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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 by an examination of the statute as a whole. . . .

Id. (citations and internal quotation marks omitted). We concluded by warning that these four exceptions to the plain meaning rule should not be understood "to swallow the rule completely," since there are strong policy reasons why everyone should be able to rely on what the statutory language, as commonly understood, appears to say. Id. at 755. Accordingly, we said, "a court should look beyond the ordinary meaning of the words of a statute only where there are persuasive reasons for doing so." Id. (citations and internal quotation marks omitted).

D. Adoptions By Unmarried Couples: Language of the Adoption Statute, and the Statutory Rule of Construction in D.C. Code § 49-202

We turn to the statutory language at issue, quoted above in Part III. B. Without doubt, under the adoption statute more than one person may lawfully adopt a child. Although the first sentence of D.C. Code § 16-302 is expressed in the singular -- "Any person may petition the court for a decree of adoption" -- the balance of that section acknowledges adoption by spouses who "join[] in the petition." Furthermore, D.C. Code § 16-305, which specifies the information required in an adoption petition, refers at the end to "more than one petitioner" who join in a petition. Finally, D.C. Code § 16-312 (a), which prescribes the legal effects of adoption, refers to the "adopting parent or parents" (as well as to a special rule that applies "when one of the natural parents is the spouse of the adopter"). Thus, the question is not whether, in the abstract, more than one person may adopt a child but rather, more concretely, whether in all instances when two persons seek to adopt they must be married to each other. *fn5

The adoption statute is unclear. D.C. Code § 16-302 expressly allows "any person" of any status, not just a married person, to petition for adoption. Moreover, § 16-305 acknowledges adoptions by "more than one petitioner," not merely by two "spouses" or by a "husband and wife." This neutral language in §§ 16-302 and -305, therefore, arguably leaves room for joint petitions by unmarried couples. But there is a hitch; various references in § 16-302 to "spouse," "husband," "wife," and marital status muddy the picture. The question is, do the § 16-302 provisions requiring a "petitioner's spouse, if he [or she] has one," to "join[] in the petition," except when "the husband or wife is a natural parent of the prospective adoptee," imply that only couples who are married may adopt children?

Before we try to answer that question, we note that another statute becomes relevant here. A prescribed "statutory rule[] of construction," D.C. Code § 49-202 (1990 Repl.), provides:

Words importing the singular number shall be held to include the plural, and vice versa, except where such construction would be unreasonable.

This statute was enacted in 1901 *fn6 and thus automatically became a "legislatively mandated rule of . . . construction" *fn7 of the adoption statute we construe here, enacted over half a century later in 1954. *fn8 If its application to the adoption statute would not be "unreasonable," § 49-202 would appear to clinch the argument that § 16-302 authorizes adoptions by unmarried couples, because this authorizing provision would then read: "Any persons may petition the court for a decree of adoption" -- an unequivocal statement of eligibility unfettered by subsequent language in § 16-302 specifying what happens when a married person seeks to adopt. Without further analysis, however, we cannot say that § 49-202 is conclusive; it will not turn singular into plural, expressly authorizing adoption by two unmarried persons, if that "construction would be unreasonable." Id.

This reasonableness requirement is a categorical, not a case-by-case, limitation that effectively turns the analysis back to interpretation of the adoption statute itself. With that said, however, the overall structure of § 49-202 -- a general rule subject to an exception -- suggests that the rule presumptively applies. This means that the burden falls on those who would strictly construe the adoption statute to demonstrate persuasively why it "would be unreasonable," id., for a court to hold that unmarried couples are eligible to adopt under § 16-302. *fn9

We therefore begin the "reasonableness" analysis by returning to the language of the adoption statute. As we have indicated, the principal obstacle to expansive interpretation of § 16-302 is found in the language of that section that specifically refers to "spouse," to "husband and wife," and to "marital status." See (supra) Part III. B. More specifically, § 16-302 identifies three adoption categories: adoption by "any person," who need not be married; adoption by one spouse when the other spouse is the natural parent (in which case the natural parent must merely "consent to the adoption"), and adoption by a married couple, neither of whom is the child's natural parent, and thus both of whom must "join[] in the petition." For several reasons, however, the fact that § 16-302 expressly recognizes three categories of adoptions does not conclusively answer whether these are the only permissible kinds of adoptions.

In the first place -- and of considerable significance -- Congress unquestionably knew how to limit adoptions by two persons to married couples, as it expressly did in the 1895 adoption statute ("a person or a husband and wife" may adopt). *fn10 But Congress chose not to do so. *fn11

Second, by using a series of "ifs" ("if" the petitioner has a spouse; "if" either spouse is a natural parent; "if" the marital status changes), Congress formulated § 16-302 in a way that leaves room for inferring that the two identified types of adoptions involving couples are particular examples, requiring special rules; they are not necessarily exclusive descriptions limiting adoptions to couples who are married. This lack of implied exclusiveness is evident from the fact that there are sound reasons why the partner of an unmarried adoption petitioner, while permitted to join in the petition, should not necessarily be required to do so. A legislature, for example, might prefer to leave the trial court with discretion to make an ad hoc determination of the solidity of an unmarried relationship sufficient for a joint adoption, rather than trying to spell out such criteria in adoption legislation. We do not say that Congress took that approach here; we say only that, by specifying joint participation requirements for married couples, Congress did not necessarily imply that it was addressing the only situation in which couples were eligible to adopt, since the rules applicable to married couples would not necessarily be right for all adopting couples when one member seeks to adopt a child.

Third, the term "adoption" itself implies no self-evident limitation on who may adopt. Recently we noted that a "marriage," according to "the ordinary sense and meaning traditionally attributed to the word," does not include a same-sex couple, and thus partly for this reason we concluded that Congress, in enacting the marriage statute without specific limitation to heterosexual couples, could not have intended to include same-sex couples. See Dean v. District of Columbia, 653 A.2d 307, 315 (D.C. 1995) (citations omitted). In contrast, the idea of "adoption" does not suggest an inherent, traditional limitation on who may adopt; we cannot use an "ordinary" meaning of "adoption" to say that Congress assuredly made unmarried couples ineligible to adopt. See Adoption of Tammy, 619 N.E.2d 315, 319 n.4 (Mass. 1993). *fn12 Indeed, theoretically, an adult child is eligible under the statute to adopt a parent, or a brother his sister, subject of course to a court's rejection of the proposal on the facts presented. The point is, courts over the years have entertained all sorts of adoption petitions to create "non-standard" families, granting some and denying others in the prospective adoptee's best interests. See (supra) note 12.

