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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

MARC 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

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 COURTS


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

III.

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

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

TABLE OF AUTHORITIES
Page(s)
CASES
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 Natl Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Assn,
455 U.S. 691 (1982) .............................................................................................. 4, 9
Webb v. Webb,
451 U.S. 493 (1981) .................................................................................................. 2

ii

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 AUTHORITIES
Leslie M. Fenton & Ann Fenton, The Changing Landscape of Second-Parent
Adoptions, ABA Section of Litigation (Oct. 25, 2011) ............................................. 3

iii

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
Litems, she made no effort whatsoever to respond to many of the Guardian Ad
Litems reasons for staying and recalling the Alabama Supreme Courts 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 Courts 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 Courts intervention. If this Court grants review, there is a strong
likelihood of reversal.

The Alabama Supreme Court grossly deviated from this

Courts full-faith-and-credit jurisprudence.

E. L.s meager efforts to defend that

Courts decision, and her inability to respond to V. L.s and the Guardian Ad Litems
arguments, only highlight the decisions gaping flaws. Finally, there can be no
question that the children are being harmed and will continue to be harmed absent
a stay.

ARGUMENT
I.

THERE IS A REASONABLE PROBABILITY THAT CERTIORARI


WILL BE GRANTED
The issue presented in V. L.s petition is worthy of this Courts review

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


Alabamas 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 Litems 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 childrens legal
mother, notwithstanding the Alabama courts 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 Courts intervention.
Webb, 451 U.S. 493, 494 (1981). E. L. offers no response.

See Webb v.

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


correction. The Alabama courts 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
childrens 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 secondparent 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

into Alabama. Moreover, the Alabama Supreme Courts 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 Courts rationale
from extending to any state adoption decree that an Alabama court deems faulty.
This Courts 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 COURTS


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 Natl Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Assn, 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).

In attempting to defend the Alabama Supreme Courts 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

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.

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


requirement that goes to the Georgia courts 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 childrens 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.

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 Courts 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 parents 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 courts
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 courts 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

Alabama courts are bound to do so as well. See Underwriters Natl Assur., 455 U.S.
at 702.
In short, there are multiple, unrebutted reasons that the Alabama courts
refusal to give full faith and credit to the Georgia adoption judgment violated the
Constitution. If certiorari is granted, this Court is likely to reverse.
III.

EQUITABLE CONSIDERATIONS WARRANT A STAY HERE


E. L. cannot seriously dispute that the lack of visitation is causing and will

continue to cause serious irreparable harm in the lives of the three children at issue
here. She has never contested V. L.s fitness as a parent, nor has she ever disputed
that visitation is in the childrens best interests. She suggests that the harm to the
children is based on nothing more than general social science principles. E. L.
Opp. 20. But she completely ignores the Guardian Ad Litems judgment about the
best interests of these children. Based not only on his experience but also on his
relationship and communication with these particular children, the Guardian Ad
Litem has determined that lack of visitation is detrimental to the childrens welfare
and that the childrens emotional needs demand visitation with their mother, V. L.
That alone is compelling evidence of irreparable harm.
Contrary to E. L.s suggestion (at 19-20), a stay and recall of the Alabama
Supreme Courts certificate of judgment would reinstate the visitation order that
was in place before the Alabama Supreme Court stayed it. The Alabama Court of
Civil Appeals initially concluded that V. L. was not an adoptive parent, and it
expressly granted E. L. a stay of enforcement of the family courts visitation order.
Reply App. 82a. But on rehearing, that court withdrew its decision and issued a
9

new decision holding that the Georgia adoption judgment is entitled to recognition.
App. 59a-60a. The court also held that the family court erred in issuing a final
visitation order without conducting an evidentiary hearing, and it remanded for
such a hearing.

App. 60a-61a.

