Guardian ad litem reply

8/20/2019 Guardian ad litem reply

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No. 15A532

In the Supreme Court of the United States

TOBIE J. SMITH, Guardian Ad Litem,

as representative of three minor children,

Applicant,

v.

E. L. and V. L.,

Respondents.

REPLY IN SUPPORT OF APPLICATION OF THE GUARDIAN AD LITEM

FOR RECALL AND STAY OF CERTIFICATE OF JUDGMENT

OF THE SUPREME COURT OF ALABAMA

PENDING FILING AND DISPOSITION OF

A PETITION FOR A WRIT OF CERTIORARI

RUTH N. BORENSTEIN

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, California 94105

Telephone: 415.268.7500

M ARC A. HEARRON

Counsel of Record

SETH W. LLOYD*

MORRISON & FOERSTER LLP

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Telephone: 202.778.1663

[email protected]

Counsel for Applicant

*Admitted in California. Admission to

D.C. pending. Work supervised by

firm attorneys admitted in D.C.

DECEMBER 1, 2015


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

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

ARGUMENT .................................................................................................................. 2

I. THERE IS A REASONABLE PROBABILITY THAT CERTIORARI

WILL BE GRANTED .......................................................................................... 2

II. IF REVIEW IS GRANTED, THE ALABAMA SUPREME COURT’S

DECISION IS LIKELY TO BE REVERSED ..................................................... 4

III. EQUITABLE CONSIDERATIONS WARRANT A STAY HERE ...................... 9

CONCLUSION ............................................................................................................. 12


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ii

TABLE OF AUTHORITIES

Page(s)

C ASES

Abushmais v. Erby,652 S.E.2d 549 (Ga. 2007) ........................................................................................ 5

Adoptive Couple v. Baby Girl,

133 S. Ct. 2552 (2013) ............................................................................................ 12

Amerson v. Vandiver,

673 S.E.2d 850 (Ga. 2009) ........................................................................................ 8

Ankenbrandt v. Richards,

504 U.S. 689 (1992) ................................................................................................ 11

Baker ex rel. Thomas v. Gen. Motors Corp.,

522 U.S. 222 (1998) .................................................................................................. 4

Bates v. Bates,

730 S.E.2d 482 (Ga. Ct. App. 2012) ......................................................................... 3

Coe v. Coe,

334 U.S. 378 (1948) .................................................................................................. 7

Conkright v. Frommert,

556 U.S. 1401 (2009) .............................................................................................. 10

Crutchfield v. Lawson,

754 S.E.2d 50 (Ga. 2014) .......................................................................................... 5

Milliken v. Meyer,

311 U.S. 457 (1940) .................................................................................................. 4

Mosley v. Lancaster,

770 S.E.2d 873 (Ga. 2015) .................................................................................... 5, 6

Treinies v. Sunshine Mining Co.,

308 U.S. 66 (1939) .................................................................................................... 7

Underwriters Nat’l Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Ass’n,

455 U.S. 691 (1982) .............................................................................................. 4, 9

Webb v. Webb,

451 U.S. 493 (1981) .................................................................................................. 2


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iii

Williams v. North Carolina,

317 U.S. 287 (1942) .................................................................................................. 4

Williams v. Williams,

717 S.E.2d 553 (Ga. Ct. App. 2011) ......................................................................... 8

STATUTES

Ga. Code Ann. § 19-8-3(a)(3) ................................................................................. 11 n.1

Ga. Code Ann. § 19-8-18 ................................................................................................ 6

Ga. Code Ann. § 19-8-18(e) ............................................................................................ 8

OTHER A UTHORITIES

Leslie M. Fenton & Ann Fenton, The Changing Landscape of Second-Parent

Adoptions, ABA Section of Litigation (Oct. 25, 2011) ............................................. 3


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INTRODUCTION

E. L.’s response to V. L.’s stay application does not even mention that the

Guardian Ad Litem filed his own application. Although E. L. states in a letter that

she intends her opposition to V. L.’s application also to apply to the Guardian Ad

Litem’s, she made no effort whatsoever to respond to many of the Guardian Ad

Litem’s reasons for staying and recalling the Alabama Supreme Court’s certificate

of judgment. For good reason: she has no valid responses.

The requirements for a stay are met here. There is a reasonable prospect

that certiorari will be granted. Contrary to E. L.’s suggestions, the petition is not

seeking mere error correction. The Alabama Supreme Court’s judgment will wreak

havoc not only on V. L. and her children but on other families as well. Children in

Alabama are now in grave danger of having a legal parent through an out-of-state,

second-parent adoption being declared a stranger to them. Even children residing

outside of Alabama are at such risk when they travel into Alabama. This

intolerable uncertainty in the status of numerous parent-child relationships

warrants this Court’s intervention. If this Court grants review, there is a strong

likelihood of reversal. The Alabama Supreme Court grossly deviated from this

Court’s full-faith-and-credit jurisprudence. E. L.’s meager efforts to defend that

Court’s decision, and her inability to respond to V. L.’s and the Guardian Ad Litem’s

arguments, only highlight the decision’s gaping flaws. Finally, there can be no

question that the children are being harmed and will continue to be harmed absent

a stay.


