Barnes v. Berry (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 5th day of August, 2021.
Mary Barnes, et al., 	Appellants,
against 	Record No. 200990
Court of Appeals No. 0204-20-4
John Berry, 	Appellee.
Upon an appeal from a judgment
rendered by the Court of Appeals of
Virginia.
Upon consideration of the record, briefs, and argument of counsel, the Court is of the
opinion that there is no reversible error in the judgment of the Court of Appeals. Accordingly,
the Court affirms the judgment of the Court of Appeals for the reasons stated in Berry v. Barnes,
72 Va. App. 281, 295 (2020).
This order shall be published in the Virginia Reports and certified to the Court of Appeals
of Virginia and the Circuit Court of Arlington County.
JUSTICE MIMS, dissenting.
The majority finds that there was no error in the decision of the Court of Appeals, which
based its decision on its belief that Code § 63.2-1250(E) is unambiguous. That section reads,
“Registration is timely if it is received by the Department within (i) 10 days of the child’s birth
or (ii) the time specified in subsection C or F.” Subsection C provides a deadline to register for
unacknowledged birth fathers who discover that the birth mother misrepresented that the “(i) the
pregnancy was terminated or the mother miscarried when in fact the baby was born or (ii) the
child died when in fact the child is alive.” Subsection F provides a deadline to register of 10
days from the receipt of personal service of written notice or 13 days of the certified mailing date
of written notice for birth fathers whose identity and whereabouts are “reasonably ascertainable.”
Because I believe the statute is ambiguous and the Court of Appeals’ interpretation does not
accurately represent the intention of the General Assembly, I respectfully dissent.

2
In interpreting a statute, courts “ascertain and give effect to the intention of the
legislature.” Boynton v. Kilgore, 271 Va. 220, 227 (2006). When a statute is clear and
unambiguous, we rely on the plain meaning of the language in determining intent. Lynchburg
Div. of Soc. Servs. v. Cook, 276 Va. 465, 480 (2008). “[C]ourts apply the plain language of a
statute unless the terms are ambiguous, or applying the plain language would lead to an absurd
result.” Boynton, 271 Va. at 227 (citations omitted).
Language is ambiguous when it “admits of being understood in more than one way or
refers to two or more things simultaneously,” Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va.
339, 344 (2008), or when the language is “difficult to comprehend, is of doubtful import, or lacks
clearness and definiteness.” Newberry Station Homeowners Ass'n v. Bd. of Supervisors, 285 Va.
604, 614 (2013) (quoting Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 393 (1939)).
This Court recently recognized the difficulties often presented by the use of words like “and” and
“or” that can be read as either conjunctive or disjunctive in a statute. See Barr v. Atlantic Coast
Pipeline, 195 Va. 522, 530 n.3 (2018). Here, the “or” in Code § 63.2-1250(E) could reasonably
be interpreted as meaning either “or if the birth father chooses” or “or if no other deadline
applies.” Thus, the statute is ambiguous.
Moreover, the appellant argues, and the appellee admitted at oral argument, that the likely
intention of the General Assembly in enacting the statute was to create deadlines that govern
different classes of birth fathers rather than to give certain classes of birth fathers two deadlines
from which to choose. I believe this is the most logical interpretation of the statute.
As the parties acknowledged at oral argument, the statute as interpreted by the Court of
Appeals could lead to confusion for birth fathers as to the applicable deadline for asserting their
legal rights regarding their children. It is my earnest hope that the General Assembly will revisit
this statute in its next session to remedy this ambiguity and provide clarity for all parties
involved in these consequential adoption cases.
A Copy,
Teste:
Acting Clerk