COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Agee
Argued at Richmond, Virginia
F.E.
OPINION BY
v. Record No. 1106-99-2 JUDGE LARRY G. ELDER
JUNE 26, 2001
G.F.M.
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Joseph F. Spinella, Judge Designate
Patricia M. Brady (K. Scott Miles; Alex R.
Gulotta; American Civil Liberties Union of
Virginia Foundation;
Charlottesville-Albemarle Legal Aid Society,
on brief), for appellant.
John E. Davidson (Bruce M. Steen; McGuire
Woods LLP, on brief), for appellee.
F.E. (father) appeals from the dismissal of his challenge
to the adoption of his son, J.B., by the child's maternal
grandmother, G.F.M. (grandmother). The trial court granted
grandmother's demurrer on the ground that the challenge was
untimely under Code § 63.1-237, which requires that such
challenges be made within six months following entry of the
final order of adoption, even if fraud or lack of notice to or
personal jurisdiction over any person is shown. 1 On appeal,
1
Code § 63.1-237 has been repealed and recodified at
§ 63.1-219.23. See 2000 Va. Acts ch. 830 (repealing and
father contends (1) application of the statute's six-month
limitation period violated his due process and equal protection
rights under the facts of this case, which include his
allegations that grandmother committed extrinsic and intrinsic
fraud such that father never received notice of the proceedings
and the court never obtained personal jurisdiction over father;
and (2) the circuit court erroneously failed to appoint a
guardian ad litem and to consider the issue of visitation. A
panel of this Court, with one judge dissenting, held the statute
unconstitutional as applied in this case and reversed the ruling
of the trial court. See 32 Va. App. 846, 531 S.E.2d 50 (2000).
We granted grandmother's petition for rehearing en banc and
stayed the mandate of that decision.
On rehearing en banc, we hold that application of the time
limitation imposed in Code § 63.1-237 was unconstitutional under
the facts alleged in father's petition and, therefore, that the
circuit court erroneously granted grandmother's demurrer. We
also hold the trial court did not err in refusing to act on
father's request for visitation and appointment of a guardian
ad litem for J.B. because, unless and until the adoption order
is set aside, father lacks standing to make such requests. We
recodifying adoption statutes at §§ 63.1-219.7 to 63.1-219.55).
The text of the provision has not changed.
All other citations to adoption statutes considered in this
opinion are to the statutory scheme applicable at the time of
entry of the adoption order in this case.
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reverse the ruling of the trial court granting the demurrer,
vacate its order of dismissal, and remand for further
proceedings consistent with this opinion.
I.
BACKGROUND
Because this case involves the granting of a demurrer, we
accept as true, for purposes of reviewing this motion only, all
facts alleged in the petition. 2 See Code § 8.01-273; Runion v.
Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998). "A
demurrer admits the truth of all material facts properly
pleaded. Under this rule, the facts admitted are those
expressly alleged, those which fairly can be viewed as impliedly
alleged, and those which may be fairly and justly inferred from
the facts alleged." Rosillo v. Winters, 235 Va. 268, 270, 367
S.E.2d 717, 717 (1988).
In late September 1995, father, his approximately
fourteen-month-old son, J.B., and the child's biological mother,
C.B., were involved in an automobile accident in which C.B. was
killed and J.B. was seriously injured. For ten months prior to
the accident, father, C.B. and J.B. resided together. J.B. had
"spent the majority of his life in [the] home" shared by father
and C.B. That "household did not include [grandmother G.F.M.],"
2
In subsequent stages of the proceedings, however, the
court, as the finder of fact, remains free to review the
evidence independently and to conclude that it does not support
the allegations in the complaint or petition.
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C.B.'s mother. The record does not reveal where J.B. and C.B.
resided for the first four months of J.B.'s life.
Following the accident, J.B. was hospitalized, and father
"stayed at his side . . . for several weeks." It was father's
understanding that J.B. would require constant medical care
following his release from the hospital, and father and
grandmother agreed that grandmother would care for J.B. in her
home following his release from the hospital.
At the time of the accident, father, a native Spanish
speaker, could not read English. After C.B.'s death, father
relied on grandmother for assistance in completing paperwork.
On October 12, 1995, at grandmother's request, father signed a
"Consent to Adoption" form by which he purported to consent to
grandmother's adopting J.B. The caption on the form read "In
the matter of an adoption of a child known as [J.B.] . . . by
[G.F.M., grandmother]." Father signed the consent in
grandmother's lawyer's office, in the presence of a notary but
without counsel or an interpreter. Father was not aware of the
content of the form he signed and relied on grandmother's
representations that his execution of the form "was merely to
allow [grandmother] to have access to medical information and
accompany [J.B.] to appointments."
After father signed the "Consent to Adoption" form,
grandmother petitioned the circuit court to adopt her grandson,
J.B., including with her petition the form executed by father.
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In her petition, she falsely represented that J.B. had lived in
her home "continuously for his whole life" and that J.B.'s
mother, C.B., also had resided with grandmother until the time
of her death. The court ruled that, pursuant to Code
§ 63.1-223(E), it was "proper to proceed without the
investigations and report required by Section 63.1-223," and by
order entered October 24, 1995, it decreed J.B. the adopted
child of grandmother.
Other than father's execution of the consent to adoption
form, which he could not read, father received no notice of the
adoption. He was not served with a copy of the petition or the
final order. The order was entered against his wishes.
Following C.B.'s death and J.B.'s release from the
hospital, J.B. resided primarily with grandmother, but both
before and after entry of the adoption order, father "[saw] and
care[d] for [J.B.] several times per week, including overnight
visits in [father's] home on weekends."
In February 1997, father married in a ceremony held in
grandmother's home. Father and his new wife "continued the
established pattern of frequent and prolonged visitation with
[J.B.] in their home and [grandmother's] home. Some of these
visits lasted for two weeks or more, and at least one included a
trip out of state."
In February 1998, father and his new wife informed
grandmother that they wished to have J.B. live in their
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household. At that time, grandmother informed father that she
had adopted J.B. in October 1995. Grandmother has prevented
father from having any additional contact with J.B. since that
time and has served father and his wife with trespassing notices
to prevent them from coming to her home to see J.B.