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2

ARGUMENT

I. THERE IS A REASONABLE PROBABILITY THAT CERTIORARI

WILL BE GRANTED

The issue presented in V. L.’s petition is worthy of this Court’s review

because of the state of considerable uncertainty in which the Supreme Court of

Alabama’s decision leaves adoptive parents and children. That decision eviscerates

the stability of out-of-state adoption judgments, guaranteed by the Full Faith and

Credit Clause.

Although E. L. suggests there is no split of authority among state courts that

would warrant review, she does not dispute that the parents and children in this

case are subject to conflicting judgments by different state courts. As the Guardian

Ad Litem’s stay application explained (at 10-11), the Georgia adoption judgment

granting V. L. parental rights remains valid in Georgia and would continue to be

enforced there, despite the conflicting Alabama judgment. E. L. does not contend

otherwise. It is therefore undisputed that when V. L. and E. L.’s children cross into

Georgia (or any other State, for that matter), V. L. will become the children’s legal

mother, notwithstanding the Alabama court’s ruling that V. L. is a stranger to the

children, and she will return to stranger status when the children return to

Alabama. The fact that the children here are subject to conflicting decisions about

who their parents are, and the substantial risk that other children will be subject to

similarly conflicting judgments, warrant this Court’s intervention. See Webb v.

Webb, 451 U.S. 493, 494 (1981). E. L. offers no response.


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3

E. L. incorrectly characterizes V. L.’s petition as seeking mere error

correction. The Alabama court’s ruling is of import not only to the parties involved

in this case but also to families throughout Alabama and beyond, because the

implications of the ruling are profound. Children in Alabama face the prospect of

being removed from the custody of their adoptive parent if, for example, the

children’s biological parent were to die or become incapacitated. And children will

be without an adoptive parent to make medical, educational, and other decisions on

their behalf.

E. L. does not contest any of this; she states only that V. L. did not “estimate”

the number of families affected. E. L. Opp. at 10. But it is beyond dispute that

V. L. and E. L. are hardly alone in having obtained a second-parent adoption in a

State, such as Georgia, in which the legal merits of such adoptions had not been

conclusively established. Indeed, it has been well known for several years that

some Georgia family courts would grant second-parent-adoption petitions. See

Leslie M. Fenton & Ann Fenton, The Changing Landscape of Second-Parent

Adoptions, ABA Section of Litigation (Oct. 25, 2011), http://bit.ly/1Qb8rD9 (listing

Georgia as among the States in which “numerous trial courts have approved second-

parent adoptions but no binding precedent exists”); see also Bates v. Bates, 730

S.E.2d 482, 483 (Ga. Ct. App. 2012) (discussing second-parent adoption granted in

2007 by the Superior Court of Fulton County, Georgia). E. L. also cannot dispute

that current Georgia residents who obtained second-parent adoptions there are in

danger of their family relationships’ being legally null and void when they enter


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into Alabama. Moreover, the Alabama Supreme Court’s rationale would extend to

adoption judgments from other States in which second-parent adoptions have been

openly granted without any clear statutory or precedential guidance providing for

them. See Fenton & Fenton, supra (listing eleven such States, apart from Georgia).

And no principled distinction would limit the Alabama Supreme Court’s rationale

from extending to any state adoption decree that an Alabama court deems faulty.

This Court’s review is therefore warranted not simply to correct an error in

this particular case but to eliminate the serious dangers that the Alabama decision

poses for families not only in Alabama but throughout the Nation.

II. IF REVIEW IS GRANTED, THE ALABAMA SUPREME COURT’S

DECISION IS LIKELY TO BE REVERSED

As the Guardian Ad Litem explained, there is a strong likelihood that if the

petition is granted, the decision of the Supreme Court of Alabama will be reversed.

The Full Faith and Credit Clause precludes courts in one State, presented with a

judgment from another, from “any inquiry into the merits of the cause of action, the

logic or consistency of the decision, or the validity of the legal principles on which

the judgment is based.” Milliken v. Meyer, 311 U.S. 457, 462 (1940); see also

Underwriters Nat’l Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Ass’n , 455

U.S. 691, 702 (1982); Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 223

(1998). Full faith and credit may be denied only when the issuing court lacked

“jurisdiction either of the subject matter or of the person of the defendant.”

Williams v. North Carolina, 317 U.S. 287, 297 (1942).


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5

In attempting to defend the Alabama Supreme Court’s decision, E. L.

incorrectly focuses on whether the Georgia adoption statutes provide for adoption by

a non-spouse without terminating the existing parental rights. But the correct

question is not whether the Georgia adoption statutes provide for second-parent

adoptions; it is whether the Georgia superior court had jurisdiction to issue

adoption decrees in general. As the Guardian Ad Litem explained (at 14), Georgia

defines subject-matter jurisdiction as the power to hear “specified kinds of cases,”

i.e., “the power to deal with the general abstract question, to hear the particular

facts in any case relating to this question.” Crutchfield v. Lawson, 754 S.E.2d 50, 52

(Ga. 2014) (quotation marks and citations omitted) (emphasis added); see

Abushmais v. Erby, 652 S.E.2d 549, 550 (Ga. 2007) (“Jurisdiction of the subject

matter does not mean simply jurisdiction of the particular case then occupying the

attention of the court, but jurisdiction of the class of cases to which that particular

case belongs.” (quoting Hopkins v. Hopkins, 229 S.E.2d 751, 752 (Ga. 1976)).

