Date: Fri, 17 Nov 1995 12:00:22 -0500
From: svr1@cornell.edu (Suzanne V. Reine, Esq,)
Subject: liibulletin-ny -- Nov. 15, 1995

>Date: Wed, 15 Nov 1995 21:49:37 -0500
>From: "Peter W. Martin" <martin@LII.law.Cornell.EDU>
>X-Comment: Notification of Selected NY Court of Appeals decisions
>
>----------------------------------------------------------------
>                         AN E-BULLETIN
>       LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
>                   editors@lii.law.cornell.edu
>----------------------------------------------------------------
>                        liibulletin-ny
>
>Editor in Chief: Charles W. Gameros, Jr.
>Correspondence Editors: Richard J. Colosimo & John R. Mayer
>
>
>================================================================
>*FAMILY LAW - ADOPTION - UNMARRIED COUPLES
>
>SECOND PARENT ADOPTION WITH UNMARRIED COUPLES, INCLUDING
>HOMOSEXUAL COUPLES, ARE PERMITTED UNDER NEW YORK DOMESTIC
>RELATIONS LAW.
>================================================================
>
>[In re Jacob, 1995 N.Y. Int. 195 (November 2, 1995).]
>
>[SUMMARY]
>
>     In Jacob, the Court of Appeals considered appeals
>from two separate Appellate Division cases.
>
>     In the first case, unmarried appellants Roseanne M.A. and
>Stephen T.K. attempted to adopt Roseanne M.A.'s biological son
>Jacob jointly.  At the time of filing the adoption petition,
>appellants had lived together for three years (since Jacob was
>a year old).  Jacob's biological father gave his permission for
>the adoption; Roseanne M.A. held sole custody of Jacob; Stephen
>T.K. was employed with a yearly salary of $50,000; and Roseanne
>M.A. was a student.  The Family Court found that "the granting
>of an adoption in this matter may be beneficial for Jacob".   In
>Jacob, 210 670 N.Y.S.2d (1994), the Appellate Division
>nevertheless affirmed a family court dismissal for lack of
>standing on the basis that Domestic Relations Law Sect. 110 does
>not authorize adoptions by unmarried couples.
>
>     In the second case, appellant G.M. attempted to adopt Dana
>with the consent of P.I., Dana's biological mother who was
>G.M.'s lesbian partner of the past 19 years.   P.I. conceived
>Dana in 1989 through artificial insemination by an anonymous
>donor after the two women had decided that P.I. would have a
>child that they would raise together.   G.M. earned $38,000 a
>year, as a teacher;  P.I., $48,000, working at an athletic club.
>G.M. and P.I. shared parenting duties and arranged their work
>schedules around Dana's needs.  Further, a court-ordered report
>recommended that G.M. be permitted to adopt, the investigator
>finding that G.M.'s three grown children all accept Dana as
>"their baby sister" and that G.M. "provides [Dana] with a family
>structure in which to grow and flourish."  In Dana, 624 N.Y.S.2d
>634 (1995), despite rejecting the family court's ruling that G.M.
>had no standing to adopt Dana under D.R.L. Sect. 110, the
>Appellate Division affirmed the family court's dismissal of
>G.M.'s adoption petition on the basis that D.R.L. Sect. 117 would
>require the automatic termination of P.I.'s parental relationship
>upon Dana's adoption by G.M.
>
>[ANALYSIS]
>
>[1.)  ISSUES]
>
>1.a.)  Whether an unmarried couple has standing under New York
>Domestic Relations Law Sect. 110 to jointly adopt the female
>partner's biological child when she has sole custody of the
>child, the child's biological father consents to the joint
>adoption, and the unmarried couple has lived together for
>several years.
>
>1.b.)  Whether New York Domestic Relations Law Sect. 117
>automatically terminates the legal relationship between a child
>and that child's biological mother when the mother's lesbian
>partner of nineteen years adopts the child, where the child
>is conceived through anonymous artificial insemination, the
>mother and her partner have both planned the child's birth and
>raised the child together, and a court-ordered investigator
>recommends that the adoption should be allowed.
>
>[2.)  DISPOSITION]
>
>     The court reversed the Appellate Division in both cases,
>ruling that Sect. 110 authorizes both adoptions, and that
>Sect. 117 does not terminate the legal relationship between
>child and biological parent in these cases.