On September 24, 1998, father filed a petition to set aside
the adoption order, claiming grandmother committed extrinsic and
intrinsic fraud, and that application of the six-month statute
of limitation to prevent a challenge "based on lack of personal
jurisdiction, lack of notice, duress, and fraud" violated his
due process and equal protection rights. He sought to have the
statute declared unconstitutional as applied to him, to have the
adoption order declared void, and to be awarded regular
visitation with his son until his parental rights were restored.
He also sought appointment of a guardian ad litem for his son.
Grandmother filed a demurrer, asserting that the statute
was constitutional and barred father from seeking relief. She
also contended that father lacked standing to request
visitation.
The trial court held that the petition and consent for
adoption provided it with jurisdiction under Code
§ 63.1-220.3(C)(6) to enter the final adoption order. With the
passage of more than six months time following that entry, the
court held that Code § 63.1-237 prevented father from attacking
the order. It stated expressly, "The court does not see the
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need to pass upon the constitutionality of the statute," and it
did not do so, despite father's repeated requests for
consideration of this issue. It also said, "I see nothing . . .
preventing the birth father and his wife [from] fil[ing] a
petition for the adoption of his birth-son who is now legally
the child of the grandparents. It may well be that the best
interests of the child would govern the outcome of that action
which may or may not be the same outcome that now exists."
Father filed a motion to reconsider, which the court
denied.
II.
ANALYSIS
A.
CONSTITUTIONALITY OF CODE § 63.1-237 AS APPLIED TO FATHER 3
Extrinsic fraud is fraud which occurs outside the judicial
process and "consists of 'conduct which prevents a fair
3
Although Code § 8.01-235 provides that a statute of
limitation defense "cannot be set up by demurrer" and may be
raised only as an affirmative defense in a responsive pleading,
father did not oppose the demurrer on that ground, either in the
trial court or on appeal. Thus, Rule 5A:18 prevents our
consideration of this claimed error as a basis for reversal on
appeal absent a showing of "good cause" or to "attain the ends
of justice." If the statute was unconstitutionally applied,
avoiding the constitutional issue will not "attain the ends of
justice," and any attempt to apply this exception simply begs
the constitutional question. Further, the "'good cause'
[exception] relates to the reason why an objection was not
stated at the time of the ruling," Campbell v. Commonwealth, 14
Va. App. 988, 996, 421 S.E.2d 652, 656 (1992) (en banc) (Barrow,
J., concurring), and, thus, it is not applicable under the facts
of this case.
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submission of the controversy to the court.'" Peet v. Peet, 16
Va. App. 323, 327, 429 S.E.2d 487, 490 (1993) (quoting Jones v.
Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983)). It
includes "'purposely keeping [the unsuccessful party] in
ignorance of the suit . . . . In all such instances the
unsuccessful party is really prevented, by the fraudulent
contrivance of his adversary, from having a trial . . . .'"
McClung v. Folks, 126 Va. 259, 270, 101 S.E. 345, 348 (1919)
(quoting Pico v. Cohn, 25 P. 970, 971, aff'd on reh'g en banc,
27 P. 537 (Cal. 1891)); see O'Neill v. Cole, 194 Va. 50, 57, 72
S.E.2d 382, 386 (1952) (holding sufficient to state claim of
extrinsic fraud allegations in complaint that father made false
statements to daughter to persuade her not to contest judicial
transfer of her property to him). Under these circumstances,
"[a] collateral challenge to a judgment . . . is allowed because
Even if one of these exceptions might properly be applied
to avoid a constitutional issue, avoidance of the constitutional
issue in the instant appeal would be an exercise in procedural
futility. The trial court has already ruled that the statute of
limitation bars father's action to set aside the adoption,
despite its duty to view the facts on the demurrer in the light
most favorable to father. Thus, the only reasonable conclusion
is that, if we were to reverse the dismissal based solely on
grandmother's failure to raise the statute of limitation in the
proper pleading, grandmother would plead the statute as an
affirmative defense in her responsive pleading and the trial
court would rule in grandmother's favor without hearing
evidence, based on the trial court's already demonstrated belief
that the statute of limitation applies to bar father's petition
under any version of the facts.
Thus, our passing on the constitutionality of Code
§ 63.1-237 as applied to father in this case is appropriate.
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such fraud perverts the judicial processes and prevents the
court or non-defrauding party from discovering the fraud through
the regular adversarial process." Peet, 16 Va. App. at 327, 429
S.E.2d at 490. Extrinsic fraud, therefore, is "'fraud that
. . . deprives a person of the opportunity to be heard.'" Hagy
v. Pruitt, 529 S.E.2d 714, 717 (S.C. 2000) (quoting Hilton Head
Center of S.C., Inc. v. Pub. Serv. Comm'n, 362 S.E.2d 176, 177
(S.C. 1987)).
Code § 63.1-237 purports to restrict a party's ability to
bring a collateral action asserting extrinsic fraud in order to
set aside an adoption. Code § 63.1-237 provides as follows:
After the expiration of six months from
the date of entry of any final order of
adoption from which no appeal has been taken
to the Court of Appeals, the validity
thereof shall not be subject to attack in
any proceedings, collateral or direct, for
any reason, including but not limited to
fraud, duress, failure to give any required
notice, failure of any procedural
requirement, or lack of jurisdiction over
any person, and such order shall be final
for all purposes.
This statute roughly tracks the language of the Revised Uniform
Adoption Act, except that the Uniform Act provides for a
one-year limitation period. See Revised Unif. Adoption Act
(RUAA) § 15(b) (amended 1971), 9 U.L.A. 203 (1999); see also
Uniform Adoption Act § 3-707(d) (1994), 9 U.L.A. 97-98
(providing that, without exception, a decree of adoption "is not
subject to a challenge begun more than six months after the
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decree or order is issued"). The commentary accompanying the
RUAA "explains that it is designed to impose a very short
statute of limitation" because "'[t]he policy of stability in a
family relationship, particularly when a young minor is
involved, outweighs the possible loss to a person whose rights
are cut off through fraud and ignorance.'" McKinney v. Ivey,
698 S.W.2d 506, 507 (Ark. 1985) (quoting 9 U.L.A. 48 (1979)).
Father concedes that literal application of the statute
would bar his petition to set aside the adoption. The adoption
was effected by order entered October 24, 1995; his petition to
set aside was filed on September 24, 1998, well outside the
six-month limitation period. He contends, however, that
application of Code § 63.1-237's limitation period to bar his
challenge to the validity of the adoption violated his due
process and equal protection rights. We agree that the statute
is unconstitutional as applied to the facts of this case.
