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State of New York
Court of Appeals
4 No. 195
In the Matter of Jacob.
Roseanne M. A. et al.,
Appellants.
2 No. 196
In the Matter of Dana (Anony-
mous).
G.M. (Anonymous),
Appellant.
OPINION
This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 195:
Nicholas S. Priore, for appellant.
No appearance, for respondent.
Lambda Legal Defense and Education Fund, Inc., amicus curiae.
No. 196:
Beatrice Dohrn, for appellant.
No appearance, for respondent.
Center Kids, et al.; Association of the Bar of the City of
New York; and American Civil Liberties Union et al., amici curiae.
KAYE, CHIEF JUDGE:
Under the New York adoption statute, a single person can
adopt a child (Domestic Relations Law 110). Equally clear is
the right of a single homosexual to adopt (see 18 NYCRR
421.16[h][2] [qualified adoption agencies "shall not * * *
reject[] [adoption petitions] solely on the basis of
homosexuality"]). These appeals call upon us to decide if the
unmarried partner of a child's biological mother, whether
heterosexual or homosexual, who is raising the child together
with the biological parent, can become the child's second parent
by means of adoption.
Because the two adoptions sought--one by an unmarried
heterosexual couple, the other by the lesbian partner of the
child's mother--are fully consistent with the adoption statute,
we answer this question in the affirmative. To rule otherwise
would mean that the thousands of New York children actually being
raised in homes headed by two unmarried persons could have only
one legal parent, not the two who want them.
The Adoptions Souqht
In Matter of Jacob, Roseanne M.A. and Jacob's biological
father (from whom she is divorced) separated prior to the child's
birth and Roseanne M.A. was awarded sole custody. Jacob was a
year old when Stephen T.K. began living with him and his mother
in early 1991. At the time of filing the joint petition for
adoption three years later, Stephen T.K. was employed as a
programmer/analyst with an annual income of $50,000, while
Roseanne M.A. was a student at SUNY Health Center. Jacob's
biological father consented to the adoption.
Though acknowledging that "the granting of an adoption in
this matter may be beneficial to Jacob," Family Court dismissed
the petition for lack of standing on the ground that Domestic
Relations Law 110 does not authorize adoptions by an unmarried
couple. The Appellate Division affirmed, two Justices dissenting
(210 AD2d 876), and an appeal to this Court was taken as of
right.
In Matter of Dana, appellants are G.M. and her lesbian
partner, P.I., who have lived together in what is described as a
long and close relationship for the past 19 years. G.M. works as
a special education teacher in the public schools earning $38,000
annually and P.I., employed at an athletic club, has an annual
income of $48,000. In 1989, the two women decided that P.I.
would have a child they would raise together. P. I. was
artificially inseminated by an anonymous donor, and on June 6,
1990, she gave birth to Dana. G.M. and P.I. have shared
parenting responsibilities since Dana's birth and have arranged
their separate work schedules around her needs. With P.I.'s
consent, G.M. filed a petition to adopt Dana in April 1993.
In the court-ordered report recommending that G.M. be
permitted to adopt (see Domestic Relations Law 116), the
disinterested investigator described Dana as an attractive,
sturdy and articulate little girl with a "rich family life,"
which includes frequent visits with G.M.'s three grown children
from a previous marriage "who all love Dana and accept her as
their baby sister." Noting that G.M. "only has the best interest
of Dana in mind," the report concluded that she "provides her
with a family structure in which to grow and flourish."
As in Matter of Jacob, Family Court, while conceding the
favorable results of the home study and "in no way disparaging
the ability of [G.M.] to be a good, nurturing and loving parent,"
denied the petition for lack of standing. In addition, the court
held that the adoption was further prohibited by Domestic
Relations Law 117 which it interpreted to require the automatic
termination of P.I.'s relationship with Dana upon an adoption by
G.M. Despite its conclusion that G.M. had standing to adopt, the
Appellate Division nevertheless affirmed on the ground that
Domestic Relations Law 117 prohibits the adoption (209 AD2d 8).
We granted leave to appeal.
Limiting our analysis, as did the courts below, to the
preserved statutory interpretation issues, we conclude that
appellants have standing to adopt under Domestic Relations Law
110 and are not foreclosed from doing so by Domestic Relations
Law 117. There being no statutory preclusion, we now reverse
the order of the Appellate Division in each case and remit the
matter to Family Court for a factual evaluation and determination
as to whether these adoptions would be in the best interest of
the children.
The Context of our Statutory Analysis
Two basic themes of overarching significance set the
context of our statutory analysis.
the creature of statute" (Matter of Eaton, 305 NY 162,
165), the adoption statute must be strictly construed. What is
to be construed strictly and applied rigorously in this sensitive
area of the law, however, is legislative purpose as well as
legislative language. Thus, the adoption statute must be applied
in harmony with the humanitarian principle that adoption is a
means of securing the best possible home for a child (see Matter
of Malpica-Orsini, 36 NY2d 568, 571-572).
Ten years ago, in Matter of Robert Paul P. (63 NY2d 233), we
refused to allow the adoption of a 50-year-old man by his 57-
year-old homosexual partner even though the statutory language
permitted the adoption. Our refusal in Robert Paul P. rested
solely on the fact that the adult adoption sought in that case
would have been "wholly inconsistent with the underlying public
policy of providing a parent-child relationship for the welfare
of the child" (id. at 236).
The very next year, in Matter of Best (66 NY2d 151), we
again chose not to construe the words of the adoption statute
strictly, declining to permit an adopted child to inherit under
the will of his biological grandmother because "[p]owerful policy
considerations militate against construing a class gift to
include a child adopted out of the family" (id. at 155). One
commentator has characterized our decision in Best as "in
defiance of * * * the text of the Domestic Relations Law
yet in accordance with current societal views of adoption and the
adoptive relationship" (Note, When Blood Isn't Thicker Than
Water: The Inheritance Rights of Adopted-Out Children in New
York, 53 Brooklyn L Rev 1007, 1007).
What Matter of Robert Paul P. and Matter of Best underscore
is that in strictly construing the adoption statute, our primary
loyalty must be to the statute's legislative purpose--the child's
best interest. "The adoptive family arises out of the State's
concern for the best interests of the child" (People ex rel.
Sibley v Sheppard. 54 NY2d 320, 327). This profound concern for
the child's welfare is reflected in the statutory language
itself: when "satisfied that the best interests of the
child will be promoted thereby," a court "shall make an
order approving the adoption * * * " (Domestic Relations Law
Section 114 [emphasis added]).
This policy would certainly be advanced in situations like
those presented here by allowing the two adults who actually
function as a child's parents to become the child's legal
parents. The advantages which would result from such an adoption
include social security and life insurance benefits in the event
of a parent's death or disability, the right to sue for the
wrongful death of a parent, the right to inherit under rules of
intestacy tsee In re TammY, 619 NE2d 315, 320) and eligibility
for coverage under both parents' health insurance policies. In
addition, granting a second-parent adoption further ensures that
two adults are legally entitled to make medical decisions for the
child in case of emergency and are under a legal obligation for
the child's economic support (see Domestic Relations Law 32).
Even more important, however, is the emot onal security of
knowing that in the event of the biological parent's death or
disability, the other parent will have presumptive custody, and
the children's relationship with their parents, siblings and
other relatives will continue should the co-parents separate.
