Under the United States Constitution’s Full Faith and Credit Clause, a state court is supposed to recognize the judgments of courts from other states unless those courts did not have jurisdiction over the parties or the subject matter of the case. Asked to rule on whether an Alabama court must recognize a Georgia adoption decree involving a same-sex couple, however, the Alabama Supreme Court manufactured a jurisdictional issue in order to reverse a ruling by Alabama’s Court of Civil Appeals and deny recognition to the Georgia adoption. As a result, the child’s adoptive mother, identified in court papers as V.L., will be denied visitation with the children she had been raising with her former partner.
The court issued its September 18 decision in E.L. v. V.L. “per curiam,” which means that none of the justices is credited with writing the opinion. Justice Greg Shaw was the sole dissenter, arguing that there was no jurisdictional issue in the case and that the court was required to recognize the adoption. Justice Tom Parker wrote a brief separate opinion that seemed largely beside the point.
The women were involved in a relationship for six years during which they resided in Alabama. They decided to have children through donor insemination. E.L. gave birth to one child in 2002 and twins in 2004. Following their birth, V.L. acted as a parent to the children along with E.L. The women decided jointly to have V.L. adopt the children as a co-parent, but that was impossible in Alabama at that time. They learned through friends in Georgia that the Fulton County Superior Court had granted second-parent adoption petitions, and the only thing that stood in their way was a six month residency requirement. They rented a place in Georgia to establish residency, proceeded through the formal adoption procedures, and obtained an adoption decree on May 30, 2007, after which they resumed full-time residency in Alabama. Subsequently they obtained new birth certificates for the children listing V.L. as a parent, presumably by showing the adoption decree to the appropriate Alabama clerk to obtain the new birth certificates.
The women ended their relationship in November 2011. V.L. moved out of the home they had shared. E.L. eventually denied V.L. further access to the children. V.L. brought the Georgia adoption decree to the Jefferson (Alabama) Circuit Court, asking to have it registered and to get a declaration of her legal parental rights, including “some measure of custody of or visitation with the children.” Her case was transferred to the Jefferson Family Court. E.L. moved to dismiss the case, but the family court denied her motion without a hearing, awarding V.L. visitation rights. E.L. filed various motions seeking to upset this ruling, which were all denied by the family court.
E.L. then appealed to the Alabama Court of Civil Appeals, which rejected most of her arguments but agreed that the family court should have given E.L. a hearing on the “best interest of the children” before denying her motion to dismiss the case. E.L., observing that the Court of Civil Appeals’ ruling had implicitly rejected her argument that the Georgia adoption was invalid, sought to appeal that part of the ruling. The Alabama Supreme Court agreed to review it. In its September 18 ruling, the Supreme Court reversed the lower appeals court, concluding that Alabama was not required to give full faith and credit to the Georgia adoption decree.
In order to refuse to recognize the Georgia adoption, the Alabama court had to find either that the Fulton Family Court lacked jurisdiction over this family or over the subject matter of the adoption proceeding. E.L. contended that the women had not really established residence in Georgia. Although they rented a place, she contended, they had not actually moved there, as they had jobs in Alabama and had retained their residence there, just spending a few days in the Georgia house in order to create the appearance of residency and to be there when child welfare officials came to interview the family as part of the adoption proceeding. She also argued that despite Jefferson Superior Court’s ruling, Georgia’s adoption statute did not allow for second-parent adoptions, so the court did not have the power to approve such an adoption.
The Alabama Supreme Court embraced the objection to subject matter jurisdiction.
E.L. argued that the Georgia adoption statute did not apply to this adoption proceeding because the statute conditions the court’s authority to grant an adoption by a “third party” on a finding that “each living parent or guardian of the child has surrendered or had terminated all his rights to the child in the manner provided by law prior to the filing of the petition for adoption.” The Georgia Supreme Court has never addressed this issue, but the Alabama Supreme Court premised its ruling on a dissenting opinion by one justice of the Georgia Supreme Court from that court’s decision to deny review in a case involving a second-parent adoption. The Alabama court insisted that the dissenting Georgia justice’s opinion provided “the proper analysis” of the Georgia adoption statute, and insisted that “a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply” with the adoption statute.
The argument in the Alabama Supreme Court boiled down to the question whether E.L. was challenging the “merits” of the Georgia adoption decision or the “jurisdiction” of the Georgia family court to grant the adoption. Under the Full Faith and Credit Clause, the Alabama court may not inquire into the “merits” of the adoption decision, but may refuse to recognize it if the Georgia court did not have “jurisdiction” to issue the adoption decree.
