The Matter of Marian T.

• Court: New York Court of Appeals
• Decided: November 23, 2020
• Docket: 49
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 49 In the Matter of Marian T.

Lauren R. et al., Respondents; Marian T., Appellant.

Cailin Connors Brennan, for appellant. Douglas A. Eldridge, for respondents. Autistic Self Advocacy Network et al., amici curiae.

DiFIORE, Chief Judge:

The issue in this adoption proceeding is whether the adoption was categorically

precluded because the adoptee, an adult woman with a significant developmental disability,

did not have the capacity to give her consent. That issue turns on the proper interpretation

of Domestic Relations Law (DRL) § 111(1)(a), which generally requires the consent of an

“adoptive child” who is over 14 years old but gives the court discretion to dispense with -1- -2- No. 49

that consent. We agree with the Appellate Division that, in appropriate circumstances, the

statute permits a court to approve an adoption even absent the consent of an adult adoptee.

Because that discretion was not abused here and there is record support for the affirmed

best interests finding, we affirm.

Marian T., a 66-year-old woman, has resided with petitioners Lauren M. and Gregg

H. for approximately 15 years. Marian has a profound intellectual disability that has

resulted in significant developmental delays and limited verbal ability. Petitioners operate

a licensed Family Care home under the supervision of the New York State Office for

People with Developmental Disabilities, which oversees the placement of individuals with

severe intellectual disabilities in private family homes where they may be properly cared

for. Seeking to provide permanency for Marian, who has no living relatives and has been

in the State’s custody since she was a child, petitioners commenced this adoption

proceeding in August 2015. Mental Hygiene Legal Services (MHLS), 1 appointed to

represent Marian in the proceedings, objected to the adoption on the ground that Marian’s

consent was required under DRL § 111(1)(a), arguing that Marian lacked the capacity to

consent and that the statute permits a court to dispense with adoptee consent only where

the adoptee is a child between the ages of 14 and 17. Petitioners countered that, because

the phrase “adoptive child” in the statute includes adult adoptees and Marian is over the

age of 14, the court had the discretion to dispense with the consent requirement.

1 MHLS is a governmental entity that provides legal assistance to, among others, residents of Family Care homes (see Mental Hygiene Law § 47.01[a]). -2- -3- No. 49

In an effort to determine Marian’s capacity, Surrogate’s Court ordered the parties to

obtain psychological evaluations of her. Both medical professionals who examined Marian

concluded that she is a person with significant developmental disabilities who is nonverbal.

In addition, the court interviewed Marian in camera to discern her ability to consent and

her relationship with petitioners, subsequently appointing a guardian ad litem to further

represent Marian’s interests in the proceeding. After reviewing the psychological reports

and interviewing the parties, the guardian ad litem issued a report stating, among other

things, that there was a great deal of love and affection between Marian and petitioners and

that, if petitioners demonstrated they were able to assume the financial burden of Marian’s

care, the adoption should be approved.

A fact-finding hearing followed to assess whether the adoption was in Marian’s best

interests. Among other evidence, both petitioners testified about their deep emotional

attachment to Marian and desire that she be a member of their family. The court agreed

with MHLS that it did not have the authority to dispense with Marian’s consent under DRL

§ 111(1)(a) because she was not a “child” but nonetheless approved the adoption. Although

the court did not find that Marian possessed the capacity to consent, it concluded that the

guardian ad litem had the “implied authority” to consent on Marian’s behalf, reasoning that

granting the petition promoted Marian’s right to be part of a family.2 Further, the court

2 The court may appoint a guardian ad litem to represent a person with a disability in proceedings in Surrogate’s Court (see Surrogate’s Court Procedure Act § 403[2]). Neither party now challenges the appointment of the guardian ad litem and no claim is made here that the guardian ad litem had the authority to consent on Marian’s behalf, an issue we do not address. -3- -4- No. 49

deemed the adoption to be in Marian’s best interests because she was bonded to and had

affection for petitioners, who “sincerely desired to care for her as a member of their

family.”

The Appellate Division unanimously affirmed the order approving the adoption

petition, although it disagreed with the Surrogate’s interpretation of DRL § 111(1)(a). The

Appellate Division concluded that the statute authorizes a court, in the appropriate exercise

of discretion, to dispense with an adult adoptee’s consent to the adoption (Matter of Marian

T., 166 AD3d 1370, 1371 [3d Dept 2018]). Here, where Marian lacked the capacity to

consent, the court concluded that her consent was “unnecessary,” rejecting the argument

that the absence of adoptee consent categorically precluded the adoption (id. at 1373).

Finally, the court agreed with the Surrogate’s finding that the adoption was in Marian’s

best interests. We granted leave to appeal (32 NY3d 919 [2019]) and we now affirm.

The primary issue in this case is one of pure statutory interpretation: whether DRL

§ 111(1)(a), which requires the consent of an “adoptive child” over the age of 14, authorizes

a court to exercise its discretion in appropriate circumstances to dispense with the consent

of an adoptee who is over the age of 18. In MHLS’ view, the statute generally requires the

consent of all adoptees over the age of 14, but permits a court to dispense with that consent

only if the adoptee is a “child” (i.e., a minor between the ages of 14 and 17) and only if the

adoptee would be harmed by learning that the proposed adoptive parents are not the

adoptee’s biological parents, a concern reflected in the statute’s legislative history.

Petitioners assert that, on its face, the statute allows courts to dispense with adoptee consent

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in the sound exercise of discretion, even when the adoptee is over the age 18. We agree

with petitioners.

“When presented with a question of statutory interpretation, a court’s primary

consideration is to ascertain and give effect to the intention of the Legislature” (Lemma v

Nassau County Police Officer Indem. Bd., 31 NY3d 524, 528 [2018] [internal quotation

marks omitted], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]). Because

“the clearest indicator of legislative intent is the statutory text, the starting point in any case

of interpretation must always be the language itself, giving effect to the plain meaning

thereof” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

“When the statutory language at issue is but one component in a larger statutory scheme,

it must be analyzed in context and in a manner that harmonizes the related provisions and

renders them compatible” (Matter of Mestecky v City of New York, 30 NY3d 243, 243

[2017] [internal quotation marks and citations omitted]).