But, significantly, and unlike with its initial

decision, the appellate court did not stay enforcement of the family courts existing
visitation order. App. 61a. All parties agreed that the visitation order was in effect,
and in fact V. L. continued to have visitation with her children. Indeed, recognizing
that the intermediate appellate court had left the visitation order in force, E. L.
sought a stay from the Alabama Supreme Court. Reply App. 63a-66a. Contrary to
her position now (E. L. Opp. 20), E. L. acknowledged in her stay motion that
[w]hen the Court of Civil Appeals issued its Opinion on rehearing * * * , it did not
re-issue or re-instate a stay, despite reversing the trial courts order and
remanding. Reply App. 65a. Only once the Alabama Supreme Court granted her
stay motion in April 2015 (Reply App. 62a) was visitation terminated. A stay of the
Alabama Supreme Courts decision now would mean that the parties would be
governed by the non-stayed visitation order that was in effect at the conclusion of
the Alabama intermediate courts proceedings.
In deciding whether to issue a stay, this Court may balance the equities.
Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers).
The equities here strongly favor granting of a stay. E. L. does not contend that she
or the children would be harmed if visitation were restored. E. L. suggests only
that V. L. does not have clean hands because the parties sought to establish

10

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
courts authority when it suited her interests and challenging the Georgia courts
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 childrens 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

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 not
disputed. 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 courts 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.
1

11

decrees entered by state courts); cf. Adoptue 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,

Zor+42*r.n^*
Menc A. HnaRnoN

RurH N. BonnNSTEIN
Monnrsor.l & Fopnsrnn LLP
426Market Street
San Francisco, California 941-05
Telephon

e:

Counsel of Record

Snru W. Llovr*
Monnrsox & FonnsrnR LLP
2000 Pennsylvania Avenue, N.W
IVashington, D.C. 20006

4L5.268. 7500

Counsel for Applicant

*Admitted in California. Adrnission


to D.C. pending. Worh superuised by
firm attorneys admitted in D.C.
DpcpnnsrR L, 2015

dc-812769

L2

No. 154532

lln tSe $uweme

@ourt of tbeffinite $tutes

Toem J. Surts, Guardian ad Litem,


as representative of three minor children,

Applicant,
v
E. L. and V. L.,
Respondents.

CERTIFICATE OF SERVICE

I, Marc A. Hearron, hereby certi$z that I am a member of the Bar of this Court,
and that I have this 1st day of December 2015, caused one copy of the 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 to be served via overnight mail and an electronic
version of the document to be transmitted via electronic mail to:
Adam G. Unikowsky
Jenner & Block LLP
1099 New York Ave., NW,
Suite 900
Washington, DC 20001
aunikowsky@jenner.com

S. Kyle Duncan
Duncan PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
kduncan@duncanpllc.com

Marc A. Hearron

REPLY APPENDIX

62a

IN THE SUPREME COURT OF ALABAMA


April 15, 2015
1140595
Ex parte E.L. PETITION F O R WRIT OF CERTIORARI TO T H E C O U R T OF CIVIL
A P P E A L S (In re: E.L. v. V.L.) (Jefferson Family Court: CS-13-719; Civil Appeals :
2130683).

ORDER
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. R e b e c c a Oates
Hon. Raymond Chambliss
Anne Lamkin Durward, E s q .
Randall W . Nichols, E s q .
Heather F a n n , E s q .
Catherine Sakimura, E s q .
Traci Owen Vella, E s q .
Michael Stuart N i s s e n b a u m , E s q .
Breauna R. Peterson, E s q .
Tobie J . Smith, E s q .
Herbert Francis Y o u n g , Jr., E s q .
Bryant Andrew Whitmire, Jr, E s q .

