In Interest of Angel Lace M.

HEFFERNAN, CHIEF JUSTICE

(dissenting). The issue addressed in this case is whether the Wisconsin statutes governing adoption allow Annette G. to adopt Angel, a child with whom she already has a functional parent-child relationship. The adoption statutes on their face do not address this issue. Therefore, this court must employ accepted canons of statutory construction to interpret the meaning of the adoption statutes. Much has been written about the nature of the canons of construction and the fact that contradictory canons exist that would lead to opposite results if applied to the same statute. 1 In the present case, however, this court is provided with helpful guidance from the legislature on the appropriate canon of construction to apply to the adoption statutes. Section 48.01(2), Stats., states that the children's code, of which the adoption statutes are a part, "shall be liberally construed to effect the objectives contained in this section." Legislative Council notes accompanying the bill in which the children's code was introduced indicate that liberal construction is particularly applicable to the adoption statutes:

*522 Sub. (3) is intended to effect a change in the construction of the adoption statutes. Although the courts have said that in adoption statutes the principal consideration is the best interests of the child, they have also held that the adoption procedure, since it was unknown to the common law, is purely statutory and the statutes must be strictly followed. Sub. (3) provides that the sections in ch. 48 including those on adoption should be liberally construed.

Legislative Council notes accompanying 1955 Senate Bill no. 444, contained in Wisconsin Legislative Council Reports, vol. VI, part 1, bill no. 444, at p. 10 (1955) (case citations omitted). Liberal construction of the adoption statutes, then, is the canon this court must employ to effectuate the objectives of the children's code. 2

Section 48.01(2) adds:

The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents or guardian of the child, the interest of the person or persons with whom the child has been placed for adoption and the interests of the public.

*523 In considering the interests of the public in the context of adoption, three additional objectives listed in sec. 48.01(1) of the children's code appear to be applicable:

(b) To provide for the care, protection and wholesome mental and physical development of children, preserving the unity of the family whenever possible.

(f) To assure that children pending adoptive homes will be placed in the best homes available and protected from adoption by persons unfit to have responsibility for raising children.

(g) To provide children in the state with permanent and stable family relationships.

Because the best interests of the child is "paramount", it appears that the legislature deems liberal construction of the statutes particularly appropriate when such construction effectuates the best interests of the child unless the other concerns listed outweigh the child's best interests. This court should interpret the adoption statutes following the approach mandated by the legislature.

In the present case everyone involved agrees that the adoption is in Angel's best interests. After conducting a study of Angel's home a social worker employed by the Community Adoption Center, an agency licensed to place children for adoption, stated that the adoption was in Angel's best interests and recommended that it be approved. In describing Annette's relationship with Angel, the report stated:

[Annette and Angel] were building a snow fort outside on this worker's home visit day. They play *524 board games together as well as watching TV, building a fire, etc. Anne [tte] indicates a strong interest in reading to Angel and she is well aware of her progress in school and has no difficulty with disciplining her or with spending time alone with her when [Georgina] is busy with other things. She shows considerable skills in being patient, protective, and accepting of age appropriate behaviors. She is willing to set limits and sees herself as Angel's parent.

The report added that four parties submitting letters of reference described the relationship between Annette and Angel as one of loyalty, responsibility, care and love and recommended that the adoption be permitted.

At the hearing on the petition for adoption, the social worker testified that Angel is a member of a "very stable, happy family unit," adding:

I questioned Ai — [sic] Angel about both of her mothers and she talked very openly about her affectionate feelings for both of them. She also talked about her desire to be adopted and I asked her if she understood what that meant and her — her answer to that was that she would become a [G.] and she is very affectionate toward both of these women and feels very comfortable with them.

Angel's guardian ad litem also stated that it would clearly be in Angel's best interests for the adoption to take place. He stated that "the family unit of Georgina and Annette G. clearly is a very loving and nurturing environment" and that the adoption would provide Angel with greater continuity than she had previously known.

The circuit court hearing the petition for adoption made the following finding of fact:

*525 [Annette] has established a substantial, stable, emotional and financial, parental relationship with [Angel]; in the event that something should happen to [Georgina] ... there would be increased stability-in [Angel's] life if [Annette] had a legal relationship with this child.

