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Art Leonard Observations

NC Supreme Court and Minnesota Court of Appeals on Second-Parent Adoptions

Posted on: December 21st, 2010 by Art Leonard No Comments

While charting the progress towards equality for LGBT families as it unfolds from state to state, it is easy to forget that progress is uneven and, in some states, even seems to go backwards at times.  The latest chapter in litigation over second-parent adoptions – two appellate decisions issued in recent days – bears this out, as the North Carolina Supreme Court overruled both trial and intermediate appellate courts to find that a second-parent adoption approved five years ago was "void ab initio," while Minnesota's intermediate appellate court found that a trial judge erred by sanctioning an attorney for raising a similar argument in seeking to set aside an eight-year-old second-parent adoption decree.

The North Carolina decision, released on December 20, came in a very high profile case, involving openly lesbian state legislator Julia Boseman, who was seeking joint custody over the child she had been raising with Melissa Jarrell, the child's birth mother, when the women broke up in 2006.  Boseman v. Jarrell, No. 416PA08-2.   Boseman and Jarrell met and began their relationship in 1998, moving to North Carolina together in 1999.  In 2000, they began the process of having the child.  They decided that Jarrell would bear the child, conceived with sperm from an anonymous donor, and after the child was born, the women played equal parental roles.  In 2004, having heard that a trial judge in Durham County had granted a second-parent adoption, they agreed that they would apply to have Boseman adopt the child while preserving Jarrell's parental status.

The trial judge in Durham County was amenable to this, allowing them to "waive" the statutory provision under which an adoption terminates existing parental rights.  Under the August 10, 2005, adoption order, the court determined that Jarrell's "limited consent" to the adoption, under which she would continue to have parental rights, was sufficient, and the court conferred full parental rights on Boseman without affecting the continuing parental rights of Jarrell.

Unfortunately, less than a year later the women ended their relationship and soon Jarrell began limiting Boseman's access to the child.  As a legal parent, Boseman went to court, this time in Hanover County, seeking custody of the child.   In a custody dispute between legal parents, the court is supposed to decide solely on the basis of the best interest of the child.  Having found that both women were fit mothers who had good relationships with the child, the court ordered joint custody. 

Jarrell had opposed Boseman's petition, claiming that the adoption was void and that as the child's only legal parent, she should retain sole custody and have a right to determine who would have access to the child.  The trial judge said it was not appropriate to question an adoption decree entered by a different court and, in any event, that Jarrell's conduct had been "inconsistent with her paramount parental rights and responsibilities" in encouraging Boseman to form a parental relationship with the child in any event. Thus joint custody would be appropriate, consistent with other North Carolina decisions allowing custody to same-sex partners who had formed parental relationships with children in the absence of adoption decrees.  When Jarrell appealed, the court of appeals concluded on the merits that the adoption decree was valid and that Boseman was entitled to joint custody.

In the Supreme Court, however, five justices concluded that the Durham County trial judge who granted the adoption never had proper jurisdiction to do so.  They reached this conclusion by reading into the adoption statute a jurisdictional requirement that the party petitioning for adoption seek one out of the three types of adoption specifically described in the statute: either birth parents surrending their parental rights directly to adoptive parents, birth parents surrendering their adoption rights to an agency which would then place the child with adoptive parents, or a step-parent adoption, in which a birth or legal parent consents to adoption by their legal spouse.   The court found that this case did not fit into any of those categories, and thus the trial court lacked jurisdiction to grant the adoption.

Insisting that in North Carolina adoption is entirely a creation of statute, Justice Paul M. Newby cited excerpts from the statutory language to suggest a literalistic interpretation in support of the court's conclusion, but this approach was sharply criticized by Justice Robin E. Hudson, who pointed out in her dissent that the legislature had also provided, in no uncertain times, that once an adoption order is issued by a court, there is a strict time limit for challenging it, which had long since passed when Jarrell raised her objection defensively in this case. 

Justice Hudson also pointed out that the legislature had included a section on "jurisdiction" in the adoption statute, which spoke only to the residence of the adoptee and the petitioner and placed no other limitation on the jurisdiction of the court.  Significantly, she noted, the statute said nothing one way or the other about whether a birth parent and adoptive parent could agree to waive the provision about termination of parental rights, while the statute expressly called for "liberal interpretation" to protect the best interest of children in need of adoption.  Thus, she argued, the Supreme Court was violating the clear language of the statute by allowing this challenge to the adoption so long after the fact.  Justice Patricia Timmons-Goodson separately dissented in a brief opinion focused solely on the statutory time limit for challenging an adoption decree, which is six months.

