In re M.M.D.
Lead Opinion
Opinion for the court by Associate Judge FERREN.
Concurring Opinion by Senior Judge MACK at p. 862.
Dissenting Opinion by Associate Judge STEADMAN at p. 866.
Table of Contents
Page
INTRODUCTION. 840
I. Facts and Proceedings. 840
II. Summary of Decision. 842
III. Whether An Unmarried Couple Is Eligible To Adopt A Child. CO 00
A. Preliminary Observation: How To Conceptualize This Case. CO Tp 00
B. Applicable Statutory Provisions and the the Trial Judge’s Ruling. CO TP 00
C. Rules For Statutory Interpretation. id Tp 00
D. Adoptions By Unmarried Couples: Language of the Adoption Statute, and the Statutory Rule of Construction in
E. Adoptions By Unmarried Couples: Legislative History. 05 TP 00
F. Adoptions By Unmarried Couples: Canons of Statutory Construction and “Strict” v. “Liberal” Construction. H ID 00
1. Expressio Urdus . H ID 00
2. Strict Construction. CO ID 00
G. Adoptions By Unmarried Couples: Other Interpretative Criteria — “Absurd Results” and “Obvious Injustice”. Tp ID 00
H. Adoptions By Unmarried Couples: A Final Interpretative Criterion— “Legislative Purpose”. TP ID 00
1. Legislative Intent. ID ID 00
2. Statutory Purpose. <D LD 00
I. Adoptions By Unmarried Couples: Furthering the Statutory Purpose By Achieving the Child’s Best Interests. CID 00
IV. Whether An Adoptive Parent’s Relationship With the Child Will Be Cut Off If That Parent’s Unmarried Life Partner is Permitted To Adopt 05 ID 00
A. The “Stepparent Exception” . 05 ID 00
B. Rejection of Possible Alternative Analysis. 1 — I íO 00
V. Conclusion. O 00
This case presents the question whether, under District of Columbia law, two unmarried persons — in particular, a same-sex couple living together in a committed personal relationship — may adopt a child. If the answer is yes, there is a second question: whether the fact that one member of the couple already has adopted the child creates any impediment to both members’ joining in the adoption. We answer the first question “yes,” the second question “no.” The trial judge erred in answering each question but intimated that the adoption would be in the child’s “best interests” if the law were otherwise — as we hold it here to be. We therefore reverse and remand for issuance of factual findings and, if still indicated, for entry of a decree granting the adoption appellants seek.
I. Facts and Proceedings
We quote the statement of facts from the trial judge’s opinion (footnotes omitted):
Hillary is a healthy, happy, and delightful 2]é year-old Black/Hispanic child who was born on August 15,1991 in the District of Columbia. Hillary’s biological mother is a young, attractive Black woman who met Bruce and Mark after reading an advertisement that they had placed in a local newspaper. The ad identified the petitioners as a gay couple who were seeking to adopt a child. Bruce and Mark are adult, white, homosexual males who have shared an intimate relationship for almost five years.
At the time she read the newspaper advertisement, the birth mother was several months pregnant and was not on good terms with her mother with whom she then lived. The birth mother, therefore, not only answered the ad, but shortly after meeting the petitioners, she began living with them. Eventually, she delivered Hillary on August 15, 1991. All went as planned when Hillary’s mother signed her consent to an adoption of Hillary on September 9, 1991. Bruce filed the first petition to adopt the child on the following day.
The baby’s natural mother and Bruce reached an agreement that the mother would continue to have visitation privileges with Hillary, even after the adoption was finalized. These visitation arrangements, however, did not proceed smoothly. Rather, the mother accused Bruce of denying her access to Hillary and eventually she filed a motion to vacate her consent to theadoption. This motion was submitted to this court and was scheduled for a hearing.
After much discussion and several preliminary hearings, the parties reached an accord which they reduced to writing. Essentially, Hillary’s mother and Bruce agreed again to permit the mother to visit with Hillary even after a final decree of adoption was issued.
In them discussion with the court about this agreement, the parties expressly stated that they understood that under the District of Columbia law, the natural mother had no enforceable right to visit Hillary after a final decree of adoption was signed because the law in the District of Columbia, as the parties understood it, mandated that upon the signing of the final decree of adoption, all of the mother’s rights as a parent would be terminated. No one suggested that this severance of Hillary’s mother’s rights was waivable. At the parties’ request, this court reviewed the agreement and satisfied itself that the natural mother understood that she was in no way obligated to settle the case; that she could instead proceed with the hearing on her motion to vacate her consent; and that the agreement to allow continued visitation with Hillary could not be enforced under the law as it existed in the District of Columbia. This court was further satisfied that the mother’s decision to reaffirm her consent to the adoption and to withdraw her motion to vacate her consent was voluntarily made. Therefore, since all of the evidence supported a finding that Bruce M. was a suitable person to adopt Hillary, and since Hillary was clearly suitable to be adopted, and because this court found that the adoption was in Hillary’s best interest, this court signed the final decree of adoption in favor of Bruce M.[1 ]
In March 1993, both Bruce M. and Mark D. petitioned to adopt Hillary. In addition, Bruce M. signed his consent to the petition to adopt in favor of himself and Mark D.
The petitioners, Bruce and Mark, are thirty and thirty-five respectively. They
are both Catholics who are members of a gay and lesbian religious organization called Dignity. Brace has a Bachelor’s Degree in Electrical Engineering and a Master’s Degree in Engineering Computer Science. He currently works as an engineer for a major corporation. Mark has a Bachelor’s Degree in Political Science and a Master’s Degree in Public Administration. He now works as a Court Administrator in the state of Pennsylvania.
