Adoption Law Seminar

Prof. Rhonda Wasserman

Readings for Week 4 (Tuesday, February 8, 2005)

Readings for Week 4 (Tuesday, February 8, 2005)

23 Pa.C.S. §§ 2701(7), 2711(a)(3) & (d)(1), 2901 & 2903 (2004)

A petition for adoption shall set forth:

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(7) That all consents required by section 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which such consents are not required.

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(a) GENERAL RULE.-- Except as otherwise provided in this part, consent to an adoption shall be required of the following:

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(3) The parents or surviving parent of an adoptee who has not reached the age of 18 years.

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(d) CONTENTS OF CONSENT.--

(1) The consent of a parent of an adoptee under 18 years of age shall set forth the name, age and marital status of the parent, the relationship of the consenter to the child, the name of the other parent or parents of the child and the following:

I hereby voluntarily and unconditionally consent to the adoption of the above named child.

I understand that by signing this consent I indicate my intent to permanently give up all rights to this child.

I understand such child will be placed for adoption.

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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.

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§ 2903. Retention of parental status

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.

COMMENT

A stepparent who seeks to adopt a minor stepchild under this Article has to deal with fewer as well as somewhat different legal requirements than does an individual who seeks to adopt an unrelated minor. These differences are justified because in the typical stepparent adoption, the minor has been living with the stepparent and the stepparent's spouse (the minor's custodial parent), and the adoption merely formalizes a de facto parent-child relationship. The minor is not physically transferred to a new and "strange" custodial environment, but remains in the household where the minor may have already lived for some time. When a stepparent adopts, an evaluation of the stepparent's suitability as an adoptive parent and an accounting of adoption- related expenses is less important than in the adoption-by-strangers scenario because (1) the minor's custodial parent has in effect "selected" the adoptive stepparent on the basis of personal knowledge; (2) the custodial parent is not subject to a pre- or post-placement evaluation under existing adoption or custody laws; (3) a denial of the petition to adopt is not likely to alter the existing custodial arrangement; (4) the expense and hassle of undergoing an evaluation or home-study may be disproportionate to any benefit for the minor which might result from an evaluation, but, see Comment to Section 4-111; and (5) the concerns about unlawful payments to birth parents or intermediaries which are expressed about other types of adoptions are arguably not present in stepparent adoptions, although, in fact, "pay-offs" to noncustodial parents may occur with some frequency in the form of private agreements not to seek child support arrears from the noncustodial parent.

Although data on the number of adoptions completed in this country each year are unreliable, it is estimated that well over half of the adoptions that do occur are by stepparents. This is not surprising given that: (1) remarriages account for nearly 46% of all marriages entered into in 1990, compared to 31% in 1970; (2) more than 1 million children are involved in a divorce each year; (3) in several million families, at least one spouse has had an out-of-wedlock child before getting married; and (4) nearly 7 million children live in stepfamilies, and these children are approximately 15% of all children under 18 living in two parent families. What is surprising is that, although stepparent adoptions represent more than 50% of all adoptions, they occur in only a small percentage of the "blended" households headed by a custodial parent and a stepparent. This small percentage may be due, at least in part, to dissatisfaction with the ways in which existing adoption laws are applied to adoptions by stepparents. Typically, the custodial parent is allowed to retain his or her parental status, the adoptive stepparent acquires the status of a legal parent, and the noncustodial parent's relationship to the child is cut off for most purposes. An exception occurs in those States that, like this Act, follow the approach of the Uniform Probate Code (UPC) and permit the child to continue to inherit from and through the former noncustodial parent. For stepfamilies in which a child maintains emotional ties to a noncustodial parent or to the noncustodial parent's family, the traditional approach of completely severing all ties to the noncustodial parent and that parent's family is not necessarily beneficial for the child, and is not always preferred by the parents or the stepparent. The growing body of literature on stepfamilies, while acknowledging that children often thrive in "blended" families, also points to the persistence of friction between children and stepparents and to the desire of many children to maintain contact with noncustodial parents and grandparents with whom they had a prior relationship.

Instead of treating the procedures for stepparent adoptions merely as exceptions to the more general rules pertaining to other adoptions, this Act, and particularly this Article, takes an affirmative approach to stepparent adoptions. By allowing post-adoption visitation by noncustodial former parents, siblings, or grandparents, this Article may encourage an increase in the number of stepparent adoptions in proportion to the total number of blended families. This would give more children the advantage of living in a household with two legal parents (custodial parent and adoptive stepparent), while not depriving these children of access to their noncustodial parent's family – assuming that such access would not be detrimental to the child. Moreover, if the traditional rule of "complete severance" between adoptive and biological families is subject to some exceptions in the context of stepparent adoptions, it might be possible to avoid the bitterness that is often attendant upon efforts to terminate the rights of noncustodial parents, and more consensual adoptions might result.

Except as otherwise provided by this [article], [Article] 3 applies to an adoption of a minor stepchild by a stepparent.

(a) A stepparent has standing under this [article] to petition to adopt a minor stepchild who is the child of the stepparent's spouse if:

(b) For good cause shown, a court may allow an individual who does not meet the requirements of subsection (a), but has the consent of the custodial parent of a minor to file a petition for adoption under this [article]. A petition allowed under this subsection must be treated as if the petitioner were a stepparent.

(c) A petition for adoption by a stepparent may be joined with a petition under [Article] 3, [Part] 5, to terminate the relationship of parent and child between a minor adoptee and the adoptee's parent who is not the stepparent's spouse.

Comment to § 4-102.

In addition to permitting individuals who are within the formal definition of "stepparent" to adopt a minor stepchild under this Article, Section 4-102 allows an individual who is a de facto stepparent, but is not, or is no longer, married to the custodial parent, to adopt as if he or she were a de jure stepparent.

(a) Except as otherwise provided in subsections (b) and (c), the legal consequences of an adoption of a stepchild by a stepparent are the same as under Sections 1-103 through 1-106.

(b) An adoption by a stepparent does not affect:

(c) Failure to comply with an agreement or order is not a ground for challenging the validity of an adoption by a stepparent.

Although the legal consequences of an adoption of a stepchild are generally the same as under Sections 1-104 through 1-106, this section provides that the rights and duties of the adoptive parent's spouse – i.e., the child's custodial parent – are not terminated by the adoption. The child remains in all respects the child of the adoptive parent's spouse, even if the spouse is deceased, and becomes in all respects the child of the adoptive stepparent. The adopted child, the custodial parent, and the adoptive parent have rights to inheritance and intestate succession by, through, and from each other. By contrast, except for child support arrearages, the rights and duties of the child's former noncustodial parent are terminated, including the former parent's right to inheritance or intestate succession through or from the adopted child. Nonetheless, the adopted child and the child's descendants retain the right to inheritance or intestate succession through or from the former noncustodial parent. In this respect, the Act is consistent with the provisions of the Uniform Probate Code (UPC) which apply to stepparent adoptions.

Unless consent is not required under Section 2-402, a petition to adopt a minor stepchild may be granted only if consent to the adoption has been executed by a stepchild who has attained 12 years of age; and

§ 4-105. Content of Consent by Stepparent's Spouse.

(a) A consent executed by a parent who is the stepparent's spouse must be signed or confirmed in the presence of an individual specified in Section 2- 405, or an individual authorized to take acknowledgements.

(b) A consent under subsection (a) must be in writing, must contain the required statements described in Section 2-406(a)(1) through (3) and (d)(3) through (6), may contain the optional statements described in Section 2-406(f), and must state that:

(c) A consent may not waive further notice of the proceeding for adoption of the minor by the stepparent.

(a) A consent executed by a minor's parent who is not the stepparent's spouse must be signed or confirmed in the presence of an individual specified in Section 2-405.

(b) A consent under subsection (a) must be in writing, must contain the required statements described in Section 2-406(a)(1) through (3) and (d)(3) through (6), may contain the optional statements described in Section 2-406(f), and must state that:

(c) A consent under subsection (a) may waive notice of the proceeding for adoption of the minor by the stepparent unless the adoption is contested, appealed, or denied.

