Mixed Signals Persist in Family Law

The battle for LGBT family equality unfolds in uneven fashion from state to state, and in some jurisdictions even seems to go backwards at times. The latest chapter in second-parent adoption litigation — with two appellate decisions issued in recent days — certainly bears this out.

The North Carolina Supreme Court overruled both a trial and an intermediate appellate court to find that a second-parent adoption approved five years ago was “void ab initio” — invalid from the start. Meanwhile, Minnesota’s intermediate appellate court did not rule on the merits of a challenged second-parent adoption but found that a trial judge erred by sanctioning an attorney for raising an argument about whether such procedures were allowed under state law.

North Carolina closes door on second-parent adoptions, while Minnesota equivocates

The North Carolina decision, released on December 20, came in a high profile case, involving openly lesbian State Senator 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. The couple, who began their relationship in 1998 and moved to North Carolina the following year, decided in 2000 that Jarrell would bear their child. In 2004, after hearing that a Durham County judge had granted a second-parent adoption, they decided they would apply to have Boseman adopt the child while preserving Jarrell’s parental status.

By statute, an adoption in North Carolina can only follow the termination of existing parental rights, but the Durham County judge, in 2005, waived this provision, allowing Jarrell to give what was legally considered “limited consent” to the adoption and thereby maintain her full parental rights.

However, when the couple broke up less than a year later, Jarrell began limiting Boseman’s access to their child. Boseman went to court, this time in Hanover County, seeking custody of the child. In custody disputes between two legal parents, courts give sole consideration to the best interest of the child. When the court found that both women were fit mothers who had good relationships with the child, it ordered joint custody.

The judge rejected Jarrell’s argument that the 2005 adoption was void, finding that it could not question an adoption decree from another court and that by encouraging Boseman’s parental relationship with the child, the biological mother was acting inconsistently with her claim to have sole rights as a parent. The ruling was in line with other North Carolina decisions that had granted custody to same-sex partners who had formed parental relationships with children in the absence of adoption decrees.

An intermediate appellate court upheld the ruling by the Hanover County judge.

Five justices on the State Supreme Court, however, found that the Durham County trial judge who granted the 2005 adoption lacked jurisdiction to do so. Adoptions are legal, they found, only as specifically authorized in state law — either after birth parents have surrendered their rights or by a step-parent legally wed to a birth parent who gives consent.

The literalistic interpretation spelled out in Justice Paul M. Newby’s majority opinion was sharply criticized by Justice Robin E. Hudson, who pointed out in her dissent that the Legislature had also made clear, in no uncertain terms, that there is a strict time limit for challenging adoption decrees, long since elapsed when Jarrell mounted her argument. Nothing in North Carolina law, she said, limited either the birth or the adoptive parent’s right to waive the provision regarding termination of parental rights, while it did expressly call for “liberal interpretation” to protect the best interest of children in need of adoption.

Even though the high court majority voided Boseman’s adoption, it did weigh the child’s best interest, since it agreed that Jarrell had encouraged her ex-partner’s parental relationship with their child. In the end, Boseman will maintain her joint custody with her ex-partner, but she is no longer a legal parent.

In the Minnesota case, a unanimous three-judge court of appeals panel, in a case in which the parties are identified only by their initials, adopted the same view as the North Carolina dissenters in holding that a birth parent was time-barred from challenging her former partner’s second-parent adoption. The two women, J.M.J. and L.A.M., began their relationship in 1995, and five years later J.M.J. conceived a child with the assistance of a former boyfriend. A month after twins were born, the birth mother consented to her partner’s second-parent adoption, with the birth father agreeing to terminate his rights.

In 2002, the couple split up, with J.M.J. moving to Arizona, and years of legal squabbling ensued between the two mothers. Finally, in 2009, the birth mother filed a motion to vacate the adoptions, contending that Minnesota law does not allow for second-parent adoptions. J.M.J. also claimed that the 2000 adoptions were fraudulent since the paperwork stated that the twins were conceived through insemination with sperm from an anonymous donor, when in fact she had sexual intercourse with her former boyfriend.

The trial court rejected J.M.J.’s arguments, finding that the statutory time limit for challenging an adoption was long past, and that both of her legal arguments were invalid and improperly raised by her attorney. The judge not only granted L.A.M.’s motion to dismiss the case, it also imposed a sanction for improper litigation tactics, requiring J.M.J. and her attorney to pay for her attorney fees.

The court of appeals agreed that the motion to vacate the adoptions was untimely, and also agreed that sanctions were appropriate because the time-bar was obvious and the fraud claim was spurious — the question of how the twins were conceived was not relevant to the adoption.

Significantly, however, the court disagreed that J.M.J. and her attorney could be penalized for raising the issue of whether Minnesota law allows second-parent adoptions because, the court concluded, that was an open question not yet resolved on the appellate level.

Looking at the state’s adoption law, Judge Kevin G. 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, to not authorize them. The trial court abused its discretion by imposing a financial sanction for having raised that issue.

The appellate court was careful to note that the untimely nature of J.M.J.’s motion made it unnecessary to determine whether in fact Minnesota law allows second-parent adoptions. The court was very careful in its discussion to refrain from signaling any view on that matter, leaving this important question in doubt in Minnesota.

While these cases show that trial judges in both Minnesota and North Carolina have granted second-parent adoptions for same-sex couples, the high court ruling in North Carolina made clear that they can no longer proceed, while the Minnesota decision, though not shutting the door on them, has told trial courts that their legality is at least questionable.