Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

Argued May 26, 1998 -- officially released January 26, 1999

    Appeal, in the second case, by the petitioners from a decision by the respondent adoption review board denying the application by the Probate Court in the district of Ledyard for a waiver of the adoption placement requirement pursuant to General Statutes § 45a-764, brought to the Superior Court in the judicial district of New London at Norwich and tried to the court, Handy, J.; judgment for the petitioners granting the appeal and remanding the case to the respondent adoption review board for further proceedings, from which the respondent adoption review board appealed. Reversed; further proceedings.

    Jane A. Rothchild and Jennifer Middleton, pro hac vice, with whom was Philip D. Tegeler, for the appellants in Docket No. 15868, appellees in Docket No. 15869 (petitioners).

    Susan Quinn Cobb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee in Docket No. 15868, appellant in Docket No. 15869 (respondent).

    David J. Elliott, John C. Glezen, Allan B. Taylor and Lynn A. Kappelman, filed a brief for the National Association of Social Workers et al. as amici curiae in Docket No. 15869.

    The Probate Court thereafter submitted a waiver application to the board pursuant to § 45a-764 (b). See In re Baby Z., Superior Court, judicial district of New London at Norwich, Docket No. CV960110941S (September 17, 1997) 10. After a properly noticed hearing, however, the board concluded that it did not have the jurisdiction to consider or the authority to grant the Probate Court's application for waiver of the statutory parent requirement. Id., 10_11. The board consequently denied the court's waiver application. Id.
    The plaintiffs subsequently brought two appeals to the Superior Court from the decision of the board: a probate appeal to the Superior Court for the judicial district of New London at Norwich pursuant to § 45a-186 (a); and an administrative appeal to the same court pursuant to General Statutes § 4-183 (a).See footnote 11 The Superior Court, Handy, J., sitting as a court of probate, dismissed the plaintiffs' probate appeal on the grounds that the board's decision did not constitute an order or decree of a court of probate as required by § 45a-186 (a), and consequently was not reviewable as such.
    In their administrative appeal from the decision of the board pursuant to § 4-183 (a), the plaintiffs claimed, inter alia, that in denying the waiver application, the board had exceeded its authority and also had deprived them, and Baby Z., of certain constitutional rights.See footnote 12 In re Baby Z., supra, Docket No. CV96 0110941S, 7_8. The Superior Court, Handy, J., concluded that the plaintiffs had failed to brief their constitutional claims, and that, consequently, those claims had been abandoned. Id., 8 n.4. The Superior Court further concluded, however, that the board had jurisdiction to waive the requirement that Baby Z. be placed for adoption by the commissioner of children and families (commissioner) or a child-placing agency, and impliedly concluded that the statutory parent requirement also could be waived. Id., 20. Consequently, the court remanded the case to the board with direction to the board to reconsider the waiver application. Id., 20_21.
    Three appeals ensued: (1) the plaintiffs appealed to the Appellate Court from the judgment of the Superior Court dismissing their probate appeal; (2) the board appealed to the Appellate Court from the judgment of the Superior Court sustaining the plaintiffs' administrative appeal; and (3) the plaintiffs cross appealed from the latter judgment, challenging the court's determination that they had abandoned their constitutional claims. Acting sua sponte, the Appellate Court ordered that the probate and administrative appeals be heard together. We subsequently transferred both of those appeals to this court pursuant to Practice Book § 4023, now § 65-1, and General Statutes § 51-199 (c).
    Thereafter, the board moved for the dismissal of the plaintiffs' cross appeal from the judgment of the Superior Court on the ground that the plaintiffs were not aggrieved by that decision. See General Statutes § 4-183 (a). The plaintiffs then moved for permission to file a late preliminary statement of issues in order to raise their constitutional claims as alternate grounds for affirmance of the judgment of the Superior Court. See Practice Book § 4013 (a) (1), now § 63-4 (a) (1). We granted both motions.

    The plaintiffs appeal from the judgment of the Superior Court dismissing their probate appeal from the decision of the board, purportedly pursuant to § 45a-186 (a). Specifically, the plaintiffs maintain that the Superior Court improperly concluded that: (1) the board's order denying the waiver application submitted to the board by the Probate Court is not an "order, denial or decree of a court of probate" as required by § 45a-186 (a); and (2) the board is an "agency" within the meaning of General Statutes § 4-166 (1)See footnote 13 of the Uniform Administrative Procedure Act (UAPA) and that a party aggrieved by a final decision of the board may appeal to the Superior Court from that decision pursuant to § 4-183 (a). We disagree with both of these claims.

