In re B.L.V.B.

IN_RE_BLVB.92-321; 160 Vt. 368; 628 A.2d 1271


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-321


 Adoptions of B.L.V.B. and E.L.V.B.           Supreme Court

                                              On Appeal from
                                              Probate Court
                                              Washington District

                                              February Term, 1993


 George K. Belcher, J.

 Julie A. Frame, David W. Curtis and Leslie J. Dunn of Hoff, Agel, Curtis &
    Cassidy, P.C., Burlington, for plaintiffs-appellants

 Paula L. Ettelbrick, Lambda Legal Defense & Education Fund, Inc., New York,
    New York, and Susan M. Murray of Langrock Sperry & Wool, Middlebury, for
    amici curiae



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      JOHNSON, J.   The issue we decide today is whether Vermont law requires
 the termination of a natural mother's parental rights if her children are
 adopted by a person to whom she is not married.  We hold that when the
 family unit is comprised of the natural mother and her partner, and the
 adoption is in the best interests of the children, terminating the natural
 mother's rights is unreasonable and unnecessary.  We reverse.
      Appellants are two women, Jane and Deborah, who have lived together in
 a committed, monogamous relationship since 1986.  Together, they made the
 decision to have and raise children, and together, they consulted various
 sources to determine the best method for them to achieve their goal of
 starting a family.  On November 2, 1988, Jane gave birth to a son, B.L.V.B.,
 after being impregnated with the sperm of an anonymous donor.  On August 27,
 1992, after being impregnated with sperm from the same donor, she gave birth
 to a second son, E.L.V.B.  Deborah assisted the midwife at both births, and
 she has been equally responsible for raising and parenting the children
 since their births.
      Appellants sought legal recognition of their existing status as co-
 parents, and asked the probate court to allow Deborah to legally adopt the
 children, while leaving Jane's parental rights intact.  The adoption
 petitions were uncontested.  The Department of Social and Rehabilitative
 Services conducted a home study, determined the adoptions were in the best
 interests of the children, and recommended that they be allowed.  A clinical
 and school psychologist who had evaluated the family testified that it was
 essential for the children to be assured of a continuing relationship with
 Deborah, and recommended that the adoptions be allowed for the psychological
 and emotional protection of the children.
      Despite the lack of opposition, the probate court denied the adoptions,
 declining to reach whether the adoptions were in the best interests of the
 children because the proposed adoptive mother "does not satisfy the
 statutory prerequisite to adoption."  The court relied on 15 V.S.A. {{ 431
 and 448.  Section 431, covering who may adopt, provides:
           A person or husband and wife together, of age and sound
           mind, may adopt any other person as his or their heir
           with or without change of name of the person adopted.  A
           married man or a married woman shall not adopt a person
           or be adopted without the consent of the other spouse.
           The petition for adoption and the final adoption decree
           shall be executed by the other spouse as provided in
           this chapter.