>
>[3.)  CASES CITED]
>
>+Costello v. Geiser, 85 N.Y.2d 103, 109 (N.Y. 1995).
>+In re Seaman, 78 N.Y.2d 451, 461 (N.Y. 1991).
>+Alison D. v. Virginia M., 77 N.Y.2d 651, 656 (N.Y.
>1991).
>+Braschi v. Stahl Assocs., 74 N.Y.2d 201, 210 (N.Y.
>1989).
>+In re Gregory B., 74 N.Y.2d 77, 91 (N.Y. 1989).
>+In re Best, 66 N.Y.2d 151, 156 (N.Y. 1985).
>+In re Paul P., 63 N.Y.2d 233, 237 (N.Y. 1984).
>+People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 325,
>327 (N.Y. 1981).
>+In re Malpica-Orsini, 36 N.Y.2d 568, 571-572 (N.Y.
>1975).
>+In re Eaton, 305 N.Y. 162, 165 (N.Y. 1953).
>+Kauffman & Sons v. Miller, 298 N.Y. 38, 44 (N.Y. 1948).
>+Betz v. Horr, 276 N.Y. 83, 87, 88-89 (N.Y. 1937).
>+In re Tammy, 619 N.E.2d 315, 320 (Mass. 1993).
>
>[4.)  STATUTES CITED]
>
>+N.Y. Dom. Rel. Law Sect. 110, 116, 117, 114, 32, 115-b
>(McKinney 1988 & Supp. 1995).
>+N.Y. Soc. Serv. Law Sect. 383-c (McKinney 1992 & Supp.
>1995).
>+N.Y. Const. art. VI, Sect. 13.
>+N.H. Rev. Stat. Ann. Sect. 170-B:4 (Butterworth 1994).
>+Fla. Stat. Ann. Sect. 63.042 (West 1985 & Supp. 1995).
>
>[5.)  OTHER SOURCES CITED]
>
>+Stephen B. Presser, The Historical Background of the
>American Law of Adoption, 11 J. Fam. L. 443 (1971).
>+Julia Frost Davies, Note, Two Moms and a Baby:
>Protecting the Nontraditional Family Through Second
>Parent Adoptions 29 New Eng. L. Rev. 1055 (1995).
>+Suzanne Bryant, Defining Family: Adoption Law and
>Policy: Second Parent Adoption A Model Brief, 2 Duke J.
>Gender L. & Pol. 233 (1995).
>
>[6.)  COMMENTARY]
>
>[6.a.) N.Y. Dom. Rel. Law Sect. 110 Authorizes an Unmarried
>Individual to Adopt the Biological Child of His or Her Partner]
>
>[6.a.1.) State of the Law Before Jacob]
>
>     New York courts have acknowledged that adoption was unknown
>at common law and is solely a creature of statute.  See, e.g.,
>Adoption of Robert Paul P., 63 N.Y.2d 233, 237 (N.Y. 1984).  This
>has led many courts to note the extreme deference owed to the
>legislative purpose and narrow language of the adoption statutes.
>See, id.;  Adult Anonymous II, 452 N.Y.S.2d 198, 199 (N.Y. Sup.
>Ct. 1982);  N.Y. Dom. Rel. Sect. 109-117 (McKinney's Supp.
>1995).  With respect to Sect. 110, this deference has generally
>not manifested itself in the form of blind adherence to the
>literal wording of the statutes.  Some courts have extended Sect.
>110 to cover atypical situations.  See, e.g., Adoption of
>Elizabeth, 509 N.Y.S.2d 746 (N.Y. Fam. Ct. 1986) (upholding
>adoption of one woman by another where only ten months separated
>the ages of the two).  However, most courts, notably higher
>courts, have done more than pay lip service to the concept when
>treating a case under Sect. 110.  See, e.g. Paul P., 63 N.Y.2d
>at 238 (holding no reasonable interpretation of adoption law
>could cover appellants who were living together in a homosexual
>relationship with none of the incidents of a parent-child
>relationship present).  See, also, Adoption of D.S., 609 N.Y.2d
>139 (N.Y.  Sur. Ct. 1994) (holding that the wording of the
>statute compelled a finding the that ability to complete an
>adoption terminated upon the death of the proposed father).
