By Tami Fitzgerald
Christian Action League
The fate of whether gay couples are allowed to adopt children in North Carolina is in the hands of the North Carolina Supreme Court, where a Petition for Discretionary Review was filed this week in the case of Boseman v. Jarrell (link to the Petition for Discretionary Review attached). The case involved a custody dispute between State Senator Julia Boseman (D-New Hanover) and her former lesbian partner, Melissa Jarrell, over a child born to Melissa Jarrell by artificial insemination during the relationship.
A few rogue judges in Durham and Orange counties have been granting adoptions to gay couples, even though the adoption statutes in North Carolina clearly do not allow for gay adoptions. These judges allow waiver of mandatory provisions of the statute that: (1) Sever the parent-child relationship between the adoptee and the adoptee’s birth parents; and (2) require the birth parent’s written understanding that his parental rights are terminated by the adoption. Newspapers reported in August that around 400 of these adoptions have been granted in Durham and Orange Counties, including the adoption by Senator Julia Boseman of Melissa Jarrell’s child.
Because Melissa Jarrell and Senator Boseman cannot marry under North Carolina law (same-sex couples are prohibited from marrying), they did not qualify for a step-parent adoption. Therefore, the adoption was performed as a “direct placement” adoption, which mandates the severance of parental rights and responsibilities of the birth parent and substitutes the adoptive parents. Durham District Court Judge Marcia Morey, however, ruled that Melissa Jarrell was allowed to waive the severance of her parental rights, issuing an adoption decree that “does not sever the relationship of parent and child between the individual adopted and that individual’s biological mother.” The ruling was clearly contrary to the language of the adoption statutes, which mandates severance of parental rights by the birth parent.
Less than nine months after Senator Boseman’s adoption was granted, she and Jarrell ended their lesbian relationship. Boseman filed a suit seeking joint custody of Melissa Jarrell’s son, using the adoption decree as the basis. The District Court in Wilmington refused to rule the adoption void, stating that it did not have the jurisdiction to overturn a ruling by another District Court. It granted joint custody to Senator Boseman. The ruling was appealed to the North Carolina Court of Appeals.
The Court of Appeals essentially sanctioned these gay adoptions when it ruled in August 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.” It reasoned that providing two “parents” for the child was more important than following the plain language of the statute. Because the decision of the three-judge panel of the Court of Appeals was unanimous, there is no automatic appeal to the Supreme Court. The Supreme Court must agree to hear the case as a matter of its discretionary review.
The Petition filed by attorneys for Melissa Jarrell with the Supreme Court urges the Court to hear the case mainly on grounds that the case has significant public interest because it presents the question as to whether same-sex adoptions are permitted under North Carolina law, a question not previously decided. They argue that the Court of Appeals’ decision creates chaos within the adoption system as to whether same-sex and unmarried heterosexual couples may adopt children in North Carolina, whether rogue judges like the ones in Durham and Orange Counties should grant these adoptions not expressly permitted by North Carolina law, whether state agencies are required to recognize such adoptions, and whether natural parents may waive the statutory mandate that their parental rights are severed by the adoption.
Ms. Jarrell’s attorneys also argue that the Court of Appeals’ ruling constituted legislating gay adoption from the bench. Its decision creates new adoption practices that conflict with the statutes, the Constitution, and the Supreme Court’s past decisions. In effect, the Court of Appeals’ decision ignores the adoption statutes and creates a new legal precedent. This, the attorneys argue, is a violation of the separation of powers delineated in the North Carolina Constitution. In short, this is blatant judicial activism.
The appeal involves legal principles of major significance to the State. It not only will determine whether same-sex adoptions are allowed under our existing adoption statutes, but it also will impact our marriage statutes. The basis of step-parent adoptions in North Carolina is marriage. The step-parent must be married to the birth-parent or adoptive parent in order to complete an adoption. The Court of Appeals’ decision takes the emphasis off marriage, making adoption available to unmarried heterosexual couples, as well as same-sex couples. As a State, it is the people, not the Courts, who should make a decision whether to undermine the current system favoring marriage as the primary institution within which children thrive and should be encouraged. Only the Legislature, the elected representatives of the people, should make such a decision. In addition, the ruling opens up an opportunity for gay activists to challenge our marriage statutes, because they do not allow these gay couples who can now adopt children to marry.
The Supreme Court can take one of two paths: choose to hear the case, or choose to let the Court of Appeals’ decision stand without hearing the case. It is within the Court’s discretion. For the sake of the children in our State, for the sake of upholding the clearly written adoption laws of our State, and for the sake of allowing the people of the State to make important policy decisions like whether to permit same-sex adoptions, let’s pray they decide to hear the case.