         Section 448, which describes how the rights and obligations of both
 parents and children are altered by a final adoption decree, provides in
 pertinent part:
         The natural parents of a minor shall be deprived, by the
         adoption, of all legal right to control of such minor,
         and such minor shall be freed from all obligations of
         obedience and maintenance to them. . . .  Notwith-
         standing the foregoing provisions of this section, when
         the adoption is made by a spouse of a natural parent,
         obligations of obedience to, and rights of inheritance
         by and through the natural parent who has intermarried
         with the adopting parent shall not be affected.
 The court read the last sentence of { 448, the "step-parent exception," and
 { 431, as clearly requiring that "if a couple adopts together, they must be
 married.  If one partner is the birth parent, and the other partner desires
 to adopt, then they must be married:  otherwise, the birth parent will lose
 rights in the child under { 448."
      Appellants make numerous attacks on the probate court's interpretation
 of the statutes, but in the main, they contend that the statutory language
 does not prohibit the adoptions, that enforcing the termination of the birth
 mother's rights under { 448 would reach an absurd result in these
 circumstances, and that such a result is inconsistent with the best
 interests of the children and the public policy of this state.  We agree.
      In interpreting Vermont's adoption statutes, we are mindful that the
 state's primary concern is to promote the welfare of children, In re Camp,
 94 Vt. 455, 458, 111 A. 565, 567 (1920), and that application of the
 statutes should implement that purpose. (FN1) See In re S.B.L., 150 Vt. 294,
 301-02, 553 A.2d 1078, 1083-84 (1988) (in applying custody statute to fact
 pattern breaking substantial new ground, intent of legislature, gleaned from
 whole of statute, must be considered).  In doing so, we must avoid results
 that are irrational, unreasonable or absurd.  Id. at 301, 553 A.2d  at 1083.
 We must look "not only at the letter of a statute but also its reason and
 spirit."  Id.
      Nothing in Vermont law, other than a restrictive interpretation of
 { 448, would exclude Deborah from adopting another person.  Under 15 V.S.A.
 { 431, which broadly grants the right to adopt to "a person or husband and
 wife together," an unmarried person is permitted to adopt, and the sole
 limitation -- that the adoption of a married person requires the consent of
 the adoptee's spouse -- does not apply here.  Even reading { 431 in
 conjunction with { 448, we cannot conclude, as the probate court did, that
 the legislature meant to limit the categories of persons who were entitled
 to adopt.
       Section 448 was passed by the legislature in 1945, then revised and
 adopted in substantially its present form in 1947. (FN2) It is highly unlikely
 that the legislature contemplated the possibility of adoptions by same-sex
 partners, and the scant legislative history does not indicate that such
 adoptions were considered.  See Record of Committee Meetings for H. 206,
 Judiciary Committee (March 14, 1945).  Because adoptions by same-sex
 partners were apparently not contemplated when { 448 was drafted, it cannot
 be said that they are either specifically prohibited or specifically
 allowed by the statute.  To determine whether such adoptions are consistent
 with the purpose of the statute, it is necessary to discern what { 448 was
 designed to accomplish.
      When the statute is read as a whole, we see that its general purpose is
 to clarify and protect the legal rights of the adopted person at the time
 the adoption is complete, not to proscribe adoptions by certain combinations
 of individuals.  Who may adopt is already covered by { 431.  Section 448 is
 concerned with defining the lines of inheritance for adoptees, preserving
 their right to inherit from their natural parents and granting the right to
 inherit from the "person or persons" by whom they are adopted.  The statute
 also terminates the natural parents' rights upon adoption, but this pro-
 vision 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 legis-
 lative intent is evidenced by the step-parent exception, which saves the
 natural parent's rights in a step-parent adoption.  The legislature recog-
 nized that it would be against 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 { 448 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 terminate the parental rights of a biological
 parent who 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.  See Lubinsky v. Fair Haven Zoning Board, 148 Vt.
 47, 50, 527 A.2d 227, 228 (1986)(intent of statute is derived from
 consideration not only of language, but from entire enactment, its reason,
 purpose and consequence, and on presumption that no unjust or unreasonable
 result was intended).
      Although no state supreme court has confronted the issue, a number of
 lower court decisions support our conclusion.  Interpreting a similar "step-
 parent exception" in a factually similar adoption case, the Superior Court
 for the District of Columbia stated that cutting off the biological mother's
 rights "would be a particularly counterproductive and even ludicrous result"
 once the adoption by the mother's partner was found to be in the child's
 best interest.  In re Petition of L.S. and V.L., No. A-269-90 and A-270-90,
 slip op. at 5 (D.C. Super. Ct. Fam. Div. Aug. 30, 1991).  Instead, following
 the legislative intent, the court likened same-sex partners who adopted to
 step-parents, holding them exempt from the provision cutting off a
 biological parent's rights.  Id. at 8.(FN3)
      A New York court also upheld the adoption of a child by the biological
 mother's same-sex partner under a section of its adoption statute (FN4)
 identical in effect to that of Vermont's { 448.  That court stated that:

      [i]f this provision were strictly enforced it would require
      termination of the parental rights of [the biological mother] upon
      granting the adoption to [the mother's partner].  This would be an
      absurd outcome which would nullify the advantage sought by the
      proposed adoption: the creation of a legal family unit identical
      to the actual family setup.

