Doe v. Doe

• Decision Date: 04 December 1981
• Docket Number: No. 790824,790824
• Court: Virginia Supreme Court
• Parties: Jane DOE v. John DOE and Ann Smith Doe. Record

Page 799

284 S.E.2d 799

222 Va. 736

Jane DOE v. John DOE and Ann Smith Doe.

Record No. 790824.

Supreme Court of Virginia.

Dec. 4, 1981.

Marcia Robinson Lowry (Victor M. Glasberg, Alexandria, Stephen W. Bricker, Gerald T. Zerkin, Bricker & Zerkin, Richmond, on briefs), for appellant.

David A. Melesco, Rocky Mount (Melesco & McLaughlin, P. C., Rocky Mount, on brief), for appellees.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

HARRISON, Justice.

In this adoption case the Court considers the effect of an admitted lesbian relationship by a natural mother who refuses to consent to the adoption of her child.

Ann Smith Doe petitioned the court below for adoption of Jack Doe. The child is the infant son by a former marriage of Ann's husband, John Doe, who joined in the petition and consented to the adoption. Code § 63.1-221, et seq. Appellant Jane Doe, the child's natural mother, filed her answer and registered her opposition. Investigations were made by the Franklin County Department of Social Services and by the Children Services Board of Greene County, Ohio. Their reports are a part of the record. Following an ore tenus hearing, the court below approved the adoption, holding, inter alia, that the consent of the natural mother was withheld contrary to the child's best interest. Jane contends on appeal that the court's finding is not supported by the evidence. ¹

The law which controls our decision is well settled. In Cunningham v. Gray, 221 Va. 792, 795, 273 S.E.2d 562, 564 (1981), we said: "[W]hile the welfare of the child is of paramount concern in adoption cases, nonetheless the rights of a natural parent vis-a-vis a non-parent will be maintained if at all consistent with the child's best interests." Accord, Malpass v. Morgan, 213 Va. 393, 400, 192 S.E.2d 794, 799 (1972); Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). The adoptive parent must establish that "continuance of the relationship between the [natural parent] and [the] child would be detrimental to the child's welfare." Ward v. Faw, 219 Va. 1120, 1125, 253 S.E.2d 658, 661 (1979). We honor these principles in our evaluation of the evidence in the instant case.

Jane was raised in a small town in Ohio and was educated at Wooster College (BA degree) and Vanderbilt University (MA degree). She and John met while she was attending graduate school, and they were married in June 1967. The first three years of their married life were uneventful, and during that time Jane taught school and worked in research while her husband attended graduate school. In the summer of 1970, John honored his commitment to the Army, having previously participated in a ROTC Program. Apparently, he had ambivalent feelings about the Vietnam War and the Army generally. Jane stated that he became depressed and cynical and turned to alcohol for relief, thereby bringing about a situation which neither could handle, and which caused their marriage to suffer. Jack was born in Washington, D. C. in June 1971.

John obtained an early release from the Army in June 1972, and Jane said that they and their infant son spent the summer on a farm in Arkansas to "get our life back together." In August the parties moved to Yellow Springs, Ohio, where John obtained a job in a social service agency. Shortly thereafter the parties separated with both continuing to live in Yellow Springs. Their infant son remained with Jane, who was employed. According to Jane, her husband led a rather aimless life for approximately two years after their separation, being generally unemployed and providing her with little child support. In 1974, John, who holds a PhD degree, left Yellow Springs to accept a job at Ferrum College in Virginia. This apparently marked a turning point in his life. At the time this case was tried he was a tenured professor at Ferrum.

In April 1975, John obtained a divorce from Jane, and shortly thereafter remarried, established a home in Rocky Mount, Virginia, and had a child by Ann, his second wife. Following his father's remarriage, the boy continued to live with his mother in Yellow Springs but periodically visited his father in Virginia. In February 1976, John and Ann, over Jane's objection, took the child to Virginia. Thereafter John sought and obtained permanent custody of the child in July 1976, but with Jane having visitation rights. Two years later the petition for adoption was filed. The hearing in this case was held in October 1978, and a final order of adoption was entered on March 5, 1979.

