Amicus Curiae Brief — V.L. v. E.L., 136 S. Ct. 1017 (2016) (No. 15-648)

¥

E_L., AND GUARDIAN AD LITEM, AS REPRESENTATIVE

Ov Minor CHILDREN,

Respondents

ate ~ A} 1 — ele

( amee

Bates v Bates.

730 8.E. 2d 482 (Ga. Ct. App. 2012)

Eldredge v Taylor.

339 P 3d BAB (Okla 2014)

Ellie v West ex rel West,

971 Se. 2d 20 (Ala. 2007)

In re Adoption of Doe,

326 P 3d 347 (idaho 2014)

In re Adoption of K.8.P., |

In re Adoption fA RBF & RCFE,

In re Adoption of Tammy,

619 N_E.24 315 (Mase 1993)

In re tion of Two Children by

HNR,

666 A.24 6365 (N 4. Super. Ct. App.

Div. 1996)

In re Jacob,

660 N_E. 24 997 (N.Y. 1995)

13,

In reMM.D &BHM,

662 A.2d 837 (D.C. 1995)

In re Petition of KM &4DM,

Obergefell v Hodges.

136 8. Ct. 2684 (2015)

73 P.3d 5664 (Cal. 2009)

Williams v Willams.

717 8.E.24 663 (Ga. Ct. App. 2011)

42 U B.C. $416) (2015)

Ala. Code (2015)

§161-112

§25°5°31

Alaska Stat. §25.23.140 (2015)

Ariz. Rev. Stat. Ann. §6 123 (2015)

Ark. Code Ann. §9°9-216 (2015)

99617

99102

iv

Colo. Rev. Stat. (2015)

§19-5-203(1)(d.5)(D

§19-5-208(5)

§19-5-210(1.5)

§19-5-211(1.5)

§19-5-214

Conn. Gen. Stat. §45a-724(a)(3) (2015)

D.C. Code Ann. §16-310 (2015)

Del. Code Ann., tit. 13, §918 (2015)

Fla. Stat. Ann. §63.182 (2015)

Ga. Code Ann. §19-8-18(e) (2015)

Haw. Rev. Stat. §578-12 (2015)

750 Ill. Comp. Stat. 50/11 (2015)

Ind. Code Ann. §31-19-15-2(a) (2015)

Ky. Rev. Stat. Ann. §199.540 (2015)

La. Child. Code art. 1148 (2015)

Md. Code Ann., Fam. Law (2015)

§5-342

§5-353

Mich. Comp. Laws Ann. §710.64 (2015)

Miss. Code Ann. §93-17-15 (2015)

Mo. Rev. Stat. §453.140 (2015)

N.C. Gen. Stat. §48-2-607 (2015)

cnaenTxTnTrmlC OOlOmUmlmCOCWD]

Vv

N.D. Cent. Code §14-15-15 (2015)

N.H. Rev. Stat. Ann. §170-B:21 (2015)

Neb. Rev. Stat. §43-116 (2015)

Ohio Rev. Code Ann. §3107.16 (2015)

Okla. Stat. Ann. tit. 10, §7505-7.2

(2015)

Or. Rev. Stat. §109.381 (2015)

R.I. Gen. Laws §9-21-2 (2015)

Tenn. Code Ann. §36-1-122 (2015)

Tex. Fam. Code Ann. §162.012 (2015)

Vt. Stat. Ann. tit. 15A, §1-102(b) (2015)

W. Va. Code Ann. §48-22-704 (2015)

Wash. Rev. Code Ann. §26.33.360

(2015)

Court Rules

Sup. Ct. R.

37.3(a)

37.6

con ft @

vi

Other Authorities

American Academy of Pediatrics,

Coparent or Second-Parent Adoption

By Same-Sex Partners (2002),

available at http://pediatrics.

aappublications.org/content/pediatri

cs/109/2/339.full.pdf

James X. Bembry & Carolyn Ericson,

Therapeutic Termination with the

Early Adolescent Who Has

Experienced Multiple Losses, 16

Child & Adolescent Soc. Work J. 177

(1999)

Susanna Birdsong, Voiding

Motherhood: North Carolina's

Shortsighted Treatment of Subject

Matter Jurisdiction in Boseman v.

Jarre!], 21 Am. U.J. Gender Soc.