The petitioners own a condominium that they bought jointly and have shared since 1990. They have committed themselves to each other as a family to the extent legally possible, and they seek to raise Hillary together, whether or not their joint petition to adopt her is approved. They have, for example, introduced Hillary to, and included her as, a part of both of them extended families. They shared in her baptism at their church. They have enrolled her in a monthly play group arranged by the Gay and Lesbian Parent Coalition of Washington. Hillary is a beneficiary in their wills, insurance policies and other funds.
Hillary appears to be bonded equally well to both Bruce and Mark. She calls Bruce “Daddy” and Mark “Poppy.” Bruce cooks most of the meals, while Mark often reads the bedtime stories. They both take Hillary on outings. The Department of Human Services has recommended in favor of them joint petition.
The judge added:
[T]he only issue before the court is a legal one since factually this court is satisfied by all of the evidence that Mark D. is fit and suitable to raise Hillary, even alone, and that this court would conclude on a single petition by Mark D. that it would be in Hillary’s best interests to be adopted by him.
The judge then ruled, for reasons explained below, that the adoption statute did not permit Mark to join in Bruce’s adoption of Hillary. This appeal followed.
Before offering our analysis, we believe it will be helpful to provide the following summary of decision:
1.
2. The legislative histories of the 1954 (present) adoption statute and of its 1937 predecessor add little to our understanding of legislative intent except for a significant, unexplained omission: beginning with the 1937 statute, Congress withheld language found in the first (1895) District of Columbia adoption statute limiting adoptions by couples to “husband and wife.” After 1895, no committee report or comment from the House or Senate floor addressed “who may adopt.” And nothing in the legislative history can be said to exclude adoptions by unmarried couples.
3. Because the statutory language and legislative history of the 1954 statute do not indicate that Congress paid attention to unmarried couples, one way or another, the language in
4. In contrast, the doctrine of “strict construction” would limit adoptions to couples who are married, regardless of whether Congress thought about the matter, simply because the statute refers to married couples and no others. This court, however, has rejected strict construction of the adoption statute in favor of “liberal construction” in other adoption contexts. Moreover, courts in other states have employed liberal construction to allow adoptions by unmarried couples under statutes similar to the District of Columbia statute, in order to further the statute’s beneficial purposes. The trial court’s adherence to strict construction, therefore, is not easily justified.
5. The traditional interpretive criteria cautioning against statutory construction that leads to “absurd results” or “obvious injustice,” while marginally relevant (if relevant at all), cut in favor of a liberal construction that includes unmarried couples as eligible adopters.
6. Under the circumstances, where the statutory language, legislative history, and other applicable criteria are not dispositive, the controlling interpretive criterion, according to applicable case law, is the court’s obligation to effectuate the legislative purpose of the adoption statute. There is no proper way of discerning legislative intent based on how Congress in 1954 would have answered the question whether unmarried couples should be eligible to adopt. This court, therefore, must focus on the general purpose or policy that motivated Congress to pass the adoption statute. There is considerable case law emphasizing that the “paramount concern” of the adoption statute — its central beneficial purpose — is the “best interests of the prospective adoptee.” We conclude that this purpose is better served by applying a liberal, inclusionary reading of the statute to the facts presented here, for which there is persuasive decisional precedent; this case and others demonstrate that adoption by an unmarried couple can be in a child’s
7. As indicated earlier, the statutory rule of construction in
8. We conclude, finally, that the so-called “stepparent exception” in
9. The trial court's order is reversed and the case remanded for further proceedings to determine whether it will be in Hillary’s best interest for Mark, as well as Bruce, to adopt her.
III. Whether An Unmarried Couple Is Eligible to Adopt A Child
A. Preliminary Observation: How To Conceptualize This Case
As indicated in the statement of facts and proceedings, although Bruce and Mark were living together at the time Hillary joined them, Bruce alone petitioned for Hillary’s adoption, which the court granted. Later, in a partially redundant exercise, both Bruce and Mark petitioned to adopt Hillary, and Bruce, in addition, formally “consented” to Mark’s joining in the petition. As will become clear from our statutory analysis, this particular approach reflects an understandable effort to cover all the bases, so to speak, in advocating the eligibility of an unmarried couple to adopt a child in the District of Columbia. In reality, therefore, despite Bruce’s initial, separate adoption of Hillary, the parties seek a way for them jointly to adopt her, and that is how we conceptualize this case. For reasons that we shall explain more fully once the statutory framework and related issues become more focused, this case is not better interpreted, more narrowly, as a petition filed by a single, unmarried person, Mark, seeking to adopt Hillary while using Bruce’s “consent” to preserve Bruce’s preexisting parental rights.
The result should be the same whether members of an unmarried couple living together in a committed personal relationship seek to adopt sequentially or simultaneously. This, then, is the perspective from which we view — and decide — the case.
B. Applicable Statutory Provisions and the Trial Judge’s Ruling
Three provisions of the adoption statute are relevant to determining whether more than one person may lawfully adopt a child and, if so, whether an unmarried couple
[1] Any person may petition the court for a decree of adoption. [2] A petition may not be considered by the court unless petitioner’s spouse, if he [or she] has one, joins in the petition, except that [3] if either the husband or wife is a natural parent of the prospective adoptee, the natural parent need not join in the petition with the adopting parent, but need only give his or her consent to the adoption. [4] If the marital status of the petitioner changes after the time of filing the petition and before the time the decree of adoption is final, the petition must be amended accordingly. [Emphasis added.]
If more than one petitioner joins in a petition, the requirements of this section apply to each. [Emphasis added.]