For example, in Mosley v. Lancaster, the appellant contended that a Georgia

superior court lacked subject-matter jurisdiction to deny probate of a will without

impaneling a jury, relying on a statute providing that “a jury must be empaneled” in

cases “touching the probate of wills.” 770 S.E.2d 873, 876 (Ga. 2015) (quoting Ga.

Code Ann. § 15-6-8(4)(E)). Rejecting that argument, the Supreme Court of Georgia

explained that the Georgia Constitution “establishes the superior courts as courts of

general jurisdiction” and that a statute “grants superior courts jurisdiction to

review the judgments of probate courts, including those touching on the probate of


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6

wills.” Id. at 877. Notwithstanding that no jury was empaneled, the Georgia

superior court still had subject-matter jurisdiction because it “had jurisdiction of the

‘class of cases’ to which this case belongs.” Ibid. (quoting Crutchfield, 754 S.E.2d at

52).

So too here. There is no dispute that the Georgia superior court had the

power to deal with the general abstract question of adoption petitions. As the

Alabama Supreme Court acknowledged, “Georgia superior courts like the Georgia

court have subject-matter jurisdiction over, that is, the power to rule on, adoption

petitions.” App. 25a. That should have ended the analysis. Notably, E. L. has no

response to the way in which Georgia defines subject-matter jurisdiction, nor can

she point to a single Georgia decision holding that failure to meet a requirement in

an adoption statute deprives a Georgia court of the power to issue an adoption

decree.

E. L. also cannot rebut that Section 19-8-18 of the Georgia Code provides that

“[i]f the court determines that any petitioner has not complied with this chapter, it

may dismiss the petition for adoption without prejudice or it may continue the case.”

Ga. Code Ann. § 19-8-18 (emphasis added). Moreover, as discussed in the stay

application (at 15), Section 19-8-18 contains other adoption requirements plainly

going to the merits, not jurisdiction, including that an adoption petition shall be

granted only if the court is “satisfied that the adoption is in the best interests of the

child.” Ibid. E. L. lacks any response.


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7

Even if E. L. were correct that termination of existing parental rights is a

requirement that goes to the Georgia court’s jurisdiction to issue an adoption

decree, the Georgia court already dealt with that question, and the Alabama

Supreme Court was precluded from relitigating it under well-established rules of

finality. See Coe v. Coe, 334 U.S. 378, 384 (1948); Treinies v. Sunshine Mining Co.,

308 U.S. 66, 78 (1939). E. L. suggests that “[n]othing in the adoption proceedings,

or in the decree itself, suggests that the question of whether Georgia law authorizes

the kind of adoption at issue was even considered.” E. L. Opp. 17. Not so. The

Georgia court expressly considered the fact that it was being asked simultaneously

to preserve E. L.’s parental rights and also to grant parental rights to V. L. The

court concluded that the adoption could proceed nonetheless. The Georgia court

ordered that “the parent-child relationship between the legal mother, [E. L.], and

the children is hereby preserved intact and that [V. L.] shall be recognized as the

second parent.” Pet. App. 51a, V. L. v. E. L., No. 15-648 (emphasis added). The

court so ordered because it found that it “would be contrary to the children’s best

interest and would adversely impact their right to care, support and inheritance

and would adversely affect their sense of security and well-being to either deny this

adoption by the second parent or to terminate the rights of the legal and biological

mother.” Id. at 50a (emphasis added). The court also concluded that V.L. had

“complied with all relevant and applicable formalities regarding the Petition for

Adoption in accordance with the laws of the State of Georgia.” Ibid.


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E. L. also completely fails to grapple with the Georgia statute of repose for

adoptions, under which Georgia courts will enforce an adoption judgment even if

there was no jurisdiction to issue it. Ga. Code Ann. § 19-8-18(e); see Williams v.

Williams, 717 S.E.2d 553, 553-54 (Ga. Ct. App. 2011). That alone is enough to

conclude that the Alabama Supreme Court’s judgment cannot stand.

Additionally, the Guardian Ad Litem explained that under Georgia law,

because of the compelling need for finality and stability in family matters, a party

such as E. L. who participated in prior litigation cannot later challenge the

judgment, even if the court lacked jurisdiction to issue the decree. Guardian Ad

Litem Stay Application 16 (citing Amerson v. Vandiver, 673 S.E.2d 850, 851 (Ga.

2009)). In a footnote, E. L. attempts to distinguish Amerson, suggesting it “holds

only that under some circumstances laches may bar a parent’s jurisdictional

challenge to a termination of rights.” E. L. Opp. 18 n.8. But those “circumstances”

exist here. Amerson held that where a party “affirmatively invoked the jurisdiction

of the superior court for the purpose of obtaining a divorce, consented to that court’s

incorporation of the settlement agreement [terminating his parental rights], and

then failed to file a motion to set aside for four years,” the party could not challenge

the superior court’s jurisdiction to terminate his parental rights. 673 S.E.2d at 851.