The circuit court concluded "that it would be clearly in the best interests of [Angel] for the parental rights of [Terry] to be terminated and for this child to be adopted by [Annette]."

Because no one opposed the adoption when certification was accepted by this court, we undertook the extraordinary procedure of appointing highly competent counsel to act as "devil's advocate" so that we could better examine the merits in an adversarial posture. Even that appointed counsel does not question the circuit court's finding that the adoption would be in Angel's best interests. 3

In the present case, none of the other interests listed in sec. 48.01(2) preclude liberal construction of *526 the statute with the paramount consideration being the child's best interests. The interests of Angel's current parents would be furthered by allowing this adoption. Terry and Georgina are Angel's current legal parents. The circuit court found that Terry, Angel's legal father, strongly supports the adoption and has consented to termination of his parental rights. 4 The circuit court added that Terry's relationship with Angel had become increasingly distant, was virtually nonexistent at the time of the hearing and was unlikely to be renewed. Georgina, Angel's legal mother, is one of the petitioners requesting that Annette be allowed to adopt Angel and clearly believes that the adoption is consistent with her own interests.

The second interest, that of the person or persons with whom the child has been placed for adoption, is not at issue in this case. Angel is not being placed outside her present family for adoption — if the adoption is allowed she will remain with Georgina and have a legally-recognized relationship with Annette as well. The third interest, that of the public, is also consistent with Angel's best interests. Given the shrinking percentage of children that are raised in two-parent families, 5 and the shrinking percentage of children who receive even minimally adequate care regardless *527 of family structure, 6 the public interest is enhanced by granting legal recognition to two-parent families that do further the express objective in sec. 48.01(1)(g) of "provid [ing] children in the state with permanent and stable family relationships". Because the adoption in this case would further Angel's best interests while either having no effect on or enhancing the additional legislatively-recognized interests, this court should proceed to employ the legislatively-prescribed approach of interpreting the adoption statutes liberally in light of the "paramount consideration" of the best interests of the child.

The first relevant section in the adoption statutes is sec. 48.82(1), Stats., which governs who may adopt. The statute provides:

The following persons are eligible to adopt a minor if they are residents of this state:

(a) A husband and wife jointly, or either the husband or wife if the other spouse is a parent of the minor.

(b) An unmarried adult.

Annette meets the sec. 48.82(l)(b) requirement — she is an unmarried adult.

The second relevant statute is sec. 48.81, Stats., which sets forth the criteria governing who may be adopted:

*528 Any minor who meets all of the following criteria may be adopted:

(1) Except as provided under s. 48.839(3)(b) or if an appointment of guardianship has been made under s. 48.831, a minor whose parental rights have been terminated under subch. VIII or in another state or a foreign jurisdiction.

(2) A minor who is present within this state at the time the petition for adoption is filed.

The portion of sec. 48.81(1) stating that an eligible minor is one "whose parental rights have been terminated" is ambiguous. The prospective adoptee, the child, does not have parental rights and clearly the statute meant to establish that it is the parental rights of at least one of the minor's parents that must be terminated before a minor is eligible for adoption. The question in the present case is whether sec. 48.81 requires that parental rights of both parents be terminated before a minor is eligible for adoption. Looking solely at sec. 48.81, this court need not employ the legislatively-mandated canon of liberal construction in order to conclude that this statute requires that the parental rights of only one parent be terminated in order for a child to be eligible for adoption in those situations in which the remaining parent supports the adoption. Stepparent adoption is a common form of adoption but would be prohibited if sec. 48.81 is read to require that both parents' parental rights must be terminated before an adoption can take place.

