‘This is judicial activism at its worst’
By Tami Fitzgerald
Christian Action League
North Carolina adoption statutes clearly make it impossible for gay couples to adopt children in North Carolina, even though the law does not specifically mention them. In spite of this inconvenient truth, a new ruling by the NC Court of Appeals has upheld an adoption granted by a Durham judge to state Senator Julia Boseman (D-New Hanover). A three-judge panel of the Court of Appeals unanimously upheld Senator Boseman’s 2005 adoption of her lesbian partner’s biological child, entitling Boseman to joint custody. The ruling clouds adoption law in North Carolina as it relates to gay couples.
Boseman is a State Senator from Wilmington who was endorsed by Equality NC PAC (the state’s largest gay and lesbian PAC) and NARAL Pro-Choice NC PAC in the last election. She received campaign contributions of over half a million dollars from the NC Senate Committee in 2008 and over $330,000 from the NC Democratic Party in 2006. She was the primary sponsor of the School Violence Prevention Act which passed this summer and makes “sexual orientation” and “gender identity” protected legal categories under North Carolina law.
Under existing adoption statutes, when a stepparent is adopting a child, he or she must be married to the child’s biological parent. This is the statutory situation closest to that of Boseman, except that she and Jarrell are not allowed to marry under state law, because they are same sex partners. North Carolina’s Defense of Marriage Act prohibits couples of the same sex from getting married. Since Boseman could not qualify for the stepparent adoption, she adopted the child under another statutory option–“direct placement.”
“Direct placement” adoptions are situations in which the biological parents place the child directly with adoptive parents and are required to sever their parental relationship with the child. The adoption statutes are very clear:
A decree of adoption severs the relationship of parent and child between the individual adopted and that individual’s biological or previous adoptive parents. After the entry of a decree of adoption, the former parents are relieved of all legal duties and obligations due from them to the adoptee, … and the former parents are divested of all rights with respect to the adoptee. NCGS 48-1-106(c)
This is not a discretionary provision for the biological parent ad the adoption decree itself severs the relationship; there is no mention of a waiver. There is no provision in the statute for a gay partner to adopt the biological child of her partner at the same time the biological parent retains parental rights.
What made Boseman’s adoption possible (and is rumored to have facilitated a couple hundred others like it) is that a few judges in Durham and Orange Counties have waived these requirements in the state law governing adoption.
Boseman and Melissa Jarrell entered into a homosexual relationship in 1998, and Jarrell gave birth to a child in 2002 by means of artificial insemination. In 2005 they began adoption proceedings so that Boseman could become a legal parent to the child. Even though Boseman and her partner Jarrell are both residents of Wilmington, they shopped around for a court that might be favorable to granting adoptions to gay couples and apparently found one in Durham.
Ms. Jarrell executed a waiver to the state law that would have required her to give up her rights as a parent, and Durham District Court Judge Marcia Morey granted it. In the order of adoption issued on August 26, 2005, Judge Morey wrote that the adoption decree “does not sever the relationship of parent and child between the individual adopted and that individual’s biological mother. Further, the biological mother is not . . . divested of any rights with respect to the adoptee.” In effect, Judge Morey waived that part of the statute requiring a severance of the parent/child relationship between the child and the biological parent, so the Judge could allow this lesbian couple to adopt.
Boseman and Jarrell separated in May of 2006, and in 2007 Boseman filed a lawsuit seeking joint custody of the child. The fact that the adoption was not even nine months old before the couple separated illustrates the problem with granting adoptions to gay couples. Permitting gay adoptions can allow the gay couple to use the child as a “trophy” of the relationship and its social status, regardless of the long-term best interests of the child. We should not allow adoption to become a tool of gay activism by which to gain legitimization. Children are too important.
During the custody proceeding, Jarrell countered that the adoption was void from the beginning, because it did not follow the statutory provisions for adoption. The trial court in Wilmington declined to find the adoption decree void saying it did not have jurisdiction, and it granted joint custody to both Jarrell and Boseman.
On appeal, the Court of Appeals slapped the hands of the District Court for not determining whether the adoption decree was void and then did the same thing itself. It acknowledged that the adoption did not follow state law, but refused to find it void. It stated: “After careful review, we conclude that the adoption decree, even if erroneous or contrary to law, was not void.” This language is nonsensical. How is any future District Court Judge who has vowed to uphold the laws of the State of North Carolina going to act on this murky set of principles?
Even though the requirement that biological parents sever their parental rights in “direct placement” adoptions is mandatory, the Court of Appeals allowed Ms. Jarrell’s waiver of it. Providing two parents for Ms. Jarrell’s child was more important to the Court of Appeals than following the statute.
The statutes of the State do not allow second-parent adoptions by gay couples, but the Court of Appeals has allowed it anyway. What is the point of having a law if the courts that are charged with upholding it refuse to do so?
This is judicial activism at its worst—first by the District Court, and then by the Court of Appeals. Judges are sworn to uphold the State’s laws. When they do not, they are breaking their judicial vows in order to further an agenda. This case illustrates how gay activism and judicial activism work hand-in-hand to further the gay agenda. Gay activists ask courts for a remedy that is not within legal boundaries, and courts grant their requests, even though they do not comport with state law, just to achieve a desired result. The Court of Appeals even acknowledged that the adoption decree was “erroneous or contrary to law.” Having made that finding, Judge Wanda G. Bryant who wrote the opinion, and Chief Judge John C. Martin and Judge Cheri Beasley, who concurred in it, were obligated to find the adoption decree void.
This case sets a bad precedent for future adoptions by gay couples. Ms. Jarrell has no right to an appeal to the Supreme Court, but she may file a Motion for Discretionary Review with the Supreme Court. One can only hope that the Supreme Court will lend some sanity and clarity to adoption law in North Carolina as it relates to gay couples.
The case also points out the urgency of protecting traditional marriage in the State’s Constitution by passing a Marriage Protection Amendment. It would be a shame if judges were permitted to disregard state marriage statutes, just as they have done with the state’s adoption statutes.
The case is ultimately an attempt to legitimize same-sex marriage. By granting same-sex couples the ability to adopt children jointly, courts can impose gay marriage by judicial fiat. The reasoning would be: “Gays can adopt children. Therefore, they should be allowed to marry so the children have married parents.” It is inappropriate to set up legal frameworks that are not geared toward the idealization and the optimization of children, whether it’s adoption or marriage. Gay adoption deconstructs the definition of family by taking the emphasis off traditional marriage as the basis for it.