On May 20 the Supreme Court of the Virgin Islands ruled that the Superior Court erred when it dismissed a second-parent adoption petition on the ground that the Virgin Islands did not recognize the Canadian same-sex marriage of the petitioners and granting the co-parent’s petition would require terminating the parental rights of the birth mother.  In re L.O.F. & N.M., 2015 V.I. Supreme LEXIS 13.  Eschewing a literal reading of the archaic adoption statutes, the court held that the policy of deciding adoption petitions in the best interest of children provides a basis to “waive” the termination of parental rights when a same-sex co-parent (or stepparent, for that matter) petitions to adopt a child.

The biological mother of L.O.F. and N.M. and her same-sex partner were married in Canada in 2007, and have raised their children together in St. Croix, V.I.  The children were conceived through anonymous sperm donations, the donors having necessarily waived any parental rights.  The women filed an adoption and name-change petition in the Superior Court in December 2012, asking the court to grant an adoption in the partner’s favor without affecting the parental rights of the birth mother so that “all parental rights and obligations [are] shared equally.”  The petition described this arrangement as a “second-parent adoption,” a procedure approved in many court decisions in the United States.  However, Superior Court Judge Denise A. Hinds Roach denied the petition, holding that because the petitioners “filed together as spouses” under “a limited ‘spousal’ or ‘stepparent’ provision in the V.I. adoption statutes and the V.I Code limits marriage to different-sex couples, the court could not grant the adoption.  After the superior court denied a motion for reconsideration, the petitioners appealed to the Supreme Court.

Writing for the unanimous court, Justice Maria M. Cabret found that Judge Hinds Roach had misconstrued the V.I. adoption provisions.  Indeed, the court found that a literal interpretation of those provisions would disallow ordinary stepparent adoptions.  This is because the statute authorizes adoptions only by single people or married couples, and apparently requires terminating the parental rights of natural parents upon the adoption of their children.  Reviewing the history of the V.I. statute, first enacted in 1921 and later incorporated without change in the V.I. Code in 1957, Justice Cabret pointed out that divorce and remarriage were not common phenomena in the Virgin Islands in those days so provision for stepparent adoptions was not made.  However, the court went on to say that a literal reading of the statutory language should be rejected if it would produce absurd results or undermine the statutory objective, which is to “consider the best interests of the child when making decisions that concern the child.”

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