Legal Commentary

Adoption Over Parent?s Objection Requires Showing That Continued Parent-Child Relationship Would Be Detrimental to the Child

By Eugene Volokh

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.

Full post as published by The Volokh Conspiracy on March 11, 2010 (boomark / email).