Here, E. L. affirmatively invoked the jurisdiction of the Georgia superior court for

the purpose of obtaining an adoption decree, consented to the issuance of that

decree, and failed to challenge the jurisdiction for many years. Because the Georgia

courts would continue to recognize the validity of the adoption judgment, the


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11

domicile in Georgia so that they could obtain an adoption judgment there. E. L.

Opp. 21. But no court has ever determined that E. L. and V. L.’s efforts to establish

Georgia residency were improper. Nor can E. L. challenge V. L.’s efforts to do so

because, as the Alabama Supreme Court recognized, “E.L. was a willing

participant” in their plan to establish Georgia residency. App. 16a-17a n.7.1

Indeed, it is E. L. who has sought to game the courts by acceding to the Georgia

court’s authority when it suited her interests and challenging the Georgia court’s

jurisdiction only now that her wishes have changed.

Finally, granting relief would not “convert this Court into a family court” or

require the Court to issue a domestic-relations decree. Contra E. L. Opp 20. The

Georgia court already found that the adoption was in the children’s best interests

and issued the adoption decree. The issue in this Court is whether to stay the

Alabama judgment refusing to recognize the Georgia judgment. That issue does not

implicate the domestic-relations exception to federal jurisdiction. See Ankenbrandt

v. Richards, 504 U.S. 689, 702 (1992) (federal courts may enforce domestic-relations

1 The Alabama Supreme Court did not reach the questions whether E. L. and

V. L. had established residency in Georgia and, if not, whether the adoption would

be recognized in Alabama. App. 30a-31a n.10. But even if Georgia residency had

not been established, the Georgia court still had jurisdiction to issue the adoption

judgment. As the Alabama Supreme Court recognized, “E.L. and V.L. willingly

appeared with the children before the Georgia court, so personal jurisdiction is notdisputed.” App. 16a-17a. Moreover, the requirement that the adoption petitioner

have been “a bona fide resident of this state for at least six months immediately

preceding the filing of the petition” is simply a statutory requirement for granting

an adoption petition, not a limitation on the Georgia superior court’s subject-matter

jurisdiction over adoption proceedings. Ga. Code Ann. § 19-8-3(a)(3). In any event,

this Court need not decide this issue if it grants the petition.


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decrees

entered by state courts);

cf. Adoptíue Couple u, Baby

Girl, L33

S.

Ct.

2552

(2013).

CONCLUSION

The

Guardian

Ad

Litem's application

for recall

and

stay

of the

Certificate of

Judgment

should

be

granted.

Respectfully submitted,

ZØ¿or+42*r.n^*

RurH

N.

BonnNSTEIN

Monnrsor.l Fopnsrnn LLP

426Market

Street

San Francisco, California 941-05

Telephon

e:

4L5.268.

7500

DpcpnnsrR L, 2015

dc-812769

Menc

A. HnaRnoN

Counsel of Record

Snru W. Llovr*

Monnrsox

FonnsrnR LLP

2000 Pennsylvania

Avenue, N.W

IVashington, D.C.

20006

Counsel

for

Applicant

*Admitted

in California.

Adrnission

to D.C.

pending.

Worh superuised

by

firm

attorneys

admitted in D.C.

L2


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REPLY APPENDIX


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IN THE SUPREME COURT OF ALABAMA

1140595

Ex parte E.L. PETI TION FO R WR IT OF CERTIORARI TO THE COURT OF CIVIL

APPEALS (In re: E.L. v. V.L .) (Jefferson Fam ily Court: CS- 13 -719 ; Civil Appeals :

2130683).

Petitioner's Motion to Stay Pending Consideration of Petition for Writ of Certiorari

to the Court of Civil Appeals is granted.

I, Julia Jordan Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the

foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 15th day of April, 2015.

cc:

Hon. Rebecca Oates

Hon. Raymond Chambl iss

An ne La mk in Du rw ar d, Esq.

Randall W. Nichols, Esq.

Heather Fann, Esq.

Catherine Sakimura, Esq.

Traci Owe n Vella, Esq .

Michael Stuart Nissenbaum, Esq.Breauna R. Peter son, Esq .

Tobie J . Smith, Esq .

Herbert Francis Young , Jr., Esq.

Bryant Andrew Whitmire, Jr, Esq.

Apri l 15, 2015

ORDER

/as

62a


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Based on such r e c o g n i t i o n , the t r i a l c o u r t below ordered

v i s i t a t i o n r i g h t s f o r the Respondent, V.L., w i t h Mother's

b i o l o g i c a l c h i l d r e n . (Ex. "J")

Mother sought a s t a y from the t r i a l c o u r t (Ex. "M") .

When the t r i a l c o u r t d i d not r u l e , she sought a s t a y from

t h e Court of C i v i l Appeals (Ex. " 0 " ) , which d e n i e d the

motion because the t r i a l c o u r t had ye t t o r u l e (Ex. "P") .

