The five-member Idaho Supreme Court ruled unanimously on February 10 that the state’s adoption law would allow second-parent adoptions, reversing a decision by Ada County Magistrate Judge Cathleen MacGregor-Irby, who had dismissed an adoption petition on the ground that the petitioner’s California marriage to the children’s legal mother was not recognized in Idaho. The opinion for the court in “In re Doe,” 2014 Ida. LEXIS 34, by Justice Jim Jones gave a literal interpretation of the statute’s provision stating that “any adult” who is at least fifteen years older than the person being adopted can petition to adopt somebody. Surprisingly, the court did not address a problem highlighted by Justice Joel D. Horton’s concurring opinion: that the statute gives the court discretion to terminate the parental rights of the parent who is consenting to the adoption of their child by somebody to whom they are not married.
Although the court assigned pseudonyms to all the parties in this case, the parents evidently decided to go public, because a news report about the decision published by the Idaho Statesman identifies Darcy Drake Simpson and Rene Simpson as the couple in question. Rene gave birth to their first son in 1998, and adopted a second boy as an infant in 2001. The women had a non-legal commitment ceremony in Boise in 1997, formed a Vermont Civil Union in 2002, and married in California last year. However, Idaho does not recognize any legal status for them as a couple, and has a state constitutional amendment banning marriages or civil unions for same-sex couples.
After the women’s marriage, Darcy filed a petition to adopt the two boys, for which Rene provided written consent. They submitted a Pre-Placement Home Study performed by a certified professional. The Home Study reported that Darcy has been the boys’ primary caregiver, while Rene’s work has provided the main financial support for the family. The children told the professional that they regarded Darcy as their mother, and the Study support the adoption petition. However, Judge MacGregor-Irby dismissed the petition without even holding a hearing, stating that “the petitioner must be in a lawfully recognized union, i.e. married to the prospective adoptee’s parent, to have legal standing to file a petition to adopt that person’s biological or adopted child.” The judge rejected a motion to amend or reconsider her decision. The motion argued that the decision should not have been made without a hearing, and that the adoption statute of Idaho does not require the petitioner to be married to the children’s legal parent.
The Supreme Court first ruled that Judge MacGregor-Irby violated Darcy’s right to due process of law by dismissing her petition without holding a hearing to consider the jurisdictional question. “Jane Doe was given no opportunity to be heard,” wrote Justice Jones. “Furthermore, she had no notice that her petition could potentially be dismissed because there was no opposition to it. Rather, the magistrate court acted unilaterally in dismissing it.” The court concluded that this action “deprived Jane Doe of due process because she was not given notice and the opportunity to be heard in a meaningful manner.” Even more to the point, the court found that the adoption statute itself provides that an adoption petitioner is entitled to a hearing.
More importantly, the court found that MacGregor-Irby had misconstrued the adoption statute. The court agreed with Darcy’s argument that the statute does not require her to be married to Rene in order to adopt the children. MacGregor-Irby had written that there was not any provision in the statute that allows for such adoptions, and concluded that allowing such adoptions would not be consistent with “legislative intent.” But courts generally do not try to discern legislative intent if a statute is “unambiguous” and can be interpreted by resort to the “plain meaning” of the words used by the legislature. In this case, the court criticized MacGregor-Irby for failing to determine whether the statute was unambiguous in its description of who could petition to adopt a child.
The relevant provision states that “any minor child may be adopted by any adult person residing in and having residence in Idaho, in the cases and subject to the rules prescribed in this chapter.” As far as the court was concerned, “‘any adult person’ is susceptible to only one interpretation — a human being over the age of 18,” and thus is “unambiguous.” Furthermore, the court found that the “cases” and “rules” referred to in that provision had nothing to do with the marital relation, if any, between the petitioner and the children’s legal parent. Although the statute mentions “spouse” and “married” several times, those terms are never used in a way suggesting that the adoption petitioner must be married to the legal parent.
Justice Jones insisted that “this is not a case dealing with same-sex marriage. Rather, it is strictly a case dealing with Idaho’s adoption laws. Those laws, including the issue of who may adopt, are set by the Idaho Legislature. The Legislature has imposed no restrictions that would disqualify Jane Doe from seeking to adopt Jane Doe I’s children, and the Court will not imply any such restrictions based upon Idaho’s marital statutes. We emphasize that Jane Doe’s sexual orientation was wholly irrelevant to our analysis. Likewise, it is immaterial in determining whether Jane Doe satisfies the statutory requirements for adoption.” The court sent the case back to Judge MacGregory-Ibry for a determination whether approving the adoption would be in the best interest of the children.
Justice Horton’s concurring opinion sounded a cautionary note. The statute says that the legal parent or parents of a child must give consent for the child to be adopted, unless their parental rights have previously been terminated, and that parents consenting to an adoption must simultaneously consent to the termination of their parental rights. Upon granting of the adoption, those rights are terminated “unless the decree of adoption provides otherwise.” “Thus,” wrote Justice Horton, “the judge hearing the adoption petition may, but is not required to, terminate the parental rights of the parent or parents consenting to the adoption. The Legislature has not identified the standards, if any, by which judges are to exercise their discretion in determining whether to terminate the parental rights of natural parents when proceeding with adoptions.”
“The takeaway is simply this,” wrote Horton: “Parents wishing for a new spouse or domestic partner to adopt must offer to consent to the termination of their parental rights and hope that the judge doesn’t accept the offer.” Of course, for the judge to accept the offer would be absurd, since the adoption petition would specify that the petitioner does not seek to terminate the parental rights of his or her partner, especially where, as in this case, the couple are actually married — even though an Idaho court is required, as of now, to treat their marriage as invisible and unrecognized.
There is a lawsuit pending in federal court challenging Idaho’s ban on same-sex marriages. Since Idaho is in the 9th federal appellate Circuit, which recently held that sexual orientation discrimination claims are subject to “heightened scrutiny,” chances are good that the federal court will rule in favor of the plaintiffs in that case. But, in the meantime, this ruling by the Idaho Supreme Court suggests that Idaho couples have a mechanism to solidify the legal status of their family through second-parent adoptions even though the marriage ban is still in effect.
The attorneys for the Simpsons include the Boise law firm of Mauk & Burgoyne, Nate Peterson Law PLLC, and Lisa Shultz.