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Sinnott v. Peck

Supreme Court of Vermont

December 1, 2017

Sarah Sinnott
Jennifer Peck

         On Appeal from Superior Court, Chittenden Unit, Family Division May Term, 2016 James R. Crucitti, J.

          Sarah R. Star, Middlebury, and Jennifer L. Levi, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Plaintiff-Appellant.

          Jennifer Peck, Shelburne, Pro Se, Defendant-Appellee.

          Jennifer Wagner of Marsh & Wagner, P.C., Middlebury, for Amicus Curiae National Center for Lesbian Rights.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, J.

         ¶ 1. This is the third case in the last decade that has called upon this Court to determine whether an individual who is not biologically related to a child, has not legally adopted the child, and is not married to the child's legal parent may be the child's legal parent. In the absence of guidance from the Legislature on this question, this Court must continue to resolve these cases as they arise, relying on the sparse guidance the Legislature has given us, our past decisions, and national trends. The family division dismissed plaintiff's petition to establish parentage of the two children legally adopted by her domestic partner, concluding that the definition of "parent" in the Vermont parentage statute does not extend to those who are not connected by biology or adoption to the child, or by marriage or civil union to the child's legally recognized parent. We conclude that plaintiff's allegations are sufficient to withstand dismissal with respect to the younger child, M.P., insofar as plaintiff has alleged that she and defendant mutually agreed to bring M.P. into their family and to raise her together as equal co-parents, and have in fact done so for many years. Accordingly, we affirm the dismissal as to G.P, and reverse as to M.P, and remand for further proceedings.

         ¶ 2. We review a decision to dismiss for lack of jurisdiction without deference, "with all uncontroverted factual allegations of the complaint accepted as true and construed in the light most favorable to the nonmoving party." Jordan v. State Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997). The question before the Court at this juncture is not whether plaintiff is entitled to custody or even legal recognition as a parent. The only question before us now is whether, assuming the facts alleged in the complaint to be true, "it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove about the claim made in [the] complaint which would entitle [plaintiff] to relief." Parker v. Town of Milton, 169 Vt. 74, 79, 726 A.2d 477, 481 (1998) (quotation omitted).

         ¶ 3. Plaintiff alleged the following facts, which we accept as true for the purposes of evaluating the trial court's dismissal of her parentage action. Plaintiff and defendant were in a relationship from 2003 to 2010. They lived together, shared meals, vacationed together, and cared for each others' aging parents. When their relationship began, defendant was the adoptive mother of a one-year-old child, G.P. The parties raised G.P. as an intact family. From the time she could talk, G.P. referred to plaintiff as "Mom, " or "Mama." Defendant encouraged G.P. to call plaintiff "Mama, " and referred to plaintiff as "Mama" in the child's presence.

         ¶ 4. When G.P. was two years old, the parties jointly decided to adopt another child together. They had extensive discussions about whether to pursue a domestic adoption or to adopt another child from Guatemala, where G.P. was born. They ultimately decided to adopt a child from Guatemala because they thought the children should have a common shared heritage. They began working with an agency that would facilitate their adoption as a same-sex couple. Because of concerns about the timing of the adoption and the possibility that Guatemala was going to close off its adoption process, they jointly decided that defendant would initiate the formal adoption because she had been through the process before. After they learned that the agency they had begun working with as a couple was going to take significantly longer than expected and they would only be able to adopt an older child rather than a baby, the parties decided to switch to the agency defendant had used when she adopted G.P. That agency did not allow same-sex adoptions. Defendant worked with the agency as the adoptive parent. On two occasions, plaintiff stayed home with G.P. while defendant traveled to Guatemala to visit the proposed adoptive child, M.P.; on two other occasions, plaintiff, defendant, and G.P. all traveled to Guatemala together to spend time with M.P. M.P. came home to Vermont in February 2006, when she was almost six months old.

         ¶ 5. Plaintiff fulfilled the role of a parent to the children in every aspect: she took maternity leave to be the primary caretaker of the children after M.P.'s adoption, and when she went back to work part-time, she took M.P. with her; the children called her "Mom, " and defendant referred to her as the children's mother to friends, teachers, doctors, family, and acquaintances; she was part of medical decisionmaking; and she took care of the children's daily needs, including bathing them, putting them to sleep, and taking them to the doctor. Because she had more flexible work hours than defendant, plaintiff took the primary parenting role in the children's lives.

         ¶ 6. The parties intended to enter into a civil union and go through a legal second-parent adoption, but a series of life complications, ranging from the illness and death of defendant's parents to defendant's frequent travel to Washington D.C. to care for an ill friend to plaintiff's then-undiagnosed Lyme disease, prevented the parties from entering into a civil union or completing a second-parent adoption of the children.

