ACLU: NC adoption laws unconstitutional

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GREENSBORO — The ACLU sued North Carolina on Wednesday to change state adoption laws that they argue unconstitutionally prevent unmarried couples from adopting their partners’ children.

The American Civil Liberties Union of North Carolina filed the lawsuit in U.S. District Court in Greensboro on behalf of six same-sex couples who support second-parent adoptions.

The lawsuit names as defendants John W. Smith, director of the N.C. Administrative Office of the Courts, and clerks of superior court in Guilford and Durham counties.

The plaintiffs are asking a federal judge to rule that the N.C. Supreme Court’s ruling violated their constitutional rights and to order that the defendants stop enforcing the prohibition of second-parent adoptions.

ACLU legal director Chris Brook said the N.C. Supreme Court in 2010 banned second-parent adoptions for unmarried couples, whether straight or gay. That ruling prevents those couples from jointly adopting children.

The ACLU lawsuit focused on same-sex couples, saying that second-parent adoptions are the only way a North Carolina family with gay or lesbian parents can ensure that both parents have a legal relationship with their child.

“Children who are prevented from having such a legally recognized relationship with both parents suffer numerous deprivations as a result, including exclusion from private health insurance benefits, public health benefits, veterans’ benefits, disability benefits and Social Security benefits,” the lawsuit said.

The suit alleges that Smith is responsible for “promulgating rules, policies and procedures to control or advise N.C. clerks of county courts who apply the state’s adoption laws when considering whether to accept or reject petitions for adoptions.”

Sharon Gladwell, a spokeswoman for the Administrative Office of the Courts, said her agency doesn’t comment on issues when litigation is pending.

Stuart Campbell, director of Equality North Carolina, said his organization supports the ACLU’s contention that prohibiting second-parent adoption is unconstitutional.

“When you have a situation where only one parent in an unmarried couple can legally adopt a child,” Campbell said, “it can put that child at risk of losing health insurance and other benefits, and can potentially tear a family apart if something happens to one of the parents.”

The lawsuit said there’s no basis for North Carolina “automatically and categorically to reject any petition for second-parent adoption by gay or lesbian parents.”

While many other states grant second-parent adoptions in cases when they are in a child’s best interest, North Carolina’s laws as “authoritatively construed” by the state’s high court do not, the lawsuit said.

It was referring to the 2010 case involving former state Sen. Julia Boseman’s adoption of her former domestic partner’s biological son. The General Assembly’s first openly gay member, Boseman was elected in 2004 and served until the end of 2010.

A Durham County district judge had allowed Boseman to adopt her partner’s biological son. But the high court voided the adoption because the judge had waived a requirement that her partner had to give up her parental rights in the process.

Associate Justice Paul Newby wrote for the high court majority that the adoption never occurred in the eyes of the law because legislators have made clear the biological parent must terminate a legal relationship with the child.

Several Christian groups had filed briefs arguing the adoption was illegal, while law professors and the ACLU urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.

The high court’s ruling set the stage for the ACLU’s lawsuit. Under state law, single parents and married couples can adopt a child. So can a stepparent who adopts their partner’s previously adopted or biological child.

Mark Maxwell of Winston-Salem and his partner, Tim Young, are parents of three boys and a foster son. Though they are not among the plaintiffs, Maxwell supports the lawsuit, saying it is about the children of gay and lesbian couples.

“This is not about a gay marriage,” Maxwell said. “This is about children’s rights.”

Credit: The Associated Press. Winston-Salem Journal Reporter John Hinton contributed to this report.