North Carolina Appeals Court Rejects Challenge to Second-Parent Adoption, Affirming Co-Parent Custody and Visitation Award

The Court of Appeals of North Carolina ruled on August 18 that a second-parent adoption was not void, even though its legality might have been questioned in a direct appeal of the adoption order, and thus could not be challenged in a subsequent dispute over custody and visitation between former same-sex partners. The court affirmed a decision by Judge Lillian B. Jordan of New Hanover County District Court granting joint legal custody and awarding liberal visitation rights to the adoptive parent in Boseman v. Jarrell, 2009 WL 2601629.

The parties, Julia Catherine Boseman and Melissa Ann Jarrell, began their relationship in 1998, living together as domestic partners, and "from the beginning, the two discussed their desire to have a child," according to the appeals court opinion by Judge Wanda G. Bryant. Jarrell gave birth to their son, conceived through donor insemination, in October 2002. In May 2005, Jarrell filed a motion with the Durham County District Court Clerk for a "Waiver of Statutory Provisions by Biological Mother." In the motion, Jarrell requested that the court waive the requirement that a biological mother’s parental rights be terminated if the child was adopted. A Durham County judge granted the motion and ruled in favor of adoption of the child by Boseman, so that both women would be legal parents of their son.

However, over the next two years the women spent more and more time apart, not so surprising when one considers Boseman’s developing political career as an openly lesbian state senator. (Boseman was first elected in 2004 and is now serving her third term in the North Carolina Senate.). "Despite Jarrell’s acknowledgment that Boseman ‘is a very good parent who love[d] [the child]’ and whom the child loved in return," wrote Bryant, "Jarrell limited Boseman’s contact with the child." Boseman then turned to court, filing suit in New Hanover County District Court seeking joint custody, requesting that Jarrell retain primary custody and that Boseman have "liberal and extensive visitation." Boseman relied, of course, on the fact that as an adoptive parent she would have all the rights of a legal parent to custody and care of her child.

Jarrell responded with the argument that the adoption should not count in this forum because, she argued, North Carolina’s adoption statute does not authorize adoption by same-sex partners, and seizing upon the alleged refusal of the state’s Department of Health and Human Services "to index the non-stepparent adoption decree on this State’s permanent retention system," Jarrell argued that the adoption was void from its inception, and Boseman should not be entitled to seek custody or visitation with the child.

The trial judge took the position that the New Hanover County District Court lacked jurisdiction to entertain any attack on the adoption, which had been approved by a judge in Durham County, and proceeded on the merits to find that joint custody and visitation rights for Boseman were in the best interest of the child. Jarrell appealed.

The Court of Appeals rejected Judge Jordan’s conclusion that she did not have jurisdiction to inquire into the validity of the adoption, but concluded nonetheless that the adoption was not void. According to the Court of Appeals, once an adoption decree is granted by a court having proper jurisdiction over the parties and the subject matter, it can only be subjected to judicial review in a direct appeal of the adoption decree. Collateral attack in a subsequent proceeding is not allowed. Thus, the adoption is not void, although it might have been voidable. Thus, the Court of Appeals did not directly pass judgment on the device of the motion for waiver as a means of getting around the structure of the North Carolina adoption statute to accommodate a second-parent adoption, unfortunately. On the other hand, departing from the view taken by courts in some other jurisdictions that have refused to grant second parent adoptions on the ground that adoption statutes must be strictly construed as being in derogation of common law, this court took the view that ultimately the purpose of the adoption statute is to provide for the best interest of the child, and to that end this adoption was consistent with the purposes of the statute..

Judge Bryant seized upon the arguments that Jarrell had made in her waiver motion, pointing out that the purpose of the provision terminating parental rights was to protect the child’s former parent against any legal responsibilities or claims, and thus appropriate for waiver by the biologial mother, and noting further that "Jarrell herself makes this point in her motion for waiver to the adoption court where she notes that the waiver will avail the minor of additional health and governmental benefits, as well as provide stability and ‘a legal framework for resolving any disputes regarding custody or visitation that may arise after the adoption.’" It was strange that now Jarrell should be arguing that the adoption should not serve that very purpose. "This is exactly the end achieved by the adoption in this case," wrote Bryant. "Following unforeseen circumstances, namely the end of the parties’ domestic partnership, the minor’s interests, both financial and emotional, are protected. Because of the adoption here, the minor will still be entitled to the support and care of the two adults who have acted as his parents and they will both remain fully obligated to his welfare."

The court found that this result was consistent with the primary purpose of the adoption statute. These parties planned the conception and birth of the child, Bryant noted, and had both acted in a parental capacity. Bryant observed that the adoption statute itself provides that the needs of minor adoptees should be "primary" in relation to the rights of any adults, and that the statute itself provides for liberal construction "to promote its underlying purposes and policies."

The court treated as irrelevant the fact that the litigants are a former same-sex couple, indicating that the same result would arise were they an unmarried different-sex couple. "While acknowledging that such issues are matters of great public interest and of personal significance to Boseman and Jarrell," she wrote, "we emphasize that the specific nature of the parties’ relationship or marital status was not relevant to resolution of the instant appeal. The same result would have been reached had the parties been an unmarried heterosexual couple. While Chapter 48 does not specifically address same-sex adoptions, 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.’" Is this an intimation that the court would look favorably on second-parent adoption petitions without the need for a waiver petition?

Having decided that the adoption should be treated as valid, the court upheld the trial court’s conclusion that Boseman had standing to pursue custody. Bryant observed that "the trial court’s other conclusions, namely that Boseman is a parent of the child based on the adoption decree and that both Boseman and Jarrell are fit and proper persons for custody of the child, fully support its custody award." The question remains whether Jarrell will attempt to appeal this unanimous ruling to the North Carolina Supreme Court.