Finally,
[1] A final decree of adoption establishes the relationship of natural parent and natural child between adopter and adoptee for all purposes, including mutual rights of inheritance and succession as if adoptee were born to adopter. The adoptee takes from, through, and as a representative of his [or her] adoptive parent or parents in the same manner as a child by birth, and upon the death of an adoptee intestate, his [or her] property shall pass and be distributed in the same manner as if the adoptee had been born to the adopting parent or parents in lawful wedlock. [2A] All rights and duties including those of inheritance and succession between the adoptee, his [or her] natural parents, then’ issue, collateral relatives, and so forth, are cut off, [2B] except that when one of the natural parents is the spouse of the adopter, the rights and relations as between adoptee, that natural parent, and his [or her] parents and collateral relatives, including mutual rights of inheritance and succession, are in no wise altered. [Emphasis added.]
The first question — whether it is legally possible for an unmanned couple, see supra note 2, to adopt a child — focuses our attention, initially, on
There is an unconvincing leap of reasoning here. An “absence of specific legislative intent” does not always mean the legislature thought about something and rejected it; the omission also can mean the legislature did not think about the idea at all, and thus took no position on it.
It is unclear whether the trial judge considered this latter possibility, but it appears from her analysis that she believed it is irrelevant whether Congress thought about adoptions by unmarried couples. She seemed to be saying, rather, that the controlling fact is what the statute says; it does not expressly provide for such adoptions; end of case.
The trial judge reached her result by making a decision to employ “strict construction,” meaning, to “apply the law as it is written, without undue extension by interpretation.” Brown v. United States,
The judge, however, just as easily could have opted for a “liberal interpretation,” meaning “[t]he statutory provisions, where ambiguous, are to be construed liberally to effectuate the beneficial purposes that Congress had in mind.” United States v. Zazove,
The point here is not to say, summarily, that the trial judge’s approach is wrong; rather, we merely point out that another, respectable approach is available and that a more in-depth look at the statute is required than mere election between conflicting general rules of construction.
C. Rules For Statutory Interpretation.
This court, in Peoples Drug Stores v. District of Columbia,
First, even where the words of a statute have a superficial clarity, a review of the legislative history or an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve
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Second, the literal meaning of a statute will not be followed when it produces absurd results....
Third, whenever possible, the words of a statute ai’e to be construed to avoid obvious injustice.
Finally, a court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose, ... as determined by a reading of the legislative history or by an examination of the statute as a whole....
Id. (citations and internal quotation marks omitted). We concluded by warning that these four exceptions to the plain meaning rule should not be understood “to swallow the rule completely,” since there are strong policy reasons why everyone should be able to rely on what the statutory language, as commonly understood, appears to say. Id. at 755. Accordingly, we said, “a court should look beyond the ordinary meaning of the words of a statute only where there are persuasive reasons for doing so.” Id. (citations and internal quotation marks omitted).
D. Adoptions By Unmarried Couples: Language of the Adoption Statute, and the Statutory Ride of Constmetion in
We turn to the statutory language at issue, quoted above in Part III. B. Without doubt, under the adoption statute more than one person may lawfully adopt a child. Although the first sentence of
The adoption statute is unclear.
Before we try to answer that question, we note that another statute becomes relevant here. A prescribed “statutory rule[ ] of construction,”
Words importing the singular number shall be held to include the plural, and vice versa, except where such construction would be unreasonable.
This statute was enacted in 1901
This reasonableness requirement is a categorical, not a case-by-case, limitation that effectively turns the analysis back to interpretation of the adoption statute itself. With that said, however, the overall structure of § 49-202 — a general rule subject to an exception — suggests that the rule presumptively applies. This means that the burden falls on those who would strictly construe the adoption statute to demonstrate persuasively why it “would be unreasonable,” id., for a court to hold that unmarried couples are eligible to adopt under
We therefore begin the “reasonableness” analysis by returning to the language of the adoption statute. As we have indicated, the principal obstacle to expansive interpretation of
In the first place — and of considerable significance- — Congress unquestionably knew how to limit adoptions by two persons to married couples, as it expressly did in the 1895 adoption statute (“a person or a husband and wife” may adopt).
Second, by using a series of “ifs” (“if’ the petitioner has a spouse; “if’ either spouse is a natural parent; “if’ the marital status changes), Congress formulated
Third, the term “adoption” itself implies no self-evident limitation on who may adopt. Recently we noted that a “marriage,” according to “the ordinary sense and meaning traditionally attributed to the word,” does not include a same-sex couple, and thus partly for this reason we concluded that Congress, in enacting the marriage statute without specific limitation to heterosexual couples, could not have intended to include same-sex couples. See Dean v. District of Columbia,
Finally, whether Congress intended to limit adoptions by couples to those who are married, or did not give any thought to the matter, the fact is that the level of generality of the language used in the present adoption statute, in contrast with the 1895 statute— even without regard to the dictates of
At this point in the analysis, therefore, we are not able to say either that the adoption statute “plainly,” i.e., conclusively, allows adoption by an unmarried couple or that the statute “plainly” limits joint adoption to a “husband and wife” (as the 1895 statute did). The language gaps and generalities create too much ambiguity to require either interpretation.
Any inference that marriage is required before a couple may adopt, based solely on the language in
E. Adoptions By Unmarried Couples: Legislative History
Before 1895, when Congress enacted its first adoption statute,
Congress repealed the 1895 Act and adopted the first comprehensive adoption statute for the District in 1937.
