Boseman v. Jarrell

• Decision Date: 18 August 2009
• Docket Number: No. COA08-957.,COA08-957.
• Citation: 681 S.E.2d 374
• Parties: Julia Catherine BOSEMAN, Plaintiff, v. Melissa Ann JARRELL, Defendant, and Melissa Ann Jarrell, Third-Party Plaintiff, v. Julia Catherine Boseman and the North Carolina Department of Health and Human Services, Third-Party Defendants.
• Court: North Carolina Court of Appeals

681 S.E.2d 374

Julia Catherine BOSEMAN, Plaintiff, v. Melissa Ann JARRELL, Defendant, and Melissa Ann Jarrell, Third-Party Plaintiff, v. Julia Catherine Boseman and the North Carolina Department of Health and Human Services, Third-Party Defendants.

No. COA08-957.

Court of Appeals of North Carolina.

August 18, 2009.

Appeal by defendant/third-party plaintiff from judgments entered 14 January 2008, 6 February 2008, 14 February 2008, 20 March 2008, and 16 April 2008 by Judge Lillian B. Jordan in the District Court in New Hanover County. Heard in the Court of Appeals 26 January 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the North Carolina Department of Health and Human Services.

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

Ward and Smith, P.A., by John M. Martin and Leslie G. Fritscher, Greenville, for defendant/third-party plaintiff-appellant.

North Carolina Association of Women Attorneys, National Association of Social Workers, North Carolina Chapter of the National Association of Social Workers, and North Carolina Foster and Adoptive Parents Association, by Ellen W. Gerber, as amici curiae.

BRYANT, Judge.

Defendant/third-party plaintiff Melissa Jarrell appeals from a custody order entered 14 January 2008 which granted joint legal custody of a minor child to Jarrell and plaintiff/third-party defendant Julia Boseman, a partial summary judgment order entered 6 February 2008 which denied Jarrell's motion to declare void an adoption decree, an order entered 14 February 2008 which denied Jarrell's 12(b)(6) motion to dismiss, an order entered 20 March 2008 which denied Jarrell's Rule 60(b) motion for relief from the adoption decree, an order entered 20 March 2008 which denied Jarrell's 12(b)(1) motion, an order entered 16 April 2008 which dismissed her declaratory judgment claim challenging the validity of an adoption, and an order entered 16 April 2008 which amended the 14 January 2008 order. For the reasons stated below, we affirm in part, and vacate in part and remand.

Boseman and Jarrell were domestic partners in a relationship that began in August 1998. From the beginning, the two discussed their desire to have a child. As a result of artificial insemination, Jarrell gave birth to a child in October 2002. Both Jarrell and Boseman participated in the day-to-day care of the child. The child called Jarrell "Mommy" and Boseman "Mom" and is described as "happy, outgoing, respectful, intelligent, very athletic, friendly, delightful and kind to others." Jarrell's relationship with the child is described as hands-on, loving, and respectful. Boseman's is described as very attentive, loving, hands-on and fun. In 2004, the parties began to explore the option of Boseman adopting the child.

On 3 May 2005, Jarrell filed with the Durham County District Court Clerk a Motion for Waiver of Statutory Provisions by Biological Mother. The motion stated, in pertinent part:

Melissa Ann Jarrell, the biological mother of [adopted child], hereby requests that the Court waive the statutory provisions established for the benefit of biological parents in N.C.G.S. 48-1-106(c) and N.C.G.S. 43-3-606(9).... [and] Jarrell, the biological mother of adoptee herein, prays that the Court grant a waiver in this adoption of the statutory provisions stating that the consent of the biological mother should contain an agreement to terminate all her parental rights....

In August 2005, a district court judge in the District Court in Durham County ("the adoption court"), filed an order which ruled that the provisions under N.C.G.S. §§ 48-1-106(c) and 48-3-606, requiring the termination of a biological parent's rights upon the adoption of the child, could be waived and that the consent form filed by Jarrell was sufficient for such a purpose.