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(a) After a petition for adoption of a minor stepchild is filed, the court may order that an evaluation be made by an individual qualified under Section 2-202 to assist the court in determining whether the proposed adoption is in the best interest of the minor.

(b) The court shall provide an evaluator with copies of the petition for adoption and of the items filed with the petition.

(c) Unless otherwise directed by the court, an evaluator shall base the evaluation on a personal interview with the petitioner and the petitioner's spouse in the petitioner's residence, observation of the relationship between the minor and the petitioner, personal interviews with others who know the petitioner and may have information relevant to the examination, and any information received pursuant to subsection (d).

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(a) Upon the request of the petitioner in a proceeding for adoption of a minor stepchild, the court shall review a written agreement that permits another individual to visit or communicate with the minor after the decree of adoption becomes final, which must be signed by the individual, the petitioner, the petitioner's spouse, the minor if 12 years of age or older, and, if an agency placed the minor for adoption, an authorized employee of the agency.

(b) The court may enter an order approving the agreement only upon determining that the agreement is in the best interest of the minor adoptee. In making this determination, the court shall consider:

(c) In addition to any agreement approved pursuant to subsections (a) and (b), the court may approve the continuation of an existing order or issue a new order permitting the minor adoptee's former parent, grandparent, or sibling to visit or communicate with the minor if:

(d) In making a determination under subsection (c)(3), the court shall consider the factors listed in subsection (b) and any objections to the requested order by the adoptive stepparent and the stepparent's spouse.

(e) An order issued under this section may be enforced in a civil action only if the court finds that enforcement is in the best interest of a minor adoptee.

(f) An order issued under this section may not be modified unless the court finds that modification is in the best interest of a minor adoptee and:

(g) Failure to comply with the terms of an order approved under this section or with any other agreement for visitation or communication is not a ground for revoking, setting aside, or otherwise challenging the validity of a consent, relinquishment, or adoption pertaining to a minor stepchild, and the validity of the consent, relinquishment, and adoption is not affected by any later action to enforce, modify, or set aside the order or agreement.

For purposes of inheritance by, from and through an adopted person he shall be considered the issue of his adopting parent or parents. An adopted person shall not be considered as continuing to be the child or issue of his natural parents except in distributing the estate of a natural kin, other than the natural parent, who has maintained a family relationship with the adopted person. If a natural parent shall have married the adopting parent, the adopted person for purposes of inheritance by, from and through him shall also be considered the issue of such natural parent.

These consolidated appeals raise the issue of whether the Adoption Act requires a legal parent to relinquish his or her parental rights in cases where 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. § 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. 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. Accordingly, we vacate the orders of the Superior Court and remand to the trial courts for evidentiary hearings.

The appellants in the case of In re Adoption of C.C.G. and Z.C.G., both male, are involved in an intimate relationship and have been domestic partners since 1982. On October 24, 1991, Appellant J.J.G. adopted C.C.G. He adopted his second child, Z.C.G. on April 21, 1999. After the children were adopted, Appellant J.J.G. and his partner, Appellant J.C.G., lived together with the children as a family. On May 9, 1999, Appellants filed a petition wherein J.C.G. sought to adopt both children. The Erie County Common Pleas Court denied the adoption petition on June 18, 1999, and subsequently affirmed that order upon Appellants' request for rescission.

The en banc Superior Court affirmed the denial of the adoption petition, noting that the court cannot create judicial exceptions to the requirements of 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. It relied on Section 2711(d) of the Adoption Act, which states that the consenting parent of an adoptee under the age of eighteen must provide a statement relinquishing parental rights to his or her child. Appellant J.J.G., the legal parent, had attached a consent form to the adoption petition, but the phrase indicating that he intended to permanently give up his rights to his children was intentionally omitted from the form. The court held that this omission rendered the consent invalid, as it did not meet the requirements of Section 2711. It concluded that Appellant J.C.G. therefore had no legally ascertainable interest, notwithstanding the equal protection clause.

The Superior Court noted that the only exception to the unqualified consent requirement was Section 2903 of the Adoption Act, which provides that "whenever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child remain whether . . . he is one of the petitioners in the adoption proceeding." 23 Pa.C.S. § 2903 (emphasis added). It relied on our decision in In re Adoption of E.M.A., 409 A.2d 10 (Pa. 1979), for the proposition that Section 2903 applies solely to "stepparent" situations and has no application to unmarried persons. The court concluded that because our Commonwealth only recognizes marriages "between one man and one woman," 23 Pa.C.S. § 1704, Appellant J.C.G. does not qualify as a "spouse" under Section 2903.

The Superior Court rejected Appellants' claim that the trial court was afforded discretion to waive the statutory requirements when "cause has been shown" under Section 2901. The court held that "for cause shown" relates to reasons why the statutory requirements of adoption need not be met. It concluded that until the statutory requirements have been met, or cause shown as to why they need not be met, an analysis of the best interest and general welfare of the children cannot be considered. The court further held that Appellants had failed to demonstrate cause in the instant cases and therefore their adoption petitions were properly denied.

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The appellants in the case of In re Adoption of R.B.F. and R.C.F., both female, are also engaged in an intimate relationship and have been domestic partners since 1983. When the couple decided to raise a family, Appellant C.H.F. conceived through in vitro fertilization with the sperm of an anonymous donor, who retains no parental rights. C.H.F. gave birth to twin boys on March 11, 1997. On April 24, 1998, C.H.F. and her partner, B.A.F., filed a petition, wherein B.A.F. sought to adopt the boys. As in the companion case, C.H.F. attached a consent form to the adoption petition, which intentionally omitted the phrase indicating that she intended to permanently give up her rights to the children. The Lancaster County Common Pleas Court dismissed the petition with prejudice on October 22, 1998.

A panel of the Superior Court affirmed the denial of the adoption petition. On January 21, 2000, Appellants filed an application for reargument/reconsideration, which was granted. The matter proceeded for oral argument before the en banc Superior Court. In a decision filed the same day as In re Adoption of C.C.G. and Z.C.G., the court affirmed the denial of the adoption petition. The analysis was nearly identical to that set forth in C.C.G., and similar concurring and dissenting opinions were filed. This Court subsequently granted allowance of appeal in both cases.

We begin by recognizing that adoption is purely a statutory right, unknown at common law. In re Adoption of E.M.A., 409 A.2d 10, 11 (Pa. 1979). To effect an adoption, the legislative provisions of the Adoption Act must be strictly complied with. Thus, our analysis is focused entirely on the relevant statutory provisions.

The Adoption Act provides that "any individual may be adopted, regardless of his age or residence." 23 Pa.C.S. § 2311. Similarly, "any individual may become an adopting parent." § 2312. Section 2701 sets forth the requisite contents of a petition for adoption filed by a prospective adoptive parent. The requirement at issue here first appears at Section 2701(7), which mandates that "all consents required by section 2711 (relating to consents necessary to adoption) are attached or the basis upon which such consents are not required." Section 2711(a)(3) provides that consent to an adoption shall be required of the following: "The parents or surviving parent of an adoptee who has not reached the age of 18 years." Subsection (d) of Section 2711 sets forth the contents of consent and mandates . . . that the consent of a parent of an adoptee under 18 years of age include the following statement:

§ 2711(d)(1).

An exception to this relinquishment provision appears at Section 2903, entitled "Retention of parental status," which provides as follows:

§ 2903.

Thus, absent a qualifying provision appearing elsewhere in the Adoption Act, it is clear from a plain reading of these sections that a legal parent must relinquish his parental rights in order to consent to the adoption of his child by a non-spouse. The lower courts properly found that the spousal exception provision in Section 2903 is inapplicable to the instant cases. As noted, 23 Pa.C.S. § 1704 provides that the Commonwealth only recognizes marriages "between one man and one woman." Thus, a same-sex partner cannot be the "spouse" of the legal parent and therefore cannot attain the benefits of the spousal exception to relinquishment of parental rights necessary for a valid consent to adoption.

We addressed the aforementioned provisions in our decision in In re Adoption of E.M.A. There, the issue was whether a non-spouse may become an adopting parent of a biological father's child, when the biological father gives only "qualified" consent, retaining his parental rights. Our Court affirmed the denial of the adoption petition on the grounds that the consent given by the biological father did not meet the statutory requirements for adoption by a non-spouse.

