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Permissible Adoption Payments in Virginia FAQ

Question 1: Can we as Virginia residents pay an attorney out in California his fee to match us with a birth mom or find us a child to adopt? Answer: No that is an illegal and unlawful payment that could subject you to a Class 6 felony charge in Virginia. Question 2: Can we as Virginia residents pay “We Will Find you a Baby Adoptions” a fee to match us with a Read More

Making Sure Your Medical Bills Get Paid if You are in an Accident

If you are in an accident – and you are injured – be sure to know the various sources for getting your medical bills paid. These include: health insurance, workers compensation (if the accident happened while you were on the job), medical payments coverage and, lastly, liability coverage. Regardless of who is at fault for the accident– it is important to check to see if there is medical payments coverage. If Read More

Personhood bill introduced in VA

A personhood bill has been introduced in VA -- Washington Post this morning says they are going to try to push it through while there are Republican majorities in both houses. The bill provides that "unborn children at every stage of development enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the commonwealth, subject only to the laws and constitutions of Virginia and the United Read More

Ten Thrifty Employment Tips in Thirty Minutes

Ten Thrifty Employment Tips in Thirty Minutes

A Presentation by

Colleen Marea Quinn, Esq.

Locke & Quinn

4928 West Broad Street

Richmond, VA 23230

804-545-9406

804-545-9411 (fax)

quinn@lockequinn.com

www.reproductionattorney.com

Here's a sample of what's in the presentation:

Tip No. 1: Have a Comprehensive Employee Handbook

Tip No. 2: Have a Drug Testing Policy

Tip No. 3: Do

Read More

Recognizing and Eliminating Sexual Harassment

Recognizing and Eliminating Sexual Harassment

The Journal of the Virginia Trial Lawyers Association, Winter 2000-2001 Recognizing and Eliminating Sexual Harassment Comments and guidelines for a congenial workplace by Colleen M. Quinn Click Here To Download/View  -> Recognizing and Eliminating Sexual Harassment

Traps and Pitfalls in Handling Immunity Cases

Traps and Pitfalls in Handling Immunity Cases

The Journal of the Virginia Trial Lawyers Association, Volume 20 Number 1, 2008 Traps and Pitfalls in Handling Immunity Cases by Colleen M. Quinn Click Here To Download/View  -> Traps and Pitfalls in Handling Immunity Cases

Injury Case Intake

Injury Case Intake

The Journal of the Virginia Trial Lawyers Association, Fall 2004 Evidence Injury Case Intake - a primer on preserving and gathering the evidence

by Colleen M. Quinn Click Here To Download/View  -> Injury Case Intake

The Employment Law Claim Checklist

FOR VIRGINIA ATTORNEYS

Prepared By

Colleen Marea Quinn, Esq. Locke & Quinn, PLC 4928 West Broad Street Richmond, VA 23230 Main: (804) 285-6253 Direct: (804) 545-9406 Fax: (804) 545-9411 quinn@lockequinn.com www.lockequinn.com http://quinnlawcenters.com/ H. Aubrey Ford, III, Esq. Cantor Stoneburner Ford Grana & Buckner 1111 E. Main Street, Suite 1600 Richmond, VA 23218 Main: (804) 644-1400 Toll Free: 1-800-648-1488 Direct: (804) 343-4360 Fax: (804) 644-9205 aford@virginiatrialfirm.com www.virginiatrialfirm.com

Click Here to Download as PDF

Read More

NBI ADOPTION LAW PRIMER

NBI ADOPTION LAW PRIMER: A PRACTICAL OVERVIEW OF ADOPTION LAW - 2010

Colleen M. Quinn, Esq.

Locke & Quinn

4928 West Broad Street

Richmond, VA 23230

(804) 545-9406

quinn@lockequinn.com

Click Here to Download this as a PDF ->

NBI ADOPTION LAW PRIMER: A PRACTICAL OVERVIEW OF ADOPTION LAW - 2010

I. The Home Study A.   What is it? 1.     Assessment of the person(s) seeking to Read More

Representing Birth Mothers in Virginia

Colleen Marea Quinn, Esq.

The Adoption & Surrogacy Law Center

at Locke & Quinn

quinn@lockequinn.com

www.virginia-adoption-attorney.com

Click Here to Download this as a PDF ->

Representing Birth Mothers in Virginia

Direct (Parental) Placements – In-State and Inter-State. (1)  General Items to Cover. There are quite a number of fundamental items to cover with a birth mother. These include the following: The Read More

RICHMOND: 804-285-6253
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Permissible Adoption Payments in Virginia FAQ


Question 1: Can we as Virginia residents pay an attorney out in California his fee to match us with a birth mom or find us a child to adopt?

Answer: No that is an illegal and unlawful payment that could subject you to a Class 6 felony charge in Virginia.

Question 2: Can we as Virginia residents pay “We Will Find you a Baby Adoptions” a fee to match us with a birth mom or find us a child to adopt?

Answer: If they are not a licensed child placement agency, then NO you may not pay them as that is an illegal and unlawful payment that could subject you to a Class 6 felony charge in Virginia. You can ONLY pay a licensed child placement agency to find you a child or a birth parent situation or a “matching” fee. You should ask any such agency for a copy of its license. WATCH OUT FOR LICENSED FACILITATORS! They may have a “license” but they are not licensed child placement (adoption) agencies.

Question 3: Can we promise a birth mother in Virginia that we will pay for all her living expenses throughout the pregnancy?

Answer: No. you cannot make a blanket promise as living expenses are limited. You can only pay or reimburse for reasonable and necessary expenses for food, clothing, and shelter when, upon the written advice of her physician, the birth mother is unable to work or otherwise support herself due to medical reasons or complications associated with the pregnancy or birth of the child.

Question 4: If the birth mother cannot get a written note from her doctor, then what can we pay on her behalf without such a doctor’s note?

Answer: You can pay for the following:

  • Her fees for her own attorney or legal representation,
  • Her mental health counseling or adoption counseling fees,
  • Any payment or reimbursement for medical expenses and insurance premiums that are directly related to the birth mother’s pregnancy and hospitalization for the birth of the child who is the subject of the adoption proceedings,
  • Any expenses incurred for medical care for the child; and,
  • Payment or reimbursement for reasonable expenses incurred incidental to her having to attend any required court appearance including, but not limited to, transportation, food and lodging.

Here are the relevant Virginia Code sections:

§ 63.2-1218. Certain exchange of property, advertisement, solicitation prohibited; penalty.

No person or child-placing agency shall charge, pay, give, or agree to give or accept any money, property, service or other thing of value in connection with a placement or adoption or any act undertaken pursuant to this chapter except (i) reasonable and customary services provided by a licensed or duly authorized child-placing agency and fees paid for such services; (ii) payment or reimbursement for medical expenses and insurance premiums that are directly related to the birth mother’s pregnancy and hospitalization for the birth of the child who is the subject of the adoption proceedings, for mental health counseling received by the birth mother or birth father related to the adoption, and for expenses incurred for medical care for the child; (iii) payment or reimbursement for reasonable and necessary expenses for food, clothing, and shelter when, upon the written advice of her physician, the birth mother is unable to work or otherwise support herself due to medical reasons or complications associated with the pregnancy or birth of the child; (iv) payment or reimbursement for reasonable expenses incurred incidental to any required court appearance including, but not limited to, transportation, food and lodging; (v) usual and customary fees for legal services in adoption proceedings; and (vi) payment or reimbursement of reasonable expenses incurred for transportation in connection with any of the services specified in this section or intercountry placements as defined in § 63.2-100 and as necessary for compliance with state and federal law in such placements. No person shall advertise or solicit to perform any activity prohibited by this section. Any person violating the provisions of this section shall be guilty of a Class 6 felony. The Commissioner is authorized to investigate cases in which fees paid for legal services appear to be in excess of usual and customary fees in order to determine if there has been compliance with the provisions of this section.

§ 63.2-1219. Suspected violation of property exchange information.

If the juvenile and domestic relations or circuit court or any participating licensed or duly authorized child-placing agency suspects that there has been a violation of § 63.2-1218 in connection with a placement or adoption, it shall report such findings to the Commissioner for investigation and appropriate action. If the Commissioner suspects that a person has violated § 63.2-1218, he shall report his findings to the appropriate attorney for the Commonwealth. If the Commissioner believes that such violation has occurred in the course of the practice of a profession or occupation licensed or regulated pursuant to Title 54.1, he shall also report such findings to the appropriate regulatory authority for investigation and appropriate disciplinary action.

Making Sure Your Medical Bills Get Paid if You are in an Accident


If you are in an accident – and you are injured – be sure to know the various sources for getting your medical bills paid. These include: health insurance, workers compensation (if the accident happened while you were on the job), medical payments coverage and, lastly, liability coverage.

Regardless of who is at fault for the accident– it is important to check to see if there is medical payments coverage. If it was an automobile accident – check to see if you have medical payments coverage under your automobile insurance policy. Medical payments coverage is there to cover any of your medical bills for any medical treatment arising out of the accident. And you are entitled to collect it even if you have health insurance or if workers compensation applies. Sometimes businesses also have medical payments coverage for when someone gets injured on the business property.

In addition, usually the amount of medical payments coverage is “stacked.” What that means is, if the amount of coverage showing on the declaration page of your auto policy is $1,000, but you have two cars on the policy, then the total amount of coverage actually is $1000 times two or $2,000.

If you were not at fault, the other source for getting your medical bills paid is the insurance policy of the person or company who is at fault and responsible for the accident. However, since it can take some time to collect against that person’s policy, it is important to look to all the other sources first. If that person did not have insurance, a final resort if it is an automobile case is to see if you have uninsured motorists coverage under your own policy. Depending on the case, sometimes homeowner’s and umbrella policies also might be implicated.

Because insurance policies sometimes can be difficult to understand, and because the sources of recovery and how they interact can be confusing, it is important to consult with a qualified personal injury attorney to maximize your recovery if you are in an accident and ensure all your medical treatment is covered.

Personhood bill introduced in VA


A personhood bill has been introduced in VA — Washington Post this morning says they are going to try to push it through while there are Republican majorities in both houses.

The bill provides that “unborn children at every stage of development enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the commonwealth, subject only to the laws and constitutions of Virginia and the United States, precedents of the United States Supreme Court, and provisions to the contrary in the statutes of the commonwealth.”

The Washington Post reports:

“Republicans, in control of both chambers for only the second time since the Civil War, are looking to pass a slew of bills in the 60-day session that take on abortion. They include banning the procedure after 20 weeks of pregnancy, requiring that insurers that cover abortions also offer policies that do not, and giving rights to a fertilized egg at the moment of conception.”

Related Links:
GOP takes control of Virginia General Assembly >
Virginia Republicans push slew of conservative bills >

Ten Thrifty Employment Tips in Thirty Minutes


Ten Thrifty Employment Tips in Thirty Minutes

A Presentation by

Colleen Marea Quinn, Esq.

