Tuesday, August 18, 2009

North Carolina upholds second-parent adoption!

The South is the region with the worst laws in the country for gay and lesbian parents. Well today add North Carolina to the list of states that approve second-parent adoption.

Today's decision from the North Carolina Court of Appeals came in the case of Boseman v. Jarrell. Pretty straightforward facts: Julia Boseman and Melissa Jarrell had been together four years when, in 2002, Melissa gave birth to a child, conceived through donor insemination and planned for by both of them. The child called Melissa "Mommy" and Julia "Mom." The couple filed for a second-parent adoption, which was granted in 2005. As is common given state adoption statutes, the couple asked the court to waive the statutory provision that an adoption terminates the biological mother's parental rights. The court ruled that it had the power to do that, and the adoption decree specifically reads that it does not terminate Melissa's parental rights.

So far so good.

But the next year the couple split up, Melissa limited Julia's time with the child, and, in 2007, Julia filed an action for joint custody. Melissa then tried to get the court (in a different county from the court that granted the adoption) to rule that the adoption decree was void. The opinion released today holds that the adoption decree was not void. If it was an error to grant an adoption without severing Melissa's parental rights, that had to be raised on an appeal from the adoption decree; it could not be raised in a subsequent proceeding.

There's lots of good language in the opinion about why the adoption was a good thing, but the court's failure to rule definitively that a court can waive the provision terminating a biological parent's rights does leave the door open for some trial court judge in the state to rule that the law does not permit such waiver. What is clear, however, is that if a trial judge DOES grant a second-parent adoption, that adoption is valid and cannot later be challenged by anyone.

The court also makes clear that it would have ruled the same way had the parties been an unmarried different-sex couple. "While [the adoption code] does not specifically address same-sex adoptions," the court wrote, "these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s 'needs, interests, and rights.'"

The North Carolina Association of Women Attorneys, the National Association of Social Workers, the North Carolina Chapter of the National Association of Social Workers, and the North Carolina Foster and Adoptive Parents Association filed a friend of the court brief in support of upholding the adoption.

9 comments:

the need for a father? said...

Suppose that the adoptee wants to meet her father? I was wondering what's your position on open records for adoptees?

It seems awkward to mention this because you may already know of Bastard Nation who campaign for open records for adoptees in the same sadly thwarted way that LGBTs campaign for their rights - I'm thinking of Prosition 8, though I read that President Obama was going to ok LGBT marriage but the campaign for that was touch and go - pretty much like campaigning adoptees.

Kate said...

This "adoptee" doesn't have a father, she has a sperm donor (or if she has a known donor called "dad" - this has nothing to do with the adoption). She was born into a family with two mothers...and adoption in this case is in lieu of having equal rights (if we had marriage and both names on birth certificates - like the straight married couple using donor sperm, adoption wouldn't be an issue here at all). This is not adoption in the classical sense of the practice. I don't know of any situation where lesbian moms giving birth to a child together consider the child an adoptee. So the question of opening adoption records really isn't part of this issue (although having a right to one's birth information should absolutely be a right for adoptees).
Anyway - I hope this is one case where NC gets it right.

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