What are the adoptions available in the Commonwealth?  The adoption procedure is explained in § 63.2 of the Virginia Code.  

 First there are agency placement adoptions. An agency placement adoption occurs when a licensed child-placing agency accepts custody of a child, and the parental rights of the birth parents of the child are terminated. Once the parental rights have been terminated in accordance with statute, the child may be placed with a suitable adoptive family or parent. Agency placement adoptions are still the most common in Virginia and are the easiest adoptions to pursue from both the client’s and the attorney’s perspectives.  Second is a stepparent or grandparent adoption. A stepparent adoption occurs when the birth or adoptive parent of a child marries and wishes the new spouse to become the legal parent of the child.  The third is parental placement adoptions. A parental placement adoption, also called direct placement adoption, occurs when the birth parent or parents of an infant decide to enter into an adoption plan with the adoptive parent or parents of their choice to allow the adoptive parents to raise their child. Next are adult adoptions. Adoptions of persons over the age of 18 are usually among family members, such as stepparents, aunts, or uncles, who have stood in loco parentis (this is a Latin term for a person who has been the guardian of the adult being adopted, not a person who has been driven loco by the adoptee) or had the adoptee living in their home for at least three months. The fifth type of adoption is interstate adoptions. Children born in one state may be placed with adoptive parents in another state. These interstate adoptions may be agency placements or parental placements.  Next are international adoptions. An international adoption occurs when a child born in a foreign country is placed for adoption with parents from this country. The child may be placed by an agency or a parent. The seventh type of adoption is foster care placement adoptions. A foster care placement adoption is really an agency placement adoption wherein the foster parents are given certain priority over other potential adoptive parents if they decide to pursue adoption. The final type is the special needs adoptions. Special needs adoptions are also agency placement adoptions, but they involve a category of children classified as children with “special needs.” This “special needs” designation may include children who are physically or mentally handicapped, biracial, abused, impoverished, older, HIV-positive, blind, deaf, or part of a sibling group or ethnic minority. 

NOTE: Any child between the ages of 14 and 18 has to approve the adoption.

Next, the following items must be completed.  First, for most types of adoptions, a home study must be conducted on the prospective adoptive parents by a social worker from a licensed child-placing agency. This fulfills the court’s fact-finding responsibility and is intended to prevent any unsuitable placements and to protect the child. Then, once the home study is completed, the prospective adoptive parents begin what for many is the most difficult step of their adoption process: locating and identifying a child. An agency may contact the prospective adoptive parents when the agency thinks a suitable child has been located. If the adoption is to be a parental placement adoption, an experienced social worker or attorney may be able to suggest certain avenues to pursue.   Next, termination or relinquishment of the parental rights of the birth parents is always required before an adoption of a minor is finalized. Termination may be voluntary (relinquishment), involuntary, or due to death of the birth parent. Finally, an adoption petition is filed and a Circuit Court issues an interlocutory or final order.  Remember, no adoption is finalized until a final order of adoption is entered by a circuit court of competent jurisdiction, and the necessary reporting forms are completed. A final order of adoption terminates all rights of the birth parents and divests them “of all legal rights and obligations in respect to the child.

 The final issue is what are the legal effects of adoption? Termination of parental rights severs the relationship between the parents and their biological or adopted children concerning the rights, responsibilities, and obligations of the birth parents toward the child. It also severs the responsibilities and obligations of the adopted child to the birth parents. It does not, however, necessarily sever the right of the adopted child to inherit from his or her birth parents if they die intestate. The Virginia Code states unequivocally that an adopted child has all of the rights associated with a child born into a lawful marriage and the inheritance rights of adopted children include any and all inheritance rights “by, through, or from a person.” This has been interpreted to mean that an adopted child inherits not only from the adoptive parents but also from any of their relatives, through the medium of the adoptive parents. Under Virginia law the adopted child may still inherit from his or her birth parents. The Virginia Code divests the parents whose rights have been terminated of all the legal rights and obligations toward the adopted child, but it only divests the child of all legal obligations, thus leaving open the question of rights of the adopted child in respect to his or her birth parents.  Virginia does not allow the birth parents of a child who has been subsequently adopted to inherit from that child or to demand any support from that child unless the adoption is a stepparent adoption.

Adoption of step children or grandchildren

What are the specific details of a stepparent or grandparent adoption?  The parties wishing to adopt will petition the Circuit Court in their city or county for adoption.  If, however, parental rights must be terminated because a birth parent refuses to allow the adoption or is unknown, then a termination of parental rights petition must first be approved in the Juvenile and Domestic Relations Court before petitioning the Circuit Court.  Also, the people wishing to adopt must first obtain legal custody from the appropriate Juvenile and Domestic Relations Court.  This custody procedure should be commenced along with the adoption petition since both will involve a Guardian ad litem (GAL) and home study and can save on having to repeat these steps if a lot of time elapses between them.  However, at least fifteen days must elapse from the granting of custody in the Juvenile Court until the adoption petition is filed in the Circuit Court.

 I will first discuss an adoption where parental consent is granted.  The petition filed with the Circuit Court will require the birth parents to appear in court and give their permission.  If they choose not to, then they will complete a “Consent to Adopt” affidavit, and have it sworn and notarized.  This affidavit is then submitted with the petition by the parents seeking the adoption.  Voluntary termination cannot be granted until the child is ten days old, and can be rescinded within fifteen days.  In addition, the petition for adoption must address the following items:

1. The birth parents have received counseling about the adoption and have been made aware of the alternatives to adoption.  This may be refused, in writing, by the birth parents.
2. The adopting parents must receive counseling on the adoption and have been made aware of the alternatives to adoption.
3. All identification information must be exchanged by the parties.  This includes, but is not limited to, full names, addresses, physical, mental, social and financial status, and anything else the court may need in determining the suitability of the adoption.
4. Any financial arrangements made by the parties must be disclosed.
5. There must be at least one meeting simultaneous meeting between the parties.

 The court will then appoint a Guardian ad litem (GAL) to represent the adoptive child and order a home study by the Department of Social Services (DSS).  The GAL protects the interest of the child and ensures his or her rights under the Virginia Code and any federal statutes are protected. The DSS home study involves interviews, home visits, and other investigations into the circumstances of the birth of the child, the suitability of the living conditions of the adoptive household, and the ability of the requesting adoptive parents to raise the child.  These two entities will make a report to the court with recommendations as to the suitability of the adoption proceeding.  The DSS home study can be waived if the child is already residing with the custodial parents who are petitioning for the adoption.

 If all is in order, then the Circuit Court will enter an interlocutory order which grants the adoptive parents a six month trial before a final order of adoption is entered.  However, if both birth parents appear in court, the adoptive parents are related to the child, or the child has actually resided in the adoptive parents’ home for three years, then the court can waive the probation period and enter a final order of adoption.  Like any order from a circuit court, it can be appealed within thirty days of entry.

 Now what changes if a birth parent cannot be located or refuses to cooperate and give permission?  Then a termination hearing is conducted in the Juvenile Court.  The court will conduct a trial and can terminate a parent’s rights.  This is done if the parent is proven unfit, incompetent; is incarcerated; has waived their rights by refusing to associate or visit with the child or refused to pay support; his or her location is not known and due diligence has be exercised in trying to locate them; or they are legally served and never appear in court.  Once the Juvenile Court terminates the parental rights of the birth parent(s), then the case is moved to the Circuit Court.

 In all stages of the adoption procedure, all parties are to be advised of their right to legal counsel.  Also, all legal steps as to process service, notice of time and place of hearings must be observed.