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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
MHearron@mofo.com
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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4
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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8
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
rnichols@msnattorneys.com
Anne Lamkin Durward
adurward@msnattorneys.com
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
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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
VELLA & KING
3000 Crescent Avenue
Birmingham, AL 35209
t v e l l a g v e l l a k i n g . c o m
Catherine Sakimura
N a t i o n a l Center f o r Les bia n Rig ht s
870 Market S t r e e t , Ste. 370
San F r a n c i s c o , CA 94104
c s a k i m u r a S n c l r i g h t s . o r g
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Breauna Renea Peterson
Tobie J . Smith
Herbert F. Young, J r .
Michael N. Nissembaum
Legal A i d S o c i e t y of Birmi ngham
120 2'"'̂ Cou rt Nort hBirmingham, AL 35204
petersonbgj c c a l . o r g
smithtogj c c a l . o r g
youngbgj c c a l . o r g
nissenbaumm@j c c a l . o r g
Heather Fann
BOYD, FERNAMBUCQ, DUNN & FANN
3500 Blue Lake Drive
S t e . 220Birmingham, AL 35243
hfanngbfattorneys.com
Bryant A. Whitmire, J r .
215 R i c h a r d A r r i n g t o n J r . Bl vd . Nort h
S t e . 501
Birmingham, AL 35203
dwhitm@bellsouth.net
R a n d a l l W. Ni cho ls
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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