/as

63a

E-Filed
03/12/2015 @ 11:05:57 AM
Honorable Julia Jordan Weller
Clerk Of The Court

DOCKET NUMBER

1140595

IN THE SUPREMME COURT OF ALABAMA


EX PARTE E.L.
IN R E :
E.L.,

PETITIONER

V.L.,

v.
RESPONDENT

MOTION FOR STAY PENDING CONSIDERATION OF PETITION


FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

Appellant,
this

Court

E.L., ( h e r e i n a f t e r

t o grant

a s t a y o f t h e enforcement

which

underlies the Petition

Court

o f C i v i l Appeals
At

issue

recognize
court
when

and grant
Alabama

f o r Writ

o f Alabama f i l e d

i n t h e appeal

a "second

parent"

visitation

does

"Mother")

rights

not recognize

o f the order
t o the

on M a r c h 11,

granted

2015.

Alabama

must

by a Georgia

t o t h e "second
such

moves

of Certiorari

i s whether

adoption

hereby

adoptions

parent"

as v a l i d .

S e c o n d - p a r e n t a d o p t i o n i s d e f i n e d a s " [ a ] n a d o p t i o n b y an
unmarried c o h a b i t i n g partner o f a c h i l d ' s l e g a l parent, not
involving the termination of a l e g a l parent's r i g h t s ; esp.,
an a d o p t i o n i n w h i c h
a lesbian,
g a y man, o r u n m a r r i e d
h e t e r o s e x u a l person adopts h i s o r h e r p a r t n e r ' s b i o l o g i c a l
o r a d o p t i v e c h i l d . " BLACK's LAW DICTIONARY 53-54 ( 8 t h e d .
2004).
1

64a

Based

on

such

recognition,

the t r i a l

visitation

rights

biological

c h i l d r e n . (Ex. " J " )

Mother

sought

When t h e t r i a l
the

Court

motion
The
to

of

because

Family
stay.

f o r t h e Respondent,

a stay

court
Civil

Appeals

the t r i a l

Appeals

below

V.L., w i t h

the t r i a l

d i d not r u l e ,

court

she s o u g h t

(Ex. " 0 " ) , w h i c h

court

(Ex. "Q") .

Mother

denied.
entered

Appeals

(Ex. " S " ) .


i t s initial

( " I n i t i a l Opinion"),

Mother's

a stay

from

denied

the

had y e t t o r u l e

filed

ordered

(Ex. "M") .

Court o f J e f f e r s o n County then denied

with the Court of C i v i l


initially

from

court

(Ex. "P") .
the motion

a renewed m o t i o n t o s t a y

(Ex. "R") .

T h a t m o t i o n was

Then, when t h e C o u r t o f C i v i l
Opinion

on

October

24,

2014

i t r u l e d as f o l l o w s :

In e a r l i e r
proceedings
before
this
court, the
m o t h e r moved f o r a s t a y o f e n f o r c e m e n t o f t h e
f a m i l y c o u r t ' s judgment.
This court denied that
motion.
I n l i g h t o f o u r o p i n i o n i n t h i s c a s e , we
hereby r e c o n s i d e r o u r r u l i n g and g r a n t t h e s t a y
p e n d i n g f u r t h e r p r o c e e d i n g s i n t h i s o r o u r supreme
court.
I f no f u r t h e r a p p e l l a t e p r o c e e d i n g s
are
undertaken,
upon t h e i s s u a n c e
of t h i s
court's
c e r t i f i c a t e o f judgment t h e judgment o f t h 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 a n d t h e s t a y d i s s o l v e d f o r
lack of necessity.
See S h i r l e y v. S h i r l e y ^ 361
So.
2d 590, 591
( A l a . C i v . App.
1978)("The
r e v e r s a l o f a judgment, o r a p a r t t h e r e o f , w h o l l y
a n n u l s i t , o r t h e p a r t o f i t , as i f i t n e v e r

C i t a t i o n s t o E x h i b i t s are t o those
Memorandum i n S u p p o r t o f t h i s M o t i o n .

filed

with

Mother's
2

65a

e x i s t e d . _ Another
judgment r e n d e r e d by a c o u r t
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 r e p l a c e i t . " ) .
(Initial

O p i n i o n , Ex. "T", p. 1 4 ) .