Pol'y & L. 109 (2012)

W Andrew Collins & L. Alan Sroufe,

Capacity for Intimate Relationships:

Developmental Construction, in The

Development of Romantic

Relationships in Adolescence

(Wyndol Furman et al., eds., 1999)

Frank J. Dyer, Termination of Parental

Rights in Light of Attachment

Theory: The Case of Kaylee, 10

Psychol. Pub. Pol’y & L. 5 (2004)

17

10, 11

12

10

10, 11

Vii

Yvon Gauthier et al., Clinical

Application of Attachment Theory in

Permanency Planning for Children

in Foster Care: The Importance of

Continuity of Care, 25 Infant

Medical Health J. 379 (2004)

Joseph Goldstein, Anna Freud & Albert

J. Solnit, Beyond The Best Interests

of the Child (1979)

2 Ann M. Haralambie, Handling Child

Custody, Abuse and Adoption Cases

(Westlaw database updated Dec.

2015)

§14:1

§14.28

Leslie Harris, Voluntary

Acknowledgments of Parentage for

Same-Sex Couples, 20 Am. U.J.

Gender Soc. Pol'y & L. 467 (2012)

William F. Hodges, Interventions for

Children of Divorce: Custody, Access

and Psychotherapy (2d ed. 1991)

Joan H. Hollinger, Adoption Law and

Practice (3d ed. 2015)

Ana H. Marty et al., Supporting Secure

Parent-Child Attachments: The Role

of the Non-Parental Caregiver, 175

Early Child Dev. & Care 271 (2005)

16

10

15

11

15

16

IDENTITY AND INTEREST OF AMICI

CURIAE!

Since 1996, the Donaldson Adoption Institute

(DAD has worked to improve the lives of children

and families across the country and around the

world through research, education, and advocacy

that have led to better laws, policies, practices, and

perceptions. To achieve its goals, DAI investigates

the issues and problems of greatest concern to

first/birth parents, adopted persons, adoptive fami-

lies, and the people who love them. DAI then deter-

mines best practices and offers policy recommenda-

tions. It works with a broad array of partners in edu-

cational efforts and advocacy campaigns to eliminate

policy and practice barriers—including obstacles

faced by gay anda lesbian individuals and couples—to

adoption of children in foster care waiting for per-

manent homes. DAI’s newest initiative, Let's Adopt

Reform, seeks to reframe the adoption conversation

with new public opinion research and the voices of

the adoption community to ignite a new national

dialogue about adoption in the 21st century and

advocate for change by outlining critical policy and

practice reforms.

The North American Council on Adoptable

Children (NACAC) is a non-profit organization that

‘Pursuant to Supreme Court Rule 37.3(a), all parties have

consented to the filing of this brief. Letters evidencing such

consent have been filed with the Clerk of the Court. Further,

pursuant to Rule 37.6, no person other than Amicus Curiae and

their counsel have participated in drafting this brief or made a

monetary contribution intended to fund the preparation or

submission of this brief.

2

promotes and supports permanent families for chil-

dren and youth in the U.S. and Canada—especially

children and youth who are or have been in foster

care and those with special needs. To accomplish its

mission, NACAC offers adoption support, capacity

building for parents and youth, policy and advocacy,

and education and information sharing. NACAC has

long been dedicated to reducing barriers that pre-

vent all children and youth from having a perma-

nent, loving family, including restrictions that pre-

vent or discourage gays and lesbians from adopting

or fostering children who need a family.

First Focus is a bipartisan advocacy organization

dedicated to making children and families the prior-

ity in federal policy and budget decisions. First

Focus leads a comprehensive advocacy strategy, with

its hands-on experience with federal policymaking

and a commitment to seeking policy solutions. One of

First Focus’ priority issues is Child Rights: Every

child should have quality healthcare, a good educa-

tion, and a safe home and community.

The Center for the Study of Social Policy (CSSP),

a nonpartisan Washington, D.C., non-profit organi-

zation, has been working with state and federal poli-

cymakers and communities across the country for

over thirty years. Focused on public policy, research

and technical assistance, CSSP promotes smart poli-

cies that improve the lives of children and their

families and works to achieve equity for those too

often left behind. Using data, extensive community

experience and a focus on results, CSSP’s work

covers several broad areas, including promoting

public policies that strengthen vulnerable families;

reforming child welfare systems; mobilizing a

national network to prevent child abuse and promote

optimal development fer young’ children

3

(Strengthening Families Initiative); assisting tough

neighborhoods with the tools needed to help parents

and their children succeed (Promise Neighborhoods);

educating residents to be effective consumers secur-

ing better goods and services (Customer Satisfaction

Project); and promoting, through all its work, an

even playing field for children of all races, ethnici-

ties, and income levels. CSSP’s work in child welfare

focuses on ensuring that child welfare policies, prac-

tices, and systems meet the safety, permanency, and

well-being needs of the children and youth that come

to the attention of the public child welfare system.

