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Abstract

A set of “bad facts” ultimately led to undesirable legal precedent and unintended consequences with respect to the “power to render” adoptions in Virginia. In 2019, Baby Doe was left orphaned in Afghanistan after her parents were killed as a result of military operations in the country. After Baby Doe was taken to the U.S. Bagram Air Force Base for treatment, Joshua Mast (J.M.)—a member of the Marine Corps Judge Advocate—attempted to obtain custody of Baby Doe out of fear for the adequacy of medical care if she were to remain in Afghanistan. J.M. and his wife petitioned the Fluvanna Circuit Court to adopt Baby Doe. The court granted the Masts’ petition for an Interlocutory Order of Adoption and eventually granted the Masts’ petition for adoption of Baby Doe.

Subsequently, a legal dispute arose between the Masts and Baby Doe’s extended family for custody of the child. Baby Doe’s extended family initiated a collateral attack on the circuit court’s final order of adoption, which occurred over a year after the court granted the Masts’ adoption of Baby Doe. The Virginia Court of Appeals held that the circuit court lacked the power to render both adoption orders and, as a result, such orders were void. The court reasoned that the Masts’ adoption did not fit within one of the five traditional categories of adoption provided in the Code of Virginia: (i) agency, (ii) parental placement, (iii) stepparent, (iv) close relative, and (v) adult adoptions. Because the Masts’ adoption did not fit within any of these categories, the circuit court lacked the power to render the adoption.

This Note argues that the court of appeals should have considered the sixth or “default” category of adoption that has been utilized by trial and appellate courts in Virginia for decades, namely, guardian/custodian adoptions. The court of appeals’ holding that the trial court lacked the power to render the adoption due to the adoption being “non-categorized,” without considering this category of adoptions, will lead to undesirable consequences. If Baby Doe’s extended relatives could collaterally attack a final order of adoption over a year after the circuit court finalized the adoption, any prior adoption granted by a Virginia court outside the five statutory categories could be subject to collateral attack by the birth parent. The court’s holding raises the likelihood that prior final orders of adoption will be set aside, thus leading to devastating consequences for adoptive parents and adoptive children.

In response, Virginia lawyers representing adoption clients should argue in court that when the prospective adoption does not fit one of the five statutory categories of adoption cited by A.A., the circuit court still has the “power to render” the adoption under the sixth or default category of adoption. Additionally, the Virginia General Assembly should address the issue created by the court’s holding in A.A. by amending the Virginia Code and creating a new category of adoption entitled guardian/custodian adoption, the provisions of which would align with close relative adoptions. This legislative clarification would further the public policy to encourage adoptions and implement finality to adoption orders in Virginia courts. Ultimately, such a correction would protect adoptive parents from collateral attacks that potentially divest them of custody of their adopive child that occur after that child has been in the parents’ care for a significant amount of time, in some instances, for years.

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