Voiding Motherhood: North Carolina's Shortsighted Treatment of Subject Matter Jurisdiction in Boseman v. Jarrell

I. INTRODUCTIONMichelle and Sarah are social workers in North Carolina who fell in love in 2004 and have been a committed couple ever since.1 In 2007, they decided to have a baby.2 Michelle became pregnant via artificial insemination and their son Thomas (named for Sarah's beloved grandfather) was born in 2008.3 Since same-sex marriage is not a legal option in North Carolina (and even if it were, it would only provide a presumption of legal parenthood for Sarah), Michelle and Sarah began discussing ways that Sarah could legally formalize her status as Thomas's mother.4 They discovered second-parent adoption, and decided to wait until their family was complete before undertaking the somewhat costly process.5 Two years later, in 2010, Michelle gave birth to Thomas's younger sister Lottie.6 In December 2010, before Sarah completed the adoption process and finalized a legal relationship with her children, the Supreme Court of North Carolina, in Boseman v. Jarrell, voided a finalized second-parent adoption.7 This denied future access to the second-parent adoption process in the state, absent legislative action.8 North Carolina stands alone as the only state in the country that has retroactively voided a final second-parent adoption on subject matter jurisdictional grounds, although it is now one of several states that deny access to the process prospectively.9This Comment argues that North Carolina erred when it voided a final second-parent adoption on subject matter jurisdictional grounds, and further advocates that the state should allow second-parent adoptions using the well-established "best interests of the child" standard.10 Part II examines the state-specific evolution of second-parent adoption law.11 Part II also identifies and explains the historic jurisdictional deference that state courts are afforded in the adoption arena and contrasts second-parent adoptions that have been challenged on subject matter jurisdictional grounds in various states.12 Part III argues that the Supreme Court of North Carolina wrongly stripped lower courts of the ability to hear second-parent adoption cases, contradicting the state's adoption statutes and decades of jurisprudence on subject matter jurisdiction.13 Part III further advocates that the North Carolina General Assembly should act to repudiate the Supreme Court of North Carolina's decision and clarify its adoption statutes by explicitly permitting second-parent adoptions using the established best interests of the child standard as a rationale for the change.14 Part IV suggests that in amending state adoption statutes to allow for second-parent adoption, the legislature would act in the best interests of society as well as the child.15 Finally, Part V concludes that by stripping the state's lower courts of subject matter jurisdiction to hear second-parent adoption cases, the Supreme Court of North Carolina erred as a matter of law and public policy and the legislature should act to remedy the court's error.16II. BACKGROUNDA. The Evolution of Second-Parent Adoption in the StatesThe institution of adoption is strictly a creation of statute, with the primary purpose of "creat[ing] a legal connection between an adoptive parent and child who are not biologically related, thereby conferring on each legal rights and obligations that did not previously exist between them."17 As a general rule, before a child can be adopted, the parental rights of the child's biological parents must be terminated.18 Most states recognize one exception to this 'cut-off' provision: a stepparent's ability to adopt his or her spouse's child without necessitating a termination of the remaining parent's parental rights.19Another exception that has gained attention in the last two decades, called second-parent adoption, is seen as an extension of the stepparent exception, and allows a same-sex partner to adopt his or her partner's biological child without a termination of the biological parent's parental rights. …