Orel Jordan Chollette v. Robert Keeling and Kristin Keeling ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and AtLee
UNPUBLISHED
Argued at Fredericksburg, Virginia
OREL JORDAN CHOLLETTE
MEMORANDUM OPINION * BY
v. Record No. 0018-15-4 JUDGE RICHARD Y. ATLEE, JR.
OCTOBER 6, 2015
ROBERT KEELING AND
KRISTIN KEELING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jan L. Brodie, Judge
Sequitta Banks (B & B Law Group, PLC, on briefs), for appellant.
Monica Taylor Monday (Stanton Phillips; Gentry Locke Rakes &
Moore LLP; Goldenberg & Phillips, PC, on brief), for appellees.
Orel Jordan Chollette appeals an order denying his request to intervene in an adoption
proceeding. Chollette argues that the circuit court erred by: (1) finding that he had no standing
to intervene as a party in the adoption proceeding pursuant to Code § 63.2-1211; (2) finding that
he received notice of the adoption proceedings and the existence of the Virginia Putative Father
Registry; (3) failing to find a violation of his due process rights to notice and an opportunity to
be heard in the adoption proceeding; and (4) preventing him from challenging the final order of
adoption or presenting evidence to support his appeal of the final order of adoption. We cannot
reach Chollette’s constitutional challenges, as the evidence before this Court fails to establish his
paternity. Accordingly, Chollette has neither standing to intervene nor a right to withhold his
consent to the adoption.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
This matter concerns the private adoption of an infant who has lived with his adoptive
parents, Robert and Kristin Keeling, since his release from the hospital on April 17, 2014. The
birth mother identified Chollette as the putative father. She obtained counsel and arranged for
the child’s adoption, over Chollette’s objections. In January 2014, over the telephone, she
requested Chollette’s address, which he provided. She gave this information to her attorney,
who sent notice of adoption proceedings and information on the Virginia Putative Father
Registry via United States Postal Service certified mail to the address provided. The letter was
returned as “Attempted-Not-Known.”
The child was born on April 15, 2014. On April 25, 2014, the Fairfax County Juvenile
and Domestic Relations District Court (“JDR court”) entered an order accepting the birth
mother’s consent to the adoption and transferring legal custody of the child to the Keelings. The
JDR court identified Chollette as the putative father and found that he received adequate notice
of the adoption proceedings and Virginia Putative Father Registry. The JDR court determined
that Chollette had not registered with the Virginia Putative Father Registry and that the statutory
window for him to do so had expired. The JDR court also found that Chollette was not an
acknowledged father pursuant to Code § 20-49.1, not an adjudicated father pursuant to Code
§ 20-49.8, and not a presumed father pursuant to Code § 63.2-1202(D). Accordingly, it
concluded that his consent to the adoption was not required. The adoption proceeded to the
circuit court. On May 8, 2014, the circuit court entered an interlocutory order of adoption. 1
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On June 12, 2014, Chollette appealed the interlocutory order of adoption to this Court
and requested access to the case record. On March 4, 2015, this Court found that Chollette
lacked standing to appeal because he was not a party to the proceeding. See In re Orel Jordan
Chollette, No. 1103-14-4 (Va. Ct. App. Mar. 4, 2015).
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On September 3, 2014, Chollette filed in the circuit court a “Request for Leave to
Intervene” in the adoption proceeding. He alleged first that he did not receive the requisite
notice of the adoption proceeding, and second that he did register with the Virginia Putative
Father Registry. He asked the circuit court to stay the adoption proceeding and allow him access
to the record. In response, the Keelings filed a plea in bar and argued that Chollette had no
standing to intervene in the adoption case because the JDR court found that he was neither a
registered putative father, an acknowledged father, an adjudicated father, nor a presumed father.
On October 10, 2014, the circuit court entered the final order of adoption. On November
21, 2014 and December 5, 2014, the circuit court held hearings on Chollette’s request to
intervene and the Keelings’ plea in bar. On December 5, 2014, the circuit court entered an order
stating that Chollette lacked standing to intervene in the adoption proceeding and dismissed his
request for leave to intervene. Chollette filed a motion for reconsideration, which the circuit
court denied. This appeal followed.
II. PUTATIVE FATHERS IN ADOPTION PROCEEDINGS
A man who claims to be the biological father has standing to participate in adoption
proceedings in only four scenarios: (1) if the parents acknowledge paternity under Code
§ 20-49.1, (2) if paternity is adjudicated under Code § 20-49.8, (3) if he is a presumed father
under Code § 63.2-1202(D), or (4) if the father is registered as a putative father. Code
§ 63.2-1202(C); see Code § 63.2-1249 to -1253 (Putative Father Registry). Only registration as a
putative father is at issue in this matter.
“In the event that the identity and whereabouts of the birth father are reasonably
ascertainable, written notice of the existence of an adoption plan and the availability of
registration with the Putative Father Registry shall be provided by personal service or by
certified mailing to the man’s last known address,” at which point he has ten days in which to
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register. Code § 63.2-1250. If the putative father does not register before the ten days elapse,
the parties to the adoption do not need to seek his consent.
III. CHOLLETTE’S STANDING TO INTERVENE
We face significant constraints in our review. This Court is deprived of the benefit of a
complete evidentiary record, and the posture of the case precludes any inquiry beyond whether
Chollette had standing to intervene. To have standing, he needed either to be acknowledged,
adjudicated, presumed, or registered as a putative father. The first three categories are all legal
terms of art—the fact that the birth mother merely identified him as the father satisfies none of these
definitions, and fails to vest him with the rights of a birth father. Chollette did not register as a
putative father before the deadline for doing so expired. Although he never received the documents
mailed to provide notice of the “existence of an adoption plan and the availability of registration
with the Putative Father Registry,” the statute specifically states that mailing, not receipt, triggers
the ten-day deadline to register, nor does it impose any receipt requirements. Moreover, Chollette
had actual notice of both the adoption plan and availability of the Registry before the deadline
passed. He failed to take the necessary actions to assert his status as the child’s father with the
urgency the General Assembly requires in these circumstances. In short, because the record before
us fails to establish his paternity, we cannot say that the circuit court committed reversible error in
denying his motion to intervene.
IV. CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Chollette’s motion to
intervene. On consideration of the record before us, we deny appellees’ request of an award of
attorney’s fees and costs incurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690,
695, 479 S.E.2d 98, 100 (1996).
Affirmed.
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