COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Humphreys, 

 Clements and Agee 

Argued at Richmond, Virginia 

F.E. 

 OPINION BY 

v. Record No. 1106-99-2 JUDGE LARRY G. ELDER 

 JUNE 26, 2001 

G.F.M. 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Joseph F. Spinella, Judge Designate 

 Patricia M. Brady (K. Scott Miles; Alex R. 

Gulotta; American Civil Liberties Union of 

Virginia Foundation; 

Charlottesville-Albemarle Legal Aid Society, 

on brief), for appellant. 

 John E. Davidson (Bruce M. Steen; McGuire 

Woods LLP, on brief), for appellee. 

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.1 On appeal, 

 1

 Code § 63.1-237 has been repealed and recodified at 

§ 63.1-219.23. See 2000 Va. Acts ch. 830 (repealing and 
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. A 

panel of this Court, with one judge dissenting, held the statute 

unconstitutional as applied in this case and reversed the ruling 

of the trial court. See 32 Va. App. 846, 531 S.E.2d 50 (2000). 

We granted grandmother's petition for rehearing en banc and 

stayed the mandate of that decision. 

 On rehearing en banc, 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 

 

recodifying adoption statutes at §§ 63.1-219.7 to 63.1-219.55). 

The text of the provision has not changed. 

All other citations to adoption statutes considered in this 

opinion are to the statutory scheme applicable at the time of 

entry of the adoption order in this case. 

 - 2 - 
reverse the ruling of the trial court granting the demurrer, 

vacate its order of dismissal, and remand for further 

proceedings consistent with this opinion. 

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.2 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). 

 In late September 1995, father, his approximately 

fourteen-month-old son, J.B., and the child's biological mother, 

C.B., were involved in an automobile accident in which C.B. was 

killed and J.B. was seriously injured. For ten months prior to 

the accident, father, C.B. and J.B. resided together. J.B. had 

"spent the majority of his life in [the] home" shared by father 

and C.B. That "household did not include [grandmother G.F.M.]," 

 

 - 3 - 

2

 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. 
C.B.'s mother. The record does not reveal where J.B. and C.B. 

resided for the first four months of J.B.'s life. 

 Following the accident, J.B. was hospitalized, and father 

"stayed at his side . . . for several weeks." It was father's 

understanding that J.B. would require constant medical care 

following his release from the hospital, and father and 

grandmother agreed that grandmother would care for J.B. in her 

home following his release from the hospital. 

 At the time of the accident, father, a native Spanish 

speaker, could not read English. After C.B.'s death, father 

relied on grandmother for assistance in completing paperwork. 

On October 12, 1995, at grandmother's request, father signed a 

"Consent to Adoption" form by which he purported to consent to 

grandmother's adopting J.B. The caption on the form read "In 

the matter of an adoption of a child known as [J.B.] . . . by 

[G.F.M., grandmother]." Father signed the consent in 

grandmother's lawyer's office, in the presence of a notary but 

without counsel or an interpreter. Father was not aware of the 

content of the form he signed and relied on grandmother's 

representations that his execution of the form "was merely to 

allow [grandmother] to have access to medical information and 

accompany [J.B.] to appointments." 

 After father signed the "Consent to Adoption" form, 

grandmother petitioned the circuit court to adopt her grandson, 

J.B., including with her petition the form executed by father. 

 - 4 - 
In her petition, she falsely represented that J.B. had lived in 

her home "continuously for his whole life" and that J.B.'s 

mother, C.B., also had resided with grandmother until the time 

of her death. The court ruled that, pursuant to Code 

§ 63.1-223(E), it was "proper to proceed without the 

investigations and report required by Section 63.1-223," and by 

order entered October 24, 1995, it decreed J.B. the adopted 

child of grandmother. 

 Other than father's execution of the consent to adoption 

form, which he could not read, father received no notice of the 

adoption. He was not served with a copy of the petition or the 

final order. The order was entered against his wishes. 

 Following C.B.'s death and J.B.'s release from the 

hospital, J.B. resided primarily with grandmother, but both 

before and after entry of the adoption order, father "[saw] and 

care[d] for [J.B.] several times per week, including overnight 

visits in [father's] home on weekends." 

 In February 1997, father married in a ceremony held in 

grandmother's home. Father and his new wife "continued the 

established pattern of frequent and prolonged visitation with 

[J.B.] in their home and [grandmother's] home. Some of these 

visits lasted for two weeks or more, and at least one included a 

trip out of state." 

 In February 1998, father and his new wife informed 

grandmother that they wished to have J.B. live in their 

 - 5 - 
household. At that time, grandmother informed father that she 

had adopted J.B. in October 1995. Grandmother has prevented 

father from having any additional contact with J.B. since that 

time and has served father and his wife with trespassing notices 

to prevent them from coming to her home to see J.B. 

 On September 24, 1998, father filed a petition to set aside 

the adoption order, claiming grandmother committed extrinsic and 

intrinsic fraud, and that application of the six-month statute 

of limitation to prevent a challenge "based on lack of personal 

jurisdiction, lack of notice, duress, and fraud" violated his 

due process and equal protection rights. He sought to have the 

statute declared unconstitutional as applied to him, to have the 

adoption order declared void, and to be awarded regular 

visitation with his son until his parental rights were restored. 

He also sought appointment of a guardian ad litem for his son. 

 Grandmother filed a demurrer, asserting that the statute 

was constitutional and barred father from seeking relief. She 

also contended that father lacked standing to request 

visitation. 

 The trial court held that the petition and consent for 

adoption provided it with jurisdiction under Code 

§ 63.1-220.3(C)(6) to enter the final adoption order. With the 

passage of more than six months time following that entry, the 

court held that Code § 63.1-237 prevented father from attacking 

the order. It stated expressly, "The court does not see the 

 - 6 - 
need to pass upon the constitutionality of the statute," and it 

did not do so, despite father's repeated requests for 

consideration of this issue. It also said, "I see nothing . . . 

preventing the birth father and his wife [from] fil[ing] a 

petition for the adoption of his birth-son who is now legally 

the child of the grandparents. It may well be that the best 

interests of the child would govern the outcome of that action 

which may or may not be the same outcome that now exists." 

 Father filed a motion to reconsider, which the court 

denied. 

II. 

ANALYSIS 

A. 

