Lively v. Smith

• Decision Date: 20 October 2020
• Docket Number: Record No. 1929-19-3
• Citation: 848 S.E.2d 620,72 Va. App. 429
• Parties: Shannon Kathleen Smith Hurt LIVELY v. Paulette Holland SMITH and Link Monroe Smith
• Court: Virginia Court of Appeals

72 Va.App. 429

848 S.E.2d 620

Shannon Kathleen Smith Hurt LIVELY

v.Paulette Holland SMITH and Link Monroe Smith

Record No. 1929-19-3

Court of Appeals of Virginia.

OCTOBER 20, 2020

Dennis H. Lee, Tazewell, (Galumbeck & Kegley, Attorneys, on brief), for appellant.

Flux Neo (Neo Law Firm, PLLC, on brief), for appellee Paulette Holland Smith.

No brief or argument for appellee Link Monroe Smith.

Present: Chief Judge Decker, Judges Malveaux and Athey

OPINION BY JUDGE MARY BENNETT MALVEAUX

Shannon Kathleen Smith Hurt Lively ("mother") appeals the dismissal of her complaint seeking to set aside her son's adoption by her parents, Paulette Holland Smith and Link Monroe Smith ("Paulette" and "Link"). She argues the circuit court erred in its application of Code § 63.2-1216 to her case. For the reasons that follow, we affirm the circuit court.

I. BACKGROUND

When reviewing a circuit court's decision on appeal, we view the evidence in the light most favorable to the party who prevailed below—here, Paulette—and grant them the benefit of any reasonable inferences.¹ See Shah v. Shah, 70 Va. App. 588, 591, 829 S.E.2d 586 (2019). So viewed, the evidence is as follows.

Mother and J.H. married and had a son, T.S., who was born in 2007.² J.H. was abusive, and he and mother divorced in March 2009.

Also in 2009, mother was sentenced to four years’ incarceration for a number of offenses, including felonies. Mother asked Paulette and Link to assume custody of T.S. Following an April 2009 hearing, the juvenile and domestic relations district court ("the JDR court") entered an order granting full custody to Paulette and Link. Mother later testified that at that time her parents told her that their custody of T.S. would be temporary and that when she returned home she would "have [T.S.]" as long as she refrained from using drugs.

In summer 2011, Paulette and Link petitioned the circuit court to adopt T.S. Mother later testified that she had learned J.H. "was coming after [T.S.], and that grandparents didn't have a leg to stand on in Virginia, and I needed to assign him over ... so that [J.H.] couldn't get [T.S.] while I was incarcerated." Link testified that he had several telephone conversations with mother about adopting T.S. During those conversations, Link expressed concern about J.H. attempting to take T.S. away and also stated his understanding that if T.S. was adopted, he would have access to Link's health insurance. Mother stated that she was told the adoption would be temporary "until you get home. It's just a piece of paper."

Felicia de Courcy, counsel for Paulette and Link, mailed mother a consent to adoption form. She accompanied the form with a cover letter stating that she represented Paulette and Link in the adoption and that "[i]t is my understanding that you are in agreement for the adoption. Enclosed please find a [c]onsent which you need to sign under oath before a notary."

Mother signed the consent and had it notarized on May 25, 2011. That day, she also wrote a letter to de Courcy explaining that "[s]ince I received your letter I have been moved to the Deerfield Work Center .... [T]he delay in my response is solely because of my transfer." Mother also informed de Courcy that Link held her power of attorney and stated that "if these proceedings can be expedited in any manner, please feel free to exercise th[o]se papers." Mother closed by stating, "I want to take this opportunity to thank you for over-seeing this matter. Your time and attention to our situation is greatly appreciated!"

On August 16, 2011, the circuit court entered a final order of adoption which acknowledged mother's consent and decreed that T.S. was, "to all intents and purposes, the child of Link ... and Paulette."

Mother was released from incarceration in September 2012 and returned to her parental home in Tazewell County. At that time, Paulette was helping to care for her mother and sister in Ohio and traveled there almost weekly. T.S. accompanied Paulette on her trips since Paulette was providing the majority of his care. Mother testified that between September 2012 and February 2013 she lived first in her parents’ home and then in a house next door and that she had resumed her relationship as T.S.’s mother. However, Paulette specifically denied that mother was "raising" T.S. or was his "primary caregiver" during this time. Paulette testified that prior to February 2013, she continued to take T.S. with her on her regular trips to Ohio and that she had T.S. with her "the majority of the time."