Finally, whether Congress intended to limit adoptions by couples to those who are married, or did not give any thought to the matter, the fact is that the level of generality of the language used in the present adoption statute, in contrast with the 1895 statute -- even without regard to the dictates of D.C. Code § 49-202 converting singular words to the plural unless "unreasonable" -- leaves plenty of room under D.C. Code § 16-302 for extending adopter eligibility to unmarried couples. The Supreme Court has emphasized that, "while a statute speaks from its enactment, embraces everything which subsequently falls within its scope." Browder v. United States, 312 U.S. 335, 339-40 (1941). And this court has said in a similar vein: "The object of a statute may be so general and its language so broad as to reach conditions fairly coming within its intent and sweep although such conditions did not come into existence until years after its enactment." Rosenberg v. United States, 297 A.2d 763, 765 (D.C. 1972). We do not say that the statutory language definitely permits adoption by unmarried couples; we say that the statute, by virtue of its multiple uses of neutral, general language, can comfortably be read to embrace such adoptions. *fn13

At this point in the analysis, therefore, we are not able to say either that the adoption statute "plainly," i.e., conclusively, allows adoption by an unmarried couple or that the statute "plainly" limits joint adoption to a "husband and wife" (as the 1895 statute did). The language gaps and generalities create too much ambiguity to require either interpretation.

Any inference that marriage is required before a couple may adopt, based solely on the language in § 16-302 referring to marital status, is a weak inference at best. Indeed, our analysis thus far has revealed an "alternative construction[]" ascribable to the statutory language, Peoples Drug Stores, 470 A.2d at 754 -- namely, an interpretation derived from the statute's neutral, inclusive language applied in the context of a "paramount concern" for the "best interests of the child" -- which suggests just as reasonable an inference that adoptions by unmarried couples are not automatically precluded. Accordingly, the trial court's statutory interpretation that bars the adoption here is based, at best, on "superficial clarity." Id. Pursuant to the first exception to the "plain meaning" rule, therefore, we must address the statutory "ambiguities," id., by consulting legislative history. See (supra) Part III. C.

E. Adoptions By Unmarried Couples: Legislative History

Before 1895, when Congress enacted its first adoption statute, *fn14 adoptions were unavailable in the District of Columbia because adoption was not possible at common law. *fn15 The 1895 Act is interesting in that, as originally proposed, the bill simply authorized a petition for adoption by "a person." *fn16 It was amended on the House floor to permit adoption by "a person or a husband and wife," in order to remove any doubt as to whether both could join in the petition. *fn17

Congress repealed the 1895 Act and adopted the first comprehensive adoption statute for the District in 1937. *fn18 The new statute contained no provision specifying who was entitled to adopt, although it required the petition to state "whether the petitioner is married or single" and precluded consideration of a petition "unless petitioner's spouse joined in the petition or consented to the adoption." *fn19 No longer, therefore, were petitioners expressly limited to "a person or a husband and wife." The 1937 Act also provided that a final adoption decree would "establish the relation of natural parent and natural child" for all purposes, provided that an adopted child could not inherit from the parents or collateral relatives of the child's adoptive parents. *fn20 The statute, however, added an exception to that limitation: in the event that one of the natural parents was "the spouse of petitioner," the adoptee would retain the rights of inheritance and succession from that parent, as well as from related grandparents and collateral relatives. *fn21

Aside from "minor exceptions" the adoption statute was not amended until 1954, *fn22 when Congress repealed the 1937 Act with a comprehensive statutory revision. *fn23 As to the kinds of requirements at issue in this case, there were four noteworthy changes. First, the 1954 statute reinstituted a provision on "persons who may adopt" (now D.C. Code § 16-302), but, in contrast with enactment of the 1895 statute, Congress used language that is completely neutral: " Any person may petition the court for a decree of adoption" (emphasis added). Second, the 1954 statute more directly stated (now in D.C. Code § 16-302) that a natural parent married to the petitioner need only consent to, rather than join in, the adoption. Third, in the provision (now D.C. Code § 16-305) that prescribed the requirements for an adoption petition, Congress added another neutral sentence, not found in the 1895 and 1937 statutes, expressly recognizing petitions filed by "more than one petitioner" -- a retreat even further than in 1937 from the 1895 terminology, "husband and wife." Fourth, the provision governing inheritance rights (now D.C. Code § 16-312) was changed. Under the 1954 Act, the adopted child now inherits from grandparents and collateral relatives as though he or she were a "child by birth" of the adoptive parents. See D.C. Code § 16-312 (a). The 1954 Act also confirms that, upon adoption, all rights of inheritance and succession between the child and the natural parents are cut off, except when one of the natural parents is the spouse of the adopting parent. Id.

It is important to add that only in connection with the 1895 Act did any member of Congress speak on the record about the scope of the provision governing who is entitled to adopt. Nowhere in any committee report, from either House of Congress, nor in any speech on the House or Senate floor, was there any Discussion in 1937 or in 1954 about who is entitled to adopt; the statutory language is left to speak for itself. *fn24 With that said, however, it is important to reemphasize that in 1895 the statute referred to "a person or a husband and wife" joining in an adoption, whereas in 1954 the statute was drafted to refer neutrally, in § 16-302, to a petition by "any person," and, in § 16-305, to a petition by "more than one petitioner." These substantial language differences between the 1895 and 1954 approaches (separated in time by much less specific language, either way, in the 1937 statute) are significant; they show that Congress can speak precisely about who, as a couple, can adopt, and that Congress chose not to do so in the present statute. See (supra) notes 11 and 13. What was once plain language no longer is, and thus the indications are that Congress, by selecting neutral language to describe adoption petitioners in general, has now left room -- wittingly *fn25 or unwittingly *fn26 -- for an unmarried couple, as well as for a "husband and wife," to join in an adoption. *fn27

This shift away from the 1895 "husband and wife" approach is all the more important in light of D.C. Code § 49-202, in effect since 1901, which provides that "words importing the singular number shall be held to include the plural" unless "unreasonable." As indicated earlier, absent an express limitation in § 16-302 to adoptions by couples who are married, § 49-202 presumptively applies, converting § 16-302 to say that "any persons " shall be eligible to adopt except when categorically "unreasonable." The legislative history in no way suggests that application of this interpretative presumption here would be "unreasonable."

In sum, the legislative history of the 1954 Act itself adds very little to our understanding, derived from the language of §§ 16-302, -305, and -312, as to whether an unmarried couple is entitled to adopt. From the perspective of statutory evolution, however, we can see that the legislative history of adoption statutes in this jurisdiction, when coupled with the substantive gloss of § 49-202, points toward inclusive application of the statute to unmarried couples. Because, however, the statutory language and the legislative history (as it pertains to specific provisions of the 1954 Act) are inconclusive, we must consider still other interpretive criteria.

F. Adoptions By Unmarried Couples: Canons of Statutory Construction, and "Strict" v. "Liberal" Construction

Courts scrutinize statutory language and legislative history with a view to finding out what the legislature actually intended at the time of enactment. Courts also sometimes use canons of statutory construction for that purpose. Aside from her reference to the general principle of "strict construction," the trial Judge did not employ canons of construction. Because the District of Columbia has joined the appellants' side on appeal, however, we believe it is important to assess, sua sponte, the merits of a particular canon of construction that the proponents of the trial court's ruling undoubtedly would cite.

