Zorija Castillo v. Catherine Bell
0859173
Va. Ct. App. UNov 14, 2017Background
- Castillo is the biological mother of two children removed for abuse/neglect in 2006 and placed with paternal grandparents Catherine and Fleming Bell in 2007.
- The Bells moved to Rockbridge County in 2009, informed the juvenile court of the address change but requested their address be kept under seal; Castillo also requested her address be kept confidential.
- The Bells filed for adoption on March 11, 2010, proceeded by order of publication in a Rockbridge County newspaper, and a final adoption order was entered June 21, 2010.
- Castillo learned of the adoption in 2010 but did not file to set aside the adoption until April 4, 2016, alleging she was never served and did not consent.
- At the April 14, 2017 hearing the trial court found no evidence of fraud by Catherine Bell, found Bell did nothing to prevent Castillo from learning of the adoption, and concluded it was inappropriate to set aside the adoption more than six months after entry; Castillo appealed only that finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in finding Bell did nothing to prevent Castillo from learning of the adoption | Castillo contends Bell took actions to prevent notice and thus the adoption should be set aside | Bell (and court) contend there was no evidence she prevented Castillo from learning of the adoption | Appeal not preserved properly; alternatively, even on merits, Castillo knew of the adoption in 2010 and waited beyond statutory six-month bar, so no relief |
| Whether adoption may be attacked after six months under Code § 63.2-1216 | Castillo sought to attack final adoption despite delay | Bell argued § 63.2-1216 bars collateral or direct attack after six months absent successful preservation of fraud claim | Court applied § 63.2-1216 to bar relief; noted F.E. v. G.F.M. exception but no fraud found here |
| Whether Castillo preserved her objection for appeal by endorsing the order "Seen and objected to" | Castillo argues her endorsement preserved appellate review | Bell argues endorsement was insufficient; court relied on precedent requiring clearer grounds | Court found endorsement insufficient to preserve the specific objection |
| Whether attorney’s fees should be awarded to Bell/Blue Ridge Legal Services | Bell requested fees for indigent representation program | Castillo did not justify denial; Bell sought fees under O’Loughlin | Court denied attorney’s fees request |
Key Cases Cited
- Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (Va. Ct. App.) (general rule that endorsement "seen and objected to" insufficient to preserve issue)
- Herring v. Herring, 33 Va. App. 281, 532 S.E.2d 923 (Va. Ct. App.) (endorsed objection may preserve issue only if ruling narrow enough to show basis)
- Mackie v. Hill, 16 Va. App. 229, 429 S.E.2d 37 (Va. Ct. App.) (clarifies preservation standard for endorsements)
- F.E. v. G.F.M., 35 Va. App. 648, 547 S.E.2d 531 (Va. Ct. App.) (en banc) (found fraud by caretaker and addressed constitutionality/application of § 63.2-1216 under those facts)
- O’Loughlin v. O’Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (Va. Ct. App.) (discusses award of attorney’s fees in family law contexts)