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No. 416PA08-2 FIFTH DISTRICT SUPREME COURT OF NORTH CAROLINA

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					No. 416PA08-2                                        FIFTH DISTRICT

                SUPREME COURT OF NORTH CAROLINA

            ********************************************

JULIA CATHERINE BOSEMAN,              )
     Plaintiff                        )
                                      )
      v.                              )
                                      )
MELISSA ANN JARRELL,                  )
    Defendant                         )
                                      )
and                                   )
                                      )   From New Hanover County
MELISSA ANN JARRELL,                  )         07-CVD-625
    Third-Party Plaintiff             )         COA08-957
                                      )
      v.                              )
                                      )
JULIA CATHERINE BOSEMAN               )
and                                   )
NORTH CAROLINA DEPARTMENT             )
OF HEALTH AND HUMAN                   )
SERVICES,                             )
     Third-Party Defendants           )
                                      )

           ********************************************
  BRIEF OF AMICI THE EVAN B. DONALDSON ADOPTION INSTITUTE,
   THE NATIONAL CENTER FOR ADOPTION LAW AND POLICY, THE
BARTON CHILD LAW & POLICY CENTER, THE CENTER FOR ADOPTION
 POLICYAND PROFESSORS KATHARINE T. BARTLETT, NAOMI CAHN,
    JUNE CARBONE, JOAN H. HOLLINGER, MAXINE EICHNER AND
         BARBARA WOODHOUSE IN SUPPORT OF APPELLEE
           ********************************************



                                  i
                                               INDEX

TABLE OF CASES AND AUTHORITIES.............................................................iv

INTRODUCTION .....................................................................................................1

STATEMENT OF INTEREST OF AMICI CURIAE...............................................2

ARGUMENT AND AUTHORITY...........................................................................8

        I. RECOGNITION OF ADOPTIONS BY A SECOND PARENT IN
           APPROPRIATE CASES FULFILLS THE BASIC PURPOSE OF
           NORTH CAROLINA ADOPTION LAWS: TO PROTECT THE
           WELFARE AND BEST INTERESTS OF CHILDREN............................8

                 A. Adoptions by a Second Parent Provide Material Benefits to
                    Children as well as Legal Protection of Healthy and
                    Beneficial Parent-Child Relationships...........................................10

                 B. Adoptions by a Second Parent Provide Children with
                    Significant Psychological Advantages...........................................12

                          i.       The Formation of Parent-Child Attachments is
                                   Critical to a Child’s Healthy Development ....................13

                          ii.      Attachment Relationships Develop Despite the
                                   Absence of a Biological or Legal Connection
                                   Between the Parent and Child ........................................15

                          iii.     Sexual Orientation is Irrelevant to the
                                   Development of Strong Attachment Bonds ...................16

                          iv.      Children Experience Severe Emotional and
                                   Psychological Harm when their Attachment
                                   Relationships are Severed ..............................................20




                                                        ii
        II. OTHER STATES WITH LAWS SIMILAR TO NORTH
           CAROLINA’S HAVE RECOGNIZED THAT IT IS IN A
           CHILD’S BEST INTEREST TO UPHOLD AN ADOPTION BY A
           SECOND PARENT ..................................................................................24

                 A. Courts Construe Adoption Statutes According to Legislative
                    Mandates to Provide for Children’s Best Interest..........................24

                 B. Courts Have Found No Legitimate State Interests Supporting
                    Denial of a Parent’s Ability to Provide His or Her Child with
                    a Second Legal Parent and Ample State Interest Supporting
                    Such Adoptions ..............................................................................26

                 C. Courts Recognize Their Obligations to Apply Adoption Law
                    to Reflect the Reality of Children’s Lives and to Avoid
                    Absurd and Unjust Results.............................................................28

CONCLUSION........................................................................................................34

CERTIFICATE OF SERVICE ................................................................................35




                                                    iii
                     TABLE OF CASES AND AUTHORITIES

                                           CASES

Adoptions of B.L.V.B. and E.L.V.B.,
160 Vt. 368, 628 A.2d 1271 (1993)................................................................... 26-30

Adoption of M.A., 930 A.2d 1088 (Me. 2007).........................................................12

Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993) ........................... 26-27

Goodson v. Castellanos, 214 S.W.3d 741 (Tex. App. 2007) ............................ 31-32

Ikerd v. R. R., 209 N.C. 270, 183 S.E. 402 (1936) ..................................................30

In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).......................... 25-26

In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004)........... 26-27, 29-31

In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002)................................30

In re Adoption of Two Children by H.N.R.,
666 A.2d 535 (N.J. App. Div. 1995) ........................................................... 25, 28-29

In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001)......................................... 28, 31-32

In re Jacob, 86 N.Y.2d 651, 660 N.E.2d 397 (N.Y. 1995) ..................... 9, 25-26, 32

In re K.M., 271 Ill. App. 3d 189, 653 N.E.2d 888 (1995) .......................................25

In re M.M.D & B.H.M., 662 A.2d 837 (D.C. 1995) .......................................... 26-27

In re Petition of K.M. and D.M.,
274 Ill. App. 3d 189, 653 N.E.2d 888 (1995)..........................................................26

King v. Baldwin, 276 N.C. 316, 172 S.E.2d 12 (1970) ...........................................30

Sharon S. v. Superior Court, 31 Cal.4th 417, 73 P.3d 554 (2003).............. 25, 27-28


                                               iv
State v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936).........................................30

Trimble v. Gordon, 430 U.S. 762 (1977).................................................................29

Troxel v. Granville, 530 U.S. 57 (2000) ....................................................................8



                           STATUTES, CODES & TREATESES

82 C. J. S. STATUTES §§ 316, 323, 325, 344 (1953) ................................................30

N.C. GEN. STAT. § 48-1-100(b)(1)..........................................................................9

N.C. GEN. STAT. § 48-1-100(c) ..............................................................................9

N.C. GEN. STAT. § 48-1-100(d) ..............................................................................9

N.C. GEN. STAT. § 48-3-601 .................................................................................30

N.C. GEN. STAT. § 48-3-602 .................................................................................30



                                       BOOKS & REPORTS

JOHN BOWLBY, ATTACHMENT (2d ed., 1982) ..........................................................13

JOSEPH GOLDSTEIN, ET AL., BEYOND THE BEST INTERESTS OF THE CHILD
(2d ed., 1979) .....................................................................................................15, 20

WILLIAM HODGES, INTERVENTIONS OF CHILDREN OF DIVORCE: CUSTODY,
ACCESS, AND PSYCHOTHERAPY (2d. ed., 1991)........................................................21

BEVERLY JAMES, HANDBOOK FOR TREATMENT OF ATTACHMENT-TRAUMA
PROBLEMS IN CHILDREN (Free Press 1994)..............................................................13

MELVIN KONNER, CHILDHOOD (Little Brown & Co. 1991).....................................13


                                                       v
BARBARA M. MCCANDLISH, AGAINST ALL ODDS: LESBIAN MOTHER FAMILY
DYNAMICS, IN GAY AND LESBIAN PARENTS (Frederick W. Bozett ed., 1987).........19