Locke & Quinn

4928 West Broad Street

Richmond, VA 23230

804-545-9406

804-545-9411 (fax)

quinn@lockequinn.com

http://www.reproductionattorney.com


Here’s a sample of what’s in the presentation:

Tip No. 1: Have a Comprehensive Employee Handbook

Tip No. 2: Have a Drug Testing Policy

Tip No. 3: Do a Reputable and Thorough Background Check

Tip No. 4: Have a No Weapons Policy

and much much more…

Click Here to Download this Presentation as a PDF ->

Ten Thrifty Employment Tips


Recognizing and Eliminating Sexual Harassment


Recognizing and Eliminating Sexual Harassment

The Journal of the Virginia Trial
Lawyers Association, Winter 2000-2001

Recognizing and Eliminating Sexual Harassment

Comments and guidelines for a congenial workplace

by Colleen M. Quinn

Click Here To Download/View  -> Recognizing and Eliminating Sexual Harassment

Traps and Pitfalls in Handling Immunity Cases


Traps and Pitfalls in Handling Immunity Cases

The Journal of the Virginia Trial Lawyers Association, Volume 20 Number 1, 2008

Traps and Pitfalls in Handling Immunity Cases

by Colleen M. Quinn

Click Here To Download/View  -> Traps and Pitfalls in Handling Immunity Cases

Injury Case Intake


Injury Intake by Colleen M. Quinn


The Journal of the Virginia Trial Lawyers Association, Fall 2004 Evidence

Injury Case Intake – a primer on preserving and gathering the evidence

by Colleen M. Quinn

Click Here To Download/View  -> Injury Case Intake

The Employment Law Claim Checklist


FOR

VIRGINIA ATTORNEYS

Prepared By

Colleen Marea Quinn, Esq.

Locke & Quinn, PLC

4928 West Broad Street

Richmond, VA 23230

Main: (804) 285-6253

Direct: (804) 545-9406

Fax: (804) 545-9411

quinn@lockequinn.com

http://www.lockequinn.com

http://quinnlawcenters.com/

H. Aubrey Ford, III, Esq.

Cantor Stoneburner Ford Grana & Buckner

1111 E. Main Street, Suite 1600
Richmond, VA 23218

Main: (804) 644-1400

Toll Free: 1-800-648-1488

Direct: (804) 343-4360

Fax: (804) 644-9205

aford@virginiatrialfirm.com

http://www.virginiatrialfirm.com

Click Here to Download as PDF ->

The Employment Law Claim Checklist

I.          PRIMARY FEDERAL STATUTES

A.        Title VII of the Civil Rights Act of 1964

[42 U.S.C. § 2000e et seq.]

1.         Application:  Prohibits discrimination in employment, including hiring, firing, compensation, terms, conditions or privileges of employment on the basis of race, color, religion, sex or national origin.  Section 701(k) amendment also prohibits discrimination on the basis of pregnancy.

2.         Coverage:  Title VII applies to all public and private employers with 15 or more employees.

3.         Remedies:

1.         After the Civil Rights Act of 1991, the following remedies are

available under Title VII:

(i)         Back pay (diminished by interim earnings, but including lost benefits).

(ii)        Front pay, including benefits.

(iii)           Equitable relief, including injunction, promotion and/or reinstatement.

(iv)          Compensatory damages, including emotional distress, and medical or psychiatric expenses.

(v)           Punitive damages.

(vi)          Attorney’s fees and costs.

b.         The compensatory and punitive damages now available are subject to a cap based upon the size of the employer.  The caps apply as a restriction on the combined compensatory and punitive damages award, but do not encompass the past and future lost income and benefits, or the attorney’s fees and costs, set separately by the Court.

(i)         15 to 100 employees – $50,000.

(ii)        101 to 200 employees – $100,000.

(iii)       201 to 500 employees – $200,000.

(iv)       500 plus employees – $300,000.

4.         Prevailing defendant/employer recovering attorney’s fees:

A defendant employer is only entitled to attorney’s fees if it

demonstrates that the claim is frivolous, unreasonable or groundless.

The prevailing defendant, however, is entitled to recover taxable

costs.

5.         Jury trials:  Now available as a matter of right to plaintiffs.  However, the Court awards benefits, back pay, front pay, all injunctive relief (including promotion and/or reinstatement) and attorney’s fees and costs.

6.         A Virginia State agency, the Virginia Council on Human Rights, was designated a deferral agency for the purpose of investigating Title VII charges, on March 25, 1994.

7.         Administrative requirements:

a.         Title VII charges must be filed with the EEOC and/or the Virginia Council on Human Rights.  There remains an issue of dispute in the Virginia federal courts as to whether the charge must be filed within 180 or 300 days after “a reasonable plaintiff should have known facts that would support a charge of discrimination,” whether it is mandatory to file with the Council first, and whether the state law employment discrimination claims must be included in the charge to avail the employee of the 300 days.  Compare Tinsley v. First Union Nat. Bank, 155 F.3d 435 (4th Cir. 1998) with Dodge v. Philip Morris, Inc., WL 162955 (4th Cir., March 25, 1999)(rehearing and rehearing en banc denied June 10, 1999).

b.         The EEOC and/or Council will request evidence, typically in the form of exhibits, affidavits, employee interviews, and position statements in conducting investigation.

(i)         Following the investigation, the EEOC or Council will render a determination, either finding “no cause” or “cause” to believe the discrimination occurred.

(ii)        Normally, the EEOC and the Council will issue a “right to sue” letter following the conclusion of the investigation.

(a)       An employee must file suit within 90 days after receipt of the right to sue letter from the EEOC to preserve his/her right to litigate the discrimination charge.  Courts have been inconsistent in interpreting the meaning of “receipt of.”  It is safest to file within 90 days of the file stamp.  If the employee claims receipt more than the 3 day mailing time, the employee should have evidence of the receipt at a later date.

B.         Age Discrimination in Employment Act of 1967

[29 U.S.C. § 621- 634]

1.         Application:  Prohibits discrimination in employment due to plaintiff’s age.  Applies to all employees 40 or older with no maximum age.  Recently, the U.S. Supreme Court held that preferential treatment of older workers (over age 50) over “relatively young” workers (ages 40 to 49) does not violate the ADEA.  General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).

2.         Coverage:  Employers with 20 or more employees, including state and political subdivisions.

3.         Attorney’s fees:  Prevailing plaintiffs are entitled to attorney’s fees and taxable and non-taxable costs.

4.         Jury trial:  Available as a matter of right to plaintiffs.  Since the Court determines whether reinstatement is feasible, front pay, attorney’s fees and costs are determined by the Court.

5.         Charges under this law are also investigated by the EEOC and/or the Virginia Council on Human Rights.

a.         Similar time requirements to Title VII for filing charges with the EEOC or the Council and for filing lawsuits after the EEOC or the Council issues the “right to sue” letter.

(i)         However, the ADEA plaintiffs have an absolute right to file a lawsuit after waiting only 60 days following the filing of an EEOC charge.

6.         A 1990 amendment to the ADEA, the Older Workers Benefit Protection Act, requires that any waiver of rights signed by individuals over 40 years old must now adhere to strict statutory requirements.

a.         The employee must be given written notice of his/her right to have an attorney review any such waiver.

b.         The employee must be given at least a 21-day review period.

c.         The employee must be given 7 days to void any waiver he/she signs.

d.         The employee must be given benefits he/she would not otherwise have been entitled to receive in exchange for the waiver.

e.         Failure to comply with the strict requirements of OWBPA regarding waivers will invalidate the waiver and even permit the employee to retain severance paid and still file suit.  Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).

7.         Remedies:  The ADEA does not provide for compensatory or punitive damages.  Plaintiffs are entitled to the following, however:

a.         Back pay, including benefits.

b.         Front pay, including benefits, for a reasonable period of time, if reinstatement is not feasible.

c.         Discretionary liquidated damages (double recovery for back pay, including benefits), for willful violations of the ADEA.

d.         Equitable relief, including injunction, promotion, and/or reinstatement.

C.        Americans with Disabilities Act of 1990

[42 U.S.C. § 12101 et seq.]

1.         Application:  Prohibits discrimination against a job applicant or employee who is “a qualified individual with a disability.”

2.         Coverage:

a.         Employers with 15 or more employees.

b.         Employees who are qualified individuals with a disability.

(i)         The Act provides protection for any individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position held or desired.

(ii)        “Essential function” means any job task that is fundamental, and not marginal, to the job.

c.         Disability.

(i)         A physical or mental impairment that substantially limits one or more major life activities, or

(ii)        A record of such an impairment, or

(iii)       Being regarded as having an impairment.

d.         Reasonable accommodation:

(i)         The Act requires that a person’s disability be reasonably accommodated so as to enable him/her to perform the job.

(a)       This could involve job restructuring, modified schedules, reassignment to vacant positions, eliminating non-essential elements of the job, redelegating assignments, exchanging assignments with another employee, and redesigning procedures for task accomplishment.

(ii)        Accommodation must be provided unless it constitutes an “undue hardship” on the employer.  “Undue hardship” is defined as an action requiring significant difficulty or expense, such as an action that is unduly costly, extensive, substantial, disruptive or that will

fundamentally alter the nature of a program. The

following factors will be considered.

(a)       The nature and cost of the needed accommodation.

(b)       Site factors, looking at the overall financial resources of the facility in providing the accommodation.

(c)       Parent company factors, looking at the overall financial resources of the entity.

e.         Illegal drug use exception – individuals who currently use illegal drugs are specifically excluded from the definition of an individual with a disability.

f.          Enforcement:

(i)         The powers, remedies and procedures set forth in Title VII are available to the plaintiff.  The EEOC and the Virginia Council on Human Rights enforce the ADA.

(ii)        Punitive damages recoverable only if employer engaged in discrimination with malice or reckless indifference.

(iii)       Employers should note that the new, expanded remedies of the Civil Rights Act of 1991 also apply to ADA plaintiffs including the right to a jury trial.

D.         Family and Medical Leave Act of 1993

[29 U.S.C. § 2601 et seq.]

1.         Application:  Entitles eligible employees to 12 weeks of unpaid leave from employment.

2.         Coverage:  Applies to all employers with 50 or more employees.

3.         Eligible employee.

a.         An eligible employee is one who has been employed by the employer for at least 12 months and has at least 1,250 hours of service (25 hours per week) during the previous 12 months.

4.         Protected leave:

a.         An eligible employee shall be entitled to 12 weeks of leave during a one-year period:

(i)         Because of the birth or adoption of a child.

(ii)        If the employee is needed to care for a son, daughter,

spouse or parent of the employee who has a serious health condition.

(iii)       Because of a “serious health condition” that makes the employee incapable of performing the functions of his or her position.

5.         Paid and unpaid leave:

a.         The 12-week requirement can consist of paid leave, including accrued paid vacation leave, personal leave, medical or sick leave already available to the employee.

b.         FMLA leave is unpaid leave.  There is no requirement that an employer pay an employee for leave under this Act.

