Paul Martin Newby

The North Carolina Supreme Court on December 20 voided the adoption by a lesbian mother of the child who she and her former partner, the biological mother, were raising together. The ruling jeopardizes the legality of all other such “second-parent adoptions” in the state.

State Senator Julia Boseman and her former partner, Melissa Jarrell, planned for a child together, and Jarrell consented to Boseman adopting the child in 2005, when he was almost three, according to court documents.

Boseman was the first out member of the state General Assembly but did not seek reelection this past fall.

The couple split in 2006, and Boseman sought joint custody. Jarrell first tried to initiate a class action lawsuit to invalidate all second-parent adoptions in the state. Under pressure from the American Civil Liberties Union (ACLU) of North Carolina and others, however, she dropped the suit.

Jarrell acknowledged in court that Boseman was “a very good parent” but nevertheless petitioned for sole custody, claiming the adoption should never have been granted to Boseman because North Carolina law does not permit second-parent adoptions. A trial court granted joint custody but did not rule on the adoption, which had been granted in another district.

Jarrell first appealed to the state Court of Appeals, which upheld both the custody order and the validity of the adoption. Then, she appealed to the state Supreme Court, which upheld the lower court ruling granting Boseman joint custody. But a 5 to 2 majority overturned the appeals court ruling in regards to the adoption.

The majority said the adoption granted to Boseman was invalid from its beginning. State statutes, said Associate Justice Paul Newby, writing for the majority, permit adoptions only if the existing parent gives up all parental rights or is married to the person seeking to adopt, as in the case of a stepparent. Because this was not the situation for Boseman, the adoption court did not have the authority to grant the adoption, said the majority.

Two justices dissented. Patricia Timmons-Goodson and Robin E. Hudson said Jarrell had not appealed within the proper time limits. And Timmons-Goodson noted that state law requires adoptions to be final because that is in the best interest of minors. The law allows challenges, she said, only “in narrow circumstances,” none of which applied here.

Hudson also wrote that she felt the matter of the adoption court’s jurisdiction was, at most, “an error of law” and should not have led to a voiding of the adoption.

The ruling calls into question the validity of all other second-parent adoptions in North Carolina. Such adoptions have been granted in only two counties and impact perhaps several hundred families, according to Ian Palmquist, Executive Director of Equality North Carolina. (An exact count is impossible because most adoption records are sealed.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, said the court was unclear about whether existing adoptions are now automatically void but he believes they are now more vulnerable to challenge. Minter urged all parents who have obtained second-parent adoptions in North Carolina to consult a knowledgeable family law attorney.

Greg Nevins, Supervising Senior Staff Attorney at Lambda Legal Defense and Education Fund, agreed the status of the other adoptions remains unclear at this point, but “at a minimum, [the ruling] is causing a lot of anxiety.”

Nancy Polikoff, Professor of Law at American University, said, however, that she believes the ruling makes all second-parent adoptions in the state “void.”

“When the issue of legal parentage arises,” said Polikoff, “…the adoption decree will be a meaningless piece of paper.”

A separate North Carolina law prohibits unmarried couples from jointly petitioning to adopt a child, although gay and lesbian people may do so as individuals.

A number of ultra-conservative organizations submitted friend of the court briefs in support of Jarrell, including the American College of Pediatricians—a group of conservative doctors who split from the mainstream American Academy of Pediatrics when the latter endorsed adoption by gay parents.

Groups submitting briefs in support of Boseman included Lambda Legal, the Equality North Carolina Foundation, the American Academy of Pediatrics (North Carolina Chapter), the ACLU of North Carolina Legal Foundation, the American Psychological Association, the National Association of Social Workers, and several adoption policy centers.

Of the five justices who voted against the adoption, two hold leadership positions in churches with strong anti-gay views.

Associate Justice Edward Thomas Brady devotes an entire section of his official court biography to “Religious Convictions.” He sits on the Board of Directors of the Baptist State Convention of North Carolina, which in 2006 voted to sever ties with churches that approve of “homosexuality.” The group has also promoted the work of Exodus International, a well known umbrella organization of “ex-gay” groups that claim to offer “freedom from homosexuality through the power of Jesus Christ.”

Brady has also represented his church at the national Southern Baptist Convention (SBC), which believes that homosexuality is “not a ‘valid alternative lifestyle,’” according to its Web site.

Newby, who wrote the majority opinion, is an Elder, Sunday School teacher, and youth leader at Christ Baptist Church (CBC) in Raleigh, according to his court biography. CBC is a member of the SBC and an offshoot of Providence Baptist Church, which lists Beyond Imagination, an Exodus member ministry, among its local ministry partners.

Neither of the dissenting justices lists their religious affiliations in their court biographies.

Minter called the decision “a complete outlier.” Even when second-parent adoptions have been challenged in conservative states, such as Texas, he said, courts have refused to set aside existing adoptions.

In a similar recent case in Minnesota, an appeals court ruled against a woman who was trying to void her former partner’s second-parent adoptions of their twins. The court said the partner had waited too long to challenge the adoptions, but did not rule on her claim that second-parent adoptions are unlawful.

In two other states where second-parent adoption was ruled illegal—Colorado and Connecticut—the legislature then stepped in to allow them. In North Carolina, however, Republicans have taken over the General Assembly and are considering a state constitutional amendment banning same-sex couples from marriage.

“We don’t anticipate any legislation related to adoption to be put forward in the near term,” Palmquist said.

Polikoff noted that conservative groups like the Alliance Defense Fund “are willing to work on any case seeking to undo any parenting by a non-bio mom” but does not believe the attack on second-parent adoptions in North Carolina heralds a trend.

Nevins said that, because Boseman’s custody was upheld, “This won’t be much of a rallying cry.”

And Minter said anti-gay groups are unlikely to succeed with similar suits because “most LGBT parents have too much integrity to attack second-parent adoptions.”

The decision, he said, is “callously oblivious to the impact of its decision on children and families. I don’t think it will have much if any effect outside of the devastation it has wreaked in North Carolina.”