1. Expressio Unius

One way of looking at the trial Judge's analysis would be to say she focused exclusively on the language in § 16-302 that contemplates adoption by a married couple ("spouse," "husband and wife," "marital status"), and then applied, implicitly, the Latin maxim expressio unius est exclusio alterius : "when a legislature makes express mention of one thing, the exclusion of others is implied." McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986) (statute permitting exception for counterclaims to Small Claims Branch jurisdictional limit understood to preclude exception for unmentioned cross-claims). *fn28 It is important to recognize, however, that reliance on any particular canon of statutory construction cannot be conclusive; indeed, "for every canon, one can find an applicable countercanon." In re Kossow, 393 A.2d 97, 101 (D.C. 1978) (citation omitted). In this case, for instance, since Congress did not expressly exclude adoptions by unmarried couples, the trial Judge just as easily might have relied on the canon that says: statutory language may fairly be understood to comprehend many different cases when only some are expressly mentioned by way of example. *fn29

It is important to understand that canons of construction are not rules of substantive law, see Newberger v. Commissioner of Internal Revenue, 311 U.S. 83, 88 (1940); Matter of Chicago, Milwaukee, St. Paul & Pacific R. R. Co., 658 F.2d 1149, 1158 (7th Cir. 1981) -- unless enacted as such, as was D.C. Code § 49-202. See (supra) note 6 and accompanying text. Nor is any particular canon easily identifiable as a tool of interpretation that assuredly applies to a particular statute. Karl Llewellyn once supplied a list of 28 instances where a proffered canon of construction could be neutralized effectively by another one. *fn30 In reality, therefore, when a court relies on a particular interpretive maxim such as expressio unius, the court is commonly electing between conflicting shorthand expressions to describe, after the fact, the court's particular rationale for deciding, for an assortment of reasons, what the statute means, having taken into account the statutory language and legislative history, the legislative scheme as a whole (including statutes that should be read together), and statutory purpose. Application of a canon of statutory construction, therefore, is actually a way of summarizing -- of explaining -- a decision otherwise made; it is not really a way of reaching a decision. *fn31

The question, then, is whether expressio unius describes a valid approach to discerning whether Congress in 1954 intended to include unmarried couples among the persons eligible to adopt children. The assumption underlying expressio unius is that, by reference to what the legislature said, the court can tell that the legislature thought about another matter and rejected it. In other words, this canon is shorthand for saying that the legislature said enough to imply it was covering the field, and thus that any omission within that field had to be intentional, not inadvertent. See McCray, 504 A.2d at 1130 ("Congress, by failing to mention cross-claims in section 16-3904, must be presumed to have consciously excluded cross-claims from that section.") (emphasis added).

This kind of reasoning has been applied in several common situations: when the statute specifies remedies, *fn32 itemizes exemptions *fn33 or deductions, *fn34 or creates exceptions *fn35 -- classic examples of legislative action that, by its very nature, purports to be exclusive and thus clearly suggests the legislature has thought about the particular matter omitted.

For three reasons the adoption statute does not present such a situation. First, in considering whether married couples are excluded as adopters, we are not dealing with typical expressio unius categories: specified remedies, exemptions, exceptions. Second, the statutory language itself does not clearly purport to specify all eligible adopters, given its level of generality (especially when compared with the 1895 statute) and its use of "ifs" when referring to married couples.

Finally, and of considerable importance, there is no basis here for inferring that Congress even considered adoption by unmarried couples, let alone took a position on it. Both the statute and legislative history are silent on the subject. Nor is this a case where the legislature, in considering who should be allowed to adopt, necessarily would have considered unmarried couples. It might have done so, but did not assuredly do so. For that reason the very premise of expressio unius -- that the legislature considered and rejected a proposed possibility, see McCray, 504 A.2d at 1130 -- is missing. See Adoption of Tammy, 619 N.E.2d at 319 ("While the Legislature may not have envisioned adoption by same-sex partners, there is no indication that it attempted to define all possible categories of persons leading to adoptions in the best interests of children.") (footnote omitted).

We therefore must conclude that the expressio unius rationale cannot be used to explain the omission of unmarried couple adopters from § 16-302, and thus it cannot be applied to justify the exclusion of unmarried couples from eligibility to adopt.

2. Strict Construction

The "strict construction" approach which the trial Judge applied is akin to expressio unius analysis in that it would preclude extension of the statute beyond expressly permitted situations. See (supra) III. B. But there is a fundamental difference: instead of saying that expression of one thing should be understood as the conscious exclusion of another, strict construction says, the other way around, that legislative failure to express a possibility -- including failure to erase a common law or other established norm -- should be understood by itself to exclude that possibility. *fn36

In this case, strict construction would deny adoptions to unmarried couples simply because adoption as such was impossible at common law and, solely for that reason, should be precluded unless the statute expressly recognizes a particular adoptive relationship. See Scharfeld, 76 U.S. App. D.C. at 379, 133 F.2d at 341. The fact that adoptions have been authorized in the District of Columbia since 1895, see (supra) note 10, suggests that this particular rationale for strict construction of the 1954 statute is no longer persuasive. But more to the point, as we have noted, many jurisdictions have come to reject strict construction of adoption statutes in recognition of an overriding need to effectuate their beneficial purposes. See (supra) note 4. This court, at least implicitly, has joined this trend.

In In re J.H., 313 A.2d 874 (D.C. 1974), in sustaining an adoption (with the mother's consent) by the admitted father of an illegitimate child, we took an inclusive approach based both on the statute's general language permitting "any person" to adopt and on the statute's "paramount concern," namely, "the best interests of the child." Id. at 875-76. Rejecting the idea that particular kinds of adoptions are precluded if not expressly recognized, we stressed: "It is noteworthy that Section 16-302 does not exclude the father of an illegitimate child from the class permitted to adopt." Id. at 875 (emphasis added). *fn37 In this jurisdiction, therefore, as in Massachusetts, see Adoption of Tammy, supra note 12, we have recognized that a "non-standard," id., family created under the adoption statute can be in a child's best interest. While not directly on point, J.H. at least makes clear that this court has favored a liberal over a strict construction of the adoption statute.

We therefore conclude that the strict construction approach, like the expressio unius maxim, does not offer a persuasive reason for precluding adoptions by unmarried couples. Premising statutory interpretation on a pre-1895 state of affairs, without attention to more recent legislative principles, hardly commends itself -- at least not to this court. As yet, therefore, we have seen no basis for concluding that it "would be unreasonable" to interpret § 16-302 in light of § 49-202, as applied to unmarried couples, to say: "Any persons may petition the court for a decree of adoption." (emphasis added).