6.         Serious health condition.

a.         Serious health conditions are illnesses that require (i) inpatient care in a hospital, (ii) hospice or residential medical care facility, or (iii) continuing treatment by a health care provider.

b.         The employer can require medical certification and a second medical opinion justifying the need for leave for an illness of the employee or a family member.

7.         Enforcement.

a.         Can file action with Secretary of Labor or private suit in court.

b.         Suit must be filed within two years, or within three years if

violation was willful.

c.         May recover lost compensation, lost benefits, attorney’s fees

and costs.


E.         Equal Pay Act of 1963

[29 U.S.C. § 206(d)]

1.         Application:  Prohibits gender based wage discrimination. Requires

same pay to male and female employees when jobs involve equal skills, effort and responsibility and are performed under similar working conditions in the same establishment.  Also prohibits retaliation against complaining employee.

2.         Coverage:  All employers in the “stream of commerce.”

3.         Administrative prerequisites:  None.  However, if the employee files a

charge with the EEOC, and the EEOC chooses to sue on behalf of the employee, the employee may lose his or her independent right to file a private action in Court.

4.         Statute of limitations:

a.         Fair Labor Standards Act time limitations apply.

b.         Two years; or three years for a willful violation.  Measurement of damages runs from time of filing suit in Court.

c.         The Court usually determines whether the conduct constitutes a willful violation and whether the employer acted in good faith.

5.         Remedies:

a.         Back pay, plus discretionary prejudgment interest.

b.         Liquidated damages (double back pay unless the employer proves it acted in good faith and with a sincere and reasonable belief that its conduct was lawful).

c.         Attorney’s fees and costs.

d.         Injunctive relief.

e.         Jury trial.

F.         Section 1981, Civil Rights Act of 1866

[42 U.S.C. § 1981]

1.         Application:  Prohibits purposeful race discrimination in employment, including discharge.

2.              Coverage:  “All persons … shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.”   “’Make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.”

a.         Applies to acts of private individuals unsupported by state

action, as well as city, county and state entities (but certain immunity defenses may apply for state and local officials).

b.         Embraces “disparate treatment” theory of discrimination but not “disparate impact” theory.

3.         Statute of limitations:  2 years.

4.         Administrative prerequisites:  None.

5.         Remedies:

a.         Compensatory and punitive damages – no limit or cap applies.  However, punitive damages must meet the federal standards (where employer’s conduct motivated by evil motive or intent or when it involves reckless or callous indifference to federally protected rights), and will not likely be available against a municipality.

b.         Back pay, including benefits and discretionary prejudgment interest.

c.              Attorney’s fees and costs.

d.              Equitable relief, including injunction, promotion and/or reinstatement.

e.              Jury trial.

G. Section 1983, Civil Rights Act of 1866

[42 U.S.C. § 1983]

1.              Coverage:  Employees may plead a cause of action under Section 1983 to recover for the deprivation of “rights, privileges or immunities secured by the Constitution and laws.”   “Every person” acting under “color of state law” may be sued.  Subject to the varying immunities, this includes private persons, cities, counties and other local government entities.  This may include acts of discrimination, or other deprivations of federal rights, including retaliation against whistleblowers for exercising their First Amendment rights, or other Constitutional rights.

2.              Determining liability of private persons “acting under color of state law” is a proverbial minefield.  Multiple tests have been applied, including the two part “fair attribution” test of the Fourteenth Amendment from the U.S. Supreme Court decision of Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982):

a.         The deprivation must be caused by the exercise of some right

of privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.  In other words, whether the discriminatory act or policy can be ascribed to a governmental decision.

b.         The party charged with the deprivation must be a person who

may fairly be said to be a state actor.

The “state actor” analysis may include the following factors or

tests:

(i)         The “public function” test – the extent to which the (private entity exercised powers which are traditionally reserved to the state.

(ii)        The “state compulsion” test – whether the state exercised such coercive power or provided such significant encouragement, overt or covert, that the choice of the private actor is deemed to be that of the state.

(iii)       The “symbiotic relationship” or “nexus” test – whether there is a sufficiently close nexus between the state and the action of a regulated entity, such that the action of the actor may fairly be treated as that of the state.

(iv)       The “joint action” test – where a private party invokes

the aid of state officials to take advantage of state-created procedures to deprive a private individual of property rights, such as attachment procedures.

3.              Supervisory liability:  Supervisors are not vicariously liable for Section 1983 violations of their subordinates.  Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).   However, the supervisor may be liable if it can be established that he or she occupied a position of responsibility, knew or should have known of the misconduct, and failed to act to prevent future harm.

4.              State liability:  Unless the state has waived its Eleventh Amendment immunity, or Congress has made some exception, a state cannot be sued directly in its own name.

5.         Local Governmental Entities liability:  Under the Monell decision, local entities cannot be sued under a respondeat superior theory for the unconstitutional acts of their employees.  However, Monell also held that a municipality may be sued “like every other § 1983 ‘person’ “ for constitutional deprivations visited pursuant to governmental custom as well as deprivations visited pursuant to a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body’s officers.”  The U.S. Supreme Court further clarified the meaning of official policy, practice or custom in Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985): “[T]he word policy generally implies a course of action consciously chosen from among various alternatives.”   The

Fourth Circuit has made clear in its rulings that it requires the

municipality to have actual or constructive notice of the custom or

usage.  See e.g., Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.

1987).

6.         Administrative prerequisites:  None.

7.         Statute of limitations:  2 years.

8.         Remedies:

a.              Compensatory and punitive damages – no limit or cap applies.  However, punitive damages must meet the federal standards (where employer’s conduct motivated by evil motive or intent or when it involves reckless or callous indifference to federally protected rights), and will not likely be available against a municipality.

b.              Back pay, including benefits and discretionary prejudgment interest.

c.         Nominal damages may be available.

d.         Attorney’s fees and costs.

e.         Equitable relief, including injunction, promotion and/or

reinstatement.

f.               Jury trial.

H.         Fair Labor Standards Act

[29 U.S.C. § 201 et seq.]

1.         Coverage:  All employers in the “stream of commerce.”

2.         Primary requirements:

a.         Minimum wage of $5.15 per hour.

b.         Overtime of 150% of an employee’s regular rate for all hours

worked over 40 in any work week.

3.         Retaliation against employees for exercising rights guaranteed by FLSA is prohibited.  29 U.S.C. § 215(a)(3).

4.         Exemptions:

a.         Primary exemptions.

(i)         Executive.

(ii)        Administrative.

(iii)       Professional.

(iv)       Outside salesman.

b.         Must comply with all technical requirements of any exemption

to be entitled to that exemption.

5.         Statute of limitations:

a.         Two years.

b.         Three years for a willful violation.

6.         Remedies:

a.         In addition to back wages due, employers may be liable for “liquidated” or double his or her unpaid compensation when violations are willful.

b.         Willful or repeated violations may be subject to a civil penalty , not to exceed $1,000 per violation.

I.          Whistleblower Protection Act

[5 U.S.C. § 1213 et seq.]

1.              Coverage:  Prohibits job-related reprisals against federal employees, applicants, or former employees, for disclosing government illegality, waste, corruption, or endangerment of public health and safety.

2.              Administrative prerequisites:  Unless specific exemptions, the employee must present its claim to the Office of Special Counsel.  The complaint should include the precise ground for the whistleblowing retaliation charge.  There is no time limitation specified for the filing of a complaint.

a.         The Special Counsel must acknowledge receipt within 15 days.

b.         The Special Counsel must provide a status report within 90

days.

c.         If the Special Counsel finds reasonable grounds to believe a

“prohibited personnel practice” has taken place, it may seek to have the Merit Systems Protection Board (MSPB) stay the challenged personnel action, and may take action, including petitioning the MSPB, to have the agency correct the violation.

d.         The employee is entitled to provide written comments at stages

of the process.

3.              Right of appeal/review:  If the employee is unsatisfied with the results of the Special Counsel, or if no action is taken within 120 days of the filing of the original complaint, the employee may file an appeal or request for review with the MSPB.  The employee may request a stay of the employment action pending the review or appeal.  The appeals process is governed by 5 U.S.C.§ 1221.   The appeal must be filed within 60 days of receipt of the termination notice.

4.              Referral to Administrative Law Judge:  The hearings of petitions for appeal are governed by 5 C.F.R. § 1209.6(b).  The following must be established for the ALJ to hear the case:

a.         The challenged action is a “personnel action”.

[§ 2302(a)(2)(A)]

b.         the employee is in a “covered position”.

[§§ 2302(a)(2)(A), 2302(a)(2)(B)]

c.         The employee is in a “covered agency”.

[§§ 2302(a)(2)(A), (B), and (C)]

d.         The challenged action is a result of a prohibited personnel

practice.

[§ 2302(b)(8)]

5.         Standards/elements of proof:  The employee must establish the

protected whistleblowing activity was a “contributing factor” in the adverse personnel action.  5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.4(c).  The agency has a complete, affirmative defense if it can establish through “clear and convincing” evidence, that is would have taken the same action absent the employee’s whistleblowing.  5 U.S.C. § 1221(e)(2); 5 C.F.R. § 1209.4(d).

6.         Judicial review:  The employee may file a petition for review in the

Court of Appeals for the Federal Circuit within 30 days of the decision.  5. U.S.C. §7703(b).

J. False Claims Act

[31 U.S.C. § 3729 et seq.]

1.              Primary purpose:  This statute was designed to encourage exposure of fraud against the government by government contractors, welfare benefit recipients, and other entities interacting with the federal government, through the filing of false claims, records or statements.

2.              Causes of action:  The employee may pursue as a qui tam action on behalf of the government, against the entity engaging in the fraud.  The government may intervene in the action.  The employee may have an additional action for retaliation.

3.              Remedies:  The employee may receive as much as 25-30% of the damages recovered in the case, plus attorney’s fees.

II.         PRIMARY VIRGINIA STATUTES

A.        Statutory Conspiracy to Injure Another in Trade, Business or Profession

[Va. Code §§ 18.2-499 and 18.2-500]

1.         Elements of action:  The plaintiff must prove by clear and convincing evidence:

a.         A combination of two or more persons;

b.         For the purpose of (i) willfully and maliciously injuring plaintiff in

his reputation, trade, business or profession; or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act; and

c.         Resulting in damage to the plaintiff.

2.         Malice:

a.         The element of malice may be established with “evidence that the defendant’s primary and overriding purpose is to injure his victim in his reputation, trade, business or profession motivated by hatred, spite, or ill will … Notwithstanding any additional motives defendant may have had to benefit himself or persons other than the victim.”  Greenspan v. Osheroff, 232 Va. 388 (1986).

b.         However, the Virginia Supreme Court has recently held that the code section does not require proof that a conspirator’s primary and overriding purpose is to injure another as long there is proof of legal malice:  that a defendant acted intentionally, purposefully and without legal justification.  Advance Marine Enterprises, Inc. v. PRC Enterprises, Inc., 256 Va. 106 (1998); Commercial Business Systems v. Bell South Services, Inc., 249 Va. 39 (1995).

