Unmarried partners of biological mothers sought to adopt respective mothers children. The Family Court, Putnam County, Sweeny, J., denied petition of one mothers lesbian partner and the Family Court, Oneida County, Morgan, J., denied prospective adoptive fathers petition on ground that adoption by two unmarried persons is not permitted. On appeal, two Supreme Court, Appellate Divisions, affirmed. Appeals were taken and consolidated. The Court of Appeals, Kaye, C.J., held that: (1) lesbian and unmarried hetero-sexual partners had standing under Domestic Relations Law § 110 to become adoptive parents, and (2) portion of statute purporting to terminate biological mothers parental rights did not apply.

Reversed and remitted.

1. Adoption 

Adoption statute must be strictly construed and applied as means of securing best possible home for child. 

2. Adoption 

Homosexual partner of one child's biological mother and unmarried heterosexual partner of another child s biological mother were adult unmarried persons with standing to adopt; biological mothers consented to adoptions. 

3. Adoption

Purpose of adoption statute is to encourage adoption of as many children as possible, regardless of sexual orientation or marital status of individual seeking to adopt.

4. Adoption 

Provision of adoption statute terminating biological parents rights toward adoptive child does not apply in situations when biological parent consents to adoption, agrees to retain parental rights, and agrees to raise child together with adopting parent and, thus, did not require termination of parental rights of biological mothers who consented to adoption of their respective children by an unmarried man and lesbian partner with whom the mothers shared long- term emotional and financial commitments. McKinneys.
 

Under the New York adoption statute, a single person can adopt a child.  Equally clear is the right of a single homosexual to adopt. These appeals call upon us to decide if the unmarried partner of a childs biological mother, whether  heterosexual or homosexual, who is raising the child together with the biological parent, can become the  childs second parent by means of adoption.

Because the two adoptions sought one by an unmarried heterosexual couple, the other by the lesbian partner of the childs mother are fully consistent with statute, we answer this question in the affirmative. To rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want the them.

The Adoptions Sought

In Matter of Jacob, Roseanne M.A. and Jacob s biological father (from whom she is  divorced) separated prior to the childs birth and Roseanne M.A. was awarded sole custody. Jacob was a year old when Stephen T.K  began living with him and his mother in early 1991. At the time of filing the joint petition for adoption three years late: Stephen T.K was employed as a programmer/analyst with an  annual income of $50,000, while Roseanne M.A was a student at SUNY Health Center. Jacob's biological father consented to the adoption.
 

Though acknowledging that "the granting of an adoption in this matter may be beneficial to Jacob,"  Family Court dismissed the petition for lack of standing on the ground that Domestic Relations Law does not  authorize adoptions by an unmarried couple. The Appellate Division affirmed, two Justices dissenting , and an appeal to this court was taken as of right.

In Matter of Dana, appellants are G.M. and her lesbian partner, P.I. who have lived together in what is described as a long and close relationship for the past 19 years.  G.M. works as a special education teacher in the public schools earning $38,000 annually and P.I., employed at an athletic club, has an annual income of $48,000.  In 1989, the two women decided that P.I. would have a child they  would raise together.
P.I. was artificially inseminated by an anonymous donor, and on June 6, 1990, she gave birth to Dana. G.M. and P.I. have shared parenting responsibilities since Dana's birth and have arranged their separate work schedules around her needs. With P.I.'s consent, G.M filed a petition to adopt Dana in April 1993.
 

In the court ordered report recommending that G.M. be permitted to adopt  the disinterested investigator described Dana as an attractive, sturdy and articulate little girl with a "rich family life," which includes frequent visits with G.M.'s three grown children from a previous marriage "who all love Dana and accept her as their baby sister." Noting that G.M. "only has the best interest of Dana in mind," the report concluded that she "provides her with a family structure in which to grow and flourish."

As in Matter of Jacob, Family Court, while conceding the favorable results of the home study and "in no way disparaging the ability of [G.M.] to be a good, nurturing and loving parent," denied the petition for lack of standing. In addition, the court held that the adoption was further prohibited by Domestic relations Law § 117 which it interpreted to require the automatic termination of P.I.'s relationship with Dana upon an adoption by G.M. Despite its conclusion that G.M. had standing to adopt, the Appellate Division nevertheless affirmed on the ground that Domestic Relations Law § 117 prohibits the adoption. We granted leave to appeal.

Limiting our analysis, as did the courts below, to the preserved statutory interpretation issues, we conclude that appellants have standing to adopt under Domestic Relations Law § 110 and are not foreclosed from doing so by Domestic Relations Law § 117. There being no statutory preclusion's, we now reverse the order of the Appellate Division in each ease and remit the matter to Family Court for a factual evaluation and determina-tion as to whether these adoptions would be in the best interest of the children.

The Context of our Statutory Analysis

Two basic themes of overarching significance set the context of our statutory analysis.
First and foremost, since adoption in this State is "solely the creature of  statute" , the adoption statute must be strictly construed. What is to be construed strictly and applied rigorously in this sensitive area of the law, however, is legisla-tive purpose as well as legislative language. Thus, the adoption statute must be applied in harmony with the humanitarian principle that adoption is a means of securing the best possible home for a child.