>Cf., Baby Boy C., 84 N.Y.2d 91, 99 (N.Y. 1994) (holding that
>statutory language did not authorize compelling a man to appear
>for consent hearing under N.Y. Dom. Rel. Sect. 115 even though
>he had commenced adoption with his wife).
>
>     The specific questions raised in Jacob concerning Sect. 110
>authorization of (i) second parent adoptions, the adoption of a
>child by the unmarried partner of the child's biological parent
>and/or, (ii) joint unmarried couple adoptions, the joint adoption
>of a child by a biological parent and his or her unmarried
>partner, have likewise been the subject of debate among courts and
>commentators.  The first reported New York decision to hold that
>Sect. 110 does not authorize either type of adoption, was Adoption
>of Hope, 571 N.Y.S.2d 182  (N.Y. Fam. Ct. 1991).  The court held
>N.Y. Dom. Rel. Sect. 110, the authority for adoption, did not
>specifically list unmarried couples as being eligible to jointly
>adopt a child. Id.
>
>     Hope did not settle this debate in courts of first instance.
>See, e.g., Evan, 583 N.Y.S.2d 997, 999 (N.Y. Sur. Ct. 1992)
>(allowing joint adoption of child by the biological mother and
>her life partner, noting that although Sect. 110 was "not
>literally applicable here, the underlying policy . . . [of
>determining the best interest of the child] supports the adoption
>in this case");  Adoption of Caitlin, 622 N.Y.S.2d 835 (N.Y. Fam.
>Ct. 1994) (allowing second parent adoption because petitioners
>as unmarried persons were covered by the language of Sect. 110).
>Commentators have also expressed conflicting views on second
>parent and joint unmarried couple adoptions.  Compare N.Y. Dom.
>Rel. Law Sect. 110, Scheinkman, Supp. Prac. Commentary, 84
>(West Supp. 1995) (noting that although Adoption of Caitlin and
>Evan both considered primarily the child's best interest, Hope
>correctly noted that the courts should first consider whether
>Sect. 110 specifically authorizes adoption by an unmarried
>couple) with Sonja Lasen, Adoption of Child By Same-Sex
>Partners, 27 A.L.R. 5th 54, 66 (1995) (discussing the use of the
>best interest of child analysis in Evan and implying it was,
>at least with respect to gay or lesbian partners, a summary
>of New York's law) and Suzanne Bryant, Second Parent Adoption:
>A Model Brief, 2 Duke J. Gender L. & Pol'y 233, 240 (1995)
>(noting that with the decision in Evan, "courts in New York
>began granting second parent adoptions" and implying a best
>interest of child analysis is used to obtain that result).
>
>     A unique procedural aspect of adoptions may explain the
>confused state of the law on joint and second parent adoptions.
>Adoption petitions may be unopposed, allowing courts of first
>instance to make favorable decisions that are not subject to
>review by appellate courts.  Thus, while there are several
>lower court decisions allowing these types of adoptions, these
>decisions do not necessarily represent New York's law, because
>they were effectively unreviewable by the appellate courts.
>
>[6.a.2.) Effect of In Re Jacob on the Law]
>
>     Although the case may lead to alternative readings, neither
>the court's Sect. 110 holding nor its reasoning significantly
>deviate from traditional analysis.  The court indicates its
>intent to construe Sect. 110 narrowly, answering whether an
>unmarried partner "can become the child's second parent by means
>of adoption," and implying that the issue of a joint unmarried
>adoption is not directly at issue.  Additionally, the court
>notes that although one of the adoption petitions being
>considered was filed jointly, "this procedural route should not
>preclude Stephen T.K. -- an adult unmarried person -- from
>adopting [the child]."  By referring to the joint filing by an
>unmarried couple as a procedural aspect, and noting that this
>procedural shortcoming can be avoided by individual filing,
>the court implies it is not expanding the meaning of Sect. 110
>to allow joint unmarried adoptions.  Under the terms of its
>analysis, the court does not explicitly give Sect. 110 a reading
>that allows an unmarried couple "together" to adopt another
>person.  Viewed in this light, the court's holding does not
>significantly deviate from prior Sect. 110 case law.