 CONSTITUTIONALITY OF CODE § 63.1-237 AS APPLIED TO FATHER3

 Extrinsic fraud is fraud which occurs outside the judicial 

process and "consists of 'conduct which prevents a fair 

 

 - 7 - 

3

Although Code § 8.01-235 provides that a statute of 

limitation defense "cannot be set up by demurrer" and may be 

raised only as an affirmative defense in a responsive pleading, 

father did not oppose the demurrer on that ground, either in the 

trial court or on appeal. Thus, Rule 5A:18 prevents our 

consideration of this claimed error as a basis for reversal on 

appeal absent a showing of "good cause" or to "attain the ends 

of justice." If the statute was unconstitutionally applied, 

avoiding the constitutional issue will not "attain the ends of 

justice," and any attempt to apply this exception simply begs 

the constitutional question. Further, the "'good cause' 

[exception] relates to the reason why an objection was not 

stated at the time of the ruling," Campbell v. Commonwealth, 14 

Va. App. 988, 996, 421 S.E.2d 652, 656 (1992) (en banc) (Barrow, 

J., concurring), and, thus, it is not applicable under the facts 

of this case. 
submission of the controversy to the court.'" Peet v. Peet, 16 

Va. App. 323, 327, 429 S.E.2d 487, 490 (1993) (quoting Jones v. 

Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983)). It 

includes "'purposely keeping [the unsuccessful party] in 

ignorance of the suit . . . . In all such instances the 

unsuccessful party is really prevented, by the fraudulent 

contrivance of his adversary, from having a trial . . . .'" 

McClung v. Folks, 126 Va. 259, 270, 101 S.E. 345, 348 (1919) 

(quoting Pico v. Cohn, 25 P. 970, 971, aff'd on reh'g en banc, 

27 P. 537 (Cal. 1891)); see O'Neill v. Cole, 194 Va. 50, 57, 72 

S.E.2d 382, 386 (1952) (holding sufficient to state claim of 

extrinsic fraud allegations in complaint that father made false 

statements to daughter to persuade her not to contest judicial 

transfer of her property to him). Under these circumstances, 

"[a] collateral challenge to a judgment . . . is allowed because 

 

 Even if one of these exceptions might properly be applied 

to avoid a constitutional issue, avoidance of the constitutional 

issue in the instant appeal would be an exercise in procedural 

futility. The trial court has already ruled that the statute of 

limitation bars father's action to set aside the adoption, 

despite its duty to view the facts on the demurrer in the light 

most favorable to father. Thus, the only reasonable conclusion 

is that, if we were to reverse the dismissal based solely on 

grandmother's failure to raise the statute of limitation in the 

proper pleading, grandmother would plead the statute as an 

affirmative defense in her responsive pleading and the trial 

court would rule in grandmother's favor without hearing 

evidence, based on the trial court's already demonstrated belief 

that the statute of limitation applies to bar father's petition 

under any version of the facts. 

 Thus, our passing on the constitutionality of Code 

§ 63.1-237 as applied to father in this case is appropriate. 

 - 8 - 
such fraud perverts the judicial processes and prevents the 

court or non-defrauding party from discovering the fraud through 

the regular adversarial process." Peet, 16 Va. App. at 327, 429 

S.E.2d at 490. Extrinsic fraud, therefore, is "'fraud that 

. . . deprives a person of the opportunity to be heard.'" Hagy 

v. Pruitt, 529 S.E.2d 714, 717 (S.C. 2000) (quoting Hilton Head 

Center of S.C., Inc. v. Pub. Serv. Comm'n, 362 S.E.2d 176, 177 

(S.C. 1987)). 

 Code § 63.1-237 purports to restrict a party's ability to 

bring a collateral action asserting extrinsic fraud in order to 

set aside an adoption. Code § 63.1-237 provides as follows: 

 After the expiration of six months from 

the date of entry of any final order of 

adoption from which no appeal has been taken 

to the Court of Appeals, the validity 

thereof shall not be subject to attack in 

any proceedings, collateral or direct, for 

any reason, including but not limited to 

fraud, duress, failure to give any required 

notice, failure of any procedural 

requirement, or lack of jurisdiction over 

any person, and such order shall be final 

for all purposes. 

This statute roughly tracks the language of the Revised Uniform 

Adoption Act, except that the Uniform Act provides for a 

one-year limitation period. See Revised Unif. Adoption Act 

(RUAA) § 15(b) (amended 1971), 9 U.L.A. 203 (1999); see also

Uniform Adoption Act § 3-707(d) (1994), 9 U.L.A. 97-98 

(providing that, without exception, a decree of adoption "is not 

subject to a challenge begun more than six months after the 

 - 9 - 
decree or order is issued"). The commentary accompanying the 

RUAA "explains that it is designed to impose a very short 

statute of limitation" because "'[t]he policy of stability in a 

family relationship, particularly when a young minor is 

involved, outweighs the possible loss to a person whose rights 

are cut off through fraud and ignorance.'" McKinney v. Ivey, 

698 S.W.2d 506, 507 (Ark. 1985) (quoting 9 U.L.A. 48 (1979)). 

 Father concedes that literal application of the statute 

would bar his petition to set aside the adoption. The adoption 

was effected by order entered October 24, 1995; his petition to 

set aside was filed on September 24, 1998, well outside the 

six-month limitation period. He contends, however, that 

application of Code § 63.1-237's limitation period to bar his 

challenge to the validity of the adoption violated his due 

process and equal protection rights. We agree that the statute 

is unconstitutional as applied to the facts of this case. 

The due process clauses of the Federal and 

Virginia Constitutions provide that no 

person shall be deprived of life, liberty, 

or property without due process of law. 

 All actions of the General Assembly are 

presumed to be constitutional. Thus, courts 

will declare an enactment unconstitutional 

only when it clearly is repugnant to some 

provision of either the state or federal 

constitution. The party challenging the 

enactment has the burden of proving its 

unconstitutionality, and if a reasonable 

doubt exists as to its constitutionality, 

the doubt must be resolved in favor of its 

validity. 

 Generally, due process is satisfied if 

an enactment has a "reasonable relation to a 

 - 10 - 
proper purpose and [is] neither arbitrary 

nor discriminatory." Thus, under the 

general rule, a statute is not violative of 

due process if it withstands a "rational 

basis" test. When, however, a statute 

affects a fundamental right or a suspect 

classification, its constitutionality will 

be judged by the "strict scrutiny" test. 