While a majority of the court voted to hold the adoption void ab initio, nonetheless the court was unanimous in upholding the lower court's award of joint custody to Boseman and Jarrell, based on earlier North Carolina rulings upholding the award of joint custody in the best interest of the child when a legal parent had acted in a manner inconsistent with her "paramount" parental rights by allowing an unrelated adult to assume a full parental role toward her child.    The upshot is that Boseman will have joint custody of the child but will not be considered its legal parent.

In the Minnesota case, In re Adoption of T.A.M. and E.J.M., 2010 Westlaw 5071361, a unanimous three-judge court of appeals panel adopted the same view as the North Carolina dissenters in holding that a birth parent was time-barred from challenging the second-parent adoption by her former partner. 

In this case the parties are all identified by their initials.  The two women, J.M.J. and L.A.M., began their relationship in 1995.  In 2000, J.M.J. arranged with J.L., her former boyfriend, to conceive a child.  The result was the birth of twin girls, born in July 2001.  A month after the twins' birth, J.M.J. consented to a second-parent adoption by L.A.M., with J.L. executing a consent to termination of his parental rights, and a Minnesota district judge approved the adoption.

According to the court of appeals' opinion by Judge Kevin G. Ross, "The pair separated in 2002, and they began a still-continuing series of legal squabbles over custody, parenting time, and child support."  Unlike the North Carolina case, in this case the known sperm donor, J.L., had actually maintained a relationship with the twins after the adoption, providing child care, participating in birth celebrations, hosting them in his home for sleepovers, and he "involved his own family in their lives."  To make the case even more complicated, after the women split up, J.M.J. eventually married a man and moved with him to Arizona, while retaining her home in Minnesota to "spend her parenting time with the twins."

Apparently as a move in the continuing battles concerning custody, parenting time and child support, J.M.J. filed a motion in 2009 to "vacate" the adoptions, contending that Minnesota law does not allow second-parent adoptions, so these were void.  She also claimed the adoptions resulted from a fraud on the court, pointing out that the adoption papers claimed the twins were conceived through alternative insemination with sperm from an anonymous donor, when actually she had concieved them through sexual intercourse with J.L., her former boyfriend.

The trial court totally rejected J.M.J.'s arguments, finding that there was a statutory time limit for challenging an adoption that was long past, and that both of her legal arguments were invalid and improperly raised by her attorney.  Not only did the court grant L.A.M.'s motion to dismiss the case, it also imposed a sanction for improper litigation tactics by requiring J.M.J. and her attorney to pay for L.A.M.'s attorneys fees in defending against the motion.

The court of appeals agreed with the trial judge that the motion to vacate the adoptions was untimely, and also agreed that sanctions were appropriate because the fraud claim was spurious — the question of how the twins was conceived was not relevant to the adoption — and the time-bar was obvious, but the court disagreed that J.M.J. and her attorney could be sanctioned for raising the issue of whether Minnesota law allows second-parent adoptions because, the court concluded, that was an open question that has not yet been resolved on the appellate level.

Looking at the state's adoption law, Judge Ross wrote, it was plausible to interpret it to allow such adoptions, but it was also possible to read the statute to forbid them — or, at least, not to authorize them.  Since the question whether second-parent adoptions are allowed had not yet been determined at an appellate level, wrote the court, it was not sanctionable conduct for a lawyer to make that argument, and thus an abuse of discretion for the trial judge to impose a financial sanction on that basis.

The court was careful to say that because it approved the trial court's decision to dismiss the case as untimely, it was not necessary for the court to determine whether Minnesota law allows second-parent adoptions, and the court was also careful, in its analysis of the statutory language, to refrain from taking a position about which interpretation of the statute was correct, thus leaving this important question in doubt in Minnesota.

As the facts in these cases indicate, trial judges in Minnesota and North Carolina had granted second-parent adoptions for same-sex couples, suggesting those states were moving with the trend towards allowing such legal arrangements in jurisdictions where there is no recognized legal status for same-sex couples.  As a result of these new appellate decisions, however, it is now clear that second-parent adoptions may not be granted in North Carolina, and that the Minnesota court of appeals, while not shutting the door to them, has told trial courts that their legality is at least questionable. 

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