Certain consents are needed for an adoption to proceed and section 111 of the DRL

sets forth who must consent to an adoption under various circumstances. Relevant to this

case, subsection (1)(a) provides that consent is required “[o]f the adoptive child, if over

fourteen years of age, unless the judge or surrogate in his discretion dispenses with such

consent” (DRL § 111[1][a]). “Adoptive child” is a term of art defined in the statutory

scheme to mean “a person adopted” (DRL § 109 [Definitions]). The phrase “a person

adopted” contains no age restriction—clearly encompassing both minors and adults (id.).

That the Legislature intended the phrase “adoptive child” to encompass not only minors

but also adult adoptees is further illustrated by the Legislature’s use of phrase in a different

-5- -6- No. 49

subsection of the same statute in a manner that clearly refers to adoptees over the age of 18

(see DRL § 111[4] [“(w)here the adoptive child is over the age of eighteen years . . .”]).

Indeed, the adoption of an adult has been expressly permitted by statute since at

least 1915, providing a means of legally formalizing a parent-child relationship (see Matter

of Robert Paul P., 63 NY2d 233, 237 [1984], citing L 1915, ch 352; see also DRL § 110

[providing that an adult may adopt “another person” and containing no restriction on the

age of the adoptee]). Like an adoption involving a minor, “an adult adoption must still be

in the best interests of the adoptive child and the familial, social, religious, emotional and

financial circumstances of the adoptive parents which may be relevant must still be

investigated” (Matter of Robert Paul P., 63 NY2d at 237 [internal quotation marks,

alterations and citations omitted]). In other words, the fact that the adoptee is an adult does

not significantly alter or “dilute” the legislative purpose underlying the adoption statutes

or the standards that must be met to grant an adoption. Although in other contexts the term

“child” may refer to an individual under the age of majority, it is evident that in this statute

the word “child” refers not to the age of the adoptee but the nature of the filial relationship

between the party seeking to adopt and the person being adopted (see generally Robert

Paul P., 63 NY2d 233).3 Thus, it is clear from the text of DRL §§ 111(1)(a) and 109 that

3 Matter of Robert Paul P., our most recent adult adoption precedent, is a product of another time in the sense that the injustice motivating the petition in that case -- the inability to obtain legal recognition of a same-sex romantic relationship – has since been rectified. We cite the case for the enduring propositions that the relationship created by adoption is one of parent and child, even when the adoptee is an adult (supporting our conclusion that the term “adoptive child” encompasses an adult), and that the same basic standards govern adult adoption. As noted by the dissent (dissenting op, at 5 n 2), DRL § 110 was amended in 2010 to permit “any two unmarried adult intimate partners together” to adopt another -6- -7- No. 49

the statute requires the consent of any adoptee over the age of 14 but gives courts the

discretion to dispense with that consent in appropriate circumstances.

MHLS and the dissent rely on certain legislative history to assert that the Legislature

intended to authorize judges to dispense with consent of minor adoptees in only one

circumstance—where knowledge of the adoption proceeding and discovery that the

putative adoptive parents are not the child’s biological parents would psychologically

damage the child. The language permitting a court to dispense with adoptee consent was

added to the statute in 1942 and the accompanying bill jacket includes statements in support

of the amendment, submitted by various interested parties, noting that it would give courts

discretionary authority to dispense with adoptee consent in such a circumstance (see Mem

from NY County Lawyers’ Association, March 3, 1942, Bill Jacket, L 1942, ch 118 at 4-

5; Letter from George Xanthaky to the Governor, March 16, 1942, Bill Jacket, L 1942, ch

118 at 8). From this we can infer that the Legislature understood that the statute would

permit courts to grant adoption petitions in the absence of adoptee consent when

appropriate to avoid psychological harm to a child who was unaware of the adoption

proceedings. However, the statutory language does not restrict the scope of the court’s

person (see L 2010, ch 509)—a welcome statutory change that codified our holding in Matter of Jacob (86 NY2d 651 [1995]). This did not alter the core holding of Matter of Robert Paul P. that intimate sexual partners may not adopt one another because adoption’s “basic function” is to “giv[e] legal effect to a parent-child relationship”— not to create a legal status for parties involved in a romantic relationship (63 NY2d at 237-238). This is reflected in DRL § 110, which describes adoption as a process “whereby a person takes another person into the relation of child,” acquiring “the rights and . . . responsibilities of parent in respect [to] such other person” – language that was not amended by the Marriage Equality Act of 2011, also invoked by the dissent, which addresses the relation of marriage. -7- -8- No. 49

discretion to dispense with adoptee consent—let alone reflect an intent to limit the exercise

of such discretion to the particular circumstance identified by MHLS. Had the Legislature

intended to limit judicial discretion in that manner, it would have said so in the statute.

Moreover, MHLS’ interpretation of DRL § 111(1)(a) would categorically preclude

the adoption of adults who lack the capacity to consent.4 But there is no basis to conclude

that the Legislature intended to deny any group of people the benefits of adoption,

permitting fulfillment of the right to a loving, legally-recognized familial relationship and

the attendant stability of a permanent home. Nevertheless, MHLS asserts that construing

the statute to allow courts to dispense with adult adoptee consent leads to absurd results—

“surprise” adoption proceedings in which, for no legitimate reason, competent adult

adoptees are deprived of notice of their own adoptions or are adopted over their objection.