3.         Combination:

a.         A single entity cannot conspire with itself.  Employees acting within the scope of their employment cannot “combine” with their employer.  Fox v. Deese 234 Va. 412 (1987).

b.         The intracorporate conspiracy doctrine also applies:  A corporation cannot conspire with itself.  Charles E. Brauer, Inc. v. NationsBank of Virginia, 251 Va. 28 (1996).

4.         Statute of limitations:  5 years.

5.         Remedies:

a.         Treble damages. “[W]ithout limiting the generality of the term, ‘damages’ shall include loss of profits.”  Va. Code § 18.2-500(a).

b.         Reasonable attorney’s fees.

B.         The Virginia Equal Pay Act

[Va. Code § 40.1-28.6]

1.         Coverage:  Any employee with a claim for unequal pay based upon gender, where the employer is not covered by Fair Labor Standards Act.

2.              Statute of limitations:  2 years.

3.         Remedies:  The employee shall be entitled to double the amount of

wages in dispute.


C.        The Virginia Human Rights Act

[Va. Code § 2.1-714 et seq.]

1.         Established a new state agency, the Virginia Council on Human Rights, but as a result of 1995 amendments, the Act is currently useless as a source of employee rights.

2.         The Act prohibits unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth,  or related medical conditions, age, marital status or disability, in places of public accommodation, educational institutions, real estate and employment.

a.         The Council is empowered to attempt conciliation between employers and employees when unlawful discrimination is found.

b.         The Council has no enforcement power of its own but may refer findings of unlawful discrimination to other agencies.

3.              Coverage:  For termination cases, only applies to employers employing 5-15 employees and does not include disability or marital status.

4.         Statute of Limitations.  Any claim brought under this section must be           filed within 180 days from the date of the discharge.

5.         Remedies are nominal:

a.         Up to one year back pay with interest.

b.         Attorney’s fees not to exceed 25% of the back pay awarded –

to be paid from the back pay awarded.

c.         Prohibits compensatory or punitive damages.

D.         The Virginians with Disabilities Act

[Va. Code § 51.5-40 et seq.]

1.         Prohibits job discrimination against any otherwise qualified applicant or employee solely because of a disability unless the nature of the disability prevents him/her from “adequately” performing the job.  It also imposes a duty upon the employer to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability “if necessary to assist such person in performing a particular job, unless the employer can

demonstrate that the accommodation would impose an undue burden

on the employer.”  Va. Code § 51.5-41(c).

2.              Coverage:  Every employer in Virginia.  However, it does not cover any employer covered by the federal Rehabilitation Act of 1973.

3.              Jurisdiction:  Any action brought under this section must be brought in chancery in the Circuit Court.

4.              Statutes of limitations.  Any action must be brought within one year “of the occurrence of any violation of rights” but such action is “forever barred” unless the employee or his agent has filed an action, or filed by registered mail, a written statement of the nature of the claim with the potential defendant or defendants within 180 days of the occurrence.

5.              Remedies:

a.         Equitable relief.

b.         Compensatory damages (defined as not including pain and

suffering, and limiting back pay to 180 days from the date of filing the claim, less income received).  Potentially the compensatory damages could include medical or psychiatric bills.  It is not clear if front pay is available.

c.         Attorney’s fees to prevailing party, except that defendant may

not receive attorney’s fees unless the court deems the claim “frivolous, unreasonable or groundless, or brought in bad faith.”

d.         No punitive damages.

e.         The statute specifically states the employee has a duty to

mitigate damages.

E.         Virginia Unemployment Compensation Act

[Va. Code § 60.2-100 et seq.]

1.         Former employee will be entitled to unemployment compensation unless employer proves by a preponderance of the evidence either:

a.         Employee resigned voluntarily (“forced” resignation does not

disqualify an employee from benefits); or

b.         Employee was guilty of misconduct.

(i)         Deliberate violation of company rules or willful disregard of duties and obligations owed to the employer.

(ii)        Employee misconduct such as theft and drug use may constitute misconduct depending upon the circumstances.

(iii)       Mere inefficiency, incapability, mistake or misjudgment are not considered misconduct.

2.         VEC claims are relatively common when former employee does not find new employment.

a.         Liability attaches to last 30-day employer.

b.         Benefits for a maximum of 26 weeks.

F.         Worker’s Compensation Retaliation Statute

[Va. Code § 65.2-308]

1.              “No employer or person shall discharge an employee solely because the employee intends to file or has filed a [worker’s compensation] claim.”  (The work comp claim cannot be a fraudulent claim).

2.              The claim must be brought in “a circuit court having jurisdiction over the employer.”  At least one federal court has held this action is not removable.  Green v. Hajoca Corp., 573 F. Supp. 1120 (E.D. Va. 1983).

3.              Right to jury trial:  Although several federal courts held the matter could not be determined by a jury, the Virginia Supreme Court held in 1998 that a plaintiff was entitled to have the evidence weighed by a jury.  Mullins v. Virginia Lutheran Homes, Inc., 479 S.E.2d 530 (1997).

4.         Remedies:

a.         Equitable relief, including restraining violations, rehiring or

reinstatement.

b.         Actual damages, including back pay plus interest at the judgment rate.

c.         Attorney’s fees.

d.         No punitive damages.

G.        Garnishment Statute

[Va. Code § 34-29]

1.         Prohibits employer from discharging any employee “by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.”   Va. Code § 34-29(f).


H.         Blacklisting – Preventing Employment by Others of Former Employees

[Va. Code § 40.1-27]

1.         “No person doing business in this Commonwealth, or any agent or attorney of such person” after terminating any employee or after the employee voluntarily departed “shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such employee…from obtaining employment with any other person.”

2.         Violation constitutes a misdemeanor, with penalty between $100 and $500.

3.         Employer may provide truthful reference.

a.         But a reference is not required.

b.         Employee also has no right to view his/her personnel file

under Virginia law.

I.          Virginia Wage Act

[Va. Code § 40.1-29]

1.         Employer may virtually never withhold pay of terminated or resigning employee absent voluntary and written authorization.

2.         Willful violation of this section may be a misdemeanor.

III.        VIRGINIA COMMON LAW CLAIMS

A.        Wrongful Discharge in Violation of Virginia Public Policy

1.         Virginia’s non-discrimination public policies:

a.         The decision in Bowman v. State Bank of Keysville, 229 Va.

534 (1985), recognized a tort of wrongful discharge based on Virginia’s public policy.

b.         Standard of proof:  If the discharged employee was exercising

a right protected by public policy, and the plaintiff can establish by a preponderance of the evidence that he or she was discharged because of such exercise, the resulting discharge would be wrongful or tortious.

c.         Public policy:

(i)         Cause of action is limited to discharges which violate public policy (not private rights or interests):  “the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety or welfare of the people in general.”  Miller v. SEVAMP, Inc., 234 Va. 462 (1987).

(ii)        Defendants have generally been successful in persuading courts that the public policy must be enunciated in or underlie a Virginia statute.  Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94 (1996).

d.         While some state and federal courts have been confused by the rulings in Doss v. JAMCO,  254 Va. 362 (1997), and Connor v. National Pest Control Assoc., 257 Va. 286 (1999), the Bowman public policy claim clearly remains a viable cause of action in Virginia as long as it is not based upon the Virginia Human Rights Act.

2.         Virginia’s public policy against employment discrimination.

a.         There is no question that such a public policy exists in the Commonwealth of Virginia.

(i)         Race.

Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98 (1994).

(ii)        Gender.

Wright v. Donelly & Co., 247 Va. 98 (1994); Bailey v. Scott-Gallaher, Inc., 253 Va. 121 (1997).

(iii)       Disability.

Bradick v. Grumman Data Systems Corp., 254 Va. 156 (1997).

(iv)       Age.

Clark v. Manheim, VLW 096-6-061 (Va. Sup. Ct. 1996)(unpublished).

b.         However, there is no longer any such viable cause of action in view of the 1995 amendments to the Virginia Human Rights Act (eradicating any reasonable remedies and damages).  The Virginia Supreme Court has now conclusively held that “the General Assembly, in enacting the 1995 Amendments to the VHRA, eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere.”  Connor v. National Pest Control Association, 257 Va. 286 (1999).  See also Doss v. JAMCO, 254 Va. 362 (1997).

c.         To pursue a Bowman wrongful discharge claim, “an employee must be a member of the class of persons that the specific public policy [enunciated in the Va. statute] was designed to protect.”  The Supreme Court explicitly stated that the public policy wrongful discharge claim is not a generalized “whistleblower” cause of action.  Dray v. New Market Poultry Products, Inc., 258 Va. 187 (1999); see also City of Virginia Beach v. Harris, 259 Va. 220 (2000).

d.         In its most recent pronouncement, the Virginia Supreme Court (in a 4-3 ruling) held that an employee fired for refusing to engage in a sexual relationship with her boss in violation of the policies underlying Virginia criminal statutes could state a viable wrongful discharge claim.  The Court held that the same conduct can support more than one theory of recovery, so the employee’s claim could proceed even though her claim for sexual harassment and sexual discrimination was precluded by the VHRA amendments and the Conner case.  Mitchem v. Counts, 259 Va. 179 (2000).

3.         Statute of limitations:  2 years

[Va. Code § 8.01-245]

4.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.


B.         Actual and Constructive Fraud

1.         Elements of cause of action for actual fraud:

a.         A false representation;

b.         Of a material fact;

c.         Made intentionally and knowingly;

d.         With intent to mislead.

e.         Reliance by the party misled.

f.          Resulting damage to the misled party.

Ashmore v. Herby Morewitz, Inc., 252 Va. 141 (1997).

2.         Requirement of misrepresentation:  Must relate to a present or pre-existing fact and may not ordinarily be predicated upon unfulfilled promises or statements as to future events.  For example, promises made by an individual without any intention of performing them would be actionable.

3.         Reliance must be reasonable:  This includes an obligation of the plaintiff to engage in reasonable inquiry.

4.         Burden of proof:  Clear, cogent and convincing evidence.

Elliott v. Shore Stop, Inc., 238 Va. 237 (1989).

5.         Statute of limitations:  2 years.

[Va. Code § 8.01-243(A)]

6.         Distinction between constructive fraud and actual fraud:   In Virginia, plaintiffs also have a cause of action for Constructive Fraud.  Instead of proving that the defendant intentionally and knowing misrepresented a material fact with the intent to mislead, the plaintiff only need prove the defendant innocently or negligently misrepresented a material fact with the intent that the plaintiff rely upon it.  See VMJI 39.090 (Actual Fraud) and 39.100 (Constructive Fraud).  If the employer has a duty to disclose a material fact but conceals that fact from the employee, a cause of action for constructive fraud may lie.  Cohn v. Knowledge Connections, Inc., 266 Va. 362 (2003).  The standard of proof remains clear and convincing.

