In re J.W.
In re J.W.
Opinion of the Court
The petitioners, M.F. and C.N., are unmarried, cohabitating adults who jointly petitioned to adopt M.F.'s minor biological son, J.W. The Circuit Court ( Moran , J.) ruled that RSA 170-B:4 (2014) does not authorize such an adoption and dismissed the petition. See RSA 170-B:4 (governing who may adopt). On appeal, the petitioners argue that the trial court erred because they are eligible to jointly adopt J.W. pursuant to RSA 170-B:4, II and III. We affirm.
The relevant facts follow. M.F. is the biological father of J.W., who was born in 2007. M.F. has been in a relationship with C.N. since approximately 2008. They live together and share two biological children but have never married. J.W. has lived with them since approximately 2011, when M.F. was awarded primary residential responsibility of J.W. The parental rights of J.W.'s birth mother were terminated in 2017.
M.F. and C.N. thereafter filed a joint petition to adopt J.W. They argued that their joint petition is authorized under RSA 170-B:4 because M.F. is "[t]he unmarried parent of the adoptee," RSA 170-B:4, III, and C.N. is "[a]n unmarried adult," RSA 170-B:4, II. The trial court disagreed, relying in part on our decision in
In re Jason C.
,
subsequent motion for reconsideration. This appeal followed.
Adoption was unknown to the common law and is wholly statutory; therefore, our review of the law is limited to interpreting the applicable statutes enacted by the legislature.
In re Estate of McQuesten
,
We turn first to the language of the relevant statute. RSA 170-B:4 lists categories of individuals who are eligible to adopt.
Jason C.
,
Any of the following adults may adopt:
I. Husband and wife together.
II. An unmarried adult.
III. The unmarried parent of the adoptee.
IV. A married person without that person's spouse joining as a petitioner, if the adoptee is not the petitioner's spouse; and if any one of the following circumstances apply:
(a) The petitioner's spouse is a parent of the adoptee and assents to the adoption;
(b) The petitioner and his or her spouse are legally separated;
(c) The failure of the petitioner's spouse to join in the petition is excused by the court by reason of prolonged unexplained absence, unavailability, or circumstances constituting an unreasonable withholding of assent; or
(d) The petitioner's spouse assents to the adoption and the adoptee is over the age of 18.
RSA 170-B:4. The petitioners' contention that they are eligible to jointly adopt J.W. is premised on their argument that the statute authorizes the joint adoption of a minor child by an unmarried parent of the child and an unrelated, unmarried adult. See RSA 170-B:4, II, III.
A brief overview of the statute gives context to our determinations below. RSA chapter 170-B, including RSA 170-B:4, was first enacted in 1973,
see
Laws 1973, 266:1, as part of legislation proposed by the Governor's Commission on Laws Affecting Children.
See
In re Adoption of Baby C.
,
In
Jason C.
, which required us to interpret paragraph II of RSA 170-B:4, "we look[ed] carefully at the categories of eligible petitioners to adopt" listed in the statute.
Jason C.
,
The petitioners contend that Jason C. is distinguishable. They argue, in part, that Jason C. addressed only whether two unmarried adults could jointly adopt pursuant to paragraph II, whereas they are seeking to jointly adopt pursuant to paragraphs II and III. The petitioners focus on paragraph III, asserting that this paragraph is "intended to permit the unmarried parent of a child to adopt the child jointly with another individual." (Emphasis added.) They reason that paragraph III must be so construed because, otherwise, it "would amount to mere surplusage, as an unmarried parent of the child, in possession of full parental rights, would have no need or reason to pursue adoption." In other words, the petitioners assume that an unmarried parent would have no reason to seek adoption of his or her child as a sole petitioner, and thus the legislature's intent in including paragraph III was to facilitate a joint adoption by the unmarried parent and another individual. We disagree.
We first note that paragraph III of the statute, like paragraph II, is phrased in the singular.
See
RSA 170-B:4, III ("The unmarried
parent
of the adoptee." (emphasis added)). Thus, in
Jason C.
, we described an individual seeking to adopt under paragraph III as "applying alone."
Jason C.
,
We find further support for this conclusion in the 1971 version of the Uniform Adoption Act (UAA), from which the language of RSA 170-B:4 originates.
See
Unif. Adoption Act § 3 (amended 1971), 9 Part IA U.L.A. 143 (1999); Bianco, Chamberlain & DeGrandpre,
supra
at 201 (stating that the Governor's Commission on Laws Affecting Children used the UAA "as its basic underlying document" in drafting the 1973 legislation that created RSA chapter 170-B). When RSA 170-B:4 was first enacted in 1973, the language of paragraph III was identical to the language of section 3(3) of the UAA.