It is always possible to imagine scenarios where judicial discretion could be abused or even

4 By interpreting the statutory language as written by the Legislature and reviewing whether discretion was abused in this particular case, we do not suggest that it is always appropriate to dispense with consent in cases involving adoptees over the age of 14 who are unable to consent. Unlike our concurring colleague, we make no distinction based on class (see concurring op at 5 [where consent is “an impossibility [due to lack of capacity], the condition precedent [of adoptee consent] should not be enforced”]). The statute permits a court to dispense with consent only in the sound exercise of judicial discretion. Whether that discretion is appropriately exercised in other cases will depend on all the facts presented and the arguments raised by the parties. Contrary to the view expressed in the dissent, that the Legislature did not codify the circumstances in which courts may appropriately exercise their discretion by specifically referencing adoptees with developmental disabilities does not constitute a “gap” in the statutory scheme (dissenting op, at 2-3)—it reflects a legislative determination that courts are in the best position to consider, based on the unique circumstances involved in each case, whether to dispense with adoptee consent.

-8- -9- No. 49

exercised in an unconstitutional manner,5 but this is not a basis to read discretion out of the

statute, interpreting the text contrary to its plain language. The dissent does just that when

it reads the statute only to “authorize[] courts to dispense with consent in limited

circumstances to protect the wellbeing of an adolescent over age 14 and under 18 years of

age” – imposing conditions never adopted by the Legislature. Ironically, we are accused

of redrafting the statute (dissenting op at 17) – when we interpret the statute as written,

without embellishment, based on terms defined by the Legislature.

Here, the Appellate Division correctly concluded that DRL § 111(1)(a) provided

express statutory authority to dispense with Marian’s consent and the court did not abuse

its discretion when it determined that her inability to consent should not prevent this

adoption (see Sadek v Wesley, 27 NY3d 982, 983 [2016], citing Brady v Ottoway

Newspapers., 63 NY2d 1031, 1032 [1984]). Marian T. was given notice of the adoption

petition and significant efforts were made to involve her in the process to the extent

possible, ensuring that her rights and interests were fully protected. These efforts are

reflected in the extensive record developed in Surrogate’s Court in which Marian’s

capacity to consent and her feelings and desires (including her ably-communicated desire

to remain in petitioners’ care) were explored through multiple psychological evaluations,

an in camera interview and the appointment of a guardian ad litem. Under these

5 Our concurring colleague puts his imagination to such use here, addressing various arguments neither preserved nor presented in this case. Because no constitutional issues were raised by the parties there is no occasion to consider the applicability, in the adoption context, of the cases cited in the concurrence and dissent involving the liberty interests of parents vis-à-vis their children. -9- - 10 - No. 49

circumstances, the Appellate Division did not abuse its discretion in determining it was

appropriate to dispense with Marian T.’s consent, as the statute permits.6

Finally, there is record support for the affirmed finding that adoption is in Marian’s

best interests. There was evidence of petitioners’ strong filial affection for Marian and her

love for them, and that she was safe and well-cared for in their home, a setting in which

she has thrived. Further, the record supports the affirmed finding that the adoption would

leave Marian in a comparable financial position as before, without significantly altering

her eligibility for critical services.

Accordingly, the Appellate Division order should be affirmed, without costs.

6 To the extent the Appellate Division decision can be read as conflating the issue of consent with the best interests analysis courts must undertake before granting any adoption petition (see DRL §§ 114[1], 116[4]; see also Matter of Robert Paul P., 63 NY2d at 237), we clarify that whether the necessary consent requirements have been fulfilled and whether the adoption serves the best interests of the adoptee are separate considerations (see Caban v Mohammed, 441 US 380, 387 [1979] [“[T]he New York Court of Appeals has stated unequivocally that the question whether consent is required is entirely separate from that of the best interests of the child”], citing Matter of Corey L. v Martin L., 45 NY2d 383, 391 [1978] [“(W)hile promotion of the best interests of the child is essential to ultimate approval of the adoption application, such interests cannot act as a substitute for a finding of abandonment,” rendering an unwed father’s consent unnecessary]). The concurrence is mistaken insofar as it suggests that a court can dispense with the consent needed for an adoption based solely on a best interests finding (see concurring op at 2). Here, it is evident that the Appellate Division had a basis for dispensing with Marian’s consent, readily ascertainable from the record, which involved an inquiry distinct from the standard best interests analysis. - 10 - WILSON, J. (concurring):

Although I agree with Judge Rivera’s analysis of the 1942 amendment to section

111 (a) of the Domestic Relations Law and her emphasis on recognizing that Marian T. is

an adult, not a child, I concur in the result on the facts of this case.

-1- -2- No. 49

This is purely a case of statutory interpretation, but not a simple one. If it were, the

majority opinion would be three lines long, pointing out that the Domestic Relations Law

literally and unambiguously permits the adoption of any person without the adoptee’s

consent: consent is not required from persons under 14, and a court may dispense with

consent for everyone else. The majority’s unspoken but necessary concession is that the

statute cannot be read as written.

In pertinent part, the Domestic Relations Law states: “An adult unmarried person or

an adult husband and his adult wife together may adopt another person” (§ 110), and

“consent to adoption shall be required . . . [o]f the adoptive child, if over fourteen years of

age, unless the judge or surrogate in his discretion dispenses with such consent” (§ 111

[1]). Read literally, the statute permits Kim Kardashian and Kanye West to adopt me over

my strenuous objection, so long as a judge determines that would be in my best

interest. The judge might well be right in so concluding. Nevertheless, that construction

would be plainly unconstitutional; I have a fundamental liberty interest of personal choice

in my familial relationships (see, e.g., Santosky v Kramer, 455 US 745, 753 [1982];

Cleveland Bd. of Educ. v LaFleur, 414 US 632, 639 [1974]). Because we cannot interpret

the statute as written, we must construe it in a way that avoids unconstitutionality (H.

Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 [1948] [“Where the language of a

statute is susceptible of two constructions, the courts will adopt that which avoids injustice,

hardship, constitutional doubts or other objectionable results”]; see also Matter of Malpica-

Orsini, 36 NY2d 568, 570 [1975], overruled on other grounds by Caban v Mohammed,

-2- -3- No. 49

441 US 380 [1979] [“(O)nly as a last resort will courts strike down legislative enactments

on the ground of unconstitutionality”]).

