Same-sex couple adoption ruled invalid in North Carolina
December 21, 2010 The N. C. Supreme Court yesterday (12-20-10) outlawed same sex couple adoptions. In a case involving a state senator from Wilmington the court ruled that District Court judges in Durham and Orange counties have been violating the uniform adoption laws of North Carolina by issuing adoption orders that waive the natural parents parental rights as a condition of adoption. In the case of Boseman v. Jarrell the court held that in order for a child to be adopted the biological parents must either have their parental rights terminated or must waive such rights to make the child eligible for adoption.
In recent years, some more liberal judges have taken it upon themselves to allow adoptions without the biological parental rights being terminated first. The Supreme Court said that is illegal, thus eliminating a legal way for two parents of the same sex to adopt a child that is the offspring of one of the partners. The court, in a 5-2 decision, said that any such change must be made by the legislature, not by a judge.
The court also held that "…by intentionally creating a family unit in which defendant (biological parent) permanently shared parental responsibilities with plaintiff (same sex partner), defendant acted inconsistently with her paramount parental status."
However, the court upheld a New Hanover District Court decision to award future joint custody because the court held that the district court judge had correctly applied the "best interest of the child" standard to future custody.
You can read a vivid description in the court decision about the circumstances of how the child was conceived, born and raised until the estrangement of the homosexual relationship without a biological father being involved.
This case has profound implications both under existing laws and for future legislation.
First, it has profound implications for those adoptions that have been grant by district court judges that are now invalid. Those same-sex couples who have used this "method of child rearing" now have a problem. The decision also blocks adoption agencies, including departments of social service and private adoption agencies from facilitating same-sex adoptions. It does not, however invalidate step-parent adoptions, which are specifically addressed in the decision.
The "bottom line" is this: Same-sex adoption is illegal in North Carolina unless the legislature changes the law to allow same-sex marriage or to explicitly allow same-sex adoptions.
As a side note, the two dissenting opinions (Timmons-Goodson and Hudson) are interesting. They argue that because state law says that an adoption order is final and no party has standing to contest them once they are entered that the District Court judge's order in Durham County (granting the same-sex adoption based on parental waiver) should stand. However, as clearly explained in the court's decision, that order was invalid because the court lacked jurisdiction to issue the order in the first place. This raises interesting question about the court's opinion.
In the court's decision they go into explicit details about the arrangements around this child's "family circumstances." That would ordinarily not have been called for. If the district court had no jurisdiction to issue an adoption order in the first place (because of the waiver of parental rights issue) then that is all the court would have had to say to settle the controversy. But it rendered a 23-page decision that would appear to be an overt attempt to ban same-sex adoptions on their face, absent legislative action providing for such. And that does not seem likely in the current General Assembly, which is said to be considering voting to submit a constitutional amendment to the people to allow them to determine whether same-sex marriage will be legal in North Carolina. Thus, the "final decision" has apparently not been redered on this matter yet.