Aside from “minor exceptions” the adop
It is important to add that only in connection with the 1895 Act did any member of Congress speak on the record about the scope of the provision governing who is entitled to adopt. Nowhere in any committee report, from either House of Congress, nor in any speech on the House or Senate floor, was there any discussion in 1937 or in 1954 about who is entitled to adopt; the statutory language is left to speak for itself.
This shift away from the 1895 “husband and wife” approach is all the more important in light of
In sum, the legislative history of the 1954 Act itself adds very little to our understanding, derived from the language of
F. Adoptions By Unmarried Couples: Canons of Statutory Construction, and “Strict” v. “Liberal” Construction
Courts scrutinize statutory language and legislative history with a view to finding out what the legislature actually intended at the time of enactment. Courts also sometimes use canons of statutory construction for that purpose. Aside from her reference to the general principle of “strict construction,” the trial judge did not employ canons of construction. Because the District of Columbia has joined the appellants’ side on appeal, however, we believe it is important to assess, sua sponte, the merits of a particular canon of construction that the proponents of the trial court’s ruling undoubtedly would cite.
1. Expressio Unius
One way of looking at the trial judge’s analysis would be to say she focused exclusively on the language in
The question, then, is whether ex-pressio unius describes a valid approach to discerning whether Congress in 1954 intended to include unmarried couples among the persons eligible to adopt children. The assumption underlying expressio unius is that, by reference to what the legislature said, the court can tell that the legislature thought about another matter and rejected it. In other words, this canon is shorthand for saying that the legislature said enough to imply it was covering the field, and thus that any omission within that field had to be intentional, not inadvertent. See McCray,
This kind of reasoning has been applied in several common situations: when the statute specifies remedies,
For three reasons the adoption statute does not present such a situation. First, in considering whether married couples are excluded as adopters, we are not dealing with typical expressio unius categories: specified remedies, exemptions, exceptions. Second, the statutory language itself does not clearly purport to specify all eligible adopters, given its level of generality (especially when compared with the 1895 statute) and its use of “ifs” when referring to married couples.
Finally, and of considerable importance, there is no basis here for inferring that Congress even considered adoption by unmarried
We therefore must conclude that the ex-pressio unius rationale cannot be used to explain the omission of unmarried couple adopters from
2. Strict Construction
The “strict construction” approach which the trial judge applied is akin to expressio unius analysis in that it would preclude extension of the statute beyond expressly permitted situations. See supra III. B. But there is a fundamental difference: instead of saying that expression of one thing should be understood as the conscious exclusion of another, strict construction says, the other way around, that legislative failure to express a possibility — including failure to erase a common law or other established norm — should be understood by itself to exclude that possibility.
In this case, strict construction would deny adoptions to unmarried couples simply because adoption as such was impossible at common law and, solely for that reason, should be precluded unless the statute expressly recognizes a particular adoptive relationship. See Scharfeld,
In In re J.H.,
We therefore conclude that the strict construction approach, like the expressio unius maxim, does not offer a persuasive reason for precluding adoptions by unmarried couples. Premising statutory interpretation on a pre-1895 state of affairs, without attention to more recent legislative principles, hai’dly commends itself — at least not to this court. As yet, therefore, we have seen no basis for concluding that it “would be unreasonable” to interpret
We turn to still other interpretive criteria.
G. Adoption By Unmamed Couples: Other Interpretative Criteria — “Absurd Results” and “Obvious Injustice”
Without a record that goes beyond this particular case we are not prepared to say, categorically, either that a legislative limitation of adoption to married couples and single persons or that a statutory embrace of unmarried couples (whether opposite-sex or same-sex) would lead to “absurd results” or to “obvious injustice.” Peoples Drug Stores,
With this said, however, it is important to recognize the trial judge has indicated that, but for the perceived statutory prohibition of adoptions by unmarried couples, the adoption Bruce and Mark are now seeking would be in the child’s best interests (more later). Moreover, in three other eases (which have not been appealed), Superior Court judges have granted adoptions to unmarried, same-sex couples on the basis of each child’s best interest. Matter of the Adoption of D.S. and R.M. for the Adoption of a Minor Child, 123 Daily Wash.L.Rptr. 1149 (D.C.Super.Ct. June 14, 1995); In re W.S.D., Adoption Case No. A-308-90 (D.C.Super.Ct. April 29, 1992); Matter of Petition of L.S. and V.L. for the Adoption of Minor (T.) and Minor (M.), 119 Daily Wash.L.Rptr. 2249 (D.C.Super.Ct. Oct. 21, 1991).
All these developments indicate to us that, in the context of considering whether unmai’-ried couples are eligible to adopt, a court construing an ambiguous statute would find it difficult to conclude on the basis of “absurdity” or “injustice” that the adoption statute categorically excludes such adoptions.
H. Adoption By Unmamed Couples: A Final Iutei'pretive Criterion — “Legislative Purpose”
We turn to the final interpretive criterion that applies when the statutory language lacks plain meaning: a judicial obligation “to effectuate the legislative purpose” by reference to “the legislative history” and the “statute as a whole.” Peoples Drug Stores,
In Peoples Drug Stores,
1. Legislative Intent
Under the “legislative intent” model we would try to ascertain how the enacting legislature, Congress, would have answered the question — “Shall unmarried couples be eligible to adopt?” — when it passed the statute in 1954. See id. at 754. We do not hesitate to say that pursuit of that answer would be entirely speculative and thus futile. We have no basis for taking judicial notice of the mores and predilections of the 83d Congress in this area of the law.
2. Statutory Purpose
Under the “statutory purpose” approach, as indicated earlier, we “will attempt to discern the general purpose or policy” that motivated Congress to enact the 1954 adoption statute and then will “construe the statute in the manner most consistent with that purpose.” Id. at 755 n. 4.