The due process clauses of the Federal and
Virginia Constitutions provide that no
person shall be deprived of life, liberty,
or property without due process of law.
All actions of the General Assembly are
presumed to be constitutional. Thus, courts
will declare an enactment unconstitutional
only when it clearly is repugnant to some
provision of either the state or federal
constitution. The party challenging the
enactment has the burden of proving its
unconstitutionality, and if a reasonable
doubt exists as to its constitutionality,
the doubt must be resolved in favor of its
validity.
Generally, due process is satisfied if
an enactment has a "reasonable relation to a
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proper purpose and [is] neither arbitrary
nor discriminatory." Thus, under the
general rule, a statute is not violative of
due process if it withstands a "rational
basis" test. When, however, a statute
affects a fundamental right or a suspect
classification, its constitutionality will
be judged by the "strict scrutiny" test.
Hess v. Snyder Hunt Corp., 240 Va. 49, 52-53, 392 S.E.2d 817,
820 (1990) (citations omitted). When a statute "significantly
interferes with the exercise of a fundamental right, it cannot
be upheld unless it is supported by sufficiently important state
interests and is closely tailored to effectuate only those
interests." Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct.
673, 682, 54 L. Ed. 2d 618 (1978).
On several occasions, the United States Supreme Court has
considered a parent's interest in the relationship with his or
her child. See Lehr v. Robertson, 463 U.S. 248, 256-58, 103
S. Ct. 2985, 2990-91, 77 L. Ed. 2d 614 (1983).
In the vast majority of cases, state law
determines the final outcome. . . . In some
cases, however, this Court has held that the
Federal Constitution supersedes state law
and provides even greater protection for
certain formal family relationships. . . .
In these cases the court has found that the
relationship of love and duty in a
recognized family unit is an interest in
liberty entitled to constitutional
protection. "[S]tate intervention to
terminate [such a] relationship . . . must
be accomplished by procedures meeting the
requisites of the Due Process Clause."
Id. at 256-58, 103 S. Ct. at 2991 (quoting Santosky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599
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(1982)) (emphasis added) (other citations omitted). "'[T]he
interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of
liberty interests protected by [the Due Process Clause of] the
Fourteenth Amendment.'" M.L.B. v. S.L.J., 519 U.S. 102, 119,
117 S. Ct. 555, 565, 136 L. Ed. 2d 473 (1996) (quoting Santosky,
455 U.S. at 774, 102 S. Ct. at 1405 (Rehnquist, J., dissenting)
(noting that Court was unanimously of Rehnquist's view on this
point)) (emphasis added).
The Court also has examined "the extent to which the
Constitution affords protection to the relationship between
natural parents and children born out of wedlock." Lehr, 463
U.S. at 258, 103 S. Ct. at 2991. The Court has drawn a clear
distinction between "a mere biological relationship and an
actual relationship of parental responsibility." Id. at 259-60,
103 S. Ct. at 2992.
The difference between the developed
parent-child relationship . . . and the
potential relationship . . . is both clear
and significant. When an unwed father
demonstrates a full commitment to the
responsibilities of parenthood by "com[ing]
forward to participate in the rearing of his
child," his interest in personal contact
with his child acquires substantial
protection under the Due Process Clause. At
that point it may be said that he "act[s] as
a father toward his children." . . . [T]he
mere existence of a biological link does not
merit equivalent constitutional protection.
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Id. at 261, 103 S. Ct. at 2993 (quoting Caban v. Mohammed, 441
U.S. 380, 389 n.7, 392, 99 S. Ct. 1760, 1766 n.7, 1768, 60
L. Ed. 2d 297 (1979)). Therefore, a biological parent who
participates in the rearing of his or her child has a
fundamental right to continue to participate in that
relationship unless the relationship is altered or terminated by
due process of law. See id.; see also McKinney, 698 S.W.2d at
508; Wade v. Geren, 743 P.2d 1070, 1073-74 (Okla. 1987)
(affirming trial court's ruling that father who had established
relationship with child had due process right to notice of
grandparents' adoption petition and that grandparents' failure
to disclose father's identity and pending paternity action
constituted fraud which rendered the adoption decree void).
In father's case, based on the facts alleged in his
petition to set aside the adoption, father had a fundamental
right not to have his already-established relationship with his
biological child terminated without due process. 4 Because the
limitation period contained in Code § 63.1-237 affected father's
4
The dissent concludes that the dispute between father and
grandmother is over custody of the child and that "[n]othing in
this record suggests that the adoptive mother [grandmother] has
custody based on a decree that would put the father at a
disadvantage . . . ." This mistates the effect of the order of
adoption under Virginia law. Pursuant to the statutory scheme
applicable to these proceedings, see Code § 63.1-233 (Repl. Vol.
1995) (repealed and recodified as amended at § 63.1-219.22), the
final order of adoption, in fact, "divested [father] of all legal
rights and obligations in respect to the child" because father
was not "the husband or wife of . . . [petitioner grandmother]."
Thus, entry of the order of adoption terminated father's parental
rights, and father has no legal justification for seeking custody
of his biological child.
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fundamental right to maintain that relationship with his son, we
evaluate its constitutionality, as applied to the facts of this
case, under the "strict scrutiny" test. See Hess, 240 Va. at
52-53, 392 S.E.2d at 820. The statute "significantly interferes
with the exercise of a fundamental right," and "it cannot be
upheld unless it is supported by sufficiently important state
interests and is closely tailored to effectuate only those
interests." Zablocki, 434 U.S. at 388, 98 S. Ct. at 682.
We agree that the state has a compelling interest in
"'[preserving] stability in a family relationship, particularly
when a young minor is involved.'" McKinney, 698 S.W.2d at 507.
