The Court of Appeals Defines “Just Cause” in the Adoption Context
Perkins v. Howington, Record No. 1239-23-3 (Va. Ct. App. Sept. 10, 2024)
Facts. Lindsey Perkins (mother) and Justin Howington (father) had a child of whom they shared joint legal and physical custody. On February 14, 2020, Justin married Rebecca Howington (stepmother). In March 2020, the Juvenile & Domestic Relations District Court (JDRDC) granted father temporary legal and physical custody and entered a preliminary child protective order against mother, limiting her to supervised visitation and ordering her to submit to random drug screenings. Two months later, in May 2020, the JDRDC adjudicated the child abused and neglected due to mother’s substance abuse and awarded father permanent legal and physical custody. After a June 2020 hearing, the court entered a child protective order against mother, establishing a supervised visitation schedule and mandating enrollment with Clinch Valley Community Action (CVCA) for random drug screening.
Over the next several months, mother had little contact with the child. She failed to comply with the drug screenings, and a CVCA representative told the JDRDC that after nearly four months and several attempts, they were unable to contact mother to perform the screenings. It was only after speaking to mother’s probation officer that CVCA was able to contact her.
In April 2021, father and stepmother petitioned to adopt the child in circuit court, arguing that, under Code § 63.2-1202(H), mother’s consent was not required for the adoption due to her lack of contact with the child for six months prior to the petition without just cause. Over the next two years, mother continued to have little contact with child, and by the time the adoption petition was finally heard by the circuit court in June 2023, she had not seen the child in over a year.
At the hearing, mother argued that her lack of contact with the child was due to circumstances outside her control, including contracting COVID and her attorney’s obligations in the General Assembly. But the circuit court found that the lack of contact was of the mother’s own creation. Though her probation record was not entered into evidence, the court referenced it several times during its ruling when discussing CVCA’s inability to reach her for over four months. The circuit court concluded that adoption was in the best interest of the child. The mother appealed.
Issues. (1) Whether there was just cause for mother’s failure to contact the child. (2) Whether the circuit court erred in referencing probationary records that were not part of the record.
Holdings. (1) No. To constitute, “just cause,” a parent’s failure to visit or communicate must be due to factors beyond his or her control. (2) No. It is clear from the context of the oral ruling and written order that the circuit court misspoke and did not impermissibly rely on the mother’s probation record in its judgment.
Notes. (1) Generally, both birth parents must give consent to an adoption. However, Code § 63.2-1202(H) states that a birth parent’s consent is not necessary if the prospective adoptive parent can prove by clear and convincing evidence that the birth parent “without just cause, has neither visited nor contacted the child for a period of six months prior to the filing of the petition for adoption.” Though Virginia courts have yet to define “just cause,” the Court of Appeals looked to other jurisdictions with similar statutory schemes to define the term. Here, the mother’s conduct precipitated the protective orders that limited her contact with the child, and her failure to attend drug screenings prevented supervised visits. Further, after finding that mother’s consent for the adoption was not required, the circuit court then reviewed the totality of the facts to determine that adoption was in the best interest of the child.
(2) The Court of Appeals finds that although the circuit court referenced the mother’s failure to stay in contact with “probation,” during its oral ruling, it misspoke and was instead referring to CVCA’s inability to get in contact with her for four months. Taking the court’s oral ruling and final written order in context, the court did not consider the mother’s probation record in its judgment.