Neither the majority nor the dissent can point to any legislative history showing that

the legislature considered what to do when a prospective adult adoptee is unable to give or

refuse consent. The majority contends that limiting the court’s ability to dispense with

consent to persons under age 18 would prevent the adoption of all adults with a profound

intellectual disability, but can point to no consideration by the legislature of that

issue. Judge Rivera quite convincingly demonstrates that the legislature, when amending

section 111 (1) to allow a judge to dispense with the adoptee’s consent, had in mind

adoptees under age 18 – not adults.1 But that does not answer the question of what the

legislature intended as to adults who are incapable of giving consent because of a profound

intellectual disability. Judge Rivera also relies on section 111 (2) (d), which dispenses with

consent of a parent with a profound intellectual disability, as evidence that the legislature

knew how to describe such a condition (albeit in retrograde terminology), but that, again,

does not evidence the legislature’s consideration of what to do in a situation when the

prospective adult adoptee is incapable of giving consent.

1 Pairing the amendment with the observation that adoption is in derogation of the common law (see dissent at 4–5) does not bear on the legislature’s intent, because the legislature, over time, has completely abrogated the common law, eventually providing that any adult may adopt any other person (and in some cases, even a minor may adopt another person) (Domestic Relations Law § 110). Thus, there is now no reason to conclude that the 1942 amendment should be read against a background in which adoption is disfavored; the legislature has subsequently completely eviscerated that aspect of the common law. -3- -4- No. 49

I am left, then, with the firm conclusion that the legislature has never thought about

the issue presented here: if a prospective adult adoptee is unable to give or refuse consent

because of a profound intellectual disability, may the adoption proceed and, if so, what is

required? My conclusion reinforces Judge Rivera’s observation that the legislature should

carefully consider the question, because adults with disabilities are not children, though

they may benefit from adoption in some circumstances, not in others, and may in yet other

cases need some statutory treatment other than adoption or guardianship.2 Although the

circumstances here may seem unusual, one can easily imagine circumstances in which, for

example, a parent of an adult with an intellectual disability wishes to have his or her partner

adopt that child.

In the absence of any legislative guidance, faced with the need to construe a statute

that, if read literally, would be plainly unconstitutional, I would conclude that the overall

legislative scheme assumes that, where consent is required, there is the possibility of it

being granted or denied. For example, where an intellectually disabled parent cannot

consent to a child’s adoption, the Domestic Relations Law dispenses with consent

(§ 111 [2] [d]). Where a parent has disappeared (§111 [2] [a]), or where a parent no longer

has the ability to consent because the parent has been displaced by a guardian (§ 111 [2]

[c]), or where the consent of “any person or authorized agency having lawful custody” of

2 Although the Surrogate’s Court laudibly attempted to assess Marian’s wishes, this case demonstrates the need for clearer guidance from the legislature on how courts should support people with disabilities to participate meaningfully in legal proceedings and exercise their right to make choices about their lives and families (see generally Kristin Booth Glen, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond, 44 Colum Hum Rts L Rev 93 [2012]). -4- -5- No. 49

an “adoptive child [] over the age of eighteen years . . . cannot for any reason be obtained

(§ 111 [2] [f], [4]), the Domestic Relations Law dispenses with consent. Thus, I would not

interpret Domestic Relations Law section 111 (a) to impose a condition in a circumstance

where it cannot be met.

I admit that the statutory interpretation here presents a close call with no obviously

correct answer, but unforeseen events that make a condition impossible to meet generally

are viewed as excusing the condition, as set out in the ancient doctrine of lex not cogit

impossibilia – the law does not require impossibilities (see generally People ex rel. Nugent

v Board of Police Commissioners, 114 NY 245, 250–251 [1889]; Stewart v Stone, 127 NY

500, 507 [1891]; Hirshfeld v Fitzgerald, 157 NY 166, 185 [1898]; In re Scott’s Will, 8

NY2d 419, 426–427 [1960]; McKinney’s Cons Laws of New York Statutes § 141 [“The

court will not interpret a statute to require an impossibility”]). Here, as we cannot disturb

the factual determination that Marian’s consent was an impossibility, the condition

precedent should not be enforced. Because there is no basis on this record to overturn the

finding that the proposed adoption would be in her best interest, I concur in the result.

-5- RIVERA, J. (dissenting):

Petitioners commenced this proceeding seeking to adopt respondent, an unrelated

adult female living in petitioners’ family care home. Mental Hygiene Legal Services

(MHLS) represents respondent in the adoption proceeding, and argues that, for respondent

to be adopted, she must consent to be adopted. MHLS further contends that Surrogate’s

Court may not dispense with this requirement solely because respondent is unable to

provide informed consent due to her intellectual limitations. The lower courts rejected this

position.

I agree with the majority that, as a threshold matter, the Domestic Relations Law

expressly requires an adult to consent to their adoption. But I part ways with the majority

to the extent that it determines courts have discretion to dispense with this requirement “in

appropriate circumstances” (majority op at 7). According to the majority, appropriate

circumstances exist here because respondent is unable to provide legal consent due to her

“intellectual disability” (id. at 2). That conclusion is not supported by the controlling

statute’s text or legislative history. Rather, the statutory requirement applies to all persons

over the age of 14 capable of consenting. Under no circumstance may a court dispense with

an adult’s consent to be adopted.

Respondent is not a child; she is an adult and should be treated as such. Whether the

State should permit adoption of individuals incapable of consent due to intellectual

limitations is an evolving question that requires consideration of an adult individual’s right

to self-determination and autonomy, regardless of their capacity to consent. The

governmental body constitutionally authorized and best suited to weigh the difficult policy

issues central to that choice is the legislature, not this Court. In its attempt to fill a statutory

gap, the majority has exceeded our authority and crossed the line from interpreting to

redrafting the statute. I dissent.

I.