Compare
RSA 170-B:4, III (1977),
with
Unif. Adoption Act § 3(3) (amended 1971), 9 Part IA U.L.A. 143. The official comment to section 3 states, in relevant part, that the UAA "permits any unmarried father or mother to adopt his [or her] own child." Unif. Adoption Act § 3 cmt. (amended 1971), 9 Part IA U.L.A. 144;
see
In the Matter of Ball & Ball
,
In addition, Arkansas has construed the language of its own provision, which is modeled after the UAA,
see
In arguing for a different interpretation of RSA 170-B:4, the petitioners question why an unmarried parent would have any "need or reason" to adopt his or her own child. One reason becomes apparent when the statute is considered in the historical context within which it was originally enacted. RSA 170-B:4, III enables an unmarried parent of a child born out of wedlock to "formalize [his or her] relationship with the child through adoption." Bianco, Chamberlain & DeGrandpre,
supra
at 207. When RSA chapter 170-B was first enacted, New Hampshire law treated a child born out of wedlock differently from a "legitimate" child in certain respects.
See, e.g.
,
Robin C. v. Schweiker
,
Therefore, we observe that legitimation of a child born out of wedlock is one reason why an unmarried parent might seek to adopt his or her child pursuant to RSA 170-B:4, III. Accordingly, we reject the petitioners' argument that this paragraph
must
be intended to permit an unmarried parent to adopt jointly with another individual, as this argument is premised on the assumption that an unmarried parent "would have no need or reason to pursue adoption" of his or her own child as a sole petitioner.
Additionally, the petitioners have not persuaded us that the legislature intended to allow an unmarried parent and an unmarried, unrelated adult to jointly adopt the minor child of the unmarried parent. Indeed, the petitioners' construction of RSA 170-B:4 would lead to results that the legislature clearly did not intend. As we observed in
Jason C.
, RSA chapter 170-B "assumes that the adopted child will have one home."
Jason C.
,
The petitioners also attempt to distinguish
Jason C.
by arguing that the concern
about "stability" expressed in that case is not present here because they have a "stable household." They point out that
Jason C.
involved a divorced couple seeking to jointly adopt the foster child who lived with the couple before the marriage ended,
see
Jason C.
,
Our observations in
Jason C.
, however, were made in the context of discerning legislative intent from the plain language of the statute we were interpreting.
See
id
. at 764,
"[P]olicy determinations as to what [eligibility] limitations apply are for the legislature, not the judiciary, to make."
In re Adoption of Baby Z.
,
Finally, the petitioners raise concerns about the implications that, in their view, could arise from our construction of RSA 170-B:4, II and III. We note the scope of our decision in this case. We hold that, as currently written, RSA 170-B:4 does not authorize the joint adoption of a minor child by the unmarried parent of that child and an unmarried, unrelated adult. The petitioners do not assert that C.N. qualifies as J.W.'s "parent" or "stepparent" for purposes of RSA chapter 170-B. Nor are we presented with the issue raised in many of the out-of-state cases relied upon by the petitioners, in which the court considered whether to construe the jurisdiction's adoption statutes so as to permit the same-sex partner of the child's biological parent to adopt the child, without severing the biological parent's parental
rights, at a time when the jurisdiction did not recognize same-sex marriage.
While we conclude that the petitioners' remaining arguments do not warrant further discussion,
see
Vogel v. Vogel
,
Both the dissent and the State emphasize our previous observation that "the position of more enlightened courts ... [is] that adoption statutes are to be considered liberally, with a view to effectuating the statutory policies."
Y.L.
,
For example, the dissent essentially takes the position that the circuit court can dispense with statutory requirements for adoption as long as the court determines that the proposed adoption would be consistent with the policy objectives of the statutory scheme.
See
RSA 170-B:1 (2014) (identifying the purposes of RSA chapter 170-B);
Jessica W.
,
One of the statutory requirements for adoption concerns the consent of the natural parents.
See
RSA 170-B:5 (2014);
see also
Durivage v. Vincent
,
Generally speaking, consent to a proposed adoption must be obtained from the birth mother, the legal father, and, in certain circumstances, the birth father.
Baby Girl P.
,
In cases where a stepparent seeks to adopt the child of his or her spouse, the parent married to the adopting stepparent must assent to the adoption,
see
RSA 170-B:4, IV(a), but need not execute a surrender of parental rights because that parent's legal relationship with the child will remain intact after the adoption,
see
RSA 170-B:25, II;
Jessica W.