The Family Court of J e f f e r s o n County then d e n i e d the motion

t o s t a y . (Ex. "Q") . Mother f i l e d a renewed motion t o stay

w i t h the Court of C i v i l Appeals (Ex. "R") . That motion was

i n i t i a l l y d e n i e d . (Ex. " S " ) . Then, when the Court of C i v i l

Appeals e n t e r e d i t s i n i t i a l O p i n i o n on October 24, 2014

( " I n i t i a l O p i n i o n " ) , i t r u l e d as f o l l o w s :

In e a r l i e r p r o c e e d i n g s b e f o r e t h i s c o u r t , the

mother moved f o r a s t a y of enforcement of the

f a m i l y c o u r t ' s judgment. Thi s co ur t den ied th at

motion. In l i g h t of our o p i n i o n i n t h i s case, we

hereby r e c o n s i d e r our r u l i n g and g r a n t the stay

pending f u r t h e r p r o c e e di n g s i n t h i s or our supreme

c o u r t . I f no f u r t h e r a p p e l l a t e pr o ce e d in g s are

undertaken, upon the i s s u a n c e of t h i s c o u r t ' s

c e r t i f i c a t e of judgment the judgment of th e f a m i l y

c o u r t w i l l be a n n u l l e d and th e s t a y d i s s o l v e d f o r

l a c k of n e c e s s i t y . See S h i r l e y v. S h i r l e y ^ 361So. 2d 590, 591 ( A l a . C i v . App. 1978)("The

r e v e r s a l of a judgment, or a p a r t t h e r e o f , w h o l l y

annuls i t , or t he p a r t of i t , as i f i t never

C i t a t i o n s t o E x h i b i t s are t o t h o s e f i l e d w i t h Mother's

Memorandum i n Support of t h i s Motion.

2

64a


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e x i s t e d . _ Another judgment rendered by a court

w i t h j u r i s d i c t i o n must t h e r e a f t e r replace i t . " ) .

( I n i t i a l Opinion, Ex. "T", p. 1 4 ) . 3

The Court of C i v i l Appeals subs eque ntly gran ted

r e h e a r i n g and h e l d o r a l arguments. On the afternoon

f o l l o w i n g the argument, the Court of C i v i l Appea ls en te re d

an Order d i s s o l v i n g the stay. (Ex. " V" ). When the Court of

C i v i l Appeals is sue d i t s Opinion on rehearing on February

27, 2015

("Rehearing Op in io n" ), i t d i d n ot

r e - i s s u e or r e ¬

i n s t a t e a stay, despi te re ver si ng the t r i a l c ou rt 's orde r

and remanding f o r hea rin g w it h rega rd t o i t s vo id or de r.

("Rehearing Opinion", Ex. "W").

As the Court of C i v i l Appeal s Reh ear ing Opi nio n

acknowledges, the ord er which the P e t i t i o n e r i s seeking t o

s t a y i s the order gr ant ing v i s i t a t i o n p r i v i l e g e s t o a non-

b i o l o g i c a l l y r e l a t e d person without an e vi de nt ia ry hearing

i n c l e a r v i o l a t i o n of e s t a b l i s h e d Alabama precedent.

(Rehearing Opinion Ex. "W", pp. 16-17).

3

P r i o r t o th e Court of C i v i l Appeals entry of a stay,Mother f i l e d a P e t i t i o n f o r Writ of Mandamus with t h i s

Court seeking a stay of th e t r i a l cou rt' s order. Upon th e

Court of C i v i l Appeals' ent ry of a stay i n i t s October 24,

2014 Opinion, and b e l i e v i n g the P e t i t i o n f o r Mandamus t o be

moot, Mother f i l e d a Motion t o Dismiss the Mandamus

proceeding, which t h i s Court granted by Order of November

7, 2014. ( E x h i b i t "U ").

3

65a


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Mother a l s o contends t h a t the Georgi a c our t d i d not

have s u b j e c t - m a t t e r j u r i s d i c t i o n t o e n t e r the "second-

parent" ado ptio n decree and t h a t , even i f i t d i d , that

decree i s not due f u l l f a i t h and c r e d i t from Alabama

c o u r t s . Mother's l e g a l p o s i t i o n i s s e t f o r t h more f u l l y i n

the Memorandum f i l e d i n support of t h i s Mot io n.

WHEREFORE, i n c o n s i d e r a t i o n of th e f o r e g o i n g , Mother

asks t h i s Court t o e n t e r a s t a y of th e t r i a l court's

v i s i t a t i o n ord er pendin g the completion of th e a p p e l l a t e

proceedings i n t h i s cause. The Mother a l s o requests such

f u r t h e r and d i f f e r e n t r e l i e f t o which she may be e n t i t l e d ,

the premises co ns id er ed .

R e s p e c t f u l l y submitted,

/s/KaA^dOLiM). NicholsR a n d a l l W. N i c h o l s

[email protected]

Anne Lamkin Durward

[email protected]

Attorneys f o r P e t i t i o n e r

MASSEY, STOTSER & NICHOLS, PC

1780 Gadsden Highway

Birmingham, AL 35235

(205) 838-9000

4

66a

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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DOCKET NUMBER 1140595

IN THE SUPREME COURT OF ALABAMA.

EX PARTE E.L.

