Amicus Briefs

Date:  n/a
Cite to Court Decision:  Cert denied by SCOTUS
Link to Court Decision:  n/a

Summary of the Brief:

IN THE SUPREME COURT OF THE UNITED STATES.  R.P. AND S.P. De Facto Parents, Petitioners v. Los Angeles Department of Children and Family Services, The Choctaw Nation of Oklahoma and Alexandria P., A Minor Under the Age of Fourteen Years, Respondents. On Petition for a Writ of Certiorari to the California Supreme Court. Brief of Amicus Curiae, American Academy of Adoption Attorneys in Support of Petitioners. Mark D. Fiddler, Counsel of Record, Fiddler Law Office, P.A., 6800 France Avenue So., Suite 190, Minneapolis, MN 55435.  (612) 822-4095; Email: mark@fiddler-law.com Counsel for Amicus Curiae American Academy of Adoption Attorneys.

This Amicus Curiae brief addresses two central issues. First, “Whether ICWA applies where the child has not been removed from an Indian family or community. Second, “Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by clear and convincing evidence  - contrary to the text and structure of the statute and the decision of at least one other state court of last resort – or otherwise erred in their interpretation of “good cause.” The brief discusses how state courts are deeply divided over the “existing Indian family exception” to the application of ICWA. The U.S. Supreme Court in Adoptive Couple v. Baby Girl,  133 s. Ct. 2552 (2013), held “….that ICWA’s parental termination provisions  may not be invoked by an Indian parent who never had custody under state law but did not discuss the Indian family exception generally. The brief emphasizes ongoing legal confusion since the Bureau of Indian Affairs in 2016 issued regulations purporting to repudiate the existing Indian family exception. In addition, state courts are divided over the interpretation of the “good cause” exception to ICWA’s placement preferences, found in 25 U.S.C. 1915. The new BIA regulations add to the confusion by entirely omitting “the child’s best interests” as a factor the Courts may consider in deciding to deviate from ICWA placement preferences. The state courts around the country apply a plethora of criteria regarding “the child’s best interests”. These range from Oklahoma’s rule that the courts may not apply an “anglo” best interests test to others states who reject the child’s best interests as an independent factor. Finally, the brief emphasizes that “the confusion in the role the child’s best interests play under Section 1915 and the tragic outcomes found in this case.”

Submitted by: John Husson

Date:   Appellate Decision, May 9, 2017
Cite to Court Decision: 
Link to Court Decision:

Summary of the Brief:

IN THE COURT OF APPEALS, STATE OF GEORGIA.  In RE L.J.W. Jr and K.C.W., Appellants.    Amicus Curiae Brief in Support of Appellants filed by Georgia Council of Adoption Attorneys, Inc., Georgia Association of Licensed Adoption Agencies and The American Academy of Adoption Attorneys. Amicus counsel, James B. Outman, of Counsel,  Hester Outman, LLC, Atlanta, Georgia.  (404) 317-3044.  November 2016.

This Amici brief submits this is a case of first impression regarding a Superior Court’s ability to rely upon the finality of an order terminating the rights of an alleged biological father’s right obtained by a licensed child-placing agency in compliance with Georgia’s Adoption Code, in a subsequent adoption action. The Amicus Briefs states “The Trial Court had no authority to enter the Notice Order because there is no provision in Georgia’s Adoption Code for a superior court to require the petitioning adoptive parents to provide notice to anyone following the entry of an order terminating the rights of the unknown biological father of the child that is the subject of the adoption proceeding.” In this case the biological father had failed to register with Georgia’s putative father registry which would have provided him with notice of his biological child being place for adoption and the agency’s separate termination action. The Notice Order as argued by Amici “…violated the public policy of this state to protect adoptive parents’ confidentiality…” The Brief concludes in stating “Amici are only interested in protecting the integrity of Georgia’s Adoption Code, the ability of licensed child-placing agencies and litigants to be able to rely upon the finality of an order terminating the rights of a biological father who fails to register on Georgia’s Putative Rather Registry….”

Conclusion of the Georgia Court of Appeals:  decision pending

Submitted by: John Husson

Date:   Appellate Decision, August 30, 2016
Cite to Court Decision:  In re Brooke S.B., 28 N.Y. 3d, 61 N.E. 3d 488, 39 N.Y.S. 3d 89 (August 30, 2016)
Court Decision 

Summary of the Brief:

COURT OF APPEALS of the STATE OF NEW YORK.  In the Matter of Brooke S.B., against Elizabeth A, C.C.   R. Thomas Rankins, Esq., Attorney for the Child.  Brief for AMICI CURIAE, American Academy of Adoption Attorneys, American Academy of Assisted Reproductive Technology Attorneys, and the New York Chapter of the American Academy of Matrimonial Lawyers in Support of Appellant Attorney for the Child and Respondent Brooke S.B. Loeb & Loeb, LLP, Attorneys for Amici Curiae, AAAA & AAARTA. 345 Park Avenue, 18^th Floor, New York, New York 10154. (212) 407-4000 (O).  Date Completed April 20, 2016.