The

Court

of

and

held

rehearing
following

27,

Appeals

2015

instate
and

("Rehearing

the

in

clear

On

of C i v i l

granted

the

afternoon

Appeals

entered

(Ex. " V " ) . When t h e C o u r t o f

i t s Opinion
Opinion"),

on r e h e a r i n g

with

on

February

i t d i d not r e - i s s u e or r e

reversing the t r i a l

f o r hearing

Court

of

the order

i s the order

biologically

arguments.

the Court

despite

subsequently

regard

court's

to i t svoid

order
order.

O p i n i o n " , Ex. "W").

acknowledges,
stay

issued

a stay,

Appeals

the stay.

("Rehearing

remanding

As

oral

t h e argument,

an O r d e r d i s s o l v i n g
Civil

Civil

Civil
which

Appeals

the Petitioner

granting v i s i t a t i o n

related
violation

person
of

( R e h e a r i n g O p i n i o n Ex. "W",

Rehearing

without

i s seeking to

privileges

t o a non-

an e v i d e n t i a r y h e a r i n g

established
pp.

Opinion

Alabama

precedent.

16-17).

P r i o r t o the 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 W r i t o f Mandamus w i t h t h i s
Court seeking a stay of the t r i a l c o u r t ' s order.
Upon t h e
C o u r t o f C i v i l A p p e a l s ' e n t r y o f a s t a y i n i t s O c t o b e r 24,
2014 O p i n i o n , a n d b e l i e v i n g t h e P e t i t i o n f o r Mandamus t o be
moot,
Mother
filed
a Motion
t o Dismiss
t h e Mandamus
p r o c e e d i n g , w h i c h t h i s C o u r t g r a n t e d b y O r d e r o f November
7, 2014. ( E x h i b i t " U " ) .
3

66a

Mother
have

decree

adoption
i s not

courts.

that,

faith

i n consideration
to

visitation

order

pending

i n this

and d i f f e r e n t

to

enter

even

and

enter

the

"second-

from

Alabama

Motion.

of the foregoing,

stay

of

The M o t h e r

relief

d i d not

i s s e t f o r t h more f u l l y i n

the completion

cause.

court

i f i t d i d , that

credit

i n support of t h i s

Court

the

and

full

this

further

the Georgia

legal position

Memorandum f i l e d

proceedings

that

jurisdiction

decree
due

Mother's

WHEREFORE,
asks

contends

subject-matter

parent"

the

also

t o which

the

trial

of the
also

Mother
court's

appellate

requests

she may be

such

entitled,

premises c o n s i d e r e d .
R e s p e c t f u l l y submitted,

/s/KaA^dOLiM).

Nichols

R a n d a l l W. N i c h o l s
rnichols@msnattorneys.com
Anne L a m k i n D u r w a r d
adurward@msnattorneys.com
Attorneys f o r Petitioner
MASSEY, STOTSER & NICHOLS, PC
1780 Gadsden Highway
B i r m i n g h a m , AL
35235
(205) 838-9000

67a

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 u n d e r s i g n e d h e r e b y c e r t i f i e s t h a t a copy o f t h e
foregoing
has been
filed
electronically,
on t h e d a t e
indicated.
In accordance with e l e c t r o n i c f i l i n g procedure.
N i n e (9) c o p i e s w i l l be m a i l e d t o t h e C l e r k o f t h i s C o u r t
and a copy w i t h be m a i l e d t o t h e o p p o s i n g c o u n s e l as
indicated.
DATED t h i s

t h e 1 2 t h day o f March, 2015.