         ¶ 7. In 2010, when the parties' relationship ended, they created a shared custody agreement providing for each parent to have the children half of the time. Both parents supported the children financially. The parties never filed this custody agreement with any court, but did communicate it to the children's school. The parties attended family counseling to work on their co-parenting and implement a schedule.

         ¶ 8. The parties acted in accordance with the agreement until 2013, when defendant began disrupting the contact schedule. Defendant told the school not to contact plaintiff about the children and prevented the children from seeing plaintiff, sometimes for weeks at a time. Despite the disruptions in the schedule, plaintiff has maintained a strong bond with the children. They text and talk to each other and see each other when defendant allows. M.P. has communicated that she loves and misses plaintiff, but that defendant will call the police if she emails plaintiff again. The disruption has been harmful to the children.

         ¶ 9. On August 21, 2015, plaintiff filed a petition in the family division pursuant to 15 V.S.A. §§ 301-308 to establish parentage, in which she claimed to be the "de facto and intended mother of the children." On September 30, the family division, on its own initiative, dismissed plaintiff's case because it concluded that it lacked jurisdiction. Relying on our decisions in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), and Moreau v. Sylvester, 2014 VT 31, 196 Vt. 183, 95 A.3d 416');">95 A.3d 416, the family division noted that this Court has "declined to expand the definition of 'parent' in cases of so-called 'third-party parents' where there has been no adoption, marriage, or civil union." The court noted that plaintiff is "apparently seeking a legal remedy, " in contrast to the equitable remedies sought in Moreau and Titchenal, but concluded there was no jurisdiction over the case, given this Court's unwillingness "to open parentage actions to third parties in [plaintiff's] position." Plaintiff appealed. Defendant did not file a brief, and the Court has no record of defendant's position as to plaintiff's parental status. The National Center for Lesbian Rights has filed a brief as amicus curiae in support of plaintiff's position.

         ¶ 10. On appeal, plaintiff argues that she is entitled to pursue an action for parentage, as the family division has jurisdiction over her claim and she has standing as a parent under 15 V.S.A. § 302 to bring a parentage action. Furthermore, plaintiff argues that Vermont law and the U.S. Constitution require the Parentage Act to be interpreted to allow the nonmarital partner of an adoptive parent to seek parental rights and responsibilities, and that the ability of a nonmarital couple to jointly adopt should not preclude the nonadoptive parent from establishing parentage through the statute.

         ¶ 11. We conclude that the family division erred in dismissing this case. This Court's past decisions with respect to the definition of "parent, " and access to the rights and responsibilities that come from that status, have created a legal framework in which parental status is viewed in the absence of a marriage, civil union, or biological or adoptive relationship with the child in a narrow class of cases in which the parents intended to bring a child into their family and raise the child together, and in fact did so.[1] This approach is not only consistent with our caselaw concerning parental rights, but it also furthers the core purpose of Vermont's statutes relating to parent-child relationships, which is promoting the welfare of children, and it is supported by the weight of persuasive authority on this issue. Applying this framework to this case, we conclude that plaintiff pled sufficient facts to survive a motion to dismiss, and is entitled to the opportunity to prove her claims as they relate to the younger child, M.P., but not the older child, G.P. We continue to urge the Legislature to act in this area, but in the absence of legislative guidance, we must resolve these cases as they arise, relying on our past decisions and persuasive authority from other jurisdictions. For these reasons, we affirm the court's dismissal of petitioner's claims with respect to G.P. and reverse the family division's dismissal of this case with respect to M.P. and remand for further proceedings in accordance with this opinion.

         I. Our Existing Case Law

         ¶ 12. Four prior decisions of this Court set the stage for this case: In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271 (1993), Titchenal, 166 Vt. 373, 693 A.2d 682, Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951, and Moreau, 2014 VT 31. Together, these cases support the proposition that in a narrow class of cases in which there is no competing claimant, parental status can flow from the mutual agreement and actions of the established legal parent and a putative second parent even in the absence of a marriage or a civil union between the parents or a biological connection between putative parent and child.

         ¶ 13. In In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, this Court first recognized that in certain cases a legal status between parent and child may arise from the mutual agreement and joint conduct of the child's legally recognized parent and the intended second parent even without a connection through marriage or biology. In that decision, the Court also recognized the Legislature's intent that statutes concerning parent and child be construed in a way that promotes the welfare of children. In these ways, the Court laid a critical foundation for its developing understanding of parenthood.