We turn to still other interpretive criteria.

G. Adoption By Unmarried Couples: Other Interpretative Criteria -- "Absurd Results" and "Obvious InJustice"

Without a record that goes beyond this particular case we are not prepared to say, categorically, either that a legislative limitation of adoption to married couples and single persons or that a statutory embrace of unmarried couples (whether opposite-sex or same-sex) would lead to "absurd results" or to "obvious inJustice." Peoples Drug Stores, 470 A.2d at 754. If a suitable single person or married couple were available to adopt every child who lacked a permanent home, then in light of a legislature's prerogative to provide for the best interests of children, we would be hard pressed to say that a statutory limitation of eligible adopters to single persons and married couples would be so "absurd" or "unjust" for children that the court should exercise its power, through statutory interpretation, to extend eligibility to unmarried couples. But if children available for adoption are likely to be denied permanent, loving homes when unmarried couples are refused the opportunity to adopt (or decline the opportunity for one member of the couple alone to adopt), we would have to say the "absurdity" and "inJustice" criteria cut very much against a restrictive interpretation of the adoption statute, given judicial decisions concluding that such adoptions would be in the child's best interests. Because, however, we have no empirical basis of record for evaluating the general impact of the adoption statute as interpreted one way or another in the District of Columbia, we cannot effectively use the "absurdity" and "inJustice" criteria as interpretive tools for across-the-board statutory interpretation.

With this said, however, it is important to recognize the trial Judge has indicated that, but for the perceived statutory prohibition of adoptions by unmarried couples, the adoption Bruce and Mark are now seeking would be in the child's best interests (more later). Moreover, in three other cases (which have not been appealed), Superior Court Judges have granted adoptions to unmarried, same-sex couples on the basis of each child's best interest. Matter of the Adoption of D.S. and R.M. for the Adoption of a Minor Child, 123 Daily Wash. L. Rptr. 1149 (D.C. Super. Ct. June 14, 1995); In re W.S.D., Adoption Case No. A-308-90 (D.C. Super. Ct. April 29, 1992); Matter of Petition of L.S. and V.L. for the Adoption of Minor (T). and Minor (M.), 119 Daily Wash. L. Rptr. 2249 (D.C. Super. Ct. Oct. 21, 1991).

All these developments indicate to us that, in the context of considering whether unmarried couples are eligible to adopt, a court construing an ambiguous statute would find it difficult to conclude on the basis of "absurdity" or "inJustice" that the adoption statute categorically excludes such adoptions.

H. Adoption By Unmarried Couples: A Final Interpretive Criterion -- "Legislative Purpose"

We turn to the final interpretive criterion that applies when the statutory language lacks plain meaning: a judicial obligation "to effectuate the legislative purpose" by reference to "the legislative history" and the "statute as a whole." Peoples Drug Stores, 470 A.2d at 754 (citations and internal quotation marks omitted). *fn38 Is § 16-302 better interpreted inclusively, to permit adoption by unmarried couples if in the child's best interests, or more appropriately construed exclusively, to limit adoptions to married couples assuredly covered by express statutory language?

In Peoples Drug Stores, 470 A.2d at 754-55 n.4, we briefly noted two common approaches to ascertaining legislative purpose: (1) "an essentially historical inquiry to determine how the enacting legislature would have answered the specific question" the court is facing ("legislative intent" model), and (2) an "attempt to discern the general purpose or policy that motivated the legislature to pass a statute," followed by an effort to "construe the statute in the manner most consistent with that purpose" ("purposive interpretation" model). We add two further observations: the less plain the statutory language is, the more likely the focus on legislative intent or statutory purpose will be determinative; and the less clear the answer is to the historical inquiry about how the legislature would have answered the unconsidered question, the more likely an analysis based on general statutory purpose will be conclusive.

1. Legislative Intent

Under the "legislative intent" model we would try to ascertain how the enacting legislature, Congress, would have answered the question -- "Shall unmarried couples be eligible to adopt?" -- when it passed the statute in 1954. See id. at 754. We do not hesitate to say that pursuit of that answer would be entirely speculative and thus futile. We have no basis for taking judicial notice of the mores and predilections of the 83d Congress in this area of the law. *fn39 Furthermore, given the fact that Congress expressly recognized in § 16-302 the opportunity for "any person," including any unmarried person, to adopt a child -- and also given the fact that Congress abandoned its 1895 approach that expressly limited adopters to "a person or a husband and wife," see (supra) note 10 -- we cannot infer an unambiguous intent from the language itself that would preclude unmarried couples from petitioning for adoptions. Finally, we have already noted that the term "adoption" suggests no inherent limitations on who may adopt and thus supplies no self-evident meaning underlying legislative intent. Accordingly, the "legislative intent" model is unhelpful; we must refer instead to so-called "purposive interpretation." Peoples Drug Stores, 470 A.2d at 754.

2. Statutory Purpose

Under the "statutory purpose" approach, as indicated earlier, we "will attempt to discern the general purpose or policy" that motivated Congress to enact the 1954 adoption statute and then will "construe the statute in the manner most consistent with that purpose." Id. at 755 n.4.

Adoption statutes were first enacted in this country in the middle of the nineteenth century. See 2 C.J.S. Adoption § 2 (1972). Early adoption legislation authorized transfer of children by deed from one set of parents to another, without legal proceedings. See Homer H. Clark, Jr., Law of Domestic Relations § 18.1, at 603 (1968). "More modern statutes, generally taken to date from the passage of the Massachusetts statute in 1851, provide for the institution of a legal proceeding leading to a decree of adoption, thereby giving the courts some powers in the supervision of the adoption process." Id. The statutory policy underlying all adoption statutes is to "promote the best interests of children while at the same time protecting as far as possible the interests of both natural and adoptive parents." Id. § 18.3, at 614.

District of Columbia law reflects this development. Almost 50 years ago in In re Adoption of a Minor, 81 U.S. App. D.C. 138, 155 F.2d 870 (1946), the United States Court of Appeals for the District of Columbia Circuit noted that the "major premise" underlying the adoption statute is "the unity of the natural family." Id. at 141, 155 F.2d at 873. The court then emphasized that, "proceeding from that general premise, that statute carves out a process which will operate when the natural relationship goes awry." Id. at 142, 155 F.2d at 874. Specifically, "this process of adoption is for the protection of the child" when, for example, the natural parents repudiate or fail to admit their responsibilities. Id.

The adoption statute at the time recognized, as it does now, that the court is to consider not only "the interests of the adoptee" but also those of "the natural parents, the petitioner [for adoption], and any other properly interested party." Id. at 141, 155 F.2d at 873 (internal quotation marks omitted); see D.C. Code § 16-301 (a). But, as the federal circuit court had recognized even earlier, the paramount interest is that of the child. See In re Adoption of a Minor, 79 U.S. App. D.C. 191, 195, 144 F.2d 644, 648 (1944) (in balancing "conflicting considerations of public policy and private interest" Congress decided "the interests of the infant were of even greater importance" than those of the natural mother).

