COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Petty Argued at Salem, Virginia

LESLIE TODD OPINION BY v. Record No. 0823-09-3 JUDGE WILLIAM G. PETTY MARCH 9, 2010 LUCRETIA PUTNAM COPELAND

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY Thomas J. Wils on, IV, Judge David A. Penrod (Grant D. Penrod ; Hoover Penrod, PLC, on briefs), for appellant. Dana J. Cornett (Dav id R. Martin, Guardian ad litem for the minor child; Miner, Martin & Mahn, PLC, on brief), for appellee.

Appellant, Leslie Todd , is challenging the trial court’s order terminating her parental rights and allowing the adoption of her child without her consent, pursuant to Code §§ 63.2-1202(H), -1203, and -1205. Todd argues that the trial court erre d in its interpretation of Code § 63.2-1202(H). Copeland also challenges th e constitutionality of Code § 63.2-1205 on due process and equal protection grounds. 1 For the reasons that follow, we agree with Todd, and reverse the judgment of the trial court.

I. B ACKGROUND Leslie Todd gave birth to the child who is at the center of this case while Todd was

incarcerated. Todd’s relatives were not prepared to take her newborn baby, so she agreed that Linda

1 Todd also challenges the sufficiency of th e evidence to prove that the adoption was in the child’s best interest and the constitu tionality of Code §§ 63.2-1203 and -1205 on equal protection grounds. Because we hol d that the trial court misinter preted Code § 63.2-1202(H) and violated Todd’s due process rights through its application of C ode §§ 63.2-1203 and -1205, we need not reach the issues of sufficie ncy of the evidence and equal protection.- 2 - Guenther, who served as a chapla in at the jail, and Guenther’s friend, Lucretia Copeland, would take temporary custody of the baby until she coul d finish serving her sentence. Copeland and Guenther sought and received an order granting th em temporary, indefinite custody of the baby. The order also granted Todd visitation with her ba by at Copeland’s and Gu enther’s discretion. Although both Copeland and Guenther cared for th e baby during the first ye ar, Copeland eventually became the baby’s primary physical custodian. Copeland brought the baby to visit Todd while she was incarc erated, usually on a weekly

basis. After Todd’s release in Se ptember 2003, the parties agreed that Todd could not take care of the child due to her housing and financial situation. However, she saw her child frequently through the summer of 2005. Beginning in July 2005, Todd’s contact wi th the child bega n to wane, and from July 2006 through Ju ly 2007, Todd neither contacted nor visited with her child. While the

record also indicates that Todd has been gainfully employed since her release from incarceration and has successfully completed her probation, Todd co ncedes that she cannot currently take custody

of her child. On July 21, 2007, Co peland contacted Todd and asked about adopting the child. That same day, Todd requested visitation with her child. Todd visited with her child that same day, and refused the adoption request. Follow ing that visit, Todd asked that she be allowed to visit with the child more frequently. However, Copeland and Todd were not able to come to an agreement about visitation during the summer of 2007, and Todd even tually sought and r eceived court-ordered visitation with her child. At Todd’s request, th e court appointed a mental health professional to assist with the development of a visitation plan and a relationshi p between Todd and her child. Following the instituti on of the visitation order, Todd visited wi th her child on every occasion allowed by the court order. The mental health professional appointed by the court to assist in the visitation plan monitored the visits and re ported that Todd and the child interacted well and- 3 - developed a close relationship, ev en though the child does not know that Todd is her biological mother. According to a report from the court-appointed mental health professional dated March 20, 2008, Todd and the ch ild had progressed in their relationship to the point that the counselor believed

that Todd should inform the child that she was he r biological mother and that the two should have

“unrestricted and unlimited” visitation. The re port also stressed that: “From a developmental perspective, it would be detrimental for Ms. Todd and [the child] to term inate a mother/daughter relationship at this point.” On November 26, 2007, Copeland filed a petition to adopt the child. At the conclusion of the proceedings below, the trial court granted th e petition on two se parate grounds. The trial court

held that Todd had failed to maintain contact with the child for a period of six mo nths prior to the filing of the adoption peti tion as provided in Code § 63.2-1202(H) and, in the altern ative, that Todd had withheld her consent contrary to the child’s best interests as provided in Code §§ 63.2-1203 and -1205. This appeal followed.