,
The legislature created a second exception to this general rule in RSA 170-B:25, III. In
Y.L.
, we held that, pursuant to this exception, an adult female could be adopted by an unmarried adult male without severing her legal relationship with her birth mother.
See
Y.L.
,
The State correctly notes that the legislature has only created two exceptions to the general rule that adoption severs the
adoptee's legal relationship with both natural parents.
See
RSA 170-B:25, II, III. To the extent the dissent relies upon the stepparent exception, we disagree that this exception applies here. As noted above, C.N. is not married to J.W.'s parent, nor do the petitioners even argue that C.N. qualifies as J.W.'s "stepparent" for purposes of RSA chapter 170-B. Furthermore, as the State acknowledges, this case is factually distinguishable from
Jessica W.
, where we liberally construed the stepparent exception to permit the birth mother of the child to retain her parental rights where the unmarried natural father adopted in order to legitimate their child.
Jessica W.
,
We conclude that, because neither exception applies, under the current statutory scheme, C.N. - an unmarried, unrelated adult - cannot adopt M.F.'s minor child unless M.F. surrenders his parental rights to the child.
See
RSA 170-B:5, I; RSA 170-B:16, III (2014); RSA 170-B:19, IV. Because M.F. has not surrendered his parental rights to J.W. (and does not intend to), the statutory requirements for adoption are not met.
See
RSA 170-B:19, IV, VI. When the statutory requirements are not met, the court does not reach the merits of the adoption petition.
See
Angel Lace M.
,
The dissent posits that the proposed adoption arrangement can be achieved in this case because it reads RSA 170-B:19, IV as providing the circuit court with "discretion to authorize C.N.'s adoption of J.W. and excuse the surrender of M.F.'s parental rights because doing so would be in J.W.'s best interest." See RSA 170-B:19, IV (stating court may grant petition to adopt a minor child if it determines, inter alia , "that the required surrenders have been obtained or excused and that the adoption is in the best interest of the adoptee" (emphasis added)). In effect, the dissent construes RSA 170-B:19, IV as allowing the court, in its discretion, to "excuse" the effect of RSA 170-B:25, which severs the legal relationship between the adoptee and his or her birth parents except in limited circumstances that are not present here.
We are generally reluctant to address issues that the parties have neither raised nor briefed.
See
LaChance v. U.S. Smokeless Tobacco Co.
,
We reiterate that legislative intent is the touchstone of our inquiry in matters of statutory interpretation, including the interpretation of adoption statutes.
See
Y.L.
,
Affirmed.
LYNN, C.J., and DONOVAN, J., concurred; HICKS and BASSETT, JJ., dissented.
The language of paragraph III was changed to "[t]he unmarried parent of the adoptee" when RSA chapter 170-B was repealed and reenacted in 2004. Laws 2004, 255:1.
Robin C.
discussed RSA 460:29 (2018), which permits a " 'putative father of any child born out of wedlock' " to "bring[ ] a legitimation petition in [superior] court."
Robin C.
,
While the dissent seems to fault us, as well as the petitioners themselves, for focusing upon the fact that they brought the adoption petition jointly, we treat the petitioners as joint petitioners because that is what they ask us to do. Indeed, their statutory construction arguments are premised upon the joint nature of their petition.
See
Deere & Co. v. State of N.H.
,
Same-sex marriage became legal in New Hampshire in 2010. Laws 2009, 59:1, :10;
In re Guardianship of Madelyn B.
,
Dissenting Opinion
Because we would interpret our adoption statutes to allow the contemplated adoption in this case to take place, we respectfully dissent. Like the State, we believe "that a liberal construction of the adoption statute" allows petitioner C.N. to adopt J.W., the minor son of her domestic partner, petitioner M.F., "without requiring [M.F.] to surrender his parental rights over J.W., so long as both [M.F.] and C.N. consent to the adoption arrangement and the trial court finds that the adoption is in J.W.'s best interests."
The petitioners are unmarried, domestic partners and, together, are the biological parents of two children. M.F. and C.N. have been together since approximately 2008. M.F. is also the biological father of J.W., a minor, who was born in December 2007. See RSA 170-B:2, XI (2014) (defining a "minor" for the purposes of adoption law as an individual "under the age of 18"). In addition, M.F. is J.W.'s legal father, having been named on J.W.'s birth certificate. See RSA 170-B:2, X(a) (2014). The parental rights of J.W.'s biological mother were terminated in 2017. J.W. has resided with M.F. and C.N. since approximately 2011.