Ten years ago, in Matter of Robert Paul P., we refused to allow the adoption of a 50-year-old man by his 57-year-old homosexual partner even though the statutory language permitted the adoption. Our refusal in Robert Paul P. rested solely on the fact that the adult adoption sought in that case would have been "wholly inconsistent with the underlying public policy of providing a parent-child relationship for the welfare of the child" 

The very next year, in Matter of Best, we again chose not to construe the words of the adoption statute strictly, declining to permit an adopted child to inherit under the will of his biological grandmother because "powerful policy considerations militate against construing a class gift to include a child adopted out of the family" . One commentator has characterized our decision in Best as "in defiance of the text of the Domestic Relations Law  yet in accordance with current societal views of adoption and the adoptive relationship"

What Matter of Robert Paul P and Matter of Best underscore is that in strictly construing the adoption statute, our primary loyalty must be to the statute's legislative purpose, the child's best interest. "The adoptive family arises out of the State's concern for the best interest of the child". This profound concern for the child's welfare is reflected in the statutory language itself: when "satisfied that the best interests of the child will be promoted thereby," a court "shall make an order approving the adoption" 

This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child's parents to become the child's legal parents. The advantages which would result from such an adoption include Social Security and life insurance benefits in the event of a parent's death or disability, the right to sue for the wrongful death of a parent, the right to inherit under rules of intestacy and eligibility for coverage under both parents' health insurance policies. In addition, granting a second parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of emergency and are under a legal obligation for the child's economic support .

Even more important, however, is the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children's relationship with their parents, siblings and other relatives will continue should the co-parents separate. Indeed, viewed from the children s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and avoids the sort of disruptive visitation battle we faced in Matter of Alison D. v Virginia M 

Missing page 119
 

II evidences a successive expansion of the categories of persons entitled to adopt regardless of their marital status or sexual orientation. The language in section 110 permitting adoptions by "an adult or minor husband and his adult or minor wife together," for example, is the result of 1951 legislation intended to enlarge the class of potential adoptive parents to include minors The sponsors of the bill, passed during the Korean War, were concerned that the child of a young father drafted into the military would be unable to take his father's surname (Another illustration of such expansion is the 1984 amendment increasing the number of potential adoptive parents by permitting adoption by adults not yet divorced but living apart from their spouses pursuant to separation agreements. Supporting that amendment was New York's "strong policy of assuring that as many children as possible are adopted into suitable family situations" . As explained, the amendment "would further this policy by requiring prospective adoptive parents to be evaluated on the basis of their ability to provide appropriate care, parental guidance and the security of a permanent home and not on their marital status alone. The marital status of a person should have no predetermined effect on the ability of that person to provide appropriate care to an adopted child";

Consistent with this trend, the latest amendment to Domestic Relations Law § 110 further increased the number of potential adoptive parents by permitting adoptions by nondivorced adults who have lived apart from their spouses for 18 months These amendments reflect some of the fundamental changes that have taken place in the makeup of the family. Today, for example, at least 1.2 of the 3.5 million American households which consist of an unmarried adult couple have children under 15 years old, more than a six fold increase from 1970  . Yet further recognition of this transformation is evidenced by the fact that unlike the States of New Hampshire and Florida , New York does not prohibit adoption by homosexuals. Indeed, as noted earlier, an administrative reg-ulation is in place in this State forbidding the denial of an agency adoption based solely on the petitioner's sexual orientation 

 A reading of section 110 granting ap-pellants, as unmarried second parents, stand-ing to adopt is therefore consistent with the words of the statute as well as the spirit behind the modern day amendments: encouraging the adoption of as many children as possible regardless of the sexual orienta-tion or marital status of the individuals seek-ing to adopt them

Domestic Relations Law § 117

 Appellants having standing to adopt pursuant to Domestic Relations Law § 110, the other statutory obstacle relied upon by the lower courts in denying the petitions is the provision that "after the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession" Literal application of this language would effectively prevent these adoptions since it would require the termination of the biological mothers' rights upon adoption thereby placing appellants in the "Catch-22"' of having to choose one of two co-parents as the child's only legal parent.

As outlined below, however, neither the language nor policy underlying section 117 dictates that result.

The Language of Section 117. Both the title of section 117  and its opening phrase  suggest this bas nothing to do with the s individual to adopt, an issue treated exclusively in section 110 . Rather, section 117 addresses the legal effect of an adoption on the parties and their property.

Also plain on the face of section 117 is that it speaks principally of estate law. Words such as "succession," "inheritance," "decedent," "instrument" and "will" permeate the statute. Read contextually, it is clear that the Legislature's chief concern in section 117 was the resolution of property disputes upon the death of an adoptive parent or child. As we observed in People ex rel. Sibley v. Sheppard, , where we declined to read section 117's termination language "over broadly to interfere with the court's ability to protect the best interest of the child" and thereby prohibit visits with the child's biological grandparents, the "bulk of the statute refers to intestacy and succession" . Thus, from the very beginning of what is now section 117, both the scholarly commentary about the section and its dozen or so amendments have centered on issues of property rights and inheritance. 

It is of course true that this Court, in a 1937 case rejecting claims for support brought by a destitute adopted adult daughter against her biological father, interpreted the then applicable version of section 117 as ''making" the adopted child the natural child of the adoptive parent" and "relieving the natural parent from any responsibility for the child's support".
The version of section 117 in effect at that time however, did not contain current subdivision (l)(i), which,  on its face, appears to limit the applicability of the entire first half of section 117 including the language concerning termination in  subdivision (l)(a) "only to the intestate descent and distribution of real and personal property".
Obviously, one cannot invoke the termination language in subdivision (l)(a) in its most literal sense and at the same time reject a literal application of the above quoted language in subdivision (l)(i). A strict construction of the entire section would lead  to the incongruous result that the termination language of subdivision (l)(a) is relevant only when there is a dispute as to
intestate succession.

