Todd v. Copeland
| Decision Date | 09 March 2010 |
| Docket Number | Record No. 0823-09-3. |
| Citation | 689 S.E.2d 784,55 Va. App. 773 |
| Court | Virginia Court of Appeals |
| Parties | Leslie TODD v. Lucretia Putnam COPELAND. |
David A. Penrod (Grant D. Penrod; Hoover Penrod, PLC, Harrisonburg, on briefs), for appellant.
Dana J. Cornett (David R. Martin, Guardian ad litem for the minor child; Miner, Martin & Mahn, PLC, Harrisonburg, on brief), for appellee.
Present: FELTON, C.J., ELDER and PETTY, JJ.
Appellant, Leslie Todd, is challenging the trial court's order terminating her parental rights and allowing the adoption of her child without her consent, pursuant to Code §§ 63.2-1202(H), -1203, and -1205. Todd argues that the trial court erred in its interpretation of Code § 63.2-1202(H). Copeland also challenges the constitutionality of Code § 63.2-1205 on due process and equal protection grounds.1 For the reasons that follow, we agree with Todd, and reverse the judgment of the trial court.
Leslie Todd gave birth to the child who is at the center of this case while Todd was incarcerated. Todd's relatives were not prepared to take her newborn baby, so she agreed that Linda Guenther, who served as a chaplain at the jail, and Guenther's friend, Lucretia Copeland, would take temporary custody of the baby until she could finish serving her sentence. Copeland and Guenther sought and received an order granting them temporary, indefinite custody of the baby. The order also granted Todd visitation with her baby at Copeland's and Guenther's discretion. Although both Copeland and Guenther cared for the baby during the first year, Copeland eventually became the baby's primary physical custodian.
Copeland brought the baby to visit Todd while she was incarcerated, usually on a weekly basis. After Todd's release in September 2003, the parties agreed that Todd could not take care of the child due to her housing and financial situation. However, she saw her child frequently through the summer of 2005. Beginning in July 2005, Todd's contact with the child began to wane, and from July 2006 through July 2007, Todd neither contacted nor visited with her child. While the record also indicates that Todd has been gainfully employed since her release from incarceration and has successfully completed her probation, Todd concedes that she cannot currently take custody of her child.
On July 21, 2007, Copeland contacted Todd and asked about adopting the child. That same day, Todd requested visitation with her child. Todd visited with her child that same day, and refused the adoption request. Following that visit, Todd asked that she be allowed to visit with the child more frequently. However, Copeland and Todd were not able to come to an agreement about visitation during the summer of 2007, and Todd eventually sought and received court-ordered visitation with her child. At Todd's request, the court appointed a mental health professional to assist with the development of a visitation plan and a relationship between Todd and her child.
Following the institution of the visitation order, Todd visited with her child on every occasion allowed by the court order. The mental health professional appointed by the court to assist in the visitation plan monitored the visits and reported that Todd and the child interacted well and developed a close relationship, even though the child does not know that Todd is her biological mother. According to a report from the court-appointed mental health professional dated March 20, 2008, Todd and the child had progressed in their relationship to the point that the counselor believed that Todd should inform the child that she was her biological mother and that the two should have "unrestricted and unlimited" visitation. The report also stressed that: "From a developmental perspective, it would be detrimental for Ms. Todd and [the child] to terminate a mother/daughter relationship at this point."
On November 26, 2007, Copeland filed a petition to adopt the child. At the conclusion of the proceedings below, the trial court granted the petition on two separate grounds. The trial court held that Todd had failed to maintain contact with the child for a period of six months prior to the filing of the adoption petition as provided in Code § 63.2-1202(H) and, in the alternative, that Todd had withheld her consent contrary to the child's best interests as provided in Code §§ 63.2-1203 and -1205. This appeal followed.
Todd argues that Code §§ 63.2-1203 and -1205, as applied in this proceeding violated her constitutional right to due process. We agree and hold that the Fourteenth Amendment to the United States Constitution requires prospective adoptive parents to prove, by clear and convincing evidence, both that the entry of an adoption order over the objection of a nonconsenting parent is in the best interest of the child and that a continuing relationship with the birth parent would be detrimental to the child's welfare. Because the trial court did not make that determination here, it erred in granting the adoption.