7.         Remedies:

a.         Rescission.

b.         Compensatory damages:  Damages and expenses incurred

in reasonable reliance upon the misrepresentation.

c.         Punitive damages:  Must establish proof of actual malice.


C.        Defamation

1.         Plaintiff is entitled to recover if he or she can establish that the defendant made a false statement of fact which was published to a third party resulting in damage to the plaintiff.

2.         Statement of fact:  The offending words must be understood to convey a false representation of fact as opposed to an opinion.  Yeagle v. Collegiate Times, 255 Va. 293 (1998).

3.         Burden of proof:  The plaintiff must prove by a preponderance of the evidence the falsity of the statement.  The defendant does not have the burden to establish truth as a defense.  Food Lion v. Melton, 250 Va. 144 (1995).

4.         Qualified privilege:  Most statements in the employment context are covered by a qualified privilege, which privilege can only be overcome by proving by clear and convincing evidence that the qualified privilege has been abused.  Va. Code § 8.01-46.1 (conferring qualified immunity on employers providing information about employees’ performance, with presumption that employers acted in good faith, rebuttable only by clear and convincing evidence of employers’ knowledge or reckless ignorance of the falsity of such information).  The plaintiff can establish that the defendant abused his/her qualified privilege when:

a.         The defendant knew the statement was false or made it with reckless disregard of whether it was false or not;

b.         That the statement was deliberately made in such a way that it was heard or seen by persons having no interest or duty in the subject of the statement; or

c.         That the statement was unnecessarily insulting;

d.         That the language used was stronger or more violent than was necessary under the circumstances; or

e.         That the statement was made because of hatred, ill will or a

desire to hurt the plaintiff rather than a fair comment on the subject.

Smalls v. Wright, 241 Va. 52 (1991).

5.         Workers’ compensation is not a bar to a defamation action in the employment setting.  Williams v. Garraghty, 249 Va. 224 (1995).

6.         Statute of limitations:  1 year.  Most courts find that a plaintiff’s defamation cause of action accrues at the time of the defendant’s communication– even if the plaintiff does not learn about it until later.

[Va. Code § 8.01-247.1]

7.         Remedies:  In the case of per se defamation, the plaintiff is entitled to presumed damages, as well as:

a.         General compensatory damages.

b.         Punitive damages – but only if the plaintiff establishes

constitutional malice (knowing falsity or reckless disregard).

Ingles v. Dibley, 246 Va. 244 (1993).

D.         Intentional Infliction of Emotional Distress

1.         Elements of cause of action:

a.         Defendant’s conduct must be intentional or reckless.

b.         Conduct must be outrageous and intolerable, offending

generally accepted standards of decency and morality.

c.         There must a causal connection between the conduct and the emotional distress.

d.         The emotional distress must be severe.

Womack v. Eldridge, 210 S.E.2d 145 (Va. 1974).

2.         Outrageous conduct:  Defendants have mistakenly relied upon Russo v. White, 241 Va. 23 (1991) in support of the proposition that most conduct does not rise to the level of “outrageous conduct.”  In Russo, the defendant had made multiple, successive hang-up calls to Ms. Russo for a period of months.  However, the Virginia Supreme Court held in Russo “We will agree with the plaintiff and assume, without deciding, that defendant’s conduct rose to the level of outrageousness required to support the cause of action.”  241 Va., at 27.  Instead, the Court rejected the claim because Ms. Russo had not alleged sufficiently severe emotional distress.

3.         Severity of emotional distress:  The Virginia Supreme Court has held that absent objective physical injury, medical attention, lost income or confinement to home or hospital, the plaintiff must establish “emotional distress that is so severe that no reasonable person could expect to endure it.”  Russo v. White, 241 Va. 23, 28 (1991).

4.         Burden of proof:  Clear and convincing evidence.

5.         Statute of limitations:  2 years

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

E.         Assault and Battery

1.         Assault – Elements of cause of action:  Any threatening act that puts plaintiff in reasonable fear of physical injury.  (VMJI 36.010)

a.         “Threatening act” is defined as:  “an overt act or an attempt, or the unequivocal appearance of an attempt with force and violence, to do physical injury to the person of another”.  Merritt v. Commonwealth, 164 Va. 653 (1935).  Words or gestures alone, however abusive, cannot amount to assault.  Harper v. Commonwealth, 196 Va. 723 (1955).

2.         Battery – Elements of cause of action:

a.         A touching;

b.         No matter how slight;

c.         Of another person;

d.         In a rude, insulting or angry way.  (VMJI 36.000)

3.         Claims are not barred by Workers’ Compensation Act because injury does not constitute “injury by accident.”  An assault that is “personal to the employee,” not directed against the employee as such, is outside the scope of the Workers’ Compensation Act.  Butler v. Southern States Cooperative, Inc., 270 Va. 459 (2005).

4.         Burden of proof:  Preponderance of the evidence.

5.         Statute of limitations:  2 years

[Va. Code § 8.01-248]

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

F.         Negligent Hiring

1.         Elements for a cause of action:

a.         Proof that an employment relationship exists.

b.         Proof that the employee who caused the injury was unfit for

hiring or retention.

c.         Proof that the employer had actual or constructive knowledge that the employee is unfit.

d.         Proof that the employee’s tortious act was the cause in fact of plaintiff’s alleged injury and that the negligent hiring was the proximate cause of the alleged injury.

e.         The injury must have been foreseeable – not a mere probability – to the employer.

f.          Actual damages or harm must have resulted.

J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988).

2.         Definition:  “Negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others.”  Victory Tabernacle at 211.

3.         In 1988, the Virginia Supreme Court found that an employer could be liable for negligent hiring when it hired an employee who had recently been convicted of aggravated sexual assault and was on probation for that offense where the employee subsequently raped and sexually assaulted a 10-year-old girl he met at the workplace.  Victory Tabernacle, supra.

4.         Statute of limitations:  2 years.

[Va. Code § 8.01-248]

5.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

G.        Negligent Retention

1.         Negligent retention differs from negligent hiring only with regard to the time at which an employer is charged with knowledge of an employee’s unfitness.  Negligent retention occurs when knowledge of unfitness arises during the tenure of employment.

2.              State and federal courts widely disagreed on whether Negligent Retention was a cause of action in Virginia.  In February of 1999, the Virginia Supreme Court unequivocally held that such a cause of action was indeed actionable in Virginia.  Southeast Apartments Management v. Jackman, 257 Va. 256 (1999); Call v. Shaw Jewelers, No. 3:98CV449 (E.D. Va. 1999).

3.         Elements of the claim.  The plaintiff must establish that the employer negligently retained an employee the employer knew or should have known could cause harm to a person because of his employment position.

4.         Critical to the analysis of this tort is the nexus between the conduct

previously engaged in by the employee and the conduct giving rise to a claim of liability against the employer.   The previous conduct must be sufficiently close to put the employer on notice that this employee could engage in similar or related conduct.   In Southeast Apartments Management v. Jackman, the Court held that the nexus was insufficient to put the employer on notice of an assault on an apartment tenant.

5.         Statute of limitations:  2 years.

[Va. Code § 8.01-248]

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

NBI ADOPTION LAW PRIMER


NBI ADOPTION LAW PRIMER: A PRACTICAL OVERVIEW OF ADOPTION LAW – 2010

Colleen M. Quinn, Esq.

Locke & Quinn

4928 West Broad Street

Richmond, VA 23230

(804) 545-9406

quinn@lockequinn.com

Click Here to Download this as a PDF ->

NBI ADOPTION LAW PRIMER: A PRACTICAL OVERVIEW OF ADOPTION LAW – 2010

I. The Home Study

A.   What is it?

1.     Assessment of the person(s) seeking to adopt

2.     Done by local licensed child-placement or adoption agency

3.     Usually about $2000 -$2500, “sliding scale” often the norm

4.     Typically requires:

a.     Criminal record check and child protection services (CPS) clearances for all adults in the household

b.     Medical clearance

c.     Medical, educational, vocational, mental health histories

d.     Financial wherewithal

e.     Recommendations from non-relatives

5.     Agency must “certify” or recommend that the person(s) is/are suitable to adopt

6.     Certification or recommendation oftentimes will be limited to a specific type of adoption and/or ethnicity and age of child (e.g., international, Caucasian child under age of two, bi-racial child under age of two, etc.)

7.     Significant training on adoption issues usually is provided as part of the home study process

B.    Home Study – When Required and When Not?

1.     The home study is the anchor to almost ANY adoption

2.     However, a home study may not be required (and note that this varies widely from state-to-state) in the following adoptions:

a.     step-parent or second parent

b.     adult adoption

c.     relative adoption with some variations

d.     adoption by person named in a will

II. Agency vs. Non-Agency Adoptions (Prix Fixe vs. A La Carte) – Understanding the Fundamental Distinctions

A.   International Placements

1.     International adoptions are most commonly agency placements

2.     Done by experienced agencies and attorneys – but typically agency based

3.     If the other country is a member of the Hague International Treaty then the agency or attorney must have Hague accreditation

4.     In some countries a full adoption will occur whereas in others the adoptive parent(s) may only be given guardianship

5.     Different countries have different requirements and/or restrictions in terms of the characteristics of the adoptive family

6.     May be age restrictions

7.     Single parents or same-sex parents may not be able to adopt

8.     May be medical restrictions

9.     Role of the local attorney (usually not Hague accredited) is to:

a.     Guide the adoptive parent(s) to the right experienced agency (Hague accredited if necessary) for that particular country

b.     Stress the importance of getting certified translations of all the paperwork

c.     Provide an overview of the general process

d.     Handle the re-adoption (also sometimes called a finalization or domestication of a foreign adoption)

10.     Time frames for doing the re-adoption can vary (e.g., in Virginia, adoptive parent(s) can file for re-adoption after  6 months if there are three post-placement visits vs. one year if no post-placement visits)

11.     Countries and agencies vary in terms of the number and timing of post-placement visits required

12.     US Birth certificate from a re-adoption is NOT evidence of citizenship

13.     Watch out for immigration issues!! If you don’t practice immigration law – be sure to refer the adoptive parent(s) to an immigration attorney and document your file

14.     If child did not get a Certificate of Citizenship when came into the US and did not come in on the right visa in order to get citizenship – then the adoptive family may have to do a re-adoption and obtain a certificate of citizenship after meeting the necessary requirements (again – refer them to an immigration attorney)

B.    Domestic Placements – Adoptions within the United States can be either Agency or Non-agency

1.     Agency

a.     Agency takes legal custody and then gives the adoptive parent(s) physical custody; after a certain period.

b.     After a certain period of time which varies from state to state (usually three to six months) the agency then consents to the placement (typically called an agency finalization).

c.     Agency placements typically are “prix fixe” or “all inclusive.” In other words – the agency typically locates the expectant mother, screens the situation, counsels the placing parent(s) on the adoption plan, provides adoptive parent counseling, prepares the adoptive parent home study (although it may already have been done by another agency), takes the entrustment(s)/ relinquishment(s), and terminates parental rights (often using an agency attorney to help with this).

d.     Agency typically does not “represent” either the adoptive parent(s) or the placing parent(s)

e.     Role of adoptive parents attorney is:

i.      to provide legal oversight during the adoption  process (such as review of the agency’s contract with the adoptive parents and negotiation of any changes, provision of any interstate compact advice for interstate placements, and review or oversight of how the placing parent rights will be addressed and terminated by the agency).

ii.     to finalize the adoption in the adoptive parent(s) home state once the required time frame for the agency to consent has passed.

f.      The placing parent typically signs an “entrustment” or “entrustment agreement.” in some states it may be called a “relinquishment.” These usually are taken outside of court.

g.     In the past world of “closed” agency adoptions, typically the placing parent(s) placed the child with the agency and did not “choose” or designate the adoptive family

h.     While a completely “closed” placement is still an option, the placing parent(s) now more commonly are involved in the selection of the adoptive family – even if full identifying information is not disclosed

i.      Public Agencies

i.      Include Department of Social Services or “public” agency placements

ii.     Include involuntary terminations of birth parent rights

iii.   Role of attorney is to finalize the public agency (vs. private agency) placement

iv.   In public agency or foster care placements – watch out for subsidy issues!!

v.     Watch out for continuation of benefit issues!!