Adoption statutes were first enacted in this country in the middle of the nineteenth century. See 2 C.J.S. Adoption § 2 (1972). Early adoption legislation authorized transfer of children by deed from one set of parents to another, without legal proceedings. See Homer H. Clark, Jr., Law of Domestic Relations § 18.1, at 603 (1968). “More modern statutes, generally taken to date from the passage of the Massachusetts statute in 1851, provide for the institution of a legal proceeding leading to a decree of adoption, thereby giving the courts some powers in the supervision of the adoption process.” Id. The statutory policy underlying all adoption statutes is to “promot[e] the best interests of children while at the same time protecting as far as possible the interests of both natural and adoptive parents.” Id. § 18.3, at 614.
District of Columbia law reflects this development. Almost 50 years ago in In re Adoption of a Minor,
The adoption statute at the time recognized, as it does now, that the court is to consider not only “the interests of the adop-tee” but also those of “the natural parents, the petitioner [for adoption], and any other properly interested party.” Id. at 141,
This “best interests” priority is traceable to ease law deciding child custody in event of divorce, see Wells v. Wells,
The adoption statute, therefore, is intended to provide a loving, nurturing home that pursues the best interests of the adopted child
It is entirely possible that every legislator who voted on the adoption statute would answer, if asked, that Congress only intended for married couples to adopt children. But the fact is, Congress did not say so. Indeed, as we have often repeated, Congress as early as 1937 scuttled the “husband and wife” language it began with in 1895. As we also have seen, when there is no clear language either of inclusion or of exclusion, courts liberally construing adoption statutes do not automatically reject a proposed application of the statute merely because that particular possibility was not expressly provided for; rather, as we stressed in In re J.H., especially in the adoption context courts commonly ask whether, in light of the language used and the statutory purpose, the proposed application is available and should be approved in the child’s best interests. See Adoption of Tammy,
The decisive question, then, is whether adoptions by unmarried couples are likely enough to be in the best interests of children that we can say the statutory authority for such adoptions will further the statute’s purposes. We turn to that inquiry.
I. Adoption By Unmarried Couples: Furthering The Statutory Purpose By Achieving The Child’s Best Interests
The trial judge ruled in an earlier proceeding that Bruce’s adoption of Hillary was in the child’s best interest. In this case, the judge found that Hillary’s adoption by Mark, “even alone,” would also be in her best interest. Thus, the judge strongly intimated that Hillary’s joint adoption by Bruce and Mark, if legally permissible, would be in Hillary’s best interest, since the judge was aware that Hillary has been living with Bruce and Mark together from the time Hillary’s mother placed her with them both.
Given what the trial judge has said based on a substantial factual record, and further given the importance of determining whether interpretation of
As Hillary’s parent, Mark, like Bruce, would be able to obtain health insurance and other employment-related benefits for her.
Hillary would be protected in the event Mark died without a will because she would be entitled to inherit from him under the laws of intestate succession. See
Recitation of the foregoing benefits of adoption have revealed what a child, living with an unmarried couple, could lose if only one of two parents-in-fact is allowed to adopt under the law. This reality cannot be ignored. In this connection it is important to emphasize again that, in making the child’s “best interests” the “decisive consideration,” In re L.L.,
We are satisfied that the paramount statutory purpose — the “best interests” of the adoptee — will be best served, and that no other affected interests protected by the statute will be ill served, by a liberal, inclusive interpretation of
IV. Whether An Adoptive Parent’s Relationship with the Child will be Cut Off If that Parent’s Unmarried Life Partner is Permitted to Adopt
A. The “Stepparent Exception”
The final question is whether, despite the legality of an adoption by an unmarried couple in the best interests of the child, the “legal effects” provision,
The specified exception reflects the typical stepparent situation identified in
The trial court concluded that the cut-off language of § 36-312 is mandatory, not directory, and that its literal limitation to preserving the parental rights of the “spouse” of an adopting stepparent would preclude its use to save Bruce’s parental rights if Mark were allowed to adopt Hillary. To the contrary, we do not hesitate to hold that this stepparent exception applies here, even though the natural parent (by adoption), Bruce, is not the “spouse of the adopter,” Mark.
In the first place, the stepparent exception easily applies here by analogy; Bruce and Mark are living together in a committed personal relationship, as though married, and are jointly caring for Hillary as their child.
Second, we have held that the particular provisions in
Finally, the case law supports extending the
In Adoption of B.L.V.B., the Supreme Court of Vermont applied a statutory scheme that included a “cut off’ provision with a “stepparent” exception similar to
The statute also terminates the natural parents’ rights upon adoption, but this provision anticipates that the adoption of children will remove them from the home of the biological parents, where the biological parents elect or are compelled to terminate their legal obligations to the child. This legislative intent is evidenced by the stepparent exception, which saves the natural parent’s rights in a stepparent adoption. The legislature recognized that it would beagainst common sense to terminate the biological parent’s rights when that parent will continue to raise and be responsible for the child, albeit in a family unit with a partner who is biologically unrelated to the child.
Although the precise circumstances of these adoptions may not have been contemplated during the initial drafting of the statute, the general intent and spirit of 8 448 [the “cut off’ provisionj is entirely consistent with them. The 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. Despite the narrow wording of the step-parent exception, we cannot conclude that the legislature ever meant to tenninate the parental rights of a biological, pa-rent ivho intended to continue raising a child with the help of a partner. Such a narrow construction would produce the unreasonable and irrational result of defeating adoptions that are otherwise indisputably in the best interests of children.
