Here is another "lesbian bio mom behaving badly" case, and another court --this time the Wisconsin Court of Appeals -- that does not let her get away with it. (This case was decided in July, but I'm behind on some of my posts and I haven't seen it written about elsewhere).
The case name is Shelly J. v. Leslie W. Lesbian couple, Shelley and Leslie, began their relationship in 1996 and decided to have children together. Shelly gave birth to one child in 2000 and another in 2002, using anonymous donor insemination. The couple raised the children together. Now comes the tricky part. Many years ago, the Wisconsin Supreme Court ruled that Wisconsin adoption statutes did not permit a biological mother to retain her parental rights once the child was adopted by her partner. In other words, it ruled that second-parent adoption was not authorized under Wisconsin law. That case, In re Angel Lace M., did not decide whether two people of the same sex could jointly adoptly a child together.
So...Leslie and Shelly solidified their family as follows: Shelly voluntarily terminated her parental rights, and Shelly and Leslie petitioned to jointly adopt their two children. The court granted the adoptions in 2004. Seven years later, Shelly petitioned to set aside her voluntary termination of parental rights and the joint adoption, so she could go back to being the children's only legal parent. She did this by arguing that the adoptions were not allowed under Wisconsin law. She even argued that the two attorneys and the judge were working to "subvert the existing law to further a political agenda."
Well, the appeals court did not rule on whether this type of joint adoption is permissible in Wisconsin; there is still no appellate court decision on that question. The appeals court told Shelly it was too late to make any such claim. In applying the legal standard for undoing the previous judgments, the court specifically ruled that reopening the proceedings would not be in the children's best interests. The two women had raised the children since birth, and the trial judge had emphasized that custody and visitation rights of both parents should be preserved. Shelly made various arguments about whether the court that granted the adoptions had the power to do so, but the appeals court made clear that circuit courts in the state have subject matter jurisdiction to hear actions of any nature. This of course is in stark contrast to the North Carolina Supreme Court ruling last year that no court in that state ever had subject matter jurisdiction to grant second-parent adoptions. As a result of that ruling every second-parent adoption ever granted in North Carolina became invalid.
I'll note that this is the second time this year that a Wisconsin appeals court has said a bio mom was too late to challenge a proceeding in which she had participated. In the earlier case, which I wrote about here, the court left standing a non-bio mom's parentage order. But that court also ruled that such parentage orders were not permissible under Wisconsin law, cutting off such an avenue for solidifying parent-child relationships when a same-sex couple has a child together. By not ruling one way or the other on the joint adoption proceeding used by Shelly and Leslie, lawyers, judges, and parents in Wisconsin are left in a state of uncertainty. This is unfortunate. The trial judge had upheld the theory that two unmarried individuals can petition to adopt a child when that child's parental rights have been terminated. Courts in other states with similarly-worded statutes have also allowed such joint adoptions. It's a good legal theory that allows for a good result, and I hope trial judges in Wisconsin keep relying on it.
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