Virginia Court Case: F.E. v. G.F.M.

F. E. v. G. F. M. 

Record No. 1106-99-2 

COURT OF APPEALS OF VIRGINIA 

32 Va. App. 846; 531 S.E.2d 50 

July 18, 2000, Decided 

Rehearing En Banc Granted September 19, 2000, Reported at: 2000 Va. App. LEXIS 660.
Rehearing En Banc June 26, 2001, Reported at: 2001 Va. App. LEXIS 443. 

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE. Joseph F. Spinella, Judge Designate. 

Reversed, vacated and remanded. 

COUNSEL:
Patricia M. Brady (K. Scott Miles; Alex R. Gulotta; American Civil Liberties Union of Virginia Foundation; Charlottesville-Albemarle Legal Aid Society, on briefs), for appellant.

John E. Davidson (McGuire, Woods, Battle & Boothe, LLP, on brief), for appellee. 

JUDGES:
Present: Judges Elder, Bray and Bumgardner. OPINION BY JUDGE LARRY G. ELDER. Bumgardner, J., dissenting. 

OPINION:

OPINION BY JUDGE LARRY G. ELDER
F.E. (father) appeals from the dismissal of his challenge to the adoption of his son, J.B., by the child's maternal grandmother, G.F.M. (grandmother). The trial court granted grandmother's demurrer on the ground that the challenge was untimely under Code § 63.1-237, which requires that such challenges be made within six months following entry of the final order of adoption, even if fraud or lack of notice to or personal jurisdiction over any person is shown. On appeal, father contends (1) application of the statute's six-month limitation period violated his due process and equal protection rights under the facts of this case, which include his allegations that grandmother committed extrinsic and intrinsic fraud such that father never received notice of the proceedings and the court never obtained personal jurisdiction over father; and (2) the circuit court erroneously failed to appoint a guardian ad litem and to consider the issue of visitation. We hold that application of the time limitation imposed in Code § 63.1-237 was unconstitutional under the facts alleged in father's petition and, therefore, that the circuit court erroneously granted grandmother's demurrer. We also hold the trial court did not err in refusing to act on father's request for visitation and appointment of a guardian ad litem for J.B. because, unless and until the adoption order is set aside, father lacks standing to make such requests. We reverse the ruling of the trial court granting the demurrer, vacate its order of dismissal, and remand for further proceedings consistent with this opinion. n1

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n1 For purposes of ruling on a demurrer, the court must accept as true the facts alleged in the complaint or petition. See Code § 8.01-273; Runion v. Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998). In subsequent stages of the proceedings, however, the court, as the finder of fact, remains free to review the evidence independently and to conclude that it does not support the allegations in the complaint or petition.

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I.

BACKGROUND
Because this case involves the granting of a demurrer, we accept as true, for purposes of reviewing this motion only, all facts alleged in the petition. n2 See Code § 8.01-273; Runion v. Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998). "A demurrer admits the truth of all material facts properly pleaded. Under this rule, the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged." Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988).

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n2 In its order granting the demurrer, the circuit court considered a few additional facts not included in father's petition. Because grandmother posed no objection to the court's consideration of these facts at the trial level, we include these facts on appeal in reviewing the lower court's ruling.

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