FE v. GFM

• Citation: 547 S.E.2d 531,35 Va. App. 648
• Decision Date: 26 June 2001
• Docket Number: Record No. 1106-99-2.
• Parties: F.E. v. G.F.M.
• Court: Virginia Court of Appeals

547 S.E.2d 531

35 Va. App. 648

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

Record No. 1106-99-2.

Court of Appeals of Virginia, Richmond.

June 26, 2001.

Patricia M. Brady (K. Scott Miles; Alex R. Gulotta; American Civil Liberties Union of Virginia Foundation; Charlottesville-Albemarle Legal Aid Society, on brief), Charlettesville, for appellant.

John E. Davidson (Bruce M. Steen; McGuire Woods LLP, on brief), Charlettsville, for appellee.

Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

UPON A REHEARING EN BANC

ELDER, Judge.

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, 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 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.]," 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. 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 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 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 FATHER³

Extrinsic fraud is fraud which occurs outside the judicial process and consists of `conduct which prevents a fair 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, 91 Cal. 129, 25 P. 970, 971, aff'd on reh'g en banc, 91 Cal. 129, 27 P. 537 (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 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, 339 S.C. 425, 529 S.E.2d 714, 717 (2000) (quoting Hilton Head Center of S.C., Inc. v. Pub. Serv. Comm'n, 294 S.C. 9, 362 S.E.2d 176, 177 (1987)).

Code § 63.1-237 purports to restrict ...