Tortious Interference With Birth Father's Rights

Remember John Wyatt, the Virginia birth father seeking the return of his child adopted in Utah?  The Utah Supreme Court ruled against him, as I reported here, but he has brought suit in federal court in Virginia against the Virginia attorney who arranged the adoption, as well as the Utah attorney, Utah adoption agency, and Utah adoptive parents.  The Virginia Supreme Court issued a ruling on Friday that allows that lawsuit to go forward in federal court.

Here are the facts, as recited in the Virginia Supreme Court opinion (because a procedural rule, the court accepts as true all the facts alleged in Wyatt's complaint, which may or may not actually be proven true in court):
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 custody to the Zarembinskis, who had travelled to Virginia to pick up the child.
OK, Civics lesson first!  Why is John Wyatt in federal court?  And what does the Virginia state court have to do with federal court?!  Well, there are two ways to sue in federal court:  1) you need a "federal question," an issue of federal law, U.S. treaties, or the U.S. Constitution, or 2) you need "diversity of citizenship."  Wyatt gets into federal court on that second ground -- the parties he is suing are not all from Virginia, which is where he's from.  "Diversity of citizenship" gives the federal court jurisdiction.

But when a federal court is deciding a case based on diversity jurisdiction, it has to apply the state law of the state where it is sitting, which means Virginia law in this case.  Wyatt is alleging that the attorneys, adoption agency and adoptive parents unlawfully interfered with his parental rights, so the issue becomes what Virginia law says about the matter.  Since no Virginia state court had ever addressed the issue of whether Virginia recognized tortious interference with parental rights as a cause of action, the federal court in Virginia asked the Virginia Supreme Court to answer the question.

OK, back to the merits. The Virginia Supreme Court ruled that the state of Virginia does in fact recognize the tort of interference with parental rights, a cause of action long recognized at common law:
A statutory basis for tortious interference with parental rights is clearly absent from the Virginia Code; we therefore focus our analysis on whether this tort exists at common law. We conclude that, although no Virginia court has had occasion to consider the cause of action, the tort in question has indeed existed at common law and continues to exist today. Furthermore, rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship.
In recognizing this cause of action, the court notes the importance of the parent-child relationship:
We recognize the essential value of protecting a parent's right to form a relationship with his or her child. We have previously acknowledged that "the relationship between a parent and child is constitutionally protected by the Due Process Clause of the Fourteenth Amendment."  Indeed, the Supreme Court of the United States has characterized a parent's right to raise his or her child as "perhaps the oldest of the fundamental liberty interests recognized by this Court." [citations omitted]
So, good news for John Wyatt -- he can sue the attorneys, the adoption agency and the adoptive parents for money damages, including "loss of companionship, mental anguish, loss of services, and expenses incurred to recover the child."  Victory for Wyatt? Well, not really: "We" acknowledge that the most direct and proper remedy, the return of the child and restoration of the parent-child relationship, may never be achieved through a tort action."

The court's ruling has broader application than just to John Wyatt, but the court is clearly horrified by the facts of this case:
It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law. The facts as pled indicate that the Defendants went to great lengths to disguise their agenda from the biological father, including preventing notice of his daughter's birth and hiding their intent to have an immediate out-of-state adoption, in order to prevent the legal establishment of his own parental rights. This Court has long recognized that the rights of an unwed father are deserving of protection. The tort of tortious interference with parental rights may provide onemeans ofsuch protection. Finally, we hope that the threat of a civil action would help deter third parties such as attorneys and adoption agencies from engaging in the sort of actions allegedto have takenplace. [citations omitted]
I wish I was as hopeful as the court that the threat of lawsuits or money damages would deter attorneys and adoption agencies. I think it's more likely that they'll just consider such suits as the cost of doing business, and just pass on the costs to adoptive parents, who will happily pay so long as they get to keep the child. . . .