*1 537 THE COURT IN SUPREME v. JARRELL BOSEMAN (2010)] N.C. 537
[364 Defendant ANN Plaintiff MELISSA JARRELL, JULIA CATHERINE BOSEMAN, v. Third-Party CATHERINE BOSEMAN Plaintiff JULIA MELISSA ANN JARRELL, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, and NORTH CAROLINA Third-Party Plaintiff 416PA08-2 No. 2010) (Filed 20 December cou- Adoption— 1. — unmarried rights ple prior parental not — artificial insemination — terminated petition An decree was void ab initio where the sought relief that does not exist under the North Carolina adoptive parent the termi- Plaintiff became an without statutes. relationship after the unmar- nation of defendant’s with the child anony- couple planned through their son an ried and conceived sperm donor. mous custody—artificial Support, Custody,
2. Child Visitation — family voluntarily creating new unit — best insemination — interests of child test applying did err the best interests
The trial court not custody where defendant and the child standard in a decision child into their plaintiff bring not married but decided to were relationship anonymous sperm donor and acted through intentionally parents together as to the child. Defendant par- voluntarily family in acted as created a unit which family unit to ent, that defendant intended with no indication temporary. dissenting. TIMMONS-GOODSON Justice dissenting. Justice HUDSON 7A-31of a unani- discretionary pursuant review to N.C.G.S.
On App. , S.E.2d Appeals,-N.C. 681 of the Court of mous decision (cid:127) — part part, remanding in part, vacating in (2009), affirming 374 February 2008, January 2008, 14 6 and orders entered on judgments by Judge April 2008, all February 2008, March and 16 County. Heard Court, New Hanover Lillian B. Jordan District Supreme September 2010. Court 8
Lea, PLLC, Rosbrugh, Lea, III, Rhine & W. W. James Lori Rosbrugh, Newsome, plaintiff/third-party B. and Holli for defendant-appellee. Smith, P.A., by Ward and John M. Martin and Leslie G. Fritscher, plaintiff-appellant. defendant/third-party for Roy Cooper, Attorney General, by Bullock, Special Y. Mabel Deputy Attorney General, Department North Carolina for of Services, third-party defendant-appellee. Health and Human Fitzgerald, Lloyd Kelso, Flood, Tami L. T. T. Julee and Deborah Dewart, College Pediatricians, J. American Christian for of League Carolina, Action Family Policy North North Carolina of Council, NC4Marriage, Family and Christian Law Associa- tion, amici curiae. Tharrington Smith, L.L.P., by Jackson, Jill Schnabel for Psychological Association,
American National Association of Workers, Chapter, Social and North Carolina National Workers, Association Social amici curiae. of PLLC, by Cathy Hunt, Gailor Wallis & Hunt C. Evan B. for Adoption Institute, Donaldson Adoption National Center for Policy, Law and Barton Policy Center, Child Law & Center for Adoption Policy, Bartlett, Cahn, and Katharine T. Naomi June Carbone, Eichner, Hollinger, Maxine Joan and Barbara Heifetz Woodhouse, amici curiae. Broun, Law, Kenneth S. UNCSchool Professors;1 Law and for W. Ellen Gerber North Carolina Association Women for Attorneys, amici curiae. LLP, by Bradley McGuire Woods R. Kutrow and Monica E. Webb; Cleary and LLP, by Gottlieb Steen & Hamilton Carmine Boccuzzi, pro D. vice, hac North Carolina for Academy American Pediatrics, amicus curiae. Winters, LLP, by Sasser,
Ellis & Jonathan D. American Civil for Union, Liberties American Civil Liberties Union North Legal Foundation, Equality Carolina North Carolina Foun- professors Collins, Curtis, Gilreath, 1. These are Jennifer Michael Kent Shannon Reynolds, University Law; and Suzanne Conley, Wake Forest School of John Martin Eichner, Holning Lau, Nichol, Phillip Pucillo, University Maxine Gene R. A. Law; Fox, Lydia Hauser, Lavelle, North Carolina School of Adrienne M. Susan E. E. Vernon, University Law; Sonya Garza, Kia H. North Carolina Central School of University Elon School of Law.
BOSEMAN v. JARRELL dation, Legal Fund, Inc., and Lambda and Education Defense amici curiae. Fund, by Nimocks, pro Alliance R. vice; Austin hac Defense PA, by Williams, Law Keith A. Williams Keith A. Offices of Family Council, Research amicus curiae. NEWBY,Justice. validity this case we must' determine the of an decree County
entered in request the Durham District Court at the Wilmington invalid, residents. If the decree is we must also determine inconsistently whether defendant constitutionally pro- acted with her *3 tected, paramount parental status. Because the General did not vest our type courts with to create the here, we hold that the decree at issue attempted However, is void ab initio. by intentionally we also conclude that cre- ating family permanently unit in which parental defendant shared responsibilities plaintiff, inconsistently with defendant acted paramount parental Thus, her Court, status. the District New County, (“the Hanover trial court”) utilizing did not err the “best custody interest of the child” standard to such, make its award. As we Appeals’ reverse the Court of decision that the decree is valid and affirm as modified leaving its conclusion the undisturbed parties trial joint custody court’s decision that the are entitled to the child. (collectively,
Plaintiff and defendant parties”) “the met in 1998.At time, plaintiff Wilmington, lived in Carolina, North and defendant lived in they they Rhode Island. The met, first time “discussed their desires Roughly later, parties to have children.” one began month the relationship. outset, parties romantic From the the continued to voice their desires to spring have a child. In the defendant Wilmington, parties began moved from Rhode Island to living together partners. as domestic May parties process of 2000the initiated the having a child.
