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In a groundbreaking decision that is a win for gays and lesbians across the commonwealth, the Pennsylvania Supreme Court has held that a child may be adopted by his or her legal parent’s unmarried same-sex partner. “There is no language in the Adoption Act precluding two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child who had no legal parents,” Chief Justice Stephen A. Zappala wrote for the unanimous court in In Re: Adoption of R.B.F. and R.C.F. “It is therefore absurd to prohibit their adoptions merely because their children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition.” The opinion filed Tuesday reverses two decisions from Pennsylvania’s Superior Court. The court remanded the cases to the Lancaster County and Erie County, Pa., trial courts for further review. Justice Russell M. Nigro concurred in the result without filing a separate opinion. Justice J. Michael Eakin did not participate in the decision. The decision is a win for Christine Biancheria of Biancheria, Eriksen, Maliver & Angell in Pittsburgh; Sandra Edwards Gray of Pyfer & Reese in Lancaster; Stacey Sobel and Tiffany L. Palmer of the Philadelphia-based Center for Lesbian and Gay Civil Rights; and Susan Frietsche and David S. Cohen of the Women’s Law Project in Philadelphia. The issue before the court was whether the Adoption Act requires a legal parent to relinquish his or her parental rights in cases in which a same-sex partner seeks to adopt the legal parent’s child. “We hold that Section 2901 of the Adoption Act, 23 Pa.C.S. Section 2901, affords the trial court discretion to determine whether, under the circumstances of a particular case, cause has been shown to demonstrate why a particular statutory requirement has not been met,” Zappala wrote. “As appellants’ adoption petitions were summarily dismissed, they did not have the opportunity to demonstrate cause why the relinquishment provision need not be met here.” The case out of Erie County deals with same-sex male partners who have been domestic partners since 1982. On Oct. 24, 1991, J.J.G. adopted C.C.G.; he then adopted Z.C.G. on April 21, 1999. After the adoption, the partners lived together with the children as a family. In May 1999, J.C.G., J.J.G.’s domestic partner, sought to adopt both children. The trial court denied the adoption petition and a split en banc Superior Court affirmed that decision. The Superior Court concluded that the court could not create judicial exceptions to the Adoption Act. “The court held that the clear and unambiguous provisions of the Adoption Act do not permit a non-spouse to adopt a child where the legal parents have not relinquished their respective parental rights,” Zappala wrote. “It relied on Section 2711(d) of the Adoption Act, which states that the consenting parent of an adoptee under the age of 18 must provide a statement relinquishing parental rights to his or her child.” In consenting to the adoption, J.J.G. had specifically omitted the part of the form relinquishing his parental rights. The court said the omission rendered the consent invalid. The case out of Lancaster County deals with same-sex female partners who have been domestic partners since 1983. C.H.F. conceived through in vitro fertilization and gave birth to twin boys in March 1997. In April 1998, C.H.F. and her partner, B.A.F., filed a petition for B.A.F. to legally adopt the boys. C.H.F. also omitted her relinquishment of parental rights from the consent form. The trial court dismissed the petition with prejudice, and the Superior Court affirmed. There is an exception to the relinquishment provision in the Adoption Act that provides: “Whenever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child shall remain whether or not he is one of the petitioners in the adoption proceeding.” The court said the language of the Adoption Act is clear that a legal parent must relinquish his or her parental rights to consent to the adoption of his or her child by a non-spouse. The high court also said the spousal exception did not apply because the commonwealth does not recognize a marriage between same-sex couples. The high court examined a 1982 amendment to the spousal exception which states: “Unless the court for cause shown determines otherwise, no decree of adoption shall be entered unless the natural parent or parents’ rights have been terminated, the investigation required by Section 2535 (relating to investigation) has been completed, the report of the intermediary has been filed pursuant to Section 2533 (relating to report of intermediary) and all other legal requirements have been met. If all legal requirements have been met, the court may enter a decree of adoption at any time.” The appellants argued that the amendment gave trial courts discretion to waive a particular statutory requirement. “After careful consideration, we agree with appellants that there is no reasonable construction of the Section 2901 ’cause shown’ language other than to conclude that it permits a petitioner to demonstrate why, in a particular case, he or she cannot meet the statutory requirements,” Zappala wrote. “Upon a showing of cause, the trial court is afforded discretion to determine whether the adoption petition should, nevertheless, be granted. “The exercise of such discretion does not open the door to unlimited adoptions by legally unrelated adults. Such decisions will always be confined by a finding of cause and a determination of the best interests of the child in each individual case.” The court also said an appellate court may review the trial court’s decision for an abuse of discretion. Zappala stressed that the high court’s decision was not creating an exception to the requirements of the Adoption Act, but rather interpreting the plain meaning of the language drafted by the Legislature. The court said the Legislature’s language, in response to an earlier supreme court decision, takes into account certain circumstances in which the requisite consent may not be necessary. “Furthermore, a contrary interpretation of the ’cause shown’ language would command an absurd result as the Adoption Act does not expressly preclude same-sex partners from adopting,” Zappala wrote. The high court, therefore, vacated the orders of the Superior Court and remanded both cases so the trial courts could hold evidentiary hearings to determine whether the appellants could show cause as to whether the Adoption Act’s relinquishment of parental rights requirement would be fulfilled or is deemed unnecessary under the circumstances of each case. The court indicated in a footnote that because it found the Adoption Act to provide the relief sought, the court need not address any constitutional issues.

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