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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


9th Circuit Court-Nashua Probate Division
No. 2017-0482


                                    IN RE Y.L.

                           Submitted: May 15, 2018
                          Opinion Issued: July 3, 2018

      Valerie C. Raudonis, of Nashua, by brief, for the petitioner.


      Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the memorandum of law), as amicus curiae.

      HICKS, J. We are asked in this case whether, under New Hampshire’s
adoption statute, see RSA ch. 170-B (2014 & Supp. 2017), the petitioner, J.P.,
an unmarried male, may become the adoptive father of Y.L., an adult female,
without altering the legal parental status of Y.L.’s birth mother — as all three
so desire. Contrary to the finding of the Circuit Court (Quigley, J.), we believe
that he may and, consequently, we reverse and remand.

      As an unmarried adult, J.P. is plainly eligible to adopt under this state’s
adoption statute. See RSA 170-B:4, II (2014). Equally evident is that, as an
adult who assents to the adoption, Y.L. may be adopted. See RSA 170-B:3, I
(2014). Basic, also, is that, if the adoption is approved, Y.L. will “be considered
the child of [J.P.], entitled to the same rights and privileges and subject to the
same duties and obligations as if [she] had been born” to him. RSA 170-B:25, I
(2014). And, finally, because the statute contemplates a child having, at most,
two legal parents at any given time, see generally RSA 170-B:25 (2014), it is
straightforward that Y.L. may not maintain her legal relationship with both of
her birth parents if adopted by J.P.

        Not as clear under the adoption statute, though, is whether Y.L. may
maintain her legal relationship with one of her birth parents — here, her birth
mother — in the adoption at issue. The legal relationship would remain intact
automatically if J.P. and Y.L.’s birth mother were married: “[W]hen a child is
adopted by a stepparent, the child’s relationship to such child’s birth parent
who is married to the stepparent shall in no way be altered by reason of the
adoption.” RSA 170-B:25, II. And it could remain intact permissively if J.P.
were married to someone else, assuming either J.P. was legally separated, see
RSA 170-B:4, IV(b) (2014), or his spouse assented to his adoption of Y.L., see
RSA 170-B:4, IV(d) (2014), and both Y.L. and her birth mother agreed to
continue their parent-child relationship, see RSA 170-B:25, III, as both do
here.1 See also RSA 170-B:4, IV(c) (2014) (authorizing a married person to
adopt without that person’s spouse joining as a petitioner where the spouse’s
failure to join “is excused by the court by reason of prolonged unexplained
absence, unavailability, or circumstances constituting an unreasonable
withholding of assent”). Nonetheless, the statute does not explicitly tell us
whether the relationship survives, or may survive, in a situation such as this —
i.e., the adopting parent in an adult adoption is unmarried.

       Given the lack of explicit guidance, the Circuit Court looked to the
adoption statute’s stated purpose, observing that the statute “contemplates
that the birth parent or parents ‘. . . give up the child’ so that the adoptive
parent or parents are ensured ‘. . . an undisturbed relationship with the child
from and after the date of adoption.’” (Quoting RSA 170-B:1, II, III (2014).) In
furtherance of this purpose, the court concluded that Y.L.’s legal relationship
to her birth mother, like the one to her birth father, must terminate upon
adoption, apparently so as to not impact the newly created parent-child
relationship between J.P. and her. The court ruled, therefore, that J.P. may
adopt Y.L., but only if he did so “as a single parent who will be the only parent
[of Y.L.] after adoption.”

      The adoption of an adult, however, must be distinguished from the
adoption of a minor. In the adoption of a minor, it is necessary to establish an
immediate and continuing “undisturbed relationship,” RSA 170-B:1, III,
between the adoptee and the adoptive parent or parents for the sake of the
adoptee’s stability in home and everyday life. See In re Jason C., 129 N.H. 762,
764-65 (1987). Hence, the adoption statute requires the parental rights of a
minor’s birth parent or parents to have been either surrendered or terminated

1 We offer no opinion as to how the adoption statute would apply in this case if Y.L. had two
female parents or two male parents, except to note that the current statutory framework appears
ill-suited to deal with either situation. See RSA 170-B:25, III; RSA 170-B:27, I (2014).


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before an adoption is finalized. See RSA 170-B:5 (2014); RSA 170-B:7, II, V
(2014).

       Such a surrender or termination of parental rights is not required, by
contrast, in the adoption of an adult. See RSA 170-B:7, IV (2014). This is
presumably because the adoptee is, after all, an adult, readily capable of
managing his or her own relationships to the extent permitted by law.
Nowhere in the adoption statute did the legislature evince the intent to vitiate
that capability by requiring an adult adoptee to terminate his or her legal
relationship with both birth parents, as opposed to only one, in order to
effectuate an adoption otherwise authorized by the statute. Revising that
legislative choice by implying the existence of such a prohibition would not only
be improper, Appeal of Kadle Props. Revocable Realty Trust, 169 N.H. 728, 732
(2017), but also illogical, as the State, as amicus curiae, points out in its
memorandum of law in support of J.P.’s petition, given one of the adoption
arrangements explicitly contemplated and permitted by the statute.

       That arrangement, discussed above, is the same arrangement agreed to
by J.P., Y.L., and Y.L.’s birth mother, albeit with one difference: J.P. would
need to be married and either have the assent of, or be legally separated from,
his spouse. See RSA 170-B:4, IV(b), (d); RSA 170-B:25, III; see also RSA 170-
B:4, IV(c). To hold that absence of assent or legal separation from a
nonexistent third-party spouse is fatal to the agreed-upon arrangement of the
three adults in this case, we believe, would go squarely against “the position of
more enlightened courts, that adoption statutes are to be considered liberally,
with a view to effectuating the statutory policies.” In re Jessica W., 122 N.H.
1052, 1057 (1982) (quotation omitted); cf. In re Jason C., 129 N.H. at 764
(affirming denial of a joint adoption application by two unmarried adults
because they did not share the “common characteristic” of individuals eligible
to adopt a minor under the statute, which is that “their domestic
circumstances do not threaten to disrupt the living arrangements they will
provide for the child to be adopted”).

      We elect, instead, to remain in line with such courts and, accordingly,
conclude that the adoption statute authorizes the adoption arrangement
contemplated and consented to by J.P., Y.L, and Y.L.’s birth mother. “Of
course, if the legislature disagrees with our construction, it is free to amend the
statute as it sees fit.” Zorn v. Demetri, 158 N.H. 437, 441 (2009). The order of
the Circuit Court is therefore reversed and the case remanded for proceedings
consistent with this opinion.

                                                   Reversed and remanded.

     LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.



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