2.     Non-Agency

a.     Non-agency placements or adoptions may be called parental, independent, direct or private.

b.     Typically include close relative placements, adult adoptions, step-parent/second-parent adoptions and non-relative placements.

c.     Procedures for close relative, adult, step-parent and second-parent placements typically are streamlined and not as complicated as a non-relative independent placement.

d.     Usually are “a la carte”

i.      Adoptive family pays separately for: adoptive family’s attorney, placing parent(s)’ attorney, adoption or child-placement agency services, attorney for the baby (guardian ad litem) if required.

ii.     Living expenses, medical bills and other lawful expenses may be paid directly by the adoptive family.

iii.   Usually the “a la carte” route is less expensive than the “all inclusive.”

e.     The role of an adoption (or licensed child placement agency) in an independent placement is very different than the role the agency typically plays in an agency adoption.

f.      In an independent adoption the agency serves more of a support role than quarterbacking the whole placement as would happen in an agency placement.

g.     The adoption agency role includes:

i.      Preparing the home study

ii.     Providing placing parent counseling and obtaining background information

iii.   Where required, providing the adoption report to court which typically includes the information regarding the child and birth of the child, the background information on the placing parents, the fees and monies paid as part of the placement.

iv.   Conducting post-placement visits and supplemental reports to court.

h.     The role of the adoption agency in an independent adoption typically does not involve locating the birth parent (except in hard to place situations).

i.      the adoptive family typically engages in the search process.

j.      This represents much of the cost savings between an agency placement and an independent placement; sometimes an agency will actually distinguish this amount as a “match” fee.

k.     The Search Process by the Adoptive Family

i.      Networking-word of mouth still very important

ii.     Internet – social media, e-blasts, etc.

iii.   Agency services

iv.   Websites (adoption.com; parentprofiles.com, etc.)

v.     Attorneys

vi.   Family, neighbors, church, work, medical providers

l.      The birth parent(s) typically gives both legal and physical custody directly to the adoptive parents

m.   The placing parent typically signs a “consent.” However, in some states it also may be called a “relinquishment.” Consents may be required to be signed in court or out of court depending on the state.

n.     The old way of differentiating between agency and independent adoptions, as “closed” vs. “open” no longer really applies. Instead, in most states, in either type of placement there may be a wide spectrum of choice from completely closed to completely open or from no disclosed information about the adoptive family provided to the placing parent to full disclosure.

C.    What is a Facilitator?

1.     A “facilitator” is NOT a licensed child placement or adoption agency

2.     Typically a “facilitator” is simply a person or company that charges a broker or match fee for locating an expectant birth parent

3.     Most states prohibit payments to facilitators – so it is important to advise clients accordingly

4.     “Licensed” facilitators are still just facilitators – and if state law prohibits payments to facilitators, then payment to a “licensed” facilitator is still illegal.

III. Special Types of Adoptions

A.   Step-Parent and Second Parent.

1.     Step-parent adoptions typically occur when one spouse is the biological or adoptive parent of the child and the other spouse is not.

2.     If the other biological (or adoptive) parent of the child is living, it usually requires that person’s consent or at least notice to the “other” parent and an opportunity to be heard.

3.     Some states have “abandonment” statutes which allow for easier termination of the “other” parent’s rights if he or she has not been involved in the child’s life.

4.     Contested step-parent adoptions can be expensive, contentious and oftentimes unsuccessful when the “other” parent has been involved in the child’s life and is not an “unfit” parent.

5.     The standard varies from state to state.

6.     The step-parent adoption often may be accomplished via an “open adoption” agreement.

7.     Some states allow “second parent” adoptions either by statute or as a matter of common law or practice.

8.     This type of adoption can enable a same-sex partner to become a legal parent.

9.     In some states it can allow for unique parent situations (e.g., biological mom and her father).

B.    Relative

1.     Many states have streamlined procedures where the adoption is among relatives.

2.     The definitions of “relative” vary widely from state to state

3.     If the adoption is an interstate adoption – the Interstate Compact Placement Act exempts certain relative placements from compliance with the Act. But BE CAREFUL – the definition of a relative in the ICPC may vary from the definition in state law, making interstate compliance still applicable.

4.     Also BE CAREFUL – in an interstate relative adoption, while one state might allow for a streamlined procedure, another state may not. For example, Virginia has a streamlined procedure but if the child is coming from Colorado – Colorado requires that an adoption agency be involved in the giving of any birth parent consent.

5.     Interstate Compact exception (as stated in the Virginia statute Virginia Code 63.2-1000, Article VIII):

a. (a) The sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

6.     Compare this to the definition of “relative” under Virginia law, Virginia code 62.21242.1:

A. For the purposes of this chapter, a “close relative placement” shall be an adoption by the child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt.

C.    Adult

1.     Most states have streamlined procedures for an adult adoption where the adoptee is age 18 or older.

2.     Typically the consent of the adoptee’s biological parent(s) is/are not required.

3.     Most states have certain restrictions such as there being a minimum number of years between the age of the adoptee and the adopter(s).

D.   Re-adoptions or Domestications/Finalizations of Foreign Adoptions

1.     Time frames for doing the re-adoption can vary (e.g., in Virginia, adoptive parent(s) can file for re-adoption after  6 months if there are three post-placement visits vs. one year if no post-placement visits).

2.     Countries and agencies vary in terms of the number and timing of post-placement visits required.

3.     US Birth certificate from a re-adoption is NOT evidence of citizenship.

4.     Watch out for immigration issues!! If you don’t practice immigration law – be sure to refer the adoptive parent(s) to an immigration attorney and document your file.

5.     If child did not get a Certificate of Citizenship when came into the US and did not come in on the right visa in order to get citizenship – then the adoptive family may have to do a re-adoption and obtain a certificate of citizenship after meeting the necessary requirements (again – refer them to an immigration attorney).

III. Interstate Adoptions

A.   Conflict and choice of law issues need to be clarified and resolved

1.     Attorneys in both states should be consulted.

2.     Adoptive parent(s) must remain in the sending state with the child and not return to the receiving (home) state until interstate approval is obtained.

3.     The unique aspects of Interstate Placements generally fall into two areas:

a.     Determining whether ICPC applies and what is needed in order for approval to be obtained from both the sending and receiving states.

b.     Engaging in a conflict and choice of law analysis and determining under which state law the adoption will occur.

4.     Thus, upon initially being confronted with an interstate placement, an analysis and reconciliation of the varying laws must occur:

a.     One of the first aspects to determine is whether the adoptive family even has the option to finalize in the sending state. If not, then the adoption must be finalized in the adoptive family’s home state.

b.     If the adoption can be done in either state then an analysis needs to be done regarding which state law is more favorable and what the total costs will be under each scenario.

5.     Examples of the variance in state laws and analysis:

a.     Where the placing mother is in Kansas, she can sign an irrevocable out of court consent within days and out of state residents can finalize in 90 days, in a parental placement the cost is fairly low.

b.     For a placing mom located in Florida, the entire adoption MUST be done as Florida adoption typically at a cost of $15,000 on up.

c.     Where a placing mom is in Maryland and the adoptive family in Virginia, the adoptive family cannot adopt as non-residents in Maryland and adoption should be done as a Virginia adoption.

d.     One state may allow the payment of living expenses for the placing parent while the other state may not; even if the law of the state that allows such payments is chosen as the governing law – this needs to be cleared with the ICPC office of the state that does not allow such payments.

e.     Unique issues can arise where one state permits same-sex placements and the other state does not; again issues with interstate clearance may arise.

B.    The Interstate Compact Placement Act (ICPC)

1.     Does not matter whether agency or independent/parental/ private/direct placement – interstate placements require. compliance with the Interstate Placement Compact (ICPC).

2.     Unless the “relative” exception to the ICPC applies – typically ICPC approval will need to be obtained.

3.     ICPC approval is initiated via the sign off of a “100-A” form by the sending parent or agency.

4.     It is critical to determine what the ICPC offices in each state will require before preparing the ICPC package for filing in the sending state.

5.     BE CAREFUL – it is always advisable to consult with an experienced adoption attorney in both states to make sure there will not be any issues with obtaining interstate approval. For example, Virginia ICPC will take the position that a birth mom whose rights have been completely terminated under the law of another state no longer has standing to sign the 100-A form

6.     Also – failure to obtain ICPC approval can be a basis to upset or challenge the underlying adoption.

IV. Comparative Cost of Adoptions Depending on Type

A.   The most expensive adoptions tend to be international – generally ranging from $30,000 to $45,000; although adoptions from more impoverished countries like Haiti can be substantially less.

B.    The least expensive adoptions tend to be in-state independent placements where no living fees or medical bills for the placing parent need to be paid – these generally are under $10,000.

C.    Interstate independent placements typically cost $10,000 to $15,000 where substantial living expenses and/or medical bills do not need to be paid.

D.   Domestic agency adoptions typically range from $15,000 up to $30,000. Many agencies work on a “sliding scale” basis based on the adoptive family’s income.

E.    When substantial living expenses and/or medical bills for the placing parent need to be paid, then the costs of the placement can be much higher.

V. The Termination of Parental Rights

A.   Understanding Putative Father Registries

1.     The History of Putative Father Registries

a.     The U.S. Supreme Court held PFR’s constitutional in 1983 in Lehr v. Robertson.

b.     Some 35 states have paternity registries in various forms.

c.     Paternity Registries: not radical or new.

2.     Embracing the Concept of Putative Father Registries

a.     States must protect safety and privacy of placing mothers

b.     Meaning:

i.      Mothers need not name possible fathers

ii.     Mothers need not notify father of pregnancy

c.     Lehr v. Robertson decision suggests mother’s right to privacy is constitutionally protected.

