# Amicus Curiae Brief — V.L. v. E.L., 136 S. Ct. 1017 (2016) (No. 15-648) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0632%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2016 ## Text ¥ 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 jeaytin LETH mee 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 > 33 a3 43}? : 2932 fize Har t sty ae rife Hit aceatos os elaptos hed on ti iit He nd i vadtscs i i 23s virtually any kind of collateral attack on an adoption has passed Ala Code §26 10A 2544) {3 Ale Jef Het | il move yn yw tt ssetectinn dikteen oho have : se ‘if ne Hn i83] att iF us Ht tH beeome bonded to » parent from the trauma of sepa t B ii ii 3 Work 4.177, 182 (908: W Androw Alan Srowle, Cs * : * ' | il 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0632%3A09. Public record. Not legal advice.