>
>     Further, the court notes that although other sections at
>issue may be ambiguous, a plain reading of Sect. 110 clearly
>allows an adult unmarried person to adopt another person.
>However, the court's analysis does not end here, as a complete
>discussion of Sect. 110 traditionally considers more than the
>letter of the law.  See Paul P., 63 N.Y.2d at 238 (holding that
>unreasonableness of proposed adoption in light of legislative
>history was an additional consideration for the court).
>
>     To augment its claim that the proposed adoptions fall
>under the letter of the law, the court discusses those adoptions
>in light of the purpose and history of New York adoption law.
>First, the court notes that the word, "together," in Sect. 110
>should not be taken as "enforcing a policy in favor of marriage."
>Rather, this word was inserted by the legislature to insure that
>one spouse cannot adopt without the knowledge and consent of the
>other.  Second, the court discusses the history of amendments to
>Sect. 110, noting that they "evidence[] a successive expansion
>of the categories of persons to adopt regardless of their
>marital status or sexual orientation."
>
>     The court also discusses a concept normally at the forefront
>of adoption proceedings: the concern for the best interest of the
>child.  This concept may be useful in deciding whether a person
>is a suitable parent after it has been determined that the person
>is eligible to adopt under Sect. 110;  but its utility in
>determining whether a person is eligible to adopt under Sect.
>110 is questionable.  See N.Y. Dom. Rel. Law Sect. 110,
>Scheinkman, Supp. Prac. Commentary at 84 (West Supp. 1995)
>(noting that although courts consider the child's best interest
>in adoption proceedings, it is only after deciding whether Sect.
>110 specifically authorizes adoption by that person or persons).
>Because the court's discussion of best interests is not
>explicitly within its Sect. 110 analysis, it is uncertain
>whether the court intended that the best interest test be used as
>part of Sect. 110 analysis.
>
>[6.a.3.) Questions Unanswered]
>
>     Although the court has clearly held that an unmarried
>individual may, under Sect. 110, adopt the biological child of
>his or her "partner", the court has not indicated if, in the
>future, it will make a difference whether the petition is filed
>by that individual or jointly with the biological parent.  Sect.
>110 would not on its face appear to allow for joint unmarried
>adoptions, but in footnote two, the court states that the
>"procedural route" chosen should not defeat the prospective
>adoptive parent's petition.  Perhaps this suggests that the
>lower courts permit the terms of the petition to be changed in
>order that the adoption might proceed.
>
>     Another question not answered is whether a biological parent
>must be involved in the adoption.  Both Jacob and Dana involved
>adoption by the biological parent's partner.  It remains to be
>seen whether courts will allow similar adoptions in situations not
>involving a biological parent.
>
>     A more remote question left unanswered by the court concerns
>the total number of parents which will be allowed to adopt.  By
>speaking of second-parent adoptions and referring often to the
>benefits of a household with two parents, however, the court may
>be implying that third or fourth parent adoptions might not be
>allowed.
>
>[6.a.4.) Dissent]
>
>     The dissent considers many of the same issues as the
>majority within its Sect. 110 analysis, but reaches the opposite
>conclusion.  First, the dissent argues that a plain reading of
>the statute does not authorize adoption by the petitioners.
>"Petitioners' burden, ignored by the Majority, is to identify a
>source of statutory authorization. . . [rather than show] that
>nothing in the. . . language. . . precludes their adoption
>effort."  Second, the dissent argues that even if the wording of
>Sect. 110 is ambiguous, the statute's legislative history
>"reveal[s] no legislative intent to extend the right and
>responsibility of adoption to cohabitating unmarried adults."
>Third, the dissent notes that the majority reading of Sect. 110
>would conflict with other family law statutes.  For instance,
>the effective granting of legal recognition to the relationship
>between the unmarried couples is in conflict with N.Y. Dom. Rel.
>Sect. 11 as an expression of the state's "longstanding public
>policy refusal to recognize at-will common law relationships
>as marriages."  Finally, the dissent criticizes the majority's
>use of the "child's best interests" standard, noting that
>"[b]efore a court can arrive at the ultimate conclusion that an
>adoption is in the best interest of a child. . . it is first
>obliged to discern whether the particular application is
>legislatively authorized."