At the core of CSSP’s efforts is a long-standing com-

mitment that children need the stability and support

of life-long families and that, whenever possible,

children should remain with their biological families.

The Child Welfare League of America (CWLA),

established in 1920, is the nation’s oldest and largest

membership-based child welfare organization.

CWLA is a coalition of public and private agencies

serving children and families who are vulnerable by

advancing standards of excellence, accreditation, and

the best research-based practices with respect to

child welfare work. In particular, CWLA is recog-

nized nationally as the standard-setter for child wel-

fare services and publishes thirteen “Standards of

Excellence” as a means to achieve professionalism

and uniformity in the administration of child welfare

services, including in particular Standards of

Excellence for Adoption Services. CWLA’s Standards

also influence and improve child welfare practices

throughout North America, as well as informing the

Standards of Accreditation for agency administra-

tion, management, and service delivery for accred-

ited child welfare agencies.

et

HHT

The Center for Adeption Policy (CAP) i « New

tid

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oad edantion auosiaiene an otanen alictan atten

etegtienp Se eumanies Ase result thew

. hove gained an addi

recognition parent

_ See intra Bection INA) ‘le eddition to the

cri Wrauma that cane ras by meverance

> ¢ : aa - id cuppent, i

Si rar bt the “ld thereof the bg

caVfhiret parents death See infra Section 11K)

Ses ob 6 these cnasene, the Aicheme Ganeme

Corts decumen presente o serwus nek to adopted

children thet warrants granting certiorar:

vont

aes

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ae

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os elaptos hed on ti

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virtually any kind of collateral attack on an adoption

has passed Ala Code §26 10A 2544)

{3

Ale

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move yn yw tt ssetectinn dikteen oho have

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beeome bonded to » parent from the trauma of sepa

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3

Work 4.177, 182 (908: W Androw

Alan Srowle, Cs

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ibis

2

11

Bembry & Ericson, supra, at 179; see also Dyer,

supra, at 11 (“there are numerous empirical findings

that provide a solid research basis for predictions of

long-term harm associated with disrupted attach-

ment _ loss of a child’s central parental love

o ”).

Children assume that they can depend on the

adults who are their parents. When that assump-

tion proves wrong, “a child may question many other

assumptions about the world [including] whether he

or she can count on the availability of any parent.”

William F. Hodges, Interventions for Children of

Divorce: Custody, Access and Psychotherapy 8 (2d

ed. 1991) (emphasis in original).

The emotional damage to a child arising from the

termination of a parental relationship can have

dramatic and concrete adverse effects on the child.

The severing of a school-age child’s bonded relation-

ship with a person who has functioned as his or her

parent can lead to behavioral problems at school and

with the law. Dyer, supra, at 11.

The Alabama Supreme Court has opened the door

to reconsideration of any adoption that could be said

to deviate in any way from the statutory require-

ments of the State where it was granted. That is a

very dangerous precedent that stands only to harm

children. While States may, of course, impose limits

and regulations on adoption, once an adoption takes

place, it is critical to the child’s well-being that it not

be subject to rescission years after the fact. For this

reason, the Court should grant certiorari to protect

all adopted children.

12

Il. CERTIORARI SHOULD BE GRANTED TO

PROTECT SIMILARLY SITUATED

CHILDREN NATIONWIDE.

A. The Decision Threatens The Finality Of

~~ rhe Adoptions In Numerous

tes.

The instant case does not arise from unique facts

or law; to the contrary, Georgia’s adoption statutes

are typical of adoption statutes nationwide. As a

result, the Alabama Supreme Court’s re-examination

of the merits of an adoption performed in another

state represents a serious risk to adopted children

throughout the country if embraced by other States.

As in Georgia, the statutes of most States were

written with the traditional adoption in mind, in

which two things happen: (1) a child is adopted by a

new parent or parents who are not biologically

related to the child, and (2) the parental rights of the

child’s birth parents are simultaneously terminated.

