Boseman v. Jarrell

• Decision Date: 20 December 2010
• Docket Number: No. 416PA08–2.,416PA08–2.
• Citation: Boseman v. Jarrell, 364 N.C. 537, 704 S.E.2d 494 (N.C. 2010)
• Court: North Carolina Supreme Court
• Parties: Julia Catherine BOSEMAN, Plaintiffv.Melissa Ann JARRELL, DefendantandMelissa Ann Jarrell, Third–Party Plaintiffv.Julia Catherine Boseman and North Carolina Department of Health and Human Services, Third–Party Defendants.

364 N.C. 537

704 S.E.2d 494

Julia Catherine BOSEMAN, Plaintiff

v.Melissa Ann JARRELL, DefendantandMelissa Ann Jarrell, Third–Party Plaintiff

v.Julia Catherine Boseman and North Carolina Department of Health and Human Services, Third–Party Defendants.

No. 416PA08–2.

Supreme Court of North Carolina.

Dec. 20, 2010.

OPINION TEXT STARTS HERE

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, 199 N.C.App. 128, 681 S.E.2d 374(2009), affirming in part, vacating in part, and remanding in part judgments and orders entered on 14 January 2008, 6 February 2008, 14 February 2008, 20 March 2008, and 16 April 2008, all by Judge Lillian B. Jordan in District Court, New Hanover County.Heard in the Supreme Court 8 September 2010.

Lea, Rhine & Rosbrugh, PLLC, by James W. Lea, III, Lori W. Rosbrugh, and Holli B. Newsome, Wilmington, for plaintiff/third-party defendant-appellee.

Ward and Smith, P.A., Greenville, by John M. Martin and Leslie G. Fritscher, for defendant/third-partyplaintiff-appellant.Roy Cooper, Attorney General, by Mabel Y. Bullock, Special Deputy Attorney General, for North Carolina Department of Health and Human Services, third-party defendant-appellee.Tami L. Fitzgerald, Raleigh, Lloyd T. Kelso, Gastonia, Julee T. Flood, Holly Springs, and Deborah J. Dewart, Swansboro, for American College of Pediatricians, Christian Action League of North Carolina, North Carolina Family Policy Council, NC4Marriage, and Christian Family Law Association, amici curiae.Tharrington Smith, L.L.P., by Jill Schnabel Jackson, for American Psychological Association, National Association of Social Workers, and North Carolina Chapter, National Association of Social Workers, amici curiae.Gailor Wallis & Hunt PLLC, Raleigh, by Cathy C. Hunt, for Evan B. Donaldson Adoption Institute, National Center for Adoption Law and Policy, Barton Child Law & Policy Center, Center for Adoption Policy, and Katharine T. Bartlett, Naomi Cahn, June Carbone, Maxine Eichner, Joan Heifetz Hollinger, and Barbara Woodhouse, amici curiae.Kenneth S. Broun, Chapel Hill, UNC School of Law, for Law Professors; ¹ and Ellen W. Gerber, High Point, for North Carolina Association of Women Attorneys, amici curiae.McGuire Woods LLP, by Bradley R. Kutrow, Charlotte, and Monica E. Webb, Raleigh; and Cleary Gottlieb Steen & Hamilton LLP, by Carmine D. Boccuzzi, pro hac vice, for North Carolina Chapter of American Academy of Pediatrics, amicus curiae.Ellis & Winters, LLP, Raleigh, by Jonathan D. Sasser, for American Civil Liberties Union, American Civil Liberties Union of North Carolina Legal Foundation, Equality North Carolina Foundation, and Lambda Legal Defense and Education Fund, Inc., amici curiae.Alliance Defense Fund, by Austin R. Nimocks, pro hac vice; and Law Offices of Keith A. Williams PA, by Keith A. Williams, for Family Research Council, amicus curiae.NEWBY, Justice.

In this casewe must determine the validity of an adoption decree entered in the Durham County District Court at the request of Wilmington residents.If the decree is invalid, we must also determine whether defendant acted inconsistently with her constitutionally protected, paramount parental status.Because the General Assembly did not vest our courts with subject matter jurisdiction to create the type of adoption attempted here, we hold that the adoption decree at issue is void ab initio.However, we also conclude that by intentionally creating a family unit in which defendant permanently shared parental responsibilities with plaintiff, defendant acted inconsistently with her paramount parental status.Thus, the District Court, New Hanover County, (“the trial court”) did not err by utilizing the “best interest of the child” standard to make its custody award.As such, we reverse the Court of Appeals' decision that the adoption decree is valid and affirm as modified its conclusion leaving undisturbed the trial court's decision that the parties are entitled to joint custody of the child.