NAT’L RESEARCH COUNCIL & INST. OF MEDICINE, FROM NEURONS TO
NEIGHBORHOODS: THE SCIENCE OF EARLY CHILDHOOD DEVELOPMENT
(Jack P. Shonkoff & Deborah A. Phillips, Eds., 2000) ......................... 13-15, 20, 22

CHARLOTTE J. PATTERSON, GAY FATHERS, IN THE ROLE OF THE FATHER IN
CHILD DEVELOPMENT (Michael E. Lamb ed., 4th ed., 2004) ..................................18

ADAM P. ROMERO, AMANDA K. BAUMLE, M.V. LEE BADGETT, AND GARY J.
GATES, CENSUS SNAPSHOT (Williams Institute December 2007)...................... 10-11

DANIEL J. SEIGEL, THE DEVELOPING MIND: TOWARD A NEUROBIOLOGY OF
INTERPERSONAL EXPERIENCE (Guilford Press 1999) ......................................... 13-14

TAVIA SIMMONS, AND MARTIN O'CONNELL, MARRIED-COUPLE AND
UNMARRIED-PARTNER HOUSEHOLDS: 2000 CENSUS 2000 SPECIAL REPORTS
(U.S. Census Bureau 2003)......................................................................................10

DAVID SMITH AND GARY J. GATES, GAY AND LESBIAN FAMILIES IN THE
UNITED STATES: SAME-SEX UNMARRIED PARTNER HOUSEHOLDS (Human
Rights Campaign 2001) ...........................................................................................10

FIONA L. TASKER & SUSAN GOLOMBOK, GROWING UP IN A LESBIAN FAMILY:
EFFECTS ON CHILD DEVELOPMENT (Guilford Press 1997)................................. 22-23


                               PERIODICALS & ARTICLES

American Academy of Pediatrics, Family Pediatrics: Report of the Task
Force on the Family, 111 PEDIATRICS, 1541 (2003) ...............................................17

American Academy of Pediatrics, Technical Report: Coparent or Second-
Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 341 (2002) ...............16, 17

American Academy of Pediatrics: Committee on Early Childhood,
Adoption, and Dependent Care, Developmental Issues For Young Children
in Foster Care, 106 PEDIATRICS 1145 (2000) ...................................................14, 20

                                                   vi
Susanne Bennett, Is There a Primary Mom? Parental Perceptions of
Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20 CHILD
& ADOLESCENT SOC. WORK J. 159 (2003)......................................................... 15-16

John Bowlby, Attachment and Loss: Retrospect and Prospect, 52 AM. J.
ORTHOPSYCHIATRY 664 (1982)................................................................................20

A. Brewaeys, et al., Donor Insemination: Child Development and Family
Functioning in Lesbian Mother Families, 12 HUMAN REPRODUCTION 1349
(1997) ................................................................................................................. 18-19

James G. Byrne et al., Practitioner Review: The Contribution of Attachment
Theory to Child Custody Assessments, 46 J. OF CHILD PSYCHOL. AND
PSYCHIATRY 115 (2005).....................................................................................14, 22

Raymond W. Chan et al., Psychosocial Adjustment Among Children
Conceived Via Donor Insemination by Lesbian and Heterosexual Mothers,
69 CHILD DEV. 443 (1998).......................................................................................16

Frank J. Dyer, Termination of Parental Rights in Light of Attachment
Theory: The Case of Kaylee, 10 PSYCHOL. PUB. POL’Y & L. 5 (2004) ...................20

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 (2004)........................ 22-23

Susan Golombok et al., The European Study of Assisted Reproduction
Families: Family Functioning and Child Development, 11 HUMAN
REPRODUCTION 2324 (1996)....................................................................................19

Melissa Holtzman, Definitions of the Family as an Impetus for Legal
Change in Custody Decision Making: Suggestions from an Empirical Case
Study, 31 LAW & SOCIAL INQUIRY 1 (2006) ............................................................23

Joan B. Kelly & Michael E. Lamb, Using Child Development Research to
Make Appropriate Custody and Access Decisions for Young Children, 38
FAMILY & CONCILIATION COURTS REV. 297 (2000).......................................... 20-21



                                                        vii
Martha Kirkpatrick et al., Lesbian Mothers and Their Children: A
Comparative Study, 51 AM. J. ORTHOPSYCHIATRY 545 (1981)...............................23

Ana H. Marty, et al., Supporting Secure Parent-Child Attachments: The Role
of the Non-Parental Caregiver, 175 EARLY CHILDHOOD DEV. AND CARE 271
(2005) ...........................................................................................................16, 20, 22

Ellen C. Perrin, Committee on Psychosocial Aspects of Child and Family
Health, Technical Report: Coparent or Second-Parent Adoption by Same-
Sex Parents, 109 PEDIATRICS 341 (2002) .................................................... 11-12, 18

Leslie M. Singer et al., Mother-Infant Attachment in Adoptive Families,
56 CHILD DEV. 1543 (1985).....................................................................................15

Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of
Parents Matter?, 66 AMER. SOC. REV. 159 (2001) ........................................... 17-18

Rayford W. Thweatt, Divorce: Crisis Intervention Guided By Attachment
Theory, 34 AM. J. OF PSYCHOTHERAPY 240 (1980) .................................................21

Andrew L. Weinstein, Comment: The Crossroads of A Legal Fiction And
The Reality Of Families, 61 ME. L. REV. 319 (2009)..............................................11




                                                       viii
                            INTRODUCTION 1

      Jacob William Boseman-Jarrell has two legal parents—his biological

mother, Appellant Melissa Jarrell, and his adoptive mother, Appellee Julia

Boseman. Nearly five years ago, Appellant actively sought and voluntarily

consented to Jacob’s adoption by Appellee in order to ensure that he would

have a second parent and all the benefits and protections of a relationship

with both of his parents. 2 Appellant now asks this Court to set aside and

declare “void” the adoption decree that recognized Appellee Julia Boseman

as Jacob’s second parent. On the basis of our collective knowledge and

experience, Amici urge this Court to uphold the finality of the adoption order

at issue and affirm the appellate decision below.

      Amici Curiae (“Amici”) are non-profit organizations and individuals

dedicated to improving child welfare and adoption policy in North Carolina

and across the United States through research, policy development, teaching

and advocacy. Collectively, Amici possess an extraordinary breadth and


1
 Amici accept and adopt the Appellee’s Statement of the Case, Statement of
Questions Presented and Statement of Facts.
2
 Amici use the term “adoption by a second parent” to indicate an adoption
where a parent consents to their child’s adoption by the parent’s partner
while waiving their own right to be relieved of their parental rights and
obligations. Upon the court’s approval of the adoption, the child remains the
child of the first parent and becomes the child of the second parent.
                                      1
depth of knowledge about adoption and child welfare, conduct extensive

research focused on adoption by same-sex couples, promulgate national

standards for best practices in adoption services and are leaders in the field.

