and internal quotation marks omitted.) Additionally,
the Supreme Court has held that "the Due Process Clause does not
permit a State to infringe on the fundamental right of parents
to make childrearing decisions simply because a state judge
believes a 'better' decision could be made." Troxel, 530 U.S.
at 67, 72-73 (holding that a Washington state statute
19
authorizing nonparental visitation whenever "visitation may
serve the best interest of the child" unconstitutionally
infringed on "the fundamental right of parents to make
childrearing decisions").
It is clear that the Constitution requires more than a mere
showing of the child's best interests to terminate parental
rights. Therefore, the Court of Appeals correctly determined
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." Todd, 55 Va. App. at 785, 689 S.E.2d at 790.
However, the Court of Appeals misapplied that determination
when it held that the circuit court violated Todd's due process
rights. Virginia's statutory scheme for adoption, including
Code §§ 63.2-1205 and -1208, defines the best interests of the
child in terms that require more expansive analysis than when
the contest is between two biological parents.
Inclusion of the precise language of "detriment" is not
necessary for these statutes to pass constitutional muster. The
phrase "detriment to the child" is no term of art or requisite
mantra. Rather, for these statutes to pass constitutional due
process scrutiny, they must provide for consideration of
parental fitness and detriment to the child. The Virginia
statutory scheme does so.
20
The eight factors in Code § 63.2-1205, including "whether
the birth parent(s) are currently willing and able to assume
full custody of the child" and "the birth parent(s)' ability to
care for the child," focus on both the parent and child and
therefore compel a court to consider whether a parent's
unfitness would be harmful to the child's welfare. (Emphasis
added.) Additionally, Code § 63.2-1208, which sets forth
procedures by which a court may order a child-placing agency to
conduct an investigation into the adoption and report its
findings to the court, also includes considerations that go
beyond a mere best interest of the child inquiry. Code § 63.2-
1208(A). The statute mandates that the investigation include
inquiries as to
(i) whether the petitioner is financially able[,]
morally suitable, in satisfactory physical and
mental health and a proper person to care for and
to train the child; (ii) what the physical and
mental condition of the child is; (iii) why the
parents, if living, desire to be relieved of the
responsibility for the custody, care, and
maintenance of the child, and what their attitude
is toward the proposed adoption; (iv) whether the
parents have abandoned the child or are morally
unfit to have custody over him; (v) the
circumstances under which the child came to live,
and is living, in the physical custody of the
petitioner; (vi) whether the child is a suitable
child for adoption by the petitioner; (vii) what
fees have been paid by the petitioners or on
their behalf to persons or agencies that have
assisted them in obtaining the child; and (viii)
whether the requirements of subsections E and F
have been met.
21
Code § 63.2-1208(D) (emphasis added). Additionally, the report
must include "the relevant physical and mental history of the
birth parents." Code § 63.2-1208(E). The statutes require a
court to consider the parents' ability to care for the child,
their potential moral unfitness or abandonment, and any
"relevant physical and mental history." Id.
Therefore, we hold that the Virginia Code's adoption
statutes meet constitutional due process scrutiny because they
encompass far more than mere consideration of the child's best
interests as defined in cases involving a contest between
natural parents. Here, the circuit court explicitly and
comprehensively considered each factor enumerated in Code
§ 63.2-1205. In conducting this analysis, the court considered
Todd's fitness and ability to care for the child, and ultimately
concluded that "considering the factors set forth in [Code
§ 63.2-1205, Todd's] consent is withheld contrary to the best
interest of the child." The court's determination went beyond
whether the adoption by Copeland would be in the child's best
interest by finding in Todd "some showing of unfitness,"
Quilloin, 434 U.S. at 255, and implicitly recognizing that
"continuance of the relationship between [Todd and the child]
would be detrimental to the child's welfare." Malpass, 213 Va.
at 399, 192 S.E.2d at 798. Therefore, the circuit court gave
adequate consideration to Todd's due process rights under the
22
Fourteenth Amendment, and it did not err in granting Copeland's
petition for adoption.
2. Equal Protection
Todd also challenges the constitutionality of Code §§ 63.2-
1203 and -1205 on equal protection grounds. She argues that her
equal protection rights were violated "because an adoption
initiated by a private party under [Code § 63.2-1205] does not
receive the same protections for the child or its natural
parents as an adoption initiated by the Virginia Department of
Social Services under Code § 16.1-283." We reject Todd's
argument.
The Equal Protection Clause of the Fourteenth Amendment
forbids any state to deny a person within its jurisdiction the
equal protection of the laws. We have held that "[t]his
proscription guarantees that classes or persons will be given
the same protection as like classes or persons. It does not
require similar treatment of persons not similarly situated."
Carter v. Carter, 232 Va. 166, 170, 349 S.E.2d 95, 97 (1986).
In this case, Todd is not similarly situated to a parent
involved in an adoption under Code § 16.1-283, where children
are in the custody of the state and parental rights are in
jeopardy of being terminated under Virginia's foster care
statutes. Unlike the foster care context, here the government
did not remove the child from Todd's custody. Rather, by
23
entering into the entrustment agreement with Guenther and
Copeland, Todd voluntarily relinquished custody of the child.
Therefore, Todd is not similarly situated to a person whose
parental rights are involuntarily terminated by the state under
Code § 16.1-283.
3. Sufficiency of the Evidence
Finally, Todd maintains that the evidence is insufficient
to support the factual findings necessary under the Virginia
statutory scheme. Upon review of the record, we are satisfied
that the evidence is sufficient to support the judgment of the
circuit court in granting the petition for adoption pursuant to
Code §§ 63.2-1200 et seq.
III. Conclusion
For the reasons stated, we hold that the Court of Appeals
did not err in reversing the circuit court's holding that Todd's
consent to the adoption was not necessary under Code § 63.2-
1202(H). However, the Court of Appeals erred in its judgment
that the circuit court violated Todd's due process rights under
Code §§ 63.2-1203 and -1205. Accordingly, we will affirm the
judgment of the Court of Appeals in part and reverse the
judgment in part, and reinstate the final decree of adoption
entered by the circuit court on March 18, 2009.
Affirmed in part,
reversed in part,
and final judgment.
24