II. A NALYSIS A. Constitutionality of Code §§ 63.2-1203 and -1205 Todd argues that Code §§ 63.2-1203 and -1205, as applied in this proceeding, violated her constitutional right to due pr ocess. We agree and hold that the Fourteenth Amendment to the United States Constitution requires prospective adoptive parents to prove, by clear and convincing evidence, both that the entry of an adoption order over the objection of a nonconsenting parent is in the best interest of the child and that a continuing relationship with the birth parent would be detrimental to the child’ s welfare. Because the trial court did not make that determination here, it e rred in granting the adoption.- 4 - 1. Standard of Review “[W]hen, as here, the constitutionality of a statute is challenged, our determination of legislative intent is guided by the recognition that ‘all actions of the General Assembly are presumed to be constitutional.’” Virginia Soc’y for Human Life v. Caldwell , 256 Va. 151, 157, 500 S.E.2d 814, 816-17 (1998) (quoting Hess v. Snyder Hunt Corp. , 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990)). Accordingly, we will construe a statute “‘in such a manner as to avoid a constitutional question wherev er this is possible.’” Id. (quoting Eaton v. Davis , 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940)); accord Jacobs v. Meade , 227 Va. 284, 287, 315 S.E.2d 383, 385 (1984).

We are also mindful that the termination of parental rights “is a grave, drastic and irreversible action,” Helen W. v. Fairfax Count y Dep’t of Human Dev. , 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991) (internal quotation marks and citation omitted), and that courts must apply a higher standard in determining whether adoption is appropriate, than would be applied in matters of custody or visitation. As our Supreme Court has noted, [t]he most drastic and far-reaching action that can be taken by a court of equity is to enter a fina l order of adoption. Such an order severing the ties between a parent an d a child is as final, and often as devastating, as though the child had been delivered at birth to a stranger instead of into the arms of its natural mother or father.

Doe v. Doe , 222 Va. 736, 746, 284 S.E.2d 799, 805 (1981). In contrast, “[c]ustody of children and child support are matters that re main within the breast of the court” and are therefore subject to less stringent review. Robinette v. Keene , 2 Va. App. 578, 587, 347 S.E.2d 156, 161 (1986). 2. The Biological Parent’s Fundament al Rights in the Adoption Context

The Fourteenth Amendment to the United St ates Constitution provides that no state shall “deprive any person of life, liber ty, or property, without due process of law.” The United States Supreme Court has recognized that a parent who has neither surre ndered her rights to her child- 5 - nor had those rights terminated by a judicial proceeding has a liber ty interest in the “nurture, upbringing, companionship, and custody” of her ch ild that is protecte d by the Due Process

Clause of the Fourteenth Amendment. Troxel v. Granville , 530 U.S. 57, 77 (2000) (Souter, J., concurring); see also Quilloin v. Walcott , 434 U.S. 246, 255 (1978) (“ We have little doubt that the

Due Process Clause would be offende d if a state were to attempt to force the breaku p of a natural family, over the objections of the parents and their children, withou t some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” (citation and internal quotation marks omitted)); Griffin v. Griffin , 41 Va. App. 77, 85 , 581 S.E.2d 899, 903 (2003) (“Absent a showing of actual ha rm to the child, th e constitutional libert y interests of fit parents take precedence over the best interests of the child.” (citation and internal quotation marks omitted)). By necessity, then, “an adoption case has two parts. In the first, the natural parent’s rights are severed.” Margaret F. Brinig, Virginia Domestic Relations Handbook § 7-2, at 58 (3d ed. 1996). In most cases, that severance is vol untary, and is treated as a matter of contract. Id. When, however, as here, the biologi cal parent protests the adopti on, “the parent[’s] rights are involuntarily terminated because of parent al unfitness that cannot be remedied.” Id. Because a biological parent has a fundamental right to raise her child, this involuntary termination of her parental rights involves significan t substantive and procedural safe guards in order to protect the biological parent’s due process rights. See Armstrong v. Manzo , 380 U.S. 545 (1965); Weaver v. Roanoke Dep’t of Human Res. , 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). These procedural safeguar ds are critical because [o]nce an order of adoption become s final, the natural parent is divested of all legal rights and obligations with respect to the child . . . . The child, to all inte nts and purposes, becomes the child of the person adopting him or her to the same extent as if the child had been born to the adopti ng parent in lawful wedlock.- 6 - Doe , 222 Va. at 746-47, 284 S.E.2d at 805. It is on ly after the court severs the biological parent’s rights to the child in question that the court may addre ss the “second step in the adoption proceeding”—“whether adoption by the prospective pare nts will be in the child’s best interests.” Brinig, supra , § 7-2, at 58. 3. Virginia’s Statutory Scheme and the Detriment to th e Child Standard Statutory History The Code of Virginia has lo ng provided a procedure by wh ich a trial court may enter an adoption order in the absence of th e biological parents’ consent. However, Virginia’s appellate courts have always carefully interpreted that proced ure in order to balance the best interests of the child in question and the Fourteen th Amendment rights of the biologi cal parents. While Virginia’s policy has never been to leave children in the untenab le situation of being at the mercy of a parent who is “obstinately self-willed in re fusing to concur” to the adoption, Malpass v. Morgan , 213 Va. 393, 399, 192 S.E. 2d 794, 798 (1972), we ha ve required the prospectiv e adoptive parent to prove not only that the adoption is in the child’s best interests, bu t also “that continuance of the relationship between the [parent] and child woul d be detrimental to th e child’s welfare.” Jolliff v.

