J.M. v. A.A.

CourtCourt of Appeals of Virginia
DecidedJuly 16, 2024
Docket1855222
StatusPublished

This text of J.M. v. A.A. (J.M. v. A.A.) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.M. v. A.A., (Va. Ct. App. 2024).

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Fulton, Ortiz and Lorish Argued at Richmond, Virginia PUBLISHED

A.A., ET AL.

v. Record No. 0876-23-2

J.M., ET AL.

v. Record No. 0953-23-2 OPINION BY A.A., ET AL. JUDGE DANIEL E. ORTIZ JULY 16, 2024 J.M., ET AL.

v. Record No. 1855-22-2

v. Record No. 0940-23-2

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY Claude V. Worrell, Judge1

Timothy M. Snyder (Brittany Marie Jones; Charles S. Dameron; Damon Porter; Ehson Kashfipour; Blair Connelly; Zachary L. Rowen; Lewis F. Powell III; Maya M. Eckstein; Trevor S. Cox; Elizabeth S. Vaughan; Latham & Watkins, LLP; Hunton Andrews Kurth LLP; Graham Law Firm, PPLC, on briefs), for A.A., et al.

John S. Moran; Samantha E. Freed, Guardian ad litem for the minor child (Hannon E. Wright; Richard L. Mast; McGuireWoods LLP; Tremblay & Smith, PLLC; Rakness & Wright, PLC, on briefs), for J.M., et al.

1 Judge Richard Moore originally presided over these matters. Upon his retirement, the matters were reassigned to Chief Judge Claude V. Worrell. Amicus Curiae: United States; Lewis S. Yelin, Attorney, Appellate Staff Civil Division (Richard C. Visek, Acting Legal Adviser; Caroline D. Krass, General Counsel; Brian M. Boynton, Principal Deputy Assistant Attorney General; Sharon Swingle, Attorney, Appellate Staff Civil Division; Jessica D. Aber, United States Attorney; Jonathan T. Lucier, Assistant U.S. Attorney; U.S. Department of Justice; U.S. Department of State; U.S. Department of Defense, on brief), for A.A., et al.

Amicus Curiae: Kids in Need of Defense (KIND) (Murad Hussain; Arnold & Porter Kaye Scholer LLP, on brief), for A.A., et al.

Amici Curiae: National Center for Youth Law; Young Center for Immigrant Children’s Rights (Rebecca R. Wolozin; Kelly Albinak Kribs, on brief), for A.A., et al.

The power to adjudicate the adoption of a child and the associated termination of parental

or familial relationships stems from the statutory framework enacted by the General Assembly.

Well-meaning intentions and emergency circumstances are not enough to grant a court the

authority or power to complete an adoption. This is especially true when a child is physically

present in a foreign country—here, Afghanistan—that has not waived jurisdiction.

Code § 63.2-1216 is a broad bar against attacking a final adoption order after six months.

Despite this, the circuit court found that the A.s’2 challenge—brought well past six months after

the final adoption order—was not barred and that the final adoption order was void because the

A.s are de facto parents with parental due process rights in Virginia. But we need not reach this

issue. Instead, we affirm the circuit court’s decision for a different reason—that while the circuit

court had subject-matter jurisdiction over the adoption in general terms, it lacked the power to

render the final adoption order, rendering it void ab initio. The court further lacked the power to

render the interlocutory adoption order, making it also void ab initio; thus, we reverse the circuit

court’s decision to leave the interlocutory adoption order in place. We further reverse the

2 Consistent with our February 16, 2023 order, we use the parties’ initials to maintain their anonymity. -2- decision to maintain the temporary custody order, as we determine that the custody order is void

ab initio because the circuit court lacked subject-matter jurisdiction to issue it. Finally, we

remand the case to the circuit court to consider the A.s’ request for custody of the child.3

BACKGROUND4

This case comes before us with a lengthy procedural history, revolving primarily around

four court orders: (1) a custody order, issued November 6, 2019; (2) an interlocutory adoption

order, issued November 10, 2019; (3) a final adoption order, entered December 3, 2020; and

(4) an order voiding the final adoption order, dated May 3, 2023. In November 2019, J.M. and

his wife, S.M., petitioned the Fluvanna County Juvenile and Domestic Relations (“J&DR”)

District Court for custody of a child living in Afghanistan. Based on representations by J.M. that

the child was a stateless orphan with severe medical needs and no known family, the court

granted the M.s custody. Following a petition by the M.s to adopt the child, the Fluvanna Circuit

Court issued an interlocutory adoption order on an emergency basis. A year later, on December

3, 2020, the circuit court issued a final order allowing the M.s to adopt the child.

On March 28, 2022, the A.s, an Afghan couple whom the United States government had

determined were relatives of the child,5 petitioned the circuit court to vacate the final adoption

order and grant them custody of the child. The M.s argued that the A.s lacked standing to

challenge the adoption and that Code § 63.2-1216, which prohibits challenges to a final adoption

3 This opinion does not preclude the M.s from filing further custody petitions. 4 “Although parts of the record are sealed, this [consolidated] appeal requires unsealing certain portions to resolve the issues raised by the parties. To the extent that certain facts mentioned in this opinion are found in the sealed portions of the record, we unseal only those portions.” Mintbrook Devs., LLC v. Groundscapes, LLC, 76 Va. App. 279, 283 n.1 (2022). 5 The M.s dispute the A.s’ biological relationship to the child, asserting that the child’s parents were non-Afghan nomadic terrorists and that the A.s have failed to provide DNA evidence or other documentary evidence of the relationship. -3- order after six months, barred their collateral attack.6 The A.s filed a motion for summary

judgment. The court denied the plea in bar and a motion to reconsider the plea in bar filed

jointly by the M.s and the guardian ad litem. On May 3, 2023, following several evidentiary

hearings, the circuit court entered summary judgment in part for the A.s. The court voided the

final adoption order, finding that the A.s were de facto parents of the child and “were entitled to

some process that they did not receive,” and thus their claim was not barred by Code

§ 63.2-1216. The court left in place both the interlocutory adoption order and the custody order.

The court then certified its entire May 3 order, including the most pertinent question of whether

Code § 63.2-1216 and a lack of standing bar the A.s’ claim.

Because this appeal comes before us following both the denial of a plea in bar and the

partial grant of summary judgment—each of which requires us to review the facts through a

particular lens7—we recite below the uncontested facts while also highlighting the material

disputes between the parties.

In September 2019, the United States military found a severely wounded child, about six

to eight weeks old, on a battlefield in Afghanistan. The A.s claim that the child’s parents were

farmers killed accidentally in a U.S. airstrike, while the M.s assert that the child’s biological

parents were non-Afghan terrorists and the child’s mother was killed when she attempted to

detonate a suicide bomb.

6 The M.s initially raised these arguments in two demurrers. Although they did not file a written plea in bar, the parties agreed to proceed as if the demurrers were pleas in bar and the circuit court treated the demurrers accordingly. 7 When considering a summary judgment motion, the court assesses the facts “in the light most favorable to the nonmoving party,” but it is “not permitted to draw inferences that are forced, strained, or contrary to reason.” Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 51 (2004).

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