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Lawyer summoned for possible contempt hearing.

Byline: Peter Vieth

A Virginia Beach lawyer has been called on the carpet by a Norfolk circuit judge after allegedly concealing the status of an adoption order to prevent a timely challenge to the adoption.

Jennifer B. Shupert faces a show-cause hearing before Judge Everett A. Martin Jr. in October to demonstrate why she should not be found in civil contempt of court.

Martin said in an Aug. 7 order it appeared to him that Shupert misbehaved and failed to "demean herself with the candor and integrity expected of any attorney practicing at the Bar of this Court."

In a separate letter opinion, Martin said Shupert offered several comments at a February adoption hearing apparently designed to throw the natural father off track about the need to promptly act to prevent his daughter's adoption from becoming final. Shupert's actions led Martin to vacate the adoption order after the normal deadline for finality.

Martin's Aug. 7 opinion is Ottrix v. Knight (VLW 018-8-077).

Father contests adoption

The Ottrix family sought to adopt the daughter of Sheera L. Mack and Gary D. Knight.

The Ottrixes have had custody of the girl since shortly after birth, according to Martin's summary of the case. The Ottrixes' is the only home she has known. Evidence showed the 12-year-old was happy, well behaved and doing well in school.

The father reportedly has had no contact with his daughter in more than a decade and has been incarcerated much of her life.

The natural parents did not consent to the Ottrix adoption, but a Norfolk juvenile and domestic relations judge ruled in 2017 that the consent of the natural parents was being withheld contrary to the best interests of the child.

The father Gary Knight appealed.

Citing a statute Virginia Code 16.1-298 that generally keeps the judgment of the juvenile court in place during an appeal, Shupert the lawyer for the Ottrix family filed a petition for adoption of the child. Martin entered an adoption order Aug. 28, 2017.

Another statute, Virginia Code 63.2-1216, sets up a six-month deadline for any attack on the validity of a final adoption order. The deadline in the Ottrix adoption was March 1.

Martin held a three-hour hearing in the case on Feb. 15 and decided that the father's adoption consent was being withheld contrary to the best interests of the child. At that hearing, Shupert failed to inform lawyers for the natural parents of the existence of the adoption order, the judge said.

Objections

Those lawyers learned of the adoption order only on March 28, after the date had run for any challenge to the order's validity.

The lawyer for the father asked the judge to vacate the adoption order and to require Shupert to reimburse fees for the proceeding. Shupert contended the adoption order should be considered final.

Martin first ruled the order of Feb. 15 was not final. He noted it provided that "Ms. Shupert shall prepare the final decree."

The judge refused to rehear the parent's objections to the adoption. The father's unfitness was apparent at the earlier hearing, he said. Martin also denied the motion to unseal the adoption file.

Adoption order vacated

But Martin granted the motion to vacate the adoption order. He cited a 2006 Court of Appeals opinion that appears to recognize a general extrinsic fraud exception to the finality statute. He said Shupert as the lawyer for the adopting family purposely kept the father in ignorance of the adoption order.

Shupert contended the father had notice of the adoption proceeding because he was aware of the parental consent proceeding. Martin disagreed.

"This proceeding is a prerequisite to the adoption suit. It is not the adoption suit. It certainly gave the father notice that an adoption was intended, but not that it was pending or had been accomplished," Martin wrote.

Martin said his greatest concern was Shupert's failure to disclose the entry of the adoption order and her false statements about the status of the adoption at the Feb. 15 hearing.

In her closing argument, she said, "The next step would be to then file the adoption petition."

At another point, she referred to a scenario "if my client is not allowed to move forward with adoption"

Martin said Virginia Code 8.01-271.1 provided no authority to sanction Shupert because oral statements are not pleadings, but he said a court has inherent authority to remove an attorney from a case for misconduct and to revoke her privilege to practice in that court.

Martin removed Shupert as counsel for the Ottrixes in both the consent appeal and the adoption cases, leaving to another day whether further discipline should be imposed. The removal action was "not much of a sanction," the judge said, since the case was over and Shupert prevailed.

The father was represented by Lenita J. Ellis of Norfolk. Neither Ellis nor Shupert responded to requests for comment.

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Title Annotation:Jennifer B. Shupert, Ottrix v. Knight, Norfolk Circuit Court, Virginia
Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Sep 14, 2018
Words:826
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