Crabtree , 224 Va. 654, 657, 299 S.E. 2d 358, 359 (1983) (citing Ward v. Faw , 219 Va. 1120, 1125, 253 S.E.2d 658, 661 (1979)). Virginia courts developed the detriment to the child standard in order to balance these competing interests during a time in which the ap plicable adoption statute did not contain an “explicit standard.” Hickman v. Futty , 25 Va. App. 420, 426, 489 S.E.2d 232, 235 (1997) (collecting cases and explaining th e relevant statutory hi story). The statute applicable at that time, Code § 63.1-225(D), stated, in pertinent part: “If after hearing evidence the court finds that the valid consent of any person or agency whos e consent is hereinabove required is withheld- 7 - contrary to the best interests of the child or is unobtainable, the court may grant the petition without such consent[.]” 1995 Va. Acts, chs. 772, 826. The General Assembly eventually codified the constitutional detriment to the child standard when it enacted Code § 63.1-225.1 in 1995. 1995 Va. Acts, chs. 772, 826. Code § 63.1-225.1 required the court to consider not only the child’s best interest, but also whether continuing the relationship between the biological pa rent and the child woul d be “detrimental to

the child”: In determining whether the valid consent of any person whose consent is required is withheld cont rary to the best interests of the child, or is unobtainable, the court shall consider whether the failure to grant the petition for adoption would be detrimental to the child. In determining whether the failure to grant the petition would be detrimental to the child, the court shall consider all relevant factors, including the birt h parent(s)’ efforts to obtain or maintain legal and physical custody of the child, whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people, the birth parent(s)’ ability to care for the child, the age of the child, the quality of any previo us relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children, the duration and suitability of the child’s present custodial environment a nd the effect of a change of physical custody on the child. 1995 Va. Acts, chs. 772, 826 (emphasis added). 2 In 2002, the General Assembly recodified Title 63.1 of the Virginia Code. 2002 Va. Acts, ch. 747. Former Code § 63.1-225, recodified at § 63.2-1203, continued to give a trial court the authority to grant an adopti on petition without the biological pa rents’ consent if it determined that the consent was “withheld contrary to the best interests of the child as set forth in

2 In 2000, the General Assembly rearranged the adoption statutes, repealing Code §§ 63.1-225 and -225.1 and recodifying them at § 63.1-219.11 and -219.23, respectively. The only change in the “detriment to the child” st atute at that time was a non-substantive one. Compare 1995 Va. Acts, chs. 772, 826 with 2000 Va. Acts, ch. 830 (indicating change in language of first sentence of former Code § 63.1-225.1 from “the petition for adoption” to “the petition pending before it”); see also Gooch v. Harris , 52 Va. App. 157, 161 & n.2, 662 S.E.2d 95, 97 & n.2 (2008) (tracing the evolution of these statutes).- 8 - § 63.2-1205.” Former Code § 63.1-225.1, as reco dified at § 63.2-1205 in 2002, retained the language requiring a finding of detriment to the ch ild in order to permit adoption over a parent’s withholding of consent. 2002 Va. Acts, ch. 747. The only change made by the General Assembly at the time of recodification, other than minor adjustments in punctuation, was the insertion of “juvenile and domestic relations district” prior to the word “court” in the highlighted portion of the statute. 3 A year later the General Assembly added language so that the standard contained in Code § 63.2-1205 applied to determina tions made not only by juvenile courts but also by circuit courts. In 2006, four years after the recodifica tion of Title 63.1 as Title 63.2, the General Assembly amended Code § 63.2-1205 to remove th e language requiring a finding of detriment to the child in order to permit adoption without pa rental consent. 2006 Va. Acts, chs. 825, 848; see Gooch v. Harris , 52 Va. App. 157, 161-62 & n.5, 662 S.E.2d 95, 97 & n.5 (2008) (holding that “Code § 63.2-1205 no longer requires any specific finding that failure to grant the adoption

