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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

With All Due Respect to Tolstoy, Unhappy Families are Not So Unique in Their Circumstances

“All happy families are alike; each unhappy family is unhappy in its own way.”  Anna Karenina, Leo Tolstoy (1878).

While I hold Tolstoy in high esteem as an author, the opening line of Anna Karenina shows undoubtedly that Tolstoy never practiced domestic relations law.  Had he done so, he would have quickly realized that the nature and causes of unhappiness in a given family, far from being unique, are altogether the result of common patterns of human behavior.  This is the case in Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith (10/20/2020).

The facts, regrettably, follow a familiar pattern of difficult family circumstances.  Lively was married to J.H, and with him had a son born in 2007.  J.H. was abusive and the couple divorced.  Lively was subsequently incarcerated in 2009 and turned over custody of the child to her parents.  When she subsequently learned that J.H. could potentially seek custody of the child and feared that he might simply abscond with the boy rather than seek legal custody, she agreed to an adoption by her parents in 2011.

Once released from prison in September 2012, Lively lived with her parents and maintains that she resumed her maternal relationship with the child.  Her mother, however, contested Lively’s assertion that she was providing a significant amount of care for the child, who frequently travelled with his grandmother to Ohio where his maternal great-grandmother and aunt lived.  Relations between Lively’s parents, which had apparently been strained by these absences, deteriorated further and the child and his grandmother moved to Ohio permanently in February 2013, returning only for occasional, brief visits.  Lively apparently did not visit the child in Ohio or have any significant interaction with him after that date; her parents divorced in 2014, with her mother apparently gaining full custody of the child.

In August 2015, Lively sought to have custody of the child transferred to her, but the Juvenile and Domestic Relations District Court found that the adoption had terminated her parental rights and, thus, she had no standing to seek custody.  There followed a nearly three-year delay while Lively “search[ed] for an attorney to represent her,” an action to set aside the adoption was filed by Lively against her parents, although her father advised the circuit court that supported Lively’s action.  Lively’s basis for asserting that the adoption was not proper was that she had not been appointed a guardian ad litem as a “person under a disability.”  Code § 8.01-9.  Her mother filed a demurrer to this action , asserting that Code § 63.2-1216 precludes a challenge to a final adoption, if no appeal is filed, six months after the entry of a final decree.

There is an exception to the Code § 63.2-1216 prohibition of challenging a final adoption based on parental consent, which is that an adoption procured in violation of the parent’s rights to due process and equal protection were violated in a way that substantively impacted the decision to consent to the adoption.  F.E. v. G.F.M., 35 Va. App. 648 (2001) (en banc).  The circuit court found that F.E. was inapplicable here, as the evidence showed that Lively clearly understood the implication of her giving consent to the adoption.  The circuit further noted that the length delay in seeking to overturn the adoption was a significant factor as well.  Accordingly, the circuit court sustained the demurrer and dismissed the complaint to set aside the adoption.

The Court of Appeals found no error in the circuit court’s finding that Lively “did not lack understanding of the nature and legal consequences of her consent and the adoption.”  The purpose of Code § 63.2-1216 is to prevent tardy challenges to adoptions which may disrupt a child’s parenting.  While a biological parent has a compelling interest in raising a child, once that right is surrendered, the state has an equally compelling interest in serving the best interests of the child.  Here, the child had been raised by his grandmother since age 2 and was 11 years old at the time the challenge to the adoption was made.  During that time, even assuming that she had an active role in the child’s upbringing following her release from custody, it was only for very brief and non-continuous periods during the five months before the grandmother took the child to live in Ohio permanently.

The opinion does not provide any detail as to how actively Lively sought for an attorney to represent her after her petition for a change of custody was dismissed.  Nonetheless, a three-year delay in finding counsel did not benefit her case, as the circuit court expressly noted that this factor weighed heavily in its consideration.  Thus, while the eventual result should not be taken as reflecting poorly on the performance of the counsel she did eventually hire, who did an admirable job of finding a non-frivolous basis for seeking to set aside the adoption, it nonetheless confirms the adage that it is always wise to ask a potential client how many other attorneys he or she has consulted on a matter.

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