This "best interests" priority is traceable to case law deciding child custody in event of divorce, see Wells v. Wells, 11 App. D.C. 392, 395 (1897), death of a parent, see Beall v. Bibb, 19 App. D.C. 311, 313 (1902), and neglect, see Holtsclaw v. Mercer, 79 U.S. App. D.C. 252, 145 F.2d 388 (1944). The requirement that an adoption must be "for the best interests" of the adoptee was incorporated into the adoption statute, for the first time, under the 1937 Act. See (supra) note 18. Although neither that statute nor the 1954 Act now in effect expressly calls the child's best interests the paramount concern, the courts consistently have acknowledged that is so. See In re L.L., 653 A.2d 873, 880 (D.C. 1995) ("in adoption cases . . . the decisive consideration is the best interests of the child") (citation omitted); Matter of L.W., 613 A.2d 350, 355 (D.C. 1992)(same); Petition of Douglas, 390 A.2d 1, 3 (D.C. 1978) ("primary concern"); In re J.H., 313 A.2d at 874-76 ("paramount concern"); In re Adoption of a Female Infant, 237 A.2d 468, 469 (D.C. 1968) ("primary concern"); Bell v. Leonard, 102 U.S. App. D.C. 179, 183, 251 F.2d 890, 894 (1958) ("primary inquiry"). *fn40

The adoption statute, therefore, is intended to provide a loving, nurturing home that pursues the best interests of the adopted child *fn41 after (1) transferring to the adoptive parent all legal rights, duties, and consequences of the parental relationship, (2) severing the rights and obligations of any natural parent who no longer will have custody of the child, and (3) determining all other legal effects of the adoption upon the families of the natural parents and the adoptive parents. See D.C. Code § 16-312.

It is entirely possible that every legislator who voted on the adoption statute would answer, if asked, that Congress only intended for married couples to adopt children. But the fact is, Congress did not say so. Indeed, as we have often repeated, Congress as early as 1937 scuttled the "husband and wife" language it began with in 1895. As we also have seen, when there is not clear language either of inclusion or of exclusion, courts liberally construing adoption statutes do not automatically reject a proposed application of the statute merely because that particular possibility was not expressly provided for; rather, as we stressed in In re J.H., especially in the adoption context courts commonly ask whether, in light of the language used and the statutory purpose, the proposed application is available and should be approved in the child's best interests. See Adoption of Tammy, 619 N.E. 2d at 319 (while legislature "may not have envisioned adoption by same-sex partners, there is no indication that it attempted to define all possible categories of persons leading to adoptions in the best interests of children"; thus, "to the extent any ambiguity or vagueness exists in the statute, judicial construction should enhance, rather than defeat, its purpose" to advance "the best interests of the subject child."); Adoption of B.L.V.B., 628 A.2d 1271, 1274 (Vt. 1993) ("Because adoptions by same-sex partners were apparently not contemplated when § 448 was adopted, it cannot be said that they are either specifically prohibited or specifically allowed by the statute"; thus, the court must "determine whether such adoptions are consistent with the purpose of the statute").

The decisive question, then, is whether adoptions by unmarried couples are likely enough to be in the best interests of children that we can say the statutory authority for such adoptions will further the statute's purposes. We turn to that inquiry.

I. Adoption By Unmarried Couples: Furthering The Statutory Purpose By Achieving The Child's Best Interests

The trial Judge ruled in an earlier proceeding that Bruce's adoption of Hillary was in the child's best interest. In this case, the Judge found that Hillary's adoption by Mark, "even alone," would also be in her best interest. Thus, the Judge strongly intimated that Hillary's joint adoption by Bruce and Mark, if legally permissible, would be in Hillary's best interest, since the Judge was aware that Hillary has been living with Bruce and Mark together from the time Hillary's mother placed her with them both.

Given what the trial Judge has said based on a substantial factual record, and further given the importance of determining whether interpretation of § 16-302 to permit adoptions by unmarried couples can promote the best interests of children, we use the facts of this case to evaluate the kinds of benefits that can flow from a liberal, inclusive interpretation of the adoption statute. *fn42

The proposed adoption by Mark very well may be in Hillary's best interests because it would formalize a parental relationship that she recognizes in fact, and it would assure that both men are equally committed to her. Although both Mark and Bruce currently provide support for Hillary, Mark's joining Bruce in the adoption would guarantee that they both continue to have an ongoing financial responsibility to her. *fn43 Furthermore, in the event that Mark and Bruce were to separate, Hillary would be assured of legal access to, and support from, both of them. *fn44

As Hillary's parent, Mark, like Bruce, would be able to obtain health insurance and other employment-related benefits for her. *fn45 In addition, Mark, like Bruce, would be allowed to act in Hillary's best interest without challenge to his parental authority by third parties such as doctors, hospitals, day care programs, schools, and camps. *fn46

Hillary would be protected in the event Mark died without a will because she would be entitled to inherit from him under the laws of intestate succession. See D.C. Code §§ 16-312, 19-301 et. seq. Hillary also would have the right to inherit from Mark's relatives, see id., and she would be eligible for other benefits, such as worker's compensation payments and Social Security benefits upon Mark's unemployment, disability, or death. See id. §§ 36-301 (4), -308 (4), -309, 46-101 (19). Hillary, moreover, would have standing to bring a wrongful death action if Mark were accidentally killed, id. § 16-2701, and she could benefit from various statutes and regulations that provide certain rights and privileges for "next of kin" with respect to Mark (in addition to Bruce). *fn47 Additionally, Mark would have rights relating to Hillary which could inure to her best interests. *fn48

The adoption also would protect Hillary in the event of Bruce's death, because Mark would be entitled to presumptive guardianship of Hillary and thus the family unit would not be threatened. If Mark were not Hillary's legal parent in the event Bruce were to die, Mark would have to file an action for custody, guardianship, or adoption to preserve his relationship with Hillary. If contested, this process could be lengthy and costly and could culminate not merely in denial of Mark's petition but, more significantly, in Hillary's losing, in effect, not one but two parents.

Recitation of the foregoing benefits of adoption have revealed what a child, living with an unmarried couple, could lose if only one of two parents-in-fact is allowed to adopt under the law. This reality cannot be ignored. In this connection it is important to emphasize again that, in making the child's "best interests" the "decisive consideration," In re L.L., 653 A.2d at 880, the statute does not expressly prescribe any limitation on how the family, in the child's "best interests," shall be structured. The focus is on how the child shall best thrive, not on what the particular family format shall look like. See (supra) note 12.