3 That version of Code § 63.2-1205 provided as follows: In determining whether the valid consent of any person whose consent is required is withheld cont rary to the best interests of the child, or is unobtainable, the juvenile and domestic relations district court shall consider wh ether the failure to grant the petition pending before it would be detrimental to the child. In determining whether the failure to grant the petition would be detrimental to the chil d, the juvenile and domesti c relations district court shall consider all relevant factors, including the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child; whether the birth pare nt(s)’ efforts to assert parental rights were thwarted by other people ; the birth parent(s)’ ability to care for the child; the age of the ch ild; the quality of any previous relationship between the birth pare nt(s) and the child and between the birth parent(s) and any other minor children; the duration and suitability of the child’s presen t custodial environment; and the effect of a change of physical custody on the child. 2002 Va. Acts, ch. 747 (emphasis added).- 9 - petition would be detrimental to the child” but d eclining to reach the constitutional issue because it was not raised by the parties); see also T.S.G. v. B.A.S. , 52 Va. App. 583, 597 & n.12, 665 S.E.2d 854, 861 & n.12 (2008) (same). As set out in the Acts of Assembly, that amendment made the following additions (indicated by ita licized text), and deletions (indicated by strikethrough text): In determining whether the valid consent of any person whose consent is required is withheld cont rary to the best interests of the child, or is unobtainable, the circui t court or juvenile and domestic relations district court, as the case may be, shall consider whether the failure to grant granting the petition pending before it would be detrimental to in the best interests of the child. In determinin g whether the failure to grant the pe tition would be detrimental to the child, the The circuit court or juven ile and domestic relations district court, as the case may be, shall consider all relevant factors, including the birth parent(s)’ effort s to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to a ssume full custody of the child ; whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people; the birth parent(s)’ ability to care for the child; the age of the child; the qual ity of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor child ren; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child. 2006 Va. Acts, ch. 848. Thus, the General Assembly retained the fact ors required to be considered to determine whether the failure to grant the pe tition for adoption would be detrimental to the child. However, instead of requiring the consideration of those factors to determine detriment , Code § 63.2-1205, read in conjunction with Code § 63.2-1203, lists them simply as f actors relevant to determining whether “any person or agency whose consent is required is withhe ld contrary to the best

interests of the child.” Code § 63.2-1203 (emphasis a dded). Once again, just like before the enactment of Code § 63.1-225.1 in 1995, the re levant statutes make no mention of the- 10 - constitutional standard requiring proof of detriment to the child in order to override a lack of parental consent for adoption. 4 The Detriment to the Child Standard Exists Independently of the Virginia Code to Protect the Constitutional Rights of Biological Parents Since the Virginia Supreme Court decided Malpass in 1972, Virginia courts have emphasized that there must be more than a me re finding that granting an adoption over the parent’s objection would be in the child’s best interests. Malpass, 213 Va. at 393, 192 S.E.2d at

794. The rationale for this rule is clear: were “the suitability of placement in the prospective adoptive home . . . alone sufficient to warrant a finding that consent to the adoption was being withheld contrary to the child’s best interests . . . the consent requirement of the adoption statute would be meaningless.” Hickman , 25 Va. App. at 427, 489 S.E.2d at 235. If the best interest of the child were the sole consideration in granting an adoption, “the court could forever divest a natural parent of all rights and obligations w ith respect to the child, simply by finding placement

4 Present Code § 63.2-1205 states: The circuit court or juvenile and do mestic relations district court, as the case may be, shall consider all relevant factors, including the birth parent(s)’efforts to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether the birth parent(s)’efforts to assert pa rental rights were thwarted by other people; the birth parent(s)’ ab ility to care for the child; the age of the child; the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children; the duration and suitability of the child’s present custodial environment; a nd the effect of a change of physical custody on the child. 2006 Va. Acts, chs. 825, 848. The 2006 revision of Vi rginia’s adoption statutes was preceded by a joint House and Senate Study group. Alt hough the study group produced summaries of its meetings, see SJR 331: Study of Virginia’s Adoption Laws and Policies , available at http://dls.state .va.us/adoption.htm , these summaries do not provide any information pertinent to the revised wording of Code § 63.2-1205.- 11 - in the prospective adoptive home more suitable to the child than placement with the child’s birth parent.” Id. Instead, the best interest language of C ode §§ 63.2-1203 and -1205—like the best interest language in earlier incarnations of the same statute—must be r ead in light of the biological parent’s right to her child. In Ward , 5 for instance, our Supreme Cour t reversed the trial court’s order granting the stepfather’s adoption petition over the father’s protest. 219 Va. at 1125, 253 S.E.2d at 662. There, the trial court found that the adoption was in the child’s best interests because the child was “very affectionate towards his stepfather,” the child’s mother and stepfather provided him with a loving and stab le home, and, although he had sent birthday and Christmas presents and regularly supported the child, the father had not visited his son for three-and-one-half years prior to the hearing. Id. at 1122, 253 S.E.2d at 660. As a result, the trial court found that “the boy did not know his natural father; . . . Ward was ‘a complete stranger’ to his son.” Id. The trial court also reasoned that “[t]o deny the adop tion and take the child from a stable and happy environment and expose him to the natural father through his visitation rights would be in essence for the Cour t to experiment with the future welfare of the

child.” Id. at 1123, 253 S.E.2d at 661. Despite these factual findings, the Supreme Court reversed. The Court, relying on its

earlier decision in Malpass , 213 Va. at 393, 192 S.E.2d at 794, conc luded that “when ‘there is no question of the fitness of the non-consenting parent and he has not by conduct or previous legal action lost his rights to the ch ild, it must be shown that conti nuance of the relationship between

the two would be detrimental to the child’s welfare.’” Ward , 219 Va. at 1124, 253 S.E.2d at 661