      Amici seek to provide the Court with the findings of social science

research on child development and the consensus of child welfare and

adoption experts that overwhelmingly supports the benefits for children of

having two legal parents. Amici will also show that this research and

professional consensus is consistent with the judicial interpretations of

adoption laws in a number of other states with statutory provisions similar to

those in North Carolina that have recognized the validity and benefits of

second parent adoptions.3

         STATEMENT OF IDENTITY AND INTEREST OF AMICI
                         CURIAE

      Amici are organizations and individuals with specialized knowledge

that should aid the Court in analyzing the legal issues in this case. Each of

the organizational amici work in the field of adoption and have expertise in

adoption, family and child welfare law and policy as set forth briefly below:

      The Evan B. Donaldson Adoption Institute (“Adoption Institute”) is a

national, non-profit organization devoted to improving adoption policy and
3
 For the purposes of brevity, Amici do not repeat the legal arguments set
forth in Appellee’s brief, which amici fully support, but instead focus on the
social science research supporting her position.
                                       2
practice. To achieve this goal, the Adoption Institute engages in research

regarding adoption, trains and educates child welfare professionals, and

advances public policies that support ethical, high quality adoption practices.

      The National Center for Adoption Law & Policy (“NCALP”) seeks to

improve the law, policies, and practices associated with child protection and

adoption systems through education, advocacy, and research. NCALP

conducts research on methods by which foster care and adoption processes

can be improved, and works to bring about these improvements through

legal and policy reform and by educating child welfare systems stakeholders

about ways to make adoption law support the best interests of children. In

2008, the NCALP was named an “Angel in Adoption” by the Congressional

Coalition on Adoption Institute for its outstanding advocacy on behalf of

children in the nation’s child welfare system. The outcome in this case is of

fundamental interest to NCALP because it believes that children deserve

healthy stable homes. NCALP advocates for laws, policies, and practices

that further this goal for all foster and adoptive children, including those

raised by or cared for by same-sex parents. NCALP believes that blanket

barriers to permanency based on sexual orientation, which are unsupported

by existing research, can compromise healthy outcomes and are not in the

best interests of children.

                                        3
      The Barton Child Law & Policy Center (“Barton Center”) is a

program of Emory Law School. Its work includes policy development and

implementation, legislative advocacy, systemic reform, collaborative efforts

with community groups and government agencies, training of professionals

and volunteers, and representation of child clients. The Barton Center

currently houses Barton Child Policy Clinic, Barton Legislative Clinic,

Barton Juvenile Defender Clinic and Barton A.P.P.E.A.L.S Clinic. Faculty

of the Center are experts in child welfare law, adoption law, juvenile justice,

education law and appellate practice. Barton is committed to the principle

that laws and policies regarding children must be evidence-based and must

promote the welfare and rights of children. It supports laws that promote

safety, well-being and permanency for all court-involved children, that

respect children’s rights, and that avoid unnecessary disruptions of

children’s family relationships. Legal services provided by the Barton

Center are provided at no cost to its clients. The work of the Barton Center

is funded by Emory Law School, private donations, grants from foundations,

and contracts with a variety of organizations.

      The Center for Adoption Policy (CAP) is a non-profit organization,

whose mission is to provide research, analysis, advice and education to

practitioners and the public about current legislation and practices governing

                                       4
ethical domestic and intercountry adoption in the United States, Europe,

Asia, Latin America and Africa. CAP is an independent entity. It is not

affiliated with any agency or entity involved in the placement of children.

      Professors Katharine T. Bartlett, A. Kenneth Pye Professor of Law,

and former Dean of Duke Law School; Naomi Cahn, John Theodore Fey

Research Professor of Law at The George Washington University Law

School; June Carbone, Edward A. Smith/Missouri Chair of Law, the

Constitution and Society at the University of Missouri at Kansas City;

Maxine Eichner, Professor of Law University of North Carolina School of

Law; Joan Heifetz Hollinger, Lecturer-in-Residence in Family Law,

University of California, Berkeley School of Law; Barbara Woodhouse,

L.Q.C. Lamar Professor of Law and Co-Director, Barton Child Law and

Policy Clinic, Emory University School of Law; are leading scholars in the

field of family, child welfare, and adoption law and policy. Each of the

professor amici have extensive scholarship and expertise that should aid the

Court, as noted briefly below:

      Professor Bartlett served as Dean of Duke Law School from 2000-

2007. At Duke, she teaches family law and publishes widely in the fields of

family law, gender theory, employment law, theories of social change, and

legal education. Bartlett served as a reporter for the American Law

                                      5
Institute’s Principles of the Law of Family Dissolution (2002), for which she

was responsible for the provisions relating to child custody.

      Professor Cahn teaches courses on family law, trusts and estates, and

child, family, and state at The George Washington University Law School.

She has published scholarship in the Duke Journal of Gender Law & Policy,

Georgetown Journal of Gender & Law, Harvard Journal of Law & Gender,

West Virginia Law Review, and William & Mary Bill of Rights Journal,

among others, on topics related to family law and reproductive technology.

      Professor Carbone writes extensively about the legal issues

surrounding marriage, divorce and family obligations, especially within the

context of the recent revolutions in biotechnology. She has co-authored the

third edition of Family Law (Aspen, 2005), and teaches Property, Family

Law, Assisted Reproduction and Bioethics at the University of Missouri-

Kansas City School of Law.

      Maxine Eichner is a Professor of Law at University of North Carolina

School of Law and an editor of the leading casebook on family law: Family

Law: Cases, Text, Problems. She is a former law clerk to Judge Louis

Oberdorfer, United States District Court for the District of Columbia, and

Judge Betty Fletcher, United States Court of Appeals for the Ninth Circuit.

      Professor Hollinger is the Reporter for the Uniform Adoption Act

                                      6
(1994) and is centrally involved in other legislative reforms, including the

Revised Uniform Parentage Act (2002) and the implementation of the Hague

Convention on Intercountry Adoption. She is the principal author of the

three volume Adoption Law & Practice (Lexis/Matthew Bender 1988-2009),

which is the premier treatise in adoption law, and of numerous other

scholarly articles on parentage and adoption law and policy. She has served

as amicus on behalf of children’s interests before many state and federal

appeals courts, including those that have recognized legal and economic

protections for children raised by same-sex parents.

      Professor Woodhouse is among the nation’s foremost experts on

children’s rights, having published more than 60 articles and book chapters

on child law, child welfare, comparative and international family law and

constitutional law. In addition to her chair at Emory University School of

Law, Woodhouse is co-director of the Barton Child Law and Policy Clinic at

Emory. She has also taught at the law schools of the University of

Pennsylvania and the University of Florida, where she was founder and

director of Levin College of Law’s Center on Children and Families. In OT

’84, Woodhouse was law clerk to Associate Justice Sandra Day O’Connor of

the U.S. Supreme Court.

      As individuals with expertise in children’s rights and the research on

                                       7
child development, Amici are particularly well-situated to assist this Court in

understanding the policy and legal implications of this case.

                     ARGUMENT AND AUTHORITY

   I. RECOGNITION OF ADOPTIONS BY A SECOND PARENT FULFILLS THE
   BASIC PURPOSE OF NORTH CAROLINA ADOPTION LAWS: TO PROTECT
   THE WELFARE AND BEST INTERESTS OF CHILDREN.

