By Tami Fitzgerald
Christian Action League
The Christian Action League (CAL) and other public policy groups have filed a Motion with the North Carolina Supreme Court asking it to review a decision by the North Carolina Court of Appeals which allows same-sex adoption. CAL and the others filed a Motion with the Supreme Court asking the Court to review the decision and to allow them to file a friend of the court brief in the case.
CAL reported to you a few weeks ago that the North Carolina Supreme Court has been asked to decide whether gay couples are allowed to adopt children in North Carolina. The North Carolina Court of Appeals, in a case granting joint custody of a minor child to two lesbian partners, one of whom is State Senator Julia Boseman (D-New Hanover), ruled that the child’s adoption by the gay partner of his biological mother was not void. Boseman obtained the adoption order from a District Court in Durham, even though she did not qualify as a step-parent (same-sex partners cannot legally marry under North Carolina law) and even though her partner was allowed to waive giving up her parental rights and duties in order for Boseman to adopt the child (the statute mandates severing parental rights as a prerequisite to adoption). The Court of Appeals essentially sanctioned gay adoptions when it ruled in the Boseman v. Jarrell case that, “After careful review, we conclude that the adoption decree, even if erroneous or contrary to law, was not void.”
The biological mother of the minor child, Melissa Jarrell, filed a Petition for Discretionary Review, asking the North Carolina Supreme Court to review the case and declare the adoption void, because the adoption statutes do not allow for such adoptions. CAL’s motion joins the biological mother in asking the Court to review the decision.
The Christian Action League of North Carolina, the American College of Pediatricians, the North Carolina Family Policy Council, NC4Marriage, and the Christian Family Law Association filed their motion on October 2, 2009. In asking the Supreme Court to review the case, they expressed the following concerns:
- That the courts should not expand the scope of North Carolina adoption statutes and child custody laws to give adoptive and custodial rights to same-sex partners of the birth parent.
- The Court of Appeals’ decision constitutes judicial activism. It violates the interplay between the General Assembly’s responsibility to make the law and the Judiciary’s responsibility to interpret the law.
- The Court of Appeals’ ruling creates havoc and chaos in adoption jurisprudence in North Carolina, leaving open the question of whether birth parents can retain their parental rights at the same time they facilitate adoption of their child by an unrelated person to whom they are not married. The question needing to be addressed by the Supreme Court is whether an unmarried couple, whether gay or heterosexual, can adopt children.
- The Court of Appeals’ ruling sanctions the unequal administration of the law by allowing district courts in Durham and Chapel Hill to set adoption policy in their individual districts without regard to the clear language of adoption statutes. This prevents equal administration of adoption law across the State.
The case presents the question as to whether same-sex adoptions are permitted under North Carolina law, a question not previously decided. The Supreme Court is allowed to review decisions of the Court of Appeals when: (1) the subject matter of the appeal has significant public interest, or (2) the cause involves legal principles of major significance to the jurisprudence of the State, or (3) the decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court. This case presents all three criteria as a valid basis for appeal.
On October 5, Senator Boseman filed her response to her former partner’s Petition for Discretionary Review. In her response, Senator Boseman predictably argues that there is no significant issue of public interest in the case, because the lower court “simply applies the mandates of the adoption statutes which make clear that a wide range of adoptions are contemplated and permitted so long as they protect the minor’s ‘needs, interests, and rights.’” She stresses that it is in the best interests of the child, Jacob, to have two legal parents (even though they are unmarried lesbians). She also argues that the waiver of the birth mother’s mandatory obligation to sever her parental rights in order to place the child for adoption was not a violation of the statutory adoption procedure for direct placement adoptions. Her response stresses that, “…the best interest of the child is the Court’s overriding concern.” She unwittingly concludes that it is in the best interest of Jacob, the child, to have two lesbian parents, relying on reasoning that the sexual orientation of the parents is of no concern and neither is the fact that they are unmarried.
The Supreme Court now must decide whether it will review the Court of Appeals’ decision. It must decide whether the lower courts in this State must uphold the clear language and intent of North Carolina’s adoption statutes. Is severance of parental rights and duties a mandatory prerequisite to direct placement adoptions, or can that severance be waived? Does the public policy of North Carolina favor marriage as the institution within which adoptions take place, or is the marital status of the adopting parent and the birth parent irrelevant? Is gay adoption allowed under the statutes of North Carolina? These are the important public issues that the Supreme Court must now decide. If they do not choose to review this case, legal chaos will result in the world of adoption.