They actually decided child, that defendant would bear the but both parties jointly would participate conception process. otherwise in the parties anonymous The agreed sperm to choose an donor and re- options. They searched and discussed the available also attended the appointments necessary impregnate medical both to defendant and prenatal her address care. Plaintiff read to the minor child “in the played womb and music him.” Plaintiff also cared for defendant during present delivery. pregnancy and was for the Defendant v. JARRELL N.C.
eventually minor child in October gave birth to the parties jointly selected his first name. parties as birth, the held themselves out
Following the child’s They hyphen- gave the minor child parents of minor child. They composed “had a name of both their last names. also ated last ceremony plaintiff’s during child at church baptismal for the family they publicly presented and friends as which parents themselves integrated Further, parties each of the the minor of the child.” family respective accepted the into their families and each child child. minor home, equal parenting. role” in shared “an
Within “very attentive, very parenting were found to lov- Plaintiff’s skills “very was on and fun.” Defendant found to be hands-on ing, hands “reprimand[] minor patient parenting” [the child] occupational way.” responsibil- him in a As a result talking to nice party occasionally required temporarily away ities, each was to be party at During absence, their home. such an home would from Moreover, par- minor each of for the child. child treated care parent. plaintiff and to ties as a child refers to as “Mom” defend- “Mommy.” stated, as As the trial court the minor child “shows lots ant respect parties.” party agrees for both -“Each love parent,” has even good other is and been a and defendant “testified in” important thinks it is for the to be the minor that she child’s life. *4 parties plaintiff prospect adopting
In 2004 the discussed the of adoption by an which parties sought plaintiff the minor child. legal, adoptive parent a would become while defendant would remain legal, biological parent. According defendant, child’s the minor ”way’ adopt plaintiff stated had ‘found minor “that she a the type adoption they child. Plaintiff informed defendant that the of “being approved County, in Durham sought was NC.” Shortly thereafter, parties of asked the'District June the adoption plaintiff Court, County, (“the court”) Durham to make an terminating adoptive parent of child while the minor not also defend- relationship accomplish goal, parties ant’s with the child. To their petition adop- requested accompanying in the motions that the comply statutory requirement (1) court not under tion adop- defendant’s consent to the 48-3-606(9) written adoption acknowledgment an decree would ter- tion contain statutory requirement parental (2) rights minate her THE SUPREME COURT IN v. adoption “severs the relation- 48-l-106(c) that an decree N.C.G.S. § adopted and that indi- ship parent and child between the individual previous adoptive parents.” Defendant’s con- biological or vidual’s contingent adoption and was sent to the reiterated these conditions statutory provisions. on the non-enforcement of these parties’ adoption August 2005, agreed court On 10 sufficient, was request, defendant’s limited consent determined that it “effects a com- decree. The decree stated entered purposes legal all and establishes plete substitution of families for petitioner and the relationship parent between... and child... simultaneously sever[ing] the adopted,” while “not being individual adopted and relationship parent and child between the individual that the Division of biological finding mother.” After that individual’s type adoption, the not index this Social Services would statutory comply ... with” a instructed the clerk “not court copy of the requirement that the clerk of court transmit “securely main- Division, ordering that the clerk decree to the instead tain this file in the clerk’s office.” relationship. Subse- May their ceased pro- so, plaintiff, being ordered to do continued
quently, without support partnership” and for the financial vide “most of plaintiff’s contact with Nonetheless, defendant limited child. minor the separation. while parties’ She did so following minor child very loves good who admitting “that the [the [plaintiff].” loves and that minor minor [the child] child] decree, plaintiff filed in the trial part Relying in on the custody complaint seeking complaint and an amended court decree, response, defendant attacked the minor child. In plaintiff other- initio, it was void ab and contended arguing that custody of the minor child. wise could not seek custody parties joint ultimately awarded the The trial court the merits of defendant’s That court did not reach of the minor child. County adoption validity the Durham regarding contention jurisdiction to that it did “not have decree. The trial court reasoned Judge’s order entered another another District Court void” declare Thus, determined that judicial the court district in North Carolina. *5 ... in that the aforementioned plaintiff parent “is a of the minor child this court or Adoption found to be void Decree of has not been acted that “defendant has also concluded other court.” The court responsibilities.” paramount parental rights and with her inconsistent 542
BOSEMAN v. JARRELL
Then,
“parties
proper persons
determining
after
that the
are fit and
to
custody
son,”
applied
have
of their
minor
court
the “best interest
parties
“joint
of the child” standard to conclude that the
should have
custody
legal
appealed.
of the minor child.” Defendant
Appeals
adoption
The Court of
concluded that the
decree in this
custody
case is valid and left intact the trial court’s
determination.
Jarrell,
— N.C. App. —,
Boseman v.
(2009).
S.E.2d 374
After
reviewing Chapter
Statutes,
Appeals
48 of our General
the Court of
adoption
comports
concluded that the
in this case
with the “intent
purposes”
adoption
specific
of both our
law as a whole and “the
provisions”
it
at-,
of at issue here. Id.
[1] Defendant contends that a court prohibited from choosing provisions not to enforce the of N.C.G.S. 48-l-106(c) § and N.C.G.S. 48-3-606(9). argues provisions mandatory Defendant that these are adoption Chapter proceeding under 48 of our General Statutes. adoption remedy Because the recognized by court crafted a not adoption statutes, defendant maintains that court subject jurisdiction lacked matter to enter the decree at case, issue in this is, therefore, and the decree void ab initio. Plain responds tiff court acting “was within its preside proceedings” over as set forth Further, plaintiff 48-2-100. that, given asserts Assembly’s General Chapter “liberally desire to have construed applied promote underlying purposes its policies,” statutory N.C.G.S. 48-l-100(d) (2009), provisions these do not have every to be enforced in proceeding they because are protect designed parent. the biological governing adoptions The law wholly in North Carolina is statu- tory. Anderson, Wilson v. (1950). “Adoption is a status unknown to common law . ...” Thus, may proceed determine whether a court under 48 while choosing requirements not to enforce the of N.C.G.S. 48-l-106(c)
BOSEMAN v. (2010)] N.C. 537
[364 48-3-606(9), and N.C.G.S. we must adop- § examine the text of our tion statutes.
