M.M. v. Tacoma School District No 10

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 M.M., as guardian for her minor daughter, CASE NO. 3:21-CV-05865-LK 11 O.M., ORDER REGARDING 12 Plaintiffs, SUPPLEMENTAL BRIEFING v. 13 TACOMA SCHOOL DISTRICT NO. 10, 14 et al., 15 Defendants. 16

17 In its May 4, 2023 Order, the Court requested supplemental briefing on two issues: 18 (1) “[w]hether the previous adoptive parents retain any rights with respect to O.M. that are, or may 19 be, relevant to this suit”; and (2) “[w]hether the adoption proceedings pose any conflict of interest 20 with respect to M.M.’s representation of O.M. in these proceedings.” Dkt. No. 49 at 10. The Court 21 further instructed that, to the extent either of these questions could be answered in the affirmative 22 or could not be answered satisfactorily, the parties should also “address whether a guardian ad 23 litem should be appointed to represent O.M. under Rule 17(c)(2),” and whether O.M.’s previous 24 adoptive parents should be given notice and an opportunity to be heard with respect to Defendants’ 1 subpoena or renewed motion to compel. Id. at 10–11. The parties have submitted their 2 supplemental briefs and supporting declarations. Dkt. Nos. 52–56. 3 Having reviewed these submissions, the governing law, and the remainder of the record, 4 the Court is satisfied that O.M.’s previous adoptive parents surrendered their parental rights by

5 executing the proper forms and acknowledgments as prescribed by Georgia law. Dkt. No. 53 at 6 30–34; see Ga. Code Ann. §§ 19-8-5(a), (e)(1), (f) and 19-8-26(c), (g). Thus, neither maintains 7 any parental powers and neither is a proper party to proceedings involving O.M. See Ga. Code 8 Ann. § 19-7-1(b)(1), (b)(2); In re A.C., 642 S.E.2d 418, 421–22 (Ga. Ct. App. 2007). These 9 individuals accordingly need not receive notice or an opportunity to be heard on Defendants’ 10 subpoena or any renewed motion to compel. Nor, for the same reason, does the Court discern a 11 conflict of interest arising out of the adoption proceedings that would necessitate a Rule 17(c)(2) 12 appointment of a guardian ad litem. 13 Defendants nonetheless contend that the previous adoptive parents only “conditionally 14 surrendered” their rights and therefore “may retain their right to notice of all legal actions in which

15 O.M. is a party.” Dkt. No. 54 at 4 (emphasis original). They point to a provision in the statutory 16 surrender form vesting the surrendering parent or guardian with the option to request return of the 17 child if, as relevant here, the third-party adoption petition “is dismissed with prejudice or otherwise 18 concluded without an order declaring the child to be the adopted child” of the petitioner. Dkt. No. 19 53 at 30, 32; Ga. Code Ann. § 19-8-26(c); see Dkt. No. 54 at 3 (arguing that previous adoptive 20 parents “may well be entitled to have O.M.’s custody returned to them under the terms of the 21 agreement”). But that same provision cabins its application “to the limited circumstance that the 22 child is not adopted” by the third-party petitioner, and makes clear that it “does not impair the 23 validity, absolute finality, or totality of th[e] surrender under any circumstance other than the

24 1 failure of the designated person . . . to adopt the child[.]” Dkt. No, 53 at 30, 32; Ga. Code Ann. § 2 19-8-26(c). 3 Defendants do not contend that M.M.’s adoption petition was dismissed with prejudice or 4 “otherwise concluded.” They instead complain that M.M. “has yet to complete the [adoption]

5 process” and accuse her of “indefinite[ly] suspen[ding]” O.M.’s adoption because the proceedings 6 remain ongoing more than three years after M.M. filed the petition. Dkt. No. 54 at 4; see also id. 7 at 5 (“One has to question the pursuit and apparent prioritization of the present litigation when, 8 according to M.M.’s deposition testimony and discovery responses, no active efforts have been 9 made for some time regarding O.M.’s adoption[.]”). But that argument is self-defeating. If the 10 adoption proceedings are ongoing, they have not concluded without an adoption order. Nor has 11 M.M.’s petition been dismissed with prejudice.1 12 Defendants also advance a series of arguments that go far afield of the scope of the Court’s 13 request for supplemental briefing. See, e.g., Dkt. No. 54 at 5–8.2 Although these arguments are to 14 some degree relevant to the Court’s general duty “to safeguard the interests of litigants who are

15 minors,” Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011), the Court was concerned 16 with the potentially contested adoption proceedings in Georgia state court and any resulting 17

1 Defendants repeatedly refer to M.M.’s December 2019 adoption petition as “failed” and, as noted, suggest that M.M. 18 has “suspended” or even “abandon[ed]” adoption of O.M. Dkt. No. 54 at 5. But again, there is nothing in the record that suggests the adoption proceedings have in fact failed or been dismissed. The record instead reflects that M.M. “is 19 working to finalize the adoption shortly.” Dkt. No. 52 at 4. The portion of M.M.’s deposition touted by Defendants likewise does not demonstrate that “no active efforts have been made for some time regarding O.M.’s adoption[.]” 20 Dkt. No. 54 at 5. M.M. testified that the adoption process is “[s]till ongoing” and “[n]ot finalized” because her attorney “is working with the State of Georgia, who was working with the State of Washington, to get [O.M.’s] adoption 21 subsidy paperwork finalized.” Dkt. No. 55-8 at 4. The process has been delayed due to the COVID-19 pandemic and related “backlog.” Id. The Court is confused as to why Defendants dismiss these efforts as “no evidence of any pursuit of O.M.’s legal adoption[.]” Dkt. No. 54 at 5. 22 2 Defendants suggest that M.M.’s late disclosure of the previous adoptive parents’ surrender and acknowledgment forms is deserving of Rule 37 sanctions. Dkt. No. 54 at 2, 6. They also ask the Court to strike the current trial date. Id. 23 at 1–2. Supplemental briefing is not an appropriate vehicle for requesting such relief. To the extent Defendants seek sanctions against Plaintiffs for discovery violations or wish to modify the current case schedule, they may file motions 24 to that effect. 1 conflict of interest those proceedings might have posed for M.M.’s representation of O.M. in this 2 suit. Those concerns have now been dispelled. Defendants’ arguments are, again, beyond the scope 3 of supplemental briefing, and Plaintiffs have not had an adequate opportunity to address them. 4 And as discussed above, the Court is satisfied that (1) the previous adoptive parents do not retain

5 any rights with respect to O.M. that are relevant to this litigation and (2) the adoption proceedings 6 do not impair M.M.’s ability to represent O.M. in this case. 7 Dated this 29th day of June, 2023. 8 A 9 Lauren King United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23