Indeed, viewed from the children's perspective, permitting the
adoptions allows the children to achieve a measure of permanency
with both parent figures and avoids the sort of disruptive
visitation battle we faced in Matter of Alison D. v. Virginia M.
(see 77 NY2d 651, 656 ["Petitioner concedes she is not the
child's 'parent' * * * by virtue of an adoption."]).
A second, related point of overriding significance is that
the various sections comprising New York's adoption statute today
represent a complex and not entirely reconcilable patchwork.
Amended innumerable times since its passage in 1873, the adoption
statute was last consolidated nearly 60 years ago, in 1938 (L
1938, ch 606). Thus, after decades of piecemeal amendment upon
amendment, the statute today contains language from the 1870's
alongside language from the 1990's.
Though courts surely must, and do, strive to give effect to
every word of a statute, our analysis must recognize the
difficulty--perhaps unique difficulty--of such an endeavor here.
With its long, tortuous history, New York's adoption statute
today is a far cry from a "methodical[] and meticulous[]"
expression of legislative judgment (dissent, p. 23). That the
questions posed by these appeals are not readily answerable by
reference to the words cf a particular section of the law, but
instead require the traditional and often close and difficult
task of statutory interpretation is evident even in the length of
today's Opinions--whichever result is reached.
Against this backdrop, we turn to the particular provisions
at issue.[fn 1]
Domestic Relations Law Section 110
Despite ambiguity in other sections, one thing is clear:
section 110 allows appellants to become adoptive parents.
Domestic Relations Law 110, entitled "Who May Adopt," provides
that an "adult unmarried person or an adult husband and his adult
wife together may adopt another person" (Domestic Relations Law
110). Under this language, both appellant G.M. in Matter of
Dana and appellant Stephen T.K. in Matter of Jacob, as adult
unmarried persons, have standing to adopt and appellants are
correct that the Court's analysis of section 110 could
appropriately end here.[fn 2]
Endowing the word "together" as used in section 110 with the
overpowering significance of enforcing a policy in favor of
marriage (as the dissent does) would require us to rewrite the
statute. The statute uses the word "together" only to describe
married persons and thus does not preclude an unmarried person in
a relationship with another unmarried person from adopting.
Rather, by insisting on the joint consent of the married persons,
the statutory term "together" simply insures that one spouse
cannot adopt a child without the other spouse's knowledge or over
the other's objection (see L 1984, ch 228, Memorandum of State
Department of Social Services at 3184). Since each of the
biological mothers here is not only aware of these proceedings,
but has expressly consented to the adoptions, section 110 poses
no statutory impediment.[fn 3]
The conclusion that appellants have standing to adopt is
also supported by the history of section 110. The pattern of
amendments since the end of World War II evidences a successive
expansion of the categories of persons entitled to adopt
regardless of their marital status or sexual orientation. The
language in section 110 permitting adoptions by +an adult or
minor husband and his wife or minor wife together," for example,
is the result of 1951 legislation intended to enlarge the class
of potential adoptive parents to include minors (L 1951, ch 211,
Memorandum of the Association of the Bar of the City of New York,
Committee on State Legislation at 119; 1943 Op Atty Gen 260).
The sponsors of the bill, passed during the Korean War, were
concerned that the child of a young father drafted into the
military would be unable to take his father's surname (L 1951, ch
211, Memorandum of the Legal Aid Society at 9).
Another illustration of such expansion is the 1984 amendment
increasing the number of potential adoptive parents by permitting
adoption by adults not yet divorced but living apart from their
spouses pursuant to separation agreements. Supporting that
amendment was New York's "strong policy of assuring that as many
children as possible are adopted into suitable family situations+
(L 1984, ch 218, Memorandum of Department of Social Services,
June 18, 1984 at 2). As explained, the amendment
would further this policy by requiring prospective
adoptive parents to be evaluated on the basis of their
ability to provide a permanent home and not on their
marital s1atus alone. [T]he marital status of a person
should have no predetermined effect on the ability of
that person to provide appropriate care to an adopted
child
(id.).
Consistent with this trend, the latest amendment to Domestic
Relations Law 110 further increased the number of potential
adoptive parents by permitting adoptions by non-divorced adults
who have lived apart from their spouses for eighteen months (L
1992, ch 254).
These amendments reflect some of the fundamental changes
that have taken place in the make-up of the family. Today, for
example, at least 1.2 of the 3.5 million American households
which consist of an unmarried adult couple have children under 15
years old, more than a six-fold increase from 1970 (see Current
Population Reports, Population Characteristics, US Bur of Census,
Marital Status & Living Arrangements, P20-478 at IX [1993]). Yet
further recognition of this transformation is evidenced by the
fact that unlike the states of New Hampshire and Florida (NH Rev
Stat Ann 170-B:4; Fla Stat Ann 63.042[3]), New York does not
prohibit adoption by homosexuals. Indeed, as noted earlier, an
administrative regulation is in place in this State forbidding
the denial of an agency adoption based solely on the petitioner's
sexual orientation (18 NYCRR 421.16[h][2]).
A reading of section 110 granting appellants, as unmarried
second parents, standing to adopt is therefore consistent with
the words of the statute as well as the spirit behind the modern-
day amendments: encouraging the adoption of as many children as
possible regardless of the sexual orientation or marital status
of the individuals seeking to adopt them.
Domestic Relations Law Section 117
Appellants having standing to adopt pursuant to Domestic
Relations Law 110, the other statutory obstacle relied upon by
the lower courts in denying the petitions is the provision that
"[a]fter the making of an order of adoption the natural parents
of the adoptive child shall be relieved of all parental duties
toward and of all responsibilities for and shall have no rights
over such adoptive child or to his property by descent or
succession * * * " (Domestic Relations Law 117[1][a]). Literal
application of this language would effectively prevent these
adoptions since it would require the termination of the
biological mothers' rights upon adoption thereby placing
appellants in the "Catch-22" of having to choose one of two co-
parents as the child's only legal parent.
As outlined below, however, neither the language nor policy
underlying section 117 dictates that result.
The Language of Section 117. Both the title of section 117
("Effect of Adoption") and its opening phrase ("After the making
of an order of adoption") suggest that the section has nothing to
do with the standing of an individual to adopt, an issue treated
exclusively in section 110 (see pp. 9-12, suPra). Rather,
section 117 addresses the legal effect of an adoption on the
parties and their property.
Also plain on the face of section 117 is that it speaks
principally of estate law. Words such as "succession,
"inheritance," "decedent," "instrument" and "will" permeate the
statute. Read contextually, it is clear that the Legislature'S
chief concern in section 117 was the resolution of property
disputes upon the death of an adoptive parent or child. As we
observed in People ex rel. Sibley v Sheppard (54 NY2d 320
supra), where we declined to read section 117's termination
language "overbroadly [to] interfere with the court's
ability to protect the best interest of the child" and thereby
prohibit visits with the child+s biological grandparents, the
"bulk of the statute refers to intestacy and succession" (54 NY2d
at 325). Thus, from the very beginning of what is now section
117, both the scholarly commentary about the section and its
dozen or so amendments have centered on issues of property rights
and inheritance (see, e.q., L 1896, ch 272 64 [terminating
right of biological parents to inherit from child, while allowing
child to inherit from biological parents]; Intestate Succession
and the Adopted Child, 1963 NY Leg Doc No.1.2C; Judicial
Limitations on the Riqhts of Adopted Children to Inherit from
Their Natural Relatives as Issue, 60 St. John's L Rev 329
[1986]).
It is of course true that this Court, in a 1937 case
rejecting claims for support brought by a destitute adopted adult
daughter against her biological father, interpreted the then-
applicable version of section 117 as "mak[ing] the adopted child
the natural child of the adoptive parent [and] reliev[ing] that
natural parent from any responsibility for his child's support"
(Betz v Horr, 276 NY 83, 88-89). The version of section 117 in
effect at that time, however, did not contain current subsection
(l)(i), which, on its face, appears to limit the applicability of
the entire first half of section 117--including the language
concerning termination in subsection (l)(a)--"only to the
intestate descent and distribution of real and personal propertY"
(Domestic Relations Law 117[1][a] [emphasis added]).
Obviously, one cannot invoke the termination language in
subparagraph (l)(a) in its most literal sense and at the same
time reject a literal application of the above-quoted language in
subparagraph (l)(i). A strict construction of the entire section
would lead to the incongruous result that the termination
language of subparagraph (l)(a) is relevant only when there is a
dispute as to intestate succession.
Significantly, the language in subsection (l)(i) was added
only recently (L 1986, ch 407), after the promulgation of the
regulations providing that neither marital status nor sexual
orientation may alone be determinative in an adoption proceeding
(18 NYCRR 421.16[h][2]). In recommending passage of the 1986
amendment, the Law Revision Commission warned that:
In distinguishing between various classes of adopted-out
children, the Commission must base different treatment of
some children on factors which do not result in
discrimination against certain classes of persons (e.g.,
nonmarital children, unwed parents, males, females) in a
manner impermissible under the Equal Protection Clause *
of the United States * * * or * * * New York State
Constitution
(L 1986, ch 408, Memorandum of Law Revision Commission at 2581-
2582). This admonition indicates a concern that an unduly
restrictive reading of section 117 could have the discriminatory
and unintended effect of making unwarranted, detrimental
distinctions between "nonmarital children" like the two children
here and those children whose parents are married.
Given this warning, as well as the anomaly created by an
unnecessarily literal reading of the statute, we conclude that
neither subparagraph (l)(a) nor subparagraph (l)(i) was intended
to have universal application.
Recent Statutory Amendments. Moving beyond the language and
history of section 117 itself, our reading of the statute is
further supported by recent amendments to other sections of the
adoption law which provide elaborate procedural mechanisms for
regulating the relationships between the child, the child's
(soon-to-be former) biological parents and the persons who will
become the child's parents upon adoption (see Social Services Law
Section 383-c; Domestic Relations Law 115-b).
In the context of agency adoptions, Social Services Law
383-c, enacted in 1990 (L 1990, ch 479; L 1990, ch 480),
provides that biological parents willing to give their child up
for adoption must execute a written instrument, known as a
"surrender," stating "in conspicuous bold print on the first
page" that "the parent is giving up all rights to have custody,
visit with, write to or learn about the child, forever
(Social Services Law 383-c[5][b][ii]).
The second category of adoption--private placement--is also
regulated by a newly revised statute (L 1986, ch 817) requiring
the execution of a written "consent" stating that +no
action * * * may be maintained * * * for the custody of the
child" (Domestic Relations Law 115-b[1]). In fact, the
procedure mandated by Domestic Relations Law 115-b closely
parallels that of Social Services Law 383-c. Both statutes,
for example, require biological parents to execute a document
that effectively terminates parental rights. Both provisions
require a Judge or Surrogate (if the document is executed in
court) to inform the biological parents of the consequences of
their act, and advise them of their right to be represented by
counsel (Social Services Law 383-c[5][b]; Domestic Relations
Law 115-b[2][b]). More importantly, both statutes provide that
the biological parents' "surrender" or "consent" may be revoked
within 45 days, and that an adoption proceeding may not be
commenced until after the expiration of that period (Social
Services Law 383-c[8][b]; Domestic Relations Law 115-
b[4][c]). Thus, by the time the adoptive parents become the
child's legal parents, the biological parents have already
formally agreed to relinquish their relationship with the child.
The procedural safeguards contained in Social Services Law
383-c and Domestic Relations Law 115-b--safeguards that
reflect modern sensitivities as to the level of procedural
protection required for waiver of parental rights--further
indicate that section 117 does not invariably mandate termination
in all circumstances. Under the language of section 117 alone, a
biological mother's rights could theoretically be severed
unilaterally, without notice as to the consequences or other
procedural protections. Though arguably adequate in 1938 when
the statute was enacted (L 1938, ch 606, 1; cf. Matter of
Bistany, 239 NY 19 [Cardozo, J.]), such a summary procedure would
be unlikely to pass muster today (see, e.g., Santosky v. Kramer,
455 US 745, 768-770; Matter of Sarah K., 66 NY2d 223, 237).
The above-described amendments to Social Services Law
383-c and Domestic Relations Law 115-b suggest that the
Legislature in recent years has devised statutory vehicles other
than section 117 to carefully regulate and restrict parental
rights during the adoption process, again militating against a
rigid application of subparagraph (l)(a).
The Ambiquity Should Be Resolved in the Children's Favor.
Finally, even though the language of section 117 still has the
effect of terminating a biological parent's rights in the
majority of adoptions between strangers--where there is a need to
prevent unwanted intrusion by the child's former biological
relatives to promote the stability of the new adoptive family--
the cases before us are entirely different. As we recognized in
Matter of Seaman (78 NY2d 451, 461), "complete severance of the
natural relationship [is] not necessary when the adopted person
remain[s] within the natural family unit as a result of an
intrafamily adoption."
One example of an adoption where the Legislature has
explicitly acknowledged that termination is unwarranted is when
the child, with the consent of the biological parent, is adopted
by a "stepparent" (Domestic Relations Law 117[1][d]). A
second, implicit exception occurs in the adoptions by teenage
fathers authorized by the 1951 amendm,ent to section 110 (see pp.
10-11 supra). Since minor fathers adopting their own biological
children are not "stepparents" under the language of Domestic
Relations Law 117(1)(d), they would be prohibited from adopting
were section 117's termination language to be mandatory in all
cases. The seemingly automatic cut-off language of section 117
could not have been intended to bar these adoptions, however,
since they are precisely what the Legislature sought to encourage
in the first place.
Yet a third class of adoptions where complete termination of
parental rights appears to be contrary to legislative intent are
those adoptions contemplated by Socia] Services Law 383-c, a
completely new statute enacted five years ago. Specifically, New
York law now allows the parties to an agency adoption to "agree
to different terms" as to the nature of the biological parents'
post-adoptive relationship with the child. The statute thus
expressly permits parties to agree that the biological parent
will retain specified rights--such as visitation with the child--
after the adoption, t,- eby authorizing "open adoptions" for the
first time in this State (see Carrieri, Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 52A, Social
Services Law 383-c, 1995 Pocket Part; at 69).
A year prior to the enactment of Social Services Law
383-c, this Court declined to sanction the concept of "open
adoption'l because of our belief that it was inconsistent with
what we perceived to be section 117's requirement that
termination of parental rights was mandatory in all cases (Matter
of GreqorY B., 74 NY2d 77, 91 [citations omitted]).