      The United States Supreme Court acknowledged the changing nature

of the American family when it observed that “[t]he demographic changes of

the past century make it difficult to speak for an average American family,”

and the “composition of families varies greatly from household to

household.” Troxel v. Granville, 530 U.S. 57, 63 (2000). Because states

have an interest in securing vital parent-child relationships for all the

children within their jurisdiction, many states, including North Carolina,

have expressly directed their courts to interpret their adoption statutes

liberally in order to serve the interests of children who are the subject of an

adoption petition. Assuming the standard statutory prerequisites, such as

notice and consent, are met, this approach assures that state adoption laws

can meet the needs of every child regardless of whether the legislature

anticipated the particular circumstances that may arise within individual

families. Although state legislatures may not have envisioned the precise

family structures at issue in many of today’s adoption cases, most state

                                        8
courts are empowered with sufficient flexibility to allow those adoptions that

will best serve children’s interests. Indeed, the very first statute in Chapter

48, Adoptions, expressly mandates that “[t]he primary purpose of this

Chapter is to advance the welfare of minors.” N.C. GEN. STAT. § 48-1-

100(b)(1). The courts have been instructed that, “[i]n construing this

Chapter, the needs, interests, and rights of minor adoptees are primary.”

N.C. GEN. STAT. § 48-1-100(c). Based on this unambiguous and

mandatory language, North Carolina adoption statutes must be construed in

a manner that places the welfare of children foremost. Moreover, the statute

directs that “This Chapter shall be liberally construed and applied to

promote its underlying purposes and policies.” N.C. GEN. STAT. § 48-1-

100(d) (emphasis added). Accordingly, North Carolina courts have the

authority and responsibility to construe and apply the adoption provisions in

conformity with these mandatory directives. As the New York Court of

Appeals aptly noted with respect to adoption law and statutory construction:

“What is to be construed strictly and applied rigorously in this sensitive area

of the law, however, is legislative purpose as well as legislative language.”

In re Jacob, 86 N.Y.2d 651, 657, 660 N.E.2d 397, 399 (N.Y. 1995).

      As explained below, adoption by a second parent provides critical

practical and emotional stability for North Carolina children, to the benefit

                                        9
of the individual children and the state as a whole. This Court should

continue to construe North Carolina’s adoption statutes to serve the needs of

children being raised in diverse family settings. The benefits that arise from

adoption by a second parent are wholly consistent with the purposes of

North Carolina’s adoption laws and should inform the Court’s analysis here.

         A. Adoptions by a Second Parent Provide Material Benefits to
            Children as well as Legal Protection of Healthy and
            Beneficial Parent-Child Relationships.

      Adoptions by a second parent are the only means by which children

raised by lesbian and gay couples in North Carolina may create the legal

relationships necessary to provide material benefits to the children they are

jointly raising. A significant number of these children reside in North

Carolina.4 More than 16,000 same-sex couples in North Carolina self-

reported as such in the 2000 U.S. Census -- a 720% increase from 1990.



4
 According to the 2000 U.S. Census, there are approximately 600,000 same-
sex couples in the United States. TAVIA SIMMONS, AND MARTIN O'CONNELL,
MARRIED-COUPLE AND UNMARRIED-PARTNER HOUSEHOLDS: 2000. CENSUS
2000 SPECIAL REPORTS (U.S. Census Bureau 2003). More than 30% of
these couples have at least one child, and over half of that 30% have two or
more children. Id. Thus, at least 200,000 children--possibly more than
400,000--in America (these numbers do not include single lesbian or single
gay parents) are being raised by parents who are same-sex couples. The
2000 U.S. Census also reported that lesbian and gay families live in 99.3%
of all U.S. counties. DAVID SMITH AND GARY J. GATES, GAY AND LESBIAN
FAMILIES IN THE UNITED STATES: SAME-SEX UNMARRIED PARTNER
HOUSEHOLDS (Human Rights Campaign 2001) (“HRC study”).
                                      10
ADAM P. ROMERO, AMANDA K. BAUMLE, M.V. LEE BADGETT, AND GARY J.

GATES, CENSUS SNAPSHOT (Williams Institute, December 2007).

      The needs of the children in these families and therefore the

importance of legal adoption by both parents of a same-sex couple cannot be

overstated. See, e.g., Andrew L. Weinstein, Comment: The Crossroads Of A

Legal Fiction And The Reality Of Families, 61 ME. L. REV. 319, 351 (2009).

Children need to know that their relationships with both parents are legally

stable. Ellen C. Perrin, Committee on Psychosocial Aspects of Child and

Family Health, Technical Report: Coparent or Second-Parent Adoption by

Same-Sex Parents, 109 PEDIATRICS 341, 342 (2002). Moreover, a child

ought to have the security that comes along with legal acknowledgment of

parental rights and responsibilities. Id.

      When the law recognizes two legal parents a child benefits in at least

the following six tangible ways: (1) the child is protected from losing his or

her only remaining parent if one parent dies or becomes incapacitated, such

that relatives of the deceased parent are not able to remove the child from

the care and custody of the second parent; (2) the child is able to maintain a

relationship with both parents if the couple separates; (3) the child is entitled

to receive child support from both parents if the couple separates; (4) the

child is guaranteed eligibility for health benefits from both parents; (5) the

                                       11
child has either or both parents available to make necessary and emergency

medical, educational, health care, or custodial decisions; and (6) the child

has more financial security in the event of the disability or death of either

parent because of the child’s entitlement to Social Security benefits and

other intestate and governmental benefits. Id.5

          B. Adoptions by a Second Parent Provide Children with
             Significant Psychological Advantages.

      Respecting the integrity of Jacob’s 2005 adoption order comports not

only with this State’s statutes and case law, but also with more than three

decades of social science research. This research has been conducted

pursuant to scientific methods and has been subject to critical review by

outside experts, typically during the peer review process that precedes

publication in a scholarly journal or approval of a position by a professional

organization). These findings demonstrate that protecting the relationship

between children and their parents is essential to children’s healthy

development and overall well-being, irrespective of the parents’ sexual

orientation or their biogenetic connection to the child.
5
 See also, Adoption of M.A., 930 A.2d 1088, 1097 (Me. 2007) (listing the
rights, responsibilities, and benefits of joint adoption to include: a continued,
certain relationship with an adoptive parent in the event of death of one of
the adoptive parents; the eligibility of the child for public and private
benefits such as Social Security, employment benefits, and intestate
inheritance (among others); and love, affection, and guidance from two
parents instead of one).
                                       12
             i.    The Formation of Parent-Child Attachments is
                   Critical to a Child’s Healthy Development

      Child development research overwhelmingly shows that children form

strong bonds of attachment to their parents early in life and these

attachments strengthen and develop as children grow older. See, e.g., JOHN

BOWLBY, ATTACHMENT (2d ed., 1982); MELVIN KONNER, CHILDHOOD 84-87

(Little Brown & Co. 1991). An “attachment relationship” is defined as a

“reciprocal, enduring, emotional, and physical affiliation between a child

and a caregiver” through which “children form their concepts of self, others

and the world.” BEVERLY JAMES, HANDBOOK FOR TREATMENT OF

ATTACHMENT-TRAUMA PROBLEMS IN CHILDREN 1-3 (Free Press 1994).