IN RE:

E.L., PETITIONER

V.

V.L., RESPONDENT

CERTIFICATE OF SERVICE

The undersigned hereby c e r t i f i e s t h a t a copy of the

f o r e g o i n g has been f i l e d e l e c t r o n i c a l l y , on the date

i n d i c a t e d . In accordance w i t h e l e c t r o n i c f i l i n g procedure.

Nine (9) copies w i l l be m a i l e d t o the C l e r k of t h i s Court

and a copy w i t h be m a i l e d to the opposing coun sel as

i n d i c a t e d .

DATED t h i s the 12th day of March, 2015.

Hon. Rebecca C. Gates, C l e r k

Alabama Court of C i v i l Appeals

300 Dexter Ave.

Montgomery, AL 36104

T r a c i Owen V e l l a

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Attorney f o r P e t i t i o n e r

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REL: 10/24/2014

Notice: This opinion is subject to formal revision before publication in the advancesheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

229-0649), of any typographical or other errors, in order that corrections may be made

before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2014-2015

_________________________

2130683 _________________________

E.L.

v.

V.L.

Appeal from Jefferson Family Court(CS-13-719)

PER CURIAM.

E.L. ("the mother") appeals from a judgment of the

Jefferson Family Court ("the family court") awarding V.L., the

mother's former same-sex partner, periodic visitation with the

mother's biological children, S.L., N.L., and H.L.

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(hereinafter referred to collectively as "the children"). We

reverse and remand.

Background

On October 31, 2013, V.L. filed a petition in the

Jefferson Circuit Court ("the circuit court"). In that

petition, V.L. asserted that she and the mother had engaged in

a same-sex relationship from 1995 to 2011; that, during the

course of their relationship, the mother had given birth to

S.L. on December 13, 2002, and to twins, N.L. and H.L., on

November 17, 2004, through the use of assisted reproductive

technology; that, at all times since the birth of the

children, V.L., in addition to the mother, had acted as a

parent to the children; that, on May 30, 2007, with the

mother's consent, the Superior Court of Fulton County, Georgia

("the Georgia court"), had entered a judgment approving V.L.'s

adoption of the children ("the Georgia judgment"), which

judgment, V.L. asserted, was entitled to full faith and credit

by the courts of this state; and that V.L. is listed as a

parent on the children's Alabama birth certificates.

V.L. further asserted that the mother had denied her the

traditional and constitutional parental rights to the children

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she had secured in the Georgia judgment, including visitation

and access to their educational and other information. V.L.

averred that the children have known both parties as their

parents since their births and that the children were being

harmed by the mother's denying them association with her.

V.L. further averred that she was fit to assume the children's

custody.

V.L. requested that the circuit court register the

Georgia judgment; declare her legal status, rights, and

relations to the children pursuant to the Georgia judgment;

award her custody of the children or, alternatively, award her

joint custody with the mother and establish a schedule of

custodial periods; order the mother to pay her child support

and attorney's fees; and provide her any such other relief to

which she might be entitled.

On November 4, 2013, the circuit court transferred the

matter to the family court. On December 17, 2013, the mother

moved the family court to dismiss V.L.'s petition, asserting,

among other things, that the family court lacked subject-

matter jurisdiction and that V.L. lacked standing to invoke

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the family court's jurisdiction. On December 27, 2013, V.L.1

amended her petition to reassert the allegations in the

original petition, but also to allege the dependency of the

children based on their separation from her. On February 3,

2014, the mother filed a memorandum of law to support her

motion to dismiss. That same date, V.L. filed a response to

the motion to dismiss. On March 11, 2014, the mother

"renewed" her motion to dismiss, attaching her affidavit.

That same date, V.L. responded to the renewed motion to

dismiss, attaching her affidavit and several exhibits.

On April 3, 2014, without a hearing, the family court

denied the mother's motion to dismiss and awarded V.L.

scheduled visitation with the children. On April 15, 2014,

the family court entered a supplemental order specifically

denying all other requested relief and closing the case. On

April 17, 2014, the mother moved the family court to alter,

amend, or vacate its judgment. On May 1, 2014, the mother's

On February 3, 2014, V.L. moved the family court to1

consolidate the underlying action with actions designated by

case numbers "JU-55.01; JU-56.01; JU-57.01," which are

referred to in the record as dependency actions. The record

contains no indication that the family court acted on that

motion.

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postjudgment motion was deemed denied by operation of law, and

on May 12, 2014, the mother timely filed her notice of

appeal. See Rule 1(B), Ala. R. Juv. P.; Rule 4(a), Ala. R.2

App. P.; and Holifield v. Lambert, 112 So. 3d 489, 490 (Ala.

Civ. App. 2012) ("[C]ases filed in the Jefferson Family Court

and docketed with a case number having a 'CS' prefix[] are

governed by the Alabama Rules of Juvenile Procedure.").

Analysis

Although the mother raises five different arguments for

reversing the judgment of the family court, we find one issue

to be dispositive –- that the Georgia judgment was rendered

without subject-matter jurisdiction. Hence, we do not address

the other arguments raised by the mother.