The facts are mostly undisputed. Petitioners run a family care home for individuals

with disabilities under the auspices of the Office of People with Developmental

Disabilities. In 2015, they petitioned to adopt respondent, who has lived with them since

2005. Respondent is a 66-year old adult with intellectual limitations that the courts below

determined render her incapable of consenting to the adoption.1

Surrogate’s Court determined that it lacked authority to dispense with the statutory

requirement that respondent consent to the adoption. Rather than dismiss the petition, the

court appointed a guardian ad litem, and thereafter concluded the guardian could and did

provide implied consent. On the merits, the court found that adoption by petitioners was in

respondent’s best interests and granted the petition. The Appellate Division affirmed the

adoption order, concluding that consent was required and although the guardian could not

consent on respondent’s behalf, the law authorized Surrogate’s Court to dispense with

consent. The court ultimately held that “because the adoption is in respondent’s best

interests, but she is unable to consent, her consent was unnecessary and, as such [] the

adoption was properly approved” (Matter of Marian T. [Lauren R.], 166 AD3d 1370, 1373

[3d Dept 2018]).

1 Respondent’s capacity to consent is disputed. Petitioners contend that respondent signed the adoption petition and that her psychologist concluded that respondent has the capacity to consent and has consented to adoption by petitioners. MHLS argues that respondent is incapable of providing informed consent. I assume for purposes of my analysis that the record supports the decisions below that respondent is incapable of consenting to the adoption based on her intellectual limitations.

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For the reasons discussed by the majority, an adult’s consent to the adoption is a

precondition to a court’s best interests analysis, and the Appellate Division conflated the

two (majority op at 10 n 6; see also Caban v Mohammed, 441 US 380, 387 [1979] [“(T)he

New York Court of Appeals has stated unequivocally that the question whether consent is

required (under Domestic Relations Law § 111) is entirely separate from that of the best

interests of the child”], citing Corey L. v Martin L., 45 NY2d 383, 390 [1978]). Because

respondent cannot consent, the adoption petition should have been dismissed. Therefore, I

would reverse the Appellate Division.

II.

A.

“As the clearest indicator of legislative intent is the statutory text, the starting point

in any case of interpretation must always be the language itself, giving effect to the plain

meaning thereof” (People v Golo, 26 NY3d 358, 361 [2015], quoting Majewski v

Broadalbin–Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Because adoption

reflects a legal relationship unknown to our common law, “[w]hat is to be construed strictly

and applied rigorously in this sensitive area of the law . . . is legislative purpose as well as

legislative language” (Matter of Jacob, 86 NY2d 651, 657 [1995]; accord McKinney’s

Cons Laws of NY, Book 1, Statutes § 301, Comment a [“(S)tatutes in derogation or in

contravention (of the common law), are strictly construed, to the end that the common law

system be changed only so far as required by the words of the act and the mischief to be

remedied”]; see also John Francis Brosnan, Law of Adoption, 22 Colum L Rev 332 [1922]

[“(T)he adoption of adults, permitted since 1915 by the statute, (was) a radical and

sweeping departure from the whole theory of adoption as formerly recognized in this

state—the theory of giving to a child a home and a parent”]). Accordingly, in interpreting

the statute, it is appropriate here to “follow the course of [the] legislation” to “illuminate

the intent of the legislature” (People v Litto, 8 NY3d 692, 697 [2007], quoting McKinney’s

Cons Laws of NY, Book 1, Statutes § 124).

B.

“On few questions is decisional law so clear as on this: that adoption [] is, in New

York, solely the creature of, and regulated by, statute law” (Matter of Eaton, 305 NY 162,

165 [1953] [citation omitted]). “The [l]egislature has supreme control over the subject [and

s]ince adoption is purely a statutory matter, the answer to the question of what consents are

necessary must be found in the statutory provisions” (Matter of Malpica-Orsini, 36 NY2d

568, 570 [1975], overruled on other grounds by Caban v Mohammed, 441 US 380 [1979]).2

2 The majority cites—unnecessarily, in my view—Matter of Robert Paul P. (63 NY2d 233 [1984]), a case wherein a 4-2 majority held that an adult could not adopt a same-sex romantic partner (majority op at 6). It bears noting that the practice of attempted adoptions of same-sex partners emerged at a time when individuals in same-sex relationships were “outlaw[s] . . . truly strangers to the law—shoved out of every legal system” (Elon Green, The Lost History of Gay Adult Adoption, NY Times, Nov. 27, 2013; see also Koa Beck, How Marriage Inequality Prompts Gay Partners to Adopt One Another, The Atlantic [Nov. 27, 2013] [“Because of historical opposition to gay marriage, long-term, same-sex couples have a history of adopting one another for legal protection”]). With the 2010 amendment of Domestic Relations Law § 110 to permit “two unmarried adult intimate partners” to adopt another person, as well as with enactment of the Marriage Equality Act by the legislature in 2011, which legally recognized same-sex marriage, it is now decidedly clear that New York recognizes the right of same-sex partners to equal treatment under the law in the formation of marital and familial relations (see L 2011, ch 94, § 2 [“Marriage is a fundamental human right. Same-sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society” (emphasis added)]; see also Obergefell v Hodges, 576 US 644, 670 [2015] [“The States have contributed to the fundamental -5- -6- No. 49