Significantly, the language in subdivision  (l)(i) was added only recently , after the promulgation of the regulations providing that neither marital status  nor sexual orientation may alone be determinative in an adoption proceeding . In recommending passage of  the 1986 amendment, the Law Revision Commission warned that:
"In distinguishing between various classes of adopted-out children, the Commission must base different treatment of some children on factors which do not result in discrimination against certain classes of persons (e.g., nonmarital children, unwed parents, males, females) in a manner impermissible under the Equal Protection Clause of the United States or New York State Constitution" 

This admonition indicates a concern that an unduly restrictive reading of section 117 could have the discriminatory and unintended effect of making unwarranted, detrimental distinctions between "nonmarital children" like the two children here and those children whose parents are married.

Given this warning, as well as the anomaly created by an unnecessarily literal reading of the statute, we conclude that neither subdivision (1)(a) nor subdivision (1)(i) was intended to have universal application.

Recent Statutory Amendments.

Moving beyond the language and history of section 117 itself, our reading of the statute is further supported by recent amendments to other sections of the adoption law which provide elaborate procedural mechanisms for regulating the relationships between the child, the child's (soon-to-be former) biological parents and the persons who will become the child's parents upon adoption.

In the context of agency adoptions, Social Services Law § 383-e, enacted in 1990 , provides that biological parents willing to give their child up for adoption must execute a written instrument, known as a "surrender, "stating " in conspicuous bold print on the first page" that "the parent is giving up all rights to have custody, visit with, write to or learn about the child, forever" 

The second category of adoption private placement is also regulated by a newly revised statute requiring the execution of a written "consent" stating that "no action  may be maintained  for the custody of the child" (Domestic Relations Law § 115-b[1] ). In fact, the procedure mandated by Domestic Relations Law § 115-b closely parallels that of Social Services Law § 383-e. Both statutes, for example, require biological parents to execute a document that effectively terminates parental rights. Both provisions require a Judge or Surrogate (if the document is executed in court) to inform the biological parents of the consequences of their act, and advise them of their right to be represented by counsel. More importantly, both statutes provide generally that the biological parents' surrender" or "consent" may be revoked within 45 days, and that an adoption proceeding may not be commenced until after the expiration of that period. Thus, by the time the adoptive parents become the child's legal parents the biological parents have already formally agreed to relinquish their relationship with the child.

The procedural safeguards contained in Social Services Law § 383-e and Domestic Relations Law § 383-c safeguards that reflect modern sensitivities as to the level of procedural protection required for waiver of parental rights further indicate that section 117 does not invariably mandate termination in all circumstances. Under the language of section 117 alone, a biological mother's rights could theoretically be severed unilaterally, without notice as to the consequences or other procedural protections. Though arguably adequate in 1938 when the statute was enacted .

The above described amendments to Social Services Law § 383-e and Domestic Relations Law § 116-b suggest that the Legislature in recent years has devised statutory vehicles other than section 117 to carefully regulate and restrict parental rights during the adoption process, again militating against a rigid application of subdivision (1)(a).

The Ambiguity Should Be Resolved in the Children's Favor. Finally, even though the language of section 117 still has the effect of terminating a biological parent's rights in the majority of adoptions between strangers where there is a need to prevent unwanted intrusion by the child's former biological relatives to promote the stability of the new adoptive family the eases before us are entirely different. As we recognized in Matter of Seaman, "complete severance of the natural relationship is not necessary when the adopted person remains within the natural family unit as a result of an intrafamily adoption."

One example of an adoption where the Legislature has explicitly acknowledged that termination is unwarranted is when the child, with the consent of the biological parent, is adopted by a "stepparent". A second implicit exception occurs in the adoptions by teenage fathers authorized by the 1951 amendment to section 110. Since minor fathers adopting their own biological children are not "stepparents" under the language of Domestic Language Law § 117(1)(d), they would be prohibited from adopting were section 117's termination language to be  mandatory in all cases. The seemingly automatic cutoff language of section 117 could not have been intended to bar these adoptions, however, since they are precisely what the Legislature sought to encourage in the first place.

Yet a third class of adoptions where complete termination of parental rights appears to be contrary to legislative intent are those adoptions contemplated by Social Services Law § 383-e, a completely acted five years ago. Specifically, New York  law now allows the parties to an agency adoption to "agree to differ the nature of the biological parents' post adoptive relationship with the child. The statute thus expressly permits parties to agree that the biological parent will retain specifies rights such as visitation after the adoption, thereby authorizing "open adoptions",  for the first time in this State.

A year prior to the enactment of  Social  Services Law § 383 c, this court declined to sanction the concept of "open adoption" because of our belief that i with what we perceived to be section 117's  requirement that termination of parental  rights was mandatory in all cases.
Significantly, when enacting Social Services Law § 383-e the very next year, the Legisla-ture saw no need to amend Domestic Rela-tions Law § 117. Again, if section 117 automatically terminated parental rights in all circumstances, it would have the practical effect of overriding the conditional surrender/"open adoption" provisions of Social Services Law § 383-e. By passing Social Services Law § 383-e as it did, the Legislature thus necessarily rejected the reading of section 117 articulated in Matter of Gregory B. 

Given the above, it is plain that an interpretation of section 117 that would limit the number of beneficial intrafamily adoptions cannot be reconciled with the legislative in-tent to authorize open adoptions and adop-tions by minors. The coexistance of the statute's seemingly automatic termination language along with these more recent enactment's creates a statutory puzzle not susceptible of ready resolution.