We disagree, however, that application of the six-month statute
of limitation under the facts of this case is sufficiently
narrowly tailored to achieve the goal of stability while
simultaneously preserving father's fundamental right to continue
the pre-existing relationship with his biological child. The
facts alleged in father's petition to set aside the adoption, if
taken as true, confirm the existence of this relationship. The
petition alleges that the child resided with his mother and
father for ten months prior to being injured in a car accident
at fourteen months of age. Father remained at his child's
bedside throughout the course of his hospitalization. Although
father and grandmother agreed that grandmother would take care
of the child upon his release from the hospital because he would
require constant attention due to his injuries, father did not
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abandon his relationship with his son. To the contrary, the
child routinely resided with father overnight on the weekends,
and father "[saw] and care[d] for" the child during the week, as
well. When father married about one and one-half years later,
he and his new wife "continued the established pattern of
frequent and prolonged visitation with [J.B.] in their home and
[grandmother's] home. Some of these visits lasted for two weeks
or more, and at least one included a trip out of state." Under
the facts alleged, father was no stranger to his child.
Therefore, allowing father to attack the order of adoption more
than six months after its entry based on grandmother's alleged
extrinsic fraud would not have jeopardized the state's
compelling interest in maintaining the stability of the family
relationship. Grandmother's refusal to allow father any contact
with the child likely has been more disruptive than an order
setting aside the adoption would have been.
Furthermore, the facts alleged, if taken as true, also
establish that grandmother's extrinsic fraud resulted in a lack
of notice to and personal jurisdiction over father. Although
the court may have believed it acquired personal jurisdiction
based on father's execution of the Consent to Adoption form, the
acquisition of personal jurisdiction is based on the receipt of
notice which complies with the Due Process Clause. See Price v.
Price, 17 Va. App. 105, 112, 435 S.E.2d 652, 657 (1993) (citing
Kulko v. Superior Ct., 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56
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L. Ed. 2d 132 (1978)). Due process requires "'notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.'" Armstrong v. Manzo,
380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L. Ed. 2d 62 (1965)
(quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306,
314, 70 S. Ct. 652, 657, 94 L. Ed. 2d 865 (1950)). In this
case, like in Armstrong, father "did not have . . . the
slightest inkling of the pendency of [the] adoption
proceedings." Id. at 548, 85 S. Ct. at 1189; see also Phariss
v. Welshans, 946 P.2d 1160, 1163 (Or. Ct. App. 1997) (holding
under Armstrong that statute of limitation was unconstitutional
as applied where natural mother and adoptive father failed to
exercise reasonable diligence to serve natural father); In re
Knipper, 507 N.E.2d 436, 438 (Ohio Ct. App. 1986) (applying
Armstrong where child's grandparents failed to exercise
reasonable diligence to serve natural mother).
We assume without deciding that father's execution of the
Consent to Adoption form, filed by grandmother along with the
petition for adoption, constituted an appearance before the
court sufficient to permit the court to infer father's receipt
of notice and submission to the jurisdiction of the court. 5
5
Code § 63.1-220.3, subsections (A) to (C), outline the
general hearing, notice and consent requirements for adoption.
Code § 63.1-220.3(C)(6) provides that in certain intra-familial
adoptions, including those in which the prospective adoptive
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Nevertheless, father's petition to set aside alleged that he had
no understanding of the content of the form and relied on the
representations of grandmother -- who could reasonably have been
expected to know of the language barrier -- that the Consent to
Adoption form was merely to facilitate her oversight of the
child's medical care. Under these circumstances, grandmother's
alleged actions constituted extrinsic fraud, and execution of
the form was not "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections." Once the court became aware of these allegations,
it had a duty to evaluate the adequacy of the notice and
parent is the child's grandparent, consent may be written and
acknowledged and no hearing to confirm consent is required, but
it does not specifically state whether the petition for adoption
must be served on a parent who has already executed consent.
Compare In re Anderson, 589 P.2d 957, 959 (Idaho 1978) (noting
legislature has provided that execution of consent to adopt also
serves as general appearance in court where adoption petition is
filed), overruled on other grounds, In re Steve B.D., 723 P.2d
829, 834 (Idaho 1986), and In re Adoption of Minor Child, 287
A.2d 115, 122 & n.5 (R.I. 1972) (construing absence of statutory
notice requirement to mean that parent who executes consent to
adoption is not entitled to additional notice of adoption
proceedings), with McCulley v. Bone, 979 P.2d 779, 792 n.16
(Or. Ct. App. 1999) (noting that biological parents are
indispensable parties to adoption proceeding; that under
Oregon's present statutory scheme, parents' written consent to
adoption does not obviate need for formal notice to parents of
filing of petition; and that requiring notice is more sensible
approach where statute permits revocation of consent because,
under former statutory scheme, absence of separate notice
requirement "frustrated the parents' . . . ability to revoke
that consent").
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jurisdiction. 6 See In re Rabatin, 615 N.E.2d 1099, 1102 (Ohio
Ct. App. 1992) (holding that mother was "presumed to have had
actual notice of the adoption, and to have effectively waived
the notice requirement" where she signed a consent to adoption
form and the record contained no evidence that she was "unable
to read or otherwise could not understand the consent form she
signed").
6
The dissent mischaracterizes this passage as containing
our assumption that the consent executed by father "constituted
an appearance before the court" and contends that we "forget[]
that personal jurisdiction . . . is acquired by appearance and
[that] service of process is not necessary if the party appears
voluntarily." Contrary to the dissenters' representations,
however, we assume only that the court was entitled initially to
infer that father made an appearance based on grandmother's
submission of the consent form. Father's filing of the petition
to set aside the adoption due to grandmother's alleged extrinsic
fraud imposed upon the court a duty to determine whether
father's appearance via the consent form was, in fact, a
voluntary appearance sufficient to allow the court to obtain
personal jurisdiction over father. Under our analysis, the
dissenters' statement that service of process is not necessary
if the party appears voluntarily merely begs the question.
Further, the dissenters' claim that our decision "subjects
any existing adoption grounded on consent but entered without
service of process upon the consenting party to perpetual
[jurisdictional] challenge" is incorrect. (Emphasis added).
Our holding is expressly limited to the facts alleged in this
case, in which (1) the biological father had an established
relationship with his child; (2) the nature of the father's
relationship with the child did not change until after the
statute of limitation had run; and (3) the father had no
understanding of the content of the consent to adoption form due
to a language barrier and relied on the representations of
grandmother that the consent form was merely to facilitate her
oversight of the child's medical care. The goal of protecting
the finality of adoptions, though admirable, does not justify
the wholesale disregard of a parent's constitutional right to
due process under these limited circumstances.