As relevant here, Domestic Relations Law Article 7, section 111, titled “Whose

Consent Required,” provides in subdivision (1) (a) that, subject to further limitations not

relevant here, “consent to adoption shall be required . . . [of] the adoptive child, if over

fourteen years of age, unless the judge or surrogate in [their] discretion dispenses with such

consent.” Subdivision 3 (a) provides that “[n]otice of the proposed adoption shall be given

to a person whose consent to adoption is required pursuant to subdivision one and who has

not already provided such consent.”3

character of the marriage right by placing that institution at the center of so many facets of the legal and social order”]). Granted, as the majority notes, the legislature did not reject Matter of Robert Paul P.’s “core” holding that adoption is a means to establish a parent- child relationship (see majority op at 7 n 3; Domestic Relations Law § 100.10 [“Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent”] (emphasis added)]; Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Domestic Relations Law C110:1 [“The adoption statutes permit the relationship of parent and child to be created by operation of law”], citing Matter of Robert Paul P., 62 NY2d 233 [1984]). But, the legislature did abolish the previous legally-sanctioned unequal treatment of same- sex couples—thus, affirming a commitment to equality regardless of gender and sexuality and rendering it unnecessary in New York for same sex partners to use adoption as a means to acquire the rights and recognition associated with marriage. To the extent that the reasoning of Matter of Robert Paul P. may be considered contrary to the principles of equal protection and human dignity reflected in our state legislation, the case is best left in the past. And, of course, we need look no further than the Domestic Relations Law to support the proposition that adoption’s “basic function” is to “give legal effect to a parent-child relationship” (majority op at 7 n 3). 3 Subdivision 3 continues: “(b) Notice and an opportunity to be heard upon the proposed adoption may be afforded to a parent whose consent to adoption may not be required pursuant to subdivision two, if the judge or surrogate so orders. “(c) Notice under this subdivision shall be given in such manner as the judge or surrogate may direct.

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Section 111 (4) directs that,

“[w]here the adoptive child is over the age of eighteen years the consents specified in paragraphs (b), (c) and (d) of subdivision one of this section shall not be required, and the judge or surrogate in [their] discretion may direct that the consent specified in paragraph (f) of subdivision one of this section shall not be required if in [their] opinion the best interests of the adoptive child will be promoted by the adoption and such consent cannot for any reason be obtained” (Domestic Relations Law § 111 [4]).

Section 111 (f) requires the consent of “any person or authorized agency having lawful

custody of the adoptive child.”

By its plain language, section 111 requires consent of an adoptive child over the age

of 14, but the statute provides no guidance as to why the legislature chose an age range that

includes both minors and adults. In contrast, section 111 (4) disposes automatically with

the statutory consents of the third parties specified in subdivisions (b), (c) and (d) for

adoptees over the age of 18, the age of majority (see Domestic Relations Law § 2 [“A

‘minor’ or ‘infant,’ as used in this chapter, is a person under the age of eighteen years”]).4

This would suggest a legislative recognition of adult autonomy and an intent to reaffirm

“(d) Notwithstanding any other provision of law, neither the notice of a proposed adoption nor any process in such proceeding shall be required to contain the name of the person or persons seeking to adopt the child” (Domestic Relations Law § 111 [3] [b]-[d]). 4 Although the age of majority has been set at age 18, there are certain circumstance where legal rights or restrictions continue to age 21, which had been the age of majority for all purposes until 1974. For example, “[a]s a matter of policy, the [l]egislature has provided that the parents of a child remain chargeable for the child’s support until age 21” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Domestic Relations Law § 111, citing, Family Court Act § 413; Social Services Law § 2 [31]).

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that consent is indispensable to an adult adoption. And yet section 111 (1) (a) appears to

empower a court to dispense with that consent, which, in turn, allows for an adoption

proceeding without notice to an adult who is the subject of the petition and further

authorizes a court to order an adoption over that adult’s objection. This appears an absurd

result on its face and must be avoided to preserve the integrity of the adoption framework

(see People v Garson, 6 NY3d 604, 614 [2006] [“(C)ourts are governed by the principle

that we must interpret a statute so as to avoid an unreasonable or absurd application of the

law” (internal quotation marks omitted), quoting People v Pabon, 28 NY3d 147, 156

(2016)]; Matter of DeTroia v Schweitzer, 87 NY2d 338, 342 [1996] [stating that an

ordinance “should be interpreted to avoid this objectionable, absurd, anomalous and unjust

result”]; McKinney’s Cons Laws of NY, Book 1, Statutes § 145, Comment [“An intent

patently absurd is not to be attributed to the Legislature, and it will be presumed that the

Legislature did not intend an absurd result to ensue from the legislation enacted”]).

The Court has previously recognized that because the Domestic Relations Law

applies to both adults and minors we must carefully scrutinize the respective provisions at

issue to determine whether the legislature intended to narrow its application to any

particular age group (see Matter of Eaton, 305 NY at 166). Here, the statutory text alone

does not shed light on the legislative intent. The implication of the different treatment of

adoptees over fourteen years old and those over 18 years old thus requires reference to the

legislative history of section 111 (1) (a) (see Matter of Shannon, 25 NY3d 345, 351-352

[2015] [turning to the legislative history after determining that the text of the statute was

ambiguous]; People v Ballman, 15 NY3d 68, 72 [2010] [same]; Matter of Action Elec.

Contrs. Co. v Goldin, 64 NY2d 213, 221 [1984] [same]). That history makes clear that the

legislature did not intend to authorize courts to dispense with an adult’s consent. As I

discuss, section 111 (1) (a) was enacted for a narrow purpose—to avoid potential trauma

to adolescent adoptees over the age of 14 and only in limited circumstances.

C.

New York first recognized the relationship of a parent and child created by statute

in 1873 (L 1873, ch 830 [defining adoption as “(t)he legal act whereby an adult person

takes a minor into relation of child and thereby acquires the rights and incurs the

responsibilities of parent in respect to such minor”]). By 1915, the Domestic Relations Law

was amended to provide for “an adult” to “adopt a person of the age of twenty-one years

and upwards” (L 1915, ch 352). At present, the statute permits an “adult [] person” to

“adopt another person” (Domestic Relations Law § 110; see also Domestic Relations Law

§ 109 [1] [“‘Adoptive parent’ or ‘adoptor’ shall mean a person adopting and ‘adoptive

child’ or ‘adoptee’ shall mean a person adopted”]).