We stated:

We went on to hold that our Court has no authority to decree an adoption in the absence of the statutorily required consents. We ruled that to construe the spousal exception as applying to a non-spouse "would be unwarranted and impermissible judicial intrusion into the exclusive legislative prerogative." Our Court rejected the appellant's contention that the spousal exception to relinquishment of parental rights is unconstitutional as applied because it discriminates against unmarried persons who wish to adopt. We held that because the Adoption Act did not preclude an unmarried person from adopting a child, it withstood constitutional scrutiny. We concluded "it is appropriate and entirely reasonable for the Legislature to provide, as section [2903] does, a special type of consent available only where there is a husband-wife relationship."

Appellants contend that E.M.A. is distinguishable on three grounds. First, they argue that E.M.A. involved only Section 2903, which they concede is not applicable in cases involving same-sex partners. Second, they argue that E.M.A. did not involve an "intra-family adoption" and the prospective adoptive parent did not reside with the legal parent. Finally, Appellants allege that E.M.A. predated the Legislature's amendment of Section 2901, which they argue affords the trial court discretion to waive the statutory requirements necessary for an adoption petition upon a showing of cause.

We shall address these claims seriatim. Initially, we find that although E.M.A. focused upon the spousal exception to the relinquishment of parental rights provision, the decision also reinforced the proposition that the judiciary may not engraft exceptions to the statutory consent requirements of an adoption petition. Further, we discount Appellants' characterization of the opinion as relying upon the residence of the prospective adoptive parent or the fact that the prospective adoptive parent was not part of the nuclear family. Rather, the decision was based upon the fact that the prospective adoptive parent was not the spouse of the biological parent. Thus, the Court concluded that she could not adopt the child absent relinquishment of the father's parental rights.

Appellants' final contention as to why E.M.A. is distinguishable, however, is persuasive. It is based upon the subsequent 1982 amendment to Section 2901 of the Adoption Act. Section 2901 states in its entirety:

§ 2901. Time of entry of decree of adoption

Appellants argue that the Legislature's amendment of this provision after we decided E.M.A. was intended to alter that decision by affording the trial court discretion, upon cause shown, to waive a particular statutory requirement. Appellants clarify that they agree with the lower court's finding that "cause shown" is essentially an explanation as to why the statutory requirements are not met. They submit that the court can exercise its discretion in this regard by first determining the underlying purpose of the statutory requirement that the prospective adoptive parent seeks to excuse. According to Appellants, the court would then determine, upon examination of a factual showing by the petitioner, whether the purpose of the statutory requirement will otherwise be met or is irrelevant to the particular circumstances of the case.

Appellants contend that the Superior Court erred in holding that they failed to demonstrate "cause" when they were never given an opportunity to do so. They urge our Court to remand the matter so that they may set forth a factual basis for finding that the purpose of the relinquishment provision would be fulfilled by maintaining the children's relationship with their existing parent. They assert that cause can be demonstrated in the instant cases because,"here, as in a stepparent adoption, the only means to guarantee family integrity ordinarily achieved through termination of existing legal parent's rights would be through preservation of that parent's rights."

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. 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. Moreover, like other trial court decisions, findings of cause will be reviewed on appeal for an abuse of discretion.

We note that our decision is not creating a judicial exception to the requirements of the Adoption Act, but rather is applying the plain meaning of the terms employed by the Legislature. When the requisite cause is demonstrated, Section 2901 affords the trial court discretion to decree the adoption without termination of the legal parent's rights pursuant to Section 2711(d). An examination of Section 2701(7), which was also amended after E.M.A. was decided, comports with our decision as it requires that the necessary consents under Section 2711 be attached to the adoption petition "or the basis upon which such consents are not required." 23 Pa.C.S. § 2701(7) (emphasis added). Thus, contrary to our holding in E.M.A., the Legislature contemplated limited circumstances where the requisite consents 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. See 1 Pa.C.S. § 1922(1) (General Assembly does not intend a result that is absurd, impossible of execution or unreasonable). See also 23 Pa.C.S. § 2312 (stating that "any individual" can adopt). For example, the denial of Appellants' adoption petitions is premised solely upon the lack of unqualified consent by the existing legal parent. 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. 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. It is a settled rule that in the construction of statutes an interpretation is never to be adopted that would defeat the purpose of the enactment, if any other reasonable construction can be found which its language will fairly bear.

Another example rendering absurd a contrary interpretation of Section 2901 is Appellants' and supporting amici's suggestion that Appellants could have filed their adoption petitions with the requisite unqualified consent of the legal parent, including the relinquishment of parental rights, and then seek to adopt their children jointly. In view of the fact that there appears to be no statutory bar to such approach, our interpretation of Section 2901 avoids such a convoluted procedure that would serve no valid purpose.

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[W]e vacate the orders of the Superior Court and remand to the respective trial courts for evidentiary hearings to determine whether Appellants can demonstrate, by clear and convincing evidence, cause as to whether the purpose of Section 2711(d)'s relinquishment of parental rights requirement will be otherwise fulfilled or is unnecessary under the particular circumstances of each case.

NATURE OF CASE

B.P. and A.E. (collectively appellants) appeal from the order of the Lancaster County Court which denied the adoption petition jointly filed by appellants, two nonmarried persons, in which A.E. sought to adopt Luke, the minor biological son of B.P. The outcome of this appeal is controlled by the provisions of the Nebraska adoption statutes, Neb. Rev. Stat. § 43-101 et seq. (Reissue 1998 & Cum. Supp. 2000). The county court correctly concluded that on the record made in this case, Luke was not eligible for adoption due to the absence of a valid relinquishment by B.P. Accordingly, we affirm.

STATEMENT OF FACTS

B.P. is the biological mother of Luke, a minor child born on December 20, 1997. Luke was conceived by artificial insemination using semen from an anonymous donor from the University of Nebraska Medical Center's genetic semen bank. Accordingly, Luke's biological father is unknown and is not a party to this action. For purposes of the Nebraska adoption statutes, Luke was born "out of wedlock."

On October 2, 2000, appellants jointly filed a verified petition in which A.E. sought to adopt Luke. B.P. indicated her "consent" in the petition and in other supporting documents. B.P. did not file a relinquishment of her parental rights to Luke. To the contrary, she indicated on an affidavit attached to the petition that she did not intend to relinquish Luke. The only relief sought in this proceeding was the adoption of Luke by A.E.

A home study of appellants' household was conducted by an adoption specialist. The specialist recommended A.E.'s adoption of Luke be approved by the court.

On November 14, 2000, trial was held on the adoption petition. Appellants testified in support of the petition. A file, consisting of several documents including the home study, was admitted into evidence. No one entered an appearance, and no evidence was offered in opposition to the petition.

In an order filed December 1, 2000, the county court denied the petition for adoption. The county court concluded that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." The county court also concluded that "the statutes permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." Appellants timely appeal the county court's order denying the adoption petition.

ASSIGNMENT OF ERROR

On appeal, appellants have assigned three errors, which we consolidate and restate as one: The county court erred in denying the adoption petition jointly filed by appellants in which A.E. sought to adopt Luke.

STANDARD OF REVIEW

[1-3] Appeals in adoption proceedings are reviewed by an appellate court for error appearing on the record. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed. Interpretation of a statute presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the lower court.

ANALYSIS

Constitutional Claims Not at Issue

[4] Appellants and the State devote considerable analyses in their briefs to the potential federal and state constitutional issues which may be implicated in this case. The constitutional issues addressed by appellants and the State on appeal were neither presented nor ruled on in the county court. We have stated that when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. Accordingly, we do not consider the constitutional claims of appellants and the State and our analysis is limited to application of the Nebraska adoption statutes to this case.

Positions of Appellants and State

Contending that the county court erred, appellants argue that the plain language of the adoption statute at § 43-101(1), which provides that "any minor child may be adopted by any adult person or persons," permits adoption of the minor child, Luke, by A.E.; the biological parent B.P. need not relinquish her parental rights in order for A.E. to adopt Luke; and the proposed adoption is in Luke's best interests. Appellants advance various constitutional arguments not considered here for the reasons outlined above.