Significantly, when enacting Social Services Law 383-c the very
next year, the Legislature saw no need to amend Domestic
Relations Law 117. Again, if section 117 automatically
terminated parental rights in all circumstances, it would have
the practical effect of overriding the conditional
surrender/"open adoption" provisions of Social Services Law
383-c. By passing Social Services Law 383-c as it did, the
Legislature thus necessarily rejected the reading of section 117
articulated in Matter of GreqorY B. (see People ex rel. SibleY v
Sheppard, 54 NY2d 320, 325).
Given the above, it is plain that an interpretation of
section 117 that would limit the number of beneficial intrafamily
adoptions cannot be reconciled with the legislative intent to
authorize open adoptions and adoptions by minors. The co-
existence of the statute's seemingly automatic termination
language along with these more recent enactments creates a
statutory puzzle not susceptible of ready resolution.
One conclusion that can be drawn, however, is that section
117 does not invariably require termination in the situation
where the biological parent, having co -ented to the adoption,
has agreed to retain parental rights and to raise the child
together with the second parent. Despite their varying factual
circumstances, each of the adoptions described above--stepparent
adoptions, adoptions by minor fathers and open adoptions--share
such an agreement as a common denominator. Because the facts of
the cases before us are directly analogous to these three
situations, the half-century old termination language of section
117 should not be read to preclude the adoptions here. Phrased
slightly differently, "the desire for consistency in the law
should not of itself sever the bonds between the child and the
n tural relativesll (People ex rel. SibleY v Sheppard, 54 NY2d
320, 326).[fn 4]
"When the language of a statute is susceptible of two
constructions, the courts will adopt that which avoids injustice,
hardship, constitutional doubts or other objectionable results"
(Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 [Fuld, J.];
see also McKinney's Cons Laws of NY, Book 1, Statutes 150).
Given that section 117 is open to two differing interpretations
as to whether it automatically terminates parental rights in all
cases, a construction of the section that would deny children
like Jacob and Dana the opportunity of having their two de facto
parents become their legal parents, based solely on their
biological mother's sexual orientation or marital status, would
not only be unjust under the circumstances, but also might rais_
constitutional concerns in light of the adoption statute's
historically consistent purpose--the best interests of the child.
(See, e.g., Gomez v Perez, 409 US 535, 538 [equal protection
clause prevents unequal treatment of children whose parents are
unmarried]; PlYler v Doe, 457 US 202, 220 [State may not direct
the onus of parent's perceived "misconduct against his (or her)
children"]; Matter of Burns v Miller Constr., 55 NY2d 501, 507-
510 [New York statute requiring child born out of wedlock to
prove ''acknowledgmentll by deceased parent did not further
legitimate State interest]; see also Matter of Best, 66 NY2d 151,
160 n4).[fn 5]
These concerns are particularly weighty in Matter of Dana.
Even if the Court were to rule against him on this appeal, the
male petitioner in Matter of Jacob could still adopt by marrying
Jacob's mother. Dana, however, would be irrevocably deprived of
the benefits and entitlements of having as her legal parents the
two individuals who have already assumed that role in her life,
simply as a consequence of her mother's sexual orientation.
Any proffered justification for rejecting these petitions
based on a governmental policy disapproving of homosexuality or
encouraging marriage would not apply. As noted above, New York
has not adopted a policy disfavoring adoption by either single
persons or homosexuals. In fact, the most recent legislative
document relating to the subject urges courts to construe section
117 in precisely the manner we have as it cautions against
discrimination against "nonmarital children" and "unwed parents"
(see p. 16 suPra). An interpretation of the statute that avoids
such discrimination or hardship is all the more appropriate here
where a contrary ruling could jeopardize the legal status of the
many New York children whose adoptions by second parents have
already taken place (e.a., Matter of Camilla, 163 Misc 2d 272;
Matter of Evan, 153 Misc 2d 844; Matter of A.J.J., 108 Misc 2d
657).
Conclusion
To be sure, the Legislature that last codified section 117
in 1938 may never have envisioned families that "include[] two
adult lifetime partners whose relationship * * * is characterized
by an emotional and financial commitment and interdependence"
(Braschi v Stahl Assocs. Co., 74 NY2d 201, 210). Nonetheless, it
is clear that section 117, designed as a shield to protect new
adoptive families, was never intended as a sword to prohibit
otherwise beneficial intrafamily adoptions by second parents.
Accordingly, in each proceeding, the order of the Appellate
Division should be reversed, without costs, the adoption petition
reinstated and the matter remitted to Family Court for further
proceedings consistent with this Opinion.
======================================
#195 - Matter or Jacob
#196 - Matter of Dana
BELLACOSA, J. (dissenting):
Judges Simons, Titone and I respectfully dissent and vote
to affirm in each case.
These appeals share a statutory construction issue under
New York's adoption laws. While the results reached by the
Majority are intended to have a benevolent effect on the
individuals involved in these two cases, the means to those ends
transform the legislative adoption charter governing countless
other individuals. Additionally, the dispositional methodology
transcends institutional limitations on this Court's proper
exercise of its authority, fixed by internal discipline and by the
external distribution of powers among the branches of government.
The Majority minimizes the at-will relationships of the
appellants-couples who would be combined biological-adoptive
parents in each case, but the significant statutory and legally
central relevancy is inescapable. Unlike married and single parent
households, each couple here cohabits only day-to-day, no matter
the depth or length of their voluntary arrangements. Their
relationships lack legal permanency and the State has not endowed
them with the benefits and enforceable protections that flow from
relationships recognized under color of law. Nowhere do statutes,
or any case law previously, recognize de facto, functional or
second parent adoptions in joint circumstances as presented here.
Specifically, in the respective cases, the availability
of adoption is implicated because of the operation-of-law
consequences under Domestic Relations Law 117 based on: (l) the
relationship of the biological parent and the putative adoptive
child if a male and female unmarried cohabitinq couple, one of whom
is the biological mother of the child, jointly petitions to adopt
the five-year-old child; and (2) the relationship of the biological
parent and her child if the lesbian partner of the biological
mother petitions alone to adopt the five-year-old child. Neither
case presents an issue of ineligibility because of sexual
orientation or of discrimination against adoption on that basis,
despite the Majority's evocations in that regard.
The facts are uncontested and pertinently recited in the
Chief Judge's Opinion. In Matter of Jacob, Family Court, Oneida
County, dismissed the petition on the ground that the petitioners
are an unmarried couple. No best interests factual or evidentiary
evaluations were undertaken. The court held that adoption
proceedings are creatures of statute and that Domestic Relations
Law 110 does not authorize adoption by an unmarried couple. The
Appellate Division, Fourth Department, affirmed (210 AD2d 876),
concluding that the statute did not permit adoption by two
unmarried persons together.
In Matter of Dana, Family Court, Putnam County, denied
the adoption petition. The court held that (1) G.M. did not have
standing to adopt pursuant to Domestic Relations Law 110, since
she did "not fall within any of the classifications under Domestic
The judicial role is most sensitive, but no case has ever
recognized a judicially created right of adoption. This restraint
is especially pertinent when the Legislature has expressly enacted
a plenary, detailed legislative plan (see, Matter of Malpica-
Orsini, supra, at 570; Matter of Eaton, 305 NY 162, 165). The
Majority acknowledges New York's unique legislative developments
and the several major cases in which adoptions have been disallowed
(see, e.q., Matter of Robert Paul P., supra) that together document
these juridically limiting principles, yet the Majority's ruling
and result paradoxically turn away from those consistent
guideposts.