The custody of Jack Doe is not an issue here. In a previous proceeding it was ordered that he spend eight weeks of his summer vacation with his mother and alternate Easter and Christmas vacations with her. The rest of the time was to be spent with John and Ann. Neither is the fitness of John and Ann Smith Doe as parents, or as adoptive parents, an issue.

John and Ann both testified at the ore tenus hearing before the court below. They assigned as reasons for Ann's desire to adopt the boy "the separation between Franklin County and Yellow Springs, Ohio," and the difference in life-styles between the two areas. ² They described their life-style at Ferrum as that of a "rural extended family," and the life-style in Yellow Springs as different, unordered, unstructured, and bohemian. Both expressed a desire to solidify their family unit by having Jack as a permanent member and expressed concern over the relationship between Jane and the woman with whom she lives in Ohio. They admitted that Jack "has not verbalized" any difficulties that he had in accepting the relationship between his natural mother and her friend. However, John testified that "at some point he will have to attempt to integrate these two life styles," referring to the difference between the family unit maintained by him and Ann and that by Jane.

Helen Brown, Jack's teacher, described the boy as well-adjusted, above average in intelligence and verbal ability, creative, happy, sensitive, and cheerful.

Jane Doe testified fully and freely regarding her relationship with a woman in Yellow Springs named Moya whose child is named Jason. She described their association as "married in the sense that we have a primary relationship and that we have committed ourselves to living our lives together and to supporting each other." She said that the marriage was spiritual, and that they went through a ceremony in the presence of a Sufi priest "because we wanted to acknowledge the importance of our relationship," one which she admitted was sexual at times.

Jane was questioned closely about the effect of her son growing up in two households, one where there is a husband and wife relationship and the other a homosexual relationship between two women. She responded, "I don't see any conflict" and added significantly: "If at any point I did see a conflict I would do whatever I had to do, which would include severing a relationship with Moya or anyone else for Jack's sake." When pressed further on the possible harmful effect of her lesbian relationship, she said: "I have felt that there's no harmful effect, and, as I say, if I ever was given any reason through any indication on Jack's part, either verbally or some response that he had that, that there was a difficulty for him, I would do something about it, whatever seemed appropriate." When asked if she would give up Moya, she said: "I would not live with her. The friendship is a friendship that, you know, I certainly wouldn't give up." Jane testified at great length about her love, affection, and concern for the boy, their closeness, the trips they took together, the experiences they shared, including their living in an Indian teepee one summer, visiting in California, hiking, and teaching the boy to swim and ride a bicycle.

Jane admitted that she permitted her son to call her by her first name, that when they once lived in a two-story house she did not discourage Jack when he urinated from an upstairs window, and that she was not shocked when he and Jason used a four-letter "barnyard" word. She testified that the use of such words by very young children usually coincided with a phase through which they passed and were used by them to get a reaction.

Among the witnesses from Ohio who testified to the fitness of Jane to be a mother was Mary Jackson, John Doe's first cousin, and the mother of a two-year-old son. Her husband is a professor at Wright University, and Mrs. Jackson holds a Masters degree and is employed as a professional counselor. She has known Jane Doe for six years. She described Jane's relationship with Jack as "very loving and nurturing" and noted the two had a "very good and close rapport." Mrs. Jackson attributed this to Jane's "thoughtfulness, consideration, and interest as a parent," observing that Jane had provided Jack with "loving and learning and educational experiences." She described these experiences as visits to libraries and to zoos, outdoor activities, camping, making homemade toys for him, making his clothes, and being very concerned about his welfare in general. She admitted having reservations about Jane's life-style but added: "I find that the lifestyle does not in any way take away from her ability as a parent.... I have always seen her put Jack first and always consider him before she considered other things in life. I think she's a very admirable and confident parent."

In Mrs. Jackson's opinion, Jack would not experience any problems in going from a rural heterosexual family relationship to the life-style practiced by his mother in Yellow Springs. When asked if the boy would not be subjected to cruel comments by his peers because of his mother's life-style, Mrs. Jackson admitted this was a possibility but added "my experience with Jack is that he is a self-assured child and would talk that out with either of his parents at the time, if that occurred, and could handle it ... as any well...