One conclusion that can be drawn, however, is that section 117 does not invariably require termination in the situation where the biological parent, having consented to the adoption, has agreed to retain parental rights and to raise the child together with the second parent. Despite their varying factual circumstances, each of the adoptions described above stepparent adoptions, adoptions by minor fathers and open adoptions share such an agreement as a common denominator. Because the facts of the eases before us are directly analogous to these three situations, the half-century-old termination language of section 117 should not be read to preclude the adoptions here. Phrased slightly differently, "the desire for consistency in the law should not of itself sever the bonds between the child and the natural relatives"

'Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results". Given that section 117 is open to two differing interpretations as to whether it automatically terminates paren-tal rights in all eases, a construction of the section that would deny children like Jacob and Dana the opportunity of having their two de facto parents become their legal parents, based solely on their biological mother's sex-ual orientation or marital status, would not only be unjust under the circumstances, but also might raise constitutional concerns in light of the adoption statute's historically consistent purpose the best interests of the child. 

These concerns are particularly weighty in Matter of Dalza. Even if the Court were to rule against him on this appeal, the male petitioner in Matter of Jacob could still adopt by marrying Jacob's mother. Dana, however, would be irrevocably deprived of the ben-efits and entitlements of having as her legal parents the two individuals who have already assumed that role in her life, simply as a consequence of her mother's sexual orientation.

Any proffered justification for rejecting these petitions based on a governmental policy disapproving of homosexuality or encouraging aging marriage would not apply- As noted above, New York has not adopted a policy disfavoring adoption by either single persons or homosexuals. In fact, the most recent legislative document relating to the subject urges courts to construe section 117 in precisely the manner we have as it cautions against discrimination against "nonmarital children" and "unwed parents" . An interpretation of the statute that avoids such discrimination or hardship is all the more appropriate here where a contrary ruling could jeopardize the legal status of the many New York children whose adoptions by second parents have already taken place. 

Conclusion

To be sure, the Legislature that last codified section 117 in 1938 may never have envisioned families that "include l two adult lifetime partners whose relationship is characterized by an emotional and financial commitment and interdependence" . Nonetheless it is clear that section 117, designed as a shield to protect new adoptive families, was never intended as a sword to prohibit other-wise beneficial intrafamily adoptions by second parents.

Accordingly, in each proceeding, the other of the Appellate Division should be reversed without costs, the adoption petition reinstated and the matter remitted to Family Court for further proceedings consistent with this opinion.

Judges Simons, Titone and I respectfully dissent and vote to affirm in each case. These appeals share a statutory construction issue under New York's adoption laws. While the results reached the majority  are intended to have a benevolent effect on the individuals involved in these two cases, the means to those ends transform the legislative adoption charter governing countless other individuals. Additionally, the dispositional  methodology transcends institutional limitations on this Court's proper exercise of its authority, fixed by internal discipline and by the external distribution of powers among the branches of government.

The majority minimizes the at-will relationships of the appellants couples who would be combined biological-adoptive parents in each case, but the significant statutory and legally central relevancy is inescapable. Unlike married and single parent households, each couple here cohabits only day-to-day, no matter the depth or length of their voluntary arrangements. Their relationships lack legal permanency and the State has not endowed them with the benefits and enforceable protections that flow from relationships recognized under color of law. Nowhere do statutes, or any case law previously, recognize de facto, functional or second parent adoptions in joint circumstances as presented here.

Specifically, in the respective cases, the availability of adoption is implicated because of the operation-of-law consequences under Domestic Relations Law, based on: (1) the relationship of the biological parent and the putative adoptive child if a male and female unmarried cohabiting couple, one of whom is the biological mother of the child, jointly petitions to adopt the five-year-old child; and (2) the relationship of the biological parent and her child if the lesbian partner of the biological mother petitions alone to adopt the five-year-old child. Neither case presents an issue of ineligibility because of sexual orientation or of discrimination against adoption on that basis, despite the majority's evocations in that regard.

The facts are uncontested and pertinently recited in the Chief Judge's opinion. In Matter of Jacob, Family Court, Oneida County, dismissed the petition on the ground that the petitioners are an unmarried couple. No best interests factual or evidentiary evaluations were undertaken. The court held that adoption proceedings are creatures of statute and that Domestic Relations Law § 110 does not authorize adoption by an unmarried couple. The Appellate Division, Fourth Department, affirmed concluding that the statute did not permit adoption by two unmarried persons together.

In Matter of Dana, Family Court, Putnam County, denied the adoption petition. The court held that (1) G.M. did not have standing to adopt pursuant to Domestic Relations Law § 110, since she did "not fall within any of the classifications under Domestic Relations Law Section 110"; and (2) the proposed adoption ran afoul of Domestic Relations Law § 117(1)(a).

The Appellate Division, Second Department, unanimously affirmed but contrary to Family Court, it found that G.M. had standing to adopt under Domestic Relations Law § 110 as an "adult unmarried person." The Per Curiam opinion limited the dispositional rational to the effect of Domestic Relations Law § 117 automatic termination of the biological parent's rights upon adoption by other than a stepparent. The Court, therefore, ruled that Family Court's result was correct for the reason that "clearly the intent of the Legislature was to deny a single person the right to adopt another's child while the natural parent, a single person, retains parental rights".

Although adoption has been practiced since ancient times, the authorization for this unique relationship derives solely from legislation. It has no common-law roots or evolution. Therefore, our Court has approved the proposition that the statutory adoption charter exclusively controls. 

The judicial role is most sensitive, but no case has ever recognized a judicially created right of adoption. This restraint is especially pertinent when the Legislature has expressly enacted a plenary, detailed legislative plan. The majority acknowledges New York's unique legislative developments and the several major cases in which adoptions have been disallowed that together document these juridically limiting principles, yet the majority's ruling and result paradoxically turn away from those consistent guideposts.

Pointedly, this Court's unqualified utterance is that "the Legislature has supreme control of the subject". A transcendent societal goal in the field of domestic relations is to stabilize family relationships, particularly parent-child bonds. That State interest promotes permanency planning and provides protection for an adopted child's legally secure familial placement. Therefore, statutory authorizations should not be substantively transformed under the guise of interpretation, and all facets of the adoption statutes should be harmonized.

Notably, too, for contextual understanding of these cases, New York State has long refused to recognize common-law marriages. It also does not recognize or authorize gay or lesbian marriages, though efforts to secure such legislation have been pursued

Domestic Relations Law § 110, entitled 'Who May Adopt," provides at its outset that "[an adult unmarried person or an adult husband and his adult wife together may adopt another person" (emphasis added). Married aspirants are directed to apply "together", i.e., jointly, as spouses, except under circumstances not applicable in these eases.

In Dana, appellant G.M. asserts that she may petition as "[a]n adult unmarried per-son," without regard to the legal consequences of other related provisions of the adoption charter. She petitioned individually and qualifies under section 110, irrespective of her sexual orientation. The Dans case, therefore, is not a case involving the right of homosexuals to adopt, nor, self-evidently, is the Jacob case. Satisfying the standing component does not, however, complete the analysis or overcome section 117 operation-of-law impact on both cases.

Appellants Stephen T.K. and Roseanne M.A. urge that the term "adult unmarried person" should also permit them to adopt "together" as an unmarried couple. They by pass the statute's plain words by claiming that nothing in the statutory language of Domestic Relations Law § 110 precludes their adoption effort. Preclusion or prohibition, however, are not the point. Petitioners burden, ignored by the majority, is to identify a source of statutory authorization.

Petitioners came to court in the Jacob case to adopt "together," as two unmarried adults The court must deal with them as they presented themselves and must also obey the statute that on its face allows a joint petition by "married" spouses "together. The statute unambiguously declares that an adult unmarried person or an adult husband and his wife together may adopt another person. Words of such precise import and limitation are not merely talismanic and may not be rendered superfluous, as the majority has done here. The Legislature's chosen words must be given their substantive, intended meaning, and interpretation is no substitute for its failure to be more explicit or flexible.

The statutory language a structively reveal no legislative intent or hint to extend the right and responsibility of adoption to cohabiting unmarried adults. The opposite obtains, notably in the Jacob case, in the direct contraindication of Domestic Relations Law § 11 expressing the State's long-standing public policy refusal to recognize at-will common-law relationships as marriages. Confusion is thus sown by the holdings today by blurring plain meaning words and clear lines between relationships that are legally recognized are those that are not. Under the newly fashioned theory rooted in ambiguity, any number of people who choose to live together even those who may not cohabit could be allowed to adopt a child together. The result in these cases and reductio ad absurdum illustrations flowing from appellants theorem that singular may mean plural and vise versa under a general axiom of statutory construction inapplicable in the face of specificity are far beyond any discernible legislative intent of New York lawmakers. Marriages and single parent households are not, after all, mere social conventions generally or with respect to adoption circumstance; they enjoy legal recognition and special protections for empirically proper social reasons and public policies

The legislative history of adoption laws over the last century also reveals a dynamic process with an evolving set of limitations. The original version enacted in 1873 provided: :Any minor child may be adopted by any adult" . In 1896, the Legislature cut back by stating that "an adult unmarried person, or an adult husband or wife, or an adult husband and his wife together, may adopt a minor". This language was further restricted, 1920, when the Legislature omitted from the statute the language " or an adult husband or wife". Since enactment of 1920 amendment, the statute has provided that "an adult unmarried person or an adult husband and his wife together may adopt". The words chosen by the Legislature demonstrate its conclusion that a stable familial entity is provided by either a one-parent family or a two-parent family when the concentric interrelationships enjoy a legal bond. The statute demonstrates that the Legislature, by express will and words, concluded that households that lack legally recognized bonds suffer a relatively greater risk to the stability needed for adopted children and families, because individuals can walk impunity and unknown legal consequences.

Next, the Legislature specified the exceptions in section 110 permitting a married individual to petition for adoption without consent of the other spouse. The failure of the Legislature to provide for circumstances of these two cases examined in the light of successive particularized legislative amendatory actions, is yet another cogent refutation of the uniquely judicial authorization of adoption, unfurled today under the twin banners of statuary interpretation and ambiguity. 

Lastly in this connection, we derive a diametrically different lesson from Matter of Alsion D, v Virginia M., decided in 1991. The majority for that case held that a lesbian partner is not a "parent" under Domestic Relations Law 70(a). The Court expressly rejected an expansionist judicial  definition of "de facto parent" or "functional"  family and declined to enlarge legislatively linited delineation's. Yet, today's majority, only four years later, revives and applies that rejected  de facto methodology using another nonstatutory, undelineated term, "second parent adoption". The majortiy now grants legal recognition to what it refers to as functional parents in both cases, the couples comprised of two individuals bound together soley by personally elective affiliation, not by marriage as the statute prescribes. This turnabout should be contrasted again with what the Court in Alison D actually did: it took a statute at its precise words and gave them effect, because the legally recognized stability of these most sacred human relationships were determined to be paramount by the Legislative and thus, by this Court.

When the majority augments extant legislation in these cases because the corpus juris does not reflect modern arrangements in which individuals nevertheless yearn to be accorded family status under the law (compare, Matter of Alison D. v. Virginia M, supra ), it significantly dissolves the central rationale of Alison D.  As former Chief Judge Breitel noted in another connection, the "judicial process is not permitted to rove generally over the scene of human affairs. Instead, it must be used, on pain of violating the proprieties, within the framework of a highly disciplined special system of legal rules characteristic of the legal order"  The rulings today constitute a rejection of such wise admonitions about appropriate limitations on the judicial process and power.