Contending that the county court was correct, the State argues that the adoption statutes read as a whole do not provide that two nonmarried persons may jointly adopt a minor child and that the adoption statutes only provide for adoption of a child without the relinquishment of a biological parent's rights in the case of a stepparent where a spouse is the adopting party. The State advances various constitutional arguments not considered here for the reasons outlined above.

Adoption Is Statutory

We have long recognized that "statutes providing for adoption are of civil and not common law origin. . . . Adoption proceedings were unknown to the common law." The adoption laws were first codified in 1897 and have been amended in 1943, 1984, 1985, and 1999. We have stated that "the matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed." We have recently noted that it is inappropriate for this court to "'extend the rights of adoption beyond the plain terms of the statutes.'" Although the numerous amendments to the adoption statutes could have been crafted with greater precision, the adoption statutes as a whole are cogent and workable. Accordingly, in the instant case, the plain terms and manner of procedure of the Nebraska adoption statutes must be followed.

Application of Statutes to This Case

[5] For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for adoption, and (4) evidence that the proposed adoption is in the child's best interests. Neb. Rev. Stat. § 43-101 et seq. The absence of any one of the necessary factors will preclude the adoption. In this case, Luke was not eligible for adoption, the county court determined that his adoption by A.E. was precluded on this basis, and we affirm on this basis.

The county court stated that "the statutes permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." On this record, B.P. did not relinquish her parental rights to Luke, and therefore, he was not eligible for adoption by A.E. The county court's denial of the petition due to an absence of a relinquishment was correct. The county court also stated that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." Because A.E. alone sought to adopt Luke, the issue of whether two nonmarried persons are entitled to adopt was not presented to the county court in this case. Thus, that issue is not before this court on appeal, and we do not consider it.

Appellants argue that the county court erred in concluding that it could not grant the adoption of Luke by A.E. as an additional parent without a relinquishment of the parental rights of B.P. Appellants contend that "consent is an alternative to a relinquishment," and that where B.P. intended to preserve her parental rights upon the adoption of Luke by A.E., only B.P.'s consent, which was given, was required. Appellants refer the court to various cases in other states which concluded under the language of their adoption statutes that the biological parent need not relinquish parental rights in order to facilitate the adoption by a second adult to whom the biological parent was not married.

The State responds that the Nebraska adoption statutory scheme does not provide for adoption without relinquishment except in the case of a stepparent where "an adult husband or wife" seeks to "adopt a child of the other spouse." The State contends that stepparent adoption is the only explicit adoption scenario outlined in the Nebraska adoption statutes and that it is implicit in this statutorily permitted scenario that the existing parent intends to continue parenting and, therefore, need not relinquish his or her parental rights to the child in question. The State refers the court to various cases in other states which concluded under the language of their adoption statutes that the biological parent's parental rights would terminate upon adoption of the child by the nonmarried partner of the biological parent or that an adoption was precluded because the biological parent had not relinquished parental rights.

Section 43-101 is entitled "Children eligible for adoption." Section 43-101(1) provides as follows:

With respect to the non-Indian minor child, Luke, who is the subject of this case, § 43-101 provides that "any minor child may be adopted." Elsewhere in chapter 43, however, numerous statutory substantive and procedural provisions are set forth which must be read together with § 43-101 and met before "any minor child," § 43-101, is in fact eligible for adoption and a decree of adoption may be properly entered. The statutes which provide for the consequences of adoption also bear on the issue of Luke's eligibility. Reading the various provisions of chapter 43 in pari materia, we conclude that with the exception of the stepparent adoption, the parent or parents possessing existing parental rights must relinquish the child before "any minor child may be adopted by any adult person or persons." Under Nebraska's statutory adoption scheme, the minor child, Luke, was not eligible for adoption by A.E. because B.P. had not relinquished him and the county court's reading of the statute was correct.

In In re Adoption of Kassandra B. & Nicholas B., 540 N.W.2d 554, 558 (Neb. 1995), we observed that as to the biological parent, "termination of his or her parental rights is the foundation of our adoption statutes." This pronouncement is reflected in the adoption statutes, which require relinquishment or termination prior to adoption, except when a stepparent adopts, and is further reflected in case law interpreting the adoption statutes.

Appellants argue that B.P.'s consent was the equivalent of relinquishment for purposes of the present case. We do not agree. Section § 43-104 provides that "no adoption shall be decreed unless written consents thereto are filed in the court of the county in which the person or persons desiring to adopt reside." Under § 43-104, such consent must be executed by

A consent to the proceedings by a parent or parents under § 43-104 is not required when a relinquishment has been executed. § 43-104(3)(a). A relinquishment would preclude the necessity of a consent. B.P. did not sign a relinquishment in this case, and her "consent" is not the equivalent of relinquishment.

We have stated that the consent granted by a court under § 43-104 does nothing more than permit the trial court to entertain the adoption proceedings. We read "consent" in § 43-104 to mean that the person, persons, or entity authorized to consent to the proceedings has agreed that the proposed adoption should be entertained by the trial court. In the instant case, B.P. "consented" to the proceedings and Luke is not ineligible for adoption due to a lack of such consent; however, B.P.'s consent to the proceedings was not tantamount to a relinquishment of parental rights.

The importance of "relinquishment" in the adoption statutes is apparent in § 43-109, which provides in relevant part:

(Emphasis supplied.) The affidavit noted in § 43-109(c) refers to the form completed by the relinquishing parent or parents which indicates whether the parent or parents agree to the release of information about the relinquishing parent or parents to the adopted child.

Under § 43-109, "no decree of adoption shall be entered unless . . . (c) the court record includes an affidavit [pertaining to whether or not information regarding the relinquishing biological parent should be released to the adopted person] signed by the relinquishing biological parent." (Emphasis supplied.) Thus, under § 43-109, an adoption is not authorized unless the biological parent relinquishes the child and files the particular affidavit identified in the statute. Although the effect of a relinquishment in terms of finality is not the same in private adoptions as in agency adoptions, and, notwithstanding that a relinquishment of parental rights in a private adoption is not totally extinguished until the child is adopted, a relinquishment is nevertheless required.

We have held that in a private adoption case where the prospective adoptive parent was not a spouse of the biological parent, there must be a relinquishment by the biological parent and the relinquishment must be valid in order for the child to become eligible for adoption. In the instant case, B.P. swore in the affidavit required under § 43-109 that "I do not intend to relinquish [Luke] for the ultimate purpose of adoption." Having refused to relinquish Luke, B.P. is not a "relinquishing biological parent." The affidavit B.P. signed did not meet the requirements of § 43-109. Therefore, Luke was not eligible for adoption and "no decree of adoption shall be entered."

The provisions contained in the adoption statutes found at §§ 43-110 and 43-111, pertaining to the consequences of adoption, further buttress our conclusion that "termination" of existing parental rights is the foundation of our adoption statutes. Section 43-110, entitled "Decree; effect as between parties," provides as follows:

We have stated that the "purpose of § 43-110 is to terminate any relationship which existed between the natural parent and the child and to create a new relationship between the adoptive parent and the child."

Section 43-111, entitled "Decree; effect as to natural parents," provides:

We have read this section as requiring a relinquishment prior to a private placement adoption.

Thus, under Nebraska's adoption statutes, the legal consequence of an adoption is that "the natural relation of child and parent shall thereafter exist between such adopted child and the person or persons adopting such child," § 43-110, and the adoption serves to relieve the natural parents of "all parental duties toward and all responsibilities for such child and have no rights over such adopted child," § 43-111. The pleadings in this case indicate that only A.E. sought to adopt Luke. Had the county court permitted the adoption of Luke by A.E., a new relationship between A.E. and Luke would have been created pursuant to § 43-110, and, as an unintended consequence, B.P. would have been relieved of her natural rights to Luke pursuant to § 43-111. In the instant case, B.P. manifestly did not want the consequences ordained by § 43-111 to attach had the county court granted the petition for adoption of Luke by A.E.