We begin by noting that the family court acts as a

juvenile and domestic-relations court with jurisdiction equal

to the circuit courts in matters relating to child custody.

See Act No. 478, Ala. Acts 1935, §§ 2 & 3; and Placey v.

Although the mother moved the family court and this court2

to stay enforcement of the judgment pending resolution of her

postjudgment motion and appeal, those motions were denied.

The mother subsequently petitioned our supreme court for

mandamus relief from the denial of those motions (No.

1131084); that petition remains pending.

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Placey, 51 So. 3d 374, 375 n.2 (Ala. Civ. App. 2010). As

such, the family court had the power to act on the petition

filed by V.L. pursuant to the Uniform Enforcement of Foreign

Judgments Act ("the UEFJA"), Ala. Code 1975, § 6-9-230 et seq.

See Nix v. Cassidy, 899 So. 2d 998, 1002 (Ala. Civ. App. 2004)

("The circuit court had jurisdiction to accept the judgment

creditor's filing of the Georgia judgment pursuant to § 6-9-

232[, Ala. Code 1975]."). V.L. followed the procedure

established under the UEFJA by filing an authenticated copy of

the Georgia judgment with the clerk of the family court, see

Ala. Code 1975, § 6-9-232, and by filing an affidavit setting

forth the information required by Ala. Code 1975, § 6-9-233.

"A judgment [filed pursuant to the UEFJA] has the same

effect and is subject to the same procedures, defenses and

proceedings for reopening, vacating, or staying as a judgment

of a circuit court of this state and may be enforced or

satisfied in like manner ...." § 6-9-232. "Therefore, once

the judgment is domesticated, [a party attacking the validity

or enforceability of the judgment] must resort to procedures

applicable to any other judgment originally entered by a

circuit court in order to set it aside." Greene v. Connelly,

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628 So. 2d 346, 350 (Ala. 1993), abrogated on other grounds,

Ex parte Full Circle Distrib., L.L.C., 883 So. 2d 638 (Ala.

2003). In this case, the mother argued in her renewed motion

to dismiss that the Georgia judgment should be set aside

because it is void for lack of subject-matter jurisdiction, a

ground recognized by Rule 60(b)(4), Ala. R. Civ. P. We,

therefore, treat that portion of her motion to dismiss as a

Rule 60(b)(4) motion, which is an appropriate mechanism to

vacate a domesticated foreign judgment. See Bartlett v.

Unistar Leasing, 931 So. 2d 717, 720 n.2 (Ala. Civ. App.

2005).

"Before giving effect to a foreign judgment, Alabama

courts are permitted to inquire into the jurisdiction of the

foreign court rendering the judgment." Feore v. Feore, 627

So. 2d 411, 413 (Ala. Civ. App. 1993); see also Pirtek USA,

LLC v. Whitehead, 51 So. 3d 291, 295 (Ala. 2010). Generally

speaking, "[t]he scope of inquiry is limited to, '(1) whether

the issue of jurisdiction was fully and fairly litigated by

the foreign court and (2) whether the issue of jurisdiction

was finally decided by the foreign court.'" Feore, 627 So. 2d

at 413 (quoting Alston Elec. Supply Co. v. Alabama Elec.

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Wholesalers, Inc., 586 So. 2d 10, 11 (Ala. Civ. App. 1991)).

However, if the court entering the foreign judgment did not

litigate and decide the question of its subject-matter

jurisdiction, an Alabama court may make its own determination

of subject-matter jurisdiction on a Rule 60(b)(4) motion. See

Lanier v. McMath Constr., Inc., 141 So. 3d 974 (Ala. 2013).

"[T]here is a presumption that the court rendering the

judgment had the jurisdiction to do so, and the burden is

placed on the party challenging the judgment to overcome the

presumption." McGouryk v. McGouryk, 672 So. 2d 1300, 1302

(Ala. Civ. App. 1995).

In this case, the Georgia court rendered a three-page

judgment in which it found that the mother had conceived the

children via artificial insemination through an anonymous

sperm donor. According to the judgment, V.L. acted as "an

equal second parent to the children" after their births. The

judgment recites that it would be in the best interests of the

children, and consistent with their life-long parenting

arrangement, to allow V.L. to adopt the children without

terminating the parental rights of the mother. In that

judgment, the Georgia court did not expressly address its

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legal authority to approve the adoption of the children by the

same-sex partner of the biological mother without terminating

the biological mother's parental rights. From the affidavit

filed by the mother in support of her renewed motion to

dismiss, it is apparent that she fully supported V.L.'s

petition and that she never contested the subject-matter

jurisdiction of the Georgia court. Because that issue was3

not fully and fairly litigated, the family court could have

determined for itself whether the Georgia court had

jurisdiction to enter the Georgia judgment.