>
>[6.b.) N.Y. Dom. Rel. Law Sect. 117 Does Not Terminate Parental
>Rights in the Case of a Biological Parent Who Both Consents to
>a Second Parent Adoption and Wishes to Retain Parental Rights.]
>
>[6.b.1.)  State of Law Before Jacob]
>
>     The relevant statute reads: "After the making of an order
>of adoption the natural parents of the adoptive child shall be
>relieved of all parental duties toward and of all
>responsibilities for and shall have no rights over such adoptive
>child or to his property by descent or succession, except as
>herein stated." N.Y. Dom. Rel. Law Sect. 117(1)(a) (McKinney
>1988 & Supp. 1995). Section 117(1)(d) provides an exception when
>a natural or adoptive parent consents to adoption by a
>step-parent.
>
>     There are few reported New York lower court cases, and no
>previous appellate cases, which have approached the question of
>the operation of Sect. 117 under facts similar to those of Jacob
>and Dana. Where Sect. 117 has been considered in a similar
>context, the lower courts have used several different approaches
>in declining to apply it.  Some of these were employed by the
>Court of Appeals in Jacob.
>
>     In both A.J.J., 438 N.Y.S.2d 444, at 446 (Sur. Ct. 1981)
>(finding that the natural father, although never married to the
>mother, could adopt the child without severing the mother's
>rights) and Evan 583 N.Y.S.2d 997, at 1000 (Sur. Ct. 1992)
>(holding that a mother's unmarried lesbian partner could adopt
>the child without severing the mother's rights), the court
>invoked its equitable power under special circumstances to
>"confer back to the consenting mother joint custodial rights and
>responsibilities in the child." Id. at 1000. See also Russell G.
>Donaldson, Annotation, "Natural Parent's Parental Rights as
>affected by Consent to Child's Adoption by other Natural Parent,"
>37 A.L.R. 4th 724 (1994) and Sonja Larson, Annotation,
>"Adoption of Child by Same-Sex Partners," 27 A.L.R. 5th 54
>(1995). In Hope, 571 N.Y.S.2d 182 (Fam. Ct. 1991) (holding an
>unmarried partner could not adopt children) the court ended its
>analysis when it found no statutory authority allowing the
>mother to retain her rights after such an adoption.
>
>    The "best interests of the child" standard has also been
>used to defeat the operation of Sect. 117. See A.J.J. 438
>N.Y.S.2d, at 446, Evan 583 N.Y.S.2d, at 1000.  The Court of
>Appeals used best interest analysis in Sibley v. Sheppard, 54
>N.Y.2d 320, 325 (N.Y. 1981) (holding filial grandparents have
>standing to petition for visitation regardless of the operation
>of Sect. 117's legal effect on the child's natural parents).
>The court addressed an arguable "inconsistency in the
>termination of some rights, but not others, between the
>adoptive child and the natural family.  If such exists, the
>desire for consistency in the law should not of itself sever
>the bonds between the child and the natural relatives." Sibley
>v. Sheppard, 54 N.Y.2d, at 326.
>
>     Courts have also "constructively" applied the step-parent
>exception in Sect. 117(1)(d) in order to nullify the operation
>of Sect. 117(1)(a).  For instance:  "The child's best interests
>are served by permitting the natural father to adopt in the
>same manner as if the petitioning father were the stepfather of
>the adoptive child by marriage to the natural mother," A.J.J.,
>438 N.Y.S.2d, at 446.  The Evan court subtly refers to the
>mother and her female partner as co-parents: "[W]here the
>adoptive and biological parents are in fact coparents such as
>the instant case, New York Law does not require a destructive
>choice between the two parents", 583 N.Y.S.2d at 1000. This
>"constructive stepparent" exception appears to hinge on an
>individualized finding that the unmarried second parent
>petitioning for the adoption is a "de facto" parent.   In Dana,
>624 N.Y.S.2d 634, 636 (N.Y. App. Div. 1995), the Appellate
>Division explicitly declined to apply this "stepparent
>exception" in the case of unmarried persons citing, curiously
>enough, A.J.J. (applying stepparent exception to unmarried
>second parent).