5 Ward was decided under former Code § 63.1-225( 4), which provided in pertinent part that, “if the trial court finds after hearing evidence that the father’s consent is withheld contrary to the best interests of the child, the court may grant the [adoption] petition without such consent.” Ward , 219 Va. at 1123, 253 S.E.2d at 660.- 12 - (quoting Malpass , 213 Va. at 399, 192 S.E.2d at 799). In Ward there was “no finding that the natural father [was] an unfit parent.” Id. Thus, “the burden was on the adoptive parent to establish by the evidence that continuation of th e relationship between the father and the child

would be detrimental to the child’s welfare.” Id. at 1125, 253 S.E.2d at 661. There, the adoptive parent failed to carry the burden. Id. at 1125, 253 S.E.2d at 662. Moreover, even in cases in which a parent is not fit, “the unfitness of the parent” does not, in and of itself, justify the entry of an a doption order over the biologi cal parent’s objection.

Hickman , 25 Va. App. at 428, 489 S.E.2d at 236. Instead, the unfitness must be so severe and so incapable of remedy that “the co ntinuance of the relationship” be tween the biological parent and

the child would be “detrimental to the child’s welfare.” Id.

In Doe , 222 Va. at 745-46, 284 S.E.2d at 805-06, 6 our Supreme Court reversed a stepmother’s adoption petition that relied solely on the father and stepmother’s argument that the mother should not have parental rights to he r biological son because she was a lesbian. The Court, assuming arguendo that the mother’s lifestyle rendered her an unfit parent, concluded that unfitness alone was not enough to permanently sever a biological parent’s ri ghts to her child: “If Jane Doe is an unfit parent, it is solely her lesbian relationship which renders her unfit, and this

must be to such an extent as to make the cont inuance of the parent-child relationship heretofore existing between her and her son detr imental to the child’s welfare.” Id. at 746, 284 S.E.2d at

805. The Court concluded that, because the petitioners had presented no evidence that a continued relationship with the moth er would be detrimental to the child’s welfare, the trial court

6 Doe was decided under former Code § 63.1-225( C), which provided in pertinent part: “If after hearing evidence the court finds that th e valid consent of any pe rson . . . whose consent is hereinabove required is withheld contrary to the best interests of the child . . . the court may grant the petition without such consent.”- 13 - erred when it granted the petition for adoption. Thus, in order to grant a petition for adoption over the biological parent’s objection, courts must look beyond the biologi cal parent’s unfitness to have custody of a child, and “determine whethe r the consequences of harm to the child of allowing the parent-child relations hip to continue are more severe than the consequences of its

termination.” Id. at 747, 284 S.E.2d at 805: accord Lyle v. Eskridge , 14 Va. App. 874, 877 n.1, 419 S.E.2d 863, 865 n.1 (1992) (“There may be situati ons where a parent may be deemed unfit and, yet, continuance of the relationship will not be detrimenta l to the child.”). This recognition that the detriment to the ch ild standard is necessa ry to protect the due process rights of nonconsenting bi ological parents is consistent with other decisions involving the rights of parents and the prot ection of children. For instance, the Supreme Court of Virginia held that the constitutionally protected rights of biological parents can only be overcome by a showing of actual harm, or detrim ent to a child’s well-being, in Williams v. Williams , 256 Va. 19, 501 S.E.2d 417 (1998) (plurality op.). There, the Court addressed the parents’ appeal of an order allowing the child’s paternal grandpa rents visitation based on Code § 20-124.2(B). 7 On appeal, the parents argued that th e order infringed upon their right to “autonomy in child rearing and, hence, violated the Fourteenth Amendm ent to the United States Constitution.” Id. at 21,

501 S.E.2d at 417. Our Supreme Court agreed with the parents and reversed the trial court’s order. Adopting the reasoning of this C ourt, our Supreme Court held that “state interference with a fundamental right must be justified by a compe lling state interest, and that to constitute a compelling interest, state interference with a pare nt’s right to raise [her] child must be for the