Through Chapter Statutes, legislature 48 of our General our has provided types adoptions for three of minor children. The first is placement” adoption. referred to as a “direct N.C.G.S. 48-3-202(a) § type (2009). adoption, our legislature envisioned a com- plete substitution of families. 48-l-106(a) (2009). “parent § Id. A or guardian personally prospective adoptive must select a parent,” 48-3-202(a), required id. and is § to “execute a consent to the adoption pursuant minor’s 48-3-610],” 48-3-601to §§ id. [N.C.G.S. 48-3-201(b) (2009), § acknowledging that the will termi- nate relationship parent, the child’s with the id. 48-3-606(9)(2009). § The placement” second is referred to an “[a]gency adoption. as Id. (2009). adoption, 48-3-203 In such an “agency acquire § legal physical custody purposes adoptive of a placement minor for only by relinquishment pursuant means of a 48-3-701 §§ [N.C.G.S. to parent a court terminating rights order and duties of a 48-3-707] guardian of the minor.” Id. 48-3-203(a). agency § is then responsible for placing adoption. the minor for 48-3-203(b), See id. § (d). type The third stepparent adoption. is the (2009). Id. 48-4-100 § stepparent A is defined as “an spouse individual who is the of a parent child, of a but legal who is not a of the child.” Id. Generally 48-1-101(18)(2009). stepparent speaking, adopts when a spouse, the child of his or her the child must if consent twelve or years age, parents more and the child’s guardian must (2009). comprehensive consent. Id. 48-4-102 Indicating and lim- iting statutory procedure, Assembly nature this the General has explicitly provided also adults, for the id. §§ 48-5-100to (2009), readoption by parents 48-5-103 former of both minors, adults and id. 48-6-100 (2009). According §§ to 48-6-102 plaintiff, presented place- here a modified direct explicitly requirements ment omitted the of N.C.G.S. 48-l-106(c) and 48-3-606(9). §§ 48-1-106,
In N.C.G.S. “[l]egal the General declared the adoption” placement effect of adoption. decree of in a direct [a] provides pertinent 48-1-106(2009). part: That statute (a) complete A decree of effects a substitution of purposes entry legal families for all after the of the decree.
(b) relationship par- A decree of establishes the petitioner ent being and child between each and the individual COURT IN THE SUPREME v. JARRELL adoptee decree, signing adopted. the date of the From property by, through, personal inherit real and entitled to the statutes on parents in accordance with adoptive from the all status, including same *7 and has the intestate succession whatsoever, as a child kind obligations of legal rights and adoptive parents. legitimate child of the born the relationship parent of adoption severs the (c) A decree of adopted that individual’s the individual and child between entry of a adoptive parents. After previous biological or legal all parents are relieved of adoption, former decree except adoptee, from them to the obligations due duties sup- payments for child duty past-due make parent’s a former all parents are divested of terminated, and the former port is not adoptee. respect to the rights with provided, legislature inter With this statute the 48-l-106(a)-(c). Id. § adoption terminates placement decree alia, that -a direct parents. parent or relationship his or her former adoptee’s with 48-l-106(c). may the relief that provisions 48-1-106establish of N.C.G.S. legislature adoption proceeding. The a court in an be issued issue placement the court that in a direct instructed complete of fam- that “effects a substitution decree Assembly directed our courts 48-l-106(a). The General ilies.” Id. § relationship par- “severQ the adoption decrees that enter [former] “establish)] the relation- child,” 48-l-106(c), and ent and id. § [new] expressly child,” 48-l-106(b). legislature Our ship parent and id. § in a direct 48-1-106to be stated required the dictates of N.C.G.S. (2009) (“Adecree placement adoption 48-2-606(a)(6) decree. Id. § . . effect of the decree of adoption must state at least. [t]he added)). There is no (emphasis . . . .” in G.S. as set 48-1-106 forth any other relief. authorizing the issuance of in our statutes language adoption decrees issued under placement Accordingly, direct established Chapter must have the effect the General 48-1-106. requires consenting when Further, legislature acknowledge the children, parents placement adoption of their direct responsibilities. In rights and has on their effect an decree provi- consent; mandatory 48-3-606,titled “Content N.C.G.S. § adop- parent’s provides that a consent sions,” legislature her child tion of executing writing and state ... the individual
must be
[t]hat
rights
final, all
that when the
consent understands
adoptee’s
parents
guardian
or
obligations
former
every
adoptee
extinguished, and
respect to the
will be
adoptee
relationship
aspect
between the
for-
guardian will be terminated.
mer
added). Thus, this statute ensures that
48-3-606(9)(emphasis
Id. §
totally
adoption will
placement
sever
parent understands the direct
adopted.
relationship
being
her
with the child
“
unambiguous,
there is
language
If
‘the
of a statute is clear
judicial
give
and the courts must
the statute
room for
construction
power
interpolate,
meaning, and are without
plain and definite
its
”
provisions and limitations not contained therein.’
superimpose,
(2010) (citation
D.L.H., 364 N.C.
In re
especially
adoption,
which is
This is
true
the context
omitted).
*8
Wilson,
(b) as under this adoption proceedings commenced over diction proceeding: if, of the Chapter exists at the commencement at least the six adoptee in this State for The has lived (1) consecutive, filing of immediately preceding the months IN THE COURT SUPREME petition prospective birth, adoptive or from parent State; is domiciled in this adoptive (2) prospective has lived in or been domiciled this State for at least the six consecutive immediately preceding filing petition. months (2005).2Thus, pursuant statute, Id. 48-2-100 to the § text of this our adoption proceedings courts have Chapter “commenced under” 48 of our General Statutes. adoption Chapter
To an proceeding commence under 48 of our Statutes, petitioner General seeking must be an available Chapter Wilson, under 48. See id. 48-2-301(a) (2009); at N.C. 839'(“Adoption accomplished only 59 S.E.2d at . . . can be provisions accordance with legislative of statutes enacted government.”). defining may branch of the State In both “[w]ho adopt” may adopted,” be legislature emphasized “[w]ho adoptions may only provided Chapter occur as 48. N.C.G.S. may (2009) (“Any adopt 48-1-103 pro- adult another individual as Chapter in this . . . .” (emphasis added)); vided id. (2009) § 48U-104 (“Any adopted provided individual Chapter." as in this (emphasis Further, added)). 48-2-301, under N.C.G.S. titled “Petition adoption; may file,” provided for who legislature that “[a] prospective adoptive parent,” someone attempting adop- who is an “provided Chapter 48, tion in” 48-1-103,may id. file an petition, 48-2-301(a). id. §
Plaintiff was not seeking an available under petition adoption, plaintiff explained 48. her court sought that she decree that would establish the *9 legal relationship child, and child with the minor but not relationship sever that same between defendant and the minor child. established, As we have Chapter such relief does not exist under 48. 48-1-106, 48-2-606(a)(6), plaintiff §§ 48-3-606(9). Because was seeking Statutes, relief unavailable under adoption our General proceeding at issue this case was not “commenced under” 48 of our General Statutes. (2005). Id. 48-2-100 subject jurisdiction
A particular court’s matter over a case is by pleading. K.J.L., invoked 343, 346-47, In re 363 N.C. 677 S.E.2d 835, (2009) (“ purpose 837 ‘The ... pleadings] give juris- of the is] subsequent analysis. 2. The amendments to this statute are immaterial to our See (2009). N.C.G.S. 48-2-100 547 v. subject litigation diction of the Peoples matter ....’” (quoting v. 144, Norwood, 149, 167, 94 N.C. 94 N.C. 172 (1886))). adoption petition explained filed in this case that was seeking relief unknown to adoption petition our law. sought As relief that does not exist our statutes, petition under adoption did not invoke subject jurisdiction. court’s matter All actions in the proceeding adoption entry before the court, including decree, of the were subject therefore taken jurisdiction. without matter T.R.P, See In re 588, 593, 787, 360 N.C. (2006) 636 S.E.2d 792 (determining that a court subject jurisdiction not did have subsequent custody matter over a review hearing subject since the court’s matter was not juvenile invoked at the of a case). outset Accordingly, the adoption decree at issue is 590, this case void ab initio. Id. at 636 S.E.2d at (citations 790 omitted).
Plaintiff legality contends that of the decree may notwithstanding, validity. defendant longer sup no contest its port contention, plaintiff of this 48-2-607(a), cites N.C.G.S. § which part states in that “after the final order of entered, party anyone to an proceeding claiming nor under such a party question may validity any because of defect jurisdictional irregularity, otherwise, proceeding, in the but fully by shall be bound the order.” Id. 48-2-607(a) (2009). We note Appeals rejected argument Court of opinion below, this in its recognizing preclude challenge this statute does not a to a jurisdiction. court’s Boseman,-N.C. App. at-, only 681 at (“[T]he S.E.2d 378 avenue which can con [defendant] initio, test the is to show it that was void ab nul lity.”). long held, As we have judgment legal effect; void has no it is legal nullity challenged T.R.P, at time. In re 360 590, omitted); Stroupe N.C. at 636 at (citation Stroupe, S.E.2d 790 v. 656, 662, 434, City 301 N.C. (1981); 273 S.E.2d 438 Monroe v. Niven, 362, 365, 311, 221 N.C. (1942) 20 S.E.2d 313 (“The passage time, great, validity judgment; however does not affect the of a it can judgment (citations not render a void quotation valid.” marks Casey 465, omitted)); Barker, 467-68, v. 219 N.C. 429, 431 (1941) (citations omitted); Ellis, Ellis v. 190 7, N.C. 130 S.E. (1925) omitted); Homes, Inc., v. (citation Clark Carolina 189 N.C. 20, 703, 708, (1925) (citations omitted); S.E. 23-24 Carter 23, 32, 716, Rountree, 109 N.C. (1891). 13 S.E. Moreover, the General intended for 48-2-607 to shield from further review those decrees entered courts *10 COURT THE SUPREME IN 548 v. BOSEMAN JAKBELL presumed always jurisdiction. “It is subject matter having knowledge and with full with care and deliberation legislature acted Benton, 641, 658, v. 276 N.C. 174 prior existing law.” State “ omitted). principle as 793, (citations ‘Auniversal (1970) 804 S.E.2d jurisdic- without proceedings of court the law is that the old as ” 590, T.R.P., re 360 N.C. at subject nullity,’ matter are tion of the Gibbs, Burgess 262 N.C. Burgess ex rel. v. (quoting 790 S.E.2d at 636 subject matter 806, and without (1964)), S.E.2d 808 137 act,” (citing to id. Hart v. power jurisdiction, “a court has 673, 84, 678 Inc., 90, 244 N.C. 92 S.E.2d Motors, Thomasville Assembly enacted N.C.G.S. we assume the General (1956)). Because subject jurisdiction “can- knowledge matter with full that 48-2-607 by consent, estoppel,” 360 upon a waiver or conferred court not be quotation marks omit- (citations 793 595, N.C. at 636 S.E.2d at “irregularity” party,” words “no “defect” ted), legislature’s challenges to other designed statute is foreclose indicate that this adop- jurisdiction. 48-2-607(a). The See N.C.G.S. than authority proceeding seeking had no to act in in this case tion court Verrier, App. 123, 173 N.C. to 48. See State relief unknown 675, realm of this Court’s 130, (2005) (“It is outside the modify statutory judiciary law.”). to Because as the function authority act, 48-2-607 does not had no court apply to its decree. will if the the child lose benefits argument that rejected. that this upheld The record shows new must also be
is not
adoption may
judicially-created
have
available
been
form of
County
counties of North
and not available in the other
Durham
system
preserved,
be
a new form
court
is to
Carolina. If our uniform
but not all.
made available in some counties
cannot be
applied
uni-
responsibility to ensure that the law
This
has the
Court
Const,
IV.
formly
Accordingly,
N.C.
art.
best
in all our counties.
equally avail-
legal benefits that are
interests evaluation is limited to
Holden,
702,
State v.
the law to all children. See
able under
Legislature
(1870) (“The
intention
N.C.
manifest,
it is the
remedy
are
and under such circumstances
aimed at
‘sup-
duty
interpretation
the law as shall
Judges
give
such
remedy, putting down all subtle
press
and advance the
the mischief
.
. .
for continuance of the mischief
inventions and evasions
remedy, according true
to the cure and
adding force and life
omitted)).
(citation
makers
the act....’”
intent of the
many policy arguments have been made to
recognize Wé
ought
allowed.
case
this
this Court
*11
549
v.
