In Re Adoption of R.B.F.

762 A.2d 739, 2000 Pa. Super. 337, 2000 Pa. Super. LEXIS 3047

• Court: Superior Court of Pennsylvania
• Decided: November 8, 2000
• Status: Published

Opinions

STEVENS, J.:

¶ 1 This is an appeal from the October 22, 1998 order entered in the Court of Common Pleas of Lancaster County dismissing Appellants B.A.F.’s and C.H.F.’s petition for adoption of R.B.F. and R.C.F. (hereinafter, referred to as the children). We find that Appellants have not met the requirements of the Adoption Act, as promulgated by the Pennsylvania legislature, and, therefore, we affirm.

¶ 2 The relevant facts and procedural history are as follows: Appellants, a lesbian couple, have been domestic partners since 1983. When the couple decided to raise a family and share responsibilities of parenting, C.H.F. conceived through sperm with an anonymous donor.¹ Before the children, twin boys, were born on March 11,1997, B.A.F. legally changed her last name to that of Appellant C.H.F. On April 24, 1998, Appellants filed a petition pursuant to the Adoption Act, 23 Pa.C.S.A. § 2101-2910, wherein B.A.F. sought to adopt the children. The trial court issued an order on October 22, 1998, dismissing the petition with prejudice, and a timely appeal to this Court followed.² On January 7, 2000, a panel of this Court affirmed the trial court’s order; however, on January 21, 2000, Appellants filed an application for reargument/reconsideration, which was granted, and the appeal proceeded for oral argument before an en banc panel of this Court.

¶ 3 Appellants present the following issues for our review:

I. Whether the Pennsylvania Adoption Act permits twin boys, jointly raised since birth by both their legally recognized biological mother and their de fac-to mother, to establish a legally recognized relationship through adoption with their second de facto mother, without destroying the boys’ existing legal bonds with their biological mother.

II. Whether the trial court erroneously concluded that the biological mother was required to submit a consent to relinquish parental rights under Subsection 2711(d) in this case.

III. Whether the trial court erroneously relied on the decisions in E.M.A. and K.M.W.

IV. Whether the trial court’s ruling is inconsistent with Pennsylvania law that children’s best interests should not be thwarted merely because the family in which they are raised is non-traditional.

V. Whether the Adoption Act must be construed consistently with the federal and state constitutional guarantees of equal protection of the law so that these children are not denied the benefits of adoption by their second parent solely because of their parents’ marital status.

VI. Whether the trial court erred in failing to recognize that a joint petition for adoption establishes joint parental rights.

VII. Whether, in holding that the Pennsylvania Adoption Act permits second-parent adoptions, this Court would join a significant body of law of our sister states, which have held such adoptions permissible under Acts similar to our own.

¶4 In determining whether Appellant B.A.F. is permitted to adopt the children while Appellant C.H.F. retains her parental rights, this Court does not make a policy decision that Appellant B.A.F. is ineligible to adopt because of Appellants’ sexual orientation nor does this Court base its decision on Appellants’ sexual orientation.

¶ 5 To the contrary, the matter is simply one of statutory application and interpretation of the Adoption Act. After a careful review, we conclude that the Adoption Act’s clear and unambiguous provisions do not permit a non-spouse to adopt a child where the natural parents have not relinquished their respective parental rights, and, therefore, the Act does not afford B.A.F. a legally ascertainable interest, notwithstanding the equal protection clause.³

¶ 6 “To effect an adoption, the provisions of the Adoption Act must be strictly construed.” In re Adoption of K.M.W., 718 A.2d 332, 333 (Pa.Super.1998) (citation omitted). “Additionally, adoption is purely a statutory right, unknown at common law.” Id. “Our courts cannot and should not create judicial exceptions where the legislature has not seen fit to create such exception.” Id.4

¶ 7 Herein, Appellants argue that a de facto parent may adopt the children of his or her domestic partner because the Adoption Act allows “any individual” to become an adopting parent.⁵ See 23 Pa.C.S.A. § 2312. However, we cannot limit our inquiry to the language found in Section 2312, for there is a presumption that in drafting the Act, the General Assembly intended the entire statute to be effective. 1 Pa.C.S.A. § 1922. As such, Section 2312 must be read in connection with the other sections of the Act. Id.