Hess v. Snyder Hunt Corp., 240 Va. 49, 52-53, 392 S.E.2d 817, 

820 (1990) (citations omitted). When a statute "significantly 

interferes with the exercise of a fundamental right, it cannot 

be upheld unless it is supported by sufficiently important state 

interests and is closely tailored to effectuate only those 

interests." Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct. 

673, 682, 54 L. Ed. 2d 618 (1978). 

 On several occasions, the United States Supreme Court has 

considered a parent's interest in the relationship with his or 

her child. See Lehr v. Robertson, 463 U.S. 248, 256-58, 103 

S. Ct. 2985, 2990-91, 77 L. Ed. 2d 614 (1983). 

In the vast majority of cases, state law 

determines the final outcome. . . . In some 

cases, however, this Court has held that the 

Federal Constitution supersedes state law 

and provides even greater protection for 

certain formal family relationships. . . . 

In these cases the court has found that the 

relationship of love and duty in a 

recognized family unit is an interest in 

liberty entitled to constitutional 

protection. "[S]tate intervention to 

terminate [such a] relationship . . . must 

be accomplished by procedures meeting the 

requisites of the Due Process Clause." 

Id. at 256-58, 103 S. Ct. at 2991 (quoting Santosky v. Kramer, 

455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 

 - 11 - 
(1982)) (emphasis added) (other citations omitted). "'[T]he 

interest of parents in their relationship with their children is 

sufficiently fundamental to come within the finite class of 

liberty interests protected by [the Due Process Clause of] the 

Fourteenth Amendment.'" M.L.B. v. S.L.J., 519 U.S. 102, 119, 

117 S. Ct. 555, 565, 136 L. Ed. 2d 473 (1996) (quoting Santosky, 

455 U.S. at 774, 102 S. Ct. at 1405 (Rehnquist, J., dissenting) 

(noting that Court was unanimously of Rehnquist's view on this 

point)) (emphasis added). 

 The Court also has examined "the extent to which the 

Constitution affords protection to the relationship between 

natural parents and children born out of wedlock." Lehr, 463 

U.S. at 258, 103 S. Ct. at 2991. The Court has drawn a clear 

distinction between "a mere biological relationship and an 

actual relationship of parental responsibility." Id. at 259-60, 

103 S. Ct. at 2992. 

The difference between the developed 

parent-child relationship . . . and the 

potential relationship . . . is both clear 

and significant. When an unwed father 

demonstrates a full commitment to the 

responsibilities of parenthood by "com[ing] 

forward to participate in the rearing of his 

child," his interest in personal contact 

with his child acquires substantial 

protection under the Due Process Clause. At 

that point it may be said that he "act[s] as 

a father toward his children." . . . [T]he 

mere existence of a biological link does not 

merit equivalent constitutional protection. 

 - 12 - 
Id. at 261, 103 S. Ct. at 2993 (quoting Caban v. Mohammed, 441 

U.S. 380, 389 n.7, 392, 99 S. Ct. 1760, 1766 n.7, 1768, 60 

L. Ed. 2d 297 (1979)). Therefore, a biological parent who 

participates in the rearing of his or her child has a 

fundamental right to continue to participate in that 

relationship unless the relationship is altered or terminated by 

due process of law. See id.; see also McKinney, 698 S.W.2d at 

508; Wade v. Geren, 743 P.2d 1070, 1073-74 (Okla. 1987) 

(affirming trial court's ruling that father who had established 

relationship with child had due process right to notice of 

grandparents' adoption petition and that grandparents' failure 

to disclose father's identity and pending paternity action 

constituted fraud which rendered the adoption decree void). 

 In father's case, based on the facts alleged in his 

petition to set aside the adoption, father had a fundamental 

right not to have his already-established relationship with his 

biological child terminated without due process.4 Because the 

limitation period contained in Code § 63.1-237 affected father's 

 4

 The dissent concludes that the dispute between father and 

grandmother is over custody of the child and that "[n]othing in 

this record suggests that the adoptive mother [grandmother] has 

custody based on a decree that would put the father at a 

disadvantage . . . ." This mistates the effect of the order of 

adoption under Virginia law. Pursuant to the statutory scheme 

applicable to these proceedings, see Code § 63.1-233 (Repl. Vol. 

1995) (repealed and recodified as amended at § 63.1-219.22), the 

final order of adoption, in fact, "divested [father] of all legal 

rights and obligations in respect to the child" because father 

was not "the husband or wife of . . . [petitioner grandmother]." 

Thus, entry of the order of adoption terminated father's parental 

rights, and father has no legal justification for seeking custody 

of his biological child. 

 - 13 - 
fundamental right to maintain that relationship with his son, we 

evaluate its constitutionality, as applied to the facts of this 

case, under the "strict scrutiny" test. See Hess, 240 Va. at 

52-53, 392 S.E.2d at 820. The statute "significantly interferes 

with the exercise of a fundamental right," and "it cannot be 

upheld unless it is supported by sufficiently important state 

interests and is closely tailored to effectuate only those 

interests." Zablocki, 434 U.S. at 388, 98 S. Ct. at 682. 

 We agree that the state has a compelling interest in 

"'[preserving] stability in a family relationship, particularly 

when a young minor is involved.'" McKinney, 698 S.W.2d at 507. 

We disagree, however, that application of the six-month statute 

of limitation under the facts of this case is sufficiently 

narrowly tailored to achieve the goal of stability while 

simultaneously preserving father's fundamental right to continue 

the pre-existing relationship with his biological child. The 

facts alleged in father's petition to set aside the adoption, if 

taken as true, confirm the existence of this relationship. The 

petition alleges that the child resided with his mother and 

father for ten months prior to being injured in a car accident 

at fourteen months of age. Father remained at his child's 

bedside throughout the course of his hospitalization. Although 

father and grandmother agreed that grandmother would take care 

of the child upon his release from the hospital because he would 

require constant attention due to his injuries, father did not 

 - 14 - 
abandon his relationship with his son. To the contrary, the 

child routinely resided with father overnight on the weekends, 

and father "[saw] and care[d] for" the child during the week, as 

well. When father married about one and one-half years later, 

he and his new wife "continued the established pattern of 

frequent and prolonged visitation with [J.B.] in their home and 

[grandmother's] home. Some of these visits lasted for two weeks 

or more, and at least one included a trip out of state." Under 

the facts alleged, father was no stranger to his child. 

Therefore, allowing father to attack the order of adoption more 

than six months after its entry based on grandmother's alleged 

extrinsic fraud would not have jeopardized the state's 

compelling interest in maintaining the stability of the family 

relationship. Grandmother's refusal to allow father any contact 

with the child likely has been more disruptive than an order 

setting aside the adoption would have been. 