BOSEMAN
JARRELL
(2010)]
537
N.C.
[364
However,
statutory
Wilson,
a
215,
is
creation.
[2] We are now left with a
custody
dispute between a
parent
and a
party.
Appeals
pass upon
third
The Court of
did not
this issue. The
court, however,
trial
concluded
defendant “has acted inconsist
paramount parental rights
responsibilities”
ent with her
before
determining
parties
proper persons
“are fit and
to have cus
tody” of the minor child “and it
inis
the best interest of the child for
joint
custody
him,”
to have
providing
an alterna
custody
tive basis for its
decision. Defendant contends that the trial
by concluding
court erred
inconsistently
that she has acted
with her
constitutionally protected, paramount parental status. As defendant
challenge
does
findings
not
on
based,
which this decision is
we
novo,
Tessener,
review this conclusion de
57,
see Adams v.
354 N.C.
65,
499,
550
(2001),
supported
S.E.2d
504
and determine
it
whether
is
convincing evidence,”
“clear and
63,
id. at
(cita
A
companionship, custody, care,
has an
“interest
protected by
and control of
her
or
children
is
the United
[his
that]
States
Howard,
73,
Constitution.” Price v.
68,
346 N.C.
484 S.E.2d
528,
(1997);
Rogers,
397,
531
400,
901,
Petersen v.
337 N.C.
445 S.E.2d
(1994).
long
parent
paramount
903
So
aas
has this
interest in the cus-
tody
children,
custody
of his or her
dispute
nonparent
with a
regarding
application
those children
not be determined
Price,
the “best interest of the child”
79,
standard.
A
loses this
interest if
or
is
he
she
found to
inconsistently
or
constitutionally protected
unfit
acts
“with his or her
N.,
status.” David N. v.
751,
Jason
However,
beyond
(2005).
bright
parent’s
there is
line
which
con-
Price,
79,
duct meets this standard. See
346 N.C. at
at
S.E.2d
explained
Price,
“statutory
534-35. As we
rising
conduct
warranting
parental
unnecessary.
rights”
level
termination of
at
Id.
Rather,
“[u]nfitness,
so as to be inconsistent
at
This is an factor plaintiff voluntar- that was the child’s natural father and resented custody period ily child for an indefinite given had him custody relinquishment that such would time with temporary, notice family only unit defendant would have not created established, plaintiff child have but also induced family relationship unit to flourish in a of love them allow that duty expectations be terminated. and with no that it would
However, plaintiff agreed if defendant custody only temporary period of for a would have child custody period, sought at the end of that she time and defendant enjoy constitutionally protected still a status absent other would with that status. conduct inconsistent Price, parent a Thus, brings under when a (citation omitted). Id. family unit, nonparent par- nonparent represents that the into nonparent ent, voluntarily custody of the with- gives child relationship expectation that the would be termi- creating out BOSEMAN JARBEIX nated, parent inconsistently paramount has acted with her parental status. Dwinnell, App. 209, Mason v. 58 (2008),
our
of Appeals applied
Court
quite
our decision in
Price
facts
sim-
judice.
ilar to those in the case
parties “jointly
sub
In Mason the
family
intentionally
decided to create a
steps
identify
took
nonparent]
parent
as a
child.” Id. at
child to the with no nonparent’s relationship with the child would *13 parent be terminated. Id. The authority “chose to share her decision-making nonparent].” with [the parent Agreement” Id. The also a “Parenting executed in she which “agreed nonparent] major that participate making should in ‘all [the ” regarding decisions parent their child.’ Id. In that document the also stated that nonparent] “jointly
she and parent” had committed to [the child; parent] nonparent]’s that would consent to [the [the law; child if allowed North Carolina that “although nonparent] biological is not a mother, she is de [the parent provide who has will parties’ and with a child facto stable environment and a psychological parent- she has formed ing relationship parties’ child;” with the that relation- the child’s ship nonparent] protected promoted “should and be [the preserve strong them;” emotional ties that between exist purpose and provisions that the of the document towas make for relationship parties] continuation of should cease to [the together. live App. 224,
190 N.C.
at
S.E.2d at
such,
parent
67-68.As
the natural
nonparent
family
along
created
with the
a
in
unit which the two acted
parents,
authority
as
decision-making
nonparent,
shared
with the
indefinitely.
arrangement
manifested
intent that the
exist
SUPREME COURT
IN THE
v. custody
degree of
relin-
recognized that the
Appeals
Court
in Price.
at
quishment in
differed from that
Mason
regarding
Price,
though
remained a factual
issue
at
In
there
68.
only temporary,
relinquishment
was intended to
whether the
custody
relinquished
of the child for some
completely
parent
natural
Mason,
82-83, 484
at
on
period
346 N.C. at
S.E.2d
536-37.
of time.
completely relinquish
parent did not
cus-
hand, the natural
the other
However,
par-
natural
tody.
App.
225,
The record the case sub tionally voluntarily family plaintiff was created a unit which parties jointly parent. The decided intended to act—and acted —as a bring relationship, conceive a together a child into their worked child, child a last together, gave chose the child’s first name composed parties’ hyphenated name of both last name “is publicly held themselves out as the child’s names.” The also parents ceremony respective families. The baptismal at a and to their ample allowed record also contains evidence that defendant parental relationship. develop Defendant and the minor child parent.” [plaintiff] good ... is and has been “agrees even expec- created Moreover, the record indicates that defendant only temporary. notably, family was Most defend- tation that this unit *14 adoption relating proceeding before the court ant consented to the envisioned, adoption As the would have resulted her child. defendant myself [plaintiff].” In ask- having legal parents, “two her child repre- adoption relationship, ing the court to create such a defendant plaintiff “have raised the since his sented that she and [minor child] jointly equally provide[d] care, sup- said with birth and have child port nurturing explained his life.” throughout Defendant co-parent adoption and desires to with court that she “intends adopt parental who has child and share agreed another adult Thus, parental responsibilities shared responsibilities.” defendant
BOSEMAN v. JARRELL family plaintiff and, when occurring the unit defendant any expectation termination, inconsistently created without acted paramount parental with her The status. record contains clear and convincing support evidence in of that conclusion. Appeals adoption
The determining Court erred in decree at issue in is We this case valid. hold that the decree is void ab legally initio and that is recognized not a the However, inconsistently minor child. because defendant has acted paramount status, parental by with her the trial court did not err employing the “best interest of child” the standard to reach cus- its tody Thus, Appeals’ decision. we reverse the Court of re- decision validity garding the decree and affirm as its modified leaving custody conclusion undisturbed trial the court’s award. We remand Appeals this case to the Court of for further remand to the trial court for actions not opinion. inconsistent with this PART;
MODIFIED AND AFFIRMED IN REVERSED PART IN ANDREMANDED.