Additionally, Jarrell filed a Form DSS-1802, Consent to Adoption by Parent Living With Petitioner. In doing so, Jarrell "voluntarily consent[ed] to the adoption of [the child] by petitioner, Julia Catherine Boseman" and "waive[d][her] right to severance of the relationship of parent and child between [herself] and the minor child when this adoption is entered, so that the minor child shall have two legal parents, [herself and Boseman.]" Boseman petitioned the court for adoption of the minor child and, in a Motion for Waiver of Statutory Provisions by Petitioner, stated that she "seeks to adopt [the child] so that said child will have two legal parents...." Moreover, Boseman requested "that the Court grant a waiver in this adoption of the statutory provisions stating that the consent of the biological parent should contain an agreement to terminate all her parental rights...." On 26 August 2005, the adoption court entered a decree of adoption of the child by Boseman that "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 2005 and 2006, the parties spent significant time apart and eventually separated in May 2006. Despite Jarrell's acknowledgments that Boseman "is a very good parent who love[d] [the child]" and whom the child loved in return, Jarrell limited Boseman's contact with the child.

On 7 February and 20 April 2007, respectively, Boseman filed a complaint and amended complaint in the District Court in New Hanover County ("the trial court") seeking joint custody of the child. The complaint requests that Jarrell retain primary physical custody with Boseman having secondary custody in the form of liberal and extensive visitation. On 24 May, 17 July, and 25 October 2007, respectively, Jarrell filed a Rule 60(b)(4) Motion for Relief from Void Decree of Adoption, Rule 12(b)(1) Motion to Dismiss, Answer, Counterclaims, and Third-Party Class Action Complaint; an amended answer, counterclaims, and third-party class action complaint; and a second amended answer, counterclaims, and third-party complaint. In Jarrell's third-party complaint, she asserted that "the North Carolina Department of Health and Human Services [ (the Department) ] is the State Agency of the executive oversight of adoptions, including the indexing of final adoptions on the State's permanent retention system and the warehousing of sealed adoption records." Jarrell requested that the trial court "enter a Declaratory Judgment declaring the legal effect of the Department's alleged refusal to index the non-stepparent adoption decree on this State's permanent retention system."

On 26 November 2007, the Department, as third-party defendant, answered Jarrell's third-party complaint requesting that Jarrell "have and recover nothing from [the Department]." On 29 November 2007, Jarrell, as third-party plaintiff, moved for partial summary judgment requesting that the trial court determine the adoption decree was void as a matter of law. On 10 December 2007, the trial court heard arguments based upon Boseman's complaint and Jarrell's counterclaim for custody of the child. On 14 January 2008, the trial court entered an order that "[Boseman] and [Jarrell] shall have joint legal custody of the minor child[,]" and, "[Jarrell] shall have primary physical custody...." In its order, it also concluded that the "Decree of Adoption has not been found to be void...."

On 6 February 2008, the trial court entered an order which denied Jarrell's motion for partial summary judgment to have the Adoption Decree declared void. As a basis, the order states that the trial court did not have jurisdiction to declare void an order or judgment of another district court entered in another judicial district in North Carolina. On 14 February 2008, the trial court entered an order which denied Jarrell's Rule 12(b)(6) motion to dismiss. On 20 March 2008, the trial court entered an order which denied Jarrell's Rule 60(b)(4) Motion for Relief from Void Decree of Adoption, stating that it did not "have jurisdiction to declare void an Order or Decree of another District Court Judge sitting in another judicial district in North Carolina." In another order entered 20 March 2008, the trial court denied Jarrell's Rule 12(b)(1) motion.

On 16 April 2008, the trial court entered an order in which it dismissed the declaratory judgment actions with respect to the validity of the adoption decree. Again, the basis for the ruling was that the court lacked jurisdiction "to declare void an Order or Decree of another District Court Judge sitting in another Judicial District in North Carolina."

On 16 April 2008, the trial court also amended its 14 January 2008 order and inserted the following finding:

27. [Jarrell] sought to have the Decree of Adoption declared void in this lawsuit. This Court sitting in New Hanover County, North Carolina does not have jurisdiction to declare void an Order of another District Court Judge in another Judicial District in North Carolina.

From these orders, Jarrell appeals as both defendant and third-party plaintiff.

On appeal, Jarrell raises the following seven arguments: The trial court erred in (I) concluding that it lacked subject matter jurisdiction to set aside the order of another district court; (II) upholding an adoption decree that was void when entered; (III) dismissing the declaratory judgment action; (IV) ruling that Boseman was a legal parent of the minor child; (V) ruling that Jarrell acted inconsistently with her protected status as a natural parent; (VI) applying an incorrect standard of proof for determining custody; and (VII) denying Jarrell's Rule 12(b)(1) and 12(b)(6) motions.

I and II

Jarrell first contends that the trial court erred in denying her Rule 60(b)(4) motion on grounds that it did not "have jurisdiction to declare void an Order or Decree of another District Court Judge sitting in another Judicial...