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In a case of first impression, a split state appellate court has approved the adoption by a lesbian couple of a 5-year-old Cambodian girl. Despite the absence of specific legislative authority for adoption by two unmarried adults, the Appellate Division, Fourth Department, in Matter of Adoption of Carolyn B., CAF 03-01032, Friday reversed a Family Court’s order dismissing the adoption petition filed by Nancy Hackett and Sheila Sloan of Rochester. Justice Samuel L. Green, writing for the 3-2 majority, adopted the reasoning of the New York Court of Appeals in its 1995 ruling in Matter of Jacob, 86 NY2d 651. In that decision, a court approved the adoption of the biological child of one parent by an unmarried partner in each of a pair of adoption cases. The high court in Albany split 4-3 in those rulings. One case involved a man’s seeking to adopt his girlfriend’s son. In the other, a Putnam County woman was seeking to adopt her lesbian partner’s daughter. Although no one opposed the adoption petition submitted by Ms. Hackett and Ms. Sloan, Family Court Judge Gail A. Donofrio in Rochester dismissed it on the ground that they had not complied with Domestic Relations Law �110, which says who may adopt. The statute lists only an unmarried adult or a husband and his wife. Justice Green said there was no question that the law confers standing on either Ms. Hackett or Ms. Sloan to adopt Carolyn. The sexual orientation of the girl’s proposed parents was not significant, he said, because the goal of the statute was to encourage the adoption of as many children as possible. However, the statute “neither expressly prohibits petitioners, as an unmarried couple, from adopting Carolyn jointly . . . nor expressly permits them to do so.” Chief Judge Judith S. Kaye, writing for the majority in Jacob, had concluded that DRL �110′s language did not pose a statutory impediment to second-parent adoptions and that the legislative purpose of promoting the best interests of the child would be advanced “in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents.” “The same considerations [as articulated in Jacob] of legislative language, policy and history lead us to the conclusion that petitioners have standing to adopt Carolyn jointly under Domestic Relations Law �110,” Justice Green wrote. He was joined by justices Elizabeth W. Pine and Jerome C. Gorski. Presiding Justice Eugene F. Pigott, writing in dissent with Justice John F. Lawton, objected that the statute’s language mentions joint petitions only by married couples. “While it is true, as argued by petitioners, that courts have permitted such joint adoptions on the practical ground that what can be done separately ought to be permitted jointly . . . it is also true that there is a fundamental difference between a married couple and an unmarried couple that ought not be ignored,” he wrote. Citing the Court of Appeals’ ruling in a 1991 case in which a woman was denied visitation rights with a child borne by her former lesbian partner, Matter of Alison D. v. Virginia M., 77 NY2d 651, the judge noted that the court then deferred to the state Legislature and declined to read the term “parent” broadly in another section of the Domestic Relations Law. “In line with this reasoning, we submit that, as creatures of statute, adoption issues such as those presented on this appeal are best left to the Legislature,” he wrote. The presiding justice added that if the women’s motivation for filing a joint petition for adoption was to become her adoptive parents, they could do so by filing individually. Justice Green, however, rejected that suggestion as depriving Carolyn of two legal parents during the interval between the completion of separate petitions and as a waste of judicial resources. Ms. Hackett and Ms. Sloan have lived together for 22 years, had registered as domestic partners and participated in a “commitment ceremony” recognized by the Episcopal Church, Justice Green’s opinion noted. They had adopted another child in separate proceedings in 1996 and took Carolyn into their home in December 2001, after her first adoptive parents returned her to the adoption agency. Gregory A. Franklin of Ashcraft, Franklin & Young in Rochester, who represented the women, said even though the decision was split 3-2, no one had opposed the petition nor would anyone have standing to appeal further. The opinion remitted the matter to the Family Court in Rochester for a hearing on whether the adoption was in Carolyn’s best interests.

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