In 2018, the petitioners jointly filed a petition to adopt J.W. Their petition was jointly filed, even though M.F. has, in his attorney's words, "full parental rights" with respect to J.W. C.N. petitioned under RSA 170-B:4, II, which allows "[a]n unmarried adult" to adopt. RSA 170-B:4, II (2014). M.F. purported to do so pursuant to RSA 170-B:4, III, which allows "[t]he unmarried parent of the adoptee" to adopt. RSA 170-B:4, III (2014).
At the hearing on their motion, the petitioners' attorney explained the petition was brought jointly so as to allow M.F. to retain his parental rights:
If I brought a petition solely in [C.N.'s] name, it would seem that [M.F.] would have to terminate his parental rights for that to get finalized. So I brought a joint petition with [M.F. and C.N.], who are not married but have been in a family unit for over a decade at this point and have two children in common.
....
So I'm trying to get clarification from the Court.... [I]f the Court says they need to be married, I will have a conversation with my clients about that. If the Court says we could bring it in [C.N.'s] name and we can waive the termination of [M.F.'s] rights, then we can do that.
Ultimately, the trial court dismissed the petition on the ground that RSA chapter 170-B "does not authorize an adoption application from an unmarried adult when a biological parent is not surrendering his parental rights." In effect, the trial court ruled that the outcome that the petitioners sought - that C.N. would adopt J.W., and M.F. would retain his parental rights - was not possible under the current statutory scheme.
The petitioners and our colleagues focus upon the fact that M.F. and C.N. brought the adoption petition jointly. We believe that focus is mistaken. New Hampshire is a notice pleading jurisdiction and, as such, we take a liberal approach to the technical requirements of pleadings.
Porter v. City of Manchester
,
Like the State, we believe that this case requires us to answer a question similar to that posed in
In re Y.L.
See
In re Y.L.
,
As an unmarried adult, C.N., "is plainly eligible to adopt under our state's adoption statute."
Not as clear under our adoption statute, though, is whether J.W. may maintain his
legal relationship with M.F. after being adopted by C.N.
See
ibr.US_Case_Law.Schema.Case_Body:v1">id
Here, similar to the situation in
In re Y.L.
, the statutory scheme does not explicitly tell us whether the relationship between J.W. and M.F. may survive when, as in this case, the adopting parent (here, C.N.) is unmarried.
See
In re Y.L.
,
We agree with the State that the fact that J.W. is a minor does not change the analysis. Although the adoption statute generally "requires the parental rights of a minor's birth parent or parents to have been either surrendered or terminated before an adoption is finalized,"
In re Y.L.
,
Nor should the statutory scheme be interpreted to require such a surrender in the instant case, even though C.N. is not J.W.'s stepparent. RSA 170-B:19, IV (2014) allows the court to authorize the adoption of a minor when the court "determines that the required surrenders have been obtained or excused and that the adoption is in the best interest of the adoptee." In our view, the court has the discretion to authorize C.N.'s adoption of J.W. and excuse the surrender of M.F.'s parental rights because doing so would be in J.W.'s best interest.
As the State aptly observes, our conclusion is further supported by
In re Jessica W.
,
Although we do not believe that, properly viewed, the petition in this case is truly a "joint" petition, even if it were, we disagree with the majority that our decision in
In re Jason C.
,
Although the court in
In re Jason C.
used language implying that two, unmarried adults could not jointly adopt under
any
circumstances, that language is dicta and, more importantly, is based upon a rationale that is no longer true. The court in
In re Jason C.
reasoned that two unmarried applicants could not be allowed to adopt jointly because, if they could, the trial court would lack jurisdiction to decide custody issues.
Since
In re Jason C.
was decided, however, RSA 458:17 was repealed and RSA 461-A:3 now provides that the court has jurisdiction to decide parental rights and responsibilities when "unwed parents are living apart." RSA 461-A:3, II (2018);
see
Laws 2005, 273:1, :20 (enacting RSA chapter 461-A and repealing RSA 458:17, among other provisions in RSA chapter 458). Thus, while it may well be that when
In re Jason C.
was decided, we could
properly say that the legislature did not intend "to authorize adoption in circumstances in which custody disputes would be likely to arise, or indeed could arise, independently of the superior court's domestic relations jurisdiction under RSA chapter 458," that rationale no longer applies.
In re Jason C.
,
Given that an important rationale underlying the holding of
In re Jason C.
is no longer true, we would limit
In re Jason C.
to its facts. In other words, we would interpret
In re Jason C.
narrowly to preclude two, unmarried adults from jointly adopting a child only when to do so would contravene legislative intent that applicants provide a unified and stable household for the child.
See
id
. at 764,
For all of the above reasons, therefore, we respectfully dissent from the majority opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.