A.A. v. J.M.

81 Va. App. 213

903 S.E.2d 513

A.A., et al.

v.J.M., et al.

J.M., et al.

v.A.A., et al.

J.M., et al.

v.A.A., et al.

J.M., et al.

v.A.A., et al.

Record No. 0876-23-2, Record No. 0953-23-2, Record No. 1855-22-2, Record No. 0940-23-2

Court of Appeals of Virginia, Richmond.

July 16, 2024

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY, Claude V. Worrell, Judge¹ Timothy M. Snyder (Brittany Marie Jones; Charles S. Dameron; Damon Porter; Ehson Kashfipour; Blair Connelly; Zachary L. Rowen; Lewis F. Powell III, Richmond; Maya M. Eckstein, Richmond; Trevor S. Cox, Richmond; Elizabeth S. Vaughan, Leesburg; Latham & Watkins, LLP; Hunton Andrews Kurth LLP; Graham Law Firm, PPLC, on briefs), for A.A., et al.

John S. Moran; Samantha E. Freed, Charlottesville, Guardian ad litem for the minor child (Hannon E. Wright; Richard L. Mast; McGuireWoods LLP; Tremblay & Smith, PLLC; Rakness & Wright, PLC, on briefs), for J.M., et al.

Amicus Curiae: United States; Lewis S. Yelin, Attorney, Appellate Staff Civil Division (Richard C. Visek, Acting Legal Adviser; Caroline D. Krass, General Counsel; Brian M. Boynton, Principal Deputy Assistant Attorney General; Sharon Swingle, Attorney, Appellate Staff Civil Division; Jessica D. Aber, United States Attorney; Jonathan T. Lucier, Assistant U.S. Attorney; U.S. Department of Justice; U.S. Department of State; U.S. Department of Defense, on brief), for A.A., et al.

Amicus Curiae: Kids in Need of Defense (KIND) (Murad Hussain; Arnold & Porter Kaye Scholer LLP, on brief), for A.A., et al.

Amici Curiae: National Center for Youth Law; Young Center for Immigrant Children’s Rights (Rebecca R. Wolozin; Kelly Albinak Kribs, on brief), for A.A., et al.

Present: Judges Fulton, Ortiz and Lorish

OPINION BY JUDGE DANIEL E. ORTIZ

The power to adjudicate the adoption of a child and the associated termination of parental or familial relationships stems from the statutory framework enacted by the General Assembly. Well-meaning intentions and emergency circumstances are not enough to grant a court the authority or power to complete an adoption. This is especially true when a child is physically present in a foreign country—here, Afghanistan— that has not waived jurisdiction.

Code § 63.2-1216 is a broad bar against attacking a final adoption order after six months. Despite this, the circuit court found that the A.s’² challenge—brought well past six months after the final adoption order—was not barred and that the final adoption order was void because the A.s are de facto parents with parental due process rights in Virginia. But we need not reach this issue. Instead, we affirm the circuit court’s decision for a different reason—that while the circuit court had subject-matter jurisdiction over the adoption in general terms, it lacked the power to render the final adoption order, rendering it void ab initio. The court further lacked the power to render the interlocutory adoption order, making it also void ab initio; thus, we reverse the circuit court’s decision to leave the interlocutory adoption order in place. We further reverse the decision to maintain the temporary custody order, as we determine that the custody order is void ab initio because the circuit court lacked subject-matter jurisdiction to issue it. Finally, we remand the case to the circuit court to consider the A.s’ request for custody of the child.³

BACKGROUND⁴

This case comes before us with a lengthy procedural history, revolving primarily around four court orders: (1) a custody order, issued November 6, 2019; (2) an interlocutory adoption order, issued November 10, 2019; (3) a final adoption order, entered December 3, 2020; and (4) an order voiding the final adoption order, dated May 3, 2023. In November 2019, J.M. and his wife, S.M., petitioned the Fluvanna County Juvenile and Domestic Relations ("J&DR") District Court for custody of a child living in Afghanistan. Based on representations by J.M. that the child was a stateless orphan with severe medical needs and no known family, the court granted the M.s custody. Following a petition by the M.s to adopt the child, the Fluvanna Circuit Court issued an interlocutory adoption order on an emergency basis. A year later, on December 3, 2020, the circuit court issued a final order allowing the M.s to adopt the child.