3.     The Proposed National Registry: The Proud Father Act

a.     Drafted; not passed; bipartisan

b.     To be located in the Social Security Act.

c.     Federal law would provide a database to collect and centralize registrations.

d.     States continue to use their own substantive adoption law (including own registries in conjunction with the federal registry).

4.     Putative Father Registries

a.     Distinction in most registries is made between whether the birth father is:

i.      adjudicated (via court order)

ii.     acknowledged (such as placed on the birth certificate)

iii.   presumed (married/legal),

iv.   registered with PFR, and

v.     not registered

b.     If the birth father is adjudicated, acknowledged, presumed or registered, then under most state schemes he typically will be entitled to notice of the adoption proceedings (this varies from state to state).

c.     If the birth father has not registered then typically he is not entitled to notice (again – varies from state to state).

B.    Denials of Paternity, Waivers, Consents, Relinquishments & Entrustments

1.     Parental rights in adoptions may be terminated in a variety of ways including most commonly the following:

a.     By voluntary consents, relinquishments or entrustments (signed in court or out of court depending on state law and type of adoption),

b.     By a birth father signing of a Denial of Paternity or a Waiver,

c.     Via notice and failure to object or appear, and

d.     Via a birth father’s failure to register with a Putative Father Registry.

e.     In some states the placing mother may have a constitutional right to refuse to name or disclose the birth father’s identity.

f.      In some states the placing mother may be able to affirm that the identity of the birth father is not reasonably ascertainable and/or that his whereabouts are unknown.

g.     Rights can be terminated via abandonment.

h.     Rights can be terminated via finding that an objecting parent is unfit or is objecting contrary to the best interests of the child (the statutes governing contested placements vary widely from state to state).

2.     Termination of Parental Rights

a.     Denial of Paternity – birth father simply denies he is the father, varies from state to state but often can be signed before birth, some states have a revocation period including from a set number of days to date of birth or a until a set number of days after birth; is voluntarily signed.

b.     Waiver – some states allow either birth parent, but most typically the birth father, to sign a waiver by which the birth parent waives any interest in the child and/or in the adoption proceedings and/or in receiving further notice regarding the child or the adoption proceedings; is voluntarily signed.

c.     Consents – typically signed in independent placements and are voluntary.

d.     Entrustments – typically signed in agency placements and are voluntary.

e.     Relinquishments – used in both agency and independent placements and are voluntary.

C.    Abandonment Statutes

1.     Some states permit parental rights to be terminated based on the parent having “abandoned” the child by failing to support or have contact with the child for a defined period of time. For example, in Virginia under Virginia Code § 63.2-1202(H), no consent is required of a birth parent who, without just cause, has neither visited nor contacted the child for six months prior to the filing of the adoption petition. This must be shown by clear & convincing evidence and the birth parent still has the right to be noticed and heard. Payment of child support under the Virginia statute does not count as “contact.”

D.   Understanding Consent and Revocation Periods

1.     Consent and Revocation Periods typically apply to:

a.     How long a placing parent must wait before signing a consent or entrustment or relinquishment (most commonly about three days after birth); always advisable for the placing mother to not be on heavy pain medications after having given birth at time of execution.

b.     A revocation period is the length of the time period after signing that a placing parent has to “revoke” or “undo” his or her consent. These typically vary from a little as a few days as up to thirty days after signing. Under some state laws, the revocation period may be “waived” upon signing.

VI. Open Adoption and Ongoing Contact Agreements

A.   In the past world of “closed” agency adoptions, typically the placing parent(s) placed the child with the agency and did not “choose” or designate the adoptive family

B.    While a completely “closed” placement is still an option, the placing parent(s) now more commonly are involved in the selection of the adoptive family – even if full identifying information is not disclosed

C.    The old way of differentiating between agency and independent adoptions, as “closed” vs. “open” no longer really applies. Instead, in most states, in either type of placement there may be a wide spectrum of choice from completely closed to completely open or from no disclosed information about the adoptive family provided to the placing parent to full disclosure.

D.   The majority of states have open adoption statutes or allow enforceable ongoing contact adoption agreements by incorporating them into the adoption order.

E.    Usually the “ongoing contact” is simply the provision of pictures and letter updates to the birth parent(s) a couple of times a year; however such agreements also may include open visitation.

F.    In most instances, failure to comply will not be grounds to “un-do” the adoption. Instead, the only issue is the enforcement of the ongoing contact agreement.

G.   Usually the ongoing contact is contingent on it continuing to be in the child’s “best interest.”

H.   Such agreements can be a powerful tool in getting a birth parent to consent to an adoptive placement.

VII. Special Federal Laws Applicable to Adoptions

A.   The Indian Child Welfare Act (ICWA)

1.     In every adoptive placement, the adoption practitioner must be aware of – and address – the possibility that ICWA (the Indian Child Welfare Act) might apply.

2.     ICWA is a federal act that was put into place to protect Indian children from being removed from, or placed out of, Indian tribes without first considering whether an acceptable adoptive family could be found within the tribe.

3.     An ICWA inquiry starts by asking each placing parent if he or she has any Native American Indian heritage and, if so, then exploring the nature and degree of such heritage in great depth.

4.     If a placing parent has American Indian heritage, then it must be determined:

a.     That the claimed tribe to which there is heritage is officially a federally recognized tribe; and,

b.     That the child to be born qualifies as an “Indian child” under ICWA (which is based on the definition of an “Indian child” under ICWA as well as the member requirements and/or the definitions for the specific tribe at issue).

5.     Then, whether a tribe must be notified or involved depends in large part on (a) whether the placement is voluntary or involuntary and (b) if voluntary, then the placing parent’s desires as to whether the tribe should be notified.

6.     Even if the tribe is not notified, the birth parent must sign an ICWA compliant consent which must be before a judge and can only be signed once at least ten days after birth have passed. The birth parent(s) also will have expanded revocation rights.

7.     This outline only gives an extremely basic overview of ICWA – which can be a very complicated area of the law. If a new adoption practitioner has a placement situation that may involve ICWA – he or she should consult with experienced ICWA adoption counsel.

8.     Some states have “mini-ICWAs” (state ICWA statutes) that have even more restrictive requirements than ICWA (the worst ones being Oklahoma, Wisconsin, Minnesota, and Arizona).

9.     These may require notice to the Indian tribe and/or placement preferences with a tribal family not only in voluntary placements but even in domestic violence and other egregious situations.

B.    Adoption Tax Credit

1.     H.R.3590 – The Patient Protection and Affordable Care Act; Section 10909. EXPANSION OF ADOPTION CREDIT AND ADOPTION ASSISTANCE PROGRAMS

a.     Increases from $10,000 to $13,170 the dollar limitation on: (1) the tax credit for adoption expenses; and (2) the tax exclusion for employer-provided adoption assistance.

b.     Allows an inflation adjustment to such limitation after 2010. Makes such credit refundable.

c.     Extends through 2011 the general terminating date of the Economic Growth and Tax Relief Reconciliation Act of 2001 with respect to such credit and exclusion.

C.    SCRA

1.     The Servicemembers Civil Relief Act (SCRA) of 2003 is found at 50 U.S.C. Appendix § 501 et seq..

2.     The purpose of the Act is to enable servicemembers (SMs) to devote their entire energy to the defense needs of the Nation, and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of SMs during their military service. (50 U.S.C. App. § 502).

3.     Who is covered? (50 U.S.C. App. § 511) Those covered include:

a.     Members of the Army, Navy, Air Force, Marine Corps and Coast Guard on active duty under 10 U.S.C. 101(d)(1)

b.     National Guard members called to active duty by President or Secretary of Defense for over 30 days under 32 U.S.C. 502(f) (national emergency declared by the President and supported by federal funds)

c.     Commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration

4.     Provides special protections for servicemembers covered by the Act including not being able to proceed against a birth parent who is on active duty who is unable to protect his or her interests (such as contesting an adoptive placement).

5.     Need to be certain to adhere to the procedural safeguards under the Act.

VIII. Foster Care Placements & The Adoption and Safe Families Act of 1997 (“ASFA”)

A.   The Adoption and Safe Families Act of 1997 changed the focus of the child protection proceeding from family preservation & reunification to a focus on the child’s health and safety.

B.    It forced states to streamline and expedite termination proceedings by requiring that:

1.      a “permanency hearing” take place within 12 months of the child being placed into foster care.

2.     Termination of parental rights must take place when the child has been in foster care for 15 of the most recent 22 months.

3.     It also contained important and better protections for foster and pre-adoptive parents.

Representing Birth Mothers in Virginia


Colleen Marea Quinn, Esq.

The Adoption & Surrogacy Law Center

at Locke & Quinn

quinn@lockequinn.com

http://www.virginia-adoption-attorney.com

Click Here to Download this as a PDF ->

Representing Birth Mothers in Virginia

  1. Direct (Parental) Placements – In-State and Inter-State.

(1)  General Items to Cover. There are quite a number of

fundamental items to cover with a birth mother. These include the following:

  • The decision-making process including whether the adoption plan is being made voluntarily and without coercion
  • Alternatives to adoption
  • How the adoptive parents were selected and if any other adoptive parents need to be considered
  • Whether sufficient information has been provided regarding the adoptive parents or more information needs to be provided
  • Whether the birth mother has received counseling by a social worker, ensuring that the birth mother has the opportunity for such counseling (paid for by the adoptive parents) and encouraging such counseling – especially early on in the process – to ensure that the birth mother has thoroughly thought through her adoption plan
  • Whether the birth mother wants to have a simultaneous meeting with the adoptive parent(s) and the benefits of such a meeting
  • Whether the birth mother wants to know the last names and address of the adoptive parents (if not already known)
  • The birth mother’s prenatal care
  • The birth mother’s alcohol and drug use during the pregnancy
  • Permissible payments by the adoptive parents under §63.2-1218 including the payment of the birth mother’s attorney’s fees
  • Consent and revocation periods
  • Whether background information forms have been completed
  • Whether ICWA (the Indian and Child Welfare Act) applies
  • Identification of any and all birth fathers
  • How the birth father(s) rights will be terminated
  • Health insurance coverage
  • Pre-registration with the hospital as well as hospital procedures, the hospital plan (including whether the adoptive parent(s) will be in the delivery room and whether the birth mother wishes to see the child after the birth), and any documents to be signed at the hospital (such as Health Care Power of Attorney and HIPAA Compliant Medical Authorization and any hospital indemnification or release documents)
  • How the birth certificate application will be filled out at the hospital and naming the baby
  • Any ongoing contact arrangement(s) and the enforceability of same including the birth mother’s duty to notify the adoptive parent(s) or agency of any changes in her contact information
  • Whether the birth mother is competent to consent
  • That the birth mother understands the implications under Virginia Code §63.2-1217, that any false or material misstatements made in the court of the adoption proceedings could result in a Class 6 felony conviction.
  • The birth mother’s whereabouts after placing the child from the hospital and before the consent hearing
  • How the birth mother will get to the consent hearing.