Justice dissenting. TIMMONS-GOODSON the entered, party adop- final order of to an [A]fter anyone proceeding tion claiming party nor under such a question validity of because of defect jurisdictional irregularity, otherwise, proceeding, but fully by shall be bound order. 48-2-607(a)(2009) (emphasis added). statutorily
Because Melissa Ann Jarrell is challeng- barred from ing adoption decree, I dissent. legislature challenges The identified two narrow when situations allowed, permits First,
are challenge. neither Jarrell’s Jarrell thirty days appeal did not within final decree. Id. 48-2-607(b) Second, (2009). she failed to to set move aside discovery adop- decree within six of a months that her consent to the tion was obtained fraud or duress. Id. 48-2-607(c) (2009). years Instead, challenged adoption nearly entry Jarrell two after plain of the final language decree. This she cannot do. 48-2-607(a) of N.C.G.S. bars her claim. respect statutory imposed
This Court must limitations legislature and should not reach substantive issues not before it. The *15 THE COURT IN SUPREME v. JARRELL
BOSEMAN N.C. that it interest of minors legislature to be'in the best determined (2009), 48-2-607(a), and final, 48-l-100(b)(l) id. adoptions §§ be see circumstances, of which are sat- none challenges in narrow allowed adoption to chal- The wisdom of these restrictions in this case. isfied if decide, Court. And legislature to not this is an issue for lenges modify Assembly wish to these restric- General the members of our tions, so. prerogative is and role to do it their dissenting. Justice HUDSON contrary statutory explicit
Today majority Court acts to this this and intent order to achieve outcome. language legislative simply that willing language am into statutes I not to read Because there, I dissent. not empha- has
By unambiguous language, the General its finality of overriding legislative goals promoting sized the primary interests the child when adoptions making and the best end, that construing Chapter (2009). 48. N.C.G.S. 48-1-100 To § appealed aside a date that was not set at final decree by as late as the here if the natural shows clear one convincing date of dis- evidence within six months of reasonable covery her was fraud or duress. Id. that his or consent obtained Ann Jarrell has made no such 48-2-607(c)(2009). Defendant Melissa indeed, plainly active, her the record shows allegations, adop- voluntary to informed, and consent Julia Boseman’s such, present can child. As defendant serious tion of minor .the Chapter to provision 48 would authorize court argument passage after the of so much time. set aside initio, ab Instead, contends that the is void defendant requirements jurisdictional set forth in despite conceding that the fully defendant, According 48-2-100were satisfied here. adopted reasoning by majority opinion, the trial court largely subject exceeding stripped itself matter its statu- tory authority allowed waive under 48 when it defendant to provisions 48-l-106(c) (stating in N.C.G.S. that a effect of relationship adoptee is to between the decree sever par- parents) 48-3-606(9)(requiring natural the natural and his decree will recognition consent include a ent’s rights respect child). minor De- parental terminate all authority approach fendant offers no this Instead, majority opinion jurisdiction, I have found none. *16 (2010)] N.C. 537 [364 today entirely subject creates an new formulation of the law jurisdiction. matter premise majority’s underlying holding,
The trial Chapter court was not provisions authorized under 48 to waive the 48-l-106(c) N.C.G.S. 48-3-606(9) concerning § termination of parental rights, defendant’s at most could amount to an error of law. Our case law makes clear that such error would neither divest of, implicate, subject jurisdiction the trial court nor even its matter or authority by grant sought parties, namely, plaintiff’s the relief such, of the minor child. As I conclude that the void, merely subject statutory decree was not but voidable and appeal. challenge time-barred, time limits for Because this I would Appeals. affirm the Court of outlining general adoption procedure Chapter 48,
When Assembly specifically General “Jurisdiction,” included a section titled pertinent part: which states in
(b) Except provided (c) section, juris- as in subsection of this adoption proceedings diction over under commenced this Chapter if, exists at commencement the proceeding:
(1) adoptee The has lived in this State for at least the six con- immediately preceding filing
secutive months petition birth, prospective adoptive par- or from State; ent is domiciled in this prospective adoptive parent The
(2) has lived in or been domiciled in this State for at least the six consecutive immediately preceding filing petition. months (emphasis only statutory Id. 48-2-100(2005) added).3 These are the requirements may jurisdiction before North Carolina court exercise adoption proceedings. fact, prop- over Here the trial court found as erly Appeals, plaintiff, defendant, affirmed the Court of residency require- the minor child all fulfilled the North Carolina necessary jurisdic- ments to establish the trial court’s party disputes tion over the under 48-2-100. N.C.G.S. No statutory language petition 3. This was effect when the was case, subsequent filed in this amendments to remove barriers states, see Act. of Oct. North Carolina children residents of other ch. my 255, 255-56; (2009), sec. 2007 N.C. Sess. Laws 48-2-100 do not affect analysis here. COURT IN THE SUPREME v. the trial met, challenges statutory requirements were that these parties. personal over court’s Assembly specifi- acknowledges that the General majority “Jurisdiction” 48 entitled cally a section enacted majority reads fully here. The then requirements were met that those actually requirement that does not that section an additional into an not enter Chapter 48, wit: that the trial court appear in upon this new statutory provisions. Based waiving certain order district court majority determines that the requirement, then order, even jurisdiction by entering such divested itself *17 As jurisdiction were satisfied. statutory requirements for though the adoption decree is void ah initio such, majority, this reasons the approach sub- This new potentially voidable for error. rather than statutory requisites and jurisdiction ignore the ject matter —to language of N.C.G.S. counter to the instead create our own—runs jurisdic- subject matter 48-2-100, jurisprudence on and decades requirement, intended such a Indeed, had the General tion. legislators that are more section makes obvious the “Jurisdiction” capable drafting it. than (cid:127) may stripped today implies a court be holding
The Court’s by action, a inconsist- subject jurisdiction its own conclusion matter long-standing case law: ent with attaches, jurisdiction general . . . of a court
Once by subsequent . . . events. rule is that it will not be ousted on dur- light bulb which can be turned off or Jurisdiction is not a jurisdiction acquires over of the trial. Once a court ing the course jurisdiction throughout over that action an action it retains true, it would be ... If the converse of this were proceeding. destroy juris- preserve or power of the defendant to within the whim. diction of the court at his own 890, Peoples, (1978) (third 911 In 296 N.C. See re omitted), quotation marks (citations and internal original) alteration Moreover, if denied, 929, (1979). L. Ed. 2d 297 442 U.S. 61 rt. ce jurisdiction initio, then the order defendant trial court lacked ab validity adoption must itself be void challenge the of the now uses to serve as the basis for such, As that order could not and of no effect. jurisdiction holding court. In successfully challenging the of the reasoning serve, majority adopts circular does so the order “destroy jurisdiction of the court at has allowed this defendant 557 THE SUPREME COURT IN BOSEMAN v. JARRELL to enter the order she whim,” by asking the district court own [her] jurisdiction.4 deprived now claims it of ab is void my view, arguments defendant’s directly nullity may' attacked either
initio, making it “a
be
[which]
179,
Sams,
230, 235, 345 S.E.2d
182
collaterally,” State v.