Haralambie, supra, §14:1. In light of this paradigm,

most state adoption statutes anticipate that an

adoption terminates the rights of all biological par-

ents.

Most States, however, recognize stepparent adop-

tion as an exception to the rule that an adoption

automatically terminates the rights of a child’s

existing parents. Susanna Birdsong, Voiding

Motherhood: North Carolina’s Shortsighted

Treatment of Subject Matter Jurisdiction in

Boseman v. Jarrell, 21 Am. U.J. Gender Soc. Pol’y &

L. 109, 112 (2012). Under that exception, one of the

child’s biological parents may consent to having a

person to whom that parent is legally married adopt

13

the child, without the termination of that biological

parent’s rights and responsibilities.’ See, e.g., Ind.

Code Ann. §31-19-15-2(a) (2015); In re Adoption of

K.S.P., 804 N.E.2d 1253, 1255 (Ind. Ct. App. 2004).

In recent decades, most States have extended the

stepparent exception to adoptions known as second

parent adoptions in which the adoptive parent is not

legally married to the current legal parent. See infra

pp.14-15. As with a stepparent adoption, the child

is adopted by a second, non-biological parent, with

the consent of the first parent who does not relin-

quish parental rights and responsibilities. These

reforms enabled same-sex partners to adopt the chil-

dren of their partner, even before any State permit-

ted same-sex marriage,‘ just as stepparents in oppo

site-sex marriages could.

Although many second parent adoptions involve

same-sex couples, the California Supreme Court has

explained that second parent adoptions are also

granted in other situations. Sharon S. v. Superior

Court, 73 P.3d 554, 571 (Cal. 2003). As examples, it

identified adoption by an unmarried partner in an

3In stepparent adoptions and second parent adoptions in

which there is another living biological parent, most States

require that the parental rights of that other biological parent

be terminated before a stepparent adoption is granted. In this

case, however, the children had only one biological parent, E.L.

‘With this Court’s decision in Obergefell v. Hodges, 135 S.

Ct. 2584 (2015), same-sex couples now have the right to marry

in every State. That does not resolve the problem the Alabama

Supreme Court's decision has created for second-parent

adoptions granted prior to Obergefell to same-sex partners who

were then unable to marry. And, as discussed below, second-

parent adoptions are not and have not been limited to same-sex

couples previously excluded from marriage.

14

opposite-sex relationship and “kinship adoptions, in

which a grandparent or other relative [becomes] a

second legal parent to a child whose very young

mother is unable to raise the child on her own.” /d.

Accordingly, the need to protect finality remains

crucial to a variety of completed second parent adop-

tions.

While stepparent adoption is recognized by

statute in most jurisdictions, second parent

adoptions by non-married couples are provided for by

statute in only four states: California,5 Colorado,®

Connecticut,’ and Vermont.* Ten other jurisdictions

have recognized second parent adoptions through

appellate court decisions: the District of Columbia,®

Idaho, !° Illinois, !! Indiana, !? Maine, !%

5Cal. Fam. Code §8617. Prior to the California Legislature

authorizing second parent adoption by statute in 2013, the

California Supreme Court had recognized second parent

adoptions in Sharon S. v. Superior Court, 73 P.3d 554, 571 (Cal.

2003).

®Colo. Rev. Stat. §§19-5-203(1)(d.5)(D, 19-5-208(5), 19-5-

210(1.5), 19-5-211(1.5) (2015).

7Conn. Gen. Stat. §45a-724(a)(3) (2015) Cany parent of a

minor child may agree in writing with one other person who

shares parental responsibility for the child with such parent

that the other person shall adopt or join in the adoption of the

child”).

®Vt. Stat. Ann. tit. 15A, §1-102(b) (2015) (‘If a family unit

consists of a parent and the parent's partner, and adoption is in

the best interest of the child, the partner of a parent may adopt

a child of the parent. Termination of the parent's parental

rights is unnecessary in an adoption under this subsection.”).

®In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995).

10Jn re Adoption of Doe, 326 P.3d 347 (Idaho 2014).