7 Code § 20-124.2(B) allows “persons with a legitimate interest” to seek custody of or visitation with a child “upon a showing by clear and convincing evidence that the best interest of the child would be served thereby.” The statute al so instructs the court to “give due regard to the primacy of the parent-child relationship” in making its custody or visitation decision. Id.- 14 - purpose of protecting the child ’s health or welfare.” Id. at 21, 501 S.E.2d at 418. Thus, the Court reasoned that a non-parent must prove—in addition to estab lishing the visitation is in the

best interests of the child—tha t “denial of non-parent visitati on would be detrimental to the child’s welfare before the court [could] interf ere with the constitutionally protected parental rights.” Id. at 22, 501 S.E.2d at 418; see also Griffin , 41 Va. App. at 83, 581 S.E.2d at 902 (holding that in a “dispute between a fit parent and a non-parent,” th e best interests test should be applied only if the trial court first finds “an actual harm to the child’s health or welfare without” visitation with the non-parent). As these cases illustrate, the detriment to the child standard exists independent of the Virginia Code to protect the parental rights of biological parents—rights th at the United States Supreme Court has recognized are protected by the Fourteenth Amendment to the United States

Constitution. See, e.g. , Troxel , 530 U.S. at 57. 8 Thus, we conclude that a trial court must make a detriment to the child determination, regardless of the language of the re levant statute, before

8 Finally, we note that this conc lusion is consistent with the Code’s treatment of children who are in the care of social services. In orde r to terminate the parent al rights of a biological parent under Title 16.1 of the Code of Virginia, the party seeking termination must prove more than the termination would be in the child’s be st interests. Code § 16.1-283, which governs the termination of residual parental rights of parents whose children have been placed in foster care, requires more than a finding that the termination w ill be in the best interest of the child. Instead, the statute sets forth seve ral other required findings in addition to a determination that the termination would be in the child’ s best interests in order to ju stify a termination of parental rights. See Code § 16.1-283(B) (requiri ng a finding that the child suffered serious abuse or neglect the causes for which are unlikely to be remedied within a re asonable time); Code § 16.1-283(C)(1) (requiring a finding that the pa rents “have, without good cause failed to maintain contact with and to provide or substantia lly plan for the future of the child for a period of six months after the child’s placement in fost er care” despite support from social services); Code § 16.1-283(C)(2) (requiring a finding that the parents are “unwilling or unable . . . to remedy substantially the conditions which led to or required continuation of the child’s foster care placement, notwithstanding” the efforts of various agencies and professionals); Code § 16.1-283(D) (requiring a finding that the child was abandoned, the identity of the parents cannot be ascertained, and no parents, relatives or guardian has claimed the child); Code § 16.1-283(E) (requiring a finding that the parent’s residual parental rights to a sibling of the child have been terminated, the parent has b een convicted of any of several statutorily enumerated crimes, or the parent has “subjec ted any child to aggrav ated circumstances”).- 15 - entering an adoption order, in order to pr otect the Fourteenth Amendment rights of a nonconsenting biological parent. Before 1995, Virginia’s adopti on statutes, as interpreted by Virginia’s appellate courts, passed constitutional muster despite the absence of an explicit standard because the courts read into the statute the requirement that “[a]n adoption over objecti on by a natural parent should not be granted except upon clear and convincing eviden ce that the adoption would be in a child’s

best interest and that it would be detrimental to continue the natural parent-child relationship.” Lyle , 14 Va. App. at 876, 419 S.E.2d at 865 (emphasis added) (citing Frye v. Spotte , 4 Va. App. 530, 532, 359 S.E.2d 315, 317 (1987)). We must now a ddress what effect, if any, the General Assembly’s 2006 amendment of Code § 63.2-1205 ha s on the applicability of the detriment to

the child standard. Legislative Intent Having reviewed the statutory history of Code §§ 63.2-1203 and -1205 and determined

that the detriment to the child standard is a co nstitutional, not statutory, requirement, we reach the underlying issue in this case: Whether the General Assembly intended trial courts to

abandon the detriment to the child standard when applying Code §§ 63.2-1203 and -1205. We

conclude that it did not. In making this determination, we are gui ded by several principles of statutory construction. We initially note that “a presumption normally arises that a change in law was intended when new provisions are added to prior le gislation by an amendatory act” or “existing rights” are “withdraw[n] . . . [from an] act.” Boyd v. Commonwealth , 216 Va. 16, 20, 215 S.E.2d 915, 918 (1975) (per curiam). We also, howev er, have a duty to cons true statutes subject to a constitutional challenge in a manner that “a void[s] any conflict with the Constitution.”