The Per Curiam opinion of the Court in Matter of Alison D. v. Virginia M.,  also instructively refrained from any reliance on or reference to Braschi v. Stahl Assocs. Co.  Thus, the incorporation of Braschi into the instant cases is inapposite and should be unavailing, because these are very different cases with very different issues and operative policies.

A key societal concern in adoption proceedings is, we all agree, the best interests of children. The judicial power to grant an adoption cannot be exercised, however, by simply intoning the phrase "the best interests of the adoptive child" as part of the analysis to determine qualification for adoption. That approach bypasses crucial, threshold steps and begs inescapably interwoven questions that must be considered and answered at the outset of the purely statutory construction issue in these eases. Before a court can arrive at the ultimate conclusion that an adoption is in the best interests of a child therefore, it is first obliged to discern whether the particular application is legislatively authorized. Reversing the analysis erects the building before the foundation is in place.

Best interests, in any event, is not an abstract concept floating in a vacuum, but must be factually rooted, supported by and applied to an evidentiary record. With no findings or record in any prior court in these cases on that issue, we fail to understand how the majority here makes first instance assumptions to assert and support its conclusions about the best interests of Jacob and Dana as part of the statutory construction analysis.

The dual, statutorily interlocked inquiries of qualifications and operation-of-law consequences of adoption cannot be shunted aside in favor of an aspiration that a potential adoptive person might provide a child with good, better or best emotional or financial circumstances. An intuitive preference that a particular adoption might likely or generally serve some child's beneficial interests should not suffice to solve the more comprehensive puzzle of legislative intent that will evolve into a ratio decided as the juridical adoption charter to govern the whole of a society . We note that the disciplined approach we would use in deciding these appeals does not implicate the bona fides or unchallenged loving and earing motivations and feelings of any of the individuals involved in these eases. While promulgated and ap-plied law may take eognizanee of those fae-tors, however, it should not be subordinated to them. Also, these children are not mem-bers of a suspect elass. They are members of stable homes, already presently in the per-manent placement and eustody of their bio-logical mothers.

Courts are ultimately limited to viewing issues as presented in litigated cases within the confines of their evidentiary records. Since the majority agrees that the common iSSUe in these cases is purely statutory con-struction, its reliance on generalized assump-tions about life and health insurance, Social Security and death benefits, eonstitutes a questionable policy makeweight. Those cri-teria offer scant guidance towards discover-ing legislative intent behind Domestic Relations Law 110 and 117. Moreover, they are incomplete policy factors, inappropriate to statutory construction analysis, and their imputation in these cases simultaneously eschews consideration of any competing substantial State interest concerns.

For the benefit of the two youngsters and the preservation of some orderly proeedural regularity, we draw assuranee from the eor-reetive aetion that at least remits each ease to Family Court, to undertake a first in-stanee, best interests hearing in the Jacob ease, and an updated hearing in the Dana ease, now that three years have transpired sinee the eourt eondueted its original limited inuuirv.

A prineipal faetor in these eases must also ultimately inelude eonsideration of the inexo-rable operation-of-law eonsequenees that flow from section 117, a distinetive feature of New York's adoption laws. Speeifieally, courts are statutorily mandated to apply Domestic Relations Law § 110 together with the inter-eonneeted features of Domestic Relations Law 117.

Domestic Relations Law § 117 provides: "After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental d?~ties to-ward and Df all responsibilities for and shall have no rights over such adoptive child or to his [or her] property by descent or sueees-sion" (emphasis added). The plain and over-arehing language and punetuation of section 117 eannot be judicially blinked, repealed or rendered obsolete by interpretation.

Section 117 says that it severs all facets of a biological parent's conjunctively listed rela-tionships upon adoption of the child. This Court has recognized that "[t]he purpose of the section [former section 114, now section 117] was to define the rela-tion, after adoption, of the child to its natural parents and to its adopting parents, together in their reeiprocal rights, duties and privileges. That is a critically extant, interpretive proposition from this Court and not some merely atavistic utterance.

In implementation of its prerogative to define family relationships that are aceorded legal status, the Legislature even preseribed a stepparent departure from the otherwise automatie section 117 eonsequenee. It thus sought to obviate the inevitable result that an order of adoption might aetually effeetuate the symbolie Solomonie threat by severing the rights of a eonsenting biological parent in such specifically excepted circumstances where a biological parent is married to an adopting stepparent. One would have thought promulgation of such an exception unnecessary, yet the Legislature chose eer-tainty of statutory expression for every even-tuality as to the severanee or nonseveranee operation-of-law eonsequenees of section 117.

Appellants in both eases nevertheless pro-pose the theory that section 117 is meant to apply only to inheritance succession of prop-erty rights after adoption and should have no effect on the wider expanse and array of rights and responsibilities of a biological par-ent with an adoptive child. The language of section 117 reveals, however, that the biolog-ical parents' duties, responsibilities and rights with respect to the adoptive child are separate and distinct from, and more coniprehensive678 than, a single, narrow eate-gory of inheritance rights. The use of the disjunetive "or" before the phrase, "property by descent or sueeession," eannot be dis-counted or avoided; it denotes the important and elemental legislative demareation. These observations are not some syntaetical or grammatical exercise. Indeed, syntax and grammar are necessary tools of preeise expression, aeceptable norms of interpreta-tion and reasonably uniform understanding and, when coupled with disciplined, thorough statutory construction principles, they bear legitimately and cogently on sound and sup-portable legal analysis 

Besides, section 117(1)(i) merely defines a particular class of restrieted inheritance rights, namely, "intestate descent and distri bution" of property. Thus, adopted children and their biological parents may stilS inherit from one another by v~7ill or acquire property by inter vivos instrument. This again demonstrates that the intestate devolution of property aspeet is only a partie-ular species and reeent ineorporation into this more sweeping, long-standing statute. It does not represent a displaeement or total substitution for the statute's predominant purport.

