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In a major upset for gays and lesbians, a fractured en banc Pennsylvania Superior Court ruled Wednesday that a same-sex partner does not have standing to adopt his or her partner’s children. Taking a strict statutory construction approach, the 6-3 majority said it came down to the word “spouse.” The Adoption Act generally requires parental rights to be terminated before another parent may adopt. There is an exception when the parent’s spouse wants to adopt, however. Because Pennsylvania does not recognize same-sex marriages, the majority said, the partners at issue were not spouses and did not fit into the exception. The decision was issued in two almost identical opinions, In re Adoption of C.C.G. and In re Adoption of R.B.F. Superior Court Judge Correale Stevens authored the majority opinion in both. Judges James Cavanaugh, Zoran Popovich, Joseph Hudock, Kate Ford Elliott and Michael Eakin joined him. Superior Court Judges Justin Johnson, Debra Todd and John Kelly dissented. Ford Elliott filed a concurring opinion. The majority made it a point in the beginning of both opinions to say the decision was dictated by statute, not sexual orientation. “In determining whether appellant J.C.G. is permitted to adopt the children while appellant J.J.G. retains his parental rights, this court does not make a policy decision that appellant J.C.G. is ineligible to adopt because of appellants’ sexual orientation nor does this court base its decision on appellants’ sexual orientation,” Stevens wrote. “To the contrary, the matter is simply one of statutory application and interpretation of the Adoption Act.” And how did the majority interpret the Adoption Act? “After a careful review, we conclude that the Adoption Act’s clear and unambiguous provisions do not permit a non-spouse to adopt a child where the natural parents have not relinquished their respective parental rights, and, therefore, the act does not afford appellant J.C.G. a legally ascertainable interest, notwithstanding the equal protection clause,” Stevens said in the opinion. Attorney Christine Biancheria of Biancheria Erikson Maliver & Angell in Pittsburgh represented both sets of partners. She said she was concerned with the focus of the majority opinion. “They looked at same-sex marriages. That’s not what this case is about,” she said. The Women’s Law Project filed an amicus curiae brief, along with the Support Center for Child Advocates, the Lambda Legal Defense and Education Fund Inc. and the National Center for Lesbian Rights. Susan Frietsche, staff attorney at the Women’s Law Project, said she was disappointed by the ruling but encouraged by the “strength and clarity” of the two dissenting opinions.” She said the decision will resonate throughout the entire state. “Second-parent adoptions have been done widely in many counties in Pennsylvania. Letting this decision stand would put a stop to a common practice,” she said. ADOPTION ACT C.C.G. involved a man trying to adopt the children his partner adopted on his own. The lesbian partner in R.B.F. sought to adopt the twins her partner had given birth to. Both sets of appellants argued that Section 2312 of the Adoption Act allows “any individual” to become an adoptive parent, but the majority looked deeper into the act. Stevens cited Section 2711, which requires consent from the adoptee’s parent along with a statement that the parent understands he or she is giving up parental rights. Neither legal parent signed off on the statement since both wished to retain parental rights. Section 2903 provides an exception allowing a spouse to adopt without the adoptive parent having to give up parental rights. Stevens said the exception has been applied only to stepparents, however, and has never been expanded to individuals not in traditional marriages. In a footnote, he said the appellants could not be spouses because Pennsylvania does not recognize same-sex marriages. The situation was out of the court’s hands, Stevens said, because it is the legislature’s job to decide whether to expand the act to include same-sex partners. “We conclude that this court cannot liken same-sex partners to stepparents, thereby holding same-sex partners exempt from the provision terminating the natural parents’ rights, because Pennsylvania law does not recognize such unions,” he wrote in the C.C.G. opinion. “Simply put, since appellant J.C.G. is not appellant J.J.G.’s legal spouse, appellant J.C.G. cannot adopt the children without appellant J.J.G. relinquishing his parental rights. It is the legislature who has the power to promulgate legislation regarding adoption. This court does not create adoption rights, but determines whether such rights exist in a particular case.” Ford Elliott, in her concurring statement, said she thought the court was bound to follow the 1979 state supreme court decision In re Adoption of E.M.A., in which the justices supported only giving standing to spouses in qualified consent adoption cases. LIBERAL INTERPRETATION In a 19-page dissenting opinion, Johnson embraced a liberal interpretation of the Adoption Act in cases not involving the involuntary termination of parental rights. He started with Section 2711, the purpose of which, he said, is to make sure the parent relinquishing rights has done so intelligently and deliberately and to ensure the finality of that parent’s relationship with the child. “In the instant case, neither of these purposes is served by the majority’s wooden application of Section 2711,” Johnson said. He said the Adoption Act doesn’t allow different treatment for homosexual and heterosexual partners or even married and unmarried heterosexual partners. “My conclusion here is buttressed by the fact that the Adoption Act does not prohibit a joint adoption by an unmarried homosexual or heterosexual couple when the adoptee is not related to either petitioner,” he said. “In such a situation, the consent requirements of Section 2711 are not implicated, nor is the ‘spousal exception’ of Section 2903.” Johnson claimed the majority also ignored Section 2901′s directive that “unless the court for cause shown determines otherwise” an adoption cannot be granted unless parental rights have been terminated. That language grants trial courts some discretion, and the majority has taken that discretion away, he said. “To conclude, as the majority, that a trial court may not consider reasons why an adoption should be decreed, such as a child’s best interest, absent compliance with the termination provisions of Section 2711, elevates the ‘termination’ clause of Section 2711 and reads the ’cause shown’ clause of Section 2901 out of existence,” Johnson said. “Such an analysis, at best, renders the ’cause shown’ clause of Section 2901 superfluous.” He said the majority based its decision on that point on a line of cases involving the involuntary termination of parental rights. But that was a much different beast from the situation these same-sex partners presented, he said. When the involuntary termination of parental rights is not at issue, he said, the court must focus on the best interests of the child. Johnson also said the majority’s analysis wrongly centered on the relationship between the appellants, rather than the one between parent and child. “Regrettably, the majority turns a blind eye to the children’s interests by choosing to ignore the reality of this non-traditional family … ,” he said. “The majority has concluded that because same-sex marriages are not recognized in Pennsylvania, neither should second-parent adoptions. The majority’s focus is misguided and its analysis ill-founded.” Finally, Johnson said E.M.A. was not relevant because the plaintiffs in that case argued Section 2903, which states that when a parent consents to the adoption of his or her child by a spouse, that parent-child relationship will remain the same. But the appellants in C.C.G. and R.B.F. did not argue that section. Todd filed a separate dissenting opinion to stress how the majority’s decision would affect the children in the cases, who have been well taken care of by their adoptive parents’ partners. The decision will also have more far-reaching effects, she said. “The court of common pleas of at least 14 counties in Pennsylvania have permitted such second-parent adoptions in over 100 cases. Our court’s decision today, in effect, will deny hundreds of other children throughout our commonwealth the legal benefits of parenthood,” she wrote. Biancheria said she has to discuss with her client whether they will appeal, but it seems likely that they will. She said there’s a “better chance than usual” that the justices would accept the case considering the deep division in the Pennsylvania Superior Court. Frietsche agreed the odds for gaining allocatur review were good. “It’s always a very good sign when you get a good dissent, and here we have two,” she said. “Johnson’s opinion was more lengthy and detailed than Stevens’.”

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