>
>     Some courts have characterized Sect. 117  as "essentially a
>succession statute" Robert K. Scranton, 339 N.Y.S.2d 708, 711
>(N.Y. App. Div 1973) (holding that grandparents have standing
>to petition for visitation rights notwithstanding operation of
>Sect. 117). The Court of Appeals similarly observed that the
>"bulk of the statute refers to intestacy and succession." Sibley
>v. Sheppard 54 N.Y.2d, at 325.  This characterization of Sect.
>117 minimizes the need to apply its language strictly in second
>parent adoption cases.
>
>[6.b.2.) Interpretation of Sect. 117 in Jacob]
>
>     The court begins its statutory interpretation by reinforcing
>the Court of Appeals precedent calling for adoption statutes to
>be read literally only to the extent that the interpretation is
>consistent with the broad legislative purpose inherent in
>adoption itself, the best interest of the child. See Robert Paul
>P., 63 N.Y.2d 233 (N.Y. 1984) (denying the adult adoption of an
>adult man by his homosexual lover as against the interest of
>the statute, regardless of its conformity to statutory language),
>Best, 66 N.Y.2d 151 (N.Y. 1985) (declining to construe the
>adoption statute strictly in light of powerful policy
>considerations regarding inheritance), and Sibley  v. Sheppard,
>54 N.Y.2d 320 (holding that filial grandparents have standing to
>petition for visitation, regardless of the operation of Sect.
>117's legal effect on the child's natural parents).  The court
>next analyzes the best interests of the children in the current
>case by looking at both economic and emotional advantages and
>disadvantages in adoption. The court considers best interest
>not merely in the narrow sense of the particular facts, but in
>the broad sense of generally interpreting the statute.
>
>     The court characterizes Sect. 117 as primarily a succession
>statute, reinforcing this interpretation by citing statutory
>exceptions inconsistent with the broad application of the
>statute.  Notable is a recently enacted statute allowing adoption
>surrender agreements to include reservations of rights by the
>natural parents.  N.Y. Soc. Serv. Law Sect. 383-c(8)(5)(b)(ii)
>(McKinney Supp. 1995).  Based on this interpretation, the court
>concludes Sect. 117 does not "require termination in the
>situation where the biological parent, having consented to the
>adoption, has agreed to retain parental rights and to raise the
>child together with the second parent."
>
>     In essence the court has held that a "stepparent" exception
>exists when the custodial parent is: a) the biological parent,
>b) consents to the adoption, and c) agrees to retain parental
>rights.  This limited exception preserves the overall effect of
>Sect. 117, "terminating a biological parent's rights in the
>majority of adoptions between strangers -- where there is a
>need to prevent unwanted intrusion by the child's former
>biological relatives to promote the stability of the new
>adoptive family."
>
>[6.b.3.) Effect on Future Cases]
>
>     The Court interprets Sect. 117 as primarily a succession
>statute with a narrow "stepparent" exception limited to those
>cases where the adoptive parent has the consent of the biological
>parent.  This holding seems to provide a clear rule for future
>applications of Sect. 117 in unmarried second parent adoption
>situations.
>
>[6.b.4.) Questions Unanswered]
>
>     Jacob does not exclude the operation of any of the other
>judicial approaches previously used by the lower courts to
>preserve a mother's parental rights.  These approaches have
>typically hinged on court discretion and unusual
>circumstances.  The extent to which lower courts will continue
>to use these is an open question.
>
>     N.Y. Comp. Codes R & Regs Tit. 18, Sect. 421.(h)(2)(1992)
>provides that adoption "[a]pplicants shall not be rejected
>solely on the basis of homosexuality," resulting in the
>possible expansion of the stepparent exception to the case of
>the adoption of a child by two homosexual parents, neither of
>whom is the child's biological parent.