The majority states that "from the very beginning of what is now section 117, both the seholarly eommentary about the section and its dozen or so amendments have een-tered on issues of property rights and inheri-tanee". This state-ment sidesteps and subordinates the original and still operative language of section 117 itself: "The parents of an adopted child are, from the time of the adoption, relieved J;rom all parental duties toward, and of all respon-sibility for, the child so adopted, and have no rights over it". Inheritanee was not mentioned and the eomprehensive sweep of the statute eould not be plainer. Finally, the primacy of this Court's preeedents and legislatively pro-mulgated words as authority must be aecord-ed greater rank and respect than any second-ary or tertiary materials charaeterized as "scholarly commentary."

Betz u Horr, is particularly poignant and cogent. There, a sick and destitute adopted adult sought support from her biological father. In rejecting the claim, the Court recognized that the purpose of former section 114 (now § 117) was the complete termination of parental rights and responsibilities of the biological parents following adoption. The Court stated that in order to impose upon the biological parent a duty to support, "it would be necessary to read into section 114 [now section 117] of the Domestic Relations Law an intent to preserve the duty and responsibility of the natural parent to support the child notwithstanding unambiguous provisions that, after adoption, all  responsibility of  the natural child ceases ". That the biological mothers in these cases may wish that their parental rights not be terminated by an order of adoption is no more determinative than the compelling circumstances of Betz. The statute and our cases remain controlling. Section 117 should not be regulated to, nor was it designed to operate with, case-by-case personal exemptions from universally and equally applied principles of statutory law or precedentially governing authorites.

The rationale of these cases is likely to engender signifieant legal uncertainty and practical problems between biological and  adoptive parents. Conflicts concerning upbringing of children, spect to visitation rigl care, religious prefere the like, may ensue.

able and unseen seque to the settled, permanf ment and set of relx section 117.

A careful examinati unaltered intent basex of the statute reveals section 117 was to enf exclusive embrace of to sever all relational: family. That goal stil to the lifetime and t the affected individua of dying intestate 
 
 
 

Not surprisingly, jority's reliance on
 responsibility of the natural parent to sup- The use of these attenuated provisions in-
 port the child notwithstanding the plaiez and volving entirely different situations to argue
 unambigmous provision thwat, after adoption, for what amounts to a functional, partial
 all responsibility of the natural parent for repeal 1680by implieation of section 117's unal-
 the child ceases ". That the biological mothers rv
 in these eases may snish that their parental

The assembled and varled statutory eon-
 rights not be terrrunated by an oruer of
 adoption is no more deterrninative than the struetion arguments are, in the end, held
 eompelling eireumstanees of Betz. The stat- together by the maJority's tineture of consti
 ute and our eases remain eontrolling. A erueial utteranee illus-
 tion 117 should not be relegated to, nor was trates: ' [A] eonstruetion of the section that
 it designed to operate with, ease-by-ease per- would deny children hke Jaeob and Dana the
 sonal exemptions from universally and equal- opportunity of having their two de faeto par-
 ly applied prineiples of statutory law or pree- ents beeome their legal parents, based solely

 edentially governing authorities. on their biological mother's sexual orienta-
  . . tion or marital status, would not only be
The rationale of these eases ls llkely to unJust under the c?rcumstances but also engender sigmficant legal uneertamty and
 .. ,  m?ght ra?~se const?tut?onOl concerns In llght
 praetleal problems between Dloiogleai and of the adoption statute's historicallY eonsis-
 adOptive parents Confliets eoneermng the tent purpose—the best interestS of the child
 upbringing of children, for example, with re-
 speet to visitation rights, sehooling, medical . This sweeping amalgam
 able and unseen sequelae is hardly eondueive renders doubtful even the opportunity for
 to the settled, permanent, new home en~iron- appropriate statutory arnendments to deal

ment and set of relationships direeted by with pereeived ambigtuties. It also tolerates

 section 117. no potential for showing in the future any
  State interest supporting any enaetment reg-
 A eareful examination of the Legislatures 
 unaltered intent based on the entire history
 of the statute reveals the original purpose of 
 section 117 was to enfold adoptees within the This "equal proteetion" eoneern was not
 exelusive embraee of their new families and 
 to sever all relational aspeets with the former and the majority's preemptive eloud, eoupled
 family. That goal still applies and espeeially to the lifetime and lifelong relationships of  the affeeted individuals, not just to the effeet  of dying intestate. 

 adjudicatory process and developed reeord of jority's relianee on Soeial Serviees Law pleadings and proof on an as-applied basis. § 383< and Domestic Relations Law §§ 114 Whatever labels are used, no eonstitutional and 115-b are inapposite and unpersuasive. issue is squarely and thoroughly presented in these eases anyway, nor is any appropriate for speeulation on these reeords. Moreover the vagueness as to preeisely whieh par-ties'—the children or the adopting petitioner or the biological parent—eonstitutional rights are somehow at risk adds bewilderment to the analysis and frustrates any attempted, preeise rejoinder.