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Assuming without deciding that father had a duty to act
diligently to preserve his rights, no evidence indicates he
failed to do so. Cf. Drummond v. Drummond, 945 P.2d 457, 462
(N.M. Ct. App. 1997) (in applying equitable estoppel to hold
that adopting grandparents could not assert statute of
limitation defense to bar mother's challenge to adoption, noting
that no evidence showed mother did not act diligently in failing
to challenge adoption earlier because "there was never a change
of living circumstances until after the statute of limitations
had run"). He was unable to read English and reasonably relied
on grandmother's fraudulent representations that the purpose of
the "Consent to Adoption" form was merely to allow grandmother
access to the child's medical records since she would be
assuming primary responsibility for the child's medical care.
Until grandmother told father of the adoption over two years
later, father had no reason to know that his parental rights had
been terminated. See, e.g., STB Marketing Corp. v. Zolfaghari,
240 Va. 140, 145, 393 S.E.2d 394, 397 (1990) (construing due
diligence standard as the "'measure of prudence . . . expected
from . . . a reasonable and prudent man under the particular
circumstances . . . depending on the relative facts of the
special case" (quoting Black's Law Dictionary 411 (5th ed.
1979)) (emphasis added). Father and grandmother both continued
to care for the child as they had agreed to do prior to the
adoption, and no substantive changes occurred in the
- 19 -
relationship. Cf. Drummond, 945 P.2d at 462. Grandmother's
fraud in misrepresenting to father the effect of the Consent to
Adoption form and in misrepresenting to the court the parties'
living arrangements prior to the adoption constituted extrinsic
fraud sufficient to require the denial of grandmother's
demurrer. See Hagy, 529 S.E.2d at 717 (holding that statute of
limitation cannot be constitutionally construed to prevent court
from setting aside a judgment for extrinsic fraud because doing
so amounts to an impermissible legislative restriction "on the
judicial branch's exercise of its inherent authority"). But see
Phariss, 946 P.2d at 1162-63 (rejecting similar
separation-of-powers argument where adoptive parents allegedly
failed to use reasonable diligence to serve natural father with
notice of adoption proceedings but ultimately setting aside
adoption based on due process violation).
We reject grandmother's argument that the statute is
subject to two interpretations, one which is constitutional and
another which is not, and should be construed to impose a
discovery requirement, thereby barring father's claim of fraud
because he did not file his petition to set aside until more
than six months after he admitted learning of the fraud.
Although a statute containing a discovery trigger likely would
be sufficiently narrowly tailored to pass constitutional muster,
nothing in Code § 63.1-237 implies that the statute of
limitation is to begin running on the date on which the fraud
- 20 -
was or should have been discovered. Rather, the statute
expressly refers to the "expiration of six months from the date
of entry of any final order of adoption from which no appeal has
been taken." Code § 63.1-237. The General Assembly was free to
create a discovery rule when it drafted the statute, but it did
not do so. See Stewart v. Rouse, 469 S.W.2d 615, 616 (Tex. Civ.
App. 1971), aff'd in part and rev'd in part on other grounds,
475 S.W.2d 574, 574-75 (Tex. 1972) (noting legislature acted in
wake of Armstrong to protect "integrity and stability in the
adoption process" by creating discovery rule barring petition to
vacate adoption decree based on lack of notice "'if more than
one year has elapsed since [natural parent] discovered or should
have discovered the adoption was decreed'"). Absent such
language in the statute, father lacked even constructive notice
that such a limitation might be applied once he became aware of
the fraud. Thus, without express statutory language imposing a
discovery trigger, such an interpretation is not available to
save the statute from unconstitutional application here. 7
7
The interpretation grandmother urges is not simply a
permissible narrowing of a statute which otherwise would be
unconstitutionally overbroad. See Va. Soc. for Human Life, Inc.
v. Caldwell, 256 Va. 151, 500 S.E.2d 814 (1998) (holding in free
speech case that no ambiguity is required to authorize court to
construe statute more narrowly to save it from
unconstitutionality). Construing Code § 63.1-237 to impose a
discovery requirement would actually serve to rewrite the
statute to impose an additional requirement to bar claims in a
way which could not reasonably have been foreseen by those to
whom it purportedly applies. Here, by the time father became
aware of grandmother's alleged fraud, the statute's express
- 21 -
Assuming without deciding that some limitation must apply, but
see Parrish v. Jessee, 250 Va. 514, 521, S.E.2d 141, 145 (1995)
(noting that extrinsic fraud results in judgment which is void
ab initio and may be attacked in any court at any time), it
should be either the general statute of limitation for fraud,
which provides two years from the date of discovery, see Code
§§ 8.01-248, 8.01-249, or the doctrine of laches, see Hagy, 529
S.E.2d at 717 n.7. Under either approach, a lapse of seven
months from the date of discovery, under the facts of this case
as alleged in the petition, is insufficient to bar the attack.
In summary, we hold, in regard only to grandmother's
demurrer, that application of the six-month statute of
limitation to father was unconstitutional and that the adoption
decree was void ab initio based on grandmother's alleged fraud
and the resulting lack of notice to and personal jurisdiction
over father. Therefore, the trial court erroneously granted
grandmother's demurrer.
B.
VISITATION AND APPOINTMENT OF A GUARDIAN AD LITEM
Father also contests the trial court's refusal to grant him
visitation and to appoint a guardian ad litem. We hold,
however, that father lacked standing to make such a request as
limitation period had already expired, and the statute may not
reasonably be interpreted to alert father to a new statute of
limitation expiring six months from the date of his discovery.
- 22 -
long as the order of adoption remains in effect; thus, we hold
the trial court did not err in failing to grant visitation.
Code § 20-124.1 provides that only a person "with a legitimate
interest" has standing to request custody or visitation and that
"[a] party with a legitimate interest . . . shall not include
any person . . . whose parental rights have been terminated by
court order, either voluntarily or involuntarily." See also
Code § 63.1-233 (providing that final order of adoption divests
birth parents of right to petition for visitation). Therefore,
father will not have standing to request visitation unless or
until the trial court rules in his favor on the merits by
setting aside the adoption order. 8 For these same reasons, the
court had no duty to act on father's request for the appointment
of a guardian ad litem.