Furthermore, the facts alleged, if taken as true, also 

establish that grandmother's extrinsic fraud resulted in a lack 

of notice to and personal jurisdiction over father. Although 

the court may have believed it acquired personal jurisdiction 

based on father's execution of the Consent to Adoption form, the 

acquisition of personal jurisdiction is based on the receipt of 

notice which complies with the Due Process Clause. See Price v. 

Price, 17 Va. App. 105, 112, 435 S.E.2d 652, 657 (1993) (citing 

Kulko v. Superior Ct., 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 

 - 15 - 
L. Ed. 2d 132 (1978)). Due process requires "'notice reasonably 

calculated, under all the circumstances, to apprise interested 

parties of the pendency of the action and afford them an 

opportunity to present their objections.'" Armstrong v. Manzo, 

380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L. Ed. 2d 62 (1965) 

(quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 

314, 70 S. Ct. 652, 657, 94 L. Ed. 2d 865 (1950)). In this 

case, like in Armstrong, father "did not have . . . the 

slightest inkling of the pendency of [the] adoption 

proceedings." Id. at 548, 85 S. Ct. at 1189; see also Phariss 

v. Welshans, 946 P.2d 1160, 1163 (Or. Ct. App. 1997) (holding 

under Armstrong that statute of limitation was unconstitutional 

as applied where natural mother and adoptive father failed to 

exercise reasonable diligence to serve natural father); In re 

Knipper, 507 N.E.2d 436, 438 (Ohio Ct. App. 1986) (applying 

Armstrong where child's grandparents failed to exercise 

reasonable diligence to serve natural mother). 

 We assume without deciding that father's execution of the 

Consent to Adoption form, filed by grandmother along with the 

petition for adoption, constituted an appearance before the 

court sufficient to permit the court to infer father's receipt 

of notice and submission to the jurisdiction of the court.5 

 

 - 16 - 

5

 Code § 63.1-220.3, subsections (A) to (C), outline the 

general hearing, notice and consent requirements for adoption. 

Code § 63.1-220.3(C)(6) provides that in certain intra-familial 

adoptions, including those in which the prospective adoptive 
Nevertheless, father's petition to set aside alleged that he had 

no understanding of the content of the form and relied on the 

representations of grandmother -- who could reasonably have been 

expected to know of the language barrier -- that the Consent to 

Adoption form was merely to facilitate her oversight of the 

child's medical care. Under these circumstances, grandmother's 

alleged actions constituted extrinsic fraud, and execution of 

the form was not "notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their 

objections." Once the court became aware of these allegations, 

it had a duty to evaluate the adequacy of the notice and 

 

 - 17 - 

parent is the child's grandparent, consent may be written and 

acknowledged and no hearing to confirm consent is required, but 

it does not specifically state whether the petition for adoption 

must be served on a parent who has already executed consent. 

Compare In re Anderson, 589 P.2d 957, 959 (Idaho 1978) (noting 

legislature has provided that execution of consent to adopt also 

serves as general appearance in court where adoption petition is 

filed), overruled on other grounds, In re Steve B.D., 723 P.2d 

829, 834 (Idaho 1986), and In re Adoption of Minor Child, 287 

A.2d 115, 122 & n.5 (R.I. 1972) (construing absence of statutory 

notice requirement to mean that parent who executes consent to 

adoption is not entitled to additional notice of adoption 

proceedings), with McCulley v. Bone, 979 P.2d 779, 792 n.16 

(Or. Ct. App. 1999) (noting that biological parents are 

indispensable parties to adoption proceeding; that under 

Oregon's present statutory scheme, parents' written consent to 

adoption does not obviate need for formal notice to parents of 

filing of petition; and that requiring notice is more sensible 

approach where statute permits revocation of consent because, 

under former statutory scheme, absence of separate notice 

requirement "frustrated the parents' . . . ability to revoke 

that consent"). 
jurisdiction.6 See In re Rabatin, 615 N.E.2d 1099, 1102 (Ohio 

Ct. App. 1992) (holding that mother was "presumed to have had 

actual notice of the adoption, and to have effectively waived 

the notice requirement" where she signed a consent to adoption 

form and the record contained no evidence that she was "unable 

to read or otherwise could not understand the consent form she 

signed"). 

 6 The dissent mischaracterizes this passage as containing 

our assumption that the consent executed by father "constituted 

an appearance before the court" and contends that we "forget[] 

that personal jurisdiction . . . is acquired by appearance and 

[that] service of process is not necessary if the party appears 

voluntarily." Contrary to the dissenters' representations, 

however, we assume only that the court was entitled initially to 

infer that father made an appearance based on grandmother's 

submission of the consent form. Father's filing of the petition 

to set aside the adoption due to grandmother's alleged extrinsic 

fraud imposed upon the court a duty to determine whether 

father's appearance via the consent form was, in fact, a 

voluntary appearance sufficient to allow the court to obtain 

personal jurisdiction over father. Under our analysis, the 

dissenters' statement that service of process is not necessary 

if the party appears voluntarily merely begs the question. 

 Further, the dissenters' claim that our decision "subjects 

any existing adoption grounded on consent but entered without 

service of process upon the consenting party to perpetual 

[jurisdictional] challenge" is incorrect. (Emphasis added). 

Our holding is expressly limited to the facts alleged in this 

case, in which (1) the biological father had an established 

relationship with his child; (2) the nature of the father's 

relationship with the child did not change until after the 

statute of limitation had run; and (3) the father had no 

understanding of the content of the consent to adoption form due 

to a language barrier and relied on the representations of 

grandmother that the consent form was merely to facilitate her 

oversight of the child's medical care. The goal of protecting 

the finality of adoptions, though admirable, does not justify 

the wholesale disregard of a parent's constitutional right to 

due process under these limited circumstances. 

 - 18 - 
 Assuming without deciding that father had a duty to act 

diligently to preserve his rights, no evidence indicates he 

failed to do so. Cf. Drummond v. Drummond, 945 P.2d 457, 462 

(N.M. Ct. App. 1997) (in applying equitable estoppel to hold 

that adopting grandparents could not assert statute of 

limitation defense to bar mother's challenge to adoption, noting 

that no evidence showed mother did not act diligently in failing 

to challenge adoption earlier because "there was never a change 

of living circumstances until after the statute of limitations 

had run"). He was unable to read English and reasonably relied 

on grandmother's fraudulent representations that the purpose of 

the "Consent to Adoption" form was merely to allow grandmother 

access to the child's medical records since she would be 

assuming primary responsibility for the child's medical care. 

