On May 20 the Supreme Court of the Virgin Islands ruled that the Superior Court erred when it dismissed a second-parent adoption petition on the ground that the Virgin Islands did not recognize the Canadian same-sex marriage of the petitioners and granting the co-parent’s petition would require terminating the parental rights of the birth mother. In re L.O.F. & N.M., 2015 V.I. Supreme LEXIS 13. Eschewing a literal reading of the archaic adoption statutes, the court held that the policy of deciding adoption petitions in the best interest of children provides a basis to “waive” the termination of parental rights when a same-sex co-parent (or stepparent, for that matter) petitions to adopt a child.
The biological mother of L.O.F. and N.M. and her same-sex partner were married in Canada in 2007, and have raised their children together in St. Croix, V.I. The children were conceived through anonymous sperm donations, the donors having necessarily waived any parental rights. The women filed an adoption and name-change petition in the Superior Court in December 2012, asking the court to grant an adoption in the partner’s favor without affecting the parental rights of the birth mother so that “all parental rights and obligations [are] shared equally.” The petition described this arrangement as a “second-parent adoption,” a procedure approved in many court decisions in the United States. However, Superior Court Judge Denise A. Hinds Roach denied the petition, holding that because the petitioners “filed together as spouses” under “a limited ‘spousal’ or ‘stepparent’ provision in the V.I. adoption statutes and the V.I Code limits marriage to different-sex couples, the court could not grant the adoption. After the superior court denied a motion for reconsideration, the petitioners appealed to the Supreme Court.
Writing for the unanimous court, Justice Maria M. Cabret found that Judge Hinds Roach had misconstrued the V.I. adoption provisions. Indeed, the court found that a literal interpretation of those provisions would disallow ordinary stepparent adoptions. This is because the statute authorizes adoptions only by single people or married couples, and apparently requires terminating the parental rights of natural parents upon the adoption of their children. Reviewing the history of the V.I. statute, first enacted in 1921 and later incorporated without change in the V.I. Code in 1957, Justice Cabret pointed out that divorce and remarriage were not common phenomena in the Virgin Islands in those days so provision for stepparent adoptions was not made. However, the court went on to say that a literal reading of the statutory language should be rejected if it would produce absurd results or undermine the statutory objective, which is to “consider the best interests of the child when making decisions that concern the child.”
Quoting liberally from U.S. state court decisions and law review articles, the court embraced the logic of allowing second-parent adoptions by same-sex partners regardless whether V.I. recognizes same-sex marriages. “It is clear that the best interests of the children ‘would certainly 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,’” wrote Cabret, quoting from an opinion by former N.Y. Chief Judge Judith Kaye for the New York Court of Appeals. “Granting an adoption in favor of a stepparent or second parent who already serves as the child’s functional parent, without terminating the rights of the original parent, furthers the child’s best interests because the child will be able to ‘preserve [the] unique filial ties’ to the stepparent or second parent in the event she divorces or separates from the original parent, or the original parent predeceases the stepparent or second parent,” continued Justice Cabret, this time quoting from a ruling by the Massachusetts Supreme Judicial Court.
The court found that applying the V.I. statutory provision requiring termination of the natural parent’s rights upon an adoption would “actively undermine the best interests of children such as L.O.F. and N.M.F., and thus ‘undercut the legislature’s clear intent.’” This would produce an “absurd outcome,” which is to be avoided in construing statutes. “Allowing an adopting parent to waive enforcement of this provision and maintain the legal rights of the natural parent when it is in the best interests of the child to do so also follows the widely recognized principle that adoption statutes ‘must be strictly construed to protect the rights of natural parents,’” the court continued, noting that adoption of children was not known at common law and is a creature solely of statute in common law jurisdictions. “So while we must not interpret the adoption statutes to undermine the legislative purpose of promoting the best interests of the child, we must also remember that ‘adoption is not part of our common law tradition,’ and instead works to abrogate the common law rights of natural parents.”
Since, in this case, both parties clearly consent to an adoption under which the natural parent will continue to be a legal parent of the children, the Superior Court should approve the petition on remand if it finds that the adoption will be in the best interests of the children.
The court pointed out that the logic of its decision applied regardless whether the Virgin Islands would recognize a same-sex marriage contracted in Canada, so there was no need to consider the petitioners’ argument that V.I. was required to recognize their marriage. “But we note that the United States Supreme Court will likely decide in the near future whether statutes like 16 V.I.C. sec. 313 are constitutional,” the court observed in a footnote, citing to the grant of certiorari in Obergefell v. Hodges. Any decision by the U.S. Supreme Court on this question will be binding in the Virgin Islands, of course, under its commonwealth status.