Pointedly, this Court's unqualified utterance is that
"[t]he Legislature has supreme control of the subiect" (Matter of
Robert Paul P., supra, at 237 [emphasis added]; see also, Matter of
Malpica-Orsini, supra). A transcendent societal goal in the field
of domestic relations is to stabilize family relationships,
particularly parent-child bonds. That State interest promotes
permanency planning and provides protection for an adopted child's
legally secure familial placement. Therefore, statutory
authorizations should not be substantively transformed under the
guise of interpretation, and all facets of the adoption statutes
should be harmonized (see, Matter of Costello v Geiser, 85 NY2d
103, 109; Heard v Cuomo, 80 NY2d 684, 689; Matter of Long v
Adirondack Park Aqency, 76 NY2d 416, 420, 422-423).
Notably, too, for contextual understanding of these
cases, New York State has long refused to recognize common law
Preclusion or prohibition, however, are not the point.
Petitioners' burden, ignored by the Majority, is to identify a
source of statutory authorization.
Petitioners came to court in the Jacob case to adopt
"together," as two unmarried adults. The court must deal with them
as they presented themselves and must also obey the statute that on
its face allows a joint petition by "married" spouses "together."
The statute unambiguously declares that "[a]n adult unmarried
person or an adult husband and his wife together may adopt another
person" (Domestic Relations Law 110 [emphasis added]; Scheinkman,
Practice Commentaries, McKinney's Cons Laws of NY, Book 14,
Domestic Relations Law 110, at 398, 402, 404). Words of such
precise import and limitation are not merely talismanic and may not
be rendered superfluous, as the Majority has done here. The
Legislature's chosen words must be given their substantive,
intended meaning, and interpretation is no substitute for its
failure to be more explicit or flexible.
The statutory language and its history instructively
reveal no legislative intent or hint to extend the right and
responsibility of adoption to cohabiting unmarried adults (see,
Scheinkman, Supp Practice Commentaries, McKinney's Cons Laws of NY,
Book 14, Domestic Relations Law 110, 1995 Pocket Part, at 85).
The opposite obtains, notably in the Jacob case, in the direct
contraindication of Domestic Relations Law 11 expressing the
State's longstanding public policy refusal to recognize at-will
common law relationships as marriages. Confusion is thus sown by
the holdings today by blurriny plain meaning words and clear lines
between relationships that are legally recognized and those that
are not. Under the newly-fashioned theory rooted in ambiguity, any
number of people who choose to live together -- even those who may
not cohabit -- could be allowed to adopt a child together. The
result in these cases and reductio ad absurdum illustrations
flowing from appellants+ theorem -- that sinyular may mean plural
and vice versa under a general axiom of statutory construction
inapplicable in the face of specificity -- are far beyond any
discernible legislative intent of New York lawmakers. Marriages
and single parent households are not, after all, mere social
conventions generally or with respect to acception circumstances;
they enjoy legal recognition and special protections for
empirically proper social reasons and public policies.
The legislative history of adoption laws over the last
century also reveals a dynamic process with an evolving set of
limitations. The original version enacted in 1873 provided: "Any
minor child may be adopted by any adult" (L 1873, ch 830 [emphasis
added]). In 1896, the Legislature cut back by stating that "[a]n
adult unmarried perso . or an adult husband or wife, or an adult
husband and his adult wife together, may adopt a minor" (L 1896, ch
272; see also, L 1915, ch 352; L 1917, ch 149). This language was
further restricted, in 1920, when the Legislature omitted from the
statute the language "or an adult husband or wife" (see, L 1920, ch
433). Since enactment of the 1920 amendment, the statute has
provided that "an adult unmarried person or an adult husband and
his wife toqether may adopt" (Domestic Relations Law 110 [emphasis
added]). The words chosen by the Legislature demonstrate its
conclusion that a stable familial entity is provided by either a
one-parent family or a two-parent family when the concentric
interrelationships enjoy a legal bond. The statute demonstrates
that the Legislature, by express will and words, concluded that
households that lack legally recognized bonds suffer a relatively
greater risk to the stability needed for adopted children and
families, because individuals can walk out of these relationships
with impunity and unknown legal consequences.
Next, the Legislature specified the exceptions in section
110 permitting a married individual to petition for adoption
without consent of the other spouse (see, Domestic Relations Law
110; McKinney's Cons Laws of New York, Book 1, Statutes, 240
[expressio unius est exclusio alterius -- where a statute mentions
certain exceptions and omits others, the Legislature intends that
the omitted items should be excluded]; Matter of Alonzo M. v
New York City Dept. of Probation, 72 NY2d 662, 665; Patrolmen's
Benevolent Assn. of City of N.Y. v CitY of New York, 41 NY2d 205,
208-209). The failure of the Legislature to provide for the
circumstances of these two cases examined in the light of
successive particularized legislative amendatory actions, is yet
another cogent refutation of the uniquely judicial authorization of
adoption, unfurled today under the twin banners of statutory
interpretation and ambiquity.
Lastly in this connection, we derive a diametrically
different lesson from Matter of Alison D. v Virqinia M. (77 NY2nd
651), decided in 1991. The Majority for that case held that a
lesbian partner is not a "parent" under Domestic Relations Law
70(a). The Court expressly rejected an expansionist judicial
definition of "de facto parent" or "functional" family (id., at
656) and declined to enlarge legislatively limited delineations
(id., at 657). Yet, today's Majority, only four years later,
revives and applies that rejected de facto methodology using
another nonstatutory, undelineated term, "second parent adoption"
(compare, Simpson v Loehmann, 21 NY2d 305, 314-316 [Breitel, J.,
concurring] ["Only a major reappraisal by the court, rather than
the accident of a change in its composition, would justify the
overruling of" precedent]). The Majority now grants legal
recognition to what it refers to as functional parents in both
cases, the couples comprised of two individuals bound together
solely by personally elective affiliation, not by marriage as the
statute prescribes. This turnabout should be contrasted again with
what the Court in Alison D. actually did: it took a statute at its
precise words and gave them effect, because the legally recognized
stability of these most sacred human relationships were determined
to be paramount by the Legislature and, thus, by this Court.
When the Majority augments extant legislation in these
cases because the corpus juris does not reflect modern arrangements
in which individuals nevertheless yearn to be accorded family
status under the law (compare, Matter of Alison D. v Virqinia M.
supra), it significantly dissolves the central rationale of Alison
D. (id.; see also, Simpson v Loehmann, 21 NY2d 305, 314-316, supra
[Breitel, J., ConCurring]). AS former Chief Judge Breitel noted in
another connection, the "judicial process is not permitted to rove
generally over the scene of human affairs. Instead, it must be
used, on pain of violating the proprieties, within the framework of
a highly disciplined special system of legal rules characteristic
of the legal order" (Breitel, The Lawmakers, 65 Colum L Rev 749,
772; see also, Benjamin N. Cardozo, The Nature of the Judicial
Process, reprinted in Selected Writinqs of Benjamin Nathan Cardozo,
110, 164 [Hall ed, 1947] [A judge "is not a knight-errant, roaming
at will in pursuit of his {or her} own ideal of beauty or of
goodness."]). The rulings today constitute a rejection of such
wise admonitions about appropriate limitations on the judicial
process and power.
