A statute that provides a final order of adoption cannot be appealed after six months is the “outer boundary” for bringing a challenge based on an exception to Rule 1:1’s 21-day limit in which to challenge a final order.
As a result, the circuit court lacked authority to rule on a motion to vacate the final adoption order that was filed two months after the order was entered because none of Rule 1:1’s exceptions applied.
The Cooks are the child’s maternal grandparents. The Jensens are the child’s paternal grandmother and her husband, who is not the child’s biological grandfather. The child lived with his biological parents and an older half-sister. After the child’s mother died and the father was incarcerated for multiple felony charges, the child resided with the Jensens and the half-sister lived with the Cooks.
The Jensens were awarded sole legal and physical custody of the child. The Cooks were awarded visitation. A visitation dispute arose. The Cooks filed a motion in the JDR court. The Jensens filed an adoption petition in the circuit court. Notice was not provided to either the Cooks or the JDR court.
The next day, the Jensens filed a copy of the father’s consent to the adoption, which acknowledged that the adoption would end his parental rights. The DDS performed an investigation and recommended that the Jensens’ petition be approved.
The circuit court entered a final adoption order on Aug. 22, 2017. The Cooks learned of the order a few days later. Under Rule 1:1, the circuit court would have lost jurisdiction on Sept. 12, 2017, 21 days after the Aug. 22 order was entered.
The Cooks took no action until Nov. 9, 2017, when they filed a motion to vacate the adoption order and intervene in the matter. The Jensens asserted the Cooks lacked standing. A hearing was held on Jan 26, 2018, but no court reporter was present. On April 18, 2018, the circuit court entered two orders. One amended the adoption order to correct a statutory citation. The other ruled that neither the Cooks nor the child’s guardian ad litem had standing to challenge the adoption order. These parties filed objections but did not note an appeal.
More than a year after entry of the initial adoption order, the Cooks petitioned to vacate the April 18, 2018, orders. The court denied the petition on May 28, 2019. The Cooks appealed.
“Rule 1:1 divests a circuit court of jurisdiction over a case twenty-one days after the circuit court enters the final order. ‘Although the finality imposed by Rule 1:1 generally governs, there are circumstances in which a trial court may exercise limited jurisdiction beyond the twenty-one-day period.’ …
“For example, the bar of Rule 1:1 does not prevent a circuit court from revisiting an order after twenty-one days to correct a clerical error. … Additionally, a circuit court may revisit a void judgment at any time, regardless of whether the prior judgment is void by reason of the circuit court lacking subject matter jurisdiction, the circuit court lacking jurisdiction over one of the parties, or the judgment having been procured by fraud.”
Code § 63.2-1216 provides that six months after a final adoption order is entered and no appeal is taken, the order cannot be challenged. “Although the six-month period referenced in Code § 63.2-1216 is longer than Rule 1:1’s twenty-one-day period, it does not represent an extension of a circuit court’s jurisdiction in adoption cases.” Instead, “‘Code § 63.2-1216 sets an outer boundary within which a party may bring a challenge based on … an exception to Rule 1:1’s general rule.
“‘In the six months after the entry of an adoption order, a person with standing may challenge an adoption order more than twenty-one days after its entry for any of the grounds that would permit a challenge under Rule 1:1. After the six-month period has run, however, Code § 63.2-1216 prevents a person from challenging the adoption order even if one of the exceptions to Rule 1:1 is present. This remains true even if the exception is based upon ‘fraud, duress, failure to give any required notice, failure of any procedural requirement, or lack of jurisdiction over any person.’ …
“Although the Cooks’ challenge was brought within Code § 63.2-1216’s six-month period, that is only part of the equation. For the circuit court to have had authority to rule on the Cooks’ challenge, it had to be predicated on one of the recognized exceptions to Rule 1:1. …
“The limited picture of the relevant hearing that the record does provide does not suggest that the Cooks asserted a viable basis for evading the bar of Rule 1:1 in their initial challenge. The circuit court’s January 26, 2018 order, which was endorsed without objection by the Cooks, lists three issues as being before the circuit court. None of them facially appears to constitute an exception to Rule 1:1.
“Furthermore, when asked at oral argument in this Court to identify an argument advanced in the initial challenge that constituted an exception to Rule 1:1’s finality, the Cooks largely conceded that they had not raised one, noting that the thrust of their initial challenge was that the circuit court had ‘misapplied’ the adoption statutes. Such an argument goes to whether the circuit court committed error in granting the adoption in August 2017, not whether it lacked jurisdiction to act at that time. …
“Accordingly, the circuit court was without authority to entertain that challenge, rendering the circuit court’s April 18, 2018 order dismissing the Cooks’ petition for lack of standing a nullity.”
Cook, et al. v. Jensen, et al., Record No. 1047-19-4, Feb. 4, 2020. CAV (Russell) from Stafford Cir. Ct. (Willis). Joseph T. Brown for appellants, Michael J. George for appellee. VLW 020-7-023, 16 pp. Unpublished.