 In re Evan, 583 N.Y.S.2d 997, 1000 (Surr. Ct. 1992).  The court further
 stated that where the adoptive and biological parents are in fact co-
 parents, "New York law does not require a destructive choice between the two
 parents.  Allowing continuation of the rights of both the natural and
 adoptive parent where compelled by the best interests of the child, is the
 only rational result and well within the equitable power of this court."
 Id.
      Moreover, focusing on the best interests of the adopted child has led
 courts, in other contexts, to allow a mother's partner to adopt without
 terminating the mother's rights.  For example, in In re Adoption of a Child
 by A.R., 378 A.2d 87 (Union Cty. Ct. Prob. Div. 1977), a New Jersey court
 allowed an unmarried biological father to adopt as though he were the
 stepfather of the child because the biological mother, to whom the father
 had been engaged, was incompetent and thus unable to marry.  The court
 stated that a section of the adoption statute similar to Vermont's { 448
 "must be read against the peculiar factual setting of [the] case, and with
 an application of common sense" in order to further the public policy of
 "the protection of the children and the adoptive and natural parents."  Id.
 at 89.
      Similarly, in In re A.J.J., 438 N.Y.S.2d 444 (Surr. Ct. 1981), the
 biological parents of A.J.J. refused to marry for political reasons.  The
 New York court permitted the biological father to adopt "in the same manner
 as if the petitioning father were the stepfather of the adoptive child,"
 thereby preserving the biological mother's rights.  Id. at 446.  That court
 stated:
         Society changes and, with it, so do mores.  In this era
         of freedom of choice and equality or rights for both
         parties, the child should not be denied the privilege of
         legitimacy as well as the care and concern of his
         natural mother's property and her rights of intestacy
         merely because these adult natural parents refuse to
         marry. . . .  The refusal by these natural parents to
         wed should not contravene New York's policy of fostering
         the child's best interests above all else.

 Id.
      When social mores change, governing statutes must be interpreted to
 allow for those changes in a manner that does not frustrate the purposes
 behind their enactment.  To deny the children of same-sex partners, as a
 class, the security of a legally recognized relationship with their second
 parent serves no legitimate state interest.  As the New York court stated in
 Evan:
         [T]his is not a matter which arises in a vacuum.  Social
         fragmentation and the myriad configurations of modern
         families have presented us with new problems and
         complexities that can not be solved by idealizing the
         past.  Today a child who receives proper nutrition,
         adequate schooling and supportive sustaining shelter is
         among the fortunate, whatever the source.  A child who
         also receives the love and nurture of even a single
         parent can be counted among the blessed.  Here this
         Court finds a child who has all the above benefits and
         two adults dedicated to his welfare, secure in their
         loving partnership, and determined to raise him to the
         very best of their considerable abilities.  There is no
         reason in law, logic or social philosophy to obstruct
         such a favorable situation.