>
>[6.b.5.) Dissent Response to Majority's Interpretation of
>Sect. 117]
>
>     The dissent rejects the characterization of Sect. 117 as
>merely applying to succession and inheritance, and reads the
>statute to extinguish parental rights after adoption in all
>cases, absent narrow statutory exceptions. The dissent is not
>persuaded that the recent development of the "open adoption"
>policy in N.Y. Soc Serv. Law Sect. 383-C(5)(b)(ii) works
>substantive changes in Sect. 117.  The dissent maintains that
>"Section 117 should not be relegated to, nor was it designed to
>operate with, case-by-case personal exemptions from universally
>and equally applied principles of statutory law or
>precedentially governing authorities."  It also attacks the
>majority's best interest analysis with respect to the
>prospective adoptive parents: "Their relationships lack
>permanency and the State has not endowed them with the benefits
>and enforceable protections that flow from relationships
>recognized under color of law."  The dissent would have
>affirmed the findings of the Appellate Division because "those
>appropriate judicial determinations are based on what the
>Legislature actually enacted and specifically authorized."
>
>[6.c.)  Possible Constitutional Issues]
>
>     In dicta, the majority refers to possible constitutional
>problems that would arise under a stricter interpretation of
>Sect. 117, noting that the option of marriage is unavailable to
>the lesbian couple in Dana, and that that could constitute
>unequal treatment of the child involved.  Among other cases,
>the majority cited Gomez v. Perez, 409 U.S. 535, 538 (1972)
>(holding that where state denied judicially enforceable right
>of child support to children born out-of-wedlock, "a state may
>not invidiously discriminate against illegitimate children by
>denying them substantial benefits accorded children
>generally") and Burns v. Miller Constr., 55 N.Y.2d 501, 507-10
>(1980) (holding that it violates equal protection for an
>unacknowledged child born out-of-wedlock to be denied death
>benefits under workers' compensation law).
>
>     The dissent responds by noting that no constitutional
>issue was raised before the lower courts, that the case did not
>"squarely and thoroughly" present a constitutional issue, and
>that the court's failure to observe the presumption of
>constitutionality accorded to duly enacted legislation betrayed
>judicial legislation "under the guise of interpretation".
>
>[6.d.) Second Parent Adoption in Other Jurisdictions]
>
>     A number of other states allow second parent adoptions for
>unmarried, heterosexual couples. See, e.g. Adoption of a Child
>by A.R., 378 A.2d 87 (N.J.Super. Ct. Pro. Div. 1977) (allowing
>unmarried biological father to adopt without terminating rights
>of legal parent/biological mother).  Courts have also granted
>"stranger adoptions" to openly lesbian and gay individuals.
>See Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990). It is
>possible that numerous adoptions have been granted to gays and
>lesbians without their sexual orientation becoming an issue.
>Only two states have statutes specifically excluding gays and
>lesbians from adopting based on their sexual orientation.  Fla.
>Stat. Ann. Sect. 63.042(3) (1994) ( "No person eligible to
>adopt under this statute may adopt if that person is a
>homosexual"); N.H. Rev. Stat. Ann. Sect. 170-B:4 (1994) ("[A]ny
>individual not a minor and not a homosexual may adopt . . .").
>
>     Courts in other states have also addressed the topic of
>second parent adoptions by homosexuals.  Compare Adoption of
>Two Children by H.N.R., 1995 N.J. Super. Lexis 516 (Oct. 27,
>1995) with Angel Lace M., 516 N.W.2d 678 (Wis. 1994) (divided
>decision of state supreme court). However, the  New York Court
>of Appeals is now one of only three state supreme courts
>allowing lesbians to adopt the biological children of their
>partners.  See Adoptions of BLVB and ELVB, 628 A.2d 1271 (1993)
>(Vermont Supreme Court interpreting a statute to allow a lesbian
>to adopt the children of her partner without terminating
>biological mother's rights); Adoption of Tammy, 619 N.E.2d 315
>(1993) Massachusetts Supreme Court (using the best interest of
>child in interpreting statute to allow for adoption of child
>by lesbian partner of biological mother). For an in depth
>analysis of second parent adoption, see Suzanne Bryant,
>Defining Family: Adoption Law and Policy: Second Parent
>Adoption A Model Brief, 2 Duke J. Gender L. & Pol. 233 (1995)
>and Julia Frost Davies, Note, Two Moms and a Baby:  Protecting
>the Nontraditional Family Through Second Parent Adoptions,
>29 New Eng. L. Rev. 1055 (1995).
>
>[Prepared By:]
>
>Kathryn W. Becker,  97
>Quentin C. Faust,  97
>James D. McCann,  97
>Stephen A. Mutkoski Jr.,  97
>Charles Samuelson,  96