In Re the Adoption of T.K.J.

Judge RULAND

specially concurring.

I concur in the result reached by the majority, but I write separately to express my concern relative to petitioners’ equal protection .challenge to the adoption statutes.

In my view, we should not address the equal protection claim on the merits because that contention has not been properly presented. See § 13-51-110, C.R.S. (1987 Repl. Vol. 6A); see also Armstrong v. Carman Distributing Co., 108 Colo. 223 , 115 P.2d 386 (1941). Specifically, the trial court dismissed the petitions on its own motion and prior to any hearing. Hence, neither the petitioners nor the Attorney General have had the opportunity for a hearing to address that claim. And, petitioners do not request that we remand the ease for that purpose.

It is also my view, however, that the present statutory scheme for adoption presents *497 some very troublesome questions that should be addressed in an appropriate proceeding.

By legislative pronouncement, the function of the adoption statutes is to promote and serve the best interests of the children. See § 19-1-102(2), C.R.S. (1986 RepLVol. 8B). Notwithstanding this laudatory purpose, I find no explanation in the statutory scheme why a potential adoptive parent may not be considered in the context of the best interests of a child simply because a biological parent is not married to the party who seeks to become an adoptive parent. Hence, application of the rational basis test in response to petitioners’ equal protection challenge raises significant concerns.

For example, if each biological mother in this ease were willing to relinquish her parental rights, the co-petitioner could then proceed with the adoption petition. Conversely, if the mother of one of these children was deceased, upon consent of her child’s guardian, the surviving petitioner could pursue a petition to adopt. Section 19—5— 208(l)(c), C.R.S. (1995 Cum.Supp.). And, if these petitioners had obtained legal custody of the children out-of-state, an adoption could be approved under the Colorado statute. See §§ 19—5—203(l)(h) & 19-5-203(1)®, C.R.S. (1995 Cum.Supp.). Thus, the rational basis for these obvious discrepancies is not apparent.

On the other hand, if one assumes again that the adoption is in the best interest of each child, then why should the child be deprived of the legal commitments and benefits from a decree which provides a second parent to that child? Obvious benefits would include a legal and enforceable obligation of support, workers’ compensation and social security benefits in the event of an untimely death, and other intangible but critically important benefits which accrue from the parent-child relationship. See 42 U.S.C. § 416 (1994); § 8-42-114, C.R.S. (1995 Cum. Supp.).

I am especially concerned because of the obvious need in today’s society to provide young children with parental guidance. During fiscal 1991, 10,710 petitions in juvenile delinquency were filed in the Colorado courts. See Office of the State Court Administrator, Colorado Judicial Department Annual Report July 1, 1990—June SO, 1991 Statistical Supplement 39 (1991). In only four years, the filings have increased to 15,-175—an increase of almost 42%. See Office of the State Court Administrator, Colorado Judicial Branch FY 1995 Annual Report July 1, 1990—June SO, 1991 33 (1995). In this same time frame, the dropout rate from state public high schools has also increased such that in excess of 13,000 students have left the state school system in grades 7 through 12. Colorado Department of Education, Colorado Graduation Rates for Class of 1995 Annual Dropout Rates for Grades 7-12 75 (March 1996). In addition, the incidents of child abuse continue to escalate with the primary form of abuse being that of neglect. See U.S. Department of Health and Human Services, National Center on Child Abuse and Neglect, Child Maltreatment 1994: Reports from the States to the National Center on Child Abuse and Neglect ix & 3-9 (Washington, DC: U.S. Government Printing Office, 1996).

These statistics, standing alone, suggest that good parents who are willing and able to undertake the substantial responsibility and nurturing required in child rearing should receive legal recognition without regard to whether a marriage is involved. Further, I note that statutes in a number of other jurisdictions, including the District of Columbia, have been applied to authorize adoptions under the circumstances here, based upon the critical finding that such was in the best interests of the child. See In re M.M.D., 662 A.2d 837 (D.C.App.1995); Petition of KM., 274 Ill.App.3d 189 , 653 N.E.2d 888 , 210 Ill. Dec. 693 (1995)(citing cases from various states in which adoptions permitted and approved). Hence, it is my hope that the issue will be addressed soon either by the General Assembly or in an appropriate court proceeding.