Wyatt v. McDermott

• Decision Date: 20 April 2012
• Docket Number: Record No. 111497.
• Citation: 725 S.E.2d 555,283 Va. 685
• Parties: John M. WYATT, III, et al. v. Mark McDERMOTT, et al.
• Court: Virginia Supreme Court

283 Va. 685

725 S.E.2d 555

John M. WYATT, III, et al.

v.Mark McDERMOTT, et al.

Record No. 111497.

Supreme Court of Virginia.

April 20, 2012.

Philip J. Hirschkop, Alexandria (Bernard J. DiMuro; Jonathan R. Mook; Hillary J. Collyer; Hirschkop & Associates; DiMuroGinsberg, on brief), for plaintiffs.

Carol T. Stone; Robert N. Kelly, Fairfax (Kelly M. Lippincott; Paul J. Maloney; Allyson C. Kitchell; John O. Easton; Robert M. Hardy; Carr Maloney; Jackson & Campbell; Jordan Coyne & Savits, on brief), for defendants.

Present: All the Justices.

Opinion By Justice LEROY F. MILLETTE, JR.

Pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, the United States District Court for the Eastern District of Virginia, Alexandria Division (the district court), by its order entered August 16, 2011, certified questions of law to this Court concerning whether Virginia recognizes tortious interference with parental rights as a cause of action and, if so, what elements constitute such a tort.

I. Background

The certified questions of law before us arise out of a motion before the district court to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Accordingly, the factual allegations in the complaint are accepted as true for the purposes of framing an answer that is responsive to the needs of the district court. See, e.g., Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

John M. Wyatt, III, is seeking monetary damages for the unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. Prior to E.Z.'s birth, Wyatt accompanied Fahland to doctors' appointments and made plans with Fahland to raise their child together. Without Wyatt's knowledge, Fahland's parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents' desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby. Fahland offered to provide Wyatt's address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.'s birth, Fahland and her father met again with McDermott. At McDermott's urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information about a potential adoption. Later that day and throughout the week prior to E.Z.'s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.

Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants. E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed of the birth. The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father. Despite her full knowledge of his address, she placed question marks as to his contact information on the notarized documents at the urging of McDermott. Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z., signed an agreement stating that they were aware that E.Z.'s custody status might be unclear. On February 12, Fahland signed an affidavit of relinquishment and transferred custody to the Zarembinskis, who had travelled to Virginia to pick up the child. Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights.

On February 18, Wyatt initiated proceedings in the Juvenile and Domestic Relations Court of Stafford County, Virginia, to obtain custody of E.Z. Although Wyatt was ultimately awarded custody by the juvenile and domestic relations court, the Utah courts have awarded custody of E.Z. to the Zarembinskis. Wyatt has been involved in a protracted custody battle, the facts and proceedings of which are extensive; the salient details are simply that, at the time of the certificationorder, adoption proceedings were still pending in Utah, and E.Z. remains with the Zarembinskis in Utah to this date.

Wyatt filed an action in the district court against McDermott, Jenkins, Wood Jenkins LLP, Act of Love, the Zarembinskis, and Lorraine Moon, the Act of Love employee who facilitated the adoption (collectively, Defendants), seeking compensatory and punitive damages for the unauthorized adoption as well as a declaratory judgment under the Parental Kidnapping Prevention Act of 1980, Pub. L. No. 96–611, 94 Stat. 3568–3573, that Virginia had jurisdiction to award custody of the child. Wyatt asserted numerous claims, including one for tortious interference with parental rights. Upon consideration of a motion to dismiss filed by Defendants, the district court denied the motion as to the claim for tortious interference with parental rights pending its request that this Court adjudicate whether Virginia recognizes such a cause of action. ¹

The following questions were certified to this Court by the district court:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action?

2. If so, what are the elements of the cause of action, and what is the burden of proof of such a claim?

Rule 5:40(a) requires that a certified question be “determinative” in “any proceeding pending before the certifying court.” As the district court states, these questions are determinative in the proceedings pending before it because it must dismiss the claim for tortious interference with parental rights if no such cause of action exists under Virginia law. Accordingly, by order entered September 23, 2011, we accepted the certified questions.

II. Discussion

A statutory basis for tortious interference with parental rights is clearly absent from the Virginia Code; we therefore focus our analysis on whether this tort exists at common law. We conclude that, although no Virginia court has had occasion to consider the cause of action, the tort in question has indeed existed at common law and continues to exist today. Furthermore, rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship.

A. Rightful Remedies

We recognize the essential value of protecting a parent's right to form a relationship with his or her child. We have previously acknowledged that “the relationship between a parent and child is constitutionally protected by the Due Process Clause of the Fourteenth Amendment.” Copeland v. Todd, 282 Va. 183, 198, 715 S.E.2d 11, 19 (2011) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)). Indeed, the Supreme Court of the United States has characterized a parent's right to raise his or her child as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

It follows, then, that a parent has a cause of action against third parties who seek to interfere with this right. In the analogous case of Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985), we explicitly recognized the common law tort of tortious interference with contract rights for the first time, noting its historical basis in the Commonwealth. We said:

We have not previously had occasion to consider this precise aspect of the law of torts, although in Worrie v. Boze, 198 Va. 533, 95 S.E.2d 192 (1956), we affirmed a judgment granting relief for a tortious conspiracy to procure a breach of contract. There, we said: “It is well settled that the right to performance of a contract and the right to reap profits therefrom are property rights which are entitled to protection in the courts. Consequently, suits for procuring breach of contract proceed on this basis.” Id. at 536, 95 S.E.2d at 196.

Id. at 119–20, 337 S.E.2d at 102. In Chaves, we were not creating a new tort but rather recognizing that the common law provided a cause of action for tortious interference with contract rights. The historical happenstance that the tort in question had not previously been invoked in Virginia did not prevent us from recognizing that the common law right of contract necessarily brought with it, as a corollary, a right to seek recompense against those who interfered with a valid contract. Noting the recognition of tortious interference with contract by many of our sister states, by many English courts, and in the Restatement of Torts, we concluded that a claim for tortious interference with contract could be brought in Virginia. Id. It would be remarkable indeed if the common law right to be free from interference in contract were to be deemed to be more valuable than the common law right of a parent to be free from interference in a relationship with his or her child.

In this case, following...