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April 27th, 2012 by Robert Franklin, Esq.
The Virginia Supreme Court has ruled that a parent intentionally deprived of parental rights may sue third parties involved in that deprivation.  This is a significant step forward for fathers in their continuing fight for some semblance of equal rights to parent their children.  Interestingly, the case the Virginia Court ruled on was that of our old friend John Wyatt whose daughter was surreptitiously adopted despite the fact that everyone involved knew he was a fit father who wanted to raise his daughter.  Here’s the court’s opinion.

These are the facts of the case according to Wyatt and restated by the Court (John Wyatt is the dad, Colleen Fahland is the mother and E.Z. is their daughter):

E.Z. is the biological daughter of Wyatt and Colleen Fahland,  who are unmarried residents of Virginia.  Prior to E.Z.’s  birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together.  Without
Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption.  While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family.  During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.  Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which
she did.  She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father.  Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to
Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott.  At McDermott’s urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information
about a potential adoption.  Later that day and throughout the week prior to E.Z.’s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.

Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants.  E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed
of the birth.  The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father.  Despite her full knowledge of his address, she
placed question marks as to his contact information on the notarized documents at the urging of McDermott.  Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z.,
signed an agreement stating that they were aware that E.Z.’s custody status might be unclear.  On February 12, Fahland signed an affidavit of relinquishment and transferred custodyto the Zarembinskis, who had travelled to Virginia to pick up
the child.  Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights.

In short, at least two attorneys, one adoption agency and the mother conspired to steal John Wyatt’s child from him.  Given that the adoption was completed in Utah, they succeeded.  But John Wyatt has just begun to fight.  He’s sued the two attorneys and the adoption agency in federal court in Virginia claiming, among other things, that what Jenkins, McDermott and Act of Love did was a civil wrong for which he’s entitled to damages.  And the Virginia Supreme Court agreed.

This is not the first time a state has found a civil cause of action for intentional deprivation of parental rights, but it’s the first time for Virginia.  The Court reasoned that (a) parents have parental rights under both state law and the United States Constitution and (b) where those rights are violated, there must be a legal remedy.  A couple of decades ago, the West Virginia Supreme Court ruled the same way and the Virginia Court basically adopted the reasoning in that case.

Here’s what you have to prove to make out a case of tortious interference with parental rights:

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the
relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial
relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3)
the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Ah, but there’s a catch.  Despite the above, one parent can’t sue the other parent.  That, according to the court is because doing so would potentially add to family strife.  Of course when one parent abducts a child and deprives the other of his ability to have a relationship with the child, you might say there’s a fair amount of conflict already.  But to the court, there’s acceptable conflict and unacceptable conflict.  Child abduction or adoption without the father’s consent or knowledge seems to be the acceptable kind, whereas pursuing his remedy in court for the deprivation of his rights constitutes the unacceptable kind.  Strange reasoning that, particularly for a court of law.

And there’s another catch.  If the person depriving the other of contact with his child does so under the reasonable belief that it’s necessary to protect the child from harm, then he/she has a defense to a suit for interference with parental rights.  It’s the usual child abuse dodge; all she has to say is she thought the dad was an abuser and she’s pretty much free to do what she wants.

Still, the ball has inched down the field.  With any luck, this will discourage the Larry Jenkinses of the world to respect fathers in adoption cases.  Jenkins is the Utah attorney who’s at the center of seemingly every one of the most egregious cases of child theft, that the Beehive State manages to dress up as adoption. 

But now he’s been sued and I’d bet good money he’ll end up paying John Wyatt.  After all, Wyatt and Fahland are still friends and the recitation of the facts in the case strongly indicates that Fahland is on Wyatt’s side.  That means she’ll likely give testimony that she felt torn about adoption, but the two attorneys pressured her into going through with it.  All those claims about her secret meeting with McDermott come from only one person – Colleen Fahland.  So someday, she’ll be sitting in the witness chair giving tearful testimony about how the two attorneys took advantage of a poor young pregnant woman.  Count on it.

That plus the fact that a Virginia jury won’t be too happy with the despicable behavior of a Utah adoption attorney who knows just how little it takes to get an adoption approved in that state, and you have a case that should pay off very handsomely for John Wyatt, as it should.

And what that all means is that adoption agencies and their lawyers may start to be a lot more careful when it comes to shanghai-ing children from their fathers.  What morality doesn’t seem to dictate to these people, maybe money will.

Thanks to Jim for the heads-up.

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