We are satisfied that the paramount statutory purpose -- the "best interests" of the adoptee -- will be best served, and that no other affected interests protected by the statute will be ill served, by a liberal, inclusive interpretation of D.C. Code § 16-302 that says: unmarried couples, whether same-sex or opposite-sex, who are living together in a committed personal relationship, are eligible to file petitions for adoption under D.C. Code § 16-305. We so hold. We therefore finally can say that it is not "unreasonable" to conclude the D.C. Code § 49-202, as applied to unmarried couples, modifies D.C. Code § 16-302 to say "any persons" may petition for adoption. Accordingly, adoption petitions by unmarried couples shall be granted or rejected on a case-by-case basis in the best interests of the prospective adoptee (on the assumption that all other statutory requirements are met).

IV. Whether An Adoptive Parent's Relationship with the Child will be Cut Off If that Parent's Unmarried Life Partner is Permitted to Adopt

A. The "Stepparent Exception"

The final question is whether, despite the legality of an adoption by an unmarried couple in the best interests of the child, the "legal effects" provision, D.C. Code § 16-312(a) -- quoted in full in Part III. B. above -- would cut off Bruce's relationship with Hillary as her adoptive (and thus "natural") parent if Mark's petition to adopt Hillary is granted. This provision has two discernible purposes: (1) to guarantee the adopted child's right of "inheritance and succession" as though that child "had been born to the adopting parent or parents in lawful wedlock," and (2) to "cut off" all rights and duties between the natural parents and the adopted child, including those of inheritance and succession -- "except that" no such "rights and relations," including inheritance and succession, shall be altered in any way "when one of the natural parents is the spouse of the adopter."

The specified exception reflects the typical stepparent situation identified in § 16-302. It recognizes that when a natural parent remarries and plans to live with his or her children and new spouse as a family unit, the statutory "cut off" requirement -- terminating the birth parent's rights so that the adopting parent and child can begin a new family without interference by the birth parent -- does not apply. Indeed, an important goal of adoption, to "strengthen the [] family as a social unit," Application of Sage, 586 P.2d 1201, 1203 (Wash. App. 1979), would be frustrated altogether if adoption by a stepparent would terminate the parental relationship between the birth parent and the child with whom both parents plan to live.

The trial court concluded that the cut-off language of § 36-312 is mandatory, not directory, and that its literal limitation to preserving the parental rights of the "spouse" of an adopting stepparent would preclude its use to save Bruce's parental rights if Mark were allowed to adopt Hillary. To the contrary, we do not hesitate to hold that this stepparent exception applies here, even though the natural parent (by adoption), Bruce, is not the "spouse of the adopter," Mark.

In the first place, the stepparent exception easily applies here by analogy; Bruce and Mark are living together in a committed personal relationship, as though married, and are jointly caring for Hillary as their child.

Second, we have held that the particular provisions in § 16-302 referring to adoption by a married couple do not foreclose adoption by an unmarried couple. Section 16-312, which announces the "legal effects" of adoption, does not apply unless and until a petitioner qualifies for adoption under § 16-302, which prescribes "who may adopt." Accordingly, § 16-312 is subject to the fundamental inclusiveness of § 16-302. It follows that the stepparent exception -- reflecting the married couple example identified in § 16-302 -- cannot be limited exclusively to couples who marry. Were we to limit the exception literally to a stepparent, forcing a cutoff of Bruce's parental rights if Mark were allowed to adopt, we would be interpreting the plain language of the statute in a way that imposes "absurd results" and "obvious inJustice," Peoples Drug Stores, 470 A.2d at 754, whenever two unmarried persons, one of whom has adopted a child, decide to live together and form a family with that child. See also Adoption of B.L.V.B., 628 A.2d at 1274 ("unreasonable and irrational result"). If the limitation were literally applied, unmarried couples who simultaneously seek to adopt a child could do so unaffected by the "cut off" provision of § 16-312(a), whereas unmarried couples in Bruce's and Mark's situation could not do so -- a result that would make no sense whatsoever, and would clearly harm the child if joint adoption were in the child's best interests.

Finally, the case law supports extending the § 16-312 stepparent exception to Mark's, Bruce's, and Hillary's situation. In In re J.H., we held that D.C. Code §§ 16-302 and -312 (a) authorized a father of an illegitimate child to adopt the child, with the natural mother's consent, in order to "make him the petitioner's heir-at-law." 313 A.2d at 874. The mother and father apparently were not married. Although the § 16-312 "cut off" issue was not raised, it did not appear that the mother was giving up her child, and there was not a hint that the adoption would affect her parental rights.

In Adoption of B.L.V.B., the Supreme Court of Vermont applied a statutory scheme that included a "cut off" provision with a "stepparent" exception similar to D.C. Code § 16-312 (a). One member of a committed, same-sex couple (Jane) had given birth to two sons after artificial insemination by an anonymous sperm donor; her partner (Deborah) sought "to legally adopt the children, while leaving Jane's parental rights intact." 628 A.2d at 1272. The probate court denied the adoption on purely legal grounds; the Supreme Court of Vermont reversed. With respect to the interplay between the "cut off" provision and the "stepparent" exception, as they affected Jane's rights upon Deborah's adoption of Jane's children, the court opined:

The statute also terminates the natural parents' rights upon adoption, but this provision anticipates that the adoption of children will remove them from the home of the biological parents, where the biological parents elect or are compelled to terminate their legal obligations to the child. This legislative intent is evidenced by the stepparent exception, which saves the natural parent's rights in a stepparent adoption. The legislature recognized that it would be against common sense to terminate the biological parent's rights when that parent will continue to raise and be responsible for the child, albeit in a family unit with a partner who is biologically unrelated to the child.

Although the precise circumstances of these adoptions may not have been contemplated during the initial drafting of the statute, the general intent and spirit of § 448 [the "cut off" provision] is entirely consistent with them. The intent of the legislature was to protect the security of family units by defining the legal rights and responsibilities of children who find themselves in circumstances that do not include two biological parents. Despite the narrow wording of the step-parent exception, we cannot conclude that the legislature ever meant to terminate the parental rights of a biological parent who intended to continue raising a child with the help of a partner.

Such a narrow construction would produce the unreasonable and irrational result of defeating adoptions that are otherwise indisputably in the best interests of children.

628 A.2d at 1274 (citation omitted) (emphasis added). Other courts have held the same. See Adoption of Tammy, 619 N.E.2d at 321 (sustaining joint petition for adoption of child by biological mother and her same-sex, committed life partner, without termination of biological mother's parental relationship under termination provision similar to D.C. Code § 16-312(a)); In re Evan, 583 N.Y.S.2d 997, 1000 (Sur. Ct. 1992) (upholding adoption of child by biological mother's same-sex partner under statutory provisions similar to D.C. Code § 16-312(a)); but see In Interest of Angel Lace M., 516 N.W. 2d 678, 683 & nn.8-9, 11 (Wis. 1994) (unmarried mother's life partner could not adopt child without terminating mother's parental rights because statute literally required such termination unless birth parent is spouse of adoptive parent).