Until grandmother told father of the adoption over two years 

later, father had no reason to know that his parental rights had 

been terminated. See, e.g., STB Marketing Corp. v. Zolfaghari, 

240 Va. 140, 145, 393 S.E.2d 394, 397 (1990) (construing due 

diligence standard as the "'measure of prudence . . . expected 

from . . . a reasonable and prudent man under the particular 

circumstances . . . depending on the relative facts of the 

special case" (quoting Black's Law Dictionary 411 (5th ed. 

1979)) (emphasis added). Father and grandmother both continued 

to care for the child as they had agreed to do prior to the 

adoption, and no substantive changes occurred in the 

 - 19 - 
relationship. Cf. Drummond, 945 P.2d at 462. Grandmother's 

fraud in misrepresenting to father the effect of the Consent to 

Adoption form and in misrepresenting to the court the parties' 

living arrangements prior to the adoption constituted extrinsic 

fraud sufficient to require the denial of grandmother's 

demurrer. See Hagy, 529 S.E.2d at 717 (holding that statute of 

limitation cannot be constitutionally construed to prevent court 

from setting aside a judgment for extrinsic fraud because doing 

so amounts to an impermissible legislative restriction "on the 

judicial branch's exercise of its inherent authority"). But see

Phariss, 946 P.2d at 1162-63 (rejecting similar 

separation-of-powers argument where adoptive parents allegedly 

failed to use reasonable diligence to serve natural father with 

notice of adoption proceedings but ultimately setting aside 

adoption based on due process violation). 

 We reject grandmother's argument that the statute is 

subject to two interpretations, one which is constitutional and 

another which is not, and should be construed to impose a 

discovery requirement, thereby barring father's claim of fraud 

because he did not file his petition to set aside until more 

than six months after he admitted learning of the fraud. 

Although a statute containing a discovery trigger likely would 

be sufficiently narrowly tailored to pass constitutional muster, 

nothing in Code § 63.1-237 implies that the statute of 

limitation is to begin running on the date on which the fraud 

 - 20 - 
was or should have been discovered. Rather, the statute 

expressly refers to the "expiration of six months from the date 

of entry of any final order of adoption from which no appeal has 

been taken." Code § 63.1-237. The General Assembly was free to 

create a discovery rule when it drafted the statute, but it did 

not do so. See Stewart v. Rouse, 469 S.W.2d 615, 616 (Tex. Civ. 

App. 1971), aff'd in part and rev'd in part on other grounds, 

475 S.W.2d 574, 574-75 (Tex. 1972) (noting legislature acted in 

wake of Armstrong to protect "integrity and stability in the 

adoption process" by creating discovery rule barring petition to 

vacate adoption decree based on lack of notice "'if more than 

one year has elapsed since [natural parent] discovered or should 

have discovered the adoption was decreed'"). Absent such 

language in the statute, father lacked even constructive notice 

that such a limitation might be applied once he became aware of 

the fraud. Thus, without express statutory language imposing a 

discovery trigger, such an interpretation is not available to 

save the statute from unconstitutional application here.7 

 

 - 21 - 

7

 The interpretation grandmother urges is not simply a 

permissible narrowing of a statute which otherwise would be 

unconstitutionally overbroad. See Va. Soc. for Human Life, Inc. 

v. Caldwell, 256 Va. 151, 500 S.E.2d 814 (1998) (holding in free 

speech case that no ambiguity is required to authorize court to 

construe statute more narrowly to save it from 

unconstitutionality). Construing Code § 63.1-237 to impose a 

discovery requirement would actually serve to rewrite the 

statute to impose an additional requirement to bar claims in a 

way which could not reasonably have been foreseen by those to 

whom it purportedly applies. Here, by the time father became 

aware of grandmother's alleged fraud, the statute's express 
Assuming without deciding that some limitation must apply, but 

see Parrish v. Jessee, 250 Va. 514, 521, S.E.2d 141, 145 (1995) 

(noting that extrinsic fraud results in judgment which is void 

ab initio and may be attacked in any court at any time), it 

should be either the general statute of limitation for fraud, 

which provides two years from the date of discovery, see Code 

§§ 8.01-248, 8.01-249, or the doctrine of laches, see Hagy, 529 

S.E.2d at 717 n.7. Under either approach, a lapse of seven 

months from the date of discovery, under the facts of this case 

as alleged in the petition, is insufficient to bar the attack. 

 In summary, we hold, in regard only to grandmother's 

demurrer, that application of the six-month statute of 

limitation to father was unconstitutional and that the adoption 

decree was void ab initio based on grandmother's alleged fraud 

and the resulting lack of notice to and personal jurisdiction 

over father. Therefore, the trial court erroneously granted 

grandmother's demurrer. 

B. 

VISITATION AND APPOINTMENT OF A GUARDIAN AD LITEM

 Father also contests the trial court's refusal to grant him 

visitation and to appoint a guardian ad litem. We hold, 

however, that father lacked standing to make such a request as 

 

limitation period had already expired, and the statute may not 

reasonably be interpreted to alert father to a new statute of 

limitation expiring six months from the date of his discovery. 

 - 22 - 
long as the order of adoption remains in effect; thus, we hold 

the trial court did not err in failing to grant visitation. 

Code § 20-124.1 provides that only a person "with a legitimate 

interest" has standing to request custody or visitation and that 

"[a] party with a legitimate interest . . . shall not include 

any person . . . whose parental rights have been terminated by 

court order, either voluntarily or involuntarily." See also

Code § 63.1-233 (providing that final order of adoption divests 

birth parents of right to petition for visitation). Therefore, 

father will not have standing to request visitation unless or 

until the trial court rules in his favor on the merits by 

setting aside the adoption order.8 For these same reasons, the 

court had no duty to act on father's request for the appointment 

of a guardian ad litem. 

 

 - 23 - 

8

 Contrary to the statement of the trial court in its letter 

opinion, this lack of standing would also prevent father from 

having any meaningful ability to petition to adopt J.B. See

Code § 63.1-233 (providing that final order of adoption divests 

birth parents "of all legal rights and obligations in respect to 

the child"); Stanley v. Illinois, 405 U.S. 645, 647-48, 92 

S. Ct. 1208, 1211, 31 L. Ed. 2d 551 (1972) (noting that equal 

protection violation resulting from Illinois statute providing 

for automatic termination of parental rights of unwed father on 

death of mother was not remedied by fact that father had right 

to petition for adoption of children because Illinois law 

considered him "a stranger to his children," provided him "no 

priority in adoption proceedings," and required him "to 

establish not only that he would be a suitable parent but also 

that he would be the most suitable of all who might want custody 

of the children"). 
III. 