Plaintiff and defendant(collectively, “the parties”) met in 1998.At that time, plaintiff lived in Wilmington, North Carolina, and defendant lived in Rhode Island.The first time they met, they“discussed their desires to have children.”Roughly one month later, the parties began a romantic relationship.From the outset, the parties continued to voice their desires to have a child.In the spring of 1999, defendant moved from Rhode Island to Wilmington, and the parties began living together as domestic partners.

In May of 2000the parties initiated the process of having a child.They decided that defendant would actually bear the child, but both parties would otherwise jointly participate in the conception process.The parties agreed to choose an anonymous sperm donor and researched and discussed the available options.They also attended the medical appointments necessary both to impregnate defendant and to address her prenatal care.Plaintiff read to the minor child “in the womb and played music for him.”Plaintiff also cared for defendant during the pregnancy and was present for the delivery.Defendant eventually gave birth to the minor child in October of 2002, and the parties jointly selected his first name.

Following the child's birth, the parties held themselves out as the parents of the minor child.They gave the minor child a hyphenated last name composed of both their last names.They also “had a baptismal ceremony for the child at the plaintiff's church during which they publicly presented themselves to family and friends as parents of the child.”Further, each of the parties integrated the minor child into their respective families and each family accepted the minor child.

Within the home, the parties shared “an equal role” in parenting.Plaintiff's parenting skills were found to be “very attentive, very loving, hands on and fun.”Defendant was found to be “very hands-on and patient in parenting” and to “reprimand[ ][the minor child] by talking to him in a nice way.”As a result of occupational responsibilities, each party was occasionally required to be temporarily away from their home.During such an absence, the party at home would care for the child.Moreover, the minor child treated each of the parties as a parent.The child refers to plaintiff as “Mom” and to defendant as “Mommy.”As the trial court stated, the minor child “shows lots of love and respect for both parties.”“Each party agrees that the other is and has been a good parent,” and defendant even “testified that she thinks it is important for the plaintiff to be in” the minor child's life.

In 2004the parties discussed the prospect of plaintiff adopting the minor child.The parties sought an adoption by which plaintiff would become a legal, adoptive parent while defendant would remain the minor child's legal, biological parent.According to defendant, in 2005plaintiff stated “that she had ‘found a way’ ” to adopt the minor child.Plaintiff informed defendant that the type of adoption they sought was “being approved in Durham County, NC.”

Shortly thereafter, in June of 2005, the parties asked the District Court, Durham County, (“the adoption court”) to make plaintiff an adoptive parent of the minor child while not also terminating defendant's relationship with the child.To accomplish their goal, the parties requested in the petition and accompanying motions that the adoption court not comply with (1) the statutory requirement under N.C.G.S. § 48–3–606(9) that defendant's written consent to the adoption contain an acknowledgment that the adoption decree would terminate her parental rights and (2) the statutory requirement of N.C.G.S. § 48–1–106(c) that an adoption decree “severs the relationship of parent and child between the individual adopted and that individual's biological or previous adoptive parents.”Defendant's consent to the adoption reiterated these conditions and was contingent on the non-enforcement of these statutory provisions.

On 10 August 2005, the adoption court agreed to the parties' request, determined defendant's limited consent was sufficient, and entered an adoption decree.The decree stated that it “effects a complete substitution of families for all legal purposes and establishes the relationship of parent and child ... between ... petitioner and the individual being adopted,” while simultaneously “not sever[ing] the relationship of parent and child between the individual adopted and that individual's biological mother.”After finding that the Division of Social Services would not index this type of adoption, the adoption court instructed the clerk “not ... to comply with” a statutory requirement that the clerk of court transmit a copy of the adoption decree to the Division, instead ordering that the clerk “securely maintain this file in the clerk's office.”

In May of 2006, the parties ceased their relationship.Subsequently, plaintiff, without being ordered to do so, continued to provide “most of the financial support for the partnership” and for the minor child.Nonetheless, defendant limited plaintiff's contact with the minor child following the parties' separation.She did so while admitting “that the plaintiff is a very good parent who loves [the minor child] and that [the minor child] loves [plaintiff].”

Relying in part on the adoption decree, plaintiff filed in the trial court a complaint and an amended complaint seeking custody of the minor child.In response, defendant attacked the adoption decree, arguing that it was void ab initio, and contended that plaintiff otherwise could not seek custody of the minor child.

The trial court ultimately awarded the parties joint legal custody of the minor child.That court did not reach the merits of defendant's contention regarding the validity of the Durham County adoption decree.The trial court reasoned that it did “not have jurisdiction to declare void” another District Court Judge's order entered in another...