In a footnote, the majority states that sec. 48.835(3)(b), 7 which expressly refers to stepparent *529 adoption, and sec. 48.81(1), read in pari materia, clearly allow a minor to be adopted by a stepparent. I agree. However, this conclusion does not preclude further interpretation of sec. 48.81 to determine whether a child may be eligible for adoption in other circumstances in which the rights of only one parent have been terminated. If sec. 48.81 is construed utilizing the canon of liberal constructidn mandated by the legislature, a child may be eligible for adoption after the rights of only one parent have been terminated as long as the remaining legal parent supports the adoption. Such an adoption will still be subject to all of the additional statutory criteria. Because the legislature mandated liberal construction it is contrary to legislative intent to strictly construe sec. 48.81 as prohibiting adoption when only one parent's rights have been terminated with the exception of adoptions otherwise expressly allowed by the statutes. This court should utilize the guidance the legislature has provided.

The third relevant statute is sec. 48.92, Stats., which provides in relevant part:

Effect of adoption....

(2) After the order of adoption is entered the relationship of parent and child between the adopted person and the adoptive person's birth parents, unless the birth parent is the spouse of the adoptive parent, shall be completely altered and all the rights, duties and other legal consequences of the relationship shall cease to exist.

Section 48.92 cannot be interpreted to prohibit the adoption in this case. Section 48.92 does not establish *530 requirements that must be met in order for an adoption to occur; rather, it defines the legal status of the parties after the adoption has been approved. A court granting an adoption is not required to take any action to effectuate sec. 48.92. This court need not determine whether the statute is mandatory or directory because it is not a command but rather a definition of post-adoption status of the family that results from the adoption.

Nonetheless, I will address the argument raised by Georgina and Annette that sec. 48.92 is directory. Following the legislatively-mandated canon that the adoption statutes are to be construed liberally, "shall" should be read as directory rather than mandatory when applied to a current legal parent who is one of the petitioners for adoption and plans to raise the child with the prospective adoptive parent in a nuclear family arrangement. The legislatively-mandated canon of liberal construction requires us to interpret the statute in a way which would, when possible, further the best interests of the child. Construction of "shall" as directory in this case accomplishes precisely that objective. It is contrary to the guidance provided by the legislature to strictly construe sec. 48.92 as requiring the cutoff of a current legal parent's rights when that parent plans to raise the child together with the adoptive parent. Section 48.92 mandatorily defines the status of the parent whose rights are terminated and the adoptive parent who steps into that person's shoes as the legal parent of the child.

Even in the absence of the legislative mandate of liberal construction, the conclusion that "shall" is directory in the limited circumstance set forth above is not inconsistent with the general approach this court takes *531 to determine whether a statutory provision is mandatory:

In determining whether a statutory provision is mandatory or directory in character, we have previously said that a number of factors must be examined. These include the objectives sought to be accomplished by the statute, its history, the consequences which would follow from the alternative interpretations, and whether a penalty is imposed for its violation. (Citations omitted.)

Eby v. Kozarek, 153 Wis. 2d 75, 80 , 450 N.W.2d 249 (1990) (quoting State v. Rosen, 72 Wis. 2d 200, 207 , 240 N.W.2d 168 (1976)).

Looking first to the objectives of the adoption statutes, the legislature has provided, in sec. 48.01(2), that the paramount objective is the best interests of the child. That objective is met in the present case by allowing the adoption to occur. As previously discussed the other interests set forth by the legislature, the interests of the parents and the public, are consistent with Angel's best interests. The consequence of a directory interpretation of "shall" as applied to Georgina is that sec. 48.92 would not cut off her rights and the objective of the adoption statutes could thereby be fulfilled. The consequence of the interpretation that "shall" is mandatory is that, were Annette allowed to adopt Angel, then Georgina's rights would be cut off. Considering both objectives and consequences, the directory construction most nearly accomplishes the legislature's intent.

Section 48.92 and its predecessors, sec. 322.07, 8 have been interpreted by this court on occasion, but *532 generally in cases challenging inheritance rights of adopted persons. 9 These cases do not provide guidance on the issue before us today. In Stickles v. Reichardt, 203 Wis. 579 , 234 N.W. 728 (1931), this court concluded that sec. 322.07 prohibited enforcement of a contract between a birth father and adoptive parents that allowed the birth father to visit the child after the adoption. The liberal construction of sec. 48.92 properly applied in this dissent is consistent with Stickles — in a situation such as that in Stickles in which an adoptive parent steps into the shoes of the former legal parent the cut-off is mandatory as to those two parties unless rights are granted under other stat *533 utes. 10 No one has brought to this court's attention any case interpreting sec. 48.92 that is inconsistent with the liberal construction that effectuates the best interests of the child in this case.