This Amici Curiae brief supports the successful appeal of a New York ruling denying Brooke B., a child's non-biological caregiver who raised the child since birth but was not married to the biological parent, the right to seek custody or visitation. Elizabeth C., the biological mother, became pregnant through artificial insemination and gave birth, all while in a relationship with Brooke.  Brooke was actively involved in the pregnancy, birth, and early life of the child. Although the couple separated (same sex couples could not, at the time, marry in New York) in the year after the child's birth, Brooke continued to maintain an active relationship with the child until Elizabeth cut off contact several years later.  The lower courts applied settled Court of Appeals precedent applying a "bright-line" test:  the only people who qualified as a "parent" and thus had standing to seek custody or visitation pursuant to Domestic Relations Law § 70 were the biological or adoptive parents of the child. The Court here rejected that requirement and ruled that “…parental status should be determined …through consideration of all relevant facts and circumstances…”

The significantly large number of children born nationwide and in New York through assisted reproductive technology was an important consideration by the Court. “About a million American adults, if not more, are the biological children of sperm donors.” In addition, the Amici Brief points out that “…the New York legal system had failed to adjust to new definitions of family, leaving non-biological parents with instability as to their role in their children’s lives.” It further states that “A child’s emotional bond to their parents is not dependent on whether they are genetically related to that person.” Finally the Brief does an excellent job in helping to persuade the Court that “Adoption is not a proper litmus test for parenthood for purposes of Domestic Relations Law Section 70.” Adoption should not be a condition precedent to standing. The Brief concludes in stating that the word “parent” should have an overly restrictive meaning and should be taken to have its usual and ordinary meaning. New York’s highest court agreed and expanded the definition of parenthood, especially for same-sex couples.

Conclusion of the Court of Appeals of New York:

We conclude that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 (a) in accordance with the test outlined above…. Inasmuch as the conception test applies here, we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel is a matter left for another day, upon a different record.

Submitted by: John Husson

Date:  Appellate Decision, July 7, 2016
Cite to Court Decision:  141 A.2d 31, 448 Md 548 (Md. 2016)
Link to Court Decision: 

Summary of the Brief:

IN THE COURT OF APPEALS OF MARYLAND.  September Term, 2015.  Michelle L. Conover, Petitioner v. Brittany D. Conover, Respondent.  Counsel for Amici Curiae:   Tassity Johnson, Francis D. Murnaghan Appellate Advocacy Fellow, Pubic Justice Center, Baltimore, MD.  410-625-9409 (O). Email: johnsont@publicjustice.org

The Amicus brief filed in this case concerns an unmarried same sex female couple in which one partner, the non-genetic parent (Michelle Conover), was denied parental rights (following the dissolution of her unmarried relationship) because she could not legally marry Brittany Conover when their child was conceived. This case preceded the 2015 Obergefell v. Hodges, U.S. Supreme Court decision. The brief argues that “Obergefell must be applied retroactively to cases such as this one, where an individual was deprived of her entitlement to presumptive parentage solely because of laws unconstitutionally discriminating against her.” The brief discusses the increasing incidence of Maryland same-sex couples using donor insemination to conceive. Attorney Johnson argues that the Court clearly define the rights and obligations of non-biological parents in these relationships. The primary argument in the brief is that the “intended parentage” doctrine assigns parentage to each individual based on the couple’s intentions to parent. “Maryland should follow the direction of these courts in recognizing that the intentions regarding parentage of couples who conceive a child through donor insemination should control.” Michelle Conover was intimately involved in the conception, birth and day to day parenting of her son.

Conclusion of the Court of Appeals of Maryland

We overrule Janice M. because it is “clearly wrong” and has been undermined by the passage of time. In light of our differentiation in McDermott, 385 Md. at 356, between “pure third parties” and those persons who are in a parental role, we now make explicit that de facto parents are distinct from other third parties. We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The best interests of the child standard has been “firmly entrenched in Maryland and is deemed to be of transcendent importance.” Ross, 280 Md. at 174–75. With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child's close, nurturing relationships.

We do so carefully, adopting the multi-part test first articulated by the Wisconsin Supreme Court in H.S.H.-K. This test accommodates, we think, the dissonance between what is in the best interest of a child and a parent's right to direct and govern the care, custody, and control of their children.

We reverse the Court of Special Appeals, and direct that court to remand this case to the Circuit Court for determination of whether, applying the H.S.H.-K. standards, Michelle should be considered a de facto parent, and conduct further proceedings consistent with this opinion.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.

