On July 14, 2020, in the case of John Berry v. Mary Barnes, Tricia Ann Scanlon and Donald Edward Scanlon, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in finding appellant lacked standing where a man may timely register with the Virginia Birth Father Registry within ten days of a child’s birth regardless of whether he has been notified previously of the Registry pursuant to Code 63.2-1250(F).
In this case, unmarried parents conceived a child. Father accompanied mother to two adoption agencies for more information about adoption but objected at both agencies. One of the agencies connected mother with a prospective adoptive couple and worked to facilitate the adoption. That agency sent father a letter informing father of the Virginia Birth Father Registry (“VBFR”) as required by Virginia Code Section 63.2-1250(F).
Thereafter, the adoptive parents filed a petition in the juvenile and domestic relations district court requesting that the court accept mother’s consent pursuant to Code Section 63.2-1233. The same day as the filing father received notice that he was registered with the VBFR. The child was born two days later. At the next hearing, the prospective adoptive couples petition was heard. The juvenile court said that although father had registered, he had not “timely” registered.
Father appealed to circuit court. In response, mom revoked her consent to the adoption. A hearing was scheduled in circuit court. The prospective adoptive parents filed a plea in bar alleging father lacked standing. The circuit court agreed with the prospective adoptive parents finding that father lacked standing to bring the appeal per the VBFR Act.
This appeal followed.
This was a parental placement adoption. Where a birth mother places a child for adoption, consent to adoption must also be executed “by any man who is an acknowledged father under Section 20-49.1, is an adjudicated father under Section 20-49.8, is a presumed father…, or has registered with the” VBFR.
Consent of the birth father is not required when birth father is not married to the mother of the child at the time of the child’s conception or birth if the putative father named by the birth mother did not register with the VBFR.
A man timely registers when the registration “is received by the Department [of Social Services] within (i) ten days of the child’s birth or (ii) the time specified in Subsection C or F.” Virginia Code Section 63.2-1250(E). According to F, “[r]egistration is timely if the signed registration form is received by the Department [of Social Services] within 10 days of personal service of the written notice or within 13 days of the certified mailing date of the written notice. The person service or certified mailing may be completed either prior to or after the birth of the child.”
Father had standing because he did timely register. Father filed within ten days pursuant to 63.2-1250(E)(i). The child was born on August 28, 2019. The father had until September 7, 2019 to register. The father sent to the DSS the required form dated August 21, 2019, and received on August 26, 2019, a return letter from the Department notifying him that his “name ha[d] been entered into the” VBFR. Therefore, the father was timely registered before the consent hearing. That Code section provides to distinct circumstances in which registration with the VBFR is timely. Both parties agree that father filed within ten days of the child’s birth which is alternative (i), but did not file within the time specified in subsection F, which is alternative (ii).
The trial court erred because it held that once the time period began to run pursuant to alternative (ii), the father couldn’t timely register using alternative (i). In essence, the court interpreted the statute to say a registration is timely if it is completed “by the earlier of alternative (i) or (ii),” but the statute is clear.