The approach taken in this dissent is consistent with that of the only two state supreme courts that have addressed the issue before us. Although the statutes interpreted in those cases are not identical to those of Wisconsin, they have congruent purposes and thus the interpretation by those courts is highly relevant. The Vermont Supreme Court concluded that the cut off provision 11 in the Vermont adoption statutes could not be interpreted to apply to a natural mother who intended to raise her child together with her partner. Adoptions of B.L.V.B and E.L.V.B., 628 A.2d 1271, 1272 (Vt. 1993). The court reasoned that the state's *534 primary concern in the context of adoption is the welfare of children and a narrow interpretation of the adoption statute would not promote that concern. Id. at 1273 . The purpose of the cut off provision was to protect the legal rights of the adopted person, not to proscribe adoptions by certain individuals. Id. at 1274 . The Massachusetts Supreme Court also focused on the best interests of the child in upholding a joint adoption petition filed by the child's natural mother and her partner. Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993). The court stated that the advancement of the child's best interests is the primary purpose of the Massachusetts adoption statutes and judicial construction should enhance, rather than defeat, that purpose. Id. at 318 . The legislature did not mandate liberal construction in either Vermont or Massachusetts, but the respective courts determined such construction was necessary to further the best interests of the child. This court need not make a determination that liberal construction is necessary to further the best interests of the child — the Wisconsin legislature has already reached that conclusion.

The majority construes the adoption statutes strictly, ignoring the legislatively-mandated canon of liberal construction and applying canons of its own choosing without providing any reasons for doing so. The majority sets forth hypothetical adoption facts that are not before this court and analyzes the statutes in light of these hypotheticals even while acknowledging that other sections of the adoption statutes may prohibit the hypothesized adoptions. The majority also ignores the legislature's clear statement that the best interests of the child are paramount. Although strict construction of a statute is often seen as an exercise of *535 judicial restraint, in the present case such construction is precisely the opposite and flouts the legislative will.

When interpreting sec. 48.81, governing who may be adopted, the majority employs the canon that a statute is not to be construed so as to work absurd or unreasonable results. Applying this canon, the majority concludes that if sec. 48.81 is interpreted to mean that a minor is eligible for adoption after the parental rights of only one parent have been terminated, then a child could be adopted by a second person even against the wishes of the child's present legal parent. The majority then concludes that a minor is not eligible for adoption unless the rights of both parents have been terminated.

The majority's concern about the hypothetical adoption is misplaced, particularly given its acknowl-edgement that other sections of the adoption statutes may prohibit the adoption. It seems highly unlikely that a court would find such an adoption to be in the best interests of the child. Moreover, such an adoption would undoubtedly be prohibited as a violation of the constitutionally protected liberty interest of the legal parent to control the upbringing of that parent's child. 12

*536 Next the majority discusses sec. 48.92(2), which, as previously discussed, provides that after an adoption "all the rights, duties and other legal consequences of the relationship [between the previous legal parents and the adopted child] shall cease to exist." Again the majority employs canons other than liberal construction, stating that "shall" is presumed mandatory in a statute and that the petitioners do not rebut this presumption. The majority also applies a second canon, that enumeration of certain exceptions, here the exception for stepparents, indicates that the legislature meant to exclude other exceptions. When the legislature has indicated which canon this court is to employ, I believe the court is constrained to do so.

In interpreting sec. 48.92(2), the majority sets forth the hypothetical that if "shall" is directory then a court may grant adoption to two people without severing ties between the previous legal parent, leaving the minor with three parents. Again, the hypothetical posited by the majority would likely be precluded by the best interests standard. This hypothetical is also precluded under the liberal construction of sec. 48.92(2) set forth above — the cut off is directory only to the remaining legal parent who continues to be in a *537 nuclear family arrangement with the adoptive parent and the child. 13

The concurring opinion asks the legislature to act to protect the best interests of Wisconsin children. The concurrence rests on the faulty premise that the legislature has not spoken. As I have discussed at length, the legislature has provided guidance — each statutory provision is to be liberally construed to further the best interests of the child. The concurring opinion provides no explanation for the majority's decision to ignore the legislature's expressed direction in respect to construction of the adoption statutes.