8
Contrary to the statement of the trial court in its letter
opinion, this lack of standing would also prevent father from
having any meaningful ability to petition to adopt J.B. See
Code § 63.1-233 (providing that final order of adoption divests
birth parents "of all legal rights and obligations in respect to
the child"); Stanley v. Illinois, 405 U.S. 645, 647-48, 92
S. Ct. 1208, 1211, 31 L. Ed. 2d 551 (1972) (noting that equal
protection violation resulting from Illinois statute providing
for automatic termination of parental rights of unwed father on
death of mother was not remedied by fact that father had right
to petition for adoption of children because Illinois law
considered him "a stranger to his children," provided him "no
priority in adoption proceedings," and required him "to
establish not only that he would be a suitable parent but also
that he would be the most suitable of all who might want custody
of the children").
- 23 -
III.
CONCLUSION
For these reasons, we reverse the decision of the trial
court, vacate its order dismissing father's petition, and remand
for further proceedings consistent with this opinion.
Reversed, vacated and remanded.
- 24 -
Benton, J., with whom Annunziata and Clements, JJ., join,
concurring.
I concur in the majority opinion's holding that the
application of the statutory time limitation was
unconstitutional under the facts alleged in the father's
petition, which we accept to be true for purposes of reviewing
the trial judge's grant of the demurrer. I would also hold,
however, that the former Adoption Act required notice to the
father and that the adoption order is void because the
proceeding was conducted without either notice to the father or
a waiver of notice. Because of the lack of notice, the adoption
order was entered in violation of the Act and the due process
clauses of the Virginia and United States Constitutions.
I.
(A)
The record unequivocally establishes that the father did
not waive notice and did not receive notice of the pending
adoption proceeding. In unambiguous language, former Code
§ 63.1-225(A) provides that "[n]o petition for adoption shall be
granted, except as hereinafter provided in this section, unless
written consent to the proposed adoption is filed with the
petition." No statutory exception applies to this case. In
pertinent part, former Code § 63.1-220.3 provides as follows:
- 25 -
A. The birth parent or legal guardian of a
child may place his child for adoption
directly with the adoptive parents of his
choice. Consent to the proposed adoption
shall be executed upon compliance with the
provisions of this section before a juvenile
and domestic relations district court of
competent jurisdiction . . . .
* * * * * * *
C. 1. a. The execution of consent before
the court as set forth in subsection A shall
not be required of a birth father who is not
married to the mother of the child at the
time of the child's conception or birth if
. . . the birth father consents under oath
and in writing to the adoption; . . . .
b. The court may accept the written consent
of the birth father who is not married to
the birth mother of the child at the time of
the child's conception or birth, provided
that the identifying information required in
subsection B 3 is filed in writing with the
court of jurisdiction. Such consent shall
be executed after the birth of the child,
shall advise the birth father of his
opportunity for legal representation, and
shall be presented to the court for
acceptance. The consent may waive further
notice of the adoption proceedings and shall
contain the name, address and telephone
number of the birth father's legal counsel
or an acknowledgement that he was informed
of his opportunity to be represented by
legal counsel and declined such
representation.
c. In the event that the birth mother's
consent is not executed in court in
accordance with subsection A, the consent of
the birth father who is not married to the
birth mother of the child shall be executed
in court.
* * * * * * *
- 26 -
6. When a child has been placed by the
birth parent(s) with prospective adoptive
parents who are the child's grandparents,
adult brother or sister, adult uncle or aunt
or adult great uncle or great aunt, consent
does not have to be executed in court in the
presence of the prospective adoptive
parents. The court may accept written
consent that has been signed and
acknowledged before an officer authorized by
law to take acknowledgements. No hearing
shall be required for the court's acceptance
of such consent.
(Emphasis added.)
Former Code § 63.1-225(E) provides as follows:
E. When a child has been placed by the
birth parent(s) with the prospective
adoptive parent(s) who is the child's
grandparent, adult brother or sister, adult
uncle or aunt, or adult great uncle or great
aunt, the court may accept the written and
signed consent of the birth parent which has
been acknowledged by an officer authorized
by law to take such acknowledgements.
(Emphasis added.)
Although the adoption order does not specify whether the
judge accepted the father's consent pursuant to Code
§§ 63.1-220.3(C)(1)(a) or 63.1-225, the facts alleged in the
father's petition, which the trial judge accepted as true,
establish that the father did not place the child with the
grandmother for the purpose of adoption. Nevertheless, the
father later signed a "consent" for adoption. Neither of those
Code sections, however, described or specified the requirements
that were deemed sufficient to constitute a valid consent. The
- 27 -
only place in the Act that addressed the contents of the consent
was Code § 63.1-220.3(C)(1)(b), where the following was stated:
Such consent shall be executed after the
birth of the child, shall advise the birth
father of his opportunity for legal
representation, and shall be presented to
the court for acceptance. The consent may
waive further notice of the adoption
proceedings and shall contain the name,
address and telephone number of the birth
father's legal counsel or an acknowledgement
that he was informed of his opportunity to
be represented by legal counsel and declined
such representation.
(Emphasis added.)
By explicitly providing that "[t]he consent may waive
further notice of the adoption proceeding," id., the Act
implicitly draws a distinction between consent and waiver of
notice of the adoption proceeding. The clear import of the Act
is that consent and waiver are not the same concepts. Moreover,
nowhere does the Act indicate, even implicitly, that notice to
the father of institution of the adoption proceeding is not
required. Indeed, by providing that the judge may accept a
consent that "waive[s] further notice of the adoption
proceedings," the Act implicitly recognizes the due process
requirement that notice be given of the adoption proceeding.
See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185 (1972)
(holding that "due process rights to notice and hearing prior to
a civil judgment are subject to waiver").
