Birth Parents’ Consent Required for Adoption

A Roanoke County Circuit Court says a notarized letter from a child’s birth mother, who is incarcerated until late 2014, is no substitute for the statutory requirement that a JDR court make findings that both birth parents consent to adoption of their daughter, who went to live with the petitioning couple when the mother went to prison for credit card and prescription fraud.

In this case, the statutes governing parental placement adoptions apply. Neither birth parent has consented to the placement in accordance with Va. Code § 63.2-1230, which requires that consent in a parental placement adoption be executed before a juvenile and domestic relations district court. Letters written by the birth mother, even if notarized, cannot satisfy this requirement. The consent hearing before the district court is more than a mere formality: the judge is required to make several critical findings as to consent and the suitability of the adoptive home under Code § 63.2-1232 before accepting parental consent. Since a consent hearing has not yet been conducted in this case, the petition is not properly before this court.

Even if the petition were properly before the court, it is deficient in several respects. Before the court can grant this petition, it  must certify compliance with the present case. The first requirement under the statute is a determination by the district court that the birth parents’ consent is informed and not coerced. Since the birth parents have not given their consent, this requirement has not been met. Moreover, the JDR court has not made any of the required determinations under Code § 63.2-1232, nor, apparently, did it have the factual basis to do so.

The file is not clear how, or why, the home study in the JDR court was ordered. Here, the home study conducted by the Department of Social Services disclosed that petitioners were generally suitable as adoptive parents. However, the agency was unable to recommend the petitioners for placement due to a criminal assault and battery charge pending against husband at the time of the home study.  Although DSS indicated in a letter that the charges against husband had been dismissed, the couple had moved in with her mother, who had passed a background check and the home was deemed suitable, DSS nevertheless did not recommend the adoptive placement.

Because the petition does not comply with Code § 63.2-1237, the court cannot grant the petition at this time. However, petitioners are granted leave to amend and the court will retain jurisdiction over the matter.

No final order has been entered in this matter, but in the event this opinion is treated as an appealable final order, for the purposes of appellate review, the court finds, in the alternative, that petitioners have not shown that parental consent is withheld contrary to the best interests of the child.

Although Code § 63.2-1206 was amended in 2006 to require consideration of the child’s best interests in place of the inquiry whether it would detrimental for the birth parents to continue a relationship with the child, the General Assembly did not displace the requirement of “clear and convincing” evidence found in case law. Thus, the court cannot grant the petition absent clear and convincing evidence that consent is withheld contrary to the best interests of the child. This standard is more demanding in the context of adoption than in other situations where the phrase is used, such as custody disputes.

As the child’s guardian ad litem observed, the determination of whether consent is withheld contrary to the child’s best interests is a “close call” in this case. Petitioners have given the child a stable and loving home, to which she has adjusted well. On the other hand, the court has insufficient information regarding petitioners’ current living situation. Also, the court notes petitioners never sought to adopt the birth mother’s older daughter. Thus, it was reasonable for the birth parents to place the younger daughter in petitioners’ custody for an appropriate period, with the expectation that the birth parents would remain her legal parents.

The court finds petitioners have not satisfied the high standard demanded of prospective adoptive parents seeking to overcome the absence of necessary parental consent.

In re Emma Kay Pruett (Dorsey) No. CA1300006-00, Aug. 15, 2013; Roanoke County Cir.Ct.; Ellen S. Weinman, Thomas W. Roe Jr., Diana M. Perkinson, Malcolm Doubles for the parties. VLW 013-8-091, 8 pp.