CONCLUSION 

 For these reasons, we reverse the decision of the trial 

court, vacate its order dismissing father's petition, and remand 

for further proceedings consistent with this opinion. 

Reversed, vacated and remanded.

 - 24 - 
Benton, J., with whom Annunziata and Clements, JJ., join, 

 concurring. 

 I concur in the majority opinion's holding that the 

application of the statutory time limitation was 

unconstitutional under the facts alleged in the father's 

petition, which we accept to be true for purposes of reviewing 

the trial judge's grant of the demurrer. I would also hold, 

however, that the former Adoption Act required notice to the 

father and that the adoption order is void because the 

proceeding was conducted without either notice to the father or 

a waiver of notice. Because of the lack of notice, the adoption 

order was entered in violation of the Act and the due process 

clauses of the Virginia and United States Constitutions. 

 I. 

 (A) 

 The record unequivocally establishes that the father did 

not waive notice and did not receive notice of the pending 

adoption proceeding. In unambiguous language, former Code 

§ 63.1-225(A) provides that "[n]o petition for adoption shall be 

granted, except as hereinafter provided in this section, unless 

written consent to the proposed adoption is filed with the 

petition." No statutory exception applies to this case. In 

pertinent part, former Code § 63.1-220.3 provides as follows: 

 - 25 - 
A. The birth parent or legal guardian of a 

child may place his child for adoption 

directly with the adoptive parents of his 

choice. Consent to the proposed adoption 

shall be executed upon compliance with the 

provisions of this section before a juvenile 

and domestic relations district court of 

competent jurisdiction . . . . 

 * * * * * * * 

C. 1. a. The execution of consent before 

the court as set forth in subsection A shall 

not be required of a birth father who is not 

married to the mother of the child at the 

time of the child's conception or birth if 

. . . the birth father consents under oath 

and in writing to the adoption; . . . . 

b. The court may accept the written consent 

of the birth father who is not married to 

the birth mother of the child at the time of 

the child's conception or birth, provided 

that the identifying information required in 

subsection B 3 is filed in writing with the 

court of jurisdiction. Such consent shall 

be executed after the birth of the child, 

shall advise the birth father of his 

opportunity for legal representation, and 

shall be presented to the court for

acceptance. The consent may waive further 

notice of the adoption proceedings and shall 

contain the name, address and telephone 

number of the birth father's legal counsel 

or an acknowledgement that he was informed 

of his opportunity to be represented by 

legal counsel and declined such 

representation. 

c. In the event that the birth mother's 

consent is not executed in court in 

accordance with subsection A, the consent of 

the birth father who is not married to the 

birth mother of the child shall be executed 

in court. 

 * * * * * * * 

 - 26 - 
6. When a child has been placed by the 

birth parent(s) with prospective adoptive 

parents who are the child's grandparents, 

adult brother or sister, adult uncle or aunt 

or adult great uncle or great aunt, consent 

does not have to be executed in court in the 

presence of the prospective adoptive 

parents. The court may accept written 

consent that has been signed and 

acknowledged before an officer authorized by 

law to take acknowledgements. No hearing 

shall be required for the court's acceptance 

of such consent. 

(Emphasis added.) 

 Former Code § 63.1-225(E) provides as follows: 

E. When a child has been placed by the 

birth parent(s) with the prospective 

adoptive parent(s) who is the child's 

grandparent, adult brother or sister, adult 

uncle or aunt, or adult great uncle or great 

aunt, the court may accept the written and 

signed consent of the birth parent which has 

been acknowledged by an officer authorized 

by law to take such acknowledgements. 

(Emphasis added.) 

 Although the adoption order does not specify whether the 

judge accepted the father's consent pursuant to Code 

§§ 63.1-220.3(C)(1)(a) or 63.1-225, the facts alleged in the 

father's petition, which the trial judge accepted as true, 

establish that the father did not place the child with the 

grandmother for the purpose of adoption. Nevertheless, the 

father later signed a "consent" for adoption. Neither of those 

Code sections, however, described or specified the requirements 

that were deemed sufficient to constitute a valid consent. The 

 - 27 - 
only place in the Act that addressed the contents of the consent 

was Code § 63.1-220.3(C)(1)(b), where the following was stated: 

Such consent shall be executed after the 

birth of the child, shall advise the birth 

father of his opportunity for legal 

representation, and shall be presented to 

the court for acceptance. The consent may 

waive further notice of the adoption 

proceedings and shall contain the name, 

address and telephone number of the birth 

father's legal counsel or an acknowledgement 

that he was informed of his opportunity to 

be represented by legal counsel and declined 

such representation. 

(Emphasis added.) 

 By explicitly providing that "[t]he consent may waive 

further notice of the adoption proceeding," id., the Act 

implicitly draws a distinction between consent and waiver of 

notice of the adoption proceeding. The clear import of the Act 

is that consent and waiver are not the same concepts. Moreover, 

nowhere does the Act indicate, even implicitly, that notice to 

the father of institution of the adoption proceeding is not 

required. Indeed, by providing that the judge may accept a 

consent that "waive[s] further notice of the adoption 

proceedings," the Act implicitly recognizes the due process 

requirement that notice be given of the adoption proceeding. 

See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185 (1972) 

(holding that "due process rights to notice and hearing prior to 

a civil judgment are subject to waiver"). 

 - 28 - 
 (B) 

 Other provisions of the Act support the conclusion that the 

legislature intended that notice of the adoption proceedings be 

given to a consenting parent. For example, the Act makes 

consent revocable under the following circumstances: 

D. Consent shall be revocable as follows: 

1. By either consenting birth parent for 

any reason for up to fifteen days from its 

execution. 

a. Such revocation shall be in writing, 

signed by the revoking party or counsel of 

record for the revoking party and shall be 

filed with the clerk of the court in which 

the petition was filed during the business 

day of the court, within the time period 

specified in this section. If the 

revocation period expires on a Saturday, 

Sunday, legal holiday or any day on which 

the clerk's office is closed as authorized 

by statute, the revocation period shall be 

extended to the next day that is not a 

Saturday, Sunday, legal holiday or other day 

on which the clerk's office is closed as 

authorized by statute. 

b. Upon the filing of a valid revocation 

within the time period set out in this 

section, the court shall order that any 

consent given for the purpose of such 

placement is void and, if necessary, the 

court shall determine custody of the child 

as between the birth parents. 