 583 N.Y.S.2d  at 1002 (emphasis in original).  By allowing same-sex
 adoptions to come within the step-parent exception of { 448, we are
 furthering the purposes of the statute as was originally intended by
 allowing the children of such unions the benefits and security of a legal
 relationship with their de facto second parents.
      As the case law from other jurisdictions illustrates, our paramount
 concern should be with the effect of our laws on the reality of children's
 lives.  It is not the courts that have engendered the diverse composition of
 today's families.  It is the advancement of reproductive technologies and
 society's recognition of alternative lifestyles that have produced families
 in which a biological, and therefore a legal, connection is no longer the
 sole organizing principle.  But it is the courts that are required to
 define, declare and protect the rights of children raised in these families,
 usually upon their dissolution.  At that point, courts are left to vindicate
 the public interest in the children's financial support and emotional well-
 being by developing theories of parenthood, so that "legal strangers" who
 are de facto parents may be awarded custody or visitation or reached for
 support.  Case law and commentary on the subject detail the years of
 litigation spent in settling these difficult issues while the children
 remain in limbo, sometimes denied the affection of a "parent" who has been
 with them from birth.  Polikoff, This Child Does Have Two Mothers:
 Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and
 Other Nontraditional Families, 78 Geo. J. L. 459, 508-22 (1990); Comment,
 Second Parent Adoption for Lesbian-Parented Families:  Legal Recognition of
 the Other Mother, 19 U.C. Davis L. Rev. 729, 741-45 (1986).  It is surely in
 the best interests of children, and the state, to facilitate adoptions in
 these circumstances so that legal rights and responsibilities may be
 determined now and any problems that arise later may be resolved within the
 recognized framework of domestic relations laws.
      We are not called upon to approve or disapprove of the relationship
 between the appellants.  Whether we do or not, the fact remains that Deborah
 has acted as a parent of B.L.V.B. and E.L.V.B. from the moment they were
 born.  To deny legal protection of their relationship, as a matter of law,
 is inconsistent with the children's best interests and therefore with the
 public policy of this state, as expressed in our statutes affecting
 children.(FN5)
      Because the probate court rejected these adoptions on legal grounds, it
 did not make findings on whether the adoptions were, in fact, in the best
 interests of the children.  Ordinarily, this would require a remand to the
 probate court; however, in light of the fact that the adoptions were
 unopposed, that all of the evidence stands uncontroverted, that the adoption
 was investigated and recommended by the state, through SRS, and that there
 is not a scintilla of evidence in the record to suggest that the adoptions
 are not in the best interests of these children, no reason exists to remand
 for another hearing.
      Reversed; judgment is entered granting the petitions for adoption in
 Docket Nos. 5813 and 5814 of the Washington Probate Court.

                                    FOR THE COURT:


                                    ________________________________
                                    Associate Justice




FN1.    Curiously, the words "best interests" of the child appear only once
 in the adoption chapter, in the form signed by the parent surrendering the
 child for adoption.  15 V.S.A. { 432(c).  It is apparent from the evolution
 of the adoption statutes in Vermont, however, that the interests of children
 themselves, as opposed to children as chattels, came to be emphasized in the
 major revisions of the adoption chapter in 1945 and 1947.  L. D'Agostino,
 The History of Public Welfare in Vermont, 165-77 (1948).  We may also infer,
 from other sections of the adoption chapter, that the interests of the
 children have indeed become the central focus of legislative enactments
 governing adoption procedures.  See, e.g., 15 V.S.A. { 437 (requiring an
 investigation of the proposed adoptive home), {{ 441-443 (requiring hearing
 on proposed adoption), and { 440 (requiring a trial period for placement).

FN2.    Section 448 was amended only once after 1947, in 1963, to delete a
 "the" in the fourth sentence, and to add the phrase "predecessors in line of
 descent, and collateral kin" in the fifth sentence.

FN3.    The issue now before us is not a case of first impression even in
 Vermont.  Following L.S. and V.L. and numerous other out-of-state lower-
 court precedents, the Addison probate court recently allowed the female
 partner of a child's adoptive mother to adopt the child as a second parent.
 In re Adoption of R.C., No. 9088, slip op. at 5-7 (Addison Prob. Ct. Dec. 9,
 1991).  Finding that { 448 was not intended to apply to the situation before
 the court and that the adoption was in the best interests of the child, the
 court held that the termination of rights in { 448 should be read as
 directory rather than mandatory.  Id. at 7.  Although we do not follow this
 rationale, we note that other courts have not found { 448, or like statutes,
 to be a prohibition on adoptions by same-sex parents.

FN4.    New York's Domestic Relations Law { 117(1) provides that "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."
 
FN5.    See 15 V.S.A. {{ 431 - 454 (adoption); 15 V.S.A. {{ 291 - 296
 (support of spouse and care of children); 15 V.S.A. { 301 (legal rights,
 privileges, duties and obligations of parents to be established for benefit
 of children, regardless of whether child is born during marriage or out of
 wedlock); 15 V.S.A. { 665 (custody to be awarded upon best interests of
 child), { 666(c)(parental agreements on custody not in best interests of
 children shall not be approved by court), { 668 (custody modifications must
 be in best interests of children), and { 669 (guardians ad litem must
 represent best interests of children); 33 V.S.A. { 5540 (best interests of
 child shall be considered in disposition hearing on custody of minor).