¶ 8 For example, Section 2701 of the Adoption Act, supra, provides that a petition for adoption shall set forth “that all consents required by section 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which consents are not required.” Section 2711 requires consent from “the parents or surviving parent of an adoptee who has not reached the age of eighteen years.” In particular, the consenting parent must provide the statement: “I understand that by signing the consent I indicate my intent to permanently give up all rights to this child.” 23 Pa.C.S.A. § 2711(d).

¶ 9 In the case sub judice, the children’s natural mother, Appellant C.H.F., attached a consent form to the adoption petition; however, the phrase indicating that she intended to permanently give up her rights to the children was omitted from the form. It is clear that the omission of the language was intentional since Appellant C.H.F. has admitted that she never intended to relinquish her parental rights. See Adoption Petition filed 4/24/98; Appellants’ Brief at 8, 10-11. As such, Appellants have not met the requirements of Section 2711, supra.

¶ 10 The only exception to the unqualified consent requirement is found in Section 2903 of the Adoption Act, which provides that “[wjhenever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child shall remain whether ... he is one of the petitioners in the adoption proceeding.” (emphasis added). Essentially, Section 2903 permits a parent to consent to the adoption of his or her child by the parent’s spouse and continue to retain his or her parental rights. This narrow exception applies to “stepparent” situations and has not been expanded to include persons not involved in a legally recognized marital relationship.⁶ See In re Adoption of E.M.A., supra (holding that natural father’s unmarried female partner could not adopt father’s children); In re Adoption of K.M.W., supra (holding that maternal grandmother could not adopt child while mother retained her parental rights; Adoption Act does not permit non-spouse to adopt a child where both parents have not relinquished their parental rights).

¶ 11 It is for the legislature to decide whether to expand the Adoption Act to cover same-sex partners. Limitations on the courts’ power to promulgate policy decisions is consistent with the constitutional doctrine of the separation of powers, a doctrine which has been at the heart of our governmental system since the 1776 Plan or Form of Government for the Commonwealth of the State of Pennsylvania. See Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998), reversed on other grounds, 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). “By this doctrine, the legislative branch, and not the judicial branch, is given the power to promulgate legislation. To aggregate to ourselves the power to write legislation would upset the delicate balance in our tripartite system of government.” City of Erie, 553 Pa. at 363, 719 A.2d at 281 (citations omitted).

¶ 12 Appellants’ attempt at establishing a de facto family, which would qualify for adoption under Section 2903, is unavailing. It is the “strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman ... [and] a marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.” 23 Pa. C.S.A. § 1704. See 23 Pa.C.S.A. § 1102 (defining “marriage” as a “civil contract by which one man and one woman take each other for husband and wife”).

¶ 13 The Pennsylvania legislature has specifically decided that homosexual domestic partners may hot legally marry in Pennsylvania; therefore, Appellant B.A.F. cannot qualify as a “spouse” under Section 2903, so as to permit Appellant C.H.F. to consent to the adoption of the children by Appellant B.A.F. while retaining her own parental rights. Just as the legislature has made such a determination regarding same-sex marriages, it is for the legislature, not the courts, to determine whether same-sex adoptions are permissible.

¶ 14 We conclude that this Court cannot liken same-sex partners to stepparents, thereby holding same-sex partners exempt from the provision terminating the natural parents’ rights, because Pennsylvania law does not recognize such unions. Simply put, since Appellant B.A.F. is not Appellant C.H.F.’s legal spouse, Appellant B.A.F. cannot adopt the children without Appellant C.H.F. relinquishing her parental rights. It is the legislature who has the power to promulgate legislation regarding adoption. See City of Erie, supra. This Court does not create adoption rights, but determines whether such rights exist in a particular case.

¶ 15 Notwithstanding the principles enunciated supra, Appellants, relying on Section 2901 of the Adoption Act, argue that this Court has discretion under Section 2901 to grant an adoption by a domestic partner without terminating the existing parents’ rights if there exists “cause shown.” Specifically, Appellants contend that the adoption is in the children’s best interests, and, therefore, “cause has been shown” under Section 2901.⁷

¶ 16 23 Pa.C.S.A. § 2901 provides that:

Unless the court for cause shown determines otherwise, no decree of adoption shall be entered unless the natural parent or parents’ rights have been terminated, the investigation required by section 2535 (relating to investigation) has been completed, the report of the intermediary has been filed pursuant to section 2533 (relating to report of intermediary) and all other legal requirements have been met. If all legal requirements have been met, the court may enter a decree of adoption at any time.