15

Massachusetts,'4 New Jersey,’5 New York,'®

Oklahoma,’’ and Pennsylvania.'* Trial court judges

have granted second parent adoptions in at least six-

teen additional states, including: Alabama, Alaska,

Delaware, Georgia, Hawaii, Iowa, Louisiana,

Maryland, Michigan, Minnesota, Nevada, New

Mexico, Oregon, Rhode Island, Texas, and

Washington. Joan H. Hollinger, Adoption Law and

Practice (3d ed. 2015); see also Leslie Harris,

Voluntary Acknowledgments of Parentage for Same-

Sex Couples, 20 Am. U.J. Gender Soc. Pol’y & L. 467,

471-72 (2012).

Accordingly, while at least 30 states have permit-

ted second-parent adoptions, almost all of them have

done so under statutory frameworks that, like

Georgia’s, do not expressly embrace the concept. As

a result, the number of children who could be

adversely affected by the Alabama Supreme Court's

decision is large. See Sharon S., 73 P.3d at 571-72

(noting that permitting challenge to second-parent

adoption “would cast a shadow of uncertainty over

(Footnote Cont'd From Previous Page)

\\fn re Petition of K.M. & D.M., 653 N.E.2d 888 (Ill. App. Ct.

1995).

12Jn re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App.

2004).

13Jn re Adoption of M_A., 930 A.2d 1088 (Me. 2007).

\4Jn re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993).

15In re Adoption of Two Children by H.N.R., 666 A.2d 535

(N.J. Super. Ct. App. Div. 1995).

16 Jn re Jacob, 660 N.E.2d 397 (N.Y. 1995).

17 Eldredge v. Taylor, 339 P.3d 888 (Okla. 2014).

18Jn re Adoption of R.B.F. & R.C.F., 803 A.2d 1195 (Pa.

2002).

16

the legal relationships between thousands of chil-

dren and their adoptive parents”). Not only are all

children in Alabama who had a _ second-parent

arrangement formalized in another State at risk, but

similarly situated children in other States are also at

risk if other state courts follow the flawed reasoning

of the Alabama Supreme Court.

B. In Addition To the Trauma of Separation,

The Decision Will Deprive Affected Children

areca eet ete

1

a Parent Would Otherwise Afford

m

As discussed in Section I, separation from a par-

ent can cause tremendous and lasting emotional

harm to a child. Research demonstrates those nega-

tive mental health consequences can occur regard-

less of whether the parent is biologically related to

the child. See, e.g., Yvon Gauthier et al., Clinical

Application of Attachment Theory in Permanency

Planning for Children in Foster Care: The

Importance of Continuity of Care, 25 Infant Mental

Health J. 379, 381, 394 (2004) (“Children cannot

understand why they are being separated from the

parents that were given to them and that they

somehow gave themselves through an attachment

process ”). Disruption to _ children’s bonded

attachments to adults serving as their parents can

cause the children to experience aggression, aca’

demic problems in school, and psychopathology.

Ana H. Marty et al., Supporting Secure Parent-Child

Attachments: The Role of the Non-Parental

Caregiver, 175 Early Child Dev. & Care 271, 274

(2005). The Alabama Supreme Court’s decision has

thus placed the children in this case and other

affected children at serious risk.

17

In addition to emotional trauma, the Alabama

Supreme Court’s decision will also cause tangible

harms to those adopted children who lose their legal

relationship with their second parent. Second par-

ent adoption protects children by giving them the

security of having two legally recognized parents.

The American Academy of Pediatrics supports

second parent adoption by non-married partners

because “these families and children need the per-

manence and security provided by having [two] fully

sanctioned and legally defined parents.”!® It follows

that unwinding completed second-parent adoptions

creates very real insecurity and deprives the chil-

dren affected of important rights.

The California Supreme Court, in rejecting a col-

lateral attack on a second parent adoption by a bio-

logical mother who later regretted consenting to the

adoption, explained that to allow such challenges

“would invite withdrawals of entitlements to pre-

viously available health and pension benefits . .

The ultimate financial and emotional losers [would]

be children who are the intended beneficiaries of the

adoption laws.” Sharon S., 73 P.3d at 571-72 (inter-

nal quotation marks omitted).

The practical effects on adopted children of sev-

ering second-parent adoptions are many and include

the following:

e Health Insurance. The child may be ineligi-

ble for employer-provided health insurance of

Am. Acad. of Pediatrics, Coparent or Second-Parent

Adoption By Same-Sex Partners (2002), available at

http://pediatrics.aappublications.org/content/pediatrics/109/2/33

9.full pdf.

December 17, 2015.