         ¶ 14. Deborah, the petitioner in In re B.L.V.B., and her partner Jane were in a committed relationship. They decided that Jane would bear children conceived with sperm from an anonymous donor, and they would raise the children together. They had two children. Deborah assisted at the births, and she and Jane were equally responsible for raising and parenting both children. Vermont's adoption laws at the time provided that when a person adopts a child, the parental rights of prior parents were extinguished, except "when the adoption is made by a spouse of a natural parent." Id. at 370, 628 A.2d at 1273 (quotation omitted). The probate court concluded that because Deborah and Jane were not married, this "step-parent exception" did not apply and Deborah could only adopt if Jane relinquished her parental status. Id.

         ¶ 15. On appeal, this Court first emphasized that the primary concern of Vermont's adoption statutes is to promote the welfare of children and that the statutes should be implemented in a way that promotes that goal. Id. at 371, 628 A.2d at 1273. Noting that "the precise circumstances of these adoptions may not have been contemplated during the initial drafting of the statute, " the Court concluded that "[t]he intent of the legislature was to protect the security of family units by defining the legal rights and responsibilities of children who find themselves in circumstances that do not include two biological parents." Id. at 373, 682 A.2d at 1274. With this in mind, the Court rejected a narrow interpretation of the statute, explaining, "we cannot conclude that the legislature ever meant to terminate the parental rights of a biological parent who intended to continue raising a child with the help of a partner." Id. To conclude otherwise, the Court explained, "would produce the unreasonable and irrational result of defeating adoptions that are otherwise indisputably in the best interests of children." Id.

         ¶ 16. The Court acknowledged the changing family structures that had given rise to the case, and stated:

It is not the courts that have engendered the diverse composition of today's families. It is the advancement of reproductive technologies and society's recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children's financial support and emotional well-being by developing theories of parenthood, so that "legal strangers" who are de facto parents may be awarded custody or visitation or reached for support. . . . It is surely in the best interests of children, and the state, to facilitate adoptions in these circumstances so that legal rights and responsibilities may be determined now and any problems that arise later may be resolved within the recognized framework of domestic relations law.

Id. at 376, 628 A.2d at 1276.

         ¶ 17. The specific issue before the Court in In re B.L.V.B.-the availability of second-parent adoptions to unmarried partners-was different from the issue in this case. But several features of the Court's analysis presage our discussion in subsequent decisions, including the Court's recognition that biology and marriage are not the only indicia of family formation that are worthy of judicial recognition; that mutual intent to conceive and parent a child, and follow through in doing so, warrant the law's cognizance; and that our statutes should be construed to bring the recognized framework of our domestic relations laws to families as we find them.

         ¶ 18. This Court's decision several years later in Titchenal does not necessarily represent a retreat from these principles. In Titchenal, a lesbian couple decided to have a child together. When attempts to conceive through donor insemination failed, one of the women adopted. The second mother did not adopt the child because at the time they did not believe the then-current adoption statute would allow them both to adopt.[2] After the couple split, the nonadoptive mother, who could not at the time have legally married the child's adoptive mother, asked the superior court (predecessor to what is now the "Civil Division of the Superior Court") to invoke its general equitable authority to afford her parent-child contact with the child she had co-parented for many years. The majority rejected a framework in which the family court adjudicates disputes concerning parental rights and responsibilities and parent-child contact in divorce, parentage, dependency and neglect, relief-from-abuse, nonsupport and separation, and other statutory proceedings, but the superior court exerts its equitable powers to adjudicate such disputes outside of statutory proceedings. Titchenal, 166 Vt. at 376-77, 693 A.2d at 684; see also Moreau, 2014 VT 31, ¶ 45 (Robinson, J., dissenting) (discussing core holding of Titchenal in detail). Much of the Court's discussion in Titchenal focused on the fact that the putative mother was seeking relief in the wrong court on the basis of the wrong theory, and the controlling holding of Titchenal was narrow and turned on the procedural and jurisdictional posture of the case.

         ¶ 19. Nevertheless, there is no question that in its opinion the Court expressed skepticism about the concept of "de facto parenthood" pursuant to which parental rights, even the more limited right of parent-child contact, may arise from an established parent-child bond in the absence of a legal adoption, biological connection, or marriage. See, e.g., Titchenal, 166 Vt. at 385, 693 A.2d at 689 ("In our view, [the public policy] considerations are not so clear and compelling that they require us to acknowledge that de facto parents have a legally cognizable right to parent-child contact . . . "). The Court was particularly concerned that a wide range of adults who had relationships with a child, such as relatives, foster parents, and even day-care providers, might claim rights to parent-child ...

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