In light of the logic inherent in the statutory scheme, and given the case law where courts have extended "stepparent" exceptions under "cut off" provisions to cover unmarried, though personally committed, same-sex couples, we are satisfied that § 16-312(a) is no impediment to Bruce's retaining his parental relationship with Hillary upon Mark's adoption of Hillary.

B. Rejection of Possible Alternative Analysis

As indicated in our preliminary observation, see (supra) Part III. A., theoretically, perhaps, we could have begun the analysis more narrowly by focusing on the fact that one person, Mark -- qualifying as "any person" under § 16-302 -- has filed a petition for adoption of a child for whom Bruce already had become a natural parent through earlier adoption. The burden of the analysis would then have shifted right away to § 16-312 (a), appearing to present only the one question whether Mark could adopt Hillary without cutting off Bruce's parental rights. The Supreme Court of Wisconsin, three Justices Dissenting, focused the analysis in this way on the "stepparent exception" and answered the question "no"; the first parent's rights would be cut off because the exception applied only to a married couple. See In Interest of Angel Lace M., 516 N.W.2d at 684. In considering a case in which a natural mother's same-sex life partner sought to adopt the mother-partner's child, the Wisconsin court relied on statutory language providing that an adoption will cut off all rights of the natural parent "unless the birth parent is the spouse of the adoptive parent." Id. Then, applying the expressio unius maxim, the court held that no other exceptions were authorized. See id.

The court declined to conceptualize the case as one essentially presenting a threshold question whether an unmarried couple could adopt a child, saying that only one member of the couple had filed the petition and thus that "the validity of a joint adoption not before this court." Id. at 684 n.14 It is important to note, however, that the Wisconsin statute was similar to the 1895 District of Columbia statute -- unlike the 1954 statute now before this court. Wisconsin authorized adoptions by " husband and wife jointly," by a stepparent, or by "an unmarried adult." Id. at 682 n.4. Thus, based on plain statutory language, the question whether unmarried couples were entitled to adopt would have been difficult to answer in the affirmative. But more to the point for the present case, and contrary to the Wisconsin Supreme Court's narrow conceptualization, the fundamental question is whether an unmarried couple is authorized to adopt. The answer should not depend on whether one member of the couple already has parental rights; the answer should not turn on the number of new parents the child is to receive.

Furthermore, the District of Columbia adoption statute makes clear that the "cut-off" question is subordinate to the eligibility question. The "cut-off" provision, § 16-312(a), pertains to the legal effects of adoption, the lawfulness of which is established under § 16-302. While the adoption statute should be read as a whole to help derive the meaning, as needed, of each particular provision, the question has to begin with, and be answered for, the up-front provision, § 16-302, captioned "persons entitled to adopt." If an unmarried couple is eligible to adopt, then the § 16-312(a) cut-off provision has to be interpreted with that authorization in mind; if an unmarried couple is not eligible to adopt, then the cut-off provision would merely reflect that fundamental reality. Broadly understood, the Wisconsin decision reflects this latter result, derived from a statute where, expressly, the only couple authorized to adopt is a "husband and wife."

As we elaborated earlier, the highest courts of Massachusetts, in Adoption of Tammy, and of Vermont, in Adoption of B.L.V.B., took the approach we have pursued here -- and with the same result.

V. Conclusion

For the foregoing reasons, we conclude that unmarried couples living together in a committed personal relationship, whether of the same sex or of opposite sexes, are eligible to "petition the court for a decree of adoption" under D.C. Code § 16-302. We further conclude that, when one of the natural parents (by birth or adoption) is living in a committed personal relationship with the prospective adoptive parent, then pursuant to D.C. Code § 16-312 (a) "the rights and relation as between adoptee, that natural [including adoptive] parent, and his [or her] parents and collateral relations, including natural rights of inheritance and succession, are in no wise altered."

We therefore reverse and remand the case for further proceedings consistent with this opinion.

Mack, Senior Judge, Concurring: I write as one who, although never exposed to the scholarly exercise of Latin, heartily embraces the importance of "a common-sense understanding of human thought and expression" alluded to by our Dissenting colleague. (Dissenting opinion at 1). Nevertheless, I differ with Judge Steadman's ultimate premise that, statutorily speaking, as to who may petition for adoption, the phrase "any person," in D.C. Code § 16-302 (1981), means "one person" and that the only "joint" adoption permitted thereunder is one by a married couple.

English dictionaries uniformly connote the versatility of a tiny three-letter word ("any") by affording it an inordinate amount of space according to its use in meaning and context, e.g., as an adjective, pronoun or adverb. As an adjective it may be singular or plural -- i.e., "one out of many" or "some" "an indefinite number." *fn1 When used as the antecedent of the word "one," it means a single or individual person or thing. *fn2 When used as a pronoun, and as the antecedent of the word "person" (as here) it may connote the status of a person, i.e., "anybody." *fn3

Latin aside, therefore, Congress wisely saw fit as early as 1901, to provide in D.C. Code § 49-202 (1990) (see majority opinion at 20), that "words importing the singular number shall be held to include the plural, and vice versa, except where such construction would be unreasonable." Such construction of the words "any person" in § 16-302 is entirely reasonable, particularly in view of the language of D.C. Code § 16-305 (1981) which, in setting forth information that must be provided for adoption purposes, specifically states (with no reference to a married couple or a spouse) that "if more than one petitioner joins in a petition, the requirements of this section apply to each."

I reject, therefore, the argument that Judge Ferren's opinion constitutes an unreasonable extension of the statutory scheme. I fully concur in that exhaustive opinion (with a few exceptions as to volunteered comments which do little more than reflect the author's own thinking at various stages of his scholarly pursuit). *fn4 Because I personally have fears that excessive preoccupation with trees may sometimes obscure the forest, I am attaching hereto as an Appendix, a recent order by a trial Judge who in agreeing to grant a "Motion to Reconsider" in yet another case, In re Petition for Adoption of a Minor Child, No. A-8-94 (D.C. Super. Ct. May 4, 1995), mirrors my thinking as to the primary question. *fn5





Adoption No. A-8-94

Judge Hedge


This matter is before the court on Petitioners' Motion for Reconsideration. Petitioners, D.S. and R.M., are adult women who have been in a committed relationship for over eight years. They jointly petitioned to adopt K.S., who has been living with them since November 1992. The court, sua sponte, issued an order, docketed on October 18, 1994, which directed the petitioners to submit an amended petition naming one or the other, but not both, as the petitioner. The basis for the order was the decision in In re Bruce M. & Mark D., which held that two unmarried individuals could not file a joint petition to adopt, regardless of the best interests of the child.1a

The petitioners appealed the October 18, 1994 Order and filed a Motion to Reconsider with the trial court on February 2, 1995.2a The motion was supported by voluminous briefs and affidavits. In addition, the District of Columbia filed a memorandum in support of the joint petition to adopt and the instant Motion to Reconsider. The District's memorandum incorporated by reference the petitioners' submissions, which included the government's appellate brief in In re Bruce M.