In light of the logic inherent in the statutory scheme, and given the case law where courts have extended “stepparent” exceptions under “cut off’ provisions to cover unmarried, though personally committed, same-sex couples, we are satisfied that
B. Rejection of Possible Alternative Analysis
As indicated in our preliminary observation, see supra Part III. A., theoretically, perhaps, we could have begun the analysis more narrowly by focusing on the fact that one person, Mark — qualifying as “La]ny person” under § 16-302 — has filed a petition for adoption of a child for whom Bruce already had become a natural parent through earlier adoption. The burden of the analysis would then have shifted right away to
The court declined to conceptualize the case as one essentially presenting a threshold question whether an unmarried couple could adopt a child, saying that only one member of the couple had filed the petition and thus that “[t]he validity of a joint adoption [was] not before this court.” Id. at 684 n. 14 It is important to note, however, that the Wisconsin statute was similar to the 1895 District of Columbia statute — unlike the 1954 statute now before this court. Wisconsin authorized adoptions by “[a] husband and wife jointly,” by a stepparent, or by “[a]n unmarried adult.” Id. at 682 n. 4. Thus, based on plain statutory language, the question whether unmarried couples were entitled to adopt would
Furthermore, the District of Columbia adoption statute makes clear that the “cutoff’ question is subordinate to the eligibility question. The “cut-off’ provision,
As we elaborated earlier, the highest courts of Massachusetts, in Adoption of Tammy, and of Vermont, in Adoption of B.L.V.B., took the approach we have pursued here — and with the same result.
V. Conclusion
For the foregoing reasons, we conclude that unmarried couples living together in a committed personal relationship, whether of the same sex or of opposite sexes, are eligible to “petition the court for a decree of adoption” under D.C.
We therefore reverse and remand the case for further proceedings consistent with this opinion.
So ordered.
Notes
. According to the trial judge, "Hillary's biological father's consent to the adoption was waived after unsuccessful efforts were made to notify him, to locate him, and to secure his consent, vel non.”
. Because the statutory eligibility question is the same whether the unmarried persons seeking to adopt comprise a same-sex or an opposite-sex couple living together in a committed personal relationship, we use the simpler and broader term, "unmarried couple,” to describe the class at issue.
. The trial judge added that strict construction of the statute was warranted to "avoid future disturbances of the resultant family relationship created between the adopter and the adoptee," and that the "best interest of the child” standard could not be deemed to override strictly construed statutory provisions.
. See, e.g., S.O. v. W.S.,
.We do not address the possibility of adoption by more than two persons (e.g., an adoption by three siblings, living together, of a deceased sibling's child), not only because that issue is not presented here but also because that hypothetical possibility is likely to require consideration of issues not involved in adoption by a couple living together. Nor, for the same reasons, do we consider adoption by two persons who are not living together in a committed personal relationship. As to both of these hypothetical situations, however, we note that, even if such adoptions were allowable under the statute, other statutory constraints — most notably the "best interests of the prospective adoptee,”
. Law of March 3, 1901, ch. 854, 31 Stat. 1189.
. Adoption of Tammy,
. Pub.L. No. 392, 68 Stat. 240 (1954).
. By presumptively requiring us to read "person” in
. Law of February 26, 1895, ch. 134, 28 Stat. 687 (repealed 1937).
. See, e.g., Shamrock Oil & Gas Corp. v. Sheets,
. In Adoption of Tammy,
. In contrast, there can be occasions when a legislature may not have contemplated a particular statutory application, one way or another, but must be said to have excluded it simply because the statutory language and scheme do not leave room for it. For example, in Dean, supra, we held that the District of Columbia’s substantially gender-neutral marriage statute does not authorize same-sex marriage. We concluded that the gender-specific language of the consanguinity' provision of the marriage statute, when coupled with the gender-specific language of the divorce statute (part of the relevant statutory' scheme) and with the traditional understanding of the word "marriage," left no doubt that same-sex marriages were excluded.
. See supra note 10.
. See 26 Cong.Rec. H3600 (daily ed. Apr. 9, 1894); In re Jarboe's Estates,
. H.R. 5711, 53d Cong., 2d Sess. (1894); 26 Cong.Rec. H3599 (daily ed. Apr. 9, 1894).
. See id.; Law of February 26, 1895, ch. 134, 28 Stat. 687 (repealed 1937).
. P.L. No. 370, 75th Cong., 1st Sess., ch. 774 (Aug. 25, 1937) 50 Stat. 806 (amended 1954).
. Id. § 1.
. Id. § 5.
. Id.
. H.R.Rep No 1347, 83d Cong., 2d Sess. (1954), at 2.
. See supra note 8.
. See H.R.Rep. No. 1347, 83d Cong., 2d Sess. (1954); S.Rep. No. 1379, 83d Cong., 2d Sess. (1954); 100 Cong.Rec. H4986-H4988 (daily ed. Apr. 12, 1954); 100 CongRec. H7001 (daily ed. May 24, 1954); 100 Cong.Rec. H7056 (daily ed. May 25, 1954); H.R.Rep. No 1583, 75th Cong., 1st Sess. (1937) (in lieu of H.R.Rep. No. 1274, 75th Cong., 1st Sess. (1937)); S.Rep. No. 1034, 75th Cong., 1st Sess. (1937); 81 Cong.Rec. H8408-H8409 (daily ed. April 6, 1937); 81 Cong. Rec. H8565-H8566 (daily ed. Aug. 9, 1937); 81 CongRec H8731 (daily ed. Aug. 12, 1937); 81 Cong.Rec. H9182 (daily ed. Aug. 17, 1937); 81 Cong.Rec. H9200 (daily ed. Aug. 18, 1937).