Before the legislature amended the Domestic Relations Law in 1942, the statute

required the consent of all adoptees over the age of 14 (Mem from George Xanthaky for

the Governor, March 16, 1942, Bill Jacket, L 1942, ch 118 at 8).5 A memorandum from

5 The majority’s qualification concerning the legislative history is puzzling. This Court regularly cites to statements “submitted by non-legislators” (majority op at 7), including the Governor’s Office, to understand the legislature’s intent (see e.g. Kimmel v State, 29 NY3d 386, 397 [2017] [“The legislative history from 1989, when the (Equal Access to Justice Act) became law, demonstrates that the EAJA was ‘targeted at those businesses and individuals . . . who often lack the resources necessary to vindicate their civil and legal rights’”], quoting Letter from New York Lawyers for the Public Interest, Inc., Bill Jacket, L 1989, ch 770 at 46; Mestecky v City of New York, 30 NY3d 239, 245-246 [2017] [citing -9- - 10 - No. 49

assistant counsel to the governor notes that surrogates had reported instances of adoptees

who had lived with adoptive parents with no knowledge that the adoptive parents were not

biological kin (id.; accord Report No. 243, New York County Lawyers Association,

Committee on State Legislation, Bill Jacket, 1942 ch 118, at 4-5). Thus, the enactment was

viewed as endowing the judge with the discretion to “dispense with the consent in such

cases as [the judge] deems proper” (Xanthaky Mem, at 8). The Report of the New York

County Lawyers Association describes the bill similarly.

“[T]he Domestic Relations Law now allows the Judge or Surrogate in the case of the adoption of a child over the age of eighteen years to dispense with the consent of . . . the surviving parent of a child born in wedlock, the mother of a child born out of wedlock, or the person or authorized agency having lawful custody of the [adoptee], if, in the judgment of the said Judge or Surrogate, the moral and temporal interests of the foster child will be promoted by the adoption and such consents cannot for any reason be obtained. Again[,] where the [adoptee] is an adult, the consents of the persons just enumerated are not required.

“Therefore, there seems to be no reason for requiring in a proper case, the consent to its adoption of an infant over the age of fourteen years. The Judge or Surrogate before whom the adoption is pending, always considers each case on its own particular merits, and as adoptions are now legally handled, full investigations are made under the direction of the Judge or Surrogate before the matter comes up for decision. As a result, the Court is always fully advised of the actual facts, and can readily determine if the nature, or even the pendency of the proceeding, should be made known to the child. If, as is always the case, where the adoption is allowed, the adoption is for the best interest of the child, there seems to be no reason why a

a governor’s approval memorandum, a letter from New York City Mayor Edward Koch, and a letter from President of the Borough of Queen to support the Court’s interpretation of the New York City Charter]).

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child who perhaps has been taken into the family of the [adoptive parent] when a mere baby, or at a very tender age, should be suddenly confronted with the fact that those whom it has looked upon as its parents, are not in fact, its father or mother, as the case may be. The welfare of the child morally and temporally will, it seems, be best served by leaving its adoption solely to the discretion of the court, unless the Court itself feels that the child should in a particular case have knowledge of the proceeding for its adoption, and should formally consent thereto, if it is over fourteen years of age” (Report No. 243 at 4-5).

Furthermore, a letter from the Surrogate’s Court of the County of New York to the

Office of the Governor recounts similar incidences of surprise for adoptees over the age of

14 who had no knowledge that the adoptive parent was not their biological parent due to

the consent requirement. It notes that “[i]n many such cases the knowledge thus imparted

to the child in adolescence [caused] a very bad reaction” (id. at 7). The letter concluded

that the power to dispense with consent “will only be used where obtaining the consent

would be harmful to the child” (id.).

This history makes plain that the legislature resolved concerns about the potential

impact of an adoption on some adolescents over 14 years of age by authorizing a court to

dispense with consent under appropriate circumstances. Nothing in the history reveals any

other animating concern. Put another way, the history indicates that the motivation for

amending the statute was to avoid possible trauma to an adolescent adoptee over 14 years

of age where the adolescent was unaware that the person raising them was not their

biological parent. As the bench and bar explained to the legislature, knowledge of that fact

was potentially harmful to some adolescents unable to process such a revelation. That

concern has no similar application in an adult adoption. Nor is there mention in the history

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of any reason, and the majority provides none, for why the legislature sought to empower

a court to dispense with consent in an adult adoption. For almost three decades before this

amendment the statute required consent of an adult without limitation. If elected officials,

the bench and bar thought it was time to limit the rights of adults in adoption proceedings,

we would expect them to debate the issue publicly, and not, as the majority assumes, act

without apparent cause. Surely, the legislature could not have intended a dramatic change

in the law—one that limited the rights of adults sub silentio—without, at a minimum,

consideration of the constitutionality of such action (see Cleveland Bd. of Educ. v LaFleur,

414 US 632, 639-640 [1974] [recognizing that “freedom of personal choice in matters of .

. . family life is one of the liberties protected by the Due Process Clause of the Fourteenth

Amendment”]; see also Matter of Martin F., 13 Misc 3d 659, 673 [Fam Ct, Monroe County

2006] [“The fundamental liberty interest of natural parents in the care, custody and

management of their child does not evaporate simply because they . . . (placed) custody of

their child (with) the State”], quoting Santosky v Kramer, 455 US 745, 753 [1982]).

The legislative history leads to only one logical interpretation of the statutory

language. The legislature left unchanged the mandatory requirement of consent by adoptive

persons over the age of 14, but authorized courts to dispense with consent in limited

circumstances to protect the wellbeing of an adolescent over age 14 and under 18 years of

age.

III.

Apart from the lack of historical support for the majority’s alternative interpretation

of section 111(1)(a), the proposed reading is internally inconsistent. The majority

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concludes that 111 (1) (a) requires consent and that a court may dispense with that consent

even in the case of an adult. But this conclusion implies that dispensing with consent for

an adult capable of giving consent would be an abuse of discretion or unconstitutional

(majority op at 7). Essentially, the majority holds that the only classes of potential adoptees

whose consent may be dispensed with are adolescents over 14 years old and adults

incapable of consenting because of intellectual limitations. But respondent and other adults

with intellectual limitations are not children, and we should not equate them as such under

the law. Individuals with intellectual limitations are entitled to be treated with the same

dignity as any other adult (see GA Res 61/206 Convention on the Rights of Persons with

Disabilities, Art 12 [Dec 13, 2006] [recognizing that “persons with disabilities have the

right to recognition () as persons before the law”]; Kristin Booth Glen, Piloting

Personhood: Reflections from the First Year of a Supported Decision-Making Project, 39

Cardozo L Rev 495, 496-497 [2017]).