On March 28, 2022, the A.s, an Afghan couple whom the Uhited States government had determined were relatives of the child,⁵ petitioned the circuit court to vacate the final adoption order and grant them custody of the child. The M.s argued that the A.s lacked standing to challenge the adoption and that Code § 63.2-1216, which prohibits challenges to a final adoption order after six months, barred their collateral attack.⁶ The A.s filed a motion for summary judgment. The court denied the plea in bar and a motion to reconsider the plea in bar filed jointly by the M.s and the guardian ad litem. On May 3, 2023, following several evidentiary hearings, the circuit court entered summary judgment in part for the A.s. The court voided the final adoption order, finding that the A.s were de facto parents of the child and "were entitled to some process that they did not receive," and thus their claim was not barred by Code § 63.2-1216. The court left in place both the interlocutory adoption order and the custody order. The court then certified its entire May 3 order, including the most pertinent question of whether Code § 63.2-1216 and a lack of standing bar the A.s’ claim.

[1, 2] Because this appeal comes before us following both the denial of a plea in bar and the partial grant of summary judgment—each of which requires us to review the facts through a particular lens⁷—we recite below the uncontested facts while also highlighting the material disputes between the parties.

In September 2019, the United States military found a severely wounded child, about six to eight weeks old, on a battlefield in Afghanistan. The A.s claim that the child’s parents were farmers killed accidentally in a U.S. airstrike, while the M.s assert that the child’s biological parents were non-Afghan terrorists and the child’s mother was killed when she attempted to detonate a suicide bomb.

Because of the child’s serious injuries, United States servicemembers brought her to the Department of Defense’s ("DOD") Bagram Air Base for medical help. Military leaders from the U,S. Forces-Afghanistan ("USFOR-A")⁸ coordinated with the International Committee for the Red Cross ("ICRC") and Afghan government officials from the Afghan Ministry of Labor and Social Affairs ("Ministry"),⁹ in their search for the child’s relatives.

During this time, J.M. was deployed in Afghanistan as a Marine Corps Judge Advocate. He met the child and became concerned for her medical needs and placement. On October 23, 2019, J.M. attended a meeting with officials from the United States, Afghanistan, and the ICRC to discuss the family reunification search. The meeting minutes state that ICRC was "in contact with individuals claiming to be relatives of the infant. The Ministry and ICRC need to conduct a proper assessment to determine whether these are rightful claims."

J.M. began arrangements for the child to travel to the United States because he doubted that the medical care she needed could be provided in Afghanistan. The M.s petitioned the J&DR court for custody of the child. J.M. represented that the Afghan government did not want custody of the child or jurisdiction over the matter and that it did not object to United States officials assuming jurisdiction and custody. The court believed a waiver of jurisdiction would be provided in "a matter of days." The Afghan government, however, never waived its jurisdiction. J.M. also testified that Afghan representatives stated that they did not have the capacity to care for the child. The J&DR court issued the custody order on November 6, 2019, granting the M.s custody of the child.

Four days later, the circuit court issued the interlocutory adoption order based on the M.s’ petition for adoption. The court granted the order on an emergency basis, relying on the M.s’ statements that if the child was J.M.’s dependent, she could be evacuated from Afghanistan and receive medical care at the University of Virginia Health Children’s Hospital ("UVA"). The interlocutory adoption order stated that the child was stateless, the search for relatives was unsuccessful, and the child was in urgent need of medical treatment. Although the child remained with the United States in Afghanistan on Bagram Air Base, the order stated that she was in the "physical care and custody" of the M.s in Virginia. Notwithstanding the emergency order, the child was not transported to the United States.

On December 31, 2019, the Ministry announced that it had identified the child’s relatives, who had been vetted consistent with Afghan law. The Ministry Identified M.I.¹⁰ as the child’s paternal uncle, and the Ministry and USFOR-A concluded that the child was an Afghan national. After a month, the Ministry requested that the United States transfer the child to the Afghan government for her to be united with her government-identified family, noting that it had granted custody to M.I. under Afghan law. The United States determined the Ministry had properly verified the child’s family. Based on this, and Afghanistan’s jurisdiction over the child, the United States chose to transfer the child to the Afghan government who would proceed to place the child in M.I.’s custody.

On February 26, 2020, after learning that the United States was planning to transfer the child, the M.s sought a temporary restraining order ("TRO") in the United States District Court for the Western District of Virginia to prevent the transfer. In this proceeding, the M.s relied on the custody order and did not disclose the interlocutory adoption order. The M.s’ counsel represented that the M.s did not intend to adopt the child. The' district court denied the M.s’ request for a TRO. The district...