Commonwealth v. Doe , 278 Va. 223, 229, 682 S.E.2d 906, 908 (2009) (citations omitted).- 16 - Accordingly, where, as here we are faced with the construction of a statute involving constitutional implications, “[w]e attribute to the legislature the intent to enact laws that conform to the [C]onstitution in all respects.” Kopalchick v. Catholic Diocese of Richmond , 274 Va. 332, 340, 645 S.E.2d 439, 443 (2007). Thus, we “[i]ndulg[e] every possible presumption in favor of the validity of the statut e now under consideration,” Young v. Commonwealth , 101 Va. 853, 870, 45 S.E. 327, 331 (1903), and, “whenever possible, . . . interpret statutory language in a matter that avoids a constitutional question,” Doe , 278 Va. at 229, 682 S.E.2d at 908. A statute cannot “be declared to be unconstitutional unless it is plainly and clearly so. If any reasonable doubt exists as to its constitutionality, the act will be upheld. To doubt is to affirm.” City of

Roanoke v. Elliott , 123 Va. 393, 406, 96 S.E. 819, 824 (1918). Thus, while we recognize that the General A ssembly removed the detriment to the child language from Code § 63.2-1205 in 2006, that recognition does not, how ever, lead us to hold that the General Assembly intended that courts no longer make a detriment to the child

determination. Because the detriment to the ch ild standard is necessa ry to protect the due process rights of nonconsenting biological parents, a conclusi on that the General Assembly

intended to abandon that standard would lead us to deduce that Code §§ 63.2-1203 and -1205 facially violate the Fourteenth Amendment. Given that the standard is constitutionally necessary, we are confid ent that the General Assembly had no intention of rendering Code §§ 63.2-1203 and -1205 unconstitutional when it removed the “detriment to the child” language. Instead, we conclude that the General Assembly removed this phrase because it was aware of our prior decisions and the constitutional import of the detriment to the child determination, and believed that including the detriment to the child language—which referenced a long-standing constitu tional standard that existed independent of

the statute itself—was mere surplusage. See Weathers v. Commonwealth , 262 Va. 803, 805, 553- 17 - S.E.2d 729, 730 (2001) (holding that pr inciples of statutory construc tion require us to presume, in the absence of explicit evidence to the cont rary, that the legislature is familiar with the decisions of our appellate courts and that it acquiesces therein when it takes legislative action). Despite the deletion of this language from th e Code, we conclude that the Fourteenth

Amendment of the United States Constitution st ill requires that judges consider whether a continued relationship with his or her biological parent would be detrimental to a child’s well-being. Because this requireme nt continues to exist, a trial court must make that finding before entering an adoption orde r over the objection of a nonconsenting parent. Here, the trial

court did not make the detriment to the child determination; thus, its application of Code §§ 63.2-1203 and -1205 in this case violated Todd’s Fourteenth Amendment right to due

process. 9

B. Interpretation of C ode § 63.2-1202(H) Our analysis does not end with our determinatio n that the trial court’ s application of Code §§ 63.2-1203 and -120 5 violated Todd’s due process rights . Because the tria l court announced alternative grounds for its holdin g, we must also addr ess Todd’s challenge to the trial court’s interpretation of Code § 63.2- 1202(H). Because we hold that the plain language of Code § 63.2-1202(H) refers to the si x months immediately preceding th e filing of the adoption petition,

we reverse on this issue as well. Statutory interpretation is a que stion of law which we review de novo , and we determine the legislative intent from the words the General Assembly used in the statute. Washington v.

Commonwealth , 272 Va. 449, 455, 634 S.E.2d 310, 313-14 (2006).

9 In this case, we need not attempt to define the term “detriment to the child.” We do note, however, that none of the trial court’s find ings rise to the level of detriment required by prior appellate decisions or anal ogous statutes under Title 16.1 of the Code of Virginia.- 18 - Code § 63.2-1202(H) states that an adoptio n may proceed without a birth parent’s consent when the prospective adoptive pare nt proves by clear and convincing evidence that the biological parent has failed, without just cause, to visit or contact “the child for a period of six months prior to the filing of the adoption petition.” The parties dispute whether the statutory la nguage “prior to” refers to a period immediately prior to the filing of the petition, or to any period prior to the filing of the petition. Todd argues that the phrase “prior to” refers to the six months immediately preceding the filing of the adoption petition, whereas Copeland argues, and the trial court determined, that the phrase refers to any six-m onth period of abandonment that occurred at any time before the filing of the petition. Accordingly, the trial court held that Todd’s failure to visit her child from July 2006 through July 2007 satisfied the terms of the statute. In determining the plain meaning of statutory language, “l egislative purpose is expressed by the ordinary meaning of the words used.” Ardestani v. INS , 502 U.S. 129, 136 (1991). However, the phrase “prior to” simply means “before,” Bryan A. Garner, A Dictionary of Modern English Usage 692 (2d ed. 1995), which does not aid in determining whether the General Assembly intended that the relevant time period be that immediatel y before the filing of the petition, or any time pe riod before the filing. However, the fact that the General Assembly chose to tie the six-month period to a date certain—the filing of the adopti on petition—does aid our analysis. See United States v. Locke , 471 U.S. 84, 95 (1985) (construing a statutory filing deadline of “prior to December 31” to mean “on or before December 30”— the time immediately pr eceding the date certain). In this context, the filing of the adoption petition is a condition that must exist before the circuit court has jurisdiction over the adoption proceeding. See Code § 63.2-1201. It is the beginning of the actual adoption process. By tyi ng the beginning of the six-month period to a legally significant, specific date, the General Assembly chose to limit the time period that it determined was relevant- 19 - to the trial court’s determination to the six-mont h period immediately precedi ng that date certain. In this context, “[t]he phrase ‘prior to’ may be clumsy, but its meaning is clear.” Locke , 471