Moreover, section 111 makes a single reference to “intellectual disability”—that of

the adoptive “parent or of any other person having custody of the child” (Domestic

Relations Law § 111 [2] [d]). This illustrates that the legislature knew how to make

distinctions based on intellectual limitations. Therefore, if the legislature intended the

majority’s interpretation, it knew how to amend the statute to achieve that end and would

have expressly done so. It did not and we may not redraft the statute to achieve an outcome

unaddressed or not intended by our elected officials (see e.g. Matter of Kosmider v Whitney,

34 NY3d 48, 58 [2019]; Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 173 [2019]; Matter

of Orens v Novello, 99 NY2d 180, 189 [2002]).

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The majority justifies this carveout, advocated by petitioners, by arguing that a

contrary interpretation of section 111 would unfairly categorically bar the adoption of

adults who lack the capacity to consent and deny them the benefits of adoption. This view

misunderstands antidiscrimination theory. What would be discriminatory and unjust would

be to treat respondent and adults with intellectual limitations differently from all other

adults—including subjecting them to new familial relationships, imposed without their

consent—under a law designed for those who can consent. The majority cannot overcome

this inherent constraint of the statute with an interpretation that allows a court to dispense

with consent for all adults, when, in practice, persons unable to consent are the one’s

affected. Indeed, given the majority view that it would be unfair to deny adoption to adults

with intellectual limitations, when would a court choose not to dispense with consent for

such an adult in order to proceed to a best interest analysis (majority op at 8 n 4)?6

The legislative history precludes the conclusion that the legislature considered this

outcome. If that means that under the current framework respondent and others in her

position cannot be adopted, it is for the legislature to determine whether and how to address

6 The majority notes that the statute reflects a legislative determination that courts should consider the unique circumstances of every case (majority op at 8 n 4). The majority cannot avoid the obvious practical application of its decision, i.e., a court may proceed with the adoption of an adult who is unable to provide informed consent solely because of the adult’s intellectual limitation (see majority op at 8 n 4). That is a class distinction no matter how the majority dresses it up. It is also a class distinction that we cannot make on the basis of the statute as currently written (see infra Section IV).

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the gap in the statutory scheme.7 Unlike judges, elected officials are constitutionally

empowered to legislate on matters of public policy (compare NY Const, art III, § 1 [“The

legislative power of this state shall be vested in the senate and assembly”], with id. art VI,

§ 3 [a] [“The jurisdiction of the court of appeals shall be limited to the review of questions

of law . . . .”]). “We are not privileged, by judicial construction, to legislate” (Matter of

Metropolitan Life Ins. Co. v Boland, 281 NY 357, 361 [1939]; see also Bank Markazi v

Peterson, — US —, 136 S Ct 1310, 1332 [2016, Roberts, Ch. J., dissenting] [“The Framers

saw that if the power of judging . . . were joined to legislative power, the power over the

life and liberty of the citizens would be arbitrary” (internal quotation marks omitted)]

[citation omitted]; Xiang Fu He, 34 NY3d at 172 [“(W)e are not at liberty to second-guess

the Legislature’s determination, or to disregard—or rewrite—its statutory text”], quoting

Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556, 567

[2018]; Wolpoff v Cuomo, 80 NY2d 70, 79 [1992] [“It is not the role of this, or indeed any,

court to second-guess the determinations of the Legislature, the elective representatives of

the people”]).

As we have often recognized, when exercising our judicial authority to interpret

statutes, courts may not “substitute their judgment for that of the Legislature as to the

wisdom and expedience of the legislation” (Matter of Malpica-Orsini, 36 NY2d at 570).

The command that we refrain from policy deliberation is in recognition that, “[u]nder the

7 The majority claims to have “interpret[ed] the statute as written, without embellishment” (majority op at 9). But the statutory text is ambiguous, and, as I explain, the majority has read into the statute a carveout not therein provided. - 15 - - 16 - No. 49

doctrine of separation of powers courts may not legislate” (id. at 571; Xiang Fu He, 34

NY3d at 175 [“As we have repeatedly made clear, the courts do not sit in review of the

discretion of the (l)egislature or determine the expediency, wisdom, or propriety of its

action on matters within its powers” (internal quotation marks omitted)] [citation omitted];

People v Francis, 30 NY3d 737, 751 [2018] [“The constitutional principle of separation of

powers . . . requires that the Legislature make the critical policy decisions”]).

IV.

This is one of those cases where the legislature has not spoken on a thorny policy

issue—i.e., whether to allow adoption of an adult unable to provide informed consent, and

if so, how to accomplish that end. Nor has the legislature chosen language that allows us

to apply traditional canons of construction to identify a legislative intent where none exists.

As currently written, the statute requires an adult adoptee’s consent, which respondent has

not provided. Respondent’s affection for petitioners does not alter the analysis of the

threshold consent requirement. An adult may feel love and a connection to a petitioner but

not want to be treated under the law as the petitioner’s “child,” nor have the petitioner stand

as the adult’s “parent.” Affection is no substitute for informed consent.8

In upholding the decision below, the majority has taken to redrafting the law and

not merely interpreting or construing the statutory provision as the legislature intended.

This we cannot do. Until the legislature changes the law to provide an appropriate

8 Given my conclusion, I have no occasion to opine on the best interest analysis as applied to respondent.

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mechanism for adoption of persons with intellectual limitations who are unable to provide

informed consent, we must apply the law as we find it and as the legislature intended.

I dissent.

Order affirmed, without costs. Opinion by Chief Judge DiFiore. Judges Stein, Fahey, Garcia and Feinman concur. Judge Wilson concurs in result in an opinion. Judge Rivera dissents in an opinion.

Decided November 23, 2020

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