"[W]hen, as here, the constitutionality of a statute is challenged, our determination of legislative intent is guided by the recognition that `all actions of the General Assembly are presumed to be constitutional.'" Virginia Soc'y for Human Life v. Caldwell, 256 Va. 151, 157, 500 S.E.2d 814, 816-17 (1998) (quoting Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990)). Accordingly, we will construe a statute "`in such a manner as to avoid a constitutional question wherever this is possible.'" Id. (quoting Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940)); accord Jacobs v. Meade, 227 Va. 284, 287, 315 S.E.2d 383, 385 (1984).
We are also mindful that the termination of parental rights "is a grave, drastic and irreversible action," Helen W. v. Fairfax County Dep't of Human Dev., 12 Va.App. 877, 883, 407 S.E.2d 25, 28-29 (1991) (internal quotation marks and citation omitted), and that courts must apply a higher standard in determining whether adoption is appropriate, than would be applied in matters of custody or visitation. As our Supreme Court has noted,
[t]he most drastic and far-reaching action that can be taken by a court of equity is to enter a final order of adoption. Such an order severing the ties between a parent and a child is as final, and often as devastating, as though the child had been delivered at birth to a stranger instead of into the arms of its natural mother or father.
Doe v. Doe, 222 Va. 736, 746, 284 S.E.2d 799, 805 (1981). In contrast, "[c]ustody of children and child support are matters that remain within the breast of the court" and are therefore subject to less stringent review. Robinette v. Keene, 2 Va.App. 578, 587, 347 S.E.2d 156, 161 (1986).
The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life liberty, or property, without due process of law." The United States Supreme Court has recognized that a parent who has neither surrendered her rights to her child nor had those rights terminated by a judicial proceeding has a liberty interest in the "nurture, upbringing, companionship, and custody" of her child that is protected by the Due Process Clause of the Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 77, 120 S.Ct. 2054, 2066, 147 L.Ed.2d 49 (2000) (Souter, J., concurring); see also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978) ; Griffin v. Griffin, 41 Va.App. 77, 85, 581 S.E.2d 899, 903 (2003) .
By necessity, then, Margaret F. Brinig, Virginia Domestic Relations Handbook § 7-2, at 58 (3d ed. 1996). In most cases, that severance is voluntary, and is treated as a matter of contract. Id. When, however, as here, the biological parent protests the adoption, "the parent['s] rights are involuntarily terminated because of parental unfitness that cannot be remedied." Id. Because a biological parent has a fundamental right to raise her child, this involuntary termination of her parental rights involves significant substantive and procedural safeguards in order to protect the biological parent's due process rights. See Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Weaver v. Roanoke Dep't of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).
These procedural safeguards are critical because [o]nce an order of adoption becomes final, the natural parent is divested of all legal rights and obligations with respect to the child. . . . The child, to all intents and purposes, becomes the child of the person adopting him or her to the same extent as if the child had been born to the adopting parent in lawful wedlock.
Doe, 222 Va. at 746-47, 284 S.E.2d at 805. It is only after the court severs the biological parent's rights to the child in question that the court may address the "second step in the adoption proceeding"—"whether adoption by the prospective parents will be in the child's best interests." Brinig, supra, § 7-2, at 58.
The Code of Virginia has long provided a procedure...
To continue reading
Request your trial
- Byrd v. Com.
-
Farrell v. Warren Cnty. Dep't of Soc. Servs.
...their parental rights. Father claims that this denial is in violation of Code § 16.1–283(B)(2) and our decision in Todd v. Copeland, 55 Va.App. 773, 689 S.E.2d 784 (2010), aff'd in part, rev'd in part, 282 Va. 183, 715 S.E.2d 11 (2011).7 Neither of these authorities, however, requires a tri......
-
Copeland v. Todd
...child and that a continuing relationship with the birth parent would be detrimental to the child's welfare.” Todd v. Copeland, 55 Va.App. 773, 778, 689 S.E.2d 784, 787 (2010) (emphasis in original). The panel held that “the detriment to the child standard exists independent of the Virginia ......
-
Hughes v. Hughes
...from Code § 63.2-1203 (incorporating Code § 63.2-1205) and the "detriment to the child" finding required by Todd v. Copeland, 55 Va. App. 773, 790, 689 S.E.2d 784, 792 (2010), appeal granted, No. 100929 (Va. Nov. 3, 2010). Having made the findings required by Code §§ 63.2-1203, 63.2-1205, a......