In the proceedings below, the mother raised the lack of

subject-matter jurisdiction of the Georgia court, but not

specifically the Georgia court's inability to approve an

The mother's failure to contest subject-matter3

jurisdiction before the Georgia court does not prevent her

from now challenging subject-matter jurisdiction in Alabama

because subject-matter jurisdiction cannot be conferred by

estoppel, see Cedartown North P'ship, LLC v. Georgia Dep't of

Transp., 296 Ga. App. 54, 56, 673 S.E.2d 562, 565 (2009) ("It

is well established that '[j]urisdiction of the subject matter

of a suit cannot be conferred by agreement or consent, or be

waived or based on an estoppel of a party to deny that it

exists.'" (quoting Redmond v. Walters, 228 Ga. 417, 417, 186

S.E.2d 93, 94 (1971))); see also Vann v. Cook, 989 So. 2d 556,

559 (Ala. Civ. App. 2008), and may be raised at any time.

Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007); and Ex

parte Ortiz, 108 So. 3d 1046 (Ala. Civ. App. 2012).

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adoption by a same-sex partner. Nevertheless, lack of

subject-matter jurisdiction may be raised at any time, even

for the first time on appeal. Ex parte Ortiz, 108 So. 3d

1046, 1048 (Ala. Civ. App. 2012). Thus, although the family

court did not consider the issue, this court can now determine

for itself the authority of the Georgia court to enter the

Georgia judgment.

The Georgia Supreme Court has not yet construed the

provisions of the Georgia Adoption Code, Ga. Code Ann., § 19-

8-1 et seq., to determine if it allows adoption by a same-sex

partner who has assumed a de facto parental role. However, in

Wheeler v. Wheeler, 281 Ga. 838, 642 S.E.2d 103 (2007)

(Carley, J., dissenting), Justice Carley asserted that Georgia

law does not authorize a court to approve an adoption by a

person who is not a stepparent or a spouse of the biological

parent unless the parents of the child surrender their

parental rights or their parental rights are involuntarily

terminated. In Bates v. Bates, 317 Ga. App. 339, 730 S.E.2d

482 (2012), the Georgia Court of Appeals recognized that it is

"doubtful" that Georgia law permits such "second parent"

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adoptions and that arguments against the validity of an4

adoption decree approving such an adoption "might well have

some merit." 317 Ga. App. at 342, 730 S.E.2d at 484.

However, in Bates, the Georgia Court of Appeals did not have

to decide the issue in order to dispose of the appeal before

it, which was decided on res judicata grounds.

Our independent review of the Georgia Adoption Code fully

supports Justice Carley's position. Because Georgia does not

recognize same-sex marriages, even those validly made in

foreign jurisdictions, see Ga. Code Ann., § 19-3-3.1(b), V.L.

did not stand in the position of a spouse of the mother or a

stepparent to the children but, for purposes of Georgia's

adoption law, occupied the position of a third party who may

adopt a child only upon the surrender or termination of the

parental rights of the parents of the child. See Ga. Code

Ann., §§ 19-8-5(a) and 19-8-7(a). It follows that, regardless

"A 'second parent' adoption apparently is an adoption of4

a child having only one living parent, in which that parent

retains all of [his or] her parental rights and consents to

some other person –- often [his or] her spouse, partner, or

friend –- adopting the child as a 'second parent.' See Butler

v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1044 ... (N.D.

Cal. 2007) (describing 'second parent' adoption under

California law)." Bates, 317 Ga. App. at 340 n.1, 730 S.E.2d

at 483 n.1.

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premising the award of visitation solely on the terms of the

Georgia judgment and as rejecting any alternative bases

offered by V.L. See Moore v. Graham, 590 So. 2d 293, 295

(Ala. Civ. App. 1991) (requiring judgments to be construed in

light of all the circumstances). However, because the Georgia

judgment is void, V.L. did not acquire any parental rights,

including the right to visitation with the children, by virtue

of that judgment. See generally Sarazin v. Union R.R., 153

Mo. 479, 55 S.W. 92 (1900) (holding that, when articles of

adoption are void, adoptive parent cannot recover for wrongful

death of child). Thus, the family court erred in relying on

that void judgment as a basis for awarding V.L. visitation.

Although the family court did not hold a hearing on the

matter, it appears that it determined from the fact that V.L.

had acted as a "second parent" of the children since their

births that it would be in the best interests of the children

to allow continuing contact with her. We are aware that our

disposition of this appeal overrides that determination, and

we are not unsympathetic to the plight of V.L. and, more

importantly, the children in this case; however, we cannot

give effect to a void judgment or make alternative legal

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arguments for V.L. that might enable her to gain visitation

rights. The family court's judgment is therefore reversed,

and the case is remanded for such further proceedings as are

consistent with this opinion.

In earlier proceedings before this court, the mother

moved for a stay of enforcement of the family court's

judgment. This court denied that motion. In light of our

opinion in this case, we hereby reconsider our ruling and

grant the stay pending further proceedings in this or our

supreme court. If no further appellate proceedings are

undertaken, upon the issuance of this court's certificate of

judgment the judgment of the family court will be annulled and

the stay dissolved for lack of necessity. See Shirley v.

Shirley, 361 So. 2d 590, 591 (Ala. Civ. App. 1978) ("The

reversal of a judgment, or a part thereof, wholly annuls it,

or the part of it, as if it never existed. ... Another

judgment rendered by a court with jurisdiction must thereafter

replace it.").

The mother's request for the award of attorney's fees on

appeal is denied.

STAY GRANTED; REVERSED AND REMANDED.

All the judges concur.

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