(2)       Protecting Your File.

It is advisable to have the birth mother execute an acknowledgement form of the topics covered. Below is an example of such a form for an in-state parental placement:

I, ________________________(name of Birth Parent), understand that the following topics and issues involved in Virginia adoption law have been addressed with me by Colleen Marea Quinn, Esquire, and that I am being provided a copy of this document for my records and future reference:

1.         Alternatives to adoption, including but not limited to:

(a)       Keeping the child (and using such support mechanisms as public support, food stamps, aid to dependent children, Medicare, child support from the birth father or other avenues of support via friends and family or through charitable or non-profit organizations).

(b)       That the birth parent may keep the child and I may have visitation rights or some type of custody arrangement.

(c)       That I may relinquish the child which includes placing the child for adoption with the person or persons of my choice.

2.         Hospital procedures/forms.

3.          The methods by which birth parents in Virginia may consent or be given notice.

4.         That I must wait until the child is at least three days old in order to give my consent and then have seven days to revoke my consent. I further understand that I can waive the seven day right to revoke provided that the child is at least ten days old and I have my own independent counsel. I understand that any revocation must be provided in writing to the court (and signed by me or my attorney) before the close of court on the seventh day after signing.

5.         Allowable payments by the adopting parents include my legal fees, medical bills, travel expenses, child placement agency fees (including birth parent counseling) and, if I receive medical permission or orders not to work, living expenses.

6.         Any exchange of photographs, letters or other future contract/communication arrangements between the adopting parents or the child and myself are not legally binding unless written into the Final Order.

I further understand that Virginia law allows for the payment of my attorney fees by the adopting parents but that the representation rendered to me by Colleen Marea Quinn, Esquire, is fully on my behalf.

Date:  ________________                       _________________________________

BIRTH PARENT

Date:  ________________                       _________________________________

WITNESS

(3)  Inter-State Parental Placement Additional Issues.

The biggest item to cover for an inter-state placement, in addition to

the items already addressed above, is the choice of law. If the adoption is happening in Virginia (and the adoptive parents are from out of state) then there really is no issue since Virginia law will apply to the placement. However, if the adoption is to take place under the law of the adoptive parent(s)’ state, then the birth mother needs to be apprised of her rights under Virginia law as well as the law of the other state – and then expressly waive proceeding under Virginia law and submit to the law of the other state. This should be put in writing in both an internal document such as the example above and must also be written in the birth mother’s consent.

Another item to explain to the birth mother is the interstate approval process and that the birth mother will have to sign a 100-A form in order to initiate that process. She also may have to sign other documents that are required by the receiving state such as an acknowledgment of counseling, an affidavit of fees and expenses paid, a summary description of the birth father(s), etc.

  1. Agency Placements – In-State and Inter-State.

(1)  General Items to Cover.

Again, there are quite a number of fundamental items to cover

with a birth mother – many of which are the same as those noted above for a parental placement. Again – it also is recommended that the birth mother sign an acknowledgement that these items have been reviewed with her. These include the following:

  • The decision-making process including whether the adoption plan is being made voluntarily and without coercion
  • Alternatives to adoption
  • How the agency was selected and if adoptive parents also were selected through the agency, then how they were selected and if any other adoptive parents need to be considered (not an issue for a closed adoption where the adoptive parents are not selected or disclosed to the birth parent)
  • Whether the choice of doing the adoption as an agency adoption or parental placement adoption was explained and a clear decision made as to the type of adoption wanted
  • If applicable, whether sufficient information has been provided regarding the adoptive parents or more information needs to be provided
  • Whether the birth mother has received counseling by the agency social worker, ensuring that the birth mother has been given the opportunity for such counseling and encouraging such counseling – especially early on in the process – to ensure that the birth mother has thoroughly thought through her adoption plan
  • If applicable, whether the birth mother wants full or limited information about the adoptive parents including the last names and address of the adoptive parents
  • The birth mother’s prenatal care
  • The birth mother’s alcohol and drug use during the pregnancy
  • Permissible payments by the agency under §63.2-1218 including the payment of the birth mother’s attorney’s fees
  • Entrustment and revocation periods
  • Whether background information forms have been completed
  • Whether ICWA (the Indian and Child Welfare Act) applies
  • Identification of any and all birth fathers
  • How the birth father(s) rights will be terminated
  • Health insurance coverage
  • Pre-registration with the hospital as well as hospital procedures, the hospital plan (including whether the adoptive parent(s) will be in the delivery room and whether the birth mother wishes to see the child after the birth), and any documents to be signed at the hospital (such as Health Care Power of Attorney and HIPAA Compliant Medical Authorization and any hospital indemnification or release documents)
  • How the birth certificate application will be filled out at the hospital and naming the baby
  • Any ongoing contact arrangement(s) and the enforceability of same including the birth mother’s duty to notify the agency of any changes in her contact information
  • Whether the birth mother is competent to sign an entrustment
  • That the birth mother understands the implications under Virginia Code §63.2-1217, that any false or material misstatements made in the court of the adoption proceedings could result in a Class 6 felony conviction.

(2)  Inter-State Adoptions.

It is VERY important if the birth mother is going to proceed

under the law of another state in an agency placement that she not only have her own legal counsel but that she execute a proper statutory waiver of Virginia law. Virginia Code §63.2-1222 (J):

When any agency outside the Commonwealth, or its agent, that is licensed or otherwise duly authorized to place children for adoption by virtue of the laws under which it operates executes an entrustment agreement in the Commonwealth with a birth parent for the termination of all parental rights and responsibilities with respect to the child, the requirements of §§ 63.2-1221 through 63.2-1224 shall apply. The birth parent may expressly waive, under oath and in writing, the execution of the entrustment under the requirements of §§ 63.2-1221 through 63.2-1224 in favor of the execution of an entrustment or relinquishment under the laws of another state if the birth parent is represented by independent legal counsel. Such written waiver shall expressly state that the birth parent has received independent legal counsel advising of the laws of Virginia and of the other state and that Virginia law is expressly being waived. The waiver also shall include the name, address, and telephone number of such legal counsel. Any entrustment agreement that fails to comply with such requirements shall be void.

(Emphasis added). Thus, the birth mother needs to have the law of both Virginia and the other state explained to her and must sign a waiver that contains all the statutory requirements. This also means that the birth mother’s Virginia counsel needs to also research the law of the other state – preferably also speaking to at least one qualified attorney in that state and obtaining copies of the actual statutory provisions.

Again, another item to explain to the birth mother is the interstate approval process and that the birth mother will have to sign a 100-A form in order to initiate that process. She also may have to sign other documents that are required by the receiving state such as an acknowledgment of counseling, an affidavit of fees and expenses paid, a summary description of the birth father(s), and the like. Unless the out of state agency is licensed in Virginia or gets a Virginia agency to take custody (which agency then becomes the sending party), then in the normal course the birth mother will be the sending party. It also is important to ensure that the birth mother signs the 100-A before all her rights are terminated or else she technically will then lack the authority to be the sending party.

  1. Obtaining Health Insurance Coverage.

If the birth mother does not have health insurance coverage – then it is

very important that she secure some type of coverage. This is not to save the adoptive parents from having to pay medical bills. Rather, this step is to protect the birth mother. What if something should be wrong with the child and the adoptive parents change their minds? What is the birth mother has complications during the delivery and the child dies? What if the birth mother changes her mind?

The birth mother should be strongly encouraged to apply for public medical assistance or to otherwise procure private health insurance coverage. Virginia Code §63.2-1218 (ii) expressly provided that the adoptive parents can pay for:

payment or reimbursement for medical expenses and insurance premiums that are directly related to the birth mother’s pregnancy and hospitalization for the birth of the child who is the subject of the adoption proceedings…

(Emphasis added). Accordingly, the adoptive parents can lawfully pay for the cost of the health insurance on the birth mother. This is generally a much better option than paying the actual medical bills and better protects the birth mother – especially in the event there are unforeseen complications.

  1. Changing Adoptive Parents.

The birth mother has the fundamental right to change her mind as to with

which adoptive parents she would like to place. There are many legitimate reasons why she may change her mind. However, it is important to make sure that she is not changing adoptive parents for the purpose of obtaining unlawful payments or monies. For example, it is not uncommon for a birth mother to pick an adoptive family and then change her mind when she learns that the state in which the family resides will not allow the payment of living expenses. This is okay if the birth mother legitimately needs such expenses and finds a family in a state that lawfully allows the payment of such expenses. It is not permissible if what the birth mother really is doing is looking to “sell” her baby or may be looking for expenses to be paid yet not be truly intent on her placement plan. While one can never see into a crystal ball, it is important for the attorney representing the birth mother to be on the look out for adoption fraud.

  1. Identifying Birth Fathers.

(1)  What is “reasonably ascertainable?”

Whether an unmarried birth father’s identity is “reasonably ascertainable”

for purposes of determining whether he is entitled to notice of the Putative Father Registry requires careful questioning of the birth mother. Under the Virginia Putative Father registry, all birth fathers that are acknowledged (as on the birth certificate or via some other legal acknowledgement), adjudicated (such as ordered to pay child support or given court ordered visitation or determined via court ordered DNA testing) or presumed (such as a legal birth father via marriage to the birth mother) are entitled to actual notice of the adoption proceedings. Moreover, any unmarried possible (putative) birth father whose identity is “reasonably ascertainable” is entitled to notice of the Virginia Putative Father Registry and his right to register. Note that a statutory amendment is the works for 2009 that will state that not only must his identity be “reasonably ascertainable” but his whereabouts also must be known. This might solve the problem where the birth mother knows the full name of the birth father but has no idea where he is.

Sample questions to ask the birth mother in determining whether the birth father’s identity is reasonably ascertainable and his whereabouts include:

–       Does she know his full name or only part of his name?

–       How did she meet him?

–       If she does not have his phone number or address, can she get back in touch with him through mutual friends or contacts?

–       Does she know where he works?

–       Does she know where any of his family or friends live or work?

–       Does she know where he went to school?

Then it is incumbent on the birth mother to try and find the birth father and incumbent upon her attorney (or the adoptive parent(s)’ or agency’s attorney) to use internet search methods to try and locate the birth father if possible. If he cannot be found, then a judge should accept a certificate of proof of the Virginia Putative Father Registry (“VPFR”) as sufficient (but be forewarned that some judges are still requiring an Order of Publication to notify the birth father of the VPFR when the identity is reasonably ascertainable but the fellow cannot be found – this is all the more reason for the statute to be amended).

(2)  Can a Birth Mother refuse to say?

There is a court opinion out of Augusta County whereby the birth mother

was permitted by the court to refuse to identify the birth father. This opinion has been used in other cases to permit the birth mother to refuse to state who the father is. The argument is more compelling if the birth mother is afraid of the birth father or if the child is the product of rape but the birth father has not yet been convicted (thus making his consent not required).

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