2. By any party prior to the final order of 

adoption . . . upon proof of fraud or duress 

. . . . 

Code § 63.1-2203(D). In a similar vein, the Act also provides 

as follows: 

 - 29 - 
 Parental consent to an adoption executed 

pursuant to this section shall be revocable 

prior to the final order of adoption . . . 

upon proof of fraud or duress . . . . 

Code § 63.1-225(H). 

 These provisions would be rendered meaningless if notice of 

the adoption proceeding is not given to a consenting parent. 

For the statutory right to revoke a consent to have any meaning, 

the parent who has consented must have notice of the institution 

of proceedings in order to revoke consent before the adoption 

takes place. Other courts have reached the same conclusion 

within a similar statutory framework. See McCulley v. Bone, 979 

P.2d 779, 791-92 (1999) (ruling that a parent's right to notice 

in an adoption proceeding is implicit because it "is 

sufficiently basic to be constitutionally protected under the 

Due Process Clause"). Thus, I believe the Act's revocation 

scheme constitutes an implicit recognition by the legislature 

that a consenting parent should receive notification of the 

adoption proceeding. 

 In addition, the Act also contains express requirements of 

notice under the circumstances identified in Code 

§§ 63.1-220.3(C)(1)(a), 63.1-220.3(C)(2) and 63.1-220.3(C)(4). 

These requirements, which relate to circumstances where a 

consent is not given, clearly manifest the legislature's 

awareness of the necessity to satisfy due process requirements. 

 - 30 - 
 (C) 

 The majority "assume[s] without deciding that father's 

execution of the Consent to Adoption form . . . constituted an 

appearance before the court sufficient to permit the court to 

infer father's receipt of notice and submission to the 

jurisdiction of the court." I would not make such an 

assumption. The father did not sign the "consent" in court. 

Moreover, the record reflects that the "consent" the father 

signed did not contain a waiver of notice. The "Consent" reads 

as follows: 

I, [the father], over the age of eighteen 

years, parent of [the child], an infant 

under the age of fourteen years do hereby 

consent that said infant be adopted by [the 

grandmother] and that [the grandmother] be 

vested with all the rights, powers and 

privileges with reference to said child as 

are provided by law. 

The form does not purport to waive notice.9 

 

 - 31 - 

9

 The Uniform Adoption Act of 1994 provides that "[u]nless 

consent is not required or is dispensed with . . . in a direct 

placement of a minor for adoption by a parent . . . , a petition 

to adopt the minor may be granted only if consent to the 

adoption has been executed by . . . the man . . . who . . . has 

received the minor into his home and openly held out the minor 

as his child." § 2-401(a)(1)(iv). Significantly, the Act 

requires that "[a] consent must state: . . . that the 

individual who is consenting waives further notice unless the 

adoption is contested, appealed, or denied." § 2-406(d)(7) 

(emphasis added). Furthermore, although "[a] person entitled to 

receive notice under this [Act] may waive the notice . . . in a 

consent . . . or other document signed by the person," 

§ 3-405(a), the Act expressly provides that "[u]nless notice has 

been waived, notice of a proceeding for adoption of a minor must 

be served . . . upon an individual whose consent to the adoption 
 Without either notice to the father or a waiver of notice, 

the adoption proceeding was not binding on him. He was entitled 

to challenge it because an order of adoption is void when 

"personal jurisdiction over [the natural parent] was lacking at 

the time of the entry of the final order of adoption." Carlton 

v. Paxton, 14 Va. App. 105, 114, 415 S.E.2d 600, 605 (1992). 

 For these reasons, I would read the Act to require either 

notice to the parent or a consent (or other document) that 

waives notice. Therefore, I would hold that the Act implicitly 

requires notice to the father in the absence of a waiver of 

notice. Because the father was not given notice and did not 

waive notice, the adoption is void. 

 II. 

 The United States Supreme Court has been "unanimously of 

the view that 'the interest of parents in their relationship 

with their children is sufficiently fundamental to come within 

the finite class of liberty interests protected by the 

Fourteenth Amendment.' . . . [and] also . . . unanimous[ly of 

 

 - 32 - 

is required," § 3-401(a)(1), and served upon "an individual whom 

the petitioner knows is claiming to be or who is named as the 

father or possible father of the minor adoptee and whose 

paternity of the minor has not been judicially determined," 

§ 3-401(a)(3). Only when a consent is executed in substantial 

compliance with the Act does the parent waive "any right to 

notice of the proceeding for adoption." § 2-407(a)(3). In the 

absence of a waiver, "[p]ersonal service of the notice [of a 

proceeding for adoption of a minor] must be made in a manner 

appropriate under [the rules of civil procedure for the service 

of process in a civil action in this State] unless the court 

otherwise directs." § 3-403(a). 
the] view that '[f]ew consequences of judicial action are so 

grave as the severance of natural family ties.'" M.L.B. v. 

S.L.J., 519 U.S. 102, 119 (1996) (citations omitted). Noting 

that "the relationship of love and duty in a recognized family 

unit is an interest in liberty entitled to constitutional 

protection," the Supreme Court has held that "'state 

intervention to terminate [such a] relationship . . . must be 

accomplished by procedures meeting the requisites of the Due 

Process Clause.'" Lehr v. Robertson, 463 U.S. 248, 258 (1983) 

(citations omitted). Moreover, the Supreme Court recognized 

that "[w]hen an unwed father demonstrates a full commitment to 

the responsibilities of parenthood by 'com[ing] forward to 

participate in the rearing of his child,' his interest in 

personal contact with his child acquires substantial protection 

under the Due Process Clause." Id. at 261 (citation omitted). 

When it comes to severing such a protected interest, "[t]he due 

process concern homes in on the essential fairness of the 

state-ordered proceedings." M.L.B., 519 U.S. at 120. 

 Applying these principles, I would hold that former Code 

§ 63.1-237 could not validly preclude the father's challenge to 

the order because legislation may not abrogate basic due process 

rights to notice of the institution of proceedings. To read the 

Act to allow an adoption to proceed either upon a lack of notice 

to a parent or on a consent by a parent that does not waive 

notice is to give the Act a sweep that contravenes 

 - 33 - 
constitutional rights. These fundamental principles have their 

genesis in well-settled law. 

