The Supreme Court of Virginia issued one published opinion today in which it interpreted the “just cause” provision of the statute that permits adoption without a birth parent’s consent under certain circumstances.
J.H. was born in 2014 to Lindsey Nicole Perkins and Justin Howington. After the parents separated, allegations of drug use in J.H.’s presence led the Tazewell County JDR court to enter a preliminary child protective order against Perkins in March 2020. By July 2020, after Perkins failed to comply with court-ordered drug screens, the JDR court revoked all contact and visitation between Perkins and J.H. Perkins did not move to amend that no-contact order until October 2020, and even then, she failed to file a required bill of particulars and was largely unresponsive to drug screening requests until early 2021. In April 2021, the stepmother and father filed their adoption petition, by which point Perkins had not visited or contacted J.H. for over nine months.
Under Code § 63.2-1202(H), a birth parent’s consent to adoption is not required if that parent, without just cause, has not contacted the child for the six months immediately before the adoption petition was filed. So, the central question was whether Perkins had “just cause” for the lack of contact during the six-month statutory period, given that a court order prohibited it. Perkins argued that she had just cause for her lack of contact with J.H. due to the no-contact order, and while that order was in place she took affirmative legal steps to have it lifted. The trial court disagreed that this was “good cause,” since the no-contact order was put in place due to Perkins’ own bad acts. The Court of Appeals affirmed the trial court but did so by adopting what amounted to a per se rule: that a no-contact order arising from a parent’s own misconduct can never constitute just cause.
The Supreme Court agreed with the result but corrected the Court of Appeals’ reasoning. The Supreme Court distinguished the two elements of Code § 63.2-1202(H). The first—whether a parent visited or contacted the child in the six months before the petition—is a straightforward objective rule, and the facts here were undisputed. The second—whether the absence of contact was “without just cause”—is a legal standard requiring consideration of all relevant facts and circumstances, and the trial court retains discretion in applying it. The Supreme Court held that the “just cause” inquiry is not amenable to bright-line rules, and the Court of Appeals erred in attempting to create one.
Regardless, the Supreme Court found that the trial court’s conclusion was amply supported. Perkins’ own drug use and neglect caused the no-contact order in the first place. She did not promptly seek to modify it, and when she did, she did not pursue relief diligently: she never filed the ordered bill of particulars and continued to miss or fail drug screens. The Supreme Court found that a reasonable jurist could conclude the lack of contact was unjustified under these circumstances, so the trial court did not abuse its discretion.
A Virginia Appellate Law Blog 