In order for A.E. to adopt Luke, he must be eligible for adoption. With the exception of stepparent adoptions, which are statutorily permitted, the Nebraska adoption statutes provide that an eligible child is one over whom parental rights have been relinquished or terminated and with respect to whom, upon entry of the adoption decree, a new relationship between the child and adoptive parent is created and the natural parents are relieved of all parental duties. In the instant case, Luke was not eligible for adoption by A.E. because B.P. had not relinquished her parental rights, and the county court's determination that the absence of such relinquishment precluded adoption of Luke by A.E. is not error.

Appellants urge this court to ignore the language of § 43-111 and to interpret the adoption statutes as permitting the adoption of Luke by A.E. as a parent in addition to the existing parent, B.P., without consequence to the parental rights of B.P. Appellants acknowledge that the exception providing for a stepparent adoption under § 43-101 permits the addition of a stepparent without relieving the natural parent of rights which would otherwise result under § 43-111. Appellants urge this court to read into the adoption statutes an additional exception for second-parent adoptions and to disregard the fact that the adoption statutes explicitly provide for stepparent adoptions and do not explicitly provide for second-parent adoptions.

[6] The adoption statutes permit only the paradigms which are explicit. With the exception of the statutory stepparent adoption scenario outlined in § 43-101, the adoption statutes neither provide for nor expressly designate who may adopt. When construing a statute, appellate courts are guided by the presumption that the Legislature intended a sensible, rather than an absurd, result in enacting a statute. Because the Nebraska adoption statutes explicitly provide for a stepparent adoption following which the existing parent will inherently continue raising the child, we conclude it would be an absurd result under the statutes as written to require relinquishment by the existing parent in the explicit statutorily permitted case of a stepparent adoption. As compared to a stepparent adoption, however, it is not inherent in § 43-101 that the "person or persons" seeking to adopt will necessarily be in addition to the existing parent who will continue to raise the child. Reading the adoption statutes in their entirety, it is clear that aside from the stepparent adoption scenario, the parents' parental rights must be terminated or the child must be relinquished in order for the child to be eligible for adoption by "any adult person or persons" under § 43-101.

For the reasons given above, we conclude that the county court did not err when it concluded on this record that A.E. could not adopt Luke for the reason that Luke was not eligible for adoption because B.P. had not relinquished her parental rights to him.

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[Dissenting opinion is omitted.]

Cal. Fam. Code § 297 & 9000 (2004)

(a) Domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring.

(b) A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:

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(a) A stepparent desiring to adopt a child of the stepparent's spouse may for that purpose file a petition in the county in which the petitioner resides.

(b) A domestic partner, as defined in Section 297, desiring to adopt a child of his or her domestic partner may for that purpose file a petition in the county in which the petitioner resides.

Conn. Gen. Stat. § 45a-724(a) (2003)

(a) The following persons may give a child in adoption:

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Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11^th Cir. 2004), rehearing en banc denied, 377 F.3d 1275 (11^th Cir. 2004), cert. denied, 2005 U.S. LEXIS 285 (2005)

In this appeal, we decide the states' rights issue of whether Florida Statute § 63.042(3), which prevents adoption by practicing homosexuals, is constitutional as enacted by the Florida legislature and as subsequently enforced. The district court granted summary judgment to Florida over an equal protection and due process challenge by homosexual persons desiring to adopt. We AFFIRM.

A. The Challenged Florida Statute

Since 1977, Florida's adoption law has contained a codified prohibition on adoption by any "homosexual" person. Fla. Stat. § 63.042(3) (2002). For purposes of this statute, Florida courts have defined the term "homosexual" as being "limited to applicants who are known to engage in current, voluntary homosexual activity," thus drawing "a distinction between homosexual orientation and homosexual activity." During the past twelve years, several legislative bills have attempted to repeal the statute, and three separate legal challenges to it have been filed in the Florida courts. To date, no attempt to overturn the provision has succeeded. We now consider the most recent challenge to the statute.

B. The Litigants

Six plaintiffs-appellants bring this case. The first, Steven Lofton, is a registered pediatric nurse who has raised from infancy three Florida foster children, each of whom tested positive for HIV at birth. By all accounts, Lofton's efforts in caring for these children have been exemplary, and his story has been chronicled in dozens of news stories and editorials as well as on national television. We confine our discussion of that story to those facts relevant to the legal issues before us and properly before us in the record. John Doe, also named as a plaintiff-appellant in this litigation, was born on 29 April 1991. Testing positive at birth for HIV and cocaine, Doe immediately entered the Florida foster care system. Shortly thereafter, Children's Home Society, a private agency, placed Doe in foster care with Lofton, who has extensive experience treating HIV patients. At eighteen months, Doe sero-reverted and has since tested HIV negative. In September of 1994, Lofton filed an application to adopt Doe but refused to answer the application's inquiry about his sexual preference and also failed to disclose Roger Croteau, his cohabitating partner, as a member of his household. After Lofton refused requests from the Department of Children and Families ("DCF") to supply the missing information, his application was rejected pursuant to the homosexual adoption provision. * * *

C. Procedural History

[Lofton and other plaintiffs, referred to as appellants,] filed suit in the United States District Court for the Southern District of Florida and named as defendants Kathleen A. Kearney and Charles Auslander in their respective official capacities as DCF Secretary and DCF District Administrator for Dade and Monroe Counties. Their complaint alleged that the statute violates appellants' fundamental rights and the principles of equal protection. Jointly, appellants asked the district court to declare Fla. Stat. § 3.042(3) unconstitutional and to enjoin its enforcement. Appellants also sought class certification on behalf of two purported classes: all similarly situated adults and all similarly situated children. The district court denied the request for class certification and granted summary judgment in favor of the state on all counts, thereby upholding the statute. It is from this judgment that appellants now appeal.

Appellants assert three constitutional arguments on appeal. First, appellants argue that the statute violates Lofton, Houghton, Doe, and Roe's rights to familial privacy, intimate association, and family integrity under the Due Process Clause of the Fourteenth Amendment. Second, appellants argue that the Supreme Court's recent decision in Lawrence v. Texas, 539 U.S. 558 (2003), recognized a fundamental right to private sexual intimacy and that the Florida statute, by disallowing adoption by individuals who engage in homosexual activity, impermissibly burdens the exercise of this right. Third, appellants allege that, by categorically prohibiting only homosexual persons from adopting children, the statute violates the Equal Protection Clause of the Fourteenth Amendment. Each of these challenges raises questions of first impression in this circuit.

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B. Florida's Adoption Scheme

Appellants' challenge cannot be viewed apart from the context in which it arises. Under Florida law, "adoption is not a right; it is a statutory privilege." Unlike biological parentage, which precedes and transcends formal recognition by the state, adoption is wholly a creature of the state.

In formulating its adoption policies and procedures, the State of Florida acts in the protective and provisional role of in loco parentis for those children who, because of various circumstances, have become wards of the state. Thus, adoption law is unlike criminal law, for example, where the paramount substantive concern is not intruding on individuals' liberty interests, and the paramount procedural imperative is ensuring due process and fairness. Adoption is also distinct from such contexts as government-benefit eligibility schemes or access to a public forum, where equality of treatment is the primary concern. By contrast, in the adoption context, the state's overriding interest is the best interests of the children whom it is seeking to place with adoptive families. Florida, acting parens patriae for children who have lost their natural parents, bears the high duty of determining what adoptive home environments will best serve all aspects of the child's growth and development.

Because of the primacy of the welfare of the child, the state can make classifications for adoption purposes that would be constitutionally suspect in many other arenas. For example, Florida law requires that, in order to adopt any child other than a special needs child, an individual's primary residence and place of employment must be located in Florida. In screening adoption applicants, Florida considers such factors as physical and mental health, income and financial status, duration of marriage, housing, and neighborhood, among others. Similarly, Florida gives preference to candidates who demonstrate a commitment to "value, respect, appreciate, and educate the child regarding his or her racial and ethnic heritage." Moreover, prospective adoptive parents are required to sign an affidavit of good moral character. Many of these preferences and requirements, if employed outside the adoption arena, would be unlikely to withstand constitutional scrutiny.