. See supra note 11.
. See Browder,
. Perhaps someone could argue that the 1895 adoption statute established the rules — adoption by “a [single] person” or by "a husband and wife” — and that the 1954 statute retained that dichotomy by allowing adoption, explicitly, by ”[a]ny person” and, implicitly, by married persons, as evidenced by the express rules prescribed for spouses. There are at last two problems with this analysis: it ignores the intervening 1937 statute, which had no provision governing who may adopt, and it is but a conclusory assertion that ignores all the other criteria that apply when construing an ambiguous statute.
. See Mack v. United States,
. See Springer v. Philippine Islands,
. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L.Rev 395 (1950) ("there are two opposing canons on almost every point”).
.
. See Middlesex County Sewerage Auth. v. National Sea Clammers Assoc.,
. See Tennessee Valley Auth. v. Hill,
. See J. Parreco & Son,
. See McCray,
. The Supreme Court has employed strict construction of broad statutory language to preserve the applicability of traditional legal rules which the statute itself failed to address. For example, in Liparota v. United States,
. In rejecting the trial court’s view that the proposed adoption was outside the statute because it would create "a relationship that already exists,” In re J.H.,
. See McCarthy v. Bronson,
. See
.The best interests of the child often are affected by to the contending interests of natural parents, relatives, foster parents, and other prospective adoptive parents, as well as by the constitutional rights of contending parties; but in all instances, however those other interests are factored into the situation, they are either held subordinate to, or at least found consistent with, the child’s best interest. See generally Appeal of H.R.,
. We find it unnecessary to discuss criteria that apply to adoptions of adults. See
. In doing so, we shall not be finding facts; that is a trial court function, which the trial court has not as yet exercised here. Rather, we shall be referring to the kinds of benefits a child would receive from having two parents, not just one,
. See, e.g.,
. See, e.g.,
. If Mark became a public employee, for example, then Hillary would be entitled to statutory benefits. See, e.g.,
. See generally,
. See, e.g.,
. See, e.g.,
Concurrence Opinion
concurring:
I write as one who, although never exposed to the scholarly exercise of Latin, heartily embraces the importance of “a common-sense understanding of human thought and expression” alluded to by our dissenting colleague. (Dissenting opinion at 866). Nevertheless, I differ with Judge Steadman’s ultimate premise that, statutorily speaking, as to who may petition for adoption, the phrase “any person,” in
English dictionaries uniformly connote the versatility of a tiny three-letter word (“any”) by affording it an inordinate amount of space according to its use in meaning and context, e.g., as an adjective, pronoun or adverb. As an adjective it may be singular or plural— ie., “one out of many” or “some” “an indefinite number.”
Latin aside, therefore, Congress wisely saw fit as early as 1901, to provide in
I reject, therefore, the argument that Judge Ferren’s opinion constitutes an unreasonable extension of the statutory scheme. I fully concur in that exhaustive opinion (with a few exceptions as to volunteered comments which do little more than reflect the author’s own thinking at various stages of his scholarly pursuit).
APPENDIX
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION
IN THE MATTER OF THE PETITION OF FOR THE ADOPTION OF A MINOR CHILD
Adoption No. A-8-94
Judge Hedge
ORDER
This matter is before the court on Petitioners’ Motion for Reconsideration. Petitioners, D.S. and R.M., are adult women who have been in a committed relationship for over eight years. They jointly petitioned to adopt K.S., who has been living with them since November 1992. The court, sua sponte, issued an order, docketed on October 18, 1994, which directed the petitioners to submit an amended petition naming one or the other, but not both, as the petitioner. The basis for the order was the decision in In re Bruce M. & Mark D., which held that two unmarried individuals could not file a joint petition to adopt, regardless of the best interests of the child.
The petitioners appealed the October 18, 1994 Order and filed a Motion to Reconsider with the trial court on February 2, 1995.
Distilled to its essence, petitioners’ argument is that the adoption statute ensures that the best interests of the child are met and that any statutory construction analysis must be governed by this concept, as the plain statutory language does not preclude joint adoption by unmarried individuals. Thus, petitioners suggest, inter alia, that instead of looking to In re Bruce M., the court should be guided by In re L.S. & V.L. and In re W.S.D., which held that two unmarried persons in situations such as this
To analyze the issue, the coui't must first look to the statutory language and then, if the language is ambiguous, to the legislative history.
Any person may petition the court for a decree of adoption. A petition may not be considered by the court unless petitioner’s spouse, if he has one, joins in the petition, except that if either the husband or wife is a natural parent of the prospective adop-tee, the natural parent need not join in the petition with the adopting parent, but need only give his or her consent to the adoption. If the marital status of the petitioner changes after the time of filing the petition and before the time the decree of adoption is final, the petition must be amended accordingly.4
As is evident, the first sentence is simple and direct: “[a]ny person” may petition. “Any person,” however, may mean two persons. Under
The statute contemplates that two may adopt. First,
The remaining provisions of
Although principles of statutory construction permit the analysis to end with an examination of the plain language of the statute, which the court concludes permits the joint petition, it would be ignoring history to do so. There can be no question that when the adoption statutes were revised in 1937 and 1954, to say nothing of when they were enacted over a hundred years ago, the authors did not envision gay or lesbian couples filing a joint petition to adopt.
The legislative history of the adoption provisions suggests that the statute was meant to be broad, or “elastic,” to meet changing circumstances.
