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Parental Rights – Termination of parental right and adoption and Va Code § 63.2-1215 factors


March 15, 2022 by Tom Roberts, Esq.

3-15-2022 - Reversal of Termination of Parental Rights.

On March 15, 2022, the Virginia Court of Appeals reversed the Prince William County Circuit Court’s termination of parental rights of Mulvey.

The opinion reaffirmed the parent’s constitutionally protected interest in maintaining the parent-child relationship.  Judge Wesley G. Russell, writing for the Court, quoting the United States Supreme Court, stated “[t]he rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and [are] (r)ights far more precious…than property rights[.]” 

To survive constitutional scrutiny, before the rare circumstance that warrants a court embarking upon the “grave, drastic and irreversible action” of terminating the legal relationship between a parent and their child there must be clear and convincing evidence that a parent is unfit.  Although a finding of parental unfitness may be implicit, the Court of Appeals stated that “[g]iven the fundamental nature of the relationship and rights at issue, it is beneficial for a trial court to state expressly the basis for a termination decision, detailing the necessary findings and the evidence relied upon to make those findings.” 

The Court of Appeals agreed with Mulvey that the first of the delineated factors of Code § 63.2-1205, the “efforts to obtain or maintain legal and physical custody of the child” is a less significant factor when custody of the child is with the other biological parent instead of in a foster home.  The Court reasoned “To hold otherwise essentially would require a parent on the losing end of a custody dispute to continually file new petitions seeking to reverse that outcome lest he or she be deemed to have demonstrated a lack of ‘effort[] to obtain legal and physical custody of the child’ and thereby risk a potential termination of parental rights under Code § 63.2-1205.” 

Similarly, the Court of Appeals agreed with Mulvey that the seventh of the delineated factors of Code § 63.2-1205, the “duration and suitability of the child’s present custodial environment” is a less significant factor where a court finds one biological parent is a more suitable custodian than the other biological parent, as opposed to a foster family.  In that situation, there is no implication of unfitness of the non-custodial biological parent, stating “[t]o hold otherwise would raise the specter of parental unfitness in every case in which one biological parent is granted custody of the other biological parent.  That has never been the case and certainly cannot be squared with a proper respect for the non-custodial parent’s constitutionally protected parental rights.” 

Finally, the Court of Appeals highlighted that the specified factors of Code § 63.2-1205 are neither exclusive nor exhaustive, but are overlapping and provide a baseline from which the trial court should begin its inquiry but not the endpoint.  This is because the statute requires consideration of “all relevant factors” and not simply those specified. 

Civil Rights Attorney Tom Roberts, principal of Thomas H. Roberts & Associates, PC, who represented Mulvey on the appeal, stated that his confidence that the Court of Appeals would protect this most basic civil rights of a parent was not mislaid. He stated that although this unpublished opinion is not binding precedent, it may be cited and considered for its persuasive value, and further provided an excellent summary of the significant civil rights law in this area, and provided a needed lens for distinguishing cases involving proposed step-parent adoptions from those involving adoption by legal strangers. 

Great Overview of Parental Rights - Relationship Between Parent and Child

The most natural of relationships, the relationship between parent and child has long been granted special solicitude by American courts. The United States Supreme Court has recognized that “[t]he rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and [are] (r)ights far more precious . . . than property rights[.]” Stanley v. Illinois, 405 U.S. 645, 651 (1972) (ellipsis in original) (internal quotation marks and citations omitted). As a result, a mother’s “‘interest . . . in the care, custody, and control of [her] children . . . is perhaps the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.” Bedell v. Price, 70 Va. App. 497, 504-05 (2019) (second ellipsis in original) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion)); see also Code § 1-240.1. This fundamental liberty interest, grounded in the Due Process Clause of the Fourteenth Amendment, dictates “that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Because the right at issue is fundamental, “state interference with that right must be justified by a compelling state interest.” Williams v. Williams, 24 Va. App. 778, 780 (1997), aff’d as modified, 256 Va. 19 (1998).

Circumstances do arise where the state’s interest in a child’s welfare permit a court to intrude into the parent-child relationship. For example, courts frequently are called upon to resolve custody and visitation disputes between parents. Because “[c]ustody and visitation disputes between two fit parents [necessarily] involve one parent’s fundamental right pitted against the other parent’s fundamental right[,]” Yopp v. Hodges, 43 Va. App. 427, 438 (2004) (quoting Griffin v. Griffin, 41 Va. App. 77, 83 (2003)), courts may act because a child cannot reside in limbo and final decision-making authority regarding the care of a minor must be vested with someone.

Less frequently, a state and its courts are called upon to intervene when the parent-child relationship is so toxic that termination of the relationship is necessary to protect the child. Such “circumstances are rare,” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 320 (2013) (quoting Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 280 (1986)), with termination of the relationship being “a grave, drastic, and irreversible action[,]” Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34-35 (2007) (quoting Lowe, 231 Va. at 280). After a termination, “the parent is divested of all legal relations to the child, and the parent has no legal right to even communicate or visit th[e] child[,]” id. at 34, leaving “the parent . . . a legal stranger to the child[,]” id. at 35 (internal quotation marks omitted). As a result, any party seeking to have the state terminate a parent-child relationship is faced with a heavy burden. 

A party, whether an individual or the state, seeking to terminate the relationship between a parent and child must make several showings by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). As a threshold matter, the party seeking termination must establish that termination serves the best interests of the child; however, “the Constitution requires more than a showing of the best interests of the child to terminate parental rights.” Copeland, 282 Va. at 198. To survive constitutional scrutiny, termination also requires clear and convincing evidence of parental unfitness, Quilloin v. Walcott, 434 U.S. 246, 255 (1978), and that continuing the parent-child relationship constitutes a “detriment to the child[,]” Copeland, 282 Va. at 183; see also Frye v. Spotte, 4 Va. App. 530, 532 (1987).

Virginia's Application of These Principles - Virginia's Statute - Va. Code § 63.2-1215

An order of adoption “severs the parent-child relationship between” a parent and the child. Bedell [v. Price], 70 Va. App. 497, 506 n.6 (2019). In cases involving adoption by a stepparent, the preexisting parental rights and obligations of anyone other than the spouse of the stepparent are automatically terminated by the final order of adoption. See Code § 63.2-1215.3

Recognizing the special solicitude owed the parent-child relationship, Code § 63.2-1202 provides that “[n]o petition for adoption shall be granted, except as hereinafter provided in this section, unless written consent [of the birth parents] to the proposed adoption is filed with the petition.” Nevertheless, an adoption may be granted over the objection of a birth parent when the trial court finds “after consideration of the evidence” that the objecting parent’s consent is being withheld contrary to the best interests of the child “as set forth in § 63.2-1205.” Code § 63.2-1203. Pursuant to Code § 63.2-1205, the trial court,

[i]n determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, . . . shall consider all relevant factors, including the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people; the birth parent(s)’ ability to care for the child; the age of the child; the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child.

(Emphasis added). With its command that a trial court consider “all relevant factors” and its list of often overlapping factors requiring a trial court to focus both on the child and the parent, Code § 63.2-1205’s overriding purpose is to ensure that an adoption over the objection of a biological parent serves both the best interests of the child and respects the constitutional rights of the parent.

The materials are prepared for information purposes only.  The materials are not legal or medical advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.  


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