      The research findings illustrate that “what young children learn, how

they react to the events and people around them, and what they expect from

themselves and others are deeply affected by their relationships with

parents.” NAT’L RESEARCH COUNCIL & INST. OF MEDICINE, FROM NEURONS

TO NEIGHBORHOODS: THE SCIENCE OF EARLY CHILDHOOD DEVELOPMENT

226 (Jack P. Shonkoff & Deborah A. Phillips, Eds., 2000). Modern

developmental psychology and neurology confirm that attachment

relationships are the major environmental factors that shape the development

of the child’s brain during its period of maximal growth and create the


                                      13
central foundation of a child’s development. See DANIEL J. SEIGEL, THE

DEVELOPING MIND: TOWARD A NEUROBIOLOGY OF INTERPERSONAL

EXPERIENCE 67-120 (Guilford Press 1999); see also, American Academy of

Pediatrics: Committee on Early Childhood, Adoption, and Dependent Care,

Developmental Issues For Young Children in Foster Care, 106 PEDIATRICS

1145 (2000) (stating that “emotional and cognitive disruptions in the early

lives of children have the potential to impair brain development”).

      Among other things, “[attachment] relationships shape the

development of self-awareness, social competence, conscience, emotional

growth and emotion regulation, [and] learning and cognitive growth.” Nat’l

Research Council and Inst. of Medicine, supra, at 265; see also James G.

Byrne et al., Practitioner Review: The Contribution of Attachment Theory to

Child Custody Assessments, 46 J. OF CHILD PSYCHOL. AND PSYCHIATRY 115,

118 (2005) (finding that secure attachment relationships provide children

with a sense of emotional security, the ability to cope with stress, and

protection against harm).6




6
 See also American Academy of Pediatrics: Committee on Early Childhood,
Adoption, and Dependent Care, supra, at 1146 (“Attachment to a primary
caregiver is essential to the development of emotional security and social
conscience.”).
                                      14
             ii.   Attachment Relationships Develop Despite the
                   Absence of a Biological or Legal Connection Between
                   the Parent and Child

     Attachment bonds invariably develop regardless of whether the parent

and child are biologically linked. See JOSEPH GOLDSTEIN, ET AL., BEYOND

THE BEST INTERESTS OF THE CHILD     (2d ed., 1979); see also Leslie M. Singer

et al., Mother-Infant Attachment in Adoptive Families, 56 CHILD DEV. 1543

(1985). In fact, what determines whether a child develops an attachment

relationship is not biology but whether the adult who is parenting the child:

      on a continuing, day-to-day basis, through interaction,
      companionship, interplay, and mutuality, fulfills the child’s
      psychological needs for a parent, as well as the child’s physical
      needs. The psychological parent may be a biological, adoptive,
      foster, or common-law parent, or any other person.

Goldstein, supra at 98. See also National Research Council and Institute of

Medicine, supra, at 234 (“[C]riteria for identification of attachment

figures…[include] provision of physical and emotional care, continuity or

consistency in the child’s life, and emotional investment in the child.”).

      It is the quality and nature of the interaction between parent and child,

not any genetic connection, which creates and sustains these attachment

relationships that have such a critical impact on a child’s development. See

Susanne Bennett, Is There a Primary Mom? Parental Perceptions of

Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20 CHILD

                                      15
& ADOLESCENT SOC. WORK J. 159, 161 (2003) (“[T]he nature of the

interaction…is more important than the person’s legal or biological tie to the

child.”); Ana H. Marty, et al., Supporting Secure Parent-Child Attachments:

The Role of the Non-Parental Caregiver, 175 EARLY CHILDHOOD DEV. AND

CARE 271, 273 (2005) (“[T]he quality of [children’s] attachment

relationships is dependent on the nature of the interactions with their parents

or other caregivers.”). 7

             iii.   Sexual Orientation is Irrelevant to the Development
                    of Strong Attachment Bonds

      The resounding consensus among the country’s leading pediatric,

psychological, psychiatric and child welfare service providers and scholars

is that children raised by gay and lesbian parents are as well adjusted and as

psychologically, emotionally, educationally, and socially successful as




7
  See also American Academy of Pediatrics, Technical Report: Coparent or
Second-Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 341 (2002)
(finding that “[c]hildren’s optimal development seems to be influenced more
by the nature of the relationships and interactions within the family unit than
by the particular structural form it takes”); Raymond W. Chan et al.,
Psychosocial Adjustment Among Children Conceived Via Donor
Insemination by Lesbian and Heterosexual Mothers, 69 CHILD DEV. 443,
454 (1998) (“[O]ur results are consistent with the general hypothesis that
children’s well-being is more a function of parenting and relationship
processes within the family…[than] household composition or demographic
factors.”).
                                      16
children of heterosexual parents.8 Studies have also concluded that a

parent’s sexual orientation is immaterial to the formation and importance of

children’s attachments, and children are just as likely to form close bonds

with lesbian or gay parents. The American Academy of Pediatrics, Family

Pediatrics: Report of the Task Force on the Family, 111 PEDIATRICS, 1541,

1550 (2003) (“Research has found that parental sexual orientation per se has

no measurable effect on the quality of parent-child relationships...”).

“[E]very relevant study to date shows that parental sexual orientation per se

has no measurable effect on the quality of parent-child relationships or on
8
  See, e.g., American Academy of Pediatrics, Technical Report: Coparent
or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 341
(2002); American Psychiatric Association (“APA”), Adoption and Co-
parenting of Children by Same-sex Couples: Position Statement (2002), at
http://www.psych.org/du/other_res/lib_archives/archives/200214.pdf (“APA
Position Statement”); American Psychological Assotiation, Resolution on
Sexual Orientation, Parents, and Children (2004), at
http://www.apa.org/pi/lgbc/policy/parentschildren.pdf (formalizing
conclusion previously reached in Lesbian and Gay Parenting: A Resource
for Psychologists, at http:/www.apa.org/pi/parent.html (1995)); American
Academy of Child and Adolescent Psychiatry, Policy Statement: Gay,
Lesbian, and Bisexual Parents (1999), at
http://www.aacap.org/publications/policy/ps46.htm; CWLA,
Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual
Adults (2005), at http://www.cwla.org/programs/culture/glbtqposition.htm
(“CWLA Position Statement”) (reaffirming prior opposition to assessing
adopting applicants on their sexual orientation, which was incorporated into
the 2000 Standards); NASW, Social Work Speaks: Policy Statements 2000-
03, 194 (2000) (“NASW Policy Statement”); NACAC, Position Statement
on Eliminating Categorical Restrictions in Foster Care and Adoption
(2007), at http://www. nacac.org/policy/positions.html#eliminating
(“NACAC Position Statement”).
                                      17
children’s mental health or social adjustment . . . .” Judith Stacey &

Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66

AMER. SOC. REV. 159, 176 (2001). There are, in fact, studies that show that

there are particular advantages for children with two lesbian mothers, id. at

p. 174, and that gay fathers are no different than heterosexual fathers “in

providing appropriate recreation, encouraging autonomy, or dealing with

general problems of parenting.” Perrin, supra; see also CHARLOTTE J.