Neither the breadth of the statute nor its legislative history, however, reflects a manifest intent to prohibit joint adoptions by unmarried persons. Indeed, when the legislature has chosen to limit who may avail themselves of certain statutory rights, it has done so with specificity.
Moreover, as the Court of Appeals has recognized, “[i]t is well settled that ‘[t]he object of a statute may be so general and its language so broad as to reach conditions fairly coming within its intent and sweep although such conditions did not come in to existence until years after its enactment.”
The basic intent of the adoption law is to provide the “means by which a child could become a legal member of a family not his own.”
It is well-settled that the meaning of the language of a statute should be disturbed only when there is a “ ‘clearly expressed legislative intention’ contrary to that language.”
Finally, with respect to the factual record in this case, petitioners have demonstrated that it is in K.S.’s best interest that the petition be joint.
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Accordingly, it is by the court this 4th day of May 1995,
ORDERED that the petitioners notify the Court of Appeals that the court will grant their Motion to Reconsider, if the case is remanded; and it is further
ORDERED that upon remand of the case, the Clerk will enter a notation in the jacket that the petitioners’ Motion to Reconsider is granted, as of the date the ease is received from the Court of Appeals; and it is further ORDERED that upon remand of the case, the order entered on October 18, 1994, shall be vacated, effective on the date of the remand, and the Clerk is ordered to so note in the jacket.
/s/ Brook Hedge
BROOK HEDGE, JUDGE,
(signed in chambers)
. Black’s Law Dictionary 94 (6th ed. 1990); see also The American College Dictionary 7 (1970); Webster’s Third New International Dictionary 97 (1986).
. The American College Dictionary, supra n. 1; Webster’s, supra n. 1.
. The American College Dictionary, supra n. 1; Webster’s, supra n. 1.
. I refer to such statements as "At this point in the analysis, therefore, we are not able to say either that the adoption statute "plainly,” i.e., conclusively, allows adoption by an unmarried couple or that the statute "plainly” limits joint adoption to a "husband and wife” (as the 1895 statute did).” (Majority opinion at 849).
. In the instant case, all participants, including the parties, the Department of Human Services, the Corporation Counsel, as well as the trial court, have agreed that the adoption is in the best interest of the child. As to the order in the other case appended hereto, I have deleted, in the interest of brevity, the facts relevant to the best interest issue.
. In re Bruce M. and Mark D., 122 Wash.D.L.Rptr. 1009 (D.C.Super.Ct. May 25, 1994) appeal filed, No. 94-FS-620 (D.C.1994) (argued Apr. 4, 1995).
. The October 18, 1994 Order was entered by the judge previously assigned to the adoption calendar. The Motion to Reconsider was filed after the calendar was reassigned but retained the prior judge's name in the caption. It was mutually agreed between the prior and current judges on the calendar that the judge currently assigned would decide the instant motion.
. In re L.S. & V.L., 119 Wash.D.L.Rptr. 2249 (D.C.Super.Ct. Oct. 21. 1991); In re W.S.D., No. A-308-90 (D.C.Super.Ct. Apr. 30, 1992).
.
.
.
.
. Id. The 1954 Senate Report indicates that this was added because it was "emotionally abhorrent to the natural mother to join in the petition to adopt her own natural child.” S.Rep. No. 1379, 83d Cong., 2d Sess., § 4 (1954).
. A similar statutory framework has been held to include the plural and thus permit the joint petition to adopt by two unmarried persons. In re Tammy, [
. Indeed, it is fair to say they did not envision “any person” who was gay or lesbian successfully petitioning to adopt. The court draws this conclusion from the fact that it has been only in recent history that homosexuality did not automatically result in a birth parent losing custody of his or her child in contested proceedings.
. See In re D.R.M.,
. H.R.Rep. No. 1274, 75th Cong., 1st Sess., at 1 (1937).
. See S.Rep. No. 1379, supra note 8, pmbl.
. See Dean v. District of Columbia, [
. Rosenberg v. United States,
. H.R.Rep. No. 1274, supra note 12, at 1.
. Id.
. In re L.W., F.W.,
. To be sure, as the decision in Bruce M. notes, the adoption statute provides a number of factors which must be satisfied before an adoption can be decreed. In re Bruce M., supra note 1, at 1014. These factors, however, address procedural requirements to be met. They do not reflect the substantive intent of the legislation. Instead, the substantive intent is reflected in subsections (b)(1), (2) and (3) of
Moreover, by its very terms, the best interests standard is elastic because of its breadth.
. Lever Bros. Co. v. United States,
. Baghini v. District of Columbia Dep't of Empl. Servs., 525 A.2d 1027, 1029 (D.C.1987) (quoting Harrison v. J.H. Marshall & Assocs., Inc.,
Dissenting Opinion
dissenting:
Ezpressio unios est exclusio altenus may encapsulate a result, but it also encapsulates a common-sense understanding of human thought and expression. Here, the statute focuses upon only one circumstance in which a joint
Appellants draw our attention to a provision contained in the general rales for interpretation and construction of District statutory law that the singular includes the plural.
I respectfully dissent.
. I use the word “joint” here in its sense of applying to “two or more" entities (here, adopters). See Webster’s Third New International Dictionary 1219 (1981).
. Adoption is a purely statutory matter, not recognized at common law.
. In a sense, it may well be in the “best interests” of the child to have three or more "parents” in terms of financial security, rights of inheritance, and like considerations, but in my judgment, it would be utterly unwarranted to press the legislative intent so far. Cf. Reynolds v. United States,
. I see nothing helpful in that regard in Lee v. Wood,
. See, e.g., Di Giovanni v. Di Giovannantonio,
. See
. With respect to the “cut off” provision of