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John Elledge & Assoc's Shelly R. James Changes the Game for Virginia Foster Parents

Shelly James, our appellate attorney has prevailed before the Virginia Court of Appeals in a case that guarantees the right of Virginia foster care families to seek custody in Juvenile and Domestic Relations District court and Circuit Courts in the Commonwealth. See the article below, published in Virginia Lawyers' Weekly in its November 20, 2017 edition: Ex-foster parents can seek custody

By: Peter Vieth November 21, 2017

The former foster parents of a 3-year-old girl have standing to seek custody, the Virginia Court of Appeals has ruled.

The couple took in the girl when she was 6 months old and nursed her through difficult health challenges, including a liver transplant. While the girl is now living with another couple, the foster parents filed a petition seeking custody.

A circuit judge ruled that the ex-foster parents were not "persons with a legitimate interest" in obtaining custody, per Virginia Code § 20-124.1, which defines that term.

But the appeals court, in an unpublished decision authored by Judge Teresa B. Chafin, reversed, finding that the term "legitimate interest" should be interpreted broadly. The court also said the trial court erred when it dismissed an adoption petition for the girl on standing grounds.

The case is Yokshas v. Bristol City Dep't of Social Servs. (VLW 017-7-276).

H was a girl born in Bristol in 2014; shortly after her birth she was diagnosed with a life-threatening medical condition, biliary atresia, affecting the liver.

The Department of Social Services removed her from her biological parents when she was about six months old. Lisa Yokshas and Scott Greaser, a married couple, became H's foster parents.

DSS made it clear to Yokshas and Greaser that it intended to return the girl to her biological parents, and required them to support H's relationship with them.

The couple took very good care of H, nursing her through her health issues and taking her to Cincinnati for a liver transplant.

However, they had trouble letting go. They treated H as their own child, Chafin wrote, and called her "Lily" instead of her given name. The judge added that the couple was rude and dismissive of the birth parents, opening advocating the termination of their rights.

In October 2015, DSS removed H from Yokshas and Greaser, placing her with another foster family.

A month later, the couple filed both custody and adoption petitions for H.

The circuit court ultimately ruled that Yokshas and Greaser lacked standing to file either petition; they took the case on up.

Legitimate interests

The key to the circuit court's custody ruling was language in Virginia Code § 20-124.1, which states that anyone with a "legitimate interest" can file a custody petition.

The statute lists some of the individuals who might qualify, such as grandparents, stepparents, blood relatives and family members.

Foster parents are not listed.

But Chafin cited a portion of the code section stating that the term "legitimate interest" shall be "broadly construed to accommodate the best interest of the child."

She added that the definition includes but is not limited to the listed categories of people.

The couple argued that for nine months they functioned as H's parents, helping her through a medical crisis. That experience gave them a "legitimate interest in obtaining custody." The court agreed, Chafin said.

While DSS had removed H from their home, that fact had not diminished the relationship between H and the couple, the judge said.

Yokshas and Greaser were the "functional equivalents" of H's parents, and it was an error to rule they lacked a legitimate interest in her custody.

The court also ruled that it was error to say the couple lacked standing to file an adoption petition.

The pertinent statute merely states someone who living in the commonwealth can file such a document. While the couple may not succeed on the merits of their petition, they still have standing, the court said.

Harrisonburg attorney Shelly James represented the couple in the case. Bristol lawyer Edward G. Stout was counsel for DSS. Joshua P. Sutherland III served as H's guardian ad litem.

We congratulate Shelly for her fine work on the part of the firm and our clients.

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