317 N.C.
necessarily
light
long-
fail in
omitted), must
(1986) (citations
initio
when it is
rule that
order is void ab
established
“[a]n
id.-,
by
jurisdiction,”
see also Travis
issued
a court that does not have
94,
have
713, 719-20,
(1956) (“To
S.E.2d
99
Johnston,
95
authority
has
validity
must
rendered
a court which
judgment
questions
dispute
and control over the
hear and determine the
property
is
controversy
in the
which
parties to the
or their interest
controversy.
met, the
subject
When these tests are
matter of the
omitted)).
(citations
the court is not void.”
judgment rendered
court
initio,
ab
nor is a trial
judgment
A
is not rendered void
authority
judg-
jurisdiction or
to enter
divested of
proper procedure or even
ment,
a failure to follow
because of
422,
Ellis,
N.C.
law. See Ellis v.
because of an error of
principle that where the
(noting “the established
(1925)
S.E.
subject-matter
both the
court has
judgment
effect of a
power,
binding
force and
acts within its
erroneously allowed, though
impaired
the same has been
not
because
record”
apparent on the face of the
error
be undoubted and
*18
162, 166,
Peoples Norwood, N.C.
94 N.C.
omitted));
v.
94
(citations
voluntarily
parties
before the
167,
(“[W]hen the
are
(1886)
172
party and
is entered in favor of one
[c]ourt,
judgment
and ...
valid, although
granted
not
accord-
another,
judgment
such
against
orderly
procedure.” (citations omitted)).
course of
ing to the
nei-
judgment,”
as
judgment
a void
“is in
effect
While
“[i]t
upon it are
any one,
proceedings founded
nor bars
and all
ther binds
worthless,”
84, 90, 92
Motors, Inc., 244 N.C.
v. Thomasville
Hart
quotation
omitted),
marks
673,
(1956) (citation and
S.E.2d
678
“[a]n
certiorari,”
appeal or
should be corrected
judgment
erroneous
Montgomery
v.
9;
also Daniels
Ellis,
422,
BOSEMAN v. Co., 669, 676, 772, (1987) (“ Mut. Ins. 360 S.E.2d 777 ‘An order, contrary practice irregular one issued to the method of and procedure by law, established is voidable.’ . . . An erroneous order may collaterally.” by appeal; be (cita- be remedied it not attacked omitted)); Worthington Wooten, 242 tions v. N.C. (1955) (stating judgment, irregular 770 that a “even if even binding parties,
erroneous was appeal. on the unless set aside or reversed on provided . person . the court had (citations Sawyer Slack, omitted)); matter.” see also (1929) that, partly S.E. (holding N.C. because of the public policy in strong marriage maintaining favor of familial relationships and rights, marriage underage female without parental required by consent statute was voidable). not void but appeal challenge
The time limits for to this must Assembly’s read in accordance with the General forceful statement of notably legislative opening Chapter 48, intent in the section of not majority opinion: mentioned in the
Legislative findings intent; Chapter construction Assembly
(a) public The General finds that it is in the inter- judicial process adoptions, promote est to establish a clear and, integrity finality adoptions, encourage prompt, disposition adoption proceedings, conclusive and to structure adopted children, biological parents, adoptive services parents provide protect that will for the needs and the interests adoption, particularly adopted of all to an minors. (b) special With regard minors, for the legislative policy General declares as a matter of that: primary purpose (1) of this is to advance the protecting welfare of (i) minors minors unnec- from essary separation original parents, their (ii) facil- from itating adoptive place- minors need of by persons ment give love, care, security, who can them support, (iii) protecting placement minors from adoptive parents responsibility unfit to have for their *19 rearing, assuring care and and (iv) finality the the of adoption; and Secondary (2) purposes Chapter protect of (i) this are to bio-
logical parents relinquish from ill-advised decisions to adoption, protect child or consent to the child’s (ii) to adoptive parents responsibility assuming from for a heredity physical child about whose or mental or con- they nothing, (iii) protect privacy dition know to the of adoption, the and (iv) discourage to un- trafficking place- lawful in minors and other unlawful ment activities. (emphases added); Adoption N.C.G.S. 48-1-100 § see also In re
Anderson, 271, 275-76, (2006) (noting Assembly public that “the recognized General the interest in estab- judicial lishing process adoptions” a clear “promoting for finality integrity adoptions” (citation, quotation internal marks, and brackets omitted)). legislative judicial
Consistent with its intent “to establish clear process adoptions,” for including “prompt, disposition conclusive adoption proceedings,” primary 48-l-100(a), purpose § id. and its finality “assuring adoptions, of’ 48-l-100(b)(l), id. Assembly carefully General mandated delineated time limits and cir- appeals challenges adoption. cumstances for a final Direct appeal of an decree entered judge district court is thirty days if final, allowed filed within after the becomes 48-2-607(b) (2009), id. or within six months of the time a natural parent’s relinquishment consent or “ought “was obtained” or reason- ably “by have been discovered” to have been obtained fraud or duress,” parent may 48-2-607(c). § id. A natural also revoke his her days adoption, within 48-3-608(a) consent seven of a consent to id. § days (2009), receipt preplacement or within five after of a assessment placement adoption, in a direct 48-3-608(b)(2009). id. A consent is void if clear convincing evidence establishes that it was obtained duress, parties mutually aside, fraud or or if the if agree to set it petition adopt voluntarily prejudice, is dismissed with or.if petition adopt appeal court dismisses the and either no is taken or appeal appeals the dismissal is affirmed on and all have been 48-3-609(a)(2009). exhausted. Id. specific situations, however,