The decision to adopt a child is not a private one, but a public act. At a minimum, would-be adoptive parents are asking the state to confer official recognition – and, consequently, the highest level of constitutional insulation from subsequent state interference – on a relationship where there exists no natural filial bond. In many cases, they also are asking the state to entrust into their permanent care a child for whom the state is currently serving as in loco parentis. In doing so, these prospective adoptive parents are electing to open their homes and their private lives to close scrutiny by the state. Florida's adoption application requires information on a variety of private matters, including an applicant's physical and psychiatric medical history, previous marriages, arrest record, financial status, and educational history. In this regard, Florida's adoption scheme is like any "complex social welfare system that necessarily deals with the intimacies of family life." Accordingly, such intrusions into private family matters are on a different constitutional plane than those that "seek[] to foist orthodoxy on the unwilling by banning or criminally prosecuting" nonconformity. Califano, 434 U.S. at 55 n.11; cf. Lindley, 889 F.2d at 131 (declining to find a privacy interest in adopting a child because state law "requires adopters to submit their personal lives to intensive scrutiny before the adoption may be approved").

In short, a person who seeks to adopt is asking the state to conduct an examination into his or her background and to make a determination as to the best interests of a child in need of adoption. In doing so, the state's overriding interest is not providing individuals the opportunity to become parents, but rather identifying those individuals whom it deems most capable of parenting adoptive children and providing them with a secure family environment. Indicative of the strength of the state's interest – indeed duty – in this context is the fact that appellants have not cited to us, nor have we found, a single precedent in which the Supreme Court or one of our sister circuits has sustained a constitutional challenge to an adoption scheme or practice by any individual other than a natural parent, and even many challenges by natural parents have failed. Of course, despite their highly sensitive nature, adoption schemes are by no means immune from constitutional scrutiny, and we now consider the constitutionality of the Florida statute.

C. Appellants' Due Process Challenges

1. Fundamental Right to "Family Integrity"

Neither party disputes that there is no fundamental right to adopt, nor any fundamental right to be adopted. Both parties likewise agree that adoption is a privilege created by statute and not by common law. Because there is no fundamental right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.

Nevertheless, appellants argue that, by prohibiting homosexual adoption, the state is refusing to recognize and protect constitutionally protected parent-child relationships between Lofton and Doe . . . . Noting that the Supreme Court has identified "the interest of parents in the care, custody, and control of their children" as "perhaps the oldest of the fundamental liberty interests recognized by this Court," appellants argue that they are entitled to a similar constitutional liberty interest because they share deeply loving emotional bonds that are as close as those between a natural parent and child. They further contend that this liberty interest is significantly burdened by the Florida statute, which prevents them from obtaining permanency in their relationships and creates uncertainty about the future integrity of their families. Only by being given the opportunity to adopt, appellants assert, will they be able to protect their alleged right to "family integrity."

Although the text of the Constitution contains no reference to familial or parental rights, Supreme Court precedent has long recognized that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." A corollary to this right is the "private realm of family life which the state cannot enter that has been afforded both substantive and procedural protection." Historically, the Court's family – and parental – rights holdings have involved biological families. The Court itself has noted that "the usual understanding of 'family' implies biological relationships, and most decisions treating the relation between parent and child have stressed this element." Appellants, however, seize on a few lines of dicta from Smith, in which the Court acknowledged that "biological relationships are not [the] exclusive determination of the existence of a family," and noted that "adoption, for instance, is recognized as the legal equivalent of biological parenthood." Extrapolating from Smith, appellants argue that parental and familial rights should be extended to individuals such as foster parents and legal guardians and that the touchstone of this liberty interest is not biological ties or official legal recognition, but the emotional bond that develops between and among individuals as a result of shared daily life.

We do not read Smith so broadly. In Smith, the Court considered whether the appellee foster families possessed a constitutional liberty interest in "the integrity of their family unit" such that the state could not disrupt the families without procedural due process. Although the Court found it unnecessary to resolve that question, Justice Brennan, writing for the majority, did note that the importance of familial relationships stems not merely from blood relationships, but also from "the emotional attachments that derive from the intimacy of daily association." The Smith Court went on, however, to discuss the "important distinctions between the foster family and the natural family," particularly the fact that foster families have their genesis in state law. The Court stressed that the parameters of whatever potential liberty interest such families might possess would be defined by state law and the justifiable expectations it created. The Court found that the expectations created by New York law – which accorded only limited recognition to foster families – supported only "the most limited constitutional 'liberty' in the foster family." Basing its holding on other grounds, the Court concluded that the procedures provided under New York law were "adequate to protect whatever liberty interest appellees may have."

In Drummond v. Fulton County Dep't of Family & Children's Servs., the former Fifth Circuit construed Smith's dicta in considering due process and equal protection claims brought by white foster parents challenging Georgia's refusal to permit them to adopt their mixed-race foster child, whom they had parented for two years. Arguing that theirs was a "psychological family," the foster parents advanced a theory identical to that of present appellants:

Relying on Smith, the Drummond court rejected plaintiffs' argument. Examining state law to determine the extent of plaintiffs' constitutional interests, the court found that "there is no basis in the Georgia law, which creates the foster relationship, for a justifiable expectation that the relationship will be left undisturbed." The Drummond court stated:

Neither Smith nor Drummond, however, categorically foreclosed the possibility that, under exceptional circumstances, a foster family could possess some degree of constitutional protection if state law created a 'justifiable expectation" of family unit permanency. Drummond, 563 F.2d at 1207. Here, we find that under Florida law neither a foster parent nor a legal guardian could have a justifiable expectation of a permanent relationship with his or her child free from state oversight or intervention. Under Florida law, foster care is designed to be a short-term arrangement while the state attempts to find a permanent adoptive home. For instance, Florida law permits foster care as a "permanency option" only for children at least fourteen years of age, and DCF may remove a foster child anytime that it believes it to be in the child's best interests. Similarly, legal guardians in Florida are subject to ongoing judicial oversight, including the duty to file annual guardianship reports and annual review by the appointing court, and can be removed for a wide variety of reasons. In both cases, the state is not interfering with natural family units that exist independent of its power, but is regulating ones created by it. Lofton . . . entered into [a] relationship[] to be a foster parent . . . with an implicit understanding that [this] relationship[] would not be immune from state oversight and would be permitted to continue only upon state approval. The emotional connections between Lofton and his foster child . . . originate in arrangements that have been subject to state oversight from the outset. We conclude that Lofton [and] Doe could have no justifiable expectation of permanency in their relationships. Nor could Lofton . . . have developed expectations that they would be allowed to adopt, in light of the adoption provision itself.

Even if Florida law did create an expectation of permanency, appellants misconstrue the nature of the liberty interest that it would confer upon them. The resulting liberty interest at most would provide procedural due process protection in the event the state were to attempt to remove Doe . . . . Such a procedural right does not translate, however, into a substantive right to be free from state inference. Nor does it create an affirmative right to be accorded official recognition as "parent" and "child." In sum, Florida's statute by itself poses no threat to whatever hypothetical constitutional protection foster families and guardian-ward relationships may possess.

We conclude that appellants' right-to-family-integrity argument fails to state a claim. There is no precedent for appellants' novel proposition that long-term foster care arrangements and guardianships are entitled to constitutional protection akin to that accorded to natural and adoptive families. Moreover, we decline appellants' invitation to recognize a new fundamental right to family integrity for groups of individuals who have formed deeply loving and interdependent relationships. Under appellants' theory, any collection of individuals living together and enjoying strong emotional bonds could claim a right to legal recognition of their family unit, and every removal of a child from a long-term foster care placement – or simply the state's failure to give long-term foster parents the opportunity to adopt – would give rise to a constitutional claim. Such an expansion of the venerable right of parental control would well exceed our judicial mandate as a lower federal court.

2. Fundamental Right to "Private Sexual Intimacy"

Laws that burden the exercise of a fundamental right require strict scrutiny and are sustained only if narrowly tailored to further a compelling government interest. Appellants argue that the Supreme Court's recent decision in Lawrence v. Texas, 539 U.S. 558 (2003), which struck down Texas's sodomy statute, identified a hitherto unarticulated fundamental right to private sexual intimacy. They contend that the Florida statute, by disallowing adoption to any individual who chooses to engage in homosexual conduct, impermissibly burdens the exercise of this right.