As indicated in a law review article cited by the majority, "a major consideration in any legal decision concerning the placement of a child is whether that placement safeguards the child's need for continuity of *538 relationships." 14 The majority disregards Angel's interests. Annette and Angel have a functional parent-child relationship but the majority's conclusion that the relationship cannot be accorded legal protection leaves Angel in a vulnerable position. Annette, who is already Angel's de facto parent, will not have the right nor the obligation to maintain their relationship were Georgina to die or become incompetent or were Annette and Georgina to separate. This court has already closed three avenues that Angel and Annette could have used to obtain legal rights to a continued relationship in the event Annette and Georgina were to separate — the right to seek custody is closed, the right to seek visitation is closed and the option of protecting the relationship through contract is closed. See In re the Interest of 162 Wis. 2d 1002 , 471 N.W.2d 202 (1991). In the best interests of a young girl named Angel, this court should not close the door on her adoption.

I am authorized to state that Justice Shirley S. Abrahamson and Justice William A. Bablitch join this dissenting opinion.

Perhaps the most well-known article discussing the "thrúst and parry" of contradictory canons of construction is Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed, 3 Vand. L. Rev. 395 (1950).

The legislature is most likely to mandate liberal construction in two situations: when setting forth the powers of a governmental body and when establishing social or economic legislation advancing significant public policy objectives. The adoption statutes fit within the second category — liberal construction is mandated in light of the important public policy of the best interests of the child. Other statutes that fit within this second category include: sec. 19.81(4), Stats, (liberal construction of the open meetings statute); sec. 111.31(3) (liberal construction of the statutes prohibiting employment discrimination); sec. 401.102(1) (liberal construction of the Uniform Commercial Code).

This court asked the Department of Justice whether it would appear given the absence of any respondent opposing the positions advanced by the petitioners. The Department of Justice responded as follows:

Because the cases involve the interpretation of the state's adoption statutes, we have conferred with the Department of Health and Social Services, the agency of state government which administers this body of law, concerning the Court's inquiry. Because the Department of Health and Social Services has advised us that it will not be requesting this Department to move to intervene on its behalf in these proceedings, I am writing to advise the court that we will not be appearing in this matter.

Letter from Robert A. Selk, Assistant Attorney General, Administrator, Division of Legal Services, Department of Justice to Chief Justice Nathan S. Heffernan (Oct. 28,1993) (on file with the Clerk of the Supreme Court, file 92-1369).

Hence Terry, although a nominal respondent, is not a party adverse to the petitioners.

Single parent families constitute thirty percent of families and two-thirds of all children will spend some time in a single-parent family before reaching age eighteen. Nancy E. Dowd, Family Values and Valuing Family: A Blueprint for Family Leave, 30 Harv. J. on Legis. 335 , 353 (1993) (citing U.S. Bureau of the Census, Household and Family Characteristics 10 (1990)) (additional citations omitted).

Statistics indicate that approximately 2.5 million children are abused each year in the United States. Nat'l Ctr. On Child Abuse Prevention Research, National Comm'n for Prevention of Child Abuse, Current Trends in Child Abuse Reporting and Fatalities: The Results of the 1990 Annual Fifty State Survey 3 (Deborah Daro and Karen McCurdy eds., 1991).

Section 48.835(3)(b) provides:

If the person filing the adoption petition is a stepparent with whom the child and the child's parent reside, the stepparent shall file only *529 a petition to terminate the parental rights of the parent who does not have custody of the child.

The version of sec. 322.07, Stats., 1953, in effect immediately prior to passage of sec. 48.92 provided:

*532 (1) Except as otherwise provided in this section, the effect of the order of adoption is to completely change the legal status of the adopted person from that of a child of the natural parents to that of a child of the adoptive parents; and to free the adopted person from all legal obligations to or on account of the natural parents, and vice versa.