- 28 -
(B)
Other provisions of the Act support the conclusion that the
legislature intended that notice of the adoption proceedings be
given to a consenting parent. For example, the Act makes
consent revocable under the following circumstances:
D. Consent shall be revocable as follows:
1. By either consenting birth parent for
any reason for up to fifteen days from its
execution.
a. Such revocation shall be in writing,
signed by the revoking party or counsel of
record for the revoking party and shall be
filed with the clerk of the court in which
the petition was filed during the business
day of the court, within the time period
specified in this section. If the
revocation period expires on a Saturday,
Sunday, legal holiday or any day on which
the clerk's office is closed as authorized
by statute, the revocation period shall be
extended to the next day that is not a
Saturday, Sunday, legal holiday or other day
on which the clerk's office is closed as
authorized by statute.
b. Upon the filing of a valid revocation
within the time period set out in this
section, the court shall order that any
consent given for the purpose of such
placement is void and, if necessary, the
court shall determine custody of the child
as between the birth parents.
2. By any party prior to the final order of
adoption . . . upon proof of fraud or duress
. . . .
Code § 63.1-2203(D). In a similar vein, the Act also provides
as follows:
- 29 -
Parental consent to an adoption executed
pursuant to this section shall be revocable
prior to the final order of adoption . . .
upon proof of fraud or duress . . . .
Code § 63.1-225(H).
These provisions would be rendered meaningless if notice of
the adoption proceeding is not given to a consenting parent.
For the statutory right to revoke a consent to have any meaning,
the parent who has consented must have notice of the institution
of proceedings in order to revoke consent before the adoption
takes place. Other courts have reached the same conclusion
within a similar statutory framework. See McCulley v. Bone, 979
P.2d 779, 791-92 (1999) (ruling that a parent's right to notice
in an adoption proceeding is implicit because it "is
sufficiently basic to be constitutionally protected under the
Due Process Clause"). Thus, I believe the Act's revocation
scheme constitutes an implicit recognition by the legislature
that a consenting parent should receive notification of the
adoption proceeding.
In addition, the Act also contains express requirements of
notice under the circumstances identified in Code
§§ 63.1-220.3(C)(1)(a), 63.1-220.3(C)(2) and 63.1-220.3(C)(4).
These requirements, which relate to circumstances where a
consent is not given, clearly manifest the legislature's
awareness of the necessity to satisfy due process requirements.
- 30 -
(C)
The majority "assume[s] without deciding that father's
execution of the Consent to Adoption form . . . constituted an
appearance before the court sufficient to permit the court to
infer father's receipt of notice and submission to the
jurisdiction of the court." I would not make such an
assumption. The father did not sign the "consent" in court.
Moreover, the record reflects that the "consent" the father
signed did not contain a waiver of notice. The "Consent" reads
as follows:
I, [the father], over the age of eighteen
years, parent of [the child], an infant
under the age of fourteen years do hereby
consent that said infant be adopted by [the
grandmother] and that [the grandmother] be
vested with all the rights, powers and
privileges with reference to said child as
are provided by law.
The form does not purport to waive notice. 9
9
The Uniform Adoption Act of 1994 provides that "[u]nless
consent is not required or is dispensed with . . . in a direct
placement of a minor for adoption by a parent . . . , a petition
to adopt the minor may be granted only if consent to the
adoption has been executed by . . . the man . . . who . . . has
received the minor into his home and openly held out the minor
as his child." § 2-401(a)(1)(iv). Significantly, the Act
requires that "[a] consent must state: . . . that the
individual who is consenting waives further notice unless the
adoption is contested, appealed, or denied." § 2-406(d)(7)
(emphasis added). Furthermore, although "[a] person entitled to
receive notice under this [Act] may waive the notice . . . in a
consent . . . or other document signed by the person,"
§ 3-405(a), the Act expressly provides that "[u]nless notice has
been waived, notice of a proceeding for adoption of a minor must
be served . . . upon an individual whose consent to the adoption
- 31 -
Without either notice to the father or a waiver of notice,
the adoption proceeding was not binding on him. He was entitled
to challenge it because an order of adoption is void when
"personal jurisdiction over [the natural parent] was lacking at
the time of the entry of the final order of adoption." Carlton
v. Paxton, 14 Va. App. 105, 114, 415 S.E.2d 600, 605 (1992).
For these reasons, I would read the Act to require either
notice to the parent or a consent (or other document) that
waives notice. Therefore, I would hold that the Act implicitly
requires notice to the father in the absence of a waiver of
notice. Because the father was not given notice and did not
waive notice, the adoption is void.
II.
The United States Supreme Court has been "unanimously of
the view that 'the interest of parents in their relationship
with their children is sufficiently fundamental to come within
the finite class of liberty interests protected by the
Fourteenth Amendment.' . . . [and] also . . . unanimous[ly of
is required," § 3-401(a)(1), and served upon "an individual whom
the petitioner knows is claiming to be or who is named as the
father or possible father of the minor adoptee and whose
paternity of the minor has not been judicially determined,"
§ 3-401(a)(3). Only when a consent is executed in substantial
compliance with the Act does the parent waive "any right to
notice of the proceeding for adoption." § 2-407(a)(3). In the
absence of a waiver, "[p]ersonal service of the notice [of a
proceeding for adoption of a minor] must be made in a manner
appropriate under [the rules of civil procedure for the service
of process in a civil action in this State] unless the court
otherwise directs." § 3-403(a).
- 32 -
the] view that '[f]ew consequences of judicial action are so
grave as the severance of natural family ties.'" M.L.B. v.
S.L.J., 519 U.S. 102, 119 (1996) (citations omitted). Noting
that "the relationship of love and duty in a recognized family
unit is an interest in liberty entitled to constitutional
protection," the Supreme Court has held that "'state
intervention to terminate [such a] relationship . . . must be
accomplished by procedures meeting the requisites of the Due
Process Clause.'" Lehr v. Robertson, 463 U.S. 248, 258 (1983)
(citations omitted). Moreover, the Supreme Court recognized
that "[w]hen an unwed father demonstrates a full commitment to
the responsibilities of parenthood by 'com[ing] forward to
participate in the rearing of his child,' his interest in
personal contact with his child acquires substantial protection
under the Due Process Clause." Id. at 261 (citation omitted).
When it comes to severing such a protected interest, "[t]he due
process concern homes in on the essential fairness of the
state-ordered proceedings." M.L.B., 519 U.S. at 120.