PATTERSON, GAY FATHERS, IN THE ROLE OF THE FATHER IN CHILD

DEVELOPMENT, 397, 412 (Michael E. Lamb ed., 4th ed., 2004) (“[T]here is

no reason for concern about the development of children living in the

custody of gay fathers; on the contrary, there is every reason to believe that

gay fathers are as likely as heterosexual fathers to provide home

environments in which children grow and flourish.”).

      Where both same-sex parents participate in the child’s upbringing, the

child will form a significant attachment relationship with each parent. A

study evaluating child development in lesbian families found that:

      both women in the lesbian mother family were actively
      engaged in child care and a strong mutual attachment had been
      developed between [the non-biological] mother and the child.
      It seems therefore at odds with reality to consider a lesbian
      household as a single mother family unit.



                                      18
A. Brewaeys, et al., Donor Insemination: Child Development and Family

Functioning in Lesbian Mother Families 12 HUMAN REPRODUCTION 1349,

1356 (1997). Likewise, a clinical evaluation of preschool children of lesbian

couples determined that when both women in the relationship care for a

child, the child becomes attached to both. BARBARA M. MCCANDLISH,

AGAINST ALL ODDS: LESBIAN MOTHER FAMILY DYNAMICS, IN GAY AND

LESBIAN PARENTS 23-38 (Frederick W. Bozett ed., 1987).

      As with heterosexual parent relationships, the fact that Jacob is not

biologically linked to Boseman does not affect his attachment relationship.

See Brewaeys, supra, at 1354 (“[A]mong the lesbian mothers, the quality of

the parent-child interaction [does] not differ significantly between the

biological and the [non-biological] mother.”); Susan Golombok et al., The

European Study of Assisted Reproduction Families: Family Functioning and

Child Development, 11 HUMAN REPRODUCTION 2324, 2330 (1996) (finding

that the lack of a genetic link between one or both same-sex parents and the

child did not have negative consequences for parent-child relationships).

Indeed, here, the lower court made extensive factual findings demonstrating

the strong parental attachment between Jacob and Appellee. See R. p. 253-

54. Appellant herself “readily admits that [Boseman] is a very good parent

who loves Jacob and Jacob loves her.” R. p. 254 ¶ 35.

                                      19
             iv.    Children Experience Severe Emotional and
                    Psychological Harm when their Attachment
                    Relationships are Severed

      Continuity of the parent-child attachment relationship is essential to a

child’s healthy development and overall well-being. Goldstein, supra, at 31

-33; see Marty, supra, at 274 (“[T]he quality of the attachment has profound

effects on the child’s social adjustment.”); Am. Acad. of Pediatrics:

Committee on Early Childhood, Adoption, and Dependent Care, supra, at

1145 (“Paramount in the lives of . . . children is their need for continuity

with their primary attachment figures.”); Nat’l Research Council and Inst. of

Med., supra, at 265; John Bowlby, Attachment and Loss: Retrospect and

Prospect, 52 AM. J. ORTHOPSYCHIATRY 664, 665-66 (1982).

      Numerous empirical findings “provide a solid research basis for

predictions of long term harm associated with disrupted attachment

[relationships].” Frank J. Dyer, Termination of Parental Rights in Light of

Attachment Theory: The Case of Kaylee, 10 PSYCHOL. PUB. POL’Y & L. 5, 11

(2004); see also Am. Acad. of Pediatrics: Committee on Early Childhood,

Adoption, and Dependent Care, supra, 15 at 1146 (“Interruptions in the

continuity of a child’s caregiver are often detrimental”); Joan B. Kelly &

Michael E. Lamb, Using Child Development Research to Make Appropriate

Custody and Access Decisions for Young Children, 38 FAMILY &

                                       20
CONCILIATION COURTS REV. 297, 303 (2000) (explaining that “relationships

with parents play a crucial role in shaping children’s social, emotional,

personal, and cognitive development, and there is a substantial literature

documenting the adverse effects of disrupted parent-child relationships on

children’s development and adjustment”).

      When a child’s attachment relationship with a parent has been forcibly

severed, the psychological impact on the child can be astounding.

      Young children typically have operated on the assumption that
      they could depend on the predictable availability of both
      parents. When that assumption proves incorrect, a child may
      question many other assumptions about the world; for example,
      whether he or she can count on the availability of any parent.
      Such concerns lead to insecure or avoidant attachment,
      interference with healthy object relations, and reorganization of
      cognitive understandings. The egocentrism of young children
      may lead them to conclude that a parent’s absence is due to
      their own unlovability. Thus, abandonment by a noncustodial
      parent is a particularly devastating experience.

WILLIAM HODGES, INTERVENTIONS OF CHILDREN OF DIVORCE: CUSTODY,

ACCESS, AND PSYCHOTHERAPY 8-9 (2d. ed., 1991); see also Rayford W.

Thweatt, Divorce: Crisis Intervention Guided By Attachment Theory, 34

AM. J. OF PSYCHOTHERAPY 240, 241 (1980) (explaining that upon separation

from an attachment figure, children experience “a predictable sequence of

behavior with four phases: denial, protest, despair, and detachment”).



                                      21
      For example, interference with children’s attachment relationships can

lead to “aggression, fearful relationships, academic problems in school,

and...elevated psychopathology.” Marty, supra, at 274; see also Byrne,

supra, at 118 (“[T]hreats to or disruptions in the attachment

relationships...lead to fear/anxiety.”); Nat’l Research Council and Inst. of

Medicine, supra, at 265 (“[A]ttachments buffer young children against the

development of serious behavior problems, in part by strengthening the

human connections and providing the structure and monitoring that curb

violent or aggressive tendencies.”).

      The research demonstrates that the “extreme distress” experienced by

a child upon termination of an attachment figure’s regular and customary

role as a parent will occur even where there is no biological connection

between them. See FIONA L. TASKER & SUSAN GOLOMBOK, GROWING UP IN

A LESBIAN FAMILY: EFFECTS ON CHILD DEVELOPMENT          12 (Guilford Press

1997); 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, 394 (2004)




                                       22
(explaining that children suffer greatly when separated from non-biological

parent figures).9

      Specific research on children in lesbian households demonstrates the

same need for continuity, and resulting harm from disruption of attachment

relationships, as that manifested in children of heterosexual parents. See,

e.g., Tasker, supra, at 12 (twenty-year longitudinal study in the United

Kingdom which found that cessation of the parent-child bond between a

child and a lesbian non-biological parent “can cause the [child] extreme

distress”). Researchers have found that, when lesbian couples separate, the

children mourn for the absent caretaker just as they would for an absent

biological or married parent after separation. See Martha Kirkpatrick et al.,

Lesbian Mothers and Their Children: A Comparative Study, 51 AM. J.

ORTHOPSYCHIATRY 545, 547-51 (1981).

      By every measure, adoptions by a second parent benefit children by

making them safer, more secure, more protected, and less vulnerable to the

deleterious consequences of the loss of a parent to whom the children have

become emotionally and psychologically attached. The best interest of
9
  See also Melissa Holtzman, Definitions of the Family as an Impetus for
Legal Change in Custody Decision Making: Suggestions from an Empirical
Case Study, 31 LAW & SOCIAL INQUIRY 1, 2-3 (2006) (“[W]here
nonbiological attachments already exist, it is not to the child’s benefit to
sever either those ties or the biological ties in order to satisfy the demands of
exclusive parenthood.”).
                                       23
Jacob, the child who is at the heart of this case, requires that the final

adoption order granting him a second legal parent continues to be upheld.