(2) If the adopted person is not survived by a spouse or by issue or by an adoptive parent and there is no heir or next of kin of the adoptive parents, the property of the adopted person shall descend and be distributed as though there had been no adoption.

(3) If a parent of the person adopted is married to the adoptive parent the relation of the child to the natural parent is not altered by the adoption.

(4) The adopted person does not lose the right to inherit from his natural relatives.

(5) The adopted person shall inherit from his adoptive relatives in the same manner as from his natural relatives.

See Estate of Zastrow, 42 Wis. 2d 390 , 166 N.W.2d 251 (1969); Estate of Topel, 32 Wis. 2d 223 , 145 N.W.2d 162 (1966); Will of Adler, 30 Wis. 2d 250 , 140 N.W.2d 219 (1966); Estate of Rhodes, 271 Wis. 342 , 73 N.W.2d 602 (1955); Estate of Uihlein, 269 Wis. 170 , 68 N.W.2d 816 (1955); Estate of Nelson, 266 Wis. 617, 64 N.W.2d 406 (1954); Estate of Ries, 259 Wis. 453 , 49 N.W.2d 483 (1951).

A situation in which rights were granted by another statute was addressed by this court in In the Matter of the Grandparental Visitation of C.G.F, 168 Wis. 2d 62, 69-71 , 483 N.W.2d 803 , cert. denied, T.F. v. H.F., — U.S. — , 113 S. Ct. 408 (1992). This court held that sec. 48.92(1) and (2) did not preclude grandparents from seeking visitation of the child of their deceased son, who was subsequently adopted by his stepfather, because sec. 880.155 allowed grandparents to petition a court for visitation privileges with respect to a grandchild if one or both parents were deceased.

The cut off provision, 15 Vt. St. Ann. § 448 (1989), provides in relevant part:

The natural parents of a minor shall be deprived, by the adoption, of all legal right to control of such minor, and such minor shall be freed from all obligations of obedience and maintenance to them.

... Notwithstanding the foregoing provisions of this section, when the adoption is made by a spouse of a natural parent, obligations of obedience to, and rights of inheritance by and through the natural parent who has intermarried with the adopting parent shall not be affected.

In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), the United States Supreme Court concluded that the liberty interest protected by the Due Process Clause encompasses an individual's right "to marry, establish a home and bring up children." The Court relied on this liberty interest again in Pierce v. Society of Sisters, 268 U.S. 510 (1925). The Supreme Court has continued to affirm the validity of Meyer and Pierce and stress the primacy of parental authority. In a series of decisions during the 1960s and 1970s, the Supreme Court classified parental rights regarding child rearing as fundamental rights included within the constitutional right to privacy. See, *536 e.g., Zablocki v. Redhail, 434 U.S. 374, 384-85 (1978) (setting forth those personal decisions protected by the constitutional right of privacy). More recently the Court has resumed discussing these rights as liberty interests protected by the Fourteenth Amendment. See Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. —, 112 S. Ct. 2791, 2807 (1992) (plurality opinion of O'Connor, Kennedy, and Souter, JJ.) (stating that matters of marriage, procreation, contraception, family relationships, child rearing and education "are central to the liberty protected by the Fourteenth Amendment").

The majority's interpretation of the adoption statutes may demand further constitutional explication. The parties did not brief a constitutional issue that appears potentially troubling — whether refusing to allow this adoption violates Angel's right to equal protection under the Fourteenth Amendment because she is being treated differently from other children on the basis of her parentage. Without deciding, I note that foreclosing the child of a lesbian woman from enjoying the legal, practical and emotional benefits of growing up in a home with two legal parents could be analogous to unconstitutional discrimination against nonmarital children. See Clark v. Jeter, 486 U.S. 456 (1988); New Jersey Child Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (per curiam); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972). Cf. State v. Yoder, 49 Wis. 2d 430, 448 , 182 N.W.2d 539 (1971), aff'd 406 U.S. 205 (1972) (Heffernan, J., dissenting) (stating that the rights of children as well as parents must be considered).

Emily C. Patt, Second Parent Adoption: When Crossing the Marital Barrier is in a Child's Best Interests, 3 Berkeley Women's L.J. 96 , 102 (1987-88) (citation omitted).