In February 2013, following a family argument, Paulette and T.S. left Tazewell for Ohio and began to spend the majority of their time there. Mother testified that after February 2013, T.S. periodically returned to Virginia, but only for visits.

Due to ongoing marital problems, Paulette filed for a separation from Link in October 2014. She subsequently filed for divorce and was awarded primary physical custody.

In August 2015, mother petitioned the JDR court to amend custody. In her handwritten petition, mother requested that full custody be given to her because "Link & Paulette ... are going through a messy divorce .... His biological mother wants to bring [T.S.] home ... to avoid him having to go through this mental & emotional stress." The JDR court denied the motion, noting that a final order of adoption had been entered by the circuit court in 2011 and that mother's parental rights had thus been terminated. As a result, mother lacked standing to petition for custody. Mother testified that this was the first occasion on which she realized that her parental rights had been terminated.

In June 2018, following a search for an attorney to represent her, mother filed a complaint seeking to set aside the adoption. Mother alleged that her consent to the adoption had been fraudulently obtained. She further alleged that she had been denied due process during the adoption proceedings since she had been a person under a disability—i.e. , an incarcerated felon—and no guardian ad litem had been appointed for her. As a result, mother argued, she had understood neither her rights under the circumstances nor the legal consequences of her consent.

Paulette filed a demurrer arguing, in part, that Code § 63.2-1216 foreclosed all challenges to the adoption because more than six months had passed since entry of the adoption order. The circuit court sustained the demurrer with respect to the allegation of fraud and scheduled a hearing on the remaining issues.

At the hearing, the parties testified as described above and mother acknowledged signing the consent form and having it notarized. However, she stated that she had received it without a cover letter and represented that "all [she] got was just a consent form with a sticky [flag] attached to it" indicating where it should be signed. When the notary asked her if she knew what she was signing, mother told her that she did not and that "my parents had sent it to me, and I was supposed to sign it. That was it." Mother also stated that she did not receive copies of the adoption petition or order and that she only saw the order and de Courcy's cover letter when her father showed her the documents after she was released from prison.

Upon cross-examination, mother initially denied having any communications with her parents’ attorney during her incarceration. However, when confronted with her May 25, 2011 letter to de Courcy, in which she acknowledged "receiv[ing] your letter" and thanked her parents’ attorney for "over-seeing this matter," mother stated that she had "forgot all about writing that" and acknowledged receiving de Courcy's cover letter.

Mother also testified about her understanding of matters at the time of the adoption. She denied that anyone had spoken to her about adoption or used that term prior to her receipt of the consent form in the mail. Mother also stated that when she spoke to Paulette about the adoption over the telephone, she was told that "[she] would always be [T.S.’s] mother, that this was just on paper to protect [T.S.]." Mother denied having been made aware that the adoption would permanently terminate her parental rights; as far as mother understood, the adoption was just a temporary arrangement until she returned home. Mother further testified that no one told her she had the right to object to the adoption, to revoke her consent for a certain period, or to be present for the adoption hearing. When asked on cross-examination what "the word adoption mean[s] ... to you," mother replied, "[i]t means that parents who can't have children adopt children of their own."

By contrast, Paulette testified that she had never represented that the adoption would be temporary and that she never intended for mother to resume her role as mother to T.S.

Felicia de Courcy testified that at the time of the adoption proceeding, neither Paulette nor Link had represented any expectation to her that the adoption would be temporary in nature. She stated that she had discussed the finality of the adoption with both grandparents at that time, and neither indicated that they did not understand its finality. Further, in 2013, Link telephoned de Courcy to confirm that there was no way mother could "break the adoption" and she assured him that there was not.

The circuit court issued a letter opinion addressing mother's argument that failure to provide due process to an incarcerated parent overcame the statutory bar of Code § 63.2-1216. It first concluded that, due to mother's incarceration for felony offenses, she had been a person under a disability at the time of the adoption proceeding; thus, under the provisions of Code § 8.01-9, a guardian ad litem should have been appointed for mother during the adoption.³ The court then found that mother's rights to due process and equal protection had been violated in the adoption by the failure to appoint such a guardian.

The court next considered whether the violation was of such a nature as to require...