Overlaying the entire problem about such projeetions of faeial or applied eonstitutional doubt, east upon a eomplex set of statutes, is the inattentiveness to the fundamental pre-sumption of eonstitutionality of duly enaeted legislation and # to the appropriate defer-enee, indeed "supremaey," of the legislative role in this area . These overridden preeepts should be eentral to the dispositional equation in these cases instead of a tenuous statutory eonstrue-tion axiom insinuated on a problematieal eon-stitutional premise.

Signifieantly, this Court did not even have the benefit in these eases of the eustomary
adversarial advoeacy dynamie. No briefs or
oral arguments supportive of the results be-
low or against the arguments for adoptions
• were presented, though several amici briefs
in support of appellants' positions were ae-
cepted. Thus, one-sided eonstitutional elaims
'raised for the first time on appeal should
- espeeially be foreelosed from this Court's
- consideration based on well-settled institu-
tional and preeedential prineiples 
We emphasize that it is the dubiety east over very signifieant eonstitutional propositions in this fashion that is at least as disquieting as an unequivoeal eonstitutional deelaration This is espeeially so sinee the AttorneyZen eral of the State was given no notiee or opportunity, as required by Exeeutive Law § 71, to fulfill the obligation of the Depart-ment of Law to defend the eonstitutionality— or against the inehoate uneonstitutionality— of the beclouded statutes.

The instant two eases also take the consti-tutional hook of Matter of Patchogue-Med-ford Congress of Teachers tA Board of Educ, where the assertion of a general eonstitutional elaim in a pleading was used by this Court to reaeh a speeifie State eonsti-tutional basis for deeision, two giant steps beyond that signifieant jurisprudential outer limit. Now, parties may assert eonstitutional elaims at the final appeal stage and appellate courts may drive a debatable statutory eon-struetion wedge—a speculative, future eonsti-tutional eoneern—into the disposition of very significant statutes and eases.

The majority's eonstitutional prognostiea-tion is thus linked to a statutory construc-tion deviee that teaches courts to avoid reaching eonstitutional issues when they need not. The rubrie is dubiously applied here, however sinee it is designed primarily to respeet the presumption of eonstitutionali-ty, not beeloud it. The presumption is a reservoir of judicial power, preserving judi-eial eapital, resourees and power for when they are most and unavoidably needed. The rubrie has never been used, as here, to antie ipate amorphous doubt over statutes as ap-plied to real, future eases and eontroversies-By employing a eanon of eonstruetion to, in effeet, reach an unlitigated issue in order to avoid potentially "embarrassing constitution al questions" in the future, the majority in the instant eases violates the very eanon it invokes. It ultimately also transgresses an-other overriding eanon, that courts should not legislate under the guise of interpretation 

The majority eoneludes that "[g]iven that section 117 is open to two differing interpre-tations"—a eonelusion with whieh we have already noted our strong disagreement in any event—the Court must eonstrue the stat-ute to avoid eonstitutional doubt . That ease dealt v.~ith the State eonstitutional limits on the jurisdietion of the Family Court in placing juvenile delinquents in foster homes. Sinee the statutory eon-struetion issue directly implieated artiele VI, § 13 of the State Constitution, it is arguably appropriate for the Court to have added a dietum eoneerning the speeial court's juris-dietional limits under the State Constitution. As the Court noted, the statutory question involved the "doetrine of distribution of pow-ers "'that each department should be free from interferenee, in the discharge of its peeuliar duties, by either of the others""' . Here, the would-be eonstitutional question involves nothing of that kind and does not implieate a powers section of the State Constitution; rather, it foreeasts an equal proteetion "eon-eern.'

As the Court has elsewhere observed, failuree to raise a eonstitutional issue in nisi prius courts results in an inadequate reeord, lack of joinder, and laek of development and test-ing of adjudicative analysis to permit and justify the appellate eourt to make its fair, reasonably tested and long-lasting determi-nation and preeedent on the merits . Furthermore, if a litigant does not raise a partieular legal argument before a eourt of first instance, that effectively deprives the other party—if there is one, as there is not in these eases—of a fair opportunity to present
and answer the proofs and deprives the pro-eess of jurisprudence of the essential cheek-and-balanee against unilateral mistake or misapprehension. This Court has also repeatedly warned that "if any unsought consequences result, the Legislature is best suited to evaluate and resolve them" . These eautions are uniquely appropriate with respeet to the Legislature's conceededly "supreme" power and provenanee eoneerning its legal ereature: adoptions.

In sum, the eommon issue here involves a subjeet on whieh the Legislature has ex-pressed itself. These eases appear on a sereen on which the Legislature has delineat-ed its will and judgment methodieally and meticulously to reflect its enactments. Am-biguity cannot directly or indirectly create or substitute for the lack of statutory authoriza-tion to adopt. These adoption statutes are luminously clear on one unassailable feature: no express legislative authorization is diseer-nible for what is, nevertheless, permitted by the holdings today. Nor do the statutes anywhere speak of de faeto, funetional or second parent adoptions. Frankly, if the Legislature had intended to alter the defini-tions and interplay of its plenary, detailed adoption blueprint to eover the eireumstanees as presented here, it has had ample and repeated opportunities, means and words to effeetuate such purpose plainly and defini-tively as a matter of notiee, grudanee, stabili-ty and reliability. It has done so before 

Beeause the Legislature did not do so here, neither should this Court in this man-ner. Cobbling law together out of interpre-tative ambiguty that transforms fundamen-tal, soeietally reeognized relationships and substantive prineiples is neither sound statu-tory eonstruetion nor justifiable lawmaking. Four prior courts in these two cases eorreet-ly dismissed the respeetive adoption petitions. Sinee those appropriate judieial determinations are based on what the Legislature  actually enaeted and speeifieally authorized the Appellate Division orders should be af firmed.