   II.      OTHER STATES WITH LAWS SIMILAR TO NORTH CAROLINA’S
            HAVE RECOGNIZED THAT IT IS IN A CHILD’S BEST INTEREST TO
            UPHOLD AN ADOPTION BY A SECOND PARENT.

         As discussed above, social science research overwhelmingly shows

that it is in the best interest of children to protect and maintain their

established attachment relationships. It is critical to children’s development,

psychological health, and general well-being to foster and promote, rather

than sever, parental attachments, whether or not the parent is biologically

related, and whether or not the parents are same-sex or heterosexual.

Consistent with the research cited above, courts from sister jurisdictions

construing similar adoption laws have found that it is in a child’s best

interest to allow a parent to provide his or her child with a second legal

parent through adoption.

            A. Courts Construe Adoption Statutes According to
               Legislative Mandates to Provide for Children’s Best
               Interest.

         With the overwhelming amount of social science research, experts and

organizations concluding that adoptions by second parents are in children’s

best interest, other courts faced with the question of whether to allow parents

access to the adoption process to provide their children with a second legal

                                        24
parent have first recognized that adoption laws are purely statutory and that

the rule of strict statutory construction generally applies. However, in case

after case, these courts also recognized that the strict construction rule is

applied first to the legislative mandate that the provisions be construed

liberally to effect each of the adoption law’s primary purpose of protecting

and providing for the welfare of children. For example, the court in In re

Jacob, 86 N.Y.2d 651, 660 N.E.2d 397 (N.Y. 1995), recognized that

adoption was “solely the creature of …statute” and that “in strictly

construing the adoption statute, our primary loyalty must be to the statute’s

legislative purpose--the child’s best interest.” Id. at 399; see also, In re

Adoption of Two Children by H.N.R., 666 A.2d 535, 538 (N.J. App. Div.

1995); Sharon S. v. Superior Court, 31 Cal.4th 417, 73 P.3d 554, 560

(2003); In re K.M., 271 Ill. App. 3d 189, 200, 653 N.E.2d 888, 896 (1995)

(“Liberal construction, focused on the best interests of the children, is what

the statute calls for, even in the area of standing”).

      As have sister courts in states with similar adoption statutes, this

Court should follow the express legislative directive to liberally construe the

adoption act to satisfy its primary purpose – the best interest of children. See

In re Adoption of Clark, 327 N.C. 61, 710 n.1, 393 S.E.2d 791, 796 (1990)

(“the trial court erroneously stated that the adoption statute was to be strictly

                                        25
construed. The statute prescribes that it is to be liberally construed in favor

of the child and in favor of the stability of the child in its adoptive home.”)

(Whichard, J., dissenting).10

          B. Courts Have Found No Legitimate State Interests
             Supporting Denial of a Parent’s Ability to Provide His or
             Her Child with a Second Legal Parent and Ample State
             Interest Supporting Such Adoptions.

      Many courts faced with the question before this Court have found,

consistent with the conclusions of all major child welfare organizations,

psychiatric, psychological, medical and adoption organizations and

experts,11 that no countervailing public interest is served in denying a child a

legal relationship with his or her functional co-parent. See e.g., In re Jacob,

supra, 660 N.E.2d at 399 (“This [best interest of the child] policy would

certainly be advanced in situations like those presented here by allowing the

two adults who actually function as a child’s parents to become the child's

legal parents”); In re Adoption of K.S.P., 804 N.E.2d 1253, 1256, 1260 (Ind.

Ct. App. 2004) (“[a]llowing a second parent to share legal responsibility for


10
   See also Adoptions of B.L.V.B. and E.L.V.B., 160 Vt. 368, 371, 628 A.2d,
1271, 1273 (1993) (“the state’s primary concern is to promote the welfare of
children.”). Accord In re Jacob, 86 N.Y.2d 651, 657-8, 660 N.E. 397, 399
(1995); In re Adoption of K.S.P., 804 N.E.2d 1253, 1260 (2004); Adoption of
Tammy, 416 Mass. 205, 213-14, 619 N.E.315, 320 (1993); In re Petition of
K.M. and D.M., 274 Ill. App. 3d 189, 199, 653 N.E.2d 888, 895 (1995); In
re M.M.D & B.H.M., 662 A.2d 837, 861 (D.C. 1995).
11
   See FN8, supra.
                                       26
the financial, spiritual, educational, and emotional well-being of the child in

a stable, supportive, and nurturing environment can only be in the best

interest of that child”) (citations omitted); Adoption of Tammy, supra, 619

N.E.2d at 320 (setting out the myriad ways in which providing the child with

a second parent through adoption would benefit the child); In re M.M.D.,

supra, 662 A.2d 837, 861 (D.C. 1995) (rejecting a construction of the statute

that “would produce the unreasonable and irrational result of defeating

adoptions that are otherwise indisputably in the best interests of children”);

Sharon S., supra, 73 P.3d at 568-69 (noting that children’s best interest are

served by providing a “clear legal framework for resolving any disputes that

may arise over custody and visitation” and that “explicitly recognizing

[second parent adoption’s] validity will prevent uncertainty, conflict, and

protracted litigation in this area, all of which plainly are harmful to children

caught in the middle”).

      The reasoning of the court in Adoptions of B.L.V.B. and E.L.V.B., 160

Vt. 368, 628 A.2d 1271 (1993) is particularly instructive here:

      We are not called upon to approve or disapprove of the
      relationship between the appellants. Whether we do or not, the
      fact remains that Deborah has acted as a parent of B.L.V.B. and
      E.L.V.B. from the moment they were born. To deny legal
      protection of their relationship, as a matter of law, is
      inconsistent with the children’s best interests and therefore with
      the public policy of this state, as expressed in our statutes

                                       27
      affecting children.

628 A.2d at 1276.

      Finally, many courts have recognized, as did the court in B.L.V.B.,

that “[t]o deny the children of same-sex partners, as a class, the security of a

legally recognized relationship with their second parent serves no legitimate

state interest.” 628 A.2d at 1275. See also H.N.R., supra, 666 A.2d at 541;

In re Hart, 806 A.2d 1179, 1184 (Del. Fam. Ct. 2001) (citing the “benefit

that would not otherwise accrue to society and to the effected children if the

statute were read restrictively”); Sharon S., supra, 73 P.3d at 569 (“second

parent adoptions offer the possibility of obtaining the security and

advantages of two parents for some of California’s neediest children”).

      Application of the sound and thorough reasoning applied by sister

courts here leads to but one result: upholding the adoption of Jacob,

requested and consented to by Jarrell, and maintaining the parent-child

relationship between Jacob and his adoptive parent that has been firmly

established for nearly eight years.

          C. Courts Recognize Their Obligations to Apply Adoption Law
             to Reflect the Reality of Children’s Lives and to Avoid
             Absurd and Unjust Results.

