An interesting, but unsurprising, decision in Todd v. Copeland (Va. Ct. App. Mar. 9, 2010):
Before 1995, Virginia’s adoption statutes, as interpreted by Virginia’s appellate courts, passed constitutional muster despite the absence of an explicit standard because the courts read into the statute the requirement that “[a]n adoption over objection by a natural parent should not be granted except upon clear and convincing evidence that the adoption would be in a child’s best interest and that it would be detrimental to continue the natural parent-child relationship.” …
Having … determined that the detriment to the child standard is a constitutional, not statutory, requirement, we reach the underlying issue in this case: Whether the General Assembly [in removing the clearest textual hook for that requirement, in the 2006 amendments to the statute] intended trial courts to abandon the detriment to the child standard when applying Code §§ 63.2-1203 and -1205. We conclude that it did not.In making this determination, we are guided by several principles of statutory construction. We initially note that “a presumption normally arises that a change in law was intended when new provisions are added to prior legislation by an amendatory act” or “existing rights” are “withdraw[n] … [from an] act.” We also, however, have a duty to construe statutes subject to a constitutional challenge in a manner that “avoid[s] any conflict with the Constitution.”
Accordingly, where, as here we are faced with the construction of a statute involving constitutional implications, “[w]e attribute to the legislature the intent to enact laws that conform to the [C]onstitution in all respects.” Thus, we “[i]ndulg[e] every possible presumption in favor of the validity of the statute now under consideration,” and, “whenever possible, … interpret statutory language in a matter that avoids a constitutional question.” A statute cannot “be declared to be unconstitutional unless it is plainly and clearly so. If any reasonable doubt exists as to its constitutionality, the act will be upheld. To doubt is to affirm.”
Thus, while we recognize that the General Assembly removed the detriment to the child language from Code § 63.2-1205 in 2006, that recognition does not, however, lead us to hold that the General Assembly intended that courts no longer make a detriment to the child determination. Because the detriment to the child standard is necessary to protect the due process rights of nonconsenting biological parents, a conclusion that the General Assembly intended to abandon that standard would lead us to deduce that Code §§ 63.2-1203 and -1205 facially violate the Fourteenth Amendment.
Given that the standard is constitutionally necessary, we are confident that the General Assembly had no intention of rendering Code §§ 63.2-1203 and -1205 unconstitutional when it removed the “detriment to the child” language. Instead, we conclude that the General Assembly removed this phrase because it was aware of our prior decisions and the constitutional import of the detriment to the child determination, and believed that including the detriment to the child language — which referenced a long-standing constitutional standard that existed independent of the statute itself — was mere surplusage.Despite the deletion of this language from the Code, we conclude that the Fourteenth Amendment of the United States Constitution still requires that judges consider whether a continued relationship with his or her biological parent would be detrimental to a child’s well-being. Because this requirement continues to exist, a trial court must make that finding before entering an adoption order over the objection of a nonconsenting parent. Here, the trial court did not make the detriment to the child determination; thus, its application of Code §§ 63.2-1203 and -1205 in this case violated Todd’s Fourteenth Amendment right to due process.
Brett Turner says:
The quotation above is from the opinion of the Virginia Court of Appeals, not the Virginia Circuit Court. E.g., the parenthetical in the lead-in cite should be (Va. Ct. App. Mar. 9, 2010).
[D'oh! Fixed, thanks. -EV]
March 11, 2010, 1:02 pmADF Alliance Alert » Virginia Court: Adoption Over Parent’s Objection Requires Showing That Continued Parent-Child Relationship Would Be Detrimental to the Child says:
[...] At the Volokh Conspiracy, Eugene Volokh reports on this ruling: Todd v. Copeland, No. 0823-09-3 (Va. Cir. Ct. Mar. 9, 2010) [...]
March 11, 2010, 1:24 pmSoronel Haetir says:
I wouldn’t be so confident as this court is that the assembly wasn’t trying to make an unconstitutional change in the law.
March 11, 2010, 1:33 pmdcperson says:
I second Soronel’s comment…I’m not ever so confident about the va general assembly. that said, I guess it’s the better alternative to saying that they’re dumb and didn’t realize it was a constitutional requirement that they couldn’t eliminate.
March 11, 2010, 1:56 pmsubpatre says:
Reading the “unsurprising” decision, one could never be aware that the legislature changed over-parental-objection adoption law specifically to circumvent the Constitutional protection of parenthood.
When federal policy started rewarding states for adoptions —generously rewarding them for each adoption— many states responded. With adoption, not only are foster-care payments terminated, but then there is a ‘reward’ from the federal treasury. The money goes to the states’ social services administration, not to the adoptees or adopted.
Prior to the change, parental rights were left intact while children were in fosterage, and the state (social workers) assisted parents with the view of regaining custody. After the incentive program, even most residents wouldn’t be aware that parental rights were routinely terminated and re-assigned to take advantage of the federal money. Nor should it be surprising that states ceased assisting poor prospect non-custodial parents, as they did with Todd.
Few people know how easy or difficult a non-custodial parent finds their circumstance; or how easy or difficult the custodial foster parent can make it. The record here shows neither. But Todd’s case is typical; and there are no perfect answers. There are best answers however, and this was one.
Here is a case crafted so the court can say “we never meant that!” when in fact “that” is exactly what was intended. Hoover and Penrod have built an impressive record in Virginia’s domestic law, probably the best in the state right now; and recently they’ve been found also doing the right thing. Kudos.
March 11, 2010, 2:15 pmNunzio says:
What part of the 14th Amendment does it violate, the privileges or immunities clause, or the [substantive] due process clause?
I know the Supreme Court’s answer, but this must drive Gura mad.
March 11, 2010, 2:19 pmAnthony says:
I appreciate the chopped logic — the requirement to interpret laws in a way that makes them constitutional, where possible, makes it an obvious conclusion that the intent of this legislation wasn’t what (to an outside observer) it obviously seems to be.
March 11, 2010, 2:52 pmRoger says:
So next time the trial judge will just add a sentence to his opinion, and the parent’s rights will have evaporated.
March 11, 2010, 3:39 pmJohn Herbison says:
This is a bit speculative, but from a cursory reading of the linked opinion, it is at least plausible that the General Assembly in 2006 did intend to abolish the “detriment to the child” standard–the statutory language which had previously required that finding was a codification in 1995 of a judicial gloss on a statute which did not contain that language. The Court of Appeals, however, may well have invoked the presumption of constitutionality in an assertion of judicial supremacy vis-a-vis the legislature–in effect, telling the General Assembly to “go [Cheney] yourself”.
Adoption is primarily a creature of statute. The appellate court, however, here seems to regard substantive and procedural due process requirements as being self-executing. (Not that there’s necessarily anything wrong with that)
March 11, 2010, 3:57 pmSoronel Haetir says:
Adoption may be statutory, but that only lays out a legal framework for the adopting parents to follow. It doesn’t say anything at all about what rights the existing parents have.
March 11, 2010, 10:25 pmreadery says:
That’s not the right standard. The state has no right to grant a non-parent rights to a child over the objections of a parent absent clear and convincing evidence the parent is unfit. It’s not enough that the state consider it not in the child’s best interest or detrimental to the child.
If that were the standard, the rich could perfectly legally simply walk into the houses of the poor, seize their children, and adopt them away without further ado. After all, being poor is not only not in a child’s best interest, it is unquestionably detrimental to children. No-one could dispute that. If such a showing were all that were required, no parent of humble means could be safe or secure in their parenthood.
March 12, 2010, 12:15 amsubpatre says:
Detrimental — “You keep using that word. I do not think it means what you think it means.”
You have it reversed, detrimental is a (much) farther standard that unfit parenting. It is “Causing damage or harm; injurious.” Not possible, potential, or probable harm; detrimental is concrete, demonstrable harm or damage, actually causing injury.
Further, detrimental is not a standard that money alone can solve in this society.
Unfit parents may not cause any injury. They could be unfit without assistance, they may just need help with custody, guidance, fosterage, counseling, finances, or POA. Because it is variable, fitness is a terrible standard for permanent termination of parental rights.
The “and’ means both conditions must be fully satisfied before parental rights can be terminated. It is a good standard if actually practiced.
March 12, 2010, 1:47 amFub says:
And no child of parents of humble means would be safe or secure in its childhood.
Ob meme ref: Think of the children!
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