The Per Curiam opinion of the Court in Matter of Alison
D. v Virqinia M. (77 NY2d 651, supra) also instructively refrained
from any reliance on or reference to Braschi v Stahl Assocs. Co.
(74 NY2d 201). Thus, the incorporation of Braschi into the instant
cases is inapposite and should be unavailing, because these are
very different cases with very different issues and operative
policies.
II
A key societal concern in adoption proceedings is, we all
agree, the best interests of children (see, Domestic Relations Law
114; Matter of Robert Paul P., 63 NY2d 233, 236, supra). The
societal power to grant an adoption cannot be exercised, however,
by simply intoning the phrase "the best interests of the adoptive
child" as part of the analysis to determine qualification for
adoption. That approach bypasses crucial, threshold steps and begs
inescapably interwoven questions that must be considered and
answered at the outset of the purely statutory construction issue
in these cases. Before a court can arrive at the ultimate
conclusion that an adoption is in the best interests of a child
therefore, it is first obliged to discern whether the particular
application is legislatively authorized. Reversing the analysis
erects the building before the foundation is in place.
Best interests, in any event, is not an abstract concept
floating in a vacuum, but must be factually rooted, supported by
and applied to an evidentiary record. With no findings or record
in any prior court in these cases on that issue, we fail to
understand how the Majority here makes first-instance assumptions
to assert and support its conclusions about the best interests of
Jacob and Dana as part of the statutory construction analysis.
The dual, statutorily-interlocked inquiries of
qualifications and operation-of-law consequences of adoption cannot
be shunted aside in favor of an aspiration that a potential
adoptive person might provide a child with good, better or best
emotional or financial circumstances. An intuitive preference that
a particular adoption might likely or generally serve some child's
beneficial interests should not suffice to solve the more
comprehensive puzzle of legislative intent that will evolve into a
ratio decidendi as the juridical adoption charter to govern the
whole of a society (see, Domestic Relations Law 114; compare,
Matter of Bennett v Jeffreys, 40 NY2d 543, 546, 552). We note that
the disciplined approach we would use in deciding these appeals
does not implicate the bona fides or unchallenged loving and caring
motivations and feelings of any of the individuals involved in
these cases. While promulgated and applied law may take cognizance
of those factors, however, it should not be subordinated to them.
Also, these children are not members of a suspect class (contrast,
Gomez v Perez, 409 US 535; Plyler v Doe, 457 US 202). They are
members of stable homes, already presently in the permanent
placement and custody of their biological mothers.
Courts are ultimately limited to viewing issues as
presented in litigated cases within the confines of their
evidentiary records. Since the Majority agrees that the common
issue in these cases is purely statutory construction, its reliance
on generalized assumptions about life and health insurance, social
security and death benefits, constitutes a questionable policy
makeweight. Those criteria offer scant guidance towards
discovering legislative intent behind Domestic Relations Law 110
and 117. Moreover, they are incomplete policy factors,
inappropriate to statutory construction analysis, and their
imputation in these cases simultaneously eschews consideration of
any competing substantial State interest concerns.
For the benefit of the two youngsters and the
preservation of some orderly procedural regularity, we draw
assurance from tne corrective action that at least remits each case
to Family Court, to undertake a first instance, best interests
hearing in the Jacob case, and an updated hearing in the Dana case,
now that three years have transpired since the court conducted its
original limited inquiry.
III.
A principal factor in these cases must also ultimately
include consideration of the inexorable operation-of-law
consequences that flow from section 117, a distinctive feature of
New York's adoption laws. Specifically, courts are statutorily
mandated to apply Domestic Relations Law 110 together with the
interconnected features of Domestic Relations Law 117 (compare,
e.g., Matter of Royal Indem. Co. v Tax Appeals Tribunal, 75 NY2d
75, 79; McKinney's Cons Laws of NY, Book 1, Statutes 97).
Domestic Relations Law 117 provides: "After the making
of an order of adoption the natural parents of the adoptive child
shall be relieved of all parental duties toward and of all
responsibilities for and shall have no rights over such adoptive
child or to his [or her] property by descent or succession"
(emphasis added). The plain and overarching language and
punctuation of section 117 cannot be judicially blinked, repealed
or rendered obsolete by interpretation.
Section 117 says that it severs all facets of a
biolog1cal parent's conjunctively listed relationships upon
adoption of the child (compare, Matter of Bennett v Jeffreys, 40
NY2d 543, supra). This Court has recognized that "[t]he purpose of
the section [former 114, now 117] was to define the relation,
after adoption, of the child to its natural parents and to its
adopting parents, together in their reciprocal rights, duties and
privileges" (Betz v Horr, 276 NY 83, 87; see also, Matter of
Greqory B., 74 NY2d 77, 91). That is a critically extant,
interpretive proposition from this Court and not some merely
atavistic utterance.
In implementation of its prerogative to define family
relationships that are accorded legal status, the Legislature even
prescribed a stepparent departure from the otherwise automatic
section 117 consequence. It thus sought to obviate the inevitable
result that an order of adoption might actually effectuate the
symbolic Solomonic threat by severing the rights of a consenting
biological parent in such specifically-excepted circumstances where
a biological parent is married to an adopting stepparent. One
would have thought promulgation of such an exception unnecessary,
yet the Legislature chose certainty of statutory expression for
every eventuality as to the severance or non-severance operation-
of-law consequences of section 117.
Appellants in both cases nevertheless propose the theory
that section 117 is meant to apply only to inheritance succession
of property rights after adoption and should have no effect on the
wider expanse and array of rights and responsibilities of a
biological parent with an adoptive child. The language of section
117 reveals, however, that the biological parents' duties,
responsibilities and rights with respect to the adoptive child are
inheritance" (Majority opn, at 14). This statement sidesteps and
subordinates the original and still operative language of section
117 itself: "The parents of an adopted child are, from the time of
the adoption, relieved from all parental duties toward, and of all
responsibility for, the child so adopted, and have no rights over
it" (L 1873, ch 830, 12 [emphasis added]). Inheritance was not
mentioned and the comprehensive sweep of the statute could not be
plainer. Finally, the primacy of this Court's precedents and
legislatively-promulgated words as authority must be accorded
greater rank and respect than any secondary or tertiary materials
characterized as "scholarly commentary."
Betz v Horr (276 NY 83, supra) is particularly poignant
and cogent. There, a sick and destitute adopted adult sought
support from her biological father. In rejecting the claim, the
Court recognized that the purpose of former section 114 (now 117)
was the complete termination of parental rights and
responsibilities of the biological parents following adoption. The
Court stated that in order to impose upon the biological parent a
duty to support, "it would be necessary to read into section 114
[now 117] of the Domestic Relations Law an intent to preserve the
duty and responsibility of the natural parent to support the child
notwithstandinq the plain and unambiquous provision that, after
adoption, all responsibility of the natural parent for the child
ceases" (id., at 88 [emphasis added]; see also, Matter of Harvey-
Cook v Neill, 118 AD2d 109, 111). That the biological mothers in
these cases may wish that their parental rights not be terminated
separate and distinct from, and more comprehensive than, a single,
narrow category of inheritance rights. The use of the disjunctive
"or" before the phrase, "property by descent or succession," cannot
be discounted or avoided; it denotes the important and elemental
legislative demarcation. These observations are not some
syntactical or grammatical exercise. Indeed, syntax and grammar
are necessary tools of precise expression, acceptable norms of
interpretation and reasonably uniform understanding and, when
coupled with disciplined, thorough statutory construction
principles, they bear legitimately and cogently on sound and
supportable legal analysis (see, Matter of Brooklyn El. R.R. Co.