Hon. R e b e c c a C. G a t e s ,
Alabama Court o f C i v i l
300 D e x t e r A v e .
Montgomery, AL 36104

Clerk
Appeals

T r a c i Owen V e l l a
VELLA & KING
3000 C r e s c e n t Avenue
B i r m i n g h a m , AL 35209
tvellagvellaking.com
C a t h e r i n e Sakimura
N a t i o n a l Center f o r Lesbian Rights
870 M a r k e t S t r e e t , S t e . 370
San F r a n c i s c o , CA 94104
csakimuraSnclrights.org
5

68a

B r e a u n a Renea P e t e r s o n
Tobie J . Smith
H e r b e r t F. Young, J r .
M i c h a e l N. Nissembaum
L e g a l A i d S o c i e t y o f Birmingham
120 2'"'^ C o u r t N o r t h
B i r m i n g h a m , AL
35204
petersonbgj ccal.org
smithtogj ccal.org
youngbgj c c a l . o r g
nissenbaumm@j c c a l . o r g
H e a t h e r Fann
BOYD, FERNAMBUCQ, DUNN & FANN
3500 B l u e L a k e D r i v e
S t e . 220
B i r m i n g h a m , AL 35243
hfanngbfattorneys.com
B r y a n t A. W h i t m i r e , J r .
215 R i c h a r d A r r i n g t o n J r . B l v d . N o r t h
S t e . 501
B i r m i n g h a m , AL 35203
dwhitm@bellsouth.net

R a n d a l l W. N i c h o l s
Attorney f o r Petitioner

69a

REL: 10/24/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets 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

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.

70a

2130683
(hereinafter referred to collectively as "the children").

We

reverse and remand.


Background
On

October

31,

2013,

V.L.

filed

petition

Jefferson Circuit Court ("the circuit court").

in

the

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

71a

2130683
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.
Georgia

requested
judgment;

that

the

declare

her

circuit

court

legal

status,

register

the

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

72a

2130683
the family court's jurisdiction.1

On December 27, 2013, V.L.

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.
the

motion

to

That same date, V.L. filed a response 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

scheduled visitation with the children.

and

awarded

V.L.

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 to


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.
4

73a

2130683
postjudgment motion was deemed denied by operation of law, and
on May 12, 2014, the mother timely filed her notice of
appeal.2

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

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 court
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.
5

74a

2130683
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 6-9232[,

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,

75a

2130683
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.

76a

2130683
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

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

77a

2130683
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.3

Because that issue was

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-matter
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).
9

78a

2130683
adoption

by

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., 198-1 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"

10

79a

2130683
adoptions4 and that arguments against the validity of an
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 of


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.
11

80a

2130683
of the legal theory employed, a judgment purporting to approve
an

adoption

by

same-sex

partner,

which

preserves

the

parental rights of the biological mother, would be invalid


under Georgia law.

Hence, a court, even one vested with

general subject-matter jurisdiction over adoptions, would not


be empowered to enter a judgment approving such an adoption,
even if the adoption served the best interests of the children
involved.

See In the Interest of Angel Lace M., 184 Wis. 2d

492, 506, 516 N.W.2d 678, 681 (1994) (holding that, before a
trial court may find "'that a second parent adoption is in a
child's best interests, it must first determine whether it has
the

power

to

grant

such

an

adoption

under

the

existing

adoption statutes'" (quoting Emily C. Patt, Second Parent


Adoption: When Crossing the Marital Barrier is in a Child's
Best Interests, 3 Berkeley Women's L.J. 96, 111 (198788))).
Based on the foregoing, we conclude that the Georgia court
lacked

subject-matter

jurisdiction

to

enter

the

Georgia

judgment and, thus, that the Georgia judgment is void.


In its final judgment, the family court rejected the
mother's subject-matter-jurisdiction arguments, but it denied
all other requests for relief.

12

We construe that judgment as

81a

2130683
premising the award of visitation solely on the terms of the
Georgia

judgment

offered by V.L.

and

as

rejecting

any

alternative

bases

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

13

82a

2130683
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

judgment.

stay

of

enforcement

of

the

This court denied that motion.

family

court's

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.
14