David Stevens Sozio v Kelley Elizabeth Thorpe

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Overton
Argued at Alexandria, Virginia
DAVID STEVENS SOZIO OPINION BY
v. 	Record No. 2018-95-4 	JUDGE JAMES W. BENTON, JR.
APRIL 16, 1996
KELLEY ELIZABETH THORPE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Nancy D. Poster for appellant.
James Ray Cottrell (Gannon, Cottrell &
Ward, P.C., on brief), for appellee.
The trial judge dismissed David Stevens Sozio's petition to
adopt a child born to Sozio's former spouse, Kelley Elizabeth
Thorpe. 	The child is not Sozio's biological child. 	Sozio
contends on appeal that the trial judge erred (1) in refusing to
waive the requirement of Code § 63.1-221 that Sozio's current
spouse join in the petition, and (2) in ruling that under Code
§ 63.1-233 the legal effect of allowing Sozio to adopt Thorpe's
child would be the termination of Thorpe's parental rights.
Because the trial judge correctly ruled in both instances, we
affirm her decision.
The evidence proved that Sozio and Thorpe were married in
1984. 	While married to Sozio, Thorpe gave birth to a male child
in 1986 and a female child in 1990. 	After Sozio and Thorpe
separated in 1991, Sozio learned that another man, Elmer William
Senne, was the father of Thorpe's female child.

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During their separation, Sozio and Thorpe entered into a
property settlement agreement which states that the male child is
their only child, that the male child shall reside with Thorpe,
and that Sozio is the female child's stepfather. 	The agreement
gives Sozio limited visitation with the female child and provides
that he will maintain health insurance for her if he is able to
do so under his insurance policy without additional cost to him.
The agreement does not require Sozio to support the female
child.
Sozio and Thorpe were divorced in 1993. 	The final decree of
divorce recites that the male child is the only child of Sozio
and Thorpe, and the decree incorporates by reference the property
settlement agreement.
In January 1994, Thorpe's present husband, David Thorpe,
filed a petition to adopt the female child. 	With the consent of
the child's biological father, Sozio also filed a petition to
adopt her. 	Both petitions were voluntarily withdrawn after a
clinical psychologist opined that the child's best interests
would be served by not granting either petition.
Thorpe later petitioned the circuit court for approval to
relocate to South Carolina with her children and husband. 	Sozio
then filed another petition to adopt the female child and again
obtained her biological father's consent. 	Thorpe demurred to
Sozio's petition for adoption and sought dismissal of the
petition on the grounds that Sozio failed to join his present

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wife as a co-petitioner as required by Code § 63.1-221 and failed
to allege a basis to terminate Thorpe's parental rights. 	The
trial judge sustained the demurrer, dismissed the petition, and
denied Sozio's motion to reconsider.
In pertinent part, the first paragraph of Code § 63.1-221
contains the following requirement for an adoption petition:
In the case of married persons, the petition
shall be the joint petition of the husband
and wife but, in the event the child to be
adopted is legally the child by birth or
adoption of one of the petitioners, such
petitioner shall unite in the petition for
the purpose of indicating his or her consent
to the prayer thereof only.
The parties disagree whether this statute requires a trial
judge to dismiss a petition for adoption if the spouse of a
married petitioner does not join in the petition. 	Sozio argues
that because the second paragraph of Code § 63.1-221 states that
"[t]he court shall not waive any of the requirements of this
paragraph [i.e., the second paragraph] nor any of the
requirements of Code § 63.1-220.3," the legislature obviously
intended that a trial judge could waive any other provision of
Code § 63.1-221, including the requirement that Sozio and his
wife file a joint petition. 	We agree with Thorpe that Sozio's
argument ignores the clear and plain meaning of Code § 63.1-221.
"Adoption in Virginia is solely a creature of statute." 	NPA
V. WBA, 8 Va. App. 246, 250, 380 S.E.2d 178, 180 (1989).
Although the "adoption statutes should be liberally construed to
carry out the beneficent purposes of . . . adoption," McFadden v.

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McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952), the
principle is well established that "[c]ourts must construe
statutes according to the language used by the legislature."
Anderson v. Commonwealth, 182 Va. 560, 565, 29 S.E.2d 838, 840
(1944). 	Where the statutory language is clear and plain, we
cannot look for ambiguities under the guise of applying liberal
construction. 	Id.
The legislative expression that the trial judge "shall not
waive" any of the requirements that govern the direct placement
of a child for adoption by the child's parents does not lead by
necessary implication to the conclusion that the trial judge may
waive other provisions of the adoption statute. 	The language in
Code § 63.1-221 prohibiting waiver obviously conveys the
legislature's view of the importance of the extensive safeguards
that are mandated in Code § 63.1-220.3. 	Those statutory
procedures are quite detailed and obviously reflect the
legislative concern that private placement adoptions be strictly
scrutinized. 	The legislative emphasis in Code § 63.1-221 that
each step of the procedure be followed when parents directly
place the children for private adoptions does not suggest that
other provisions of the act are discretionary.
The statute is clear, plain, and definite in requiring that
an adoption petition, when filed by a married person, shall be
made by joint petition of the husband and wife. 	The language
that the legislature used in Code § 63.1-221 admits of no

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exception.The question here is not what the legislature
intended to enact, but what is the meaning of
that which it did enact. 	We must determine
the legislative intent by what the statute
says and not by what we think it should have
said.
Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406-07 (1963).
The trial judge properly dismissed Sozio's petition because it
was not the joint petition of Sozio and his wife.
We need not address in detail the issue Sozio raises
concerning the trial judge's refusal to ignore Code § 63.1-233.
The trial judge properly ruled that by statute "[t]he legal
effect of an adoption is to divest [Thorpe] of all legal rights
and obligations with respect to the child unless [Thorpe] is the
spouse of the petitioner." 	The language of Code § 63.1-233 is
unambiguous and supports the trial judge's ruling. 	Accordingly,
we hold that the trial judge did not err in ruling that she had
"no discretion as to the legal effect of adoption."
For these reasons, we hold that the trial judge properly
sustained the demurrer and dismissed the petition.
Affirmed.