It is clear that failure to give the 

petitioner notice of the pending adoption 

proceedings violated the most rudimentary 

demands of due process of law. "Many 

controversies have raged about the cryptic 

and abstract words of the Due Process Clause 

but there can be no doubt that at a minimum 

they require that deprivation of life, 

liberty or property by adjudication be 

preceded by notice and opportunity for 

hearing appropriate to the nature of the 

case." "An elementary and fundamental 

requirement of due process in any proceeding 

which is to be accorded finality is notice 

reasonably calculated, under all the 

circumstances, to apprise interested parties 

of the pendency of the action and afford 

them an opportunity to present their 

objections. Questions frequently arise as 

to the adequacy of a particular form of 

notice in a particular case. But as to the 

basic requirement of notice itself there can 

be no doubt, where, as here, the result of 

the judicial proceeding was permanently to 

deprive a legitimate parent of all that 

parenthood implies." 

Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (citations 

omitted). 

 Long before Armstrong, the Supreme Court of Virginia 

applied these same due process principles and ruled as follows: 

The "due process" clauses of the Federal and 

State Constitutions require notice and an 

opportunity to be heard, but the litigants 

have rights which they may waive, if they 

choose, and if waived in a case in which 

they have the right to waive, the judgment 

will be held valid. In this class of cases, 

the question of the jurisdiction of the 

court usually resolves itself into one of 

whether or not there has been "due process," 

 - 34 - 
whether the process has been served in the 

time and manner required by law, or service 

has been waived. Of course, the defendant 

must be properly brought before the court, 

else there will be no jurisdiction over him 

and a judgment against him will be void. 

Shelton v. Sydnor, 126 Va. 625, 630, 102 S.E. 83, 85 (1920). 

Simply put, "'"One of the essentials of due process is 

notice."'" Walt Robbins, Inc. v. Damon Corp., 232 Va. 43, 47, 

348 S.E.2d 223, 226 (1986) (citation omitted). 

 For these reasons, I would also hold that the adoption 

order is void. 

 - 35 - 
Bumgardner, J., with whom Frank, Humphreys and Agee, JJ., join, 

 dissenting. 

I dissent because the majority unnecessarily decides this 

appeal too broadly and on constitutional grounds. The 

implications of this decision will enfeeble adoptions once 

confidently accepted as final and unassailable. The result 

counters the established policy of encouraging adoptions and 

protecting their validity. This appeal does not require the 

decisional approach of the majority. 

In this matter, the father simply appeals the sustaining of 

a demurrer. He brought his petition under Code § 8.01-428(D), 

which preserves the common law "independent action" for 

obtaining equitable relief from a judgment. See Kent Sinclair & 

Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.4, at 

479 (3d ed. 1998). The elements of that action are well defined 

and include "'the absence of fault or negligence on the part of 

the [petitioner].'" Charles v. Precision Tune, Inc., 243 Va. 

313, 318, 414 S.E.2d 831, 833 (1992) (citation omitted). The 

father's fault or negligence in signing a document he could not 

read is apparent from his pleading. Thus, the petition fails to 

plead sufficient facts to permit father's action, see id., and a 

demurrer would be proper because the petition stated no action 

upon which the father was entitled to relief. 

However, that need not be the basis for a decision in this 

matter. The trial court erred in sustaining a demurrer based on 

 - 36 - 
the statute of limitations of Code § 63.1-237. "[T]he defense 

that the statutory limitation period has expired cannot be set 

up by demurrer." Code § 8.01-235. While the father did not 

raise that objection, preferring his broad constitutional 

attack, reversal on this narrow basis is preferable to the 

expansive, constitutional ruling of the majority. 

Nonetheless, the majority holds "the adoption decree was 

void ab initio based on grandmother's alleged fraud and the 

resulting lack of notice to and personal jurisdiction over the 

father." It declares the statute of limitations for adoptions 

unconstitutional as it applied to this father. In reaching this 

decision, the majority assumes the consent executed by F.E. 

"constituted an appearance before the court," but yet it 

concludes the trial court had no personal jurisdiction over him. 

The majority forgets that personal jurisdiction over a person is

acquired by appearance and service of process is not necessary 

if the party appears voluntarily. W. Hamilton Bryson, Bryson on 

Virginia Civil Procedure 107 (3d ed. 1997). 

Instead, the majority permits extrinsic fraud to nullify 

the appearance. By concluding misrepresentations prevented 

personal jurisdiction, the majority makes service of process, 

the other means of obtaining personal jurisdiction over a party, 

a requirement. The majority acknowledges appearance by consent 

but requires service of process. This additional procedural 

mandate has not been the practice or the requirement. The 

 - 37 - 
General Assembly has consistently provided abridged procedures 

to simplify adoptions involving the consent of unwed fathers. 

Before Stanley v. Illinois, 405 U.S. 645 (1972), their consent 

was not required. See Szemler v. Clements, 214 Va. 639, 202 

S.E.2d 880 (1974). After the Supreme Court of the United States 

extended constitutional protections to unwed fathers' parental 

rights in Stanley, the General Assembly revised the requirements 

regarding parental consent. Acts of Assembly 1993 cc. 338, 553. 

Yet, the General Assembly still incorporated exceptions 

regarding unwed fathers. They are not required to give their 

consent in open court, but may consent before a notary upon 

their sworn statement. Code § 63.1-220.3(C)1.a. 

For these reasons, I would reverse the trial court's 

decision sustaining a demurrer based on the statute of 

limitations. On remand, the father could amend any defect in 

his pleading, and the facts surrounding the consent and the 

three-year delay could be properly addressed in a formal 

evidentiary hearing. Most importantly, the trial court could 

address the real issue in this case, the desire of the natural 

father for custody of his child. The trial court could decide 

whether it is in the best interests of the child to live with 

the natural father or the adoptive mother, natural grandmother.10 

 

 - 38 - 

10 Nothing in this record suggests that the adoptive mother 

has custody based on a decree that would put the father at a 

disadvantage such as recognized in Armstong v. Manzo, 380 U.S. 

545 (1965). 
There is no need, at this point, to declare the adoption by the 

grandmother invalid. 

To decide otherwise subjects any existing adoption grounded 

on consent, but entered without service of process upon the 

consenting party, to perpetual challenge as to whether the court 

may have lacked jurisdiction to grant the adoption. 

 - 39 -