125 NY 434, 444-445).
Besides, section 117(1)(i) merely defines a particular
class of restricted inheritance rights, namely, "intestate descent
and distribution" of property. Thus, adopted children and their
biological parents may still inherit from one another by will or
acquire property by inter vivos instrument (see, Law Revision
Commission Report, reprinted in 1986 McKinney's Session Laws of NY,
at 2560). This again demonstrates that the intestate devolution of
property aspect is only a particular species and recent
incorporation into this more sweeping, longstanding statute. It
does not represent a displacement or total substitution for the
statute's predominant purport.
The Majority states that "from the very beginning of what
is now section 117, both the scholarly commentary about the section
and its dozen or so amendments have centered on property rights and
separate and distinct from, and more comprehensive than, a single,
narrow category of inheritance rights. The use of the disjunctive
"or" before the phrase, "property by descent or succession," cannot
be discounted or avoided; it denotes the important and elemental
legislative demarcation. These observations are not some
syntactical or grammatical exercise. Indeed, syntax and grammar
are necessary tools of precise expression, acceptable norms of
interpretation and reasonably uniform understanding and, when
coupled with disciplined, thorough statutory construction
principles, they bear legitimately and cogently on sound and
supportable legal analysis (see, Matter of Brooklyn El. R.R. Co.
125 NY 434, 444-445).
Besides, section 117(1)(i) merely defines a particular
class of restricted inheritance rights, namely, "intestate descent
and distribution" of property. Thus, adopted children and their
biological parents may still inherit from one another by will or
acquire property by inter vivos instrument (see, Law Revision
Commission Report, rePrinted in 1986 McKinney's Session Laws of NY,
at 2560) . This again demonstrates that the intestate devolution of
property aspect is only a particular species and recent
incorporation into this more sweeping, longstanding statute. It
does not represent a displacement or total substitution for the
statute's predominant purport.
The Majority states that "from the very beginning of what
is now section 117, both the scholarly commentary about the section
and its dozen or so amendments have centered on property rights and
Not surprisingly, we believe that the Majority's reliance
on Social Services Law 383-c and Domestic Relations Law 114 and
115-b are inapposite and unpersuasive. The use of these attenuated
provisions involving entirely different situations to argue for
what amounts to a functional, partial repeal by implication of
section 117's unaltered breadth, is a disfavored approach to
resolving statutory analysis problems.
IV.
The assembled and varied statutory construction arguments
are, in the end, held together by the Majority's tincture of
constitutional doubt. A crucial utterance illustrates: "[A]
construction of the section that would deny children like Jacob and
Dana the opportunity of having their two de facto parents become
their legal parents, based solely on their biological mother's
sexual orientation or marital status, would not only be unjust
but also miqht raise constitutional
under the circumstances
concerns in light of the adoption statute's historically consisten
purpose -- the best interests of the child" (Majority opn, at 22-23
[citations omitted] [emphasis added]). This sweeping amalgam
allows questionable opportunity for appropriate statutory
amendments to deal with perceived ambiguities. It also tolerates
no potential for showing in the future any State interest
supporting any enactment regulating this field that could survive
equal protection constitutional attack.
This "equal protection" concern was not even raised in
either case before the lower courts, and the Majority's preemptive
cloud, coupled with a failure to deal with that issue's complexity,
and implicated jurisprudential nuances is perplexing (compare,
Campaiqn for Fiscal Equity v State of New York, 86 NY2d 307, 312,
324, 332, 344). Further, the generalization of some hypothesized
result being "unjust under the circumstances" (Majority opn, at
23), while a matter of general concern to any judge, cannot
supplant specific analysis and avoid rational basis judicial
scrutiny within an appropriate and rigorous adjudicatory process
and developed record of pleadings and proof on an as-applied basis.
Whatever labels are used, no constitutional issue is squarely and
thoroughly presented in these cases anyway, nor is any appropriate
for speculation on these records. Moreover, the vagueness as to
precisely which parties' -- the children or the adopting petitioner
or the biological parent -- constitutional rights are somehow at
risk adds bewilderment to the analysis and attempted, precise
rejoinder.
Overlaying the entire problem about such projections of
facial or applied constitutional doubt, cast upon a complex set of
statutes, is the inattentiveness to the fundamental presumption of
constitutionality of duly enacted legislation and to the
appropriate deference, indeed "supremacy," of the legislative role
in this area (see, People v Thompson, 83 NY2d 477, 487-488; Matter
of Robert Paul P., 63 NY2d 233, 237, supra; People v Epton, 19 NY2d
496, 505). These overridden precepts should be central in the
dispositional equation in these cases instead of a tenuous
statutory construction axiom insinuated on a problematical
constitutional premise.
Significantly, this Court did not even have the benefit
in these cases of the customary adversarial advocacy dynamic. No
briefs or oral arguments supportive of the results below or against
the arguments for adoptions were presented, though several amici
briefs in support of appellants' positions were accepted. Thus,
one-sided constitutional claims raised for the first time on appeal
should especially be foreclosed from this Court's consideration
based on well-settled institutional and precedential principles
(see e.g, People v Gray, 86 NY2d 10, 20; Lichtman v Grossbard, 73
NY2d 792, 794; Melahn v Hearn, 60 NY2d 944, 945; Matter of Eaqle v
Paterson, 57 NY2d 831, 833; People v Martin, 50 NY2d 1029, 1031;
Wein v Levitt, 42 NY2d 300, 306; Cohen and Karger, Powers of the
New York Court of Appeals, 169, at 641; see also, Patchoque-
Medford Conqress of Teachers v Bd. of Education, 70 NY2d 57, 71
[Simons, J., concurring]). We emphasize that it is the dubiety
cast over very significant constitutional propositions in this
fashion that is at least as disquieting as an unequivocal
constitutional declaration. This is especially so since the
Attorney General of the State was given no notice or opportunity,
as required by Executive Law 71, to fulfill the obligation of the
Department of Law to defend the constitutionality -- or against the
inchoate unconstitutionality -- of the beclouded statutes.
The instant two cases also take the constitutional hook
of Matter of Patchoque-Medford Conqress of Teachers v Bd. of
Education (70 NY2d 57, supra), where the assertion of a general
constitutional claim in a pleading was used by this Court to reach
a specific State constitutional basis for decision, two giant steps
beyond that significant jurisprudential outer limit. Now, parties
may assert constitutional claims at the final appeal stage and
appellate courts may drive a debatable statutory construction
wedge -- a speculative, future constitutional concern -- into the
disposition of very significant statutes and cases.
The Majority's constitutional prognostication is thus
linked to a statutory construction device that teaches courts to
avoid reaching constitutional issues when they need not. The
rubric is dubiously applied here, however since it is designed
primarily to respect the presumption of constitutionality, not
becloud it. The presumption is a reservoir of judicial power,
preserving judicial capital, resources and power for when they are
most and unavoidably needed. The rubric has never been used, as
here, to anticipate amorphous doubt over statutes as applied to
real, future cases and controversies. By employing a canon of
construction to, in effect, reach an unlitigated issue in order to
avoid potentially "embarrassing constitutional questions" in the
future, the Majority in the instant cases violates the very canon
it invokes. It ultimately also transgresses another overriding
canon, that courts should not legislate under the guise of
interpretation (see, e.g., People v Finnegan, 85 NY2d 53, 58;
People v Heine, 9 NY2d 925, 929).
