Today the Kentucky Court of Appeals affirmed a trial court's refusal to set aside a same-sex adoption in S.J.L.S. v. T.L.S., but it is quite clear that is not the way the court would like the headline to read. In the exceedingly well-written 61 page opinion, like any great legal thriller, you don't learn until toward the end what the real result will be. But the message is loud and clear: do NOT try to do this in another case.
A first reading of the decision has left me with some very strong opinions. Some concern the role of advocates in advancing the law. You'll see a lot about CR11 in the opinion but little to nothing about the permissible "good faith argument for the extension, modification or reversal of existing law." Granted, there were ugly assertions of misconduct by counsel cited by the court, but upon a first reading I am not convinced they really impacted the outcome. It seemed they were highlighted to discourage other lawyers from ever pursuing such a cause of action.
Another angle of interest is the entire second parent adoption dimension. While the court emphasized that the opinion and rationale would have been the same had the parents been heterosexual I am not so sure. I have long believed that the best fact scenario to take to an appellate panel on the issue of second parent adoption would be a heterosexual adoption.
Beyond these words, I really need to reflect on this case. Reading it again will be a pleasure, it is that well crafted. I may even change my mind and not stick with any original notions. My bet is we'll be talking about this case for a long time. I doubt either mom will seek discretionary review; each has too much to lose with further review.
I guess I was THINKING Rule 11 as I read the opinion, but upon second reading I have to tell you I was wrong about seeing a lot of that in this opinion. Advancing the law was mentioned but summarily dismissed as being without merit on these facts. After rigid adherence to the statutes, is interesting how S's parental rights were retained by a "balancing of public policies." A digest and discussion will follow. This case is not just a same-sex case, it hits home with heterosexual implications as well.