¶ 17 We disagree with Appellants’ assertion that the “for cause shown” language in Section 2901 is tantamount to a best interest of the child analysis. To the contrary, “for cause shown” relates to reasons why the statutory requirements of adoption need not be met. Until the statutory requirements have been met, or cause shown as to why they need not be met, an analysis of the best interest and general welfare of the children cannot be considered. A best interest analysis has no place in a determination of whether the statutory requisites have been met or whether “good cause shown” for not meeting the statutory requisites exists. See In Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989) (holding that best interests balancing analysis has no place in a determination of whether the statutory requisites of termination of parental rights have been met).

¶ 18 Prior to a “best interests” of the children analysis, Appellants must meet the statutory requirements of the Adoption Act. In the case sub judiee, the statutory requirements under the Adoption Act have not been met, and Appellants have not provided “good cause” as to why they are not required to meet the statutory requirements. As such, any consideration under the principles of the best interests of the children is not permissible.

¶ 19 Appellants next contend that the trial court erred in failing to recognize that a joint petition for adoption establishes joint parental rights. That is, Appellants contend that they used a proper procedure to permit the non-spousal parent to adopt the children. We conclude that, assuming, arguendo, Appellants followed the proper procedure, Appellants seek to adopt in a manner not permitted by the legislature. Again, it is for the legislature to promulgate legislation regarding adoption. As such, Appellants’ argument is meritless.

¶ 20 Finally, Appellants contend that we should find that the Adoption Act permits Appellant B.A.F. to adopt the children since other states have permitted such adoptions.⁸ Other states permitting such adoptions do so upon interpretation of each respective state’s particular adoption act and are not binding upon this Court. In any event, the Pennsylvania Adoption Act is at issue here, and the Pennsylvania legislature has not provided for the type of adoption at issue.⁹ As such, Appellants’ final argument is meritless.

¶ 21 For all of the foregoing reasons, we affirm.

¶ 22 Affirmed.

¶ 23 Judge FORD-ELLIOTT files a concurring statement.

¶ 24 Judge JOHNSON files a dissenting opinion, in which Judge KELLY and Judge TODD join.

¶ 25 Judge TODD files a dissenting opinion, in which Judge KELLY and Judge JOHNSON join.

1 . The children at issue were conceived through in vitro fertilization. The sperm donor’s parental rights are not addressed herein, as his rights are sheltered by Artificial Insemination Donor procedures provided through legislation. Specifically, through legislation, the sperm donor’s identity is protected and he has disclaimed all parental rights to children conceived through the use of his sperm.

2 . Pursuant to Lancaster County Orphans’ Court Rule 7.1 Exceptions, and Rule 15.5, Adoption, the trial court’s decree is final and definitive, and, therefore, Appellant was not required to file exceptions. Accordingly, we will proceed to the merits of this appeal. See Pa.R.Orphans’ Ct. § 7.1 Exceptions.

3 . Since there is currently no specific legislation before us which implicates the issue of equal protection, we decline to address the issue further.

4 . We note that Appellants argue that the trial court erred in relying on In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979), and In re Adoption of K.M.W., 718 A.2d 332 (Pa.Super. 1998), since they are limited to stepparent cases only. We disagree and conclude that the trial court appropriately used such cases in its analysis.

5 .Appellants’ logic would lead to the possibility that a child could have numerous sets of parents if “any” individual could become an adopting parent.

6 . Clearly, Appellants cannot be the "spouse” of one another since the Pennsylvania legislature has outlawed same-sex marriages. 23 Pa.C.S.A. § 1704.

7 . Appellants argue that retaining Appellant C.H.F.’s parental rights will enhance the family security because C.H.F. will continue to be a part of the family.

8 . We note that while some states have permitted a homosexual partner to adopt without terminating the other partner's parental rights, other states have declined to do so. See In re Adoption of Jane Doe, 130 Ohio App.3d 288, 719 N.E.2d 1071 (1998); In the Matter of the Adoption of T.K.J., 931 P.2d 488 (Colo.Ct.App.1997).

9 . We note that, in her dissenting opinion, Judge Todd emphasizes that under a "best interest of the child” approach, the adoption at issue should be permitted. However, as discussed supra, until the statutory requirements have been met, a "best interest” analysis is improper, and to suggest otherwise goes against the entire statutory scheme enacted by the legislature. Judge Todd focuses on policy reasons, rather than on a legal analysis with citation to relevant authority, to reach the conclusion that the adoption at issue should be permitted. Again, such public policy decisions are more properly in the province of the legislature where there are public committee meetings and many other opportunities for open public discussion and public input.