Parent and child: Guardian ad litem was not required in close relative adoption

Where the circuit court heard evidence from mother regarding the medical needs and current course of treatment of a minor child with autism and a communication disorder, as well as father’s testimony regarding the efforts he had made to educate himself on the child’s condition, it was well within the circuit court’s discretion to not appoint a guardian ad litem for the child in the close relative adoption proceeding.

Background                                                       

Joshua Johnson appeals the circuit court’s order granting Jacob Lowe’s petition to adopt father’s biological child. Father argues that the circuit court erred in finding that he withheld his consent to the adoption contrary to the child’s best interest. Father also contends the circuit court erred in denying his motion to appoint a guardian ad litem, or GAL, for the child.

Consent

The circuit court may grant an adoption without a parent’s consent only if it determines that “the valid consent . . . is withheld contrary to the best interests of the child as set forth in [Code] § 63.2-1205[.]” The record before this court on appeal supports a finding that father withheld his consent for adoption contrary to the best interest of the child.

Although father petitioned the Juvenile and Domestic Relations court to adjudicate his paternity and attempted to add his name to G.G.’s birth certificate, he never filed for custody or visitation. Despite knowing that he was potentially G.G.’s father prior to G.G.’s birth in June 2020, he did not seek a paternity test until March 2023.

In contrast, mother showed an effort to maintain custody by consenting to stepfather’s petition for adoption. Mother currently has full custody and can care for G.G. full-time, as she is not employed outside the home. Mother and stepfather are financially and mentally capable of caring for G.G.

Father had only partially completed a court-ordered rehabilitation program, and father could only “visit with” the child during weekly family support meetings and weekend “passes.” Father alleges that mother never contacted him about G.G., and he never petitioned for custody because he was incarcerated.

But the record provides evidence that mother informed father that he was potentially a father while she was pregnant—prior to his incarceration. Additionally, father’s mother told father that she “believed” him to be the father and sent him a photo of G.G., while father was incarcerated.

G.G. has autism and a communication disorder and requires specialized care. Mother and stepfather have been caring for G.G. “since [his] birth” and have enrolled him in therapy to ensure that his needs are met. Father testified that he “began the process of scheduling” therapy classes to learn to “better parent” a child with autism, but the record does not reflect that he had access to resources needed to care for a child with special needs.

At the time of the circuit court hearing, G.G. was three years old. Father does not have any previous relationship with G.G., while mother has exercised full physical and legal custody since G.G.’s birth. Mother and stepfather have been caring for G.G. since birth. Lastly, the record shows that a change of physical custody would be detrimental to G.G. because he “does not deal well with changes in his life or routine.” Finding no abuse of discretion in granting the adoption petition, this court affirms the circuit court’s judgment.

GAL

“In any case involving adoption of a child by a stepparent or other person with a legitimate interest pursuant to this section, the court may waive appointment of a guardian ad litem for the child.” Father contends that it was inappropriate for the circuit court to deny a GAL because the adoption was “sharply contested, and the interests of the child [were] not adequately represented.”

Other than this blanket statement, father does not explain, and the record does not show, how the child’s interests were not adequately represented. Instead, the record shows that the circuit court heard evidence from mother regarding the child’s medical needs and his current course of treatment, as well as father’s testimony regarding the efforts he had made to educate himself on the child’s condition. It was well within the circuit court’s discretion to waive a GAL in this case.

Affirmed.

Johnson v. Lowe, Record No. 2092-23-3, July 22, 2025. CAV (unpublished opinion) (Chaney). From the Circuit Court of Tazewell County (Patterson). (Jeffrey W. Stowers, Jr.; The Reliance Law Group, on brief), for appellant. (Dally K. Testerman; Broadwell, Gillespie & Nimmo, P.C., on brief), for appellees. VLW 025-7-194. 10 pp.