We begin with the threshold question of whether Lawrence identified a new fundamental right to private sexual intimacy. Lawrence's holding was that substantive due process does not permit a state to impose a criminal prohibition on private consensual homosexual conduct. The effect of this holding was to establish a greater respect than previously existed in the law for the right of consenting adults to engage in private sexual conduct. Nowhere, however, did the Court characterize this right as "fundamental." Nor did the Court locate this right directly in the Constitution, but instead treated it as the by-product of several different constitutional principles and liberty interests.

We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis. The Court has noted that it must "exercise the utmost care whenever [it is] asked to break new ground" in the field of fundamental rights, which is precisely what the Lawrence petitioners and their amici curiae had asked the Court to do. That the Court declined the invitation is apparent from the absence of the "two primary features" of fundamental-rights analysis in its opinion. First, the Lawrence opinion contains virtually no inquiry into the question of whether the petitioners' asserted right is one of "those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Second, the opinion notably never provides the "'careful description' of the asserted fundamental liberty interest" that is to accompany fundamental-rights analysis. Rather, the constitutional liberty interests on which the Court relied were invoked, not with "careful description," but with sweeping generality. Most significant, however, is the fact that the Lawrence Court never applied strict scrutiny, the proper standard when fundamental rights are implicated, but instead invalidated the Texas statute on rational-basis grounds, holding that it "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right. Accordingly, we need not resolve the second prong of appellants' fundamental-rights argument: whether exclusion from the statutory privilege of adoption because of appellants' sexual conduct creates an impermissible burden on the exercise of their asserted right to private sexual intimacy.

Moreover, the holding of Lawrence does not control the present case. Apart from the shared homosexuality component, there are marked differences in the facts of the two cases. The Court itself stressed the limited factual situation it was addressing in Lawrence:

Here, the involved actors are not only consenting adults, but minors as well. The relevant state action is not criminal prohibition, but grant of a statutory privilege. And the asserted liberty interest is not the negative right to engage in private conduct without facing criminal sanctions, but the affirmative right to receive official and public recognition. Hence, we conclude that the Lawrence decision cannot be extrapolated to create a right to adopt for homosexual persons.

D. Appellants' Equal Protection Challenge

1. Rational-Basis Review

The Equal Protection Clause of the Fourteenth Amendment proclaims that "no State shall. . . Deny to any person within its jurisdiction the equal protection of laws." U.S. Const. Amend. XIV, § 1. The central mandate of the equal protection guarantee is that "the sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective." Equal protection, however, does not forbid legislative classifications. "It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Unless the challenged classification burdens a fundamental right or targets a suspect class, the Equal Protection Clause requires only that the classification be rationally related to a legitimate state interest. Romer v. Evans, 517 U.S. 620, 631 (1996). As we have explained, Florida's statute burdens no fundamental rights. Moreover, all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class. Because the present case involves neither a fundamental right nor a suspect class, we review the Florida statute under the rational-basis standard.

Rational-basis review, "a paradigm of judicial restraint," does not provide "a license for courts to judge the wisdom, fairness, or logic of legislative choices." The question is simply whether the challenged legislation is rationally related to a legitimate state interest. Under this deferential standard, a legislative classification "is accorded a strong presumption of validity," and "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." This holds true "even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer, 517 U.S. at 632. Moreover, a state has "no obligation to produce evidence to sustain the rationality of a statutory classification." Rather, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record."

2. Florida's Asserted Rational Bases

Cognizant of the narrow parameters of our review, we now analyze the challenged Florida law. Florida contends that the statute is only one aspect of its broader adoption policy, which is designed to create adoptive homes that resemble the nuclear family as closely as possible. Florida argues that the statute is rationally related to Florida's interest in furthering the best interests of adopted children by placing them in families with married mothers and fathers. Such homes, Florida asserts, provide the stability that marriage affords and the presence of both male and female authority figures, which it considers critical to optimal childhood development and socialization. In particular, Florida emphasizes a vital role that dual-gender parenting plays in shaping sexual and gender identity and in providing heterosexual role modeling. Florida argues that disallowing adoption into homosexual households, which are necessarily motherless or fatherless and lack the stability that comes with marriage, is a rational means of furthering Florida's interest in promoting adoption by marital families.

Florida clearly has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children. It is chiefly from parental figures that children learn about the world and their place in it, and the formative influence of parents extends well beyond the years spent under their roof, shaping their children's psychology, character, and personality for years to come. In time, children grow up to become full members of society, which they in turn influence, whether for good or ill. The adage that "the hand that rocks the cradle rules the world" hardly overstates the ripple effect that parents have on the public good by virtue of their role in raising their children. It is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society – particularly when those future citizens are displaced children for whom the state is standing in loco parentis.

More importantly for present purposes, the state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father. Florida argues that its preference for adoptive marital families is based on the premise that the marital family structure is more stable than other household arrangements and that children benefit from the presence of both a father and mother in the home. Given that appellants have offered no competent evidence to the contrary, we find this premise to be one of those "unprovable assumptions" that nevertheless can provide a legitimate basis for legislative action. Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model. Against this "sum of experience," it is rational for Florida to conclude that it is in the best interests of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother.

3. Appellants' Arguments

Appellants offer little to dispute whether Florida's preference for marital adoptive families is a legitimate state interest. Instead, they maintain that the statute is not rationally related to this interest. Arguing that the statute is both overinclusive and underinclusive, appellants contend that the real motivation behind the statute cannot be the best interest of adoptive children.

In evaluating this argument, we note from the outset that "it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." Instead, the question before us is whether the Florida legislature could have reasonably believed that prohibiting adoption into homosexual environments would further its interest in placing adoptive children in homes that will provide them with optimal developmental conditions. Unless appellants' evidence, which we view on summary judgment review in the light most favorable to appellants, can negate every plausible rational connection between the statute and Florida's interest in the welfare of its children, we are compelled to uphold the statute. We turn now to appellants' specific arguments.

a. Adoption by Unmarried Heterosexual Persons

Appellants note that Florida law permits adoption by unmarried individuals and that, among children coming out the Florida foster care system, 25% of adoptions are to parents who are currently single. Their argument is that homosexual persons are similarly situated to unmarried persons with regard to Florida's asserted interest in promoting married-couple adoption. According to appellants, this disparate treatment lacks a rational basis and, therefore, disproves any rational connection between the statute and Florida's asserted interest in promoting adoption into married homes. Citing City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432 (1985), appellants argue that the state has not satisfied Cleburne's threshold requirement that it demonstrate that homosexuals pose a unique threat to children that others similarly situated in relevant respects do not.

We find appellants' reading of Cleburne to be an unwarranted interpretation. In Cleburne, the Supreme Court invalidated under the rational-basis test a municipal zoning ordinance requiring a group home for the mentally retarded to obtain a special use permit. The municipality argued that it had a legitimate interest in (1) protecting the residents of the home from a nearby flood plain, (2) limiting potential liability for acts of residents of the home, (3) maintaining low-density land uses in the neighborhood, (4) reducing congestion in neighborhood streets, and (5) avoiding fire hazards. The Court, however, found that the municipality failed to distinguish how these concerns applied particularly to mentally retarded residents of the home and not to a number of other persons who could freely occupy the identical structure without a permit, such as boarding houses, fraternity houses, and nursing homes. The Court concluded that the purported justifications for the ordinance made no sense in light of how it treated other groups similarly situated. Appellants have overstated Cleburne's holding by asserting that it places a burden on the State of Florida to show that homosexuals pose a greater threat than other unmarried adults who are allowed to adopt. The Cleburne Court reasserted the unremarkable principle that, when a statute imposes a classification on a particular group, its failure to impose the same classification on "other groups similarly situated in relevant respects" can be probative of a lack of a rational basis.