Wrote the Alabama justices, “E.L. argues that the Georgia court could properly exercise subject-matter jurisdiction only when the requirements of the Georgia adoption statutes were met, and, in this case, they were not, she argues, because those statutes made no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents. E.L.’s argument regarding the Georgia adoption statutes appears to be correct,” the court said, citing the dissenting opinion by the sole Georgia justice who had voted to review a case that his colleagues decided not to review. Thus, the Alabama court concluded, the court “erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.” The court went on to find that this error was jurisdictional, not just a misinterpretation of the statute by the Georgia Superior Court. Since E.L. had not agreed to terminate her parental rights, wrote the court, “the Georgia court was not empowered to enter the Georgia judgment” and thus “lacked subject-matter jurisdiction” to enter that judgment. “The Georgia judgment is accordingly void,” wrote the court, “and the full faith and credit clause does not require the courts of Alabama to recognize that judgment.”
Justice Parker’s “special concurrence” stressed that under Alabama law there is no “right to adopt” but rather a “privilege” to do so on terms set by the state. He invoked a 2004 decision by the U.S. Court of Appeals for the 11th Circuit upholding Florida’s ban on gay adults adopting children (a ban that has since been struck down by the Florida state courts) to support his argument that Alabama has a legitimate interest “in encouraging a stable and nurturing environment for an adopted child by encouraging that the child be raised in the optimal family structure with both a father and a mother.” What this has to do with the matter before the Alabama Supreme Court in this case is unfathomable, since it is about recognizing a second-parent adoption that took place several years ago. Refusing to recognize it will not result in these children being raised in a different-sex household.
Justice Shaw’s dissent is clear and to the point. “The main opinion reviews the merits of the adoption in this case,” he wrote; “our case law, interpreting the United States Constitution, does not permit this Court to do so.” The provision in the Georgia adoption statute that the Alabama Supreme Court invoked “speaks to the merits of whether the adoption should be granted — not to whether the trial court obtains subject-matter jurisdiction.” Georgia statutes give the Georgia Superior Court jurisdiction “in all matters of adoption.” “This would include adoption matters where the petitioners fail to ‘satisfy’ the court that the requisites for an adoption were met,” he wrote, quoting a Georgia Supreme Court ruling on “subject-matter jurisdiction” as meaning authority to decide “the class of cases to which that particular case belongs.”
“The adoption petition in the instant case,” he wrote, “whether meritorious or not, was part of the class of cases within the Georgia court’s jurisdiction to decide. The fact that the adoption should not have been granted does not remove the case from the class of cases within that court’s power.” While Shaw would “tend to agree” that on the merits the Georgia Superior Court erred by construing Georgia’s adoption statute to allow this adoption, that was irrelevant to a full faith and credit analysis. “Our case law prohibits an inquiry into the merits of a foreign judgment,” he insisted. “Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would not arguably create a defect in that court’s subject-matter jurisdiction.”
Ironically, it appeared that E.L.’s stronger argument, if it could be proved in a trial, would be that the women had never met the residency requirement because they had failed to actually live in the rented premises for six months before filing the adoption petition. But had the Alabama Supreme Court taken that route, the case would have to be sent back to the Jefferson Family Court to litigate the residency question, and if V.L. made the strong argument, the adoption would be recognized. By taking the more convoluted jurisdictional route, the Alabama Supreme Court arguably precluded the recognition of any Georgia second-parent adoptions, and also provided a theoretical basis for challenging the validity of adoptions from other states whose statutes did not clearly authorize them.
The National Center for Lesbian Rights represents V.L. together with Alabama lawyers Heather Fann and Traci Vella. Although they criticized the Alabama Supreme Court’s ruling, it was unclear whether V.L.’s lawyers would try to get the U.S. Supreme Court to review it. That court has turned down prior requests to review lower court rulings on gay adoption issues, most prominently in a 5th Circuit case where the court of appeals refused to order Louisiana to recognize the New York adoption of a Louisiana-born child by a New York couple for purposes of getting a proper birth certificate for the adopted child. In that case, the 5th Circuit held that federal district courts do not have authority to order state government officials to recognize out-of-state adoptions, opining that such “recognition” cases had to be brought in the state courts. V.L. followed the state court route, at first with success, but ultimately encountered the outspokenly anti-gay Alabama Supreme Court, which is also now considering a motion by a county probate judge for a ruling that the state does not have to comply with the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges.