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In re M.M.D.

June 30, 1995


Appeal from the Superior Court of the District of Columbia. (Hon. Susan R. Winfield, Trial Judge)

Before Ferren and Steadman, Associated Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Ferren. Concurring Opinion by Senior Judge Mack. Dissenting Opinion by Associate Judge Steadman.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : This case presents the question whether, under District of Columbia law, two unmarried persons -- in particular, a same-sex couple living together in a committed personal relationship -- may adopt a child. If the answer is yes, there is a second question: whether the fact that one member of the couple already has adopted the child creates any impediment to both members' joining in the adoption. We answer the first question"yes," the second question "no." The trial Judge erred in answering each question but intimated that the adoption would be in the child's "best interests" if the law were otherwise -- as we hold it here to be. We therefore reverse and remand for issuance of factual findings and, if still indicated, for entry of a decree granting the adoption appellants seek.

I. Facts and Proceedings

We quote the statement of facts from the trial Judge's opinion (footnotes omitted):

Hillary is a healthy, happy, and delightful 2 1/2 year-old Black/Hispanic child who was born on August 15, 1991 in the District of Columbia. Hillary's biological mother is a young, attractive Black woman who met Bruce and Mark after reading an advertisement that they had placed in a local newspaper. The ad identified the petitioners as a gay couple who were seeking to adopt a child. Bruce and Mark are adult, white, homosexual males who have shared an intimate relationship for almost five years.

At the time she read the newspaper advertisement, the birth mother was several months pregnant and was not on good terms with her mother with whom she then lived. The birth mother, therefore, not only answered the ad, but shortly after meeting the petitioners, she began living with them. Eventually, she delivered Hillary on August 15, 1991. All went as planned when Hillary's mother signed her consent to an adoption of Hillary on September 9, 1991. Bruce filed the first petition to adopt the child on the following day.

The baby's natural mother and Bruce reached an agreement that the mother would continue to have visitation privileges with Hillary, even after the adoption was finalized. These visitation arrangements, however, did not proceed smoothly. Rather, the mother accused Bruce of denying her access to Hillary and eventually she filed a motion to vacate her consent to the adoption. This motion was submitted to this court and was scheduled for a hearing.

After much Discussion and several preliminary hearings, the parties reached an accord which they reduced to writing. Essentially, Hillary's mother and Bruce agreed again to permit the mother to visit with Hillary even after a final decree of adoption was issued.

In their Discussion with the court about this agreement, the parties expressly stated that they understood that under the District of Columbia law, the natural mother had no enforceable right to visit Hillary after a final decree of adoption was signed because the law in the District of Columbia, as the parties understood it, mandated that upon the signing of the final decree of adoption, all of the mother's rights as a parent would be terminated. No one suggested that this severance of Hillary's mother's rights was waivable. At the parties' request, this court reviewed the agreement and satisfied itself that the natural mother understood that she was in no way obligated to settle the case; that she could instead proceed with the hearing on her motion to vacate her consent; and that the agreement to allow continued visitation with Hillary could not be enforced under the law as it existed in the District of Columbia. This court was further satisfied that the mother's decision to reaffirm her consent to the adoption and to withdraw her motion to vacate her consent was voluntarily made. Therefore, since all of the evidence supported a finding that Bruce M. was a suitable person to adopt Hillary, and since Hillary was clearly suitable to be adopted, and because this court found that the adoption was in Hillary's best interest, this court signed the final decree of adoption in favor of Bruce M. *fn1

In March 1993, both Bruce M. and Mark D. petitioned to adopt Hillary. In addition, Bruce M. signed his consent to the petition to adopt in favor of himself and Mark D.

The petitioners, Bruce and Mark, are thirty and thirty-five respectively. They are both Catholics who are members of a gay and lesbian religious organization called Dignity. Bruce has a Bachelor's Degree in Electrical Engineering and a Master's Degree in Engineering Computer Science. He currently works as an engineer for a major corporation. Mark has a Bachelor's Degree in Political Science and a Master's Degree in Public Administration. He now works as a Court Administrator in the state of Pennsylvania.

The petitioners own a condominium that they bought jointly and have shared since 1990. They have committed themselves to each other as a family to the extent legally possible, and they seek to raise Hillary together, whether or not their joint petition to adopt her is approved. They have, for example, introduced Hillary to, and included her as, a part of both of their extended families. They shared in her baptism at their church. They have enrolled her in a monthly play group arranged by the Gay and Lesbian Parent Coalition of Washington. Hillary is a beneficiary in their wills, insurance policies and other funds.

Hillary appears to be bonded equally well to both Bruce and Mark. She calls Bruce "Daddy" and Mark "Poppy." Bruce cooks most of the meals, while Mark often reads the bedtime stories. They both take Hillary on outings. The Department of Human Services has recommended in favor of their joint petition.

The Judge added:

The only issue before the court is a legal one since factually this court is satisfied by all of the evidence that Mark D. is fit and suitable to raise Hillary, even alone, and that this court would conclude on a single petition by Mark D. that it would be in Hillary's best interests to be adopted by him.

The Judge then ruled, for reasons explained below, that the adoption statute did not permit Mark to join in Bruce's adoption of Hillary. This appeal followed.


Before offering our analysis, we believe it will be helpful to provide the following summary of decision:

1. D.C. Code § 16-302 (1989 Repl.) expressly authorizes adoptions by "any person," without limitation. It then imposes a restriction on adoption by a spouse of the natural parent (that parent must "consent"), as well as a restriction on adoption by every other married petitioner (the petitioner's spouse must "join[] in the petition"). There is no mention of adoptions by unmarried couples. A later provision, D.C. Code § 16-305, refers generally to adoptions by "more than one petitioner," and D.C. Code § 16-312 (a) acknowledges the "adopting parent or parents." Finally, D.C. Code § 49-202 (1990 Repl.), which antedates the adoption statute, provides that "words importing the singular . . . shall be held to include the plural" unless that "construction would be unreasonable." These provisions, taken together, neither assuredly authorize adoptions by unmarried couples nor conclusively preclude them. The court, therefore, must consider this ambiguous statutory language in light of other interpretive criteria.

2. The legislative histories of the 1954 (present) adoption statute and of its 1937 predecessor add little to our understanding of legislative intent except for a significant, unexplained omission: beginning with the 1937 statute, Congress withheld language found in the first (1895) District of Columbia adoption statute limiting adoptions by couples to "husband and wife." After 1895, no committee report or comment from the House or Senate floor addressed " who may adopt." And nothing in the legislative history can be said to exclude adoptions by unmarried couples.

3. Because the statutory language and legislative history of the 1954 statute do not indicate that Congress paid attention to unmarried couples, one way or another, the language in D.C. Code § 16-302 specifying restrictions that apply "if" a petitioner has a "spouse" does not provide a basis for inferring that Congress consciously decided to exclude unmarried couples from eligibility to adopt. According to applicable case law, the expressio unius canon of construction (expression of one thing excludes another) only applies when the legislature is aware of the matter excluded.

4. In contrast, the doctrine of "strict construction" would limit adoptions to couples who are married, regardless of whether Congress thought about the matter, simply because the statute refers to married couples and no others. This court, however, has rejected strict construction of the adoption statute in favor of "liberal construction" in other adoption contexts. Moreover, courts in other states have employed liberal construction to allow adoptions by unmarried couples under statutes similar to the District of Columbia statute, in order to further the statute's beneficial purposes. The trial court's adherence to strict construction, therefore, is not easily justified.

5. The traditional interpretive criteria cautioning against statutory construction that leads to "absurd results" or "obvious inJustice," while marginally relevant (if relevant at all), cut in favor of a liberal construction that includes unmarried couples as eligible adopters.

6. Under the circumstances, where the statutory language, legislative history, and other applicable criteria are not dispositive, the controlling interpretive criterion, according to applicable case law, is the court's obligation to effectuate the legislative purpose of the adoption statute. There is no proper way of discerning legislative intent based on how Congress in 1954 would have answered the question whether unmarried couples should be eligible to adopt. This court, therefore, must focus on the general purpose or policy that motivated Congress to pass the adoption statute. There is considerable case law emphasizing that the "paramount concern" of the adoption statute -- its central beneficial purpose -- is the "best interests of the prospective adoptee." We conclude that this purpose is better served by applying a liberal, inclusionary reading of the statute to the facts presented here, for which there is persuasive decisional precedent; this case and others demonstrate that adoption by an unmarried couple can be in a child's best interests -- especially when the alternative would be a child's living in a family with two unmarried parents, only one of whom would be allowed to establish a formal parental relationship.

7. As indicated earlier, the statutory rule of construction in D.C. Code § 49-202 would convert § 16-302 to say "any persons," not merely "any person," may petition for an adoption if that construction would not be "unreasonable." Because we have concluded that liberal construction of the statute is appropriate here, and because this case and others show that adoptions by unmarried couples can be in the best interests of children, there is no basis for concluding that adoptions by unmarried couples would, categorically, be "unreasonable." We therefore are satisfied that § 49-202 supports the analysis here and that § 16-302 should be construed accordingly.

8. We conclude, finally, that the so-called "stepparent exception" in D.C. Code § 16-312(a) would apply, under the circumstances, to prevent termination of the relationship between Hillary and her unmarried natural parent (Bruce by adoption) if his life partner (Mark) is allowed to adopt the child and live as a family with Bruce and Hillary.

9. The trial court's order is reversed and the case remanded for further proceedings to determine whether it will be in Hillary's best interest for Mark, as well as Bruce, to adopt her.

III. Whether An Unmarried Couple Is Eligible To Adopt A Child

A. Preliminary Observation: How To Conceptualize This Case

As indicated in the statement of facts and proceedings, although Bruce and Mark were living together at the time Hillary joined them, Bruce alone petitioned for Hillary's adoption, which the court granted. Later, in a partially redundant exercise, both Bruce and Mark petitioned to adopt Hillary, and Bruce, in addition, formally "consented" to Mark's joining in the petition. As will become clear from our statutory analysis, this particular approach reflects an understandable effort to cover all the bases, so to speak, in advocating the eligibility of an unmarried couple to adopt a child in the District of Columbia. In reality, therefore, despite Bruce's initial, separate adoption of Hillary, the parties seek a way for them jointly to adopt her, and that is how we conceptualize this case. For reasons that we shall explain more fully once the statutory framework and related issues become more focused, this case is not better interpreted, more narrowly, as a petition filed by a single, unmarried person, Mark, seeking to adopt Hillary while using Bruce's "consent" to preserve Bruce's pre-existing parental rights.

The result should be the same whether members of an unmarried couple living together in a committed personal relationship seek to adopt sequentially or simultaneously. This, then, is the perspective from which we view -- and decide -- the case.

B. Applicable Statutory Provisions and the Trial Judge's Ruling

Three provisions of the adoption statute are relevant to determining whether more than one person may lawfully adopt a child and, if so, whether an unmarried couple *fn2 is eligible. D.C. Code § 16-302 (1989 Repl.) (captioned "Persons who may adopt") provides:

[1] Any person may petition the court for a decree of adoption. [2] A petition may not be considered by the court unless petitioner's spouse, if he [ or she ] has one, joins in the petition, except that [3] if either the husband or wife is a natural parent of the prospective adoptee, the natural parent need not join in the petition with the adopting parent, but need only give his or her consent to the adoption. [4] If the marital status of the petitioner changes after the time of filing the petition and before the time the decree of adoption is final, the petition must be amended accordingly. [Emphasis added.]

D.C. Code § 16-305 (captioned "Petition for adoption") lists the categories of information a petitioner must supply and then concludes:

If more than one petitioner joins in a petition, the requirements of this section apply to each. [Emphasis added.]

Finally, D.C. Code § 16-312 (captioned "Legal effects of adoption") provides in paragraph (a):

[1] A final decree of adoption establishes the relationship of natural parent and natural child between adopter and adoptee for all purposes, including mutual rights of inheritance and succession as if adoptee were born to adopter. The adoptee takes from, through, and as a representative of his [or her] adoptive parent or parents in the same manner as a child by birth, and upon the death of an adoptee intestate, his [or her] property shall pass and be distributed in the same manner as if the adoptee had been born to the adopting parent or parents in lawful wedlock. [2A] All rights and duties including those of inheritance and succession between the adoptee, his [or her] natural parents, their issue, collateral relatives, and so forth, are cut off, [2B] except that when one of the natural parents is the spouse of the adopter, the rights and relations as between adoptee, that natural parent, and his [or her] parents and collateral relatives, including mutual rights of inheritance and succession, are in no wise altered. [Emphasis added.]

The first question -- whether it is legally possible for an unmarried couple, see (supra) note 2, to adopt a child -- focuses our attention, initially, on § 16-302, which governs who may adopt. The trial Judge interpreted this provision to exclude the possibility of adoption by an unmarried couple because (in the Judge's words) the institution of adoption as a creation of statute, not of common law, "must be strictly construed," and there is no discernable legislative intent "to extend the right and privilege of adoption to more than one unmarried person at a time." *fn3 In other words, reasoned the Judge, because there is no basis for inferring that Congress affirmatively intended to permit a child's adoption by more than one unmarried adult -- i.e., because, according to the Judge, there is an "absence of specific legislative intent" -- the court must conclude that Congress rejected the possibility and thus has not authorized it.

There is an unconvincing leap of reasoning here. An "absence of specific legislative intent" does not always mean the legislature thought about something and rejected it; the omission also can mean the legislature did not think about the idea at all, and thus took no position on it.

It is unclear whether the trial Judge considered this latter possibility, but it appears from her analysis that she believed it is irrelevant whether Congress thought about adoptions by unmarried couples. She seemed to be saying, rather, that the controlling fact is what the statute says; it does not expressly provide for such adoptions; end of case.

The trial Judge reached her result by making a decision to employ "strict construction," meaning, to "apply the law as it is written, without undue extension by interpretation." Brown v. United States, 66 A.2d 491, 493 (D.C. 1949). According to strict construction doctrine, "the courts have consistently held legislation derogative of the common law accountable to an exactness of expression and have not allowed the effects of such legislation to be extended beyond the necessary and unavoidable meaning of its terms." Scharfeld v. Richardson, 76 U.S. App. D.C. 378, 379, 133 F.2d 340, 341 (1942).

The Judge, however, just as easily could have opted for a "liberal interpretation," meaning "the statutory provisions, where ambiguous, are to be construed liberally to effectuate the beneficial purposes that Congress had in mind." United States v. Zazove, 334 U.S. 602, 610 (1948). This court itself has emphasized that "the rule that statutes in derogation of the common law are to be strictly construed does not require such adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the meaning." District of Columbia v. Thompson, 593 A.2d 621, 632 (D.C. 1991) (citation omitted). The Supreme Court, moreover, has made the point even more emphatically:

"The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose. . . . The canon does not require distortion or nullification of the evident meaning and purpose of the legislation." United States v. Brown, 333 U.S. 18, 25-26 (1948) (citation and internal quotation marks omitted). With particular reference to adoption statutes, many courts have shown a preference for liberal over strict construction, as the cases collected below in the margin reveal. *fn4

The point here is not to say, summarily, that the trial Judge's approach is wrong; rather, we merely point out that another, respectable approach is available and that a more in-depth look at the statute is required than mere election between conflicting general rules of construction.

C. Rules For Statutory Interpretation

This court, in Peoples Drug Stores v. District of Columbia, 470 A.2d 751 (D.C. 1983) (en banc), has prescribed a comprehensive approach to statutory interpretation. Initially, the court must "look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning," since the "primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used." Id. at 753 (citations and internal quotation marks omitted). We added, however, that this "plain language" or "plain meaning" rule is the first, but "not always the last or the most illuminating step" in statutory analysis. Id. at 754. We then outlined situations in which courts properly "look beyond the plain meaning of statutory language." Id. :

First, even where the words of a statute have a superficial clarity, a review of the legislative history or an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve. . . .

Second, the literal meaning of a statute will not be followed when it produces absurd results. . . .

Third, whenever possible, the words of a statute are to be construed to avoid obvious inJustice.

Finally, a court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose, . . . as determined by a reading of the legislative history or ...

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