F.E. v. G.F.M.

547 S.E.2d 531, 35 Va. App. 648

Opinions

BENTON, Judge,

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:

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.

* * * * * *

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 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, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972) (holding that “due process rights to notice and hearing prior to a civil judgment are subject to waiver”).

(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 § 63.1-220.3(D). In a similar vein, the Act also provides as follows:

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, 160 Or.App. 24, 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.

(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

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 ... unanimously of 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, 117 S.Ct. 555, 136 L.Ed.2d 473 (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, , 103 S.Ct. 2985, 77 L.Ed.2d 614 (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, 103 S.Ct. 2985 (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, 117 S.Ct. 555.

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 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, 85 S.Ct. 1187, 14 L.Ed.2d 62 (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,” 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.

Footnotes

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 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, "[pjersonal 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).