Outside these the General explicitly prohibits any challenge after a final order of is unequivocal Through language entered. section “Appeals,” legislature preference 48 titled has established its finality adoptions procedural correcting irregularities: over
(a) Except provided in (b) (c) as subsections of this sec- tion, entered, party order to an after final adoption proceeding anyone claiming party nor under such a *20 COURT IN THE SUPREME 560 v. JARRELL (2010)] N.C. 537 [364 any validity because may question defect otherwise, proceeding, in the jurisdictional or irregularity, or adoption may be by the order. No fully bound shall be but any collaterally procedural directly because of or either .attacked adoption. anyone party by who was not defect or other perform duties agency to part the court or an on the The failure this required provisions time or acts within the any adoption proceeding. validity of affect the shall not preference is added).5 strong This (emphasis 48-2-607(a)(2009) §Id. final decrees that sanction provisions further evidenced with a vesting courts required information and despite omissions statutory compliance with leeway to determine degree of certain entry of a See, e.g., 48-2-306(b) (2009) (“After requirements. id. any required be in the information adoption, omission of decree of [to relinquishments] G.S. including consent and/or adoption petition, (emphasis invalidate the decree.” 48-2-305does not 48-2-304and G.S. that, hearing at the on (2009) (providing 48-2-603(a)(4) added)); §id. waiver, judicial consent, relinquishment, necessary or “[e]ach . .. and obtained and filed terminating parental rights, has been order expired”). revocation has the time for have time, defendant would
Here, despite passage of so much expressly con- adoption decree, though even she us invalidate action is con- though taking such irregularity, and even sented to finality procedural prioritizing over strict trary statutory language plaintiffs sought challenge compliance. Defendant first May 2007, nearly custody proceeding in two in a of the minor child August 2005, and was entered in years after the final decree appeal specified in expiration of the time limits for well after should fall waivers she now disclaims 48-2-607. The untimely Assembly’s prohibition against squarely within General majority legisla- statute, to, quoting, maintains that “the Citing this 5. but not designed party,’ ‘irregularity’ is indicate that this statute ‘no ‘defect’ and ture’s words jurisdiction.” challenges I reiter- in a court with to foreclose ‘waivable’ statutory language, highlight here, including actual while ate that statement majority necessarily (at “waivable”) word into N.C.G.S. read words least the must “any” “fully bound,” 48-2-607, ignoring well as the lack of a the words as while purported leg- interpretation qualifier “jurisdictional,” in to reach its of this order islative intent. majority’s D.L.H., on In re approach which states at with the reliance This odds judicial unambiguous, no room for clear and “there is maxim that when a statute is plain meaning, give the statute its and definite and the courts must construction provisions interpolate, superimpose, not con- power and limitations are without omitted). (2010) (citation S.E.2d therein.” 364 N.C. tained BOSEMAN v. JARRELL appeals “any jurisdictional claiming irregularity, defect or or other- statutory 48-2-607(a).Nothing language sup- wise.” Id. in the itself *21 ports position, majority’s defendant’s or the endorsement of it. Rather, contrary'to unequivocally such a holding primary is the stated legislative goal assuring finality adoptions.6 holding Assembly’s
The here likewise runs afoul of the General categorical Chapter directive that 48 be construed in a manner to needs, interests, adoptees ensure that “the rights and of minor are primary.” 48-7-100(c) (emphasis Moreover, N.C.G.S. added). legislature “[a]ny has instructed that conflict between the interests of adoptee a minor and those of an adult shall be resolved in favor of minor,” (emphasis added), Chapter id. and 48 should be “liber- ally applied promote construed underlying purposes and its and policies,” 48-l-100(d), finality such as “the integrity adoptions” “prompt, disposition adoption pro- conclusive ceedings,” 48-l-100(a). id. § provisions plain
These unambiguous, appear are in statu- tory By contrast, explicit prohibition text. against, there is neither an explicit of, nor an authorization the waivers at issue here. In the any statutory language indicating legislative absence regard- intent ing waivers, guided by these we must legislative priorities we safeguard do know and thus act to the best interests of this child barring challenge finality this late and promoting adoption. of this Reading jurisdictional requirement there, into 48 a that is not majority promotes overlooks the interests of this child and rights child, defendant’s over those in direct contravention of the law as written.
CONCLUSION
majority
decision here is at odds with the timetables and
express
Chapter 48,
prior
finality
intent of
as well as
case law on the
adoptions.
pertinent
I would
hold
at all
times the trial court
jurisdiction,
appeal
time-barred,
had
that this
and that the
Accordingly,
Appeals.
decree must stand.
I would affirm the Court of
previously
untimely
considered,
rejected,
6. I note as well that this Court has
challenges
jurisdic
final
decrees that assert the decree is void for lack of
Russell,
34, 40-41,
(1961);
tion.
Hicks v.
See
256 N.C.
see also
Fakhoury
Fakhoury,
App. 104,
(rejecting
171 N.C.