The Majority concludes that "[g]iven that section 117 is
open to two differing interpretations" -- a conclusion with which
we have already noted our strong disagreement in any event -- the
Court must construe the statute to avoid constitutional doubt
(Majority opn, at 22, citinq principally Matter of Lorie C., 49
NY2d 161, 171). That case dealt with the State constitutional
limits on the jurisdiction of the Family Court in placing juvenile
delinquents in foster homes. Since the statutory construction
issue directly implicated Article VI, section 13 of the State
Constitution, it is arguably appropriate for the Court to have
added a dictum concerning the special court's jurisdictional limits
under the State Constitution. As the Court noted, the statutory
question involved the "doctrine of distribution of powers 'that
each department should be free from interference, in the discharge
of its peculiar duties, by either of the others'" (Matter of Lorie
C., supra, at 171 [quotinq Sexton v. Carey, 44 NY2d 545, 549].
Here, the would-be constitutional question involves nothing of that
kind and does not implicate a powers section of the State
Constitution; rather, it forecasts an equal protection "concern."
As the Court has elsewhere observed, failure to raise a
constitutional issue in nisi prius courts results in an inadequate
record, lack of joinder, and lack of development and testing of
adjudicative analysis to permit and justify the appellate court to
make its fair, reasonably-tested and long-lasting determination and
precedent on the merits (see, People v Gray, 86 NY2d 10, 20, supra;
People v Martin, 50 NY2d 1029, 1031, supra). Furthermore, if a
litigant does not raise a particular legal argument before a court
of first instance, that effectively deprives the other party -- if
there is one, as there is not in these cases -- of a fair
opportunity to present and answer the proofs and deprives the
process of jurisprudence of the essential check-and-balance against
unilateral mistake or misapprehension. This Court has also
repeatedly warned that "if any unsought consequences result, the
Legislature is best suited to evaluate and resolve them+ (Bender v
Jamaica Hosp., 40 NY2d 560, 562, _itinq Briqht Homes v Wright, 8
NY2d 157; see, Matter of Robert Paul P., 63 NY2d 233, 239, supra).
These cautions are uniquely appropriate with respect to the
Legislature's concededly "supreme" power and provenance concerning
its legal creature: adoptions.
In sum, the common issue here involves a subject on which
the Legislature has expressed itself. These cases appear on a
screen on which the Legislature has delineated its will and
judgment methodically and meticulously to reflect its enactments.
Ambiguity cannot directly or indirectly create or substitute for
the lack of statutory authorization to adopt. These adoption
statutes are luminously clear on one unassailable feature: no
express legislative authorization is discernible for what is,
nevertheless, permitted by the holdings today. Nor do the statutes
anywhere speak of de facto, functional or second parent adoptions.
Frankly, if the Legislature had intended to alter the definitions
and interplay of its plenary, detailed adoption blueprint to cover
the circumstances as presented here, it has had ample and repeated
opportunities, means and words to effectuate such purpose plainly
and definitively as a matter of notice, guidance, stability and
reliability. It has done so before (see, e.q., L 1984, ch 218
[permitting adoption by adults not yet divorced]; L 1951, ch 211
[permitting adoption by a minor]).
Because the Legislature did not do so here, neither
should this Court in this manner. Cobbling law together out of
interpretative ambiguity that transforms fundamental, societally
recognized relationships and substantive principles is neither
sound statutory construction nor justifiable lawmaking. Four prior
courts in these two cases correctly dismissed the respective
adoption petitions. Since those appropriate judicial
determinations are based on what the Legislature actually enacted
and specifically authorized, the Appellate Division orders should
be affirmed.
* * * * * * * * * * * * * * * * *
No. 195: Order reversed, without costs, petition reinstated, and
matter remitted to Family Court, Oneida County, for further
proceedings in accordance with the opinion herein. Opinion by
Chief Judge Kaye. Judges Smith, Levine and Ciparick concur. Judge
Bellacosa dissents and votes to affirm in an opinion in which
Judqes Simons and Titone concur.
No. 196: Order reversed, without costs, petition reinstated and
matter remitted to Family Court, Putnam County, for further
proceedings in accordance with the opinion herein. Opinion by
Chief Judge Kaye. Judges Smith, Levine and Ciparick concur. Judae
Bellacosa dissents and votes to affirm in an opinion in which
Judges Simons and Titone concur.
Decided November 2, 1995
=========================================
Endnotes
1. The dissent+s criticisms of our reasoning and methodology
are unfounded and undeserved. A careful process of studying the
various statutes and their history, in an effort to resolve the
novel questions presented, has led us to different conclusions--
not unlike courts elsewhere that have confronted this issue and
in the main have resolved it as we have (see In re TammY, 619
NE2d 315 [Mass 1993] [permitting second-parent adoption]; In re
B.L.V.B., 628 A2d 1271 [Vt 1993] [permitting second-parent
adoption]; In re M.M.D., 662 A2d 837, [DC 1995] [permitting
second-parent adoption]; but see In re Anael Lace M., 516 NW2d
678 [Wis 1994]).
2. Though the adoption petition in Matter of Jacob was filed
jointly on behalf of appellant Stephen T.K. and Jacob's
biological mother in "an understandable effort to cover all the
bases" (In re M.M.D., 662 A2d 837, 1995 D.C. App. LEXIS 141
at *10), the fact that appellants chose this procedural route
should not preclude Stephen T.K.--an adult unmarried person--from
adopting Jacob.
3. By interpreting the language regarding married couples in
sectlon 110 as expansively as it does, the dissent would prohibit
adoptions in whole categories of cases not before us--for
example, when two unmarried adults seek to adopt a child who is
the biological child of neither of them (see, e.q., In re M.M.D.,
662 A2d 837)--thereby decreasing the number of persons eligible
to adopt children deemed +'hard-to-place+ due to circumstances
such as behavioral problems, birth defects or serious illnesses.
4. The two appeals before us concern adoptions by second
parents, not adoptions "by any number of people who choose to
live together+ (dissent, p. 7). Similarly, our decision today
does not mandate judicial approval of second-parent adoptions in
all situations, but simply permits them to take place when
appropriate (see Domestic Relations Law 114).
5. This longstanding and widely-recognized principle of
statutory construction is invoked merely as an additional
interpretive aid--a pathway of analysis--in the difficult task of
choosing among possible readings of a statute (see Matter of
Lorie C., 49 NY2d 161, 171; Inter. Fuel + Iron CorP. v Donner
Steel Co., 242 NY 224, 231). In answering the question posed--
what does the statute mean?--we use all available and appropriate
analytical tools.
Despite the dissent's assertions to the contrary, we are not
declaring section 117 unconstitutional, but instead interpreting
it in a practical, common-sense manner which conserves judicial
resources and avoids the awkward alternative of "giving [it] an
interpretation which might precipitate embarrassing
constitutional questions" in the future (Hove+ v De Lona Hook h
Eve Co., 211 NY 420, 429; see also Matter of Ci+olla v Golisano,
84 NY2d 450. 455).