Foreign Same-Sex Adoption Is Denied Recognition

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Sept. 24 — Alabama will not extend full faith and credit to a Georgia judgment that granted a “second parent” adoption to a mother's same-sex partner, the Alabama Supreme Court declared in a Sept. 18 per curiam opinion signed by Chief Justice Roy S. Moore and Justices Jacquelyn Stuart, Michael F. Bolin, James Allen Main, and Alisa Kelli Wise.

The main opinion explained that despite its subject-matter jurisdiction over adoption, the Georgia court had lacked the authority to enter the 2007 adoption judgment at issue, and Alabama law does not require recognition of void foreign judgments.

Georgia law, it said, mandates that except in spousal stepparent adoptions, the rights of both parents must be terminated for the adoption to occur. Here, it pointed out, the mother retained her parental rights despite the adoption. It then proceeded to decide—based on a dissenting opinion in a Georgia case—that the adoption—whose validity was never challenged in Georgia—would be held invalid there. However, a dissenting justice argued that any such error went to the merits of the adoption, and that Alabama courts may not inquire into the merits of a foreign judgment.

During the relationship of the parties, E.L. and V.L., which lasted from 1995 to 2011, E.L. gave birth to three children via assisted reproductive technology, whom the women coparented in their Alabama home.

After jointly deciding to take legal action to protect V.L.'s parental role, the women discovered that unlike Alabama, Georgia seemed receptive to same-sex second parent adoptions. They rented a home there to satisfy the residency requirement, and in May 2007, a Georgia superior court granted V.L.'s adoption petition and left E.L.'s parental rights intact. When the women ended their relationship, V.L. asked an Alabama family court to register the Georgia adoption judgment and award her custody of or visitation with the children.

Denying E.L.'s motion to dismiss, the court awarded V.L. visitation and closed the case. The court of civil appeals reversed, ruling that the family court erred by awarding V.L. visitation without conducting an evidentiary hearing. 41 FLR 1215, 2015 BL 52523 (Ala. Civ. App. 2015). The family court's implicit finding that the Georgia adoption was valid and subject to enforcement in Alabama was thus upheld. The supreme court granted review.

Full Faith and Credit 

At the outset, the high court observed that “we generally accord the judgment of another state the same respect and credit it would receive in the rendering state.” Noting that Alabama courts generally have limited review to whether a foreign court had jurisdiction to enter the judgment sought to be domesticated, it explained that “[t]his is likely because the question of a court's jurisdiction over the subject matter or parties is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.”

Here, the court found, E.L. argued that the adoption judgment was unenforceable due to the Georgia court's lack of subject-matter jurisdiction, because Georgia law does not provide for so-called “second parent adoptions.”

Time Bar?

The court determined that Georgia courts “will generally not entertain a challenge to a Georgia adoption decree based even on an alleged lack of subject-matter jurisdiction if [it] is made more than six months after the challenged decree is entered.” See Ga. Code Ann. § 19-8-18; Bates v. Bates, 730 S.E.2d 482, 38 FLR 1445 (Ga. Ct. App. 2012).

Section 19-8-18(e), it noted, states that an adoption decree issued pursuant to subsection (b) of that provision, “shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” In turn, subsection (b) authorizes a court to “enter a decree of adoption, terminating all of the rights of each parent[.]”

E.L. focused on (b) in arguing that (e)'s six-month limitation did not apply here because her parental rights as to the children were never extinguished in the Georgia adoption.

Georgia Dissenters 

Finding that the Georgia Supreme Court “as a whole has not specifically addressed this issue,” the Alabama court noted that in Wheeler v. Wheeler, 642 S.E.2d 103, 33 FLR 1224 (Ga. 2007), “a similar case involving a biological mother's attempt to void a second-parent adoption granted to her same-sex ex-partner, that court, without issuing an opinion, denied a petition for the writ of certiorari filed by the biological mother challenging the Georgia Court of Appeals' decision not to consider her discretionary appeal of the trial court's order denying her petition to void the adoption.”

“However,” it added, three dissenters, speaking through Justice George H. Carley, contended that § 19-8-18(e)'s six-month bar on challenges to adoption decrees should not be applied in that case because the mother's parental rights had never been terminated per § 19-8-18(b).

Declaring that “[w]e agree with the analysis of Justice Carley,” the Alabama high court said that “having concluded that his is the proper analysis of § 19-8-18(b) and § 19-8-18(e), we can only assume that a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with § 19-8-18(b).”

Termination Required 

Next addressing whether E.L. raised a claim that actually put the Georgia superior court's subject-matter jurisdiction into question rather than just the merits of the women's adoption action, it determined that “it is undisputed that Georgia superior courts have subject-matter jurisdiction [ ] over adoption petitions.” Ga. Code Ann. § 19-8-2.

Considering E.L.'s argument that the Georgia court could properly exercise that jurisdiction only when the requirements of the Georgia adoption statutes are met, it noted her claim that such requirements were not satisfied here because the Georgia statutes make no provision for a non-spouse to adopt a child without first terminating the parents' rights.

This argument, the Alabama court said, “appears to be correct, as illustrated by Justice Carley's” opinion in Wheeler.

Also noting that the appeals court below had stated that its “independent review of the Georgia Adoption Code fully supports Justice Carley's position,” the Alabama court asserted that “we echo the conclusion of Justice Carley and the Court of Civil Appeals that Georgia law makes no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.”

Because it “is undisputed that a termination of E.L.'s parental rights did not occur in this case,” the court stated that “thus, it would appear to be undisputed that the Georgia court erred by entering the Georgia judgment by which V.L. became an adoptive parent[.]”

Jurisdictional Error 

Recognizing, however, that “[o]ur inquiry does not end here,” the court explained that such error “is ultimately of no effect unless it implicates the subject-matter jurisdiction of the Georgia court.”

The high court disagreed with the court of civil appeals determination that the error “goes to the merits of the case and not to the subject-matter jurisdiction of the Georgia court.” Because E.L. did not surrender her parental rights, it said “the Georgia court was not empowered the declare V.L. to be an adoptive parent and thus it lacked subject-matter jurisdiction to enter the adoption judgment,” the Alabama Supreme Court explained.

“The Georgia judgment is accordingly void, and the full faith and credit clause does not require the courts of Alabama to recognize this judgment. Indeed it would be error for the courts of this State to do so, and, to the extent the judgments [below] did give effect to the Georgia judgment, they did so in error,” it concluded, reversing the appeals court.

Other Views 

Justice Glenn Murdock concurred in the result. Justice Tom Parker concurred specially. Emphasizing that “there is no fundamental right to adopt,” he said that “[a]cting in the role of parens patriae, the State has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother.” See Lofton v. Sec'y of Dept. of Children & Family Serves., 358 F.3d 804, 30 FLR 1147 (11th Cir. 2004) (ban on same-sex adoption).

Justice Greg Shaw dissented. Arguing that the “main opinion reviews the merits of the adoption in this case,” he said that “our case law, interpreting the United States Constitution, does not permit this Court to do so.”

Citing Ga. Code Ann. § 19-8-2(a)—Georgia superior courts have jurisdiction “in all matters of adoption,” he contended that the fact the adoption here should not have been granted due to the survival of E.L.'s parental rights did not remove it “from the class of cases” over which the superior court had subject-matter jurisdiction.

Saying that the adoption was just an “error on the merits” that did not impact jurisdiction, Shaw pointed out that “[o]ur caselaw prohibits an inquiry into the merits of a foreign judgment.”

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