This case is distinguishable from Cleburne. The Florida legislature could rationally conclude that homosexuals and heterosexual singles are not "similarly situated in relevant respects." It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment. Moreover, as the state noted, the legislature could rationally act on the theory that heterosexual singles, even if they never marry, are better positioned than homosexual individuals to provide adopted children with education and guidance relative to their sexual development throughout pubescence and adolescence. In a previous challenge to Florida's statute, a Florida appellate court observed:

"It could be that the assumptions underlying these rationales are erroneous, but the very fact that they are arguable is sufficient, on rational-basis review, to immunize the legislative choice from constitutional challenge." Although the influence of environmental factors in forming patterns of sexual behavior and the importance of heterosexual role models are matters of ongoing debate, they ultimately involve empirical disputes not readily amenable to judicial resolution – as well as policy judgments best exercised in the legislative arena. For our present purposes, it is sufficient that these considerations provide a reasonably conceivable rationale for Florida to preclude all homosexuals, but not all heterosexual singles, from adopting.

The possibility, raised by appellants, that some homosexual households, including those of appellants, would provide a better environment than would some heterosexual single-parent households does not alter our analysis. The Supreme Court repeatedly has instructed that neither the fact that a classification may be overinclusive or underinclusive nor the fact that a generalization underlying a classification is subject to exceptions renders the classification irrational. "Courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends." We conclude that there are plausible rational reasons for the disparate treatment of homosexuals and heterosexual singles under Florida adoption law and that, to the extent that the classification may be imperfect, that imperfection does not rise to the level of a constitutional infraction.

b. Current Foster Care Population

Appellants make much of the fact that Florida has over three thousand children who are currently in foster care and, consequently, have not been placed with permanent adoptive families. According to appellants, because excluding homosexuals from the pool of prospective adoptive parents will not create more eligible married couples to reduce the backlog, it is impossible for the legislature to believe that the statute advances the state's interest in placing children with married couples.

We do not agree that the statute does not further the state's interest in promoting nuclear-family adoption because it may delay the adoption of some children. Appellants misconstrue Florida's interest, which is not simply to place children in a permanent home as quickly as possible, but, when placing them, to do so in an optimal home, i.e., one in which there is a heterosexual couple or the potential for one. According to appellants' logic, every restriction on adoptive-parent candidates, such as income, in-state residency, and criminal record – none of which creates more available married couples – are likewise constitutionally suspect as long as Florida has a backlog of unadopted foster children. The best interests of children, however, are not automatically served by adoption into any available home merely because it is permanent. Moreover, the legislature could rationally act on the theory that not placing adoptees in homosexual households increases the probability that these children eventually will be placed with married couple families, thus furthering the state's goal of optimal placement. Therefore, we conclude that Florida's current foster care backlog does not render the statute irrational.

c. Foster Care and Legal Guardianship

Noting that Florida law permits homosexuals to become foster parents and permanent guardians, appellants contend that this fact demonstrates that Florida must not truly believe that placement in a homosexual household is not in a child's best interests. We do not find that the fact that Florida has permitted, homosexual foster homes and guardianships defeats the rational relationship between the statute and the state's asserted interest. We have not located and appellants have not cited any precedent indicating that a disparity between a law and its enforcement is a relevant consideration on rational-basis review, which only asks whether the legislature could have reasonably thought that the challenged law would further a legitimate state interest. Thus, to the extent that foster care and guardianship placements with homosexuals are the handiwork of Florida's executive branch, they are irrelevant to the question of the legislative rationale for Florida's adoption scheme To the extent that these placements are the product of an intentional legislative choice to treat foster care and guardianships differently than adoption, the distinction is not an irrational one. Indeed, it bears a rational relationship to Florida's interest in promoting the nuclear-family model of adoption since foster care and guardianship have neither the permanence nor the societal, cultural, and legal significance as does adoptive parenthood, which is the legal equivalent of natural parenthood. Fla. Stat. § 63.032(2).

Foster care and legal guardianship are designed to address a different situation than permanent adoption, and "the legislature must be allowed leeway to approach a perceived problem incrementally." The fact that "the legislature may select one phase of one field and apply a remedy there, neglecting the others," does not render the legislative solution invalid. We conclude that the rationality of the statute is not defeated by the fact that Florida permits homosexual persons to serve as foster parents and legal guardians.

d. Social Science Research

Appellants cite recent social science research and the opinion of mental health professionals and child welfare organizations as evidence that there is no child welfare basis for excluding homosexuals from adopting. They argue that the cited studies show that the parenting skills of homosexual parents are at least equivalent to those of heterosexual parents and that children raised by homosexual parents suffer no adverse outcomes. Appellants also point to the policies and practices of numerous adoption agencies that permit homosexual persons to adopt.

In considering appellants' argument, we must ask not whether the latest in social science research and professional opinion support the decision of the Florida legislature, but whether that evidence is so well established and so far beyond dispute that it would be irrational for the Florida legislature to believe that the interests of its children are best served by not permitting homosexual adoption. Also, we must credit any conceivable rational reason that the legislature might have for choosing not to alter its statutory scheme in response to this recent social science research. We must assume, for example, that the legislature might be aware of the critiques of the studies cited by appellants – critiques that have highlighted significant flaws in the studies' methodologies and conclusions, such as the use of small, self-selected samples; reliance on self-report instruments; politically driven hypotheses; and the use of unrepresentative study populations consisting of disproportionately affluent, educated parents. Alternatively, the legislature might consider and credit other studies that have found that children raised in homosexual households fare differently on a number of measures, doing worse on some of them, than children raised in similarly situated heterosexual households. Or the legislature might consider, and even credit, the research cited by appellants, but find it premature to rely on a very recent and still developing body of research, particularly in light of the absence of longitudinal studies following child subjects into adulthood and of studies of adopted, rather than natural, children of homosexual parents.

We do not find any of these possible legislative responses to be irrational. Openly homosexual households represent a very recent phenomenon, and sufficient time has not yet passed to permit any scientific study of how children raised in those households fare as adults. Scientific attempts to study homosexual parenting in general are still in their nascent stages and so far have yielded inconclusive and conflicting results. Thus, it is hardly surprising that the question of the effects of homosexual parenting on childhood development is one on which even experts of good faith reasonably disagree. Given this state of affairs, it is not irrational for the Florida legislature to credit one side of the debate over the other. Nor is it irrational for the legislature to proceed with deliberate caution before placing adoptive children in an alternative, but unproven, family structure that has not yet been conclusively demonstrated to be equivalent to the marital family structure that has established a proven track record spanning centuries. Accordingly, we conclude that appellants' proffered social science evidence does not disprove the rational basis of the Florida statute.

e. Romer v. Evans

Finally, we disagree with appellants' contention that Romer requires us to strike down the Florida statute. In Romer, the Supreme Court invalidated Amendment 2 to the Colorado state constitution, which prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. 517 U.S. 620 (1996). The constitutional defect in Amendment 2 was the disjunction between the "sweeping and comprehensive" classification it imposed on homosexuals and the state's asserted bases for the classification – respect for freedom of association and conservation of resources to fight race and gender discrimination. The Court concluded that the Amendment's "sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects."

Unlike Colorado's Amendment 2, Florida's statute is not so "sweeping and comprehensive" as to render Florida's rationales for the statute "inexplicable by anything but animus" toward its homosexual residents. Amendment 2 deprived homosexual persons of "protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." In contrast to this "broad and undifferentiated disability," the Florida classification is limited to the narrow and discrete context of access to the statutory privilege of adoption and, more importantly, has a plausible connection with the state's asserted interest. Moreover, not only is the effect of Florida's classification dramatically smaller, but the classification itself is narrower. Whereas Amendment 2's classification encompassed both conduct and status, Florida's adoption prohibition is limited to conduct. Thus, we conclude that Romer's unique factual situation and narrow holding are inapposite to this case.

We exercise great caution when asked to take sides in an ongoing public policy debate, such as the current one over the compatibility of homosexual conduct with the duties of adoptive parenthood. The State of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who "engage in current, voluntary homosexual activity," and we have found nothing in the Constitution that forbids this policy judgment. Thus, any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law. The legislature is the proper forum for this debate, and we do not sit as a superlegislature "to award by judicial decree what was not achievable by political consensus." The judgment of the district court is AFFIRMED.

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