U.S. at 96. We find this interpretation to be most consistent with the underlying legislative policy embodied by Code § 63.2 -1202(H). This statute is a codifica tion of the principle that parental unfitness may be established by proof of aba ndonment of a child wit hout justification. See Patrick v. Byerley , 228 Va. 691, 694, 325 S.E.2d 99, 101 (1985) (“Abandonment of a child without justification estab lishes parental unfitness.”). 10 Accordingly, we must interpret the statute in a way that is most c onsistent with the General Assembly’s intent to allow the adoption

of an abandoned child without the ab andoning parent’s consent.

Abandonment is the “renunciation or abdicati on of responsibility over the child . . . or a voluntary relinquishment [of the child] without cause.” Keene , 2 Va. App. at 585, 347 S.E.2d at 161; see also Black’s Law Dictionary 1 (7th ed. 2000) (defining “aba ndonment” as “[t]he relinquishing of a right or interest with the intention of never again claiming it ” (emphasis added)). Abandonment is not, however, incurabl e, and our prior decisions and the analogous provisions under Title 16.1 of the Virginia Code indicate a polic y of encouraging the reunification of parent and child whenever possible. See, e.g. , Weaver , 220 Va. at 926, 265 S.E.2d at 695 (noting that statutes terminating the legal relation ship between parent and child should be interpreted consisten tly with the governmental objective of preserving, when possible, the parent-child relationship); Keene , 2 Va. App. at 588, 347 S.E.2d at 162 (stating that a mother

10 While we note that a finding of parental unf itness is sufficient to transfer the custody of a child to a non-parent, it is not enough—standing alone—to justif y the termination of parental rights. See Part II.A, supra (discussing the detriment to the child standard); see also Keene , 2 Va. App. at 588, 347 S.E.2d at 161 (collecting ca ses for the proposition that a showing of abandonment alone is not sufficient for the term ination of parental rights in an adoption proceeding).- 20 - who had been “deprived of her children for more th an a year” was “entitled . . . to an opportunity to demonstrate that she can succeed as a parent”). For instance, Code § 16.1-283(C)(2), which governs the disposition of abused and neglected children who are in the care of social services, provid es that parental rights may be terminated only when the parent has been “ unwilling or unable, wit hout good cause, within a reasonable period of time not to exceed twelve m onths from the date the child was placed in foster care to remedy substantially the condition s which led to or requi red continuation of the child’s foster care placement.” Code § 16.1-283(C )(1) allows for the term ination of parental rights of parents who “have, without good cause, fa iled to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care.” In both of th ese situations, the natural parents are afforded the assistance of “social, medical, mental health or other rehabilitative agencies.” Code § 16.1-283(C)(1), (2). These statut es reflect Virginia’s policy of attempting to reunite families when it is possible to do so. Cour ts resort to the termination of pa rental rights in these situations only when the parents have exhibited, in the face of assistance from social services over an extended period of time, an intent to abandon one’s child to foster care, see Code § 16.1-283(C)(1), or a complete inability to successfully parent one’s child, see Code § 16.1-283(C)(2). The foregoing interpretation of Code § 63.2-1202(H) is consistent with Code § 16.1-283(C) and Virginia’s policy of seeking to reunite parents and children whenever possible, because it allows a biological parent who abandons a child for a period of time the same opportunity to cure that ab andonment as that afforded a pa rent whose child is placed in

foster care.- 21 - III. C ONCLUSION In sum, we conclude that th e trial court erred in its interpretation of Code § 63.2-1202(H),

and hold that the statute refers to the six-month period of time im mediately preceding the filing of the adoption petition. We also hol d that the trial court’s applic ation of Code §§ 63.2-1203 and -1205 violated Todd’s due pro cess rights because it fa iled to make the necessary finding under Virginia law that a cont inuing relationship with her child would be detrimental to the child’s welfare. Accordingly, we reverse the trial court’ s decision and dismiss the adoption petit ion without prejudice. See Williams , 256 Va. at 22, 501 S.E.2d at 418 (stating that there was no need to remand a case when there was “no allega tion or proof that denial of grandparent visitation would be detrimental to this child’s welfare”).

Reversed and dismissed.