      Amici strongly encourage this Court to focus on the needs of the child

at the center of this controversy and the reality of young Jacob’s life. As

                                       28
many other courts have recognized and as adoption organizations interested

in children’s welfare urge, a court’s “paramount concern should be with the

effect of our laws on the reality of children’s lives.” Adoptions of B.L.V.B.,

supra, 628 A.2d. at 1276 (quoted by In re Adoption of Two Children by

H.N.R., supra, 666 A.2d at 540); see also H.N.R. at 541. Recognizing this

primary concern, and applying it with blinders as to the parents’ sexual

orientation as this Court must12, there can be no outcome other than to

uphold the adoption between Boseman and the child she has co-parented

since his birth and who he has known his entire life as one of his two

parents. See, e.g., In re Adoption of K.S.P., supra, 804 N.E.2d at 1260

(“Polchert has acted as an involved parent to the children for a greater part

of their young lives. While our resolution of the instant case one way or the

other will not change this everyday reality, many possible benefits and legal

entitlements for the children do hang in the balance.”).

      The record below provides ample evidence, and it is not disputed, that


12
  Children, of course, have no control over the composition of the family
into which they are adopted, or whether their adoptive second parent
happens to be of the same sex or different sex than their biological parent.
The United States Supreme Court has made clear that it is improper to
penalize children for the actions or the legal status of their parents. See
Trimble v. Gordon, 430 U.S. 762, 770 (1977) (in striking down inheritance
law that discriminated against illegitimate children, noting “Obviously, no
child is responsible for his birth and penalizing the illegitimate child is an
ineffectual as well - as an unjust - way of deterring the parent.”).
                                       29
there a parent-child relationship and a close emotional bond exist between

Boseman and Jacob. This evidence, along with the legislative mandate to

place the best interest of the child above all else where nonwaivable

statutory prerequisites such as notice and consent13 are met, should lead this

Court to uphold the validity of Jacob’s adoption.

          Here again, this Court can look to the unassailable reasoning of many

other courts faced with the situation before it and “avoid results that are

irrational, unreasonable or absurd.” Adoption of B.L.V.B., supra, 628 A.2d.

at 1273;14 see also In re Adoption of R.B.F., 569 Pa. 269, 281, 803 A.2d

1195, 1202 (2002) (“a contrary interpretation of the ‘cause shown’ language

would command an absurd result as the Adoption Act does not expressly

preclude same-sex partners from adopting.”). Where strict application of an

adoption provision would preclude an unmarried parent from providing for

his or her child with a second legal parent, courts consistently conclude that

such a result is untenable with the statute’s over-arching purpose of

promoting the best interest of children. In re K.S.P., supra, 804 N.E.2d at
13
     See N.C. GEN. STAT. §§ 48-3-601, 48-3-602.
14
  see also King v. Baldwin, 276 N.C. 316, 325, 172 S.E.2d 12, 19 (1970) (“It
is presumed that the legislature acted in accordance with reason and
common sense and that it did not intend an unjust or absurd result; and, in
construing a statute, the court always looks to its purpose.”) (citing State v.
Humphries, 210 N.C. 406, 186 S.E. 473 (1936); Ikerd v. R. R., 209 N.C.
270, 183 S.E. 402 (1936); 82 C. J. S. STATUTES §§ 316, 323, 325, 344
(1953)).
                                           30
1257 (“A strict literal reading of these two statutes would seem to support

the trial court's determination that if it were to grant Polchert’s petition for

adoption, Mother’s parental rights to her children would be divested, a

consequence clearly unintended by the couple. In light of the purpose and

spirit of Indiana’s adoption laws, we conclude that the legislature could not

have intended such a destructive and absurd result.”).

      Severing Jacob’s legal ties to Boseman is wholly inconsistent with the

Court’s obligation to interpret and apply the adoption laws with children’s

best interest at heart. Here, as in In the Interest of Hart, supra:

      For the Court to ignore what exists in fact in the best interests
      of children would ignore logic; be antithetical to the needs and
      bests interest of children who are being cared for, raised and
      nurtured in a home where two adults are committed and
      dedicated to their welfare; and produce an absurd and
      unacceptable social result.

806 A.2d at 1186,

      Consistent with the social science, courts have respected the finality

of an adoption order by a same-sex parent by recognizing that “[t]he

destruction of a parent-child relationship is a traumatic experience that can

lead to emotional devastation for all the parties involved, and all reasonable

efforts to prevent this outcome must be invoked when there is no indication

that the destruction of the existing parent-child relationship is in the best


                                        31
interest of the child.” Goodson v. Castellanos, 214 S.W.3d 741, 749 (Tex.

App. 2007). Similarly, recognition of the primacy of the child’s interests has

led numerous courts to recognize second parent adoptions even where state

adoption statutes are silent as to their validity. In re Hart, supra, 806 A.2d

at 1185 (“Although the Delaware General Assembly may not have

specifically contemplated adoption by a ‘second parent’ when enacting the

adoption laws of this State, it is inconceivable to conclude, given the

statutory mandate to read the statute in best interest of children, that our

Legislature would have meant to exclude loving and nurturing two parent

homes as a resource for some of the states most needy children.”); In re

Jacob, 660 N.E.2d at 405 (While the Legislature may not have envisioned

adoption by same-sex partners, there is no indication that it attempted to

define all possible categories of persons leading to adoptions in the best

interests of children.). Although the North Carolina legislature likewise may

not have contemplated a provision that allows an unmarried parent who is

co-parenting with another person to provide their child with a second legal

parent, this Court may, indeed, must interpret the adoption laws to effectuate

their primary purpose of protecting the children that come before the courts.

      In sum, decades of social science research confirm that it is in the best

interest of children to protect and maintain their established attachment

                                       32
relationships, and the Court of Appeals and the two lower courts in this case

correctly concluded that it was in the best interest of Jacob that both

Appellee and Appellant be recognized as his legal parents. A result to the

contrary would be inconsistent with North Carolina’s adoption statutes and

strong public policy prioritizing the interests of children above all. And, as

the social science also demonstrates, the consequences of severing Jacob’s

parent-child relationship with Appellee—a consideration remarkably absent

from Appellant’s brief—would be harmful, if not devastating.




                                       33
                               CONCLUSION

      For the reasons above, the lower courts’ orders respecting the finality

of the adoption order and granting joint custody of Jacob to Appellant and

Appellee should be affirmed.



      Respectfully submitted this the ___ day of March, 2010.

                                      GAILOR WALLIS & HUNT PLLC

                                      By: __________________________
                                              Cathy C. Hunt

                                      N.C. State Bar I.D. No. 20326
                                      1101 Haynes Street, Suite 201
                                      Raleigh, NC 27604
                                      Telephone: (919) 832-8488
                                      Facsimile: (919) 832-8283
                                      chunt@gailorwallishunt.com

                                      Attorney for Evan B. Donaldson
                                      Adoption Institute, National Center
                                      for Adoption Law and Policy,
                                      Barton Child Law & Policy Center,
                                      Professors Katharine T. Bartlett,
                                      Naomi Cahn, June Carbone, Maxine
                                      Eichner, Joan Heifetz Hollinger, and
                                      Barbara Woodhouse




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