Distilled to its essence, petitioners' argument is that the adoption statute ensures that the best interests of the child are met and that any statutory construction analysis must be governed by this concept, as the plain statutory language does not preclude joint adoption by unmarried individuals. Thus, petitioners suggest, inter alia, that instead of looking to In re Bruce M., the court should be guided by In re L.S. & V.L. and In re W.S.D., which held that two unmarried persons in situations such as this could adopt jointly.3a The court agrees with the arguments of the petitioners and the government and will grant the Motion to Reconsider once the case is remanded from the Court of Appeals.

To analyze the issue, the court must first look to the statutory language and then, if the language is ambiguous, to the legislative history. D.C. Code § 16-302 states who may petition to adopt. It provides:

Any person may petition the court for a decree of adoption. A petition may not be considered by the court unless petitioner's spouse, if he has one, joins in the petition, except that 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. 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.4a

As is evident, the first sentence is simple and direct: "any person" may petition. "Any person," however, may mean two persons. Under D.C. Code § 49-202, "words importing the singular number shall be held to include the plural, and vice versa, except where such construction would be unreasonable."5a

The statute contemplates that two may adopt. First, § 16-302 discusses two persons adopting jointly within the context of those who are married. Second, § 16-305, which sets forth certain information that must be provided to adopt, specifically states that "if more than one petitioner joins in a petition, the requirements of this section apply to each."6a

The remaining provisions of D.C. Code § 16-302 do not direct a contrary Conclusion. They address specific concerns with respect to married petitioners. Specifically, the provision requiring a married person to secure the joint application of his or her spouse7a assures that both have agreed to undertake responsibility for the adopted child. In this regard, it is the only statutory limitation to the broad language of the first sentence of the paragraph. The second provision of the paragraph allows a step-parent to adopt without the spouse having to adopt his or her own natural child,8a thereby providing an exception to the marital requirement that both spouses must adopt. The plain and concise statutory language, therefore, permits the instant joint petition.9a

Although principles of statutory construction permit the analysis to end with an examination of the plain language of the statute, which the court concludes permits the joint petition, it would be ignoring history to do so. There can be no question that when the adoption statutes were revised in 1937 and 1954, to say nothing of when they were enacted over a hundred years ago, the authors did not envision gay or lesbian couples filing a joint petition to adopt.10a This historical perspective, however, does not end the inquiry either.

As the prior Superior Court decisions cited above indicate, the issue is whether two unmarried people can file a joint petition. The sexual orientation of the petitioners, to the extent relevant, is to be considered under the factors of D.C. Code § 16-309, which address the fitness of those seeking to adopt and the best interests of the child.

The legislative history of the adoption provisions suggests that the statute was meant to be broad, or "elastic," to meet changing circumstances.11a Both the 1937 House Report and the 1954 Senate Report make reference to the need to modernize the statute "based on years of experience by welfare workers and child placement agencies,"12a and, to some extent, found the need to explain further certain statutory requirements based upon confusion caused by the statute's simplicity.13a

Neither the breadth of the statute nor its legislative history, however, reflects a manifest intent to prohibit joint adoptions by unmarried persons. Indeed, when the legislature has chosen to limit who may avail themselves of certain statutory rights, it has done so with specificity.14a Such specification is absent here.

Moreover, as the Court of Appeals has recognized, "it is well settled that 'the object of a statute may be so general and its language so broad as to reach conditions fairly coming within its intent and sweep although such conditions did not come in to existence until years after its enactment."15a

The basic intent of the adoption law is to provide the "means by which a child could become a legal member of a family not his own."16a To this end, the original act consisted "of one short paragraph making the order of adoption mandatory if the Judge finds that a petitioner is a proper person to have custody of a child . . . ."17a This legislative intent is further reflected in decades of court decisions which instruct that the "decisive consideration is the best interest of the child."18a Thus, the "best interests" test sets an elastic standard. This standard, in turn, reflects a statutory framework which does not limit adoption, as long as the petitioner is fit and it is in the child's best interest.19a

It is well-settled that the meaning of the language of a statute should be disturbed only when there is a "'clearly expressed legislative intention' contrary to that language."20a Because there is no manifest legislative intent to the contrary, "'the literal interpretation of the statutory language is conclusive.'"21a

Finally, with respect to the factual record in this case, petitioners have demonstrated that it is in K.S.'s best interest that the petition be joint.

Accordingly, it is by the court this 4th day of May 1995.

ORDERED that the petitioners notify the Court of Appeals that the court will grant their Motion to Reconsider, if the case is remanded; and it is further

ORDERED that upon remand of the case, the Clerk will enter a notation in the jacket that the petitioner's Motion to Reconsider is granted, as of the date the case is received from the Court of Appeals; and it is further

ORDERED that upon remand of the case, the order entered on October 18, 1994, shall be vacated, effective on the date of the remand, and the Clerk is ordered to so note in the jacket.

BROOK HEDGE, JUDGE, (signed in chambers)

Steadman, Associate Judge, Dissenting, Expressio unius est exclusio alterius may encapsulate a result, but it also encapsulates a common-sense understanding of human thought and expression. Here, the statute focuses upon only one circumstance in which a joint *fn1 adoption may take place; viz., a petition by a married couple where both spouses must join. D.C. Code § 16-302 (1989 Repl.). To that provisions, one exception is provided; viz., where either the husband or wife is the natural parent of the prospective adoptee. Id. Where the legislature has concretely provided for a regimen for joint adoption, I think that an expansion of the regiment to other forms of joint adoptions should only be made by the legislature. *fn2

Appellants draw our attention to a provision contained in the general rules for interpretation and construction of District statutory law that the singular includes the plural. D.C. Code § 1-230 (1992 Repl.). But a marked difficulty with such an expansive interpretation of the adoption statute is in discerning any limiting principle within the statutory language that would not open up adoption to multiparty adoptions without regard to number. *fn3 Further, I fail to discern any convincing reason why the legislature would target adoptions by married couples, including a mandate of joint adoption, and yet leave completely unmentioned and untrammeled all other forms of joint adoptions, especially by those in a "committed personal relationship" -- leaving the latter for example free to seek to adopt jointly or not as they saw fit. *fn4 Finally, the apparent legislative intent to limit joint adoptions to married couples gleaned from the statute itself would seem to be supported by consideration of the broader background of then extant legislation on related subjects; for example, the distinctions drawn between legitimate and illegitimate children *fn5 and the criminalization of consensual fornication and sodomy. *fn6

I respectfully Dissent. *fn7

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