Submitted by: John Husson

Date:   June 1, 2016
Cite to Court Decision:  50 N.E. 3d 571 (2016)
Link to Court Decision: 

Summary of the Brief:

IN THE SUPREME COURT OF OHIO. STATE OF OHIO. Ex. Rel., Brian J. Anderson and Kelly A. Anderson, Relators vs. Judge Glenn H. Derryberry, Allen County Juvenile Court, Respondent. Motion for reconsideration on writ of prohibition to the Supreme Court of Ohio. Counsel for Amicus Curiae, American Academy of Adoption Attorney, Barbara T. Ginn, Cincinnati, Ohio. (513) 873-1889. Email: Barbara@ginnllc.com

This Amicus brief states the issue as follows: Whether a probate court may exercise its exclusive jurisdiction in an adoption action where a juvenile court has continuing jurisdiction over a ­custodymatter but no parentage action has been filed. Amicus counsel argues that the Allen County Juvenile Court erred in failing to recognize that the Mercer County Probate Court holds exclusive jurisdiction over the proposed adoption because the Allen County Juvenile Court has continuing jurisdiction over a custody matter and not a parentage proceeding.The juvenile court as argued by Amicus Curiae failed to distinguish the jurisdictional differences in a parentage action and a custody action. The Juvenile Court’s action resulted in the child being placed with an unfamiliar biological relative after having lived with the Andersons (Relators) for 20 months. Amicus counsel made the following three arguments. THE STATE HAS A COMPELLING INTEREST IN CHILDREN BEING RAISED IN SAFE, STABLE AND PREEMINENT HOMES, WHEN A LEGAL PARENT EXERCISES HER RESIDUAL PARENTAL RIGHTS TO CONSENT TO AN ADOPTION, THIS COMPELLING STATE INTEREST IS BEST ACCOMPLISHED THROUGH THE PROBATE COURT CONDUCTING A HEARING TO DETERMINE IF THE PROPOSED ADOPTION HOME IS IN THE BEST INTEREST OF THE CHILD. THE BIOLOGICAL LEGAL PARENT HAS A CONSTITUTIONAL AND STATUTORY RIGHT TO PLACE HER CHILD ADOPTIVELY, EVEN WHEN THE STATE HAS TEMPORARY CUSTODY.  THE PROBATE COURT HAS PROPER JURISDICTION TO ADJUDICATE AN ADOPTIVE PLACEMENT EVEN WHEN A CUSTODY MATTER IS PENDING IN JUVENILE COURT; THE JUVENILE COURT MUST REFRAIN FROM PROCEEDING WITH CUSTODY MATTERS UNTIL THE ADOPTION PETITION IS GRANTED THROUGH AN INTERLOCUTORY ORDER OR FINAL DECREE, OR THE PROBATE COURT DISMISSES THE PENDING ADOPTION MATTER. Amicus counsel argued that the Juvenile Court has disregarded the ample case law that spells out when the Probate Court may exercise jurisdiction. The Juvenile Court has refused to prioritize the best interests of the Child. The Juvenile Court demonstrated an absolute bias against the Relators (with whom the child had lived for 20 months before being removed by the agency). The actions of the Juvenile Court amount to an absolute abuse of discretion.

Court Decision: Case was dismissed.

In Prohibition. This cause originated in this court on the filing of a complaint for a writ of prohibition.

Upon consideration of relators' motion to seal the record, it is ordered by the court that the motion is granted.

Upon consideration of respondent's motion to dismiss, it is ordered by the court that the motion to dismiss is granted. Accordingly, this cause is dismissed.

Submitted by John Husson

Date:  May 7, 2015
Cite to Court Decision:  29 NE 3d 830, 471 Mass 373
Court Decision 

Summary of the Brief:

COMMONWEALTH OF MASSACHUSETTS. SUPREME JUDICIAL COURT.  In Re: Adoption of a Minor. Brief of Amicus Curiae filed February 17, 2015. AAAA & AAARTA. Mary Bonauto, Esq.  Gay and Lesbian Advocates & Defenders, Boston, MA, (617) 426-1350. Email: mbonauto@glad.org

Amici Curiae ask the Court in their brief to answer the reported question “no” so that a married couple who uses “artificial insemination” to conceive a child is under no obligation to provide notice to a known sperm donor pursuant to G.L. c. 221 Section 2 when the couple seeks jointly to adopt their child. Amici set forth the foundational importance of Massachusetts legislation and relevant caselaw to secure parentage in those who intend and endeavor to bring a child into their family by using procedures encompassed by “artificial insemination” but not to confer parentage on the gamete donor. Amici also explain how Massachusetts law is consistent with the laws of other states in protecting the intended parents who use ART to bring a child into the world and their children, and therefore find a donor is not a parent. Finally, Amici argue that Massachusetts and other state statutes and case law prioritize the spouse’s consent to non-coital methods to conceive as the key factor in assigning legal parentage in the intended parent rather than the donor. Re the known donor issue, Amici argue that a donor, known or unknown, is not a parent. In this case, there was no agreement between the recipients and donor to co-parent. Nor did the known donor in this case establish a parent-child relationship with a child or children.

Conclusion of the Supreme Judicial Court:
Court held that Massachusetts law does not require the lawful parents of a child to give notice of the petition for adoption to a known sperm donor.

Held: Because G. L. c. 210, § 2, does not require the lawful parents of a child to give notice of the petition for adoption [471 Mass. 380] to a known sperm donor, we answer the reported question, " No." The order denying the petitioners' motion to proceed with the adoption without further notice is reversed. The matter is remanded to the Probate and Family Court for further proceedings consistent with this opinion. So ordered.

Submitted by John Husson