Applying these principles, I would hold that former Code
§ 63.1-237 could not validly preclude the father's challenge to
the order because legislation may not abrogate basic due process
rights to notice of the institution of proceedings. To read the
Act to allow an adoption to proceed either upon a lack of notice
to a parent or on a consent by a parent that does not waive
notice is to give the Act a sweep that contravenes
- 33 -
constitutional rights. These fundamental principles have their
genesis in well-settled law.
It is clear that failure to give the
petitioner notice of the pending adoption
proceedings violated the most rudimentary
demands of due process of law. "Many
controversies have raged about the cryptic
and abstract words of the Due Process Clause
but there can be no doubt that at a minimum
they require that deprivation of life,
liberty or property by adjudication be
preceded by notice and opportunity for
hearing appropriate to the nature of the
case." "An elementary and fundamental
requirement of due process in any proceeding
which is to be accorded finality is notice
reasonably calculated, under all the
circumstances, to apprise interested parties
of the pendency of the action and afford
them an opportunity to present their
objections. Questions frequently arise as
to the adequacy of a particular form of
notice in a particular case. But as to the
basic requirement of notice itself there can
be no doubt, where, as here, the result of
the judicial proceeding was permanently to
deprive a legitimate parent of all that
parenthood implies."
Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (citations
omitted).
Long before Armstrong, the Supreme Court of Virginia
applied these same due process principles and ruled as follows:
The "due process" clauses of the Federal and
State Constitutions require notice and an
opportunity to be heard, but the litigants
have rights which they may waive, if they
choose, and if waived in a case in which
they have the right to waive, the judgment
will be held valid. In this class of cases,
the question of the jurisdiction of the
court usually resolves itself into one of
whether or not there has been "due process,"
- 34 -
whether the process has been served in the
time and manner required by law, or service
has been waived. Of course, the defendant
must be properly brought before the court,
else there will be no jurisdiction over him
and a judgment against him will be void.
Shelton v. Sydnor, 126 Va. 625, 630, 102 S.E. 83, 85 (1920).
Simply put, "'"One of the essentials of due process is
notice."'" Walt Robbins, Inc. v. Damon Corp., 232 Va. 43, 47,
348 S.E.2d 223, 226 (1986) (citation omitted).
For these reasons, I would also hold that the adoption
order is void.
- 35 -
Bumgardner, J., with whom Frank, Humphreys and Agee, JJ., join,
dissenting.
I dissent because the majority unnecessarily decides this
appeal too broadly and on constitutional grounds. The
implications of this decision will enfeeble adoptions once
confidently accepted as final and unassailable. The result
counters the established policy of encouraging adoptions and
protecting their validity. This appeal does not require the
decisional approach of the majority.
In this matter, the father simply appeals the sustaining of
a demurrer. He brought his petition under Code § 8.01-428(D),
which preserves the common law "independent action" for
obtaining equitable relief from a judgment. See Kent Sinclair &
Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.4, at
479 (3d ed. 1998). The elements of that action are well defined
and include "'the absence of fault or negligence on the part of
the [petitioner].'" Charles v. Precision Tune, Inc., 243 Va.
313, 318, 414 S.E.2d 831, 833 (1992) (citation omitted). The
father's fault or negligence in signing a document he could not
read is apparent from his pleading. Thus, the petition fails to
plead sufficient facts to permit father's action, see id., and a
demurrer would be proper because the petition stated no action
upon which the father was entitled to relief.
However, that need not be the basis for a decision in this
matter. The trial court erred in sustaining a demurrer based on
- 36 -
the statute of limitations of Code § 63.1-237. "[T]he defense
that the statutory limitation period has expired cannot be set
up by demurrer." Code § 8.01-235. While the father did not
raise that objection, preferring his broad constitutional
attack, reversal on this narrow basis is preferable to the
expansive, constitutional ruling of the majority.
Nonetheless, the majority holds "the adoption decree was
void ab initio based on grandmother's alleged fraud and the
resulting lack of notice to and personal jurisdiction over the
father." It declares the statute of limitations for adoptions
unconstitutional as it applied to this father. In reaching this
decision, the majority assumes the consent executed by F.E.
"constituted an appearance before the court," but yet it
concludes the trial court had no personal jurisdiction over him.
The majority forgets that personal jurisdiction over a person is
acquired by appearance and service of process is not necessary
if the party appears voluntarily. W. Hamilton Bryson, Bryson on
Virginia Civil Procedure 107 (3d ed. 1997).
Instead, the majority permits extrinsic fraud to nullify
the appearance. By concluding misrepresentations prevented
personal jurisdiction, the majority makes service of process,
the other means of obtaining personal jurisdiction over a party,
a requirement. The majority acknowledges appearance by consent
but requires service of process. This additional procedural
mandate has not been the practice or the requirement. The
- 37 -
General Assembly has consistently provided abridged procedures
to simplify adoptions involving the consent of unwed fathers.
Before Stanley v. Illinois, 405 U.S. 645 (1972), their consent
was not required. See Szemler v. Clements, 214 Va. 639, 202
S.E.2d 880 (1974). After the Supreme Court of the United States
extended constitutional protections to unwed fathers' parental
rights in Stanley, the General Assembly revised the requirements
regarding parental consent. Acts of Assembly 1993 cc. 338, 553.
Yet, the General Assembly still incorporated exceptions
regarding unwed fathers. They are not required to give their
consent in open court, but may consent before a notary upon
their sworn statement. Code § 63.1-220.3(C)1.a.
For these reasons, I would reverse the trial court's
decision sustaining a demurrer based on the statute of
limitations. On remand, the father could amend any defect in
his pleading, and the facts surrounding the consent and the
three-year delay could be properly addressed in a formal
evidentiary hearing. Most importantly, the trial court could
address the real issue in this case, the desire of the natural
father for custody of his child. The trial court could decide
whether it is in the best interests of the child to live with
the natural father or the adoptive mother, natural grandmother. 10
10
Nothing in this record suggests that the adoptive mother
has custody based on a decree that would put the father at a
disadvantage such as recognized in Armstong v. Manzo, 380 U.S.
545 (1965).
- 38 -
There is no need, at this point, to declare the adoption by the
grandmother invalid.
To decide otherwise subjects any existing adoption grounded
on consent, but entered without service of process upon the
consenting party, to perpetual challenge as to whether the court
may have lacked jurisdiction to grant the adoption.
- 39 -