Cover Story: Whose Child Is This?
Second-Parent Adoption in Pennsylvania
|by Margaret Klaw and Megan Watson||
Fall 2001, Vol. 64, No. 3
The second case2 involved two women, domestic partners since 1983. They decided to raise a family, and one was artificially inseminated. She bore twin boys in 1997, and an adoption petition was filed in Lancaster County in 1998.
Both trial courts denied the adoption petitions without hearings, and the parties appealed. As these were adoption cases, there were no opposing parties at the trial or appellate level. The questions raised by appellants included:
- Whether the Pennsylvania Adoption Act allows children, jointly raised by a legal parent and a second de facto same-sex parent, to create a legally recognized relationship with the second parent without destroying the existing legal relationship with the first parent.
- Whether the trial courts erred by requiring the legal parent to relinquish his or her parental rights under §2711(d) of the Adoption Act prior to allowing the same-sex parent to adopt.
- Whether the trial courts' denials of the adoptions were inconsistent with Pennsylvania law that children's best interests should not be thwarted because they are members of non-traditional families.
- Whether the Adoption Act must be construed in conjunction with federal and state constitutional guarantees of equal protection so that children are not denied the benefits of adoption by their second parent only because their parents are not married.
The parties were supported on appeal to the Supreme Court by more than sixty amici curiae who signed on to briefs filed by Lambda Legal Defense and Education Fund and the Center for Lesbian and Gay Civil Rights, and two Philadelphia public interest organizations, the Women's Law Project and the Support Center for Child Advocates.3
Writing for the majority in both cases, Judge Correale F. Stevens began his analysis by stating that the parties' sexual orientation had no relationship to the Court's decisions, which were based strictly on statutory interpretation and application. The majority held that since only spouses can adopt a child where the natural parent has not relinquished his or her rights, and Pennsylvania does not recognize same-sex marriage, the Adoption Act does not allow an individual to adopt the child of his or her same-sex partner. The Court asserted that the Adoption Act must be strictly construed, that it had no power to expand the Act to permit these adoptions, and that such an expansion was an issue for consideration by the legislature.
The majority also examined, and rejected, the parties' claim that §2901 of the Adoption Act gave the court discretion to grant the adoption for "cause shown," upon a showing that the adoption was in the best interests of the child, even though the legal parent's rights had not been terminated. The majority held that a "best interests" determination was not what the legislature meant by "cause shown," and that such an analysis could only be made after all statutory requirements were met, including the relinquishment of parental rights by the legal parent.
Judge Justin Morris Johnson filed a lengthy and thoughtful dissent, in which he strongly questioned the majority's strict constructionist approach, asserting that both applicable case law and the Statutory Construction Act4 require a liberal, rather than a strict, construction of the Adoption Act. Finding the purpose of the Adoption Act's requirement that a parent relinquish parental rights prior to an adoption (by anyone other than a step-parent) to be finality and resolution for the child, Judge Johnson accused the majority of acting in direct contravention of that purpose.
The dissent also pointed out that the Adoption Act does not prohibit adoption by both same-sex partners when the child is not related to either, and thus to prohibit adoption when the child is the biological or adopted child of one of the partners is entirely inconsistent with the intent of the Act. In C.C.G., Judge Johnson noted that the majority's decision creates the anomalous result that if J.C.G. had joined in the initial adoptions, there would have been no bar to both parties' adoption of the children simultaneously. However, as J.J.G. had already adopted the children, he would need to relinquish his parental rights in order for J.C.G. to adopt, a result Judge Johnson termed "a parody of the very stability in family life the Adoption Act attempts to achieve."5
Finally, Judge Johnson also criticized the majority for not recognizing and using the discretion afforded the court to consider the child's best interests. He cited the briefs of amici curiae that attested to the fact that at least ninety-six second-parent adoptions had already taken place in twelve different counties in the Commonwealth, which, he noted, were presumably based on trial court findings that such adoptions were in the best interests of the children before them. The majority, the dissent stated, "wrongly focuses on the relationship between the petitioners at the expense of attention to the parent-child relationship and the potentially salutary effect that an adoption would have on the children's interests."6
The position advanced by the dissent is precisely the one that has become the established law of New Jersey on this issue. In a 1995 case involving the adoption of 3-year-old twin boys by their biological mother's same-sex partner,7 the Appellate Division of the New Jersey Superior Court ruled emphatically that, although the adoption statute did not specifically provide for such an adoption, the legislature's general requirement that the statute be liberally construed to promote the best interests of children required it to treat the same-sex partner as a step-parent. In fact, the New Jersey court found that a literal reading of the statutory exception for step-parents (which, as in Pennsylvania, would allow adoption by a parent's spouse without termination of the parent's rights) produces a "wholly absurd and untenable result."8 Thus, despite the narrow wording of the step-parent exception, the court there held that it "could not 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."9
Additionally, the New Jersey court found that it was "plain that the best interests of the twins will be served by according them the full range of legal and financial benefits attendant upon a legally cognizable parental relationship."10 Those benefits were exactly what was not considered by the majority of the Pennsylvania Superior Court. As Judge Debra M. Todd pointed out in her separate dissent in the Pennsylvania cases, the benefits of second-parent adoption include the child's right to financial support from two parents instead of just one, rights to inheritance from each parent, and rights to obtain other dependent benefits, such as health care and Social Security, from each parent. Despite the fact that there is no legal mechanism other than adoption that can offer such protection, the majority still refused to engage in a best interests of the children analysis.11
Although the majority opinions in R.B.F. and C.C.G. state that it is up to the legislature to specifically address the issue of second-parent adoption, Pennsylvania courts have taken a decidedly different approach in child custody cases when considering what adult/child relationships warrant judicial recognition and protection in order to foster the best interests of children in the Commonwealth. Indeed, without any legislative changes at all (except statutes that grant certain limited custody rights to grandparents), the common law has evolved over the past two decades to dramatically expand the custody rights of non-biological parents in recognition of the changing forms of contemporary families and the needs of children to have those relationships fostered and protected.
Both standing to seek custody rights and custody rights themselves have been awarded to step-parents, to relatives and friends who are raising children, and to gay and lesbian partners of biological parents. A third party who establishes a parent-like relationship with a child may be able to prove in loco parentis status and be granted standing on that basis. This right was first accorded to step-parents12 and then extended to same-sex partners in 1996.13 And, in custody contests between third parties such as aunts, uncles or others who might be caring for a child, those third parties now have standing so long as they can demonstrate a sustained, substantial and sincere interest in the welfare of the child.14
Parents are still given preference by our courts in substantive custody disputes; when it comes to the actual award of custody rights, third parties do not stand on equal footing, as the evidentiary scale is tipped in favor of the parent.15 However, even this parental preference doctrine is ripe for revision; when it was recently re-examined by the Pennsylvania Supreme Court six years ago, a plurality of the Court favored abandoning the presumption in favor of biological parents altogether.16
The number of American children currently living in non-traditional families is enormous. As the United States Supreme Court noted in its recent decision regarding grandparent visitation, demographic changes of the past century make it difficult to speak of an average American family, as the compositions of our families vary so greatly from household to household.17 It would seem that the task of courts, legislatures and policymakers would be to protect the best interests of all children by recognizing the obligations of those who care for them-whether they are legal parents or other adults to whom children have bonded-to continue doing so in a stable and effective manner. Our appellate courts have risen to this task in the area of child custody; however, the Superior Court's refusal to sanction second-parent adoption seems sadly out of step with the best interests of our children.