    We turn, therefore, to the board's appeal from the Superior Court's judgment sustaining the plaintiffs' administrative appeal and reversing the board's determination that the board lacked jurisdiction over the waiver application that the Probate Court submitted in connection with the plaintiffs' adoption application. The board contends that the Superior Court improperly concluded that § 45a-764 grants the board authority to consider waiver applications that are not supported by an underlying statutory parent adoption agreement pursuant to § 45a-724 (a) (1). The plaintiffs, however, recharacterizing the waiver application submitted to the board by the Probate Court as an application for waiver of the placement requirement of § 45a-727 (a), rather than as an application for waiver of the statutory parent requirement of § 45a-724 (a) (1), argue that: (1) § 45a-764 gives the board the jurisdiction to waive the placement requirement of § 45a-727 (a) (3) even if the underlying adoption application is not a statutory parent adoption application pursuant to § 45a-724 (a) (1); (2) § 45a-764 requires that the board waive the placement requirement even without an underlying statutory parent adoption agreement, if such waiver would be in the best interests of the child and not contrary to public policy; and (3) upon receipt of the board's waiver of the placement requirement, the Probate Court will have authority, without a statutory parent having been appointed for Baby Z. at that point, to issue a single order that simultaneously terminates Anne's parental rights, appoints a statutory parent for Baby Z. and declares Anne and Malinda to be Baby Z.'s legal parents. We agree with the board.
    As a threshold matter, we determine the applicable standard of review. "Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." (Internal quotation marks omitted.) Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998); Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642, 708 A.2d 202 (1998); Dept. of Administrative Services v. Employees' Review Board, 226 Conn. 670, 678, 628 A.2d 957 (1993). "Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, supra, 389; Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., supra, 642; Dept. of Administrative Services v. Employees' Review Board, supra, 678. "Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference." (Internal quotation marks omitted.) Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, supra, 389; Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., supra, 642; Dept. of Administrative Services v. Employees' Review Board, supra, 678_79. The board's determination that § 45a-764 does not provide it jurisdiction over waiver applications that are not supported by an underlying statutory parent adoption agreement has not been subject previously to judicial review, and is a pure question of law involving the interpretation of the relevant statutory provisions. Consequently, we afford the conclusion of the board no special deference.

    Last, the dissent takes liberties with the legislative history of § 45a-764, substituting the words "statutory parent" for the words "commissioner" and "agency" at will. Thus, the dissent reasons circularly, assuming its desired conclusion and then using that assumption as support for its conclusion. In our view, the dissent has not pointed to a single excerpt of legislative history that, when read in its original form and in context, supports the dissent's arguments, nor did our careful and thorough review of that history, both distant and recent, uncover any such support.
    The judgment of the Superior Court, Handy, J., dismissing the plaintiffs' probate appeal from the decision of the board is affirmed; the judgment of the Superior Court, Handy, J., sustaining the plaintiffs' administrative appeal from the board's denial of a waiver of the placement requirement of § 45a-727 (a) (3) is reversed, and the case is remanded to the Superior Court sitting as a court of probate for further proceedings according to law.See footnote 39
    In this opinion BORDEN, NORCOTT, KATZ, PALMER and MCDONALD, Js., concurred.

    "(b) Any judge of probate who has had presented to him an application for adoption which may not proceed because the child has not been so placed may apply in writing to the Adoption Review Board for a waiver of such requirement.
    "(c) Upon receipt of the application, the chairman of the board shall set a time and place for a hearing and cause notice to be sent by registered or certified mail to the judge of probate and to all parties entitled to notice in the adoption proceeding.
    "(d) The hearing shall be held not less than ten days nor more than thirty days after the receipt of the application. The parties entitled to notice shall be given notice at least ten days prior to the hearing.
    "(e) Any party to the adoption proceedings shall have the right to present such evidence as is deemed necessary and relevant to the board. After hearing the evidence the board may deny the application or approve the application in which case the chairman shall notify the court of probate that the adoption may proceed and that the requirement of placement by the commissioner of children and families or a child-placing agency is waived.
    "(f) If the court of probate thereafter grants the adoption application, there shall be included in the decree a finding that the placement requirements of section 45a-727 have been waived by the Adoption Review Board.
    "(g) No such waiver may be granted if the board determines that the adoption proceeding would violate the public policy of the state against the obtaining of children by illegal means for adoption purposes."

    MCDONALD, J., concurring. I agree with the majority opinion. I only add that the legislature clearly has favored stepparent and blood relative adoptions over those by nonrelatives. In all adoptions, except where a stepparent adopts, all existing parental rights must be terminated. In stepparent adoptions, however, if the spouse has exclusive parental rights, those existing rights need not be terminated. Also, stepparents and blood relatives may adopt absent the prior placement of the child by the commissioner of children and families (commissioner) or a child-placing agency, which is required for other adoptions.
    The plaintiffs imply that, in nonrelative adoptions, the adoption review board (board) may waive the termination of parental rights requirement under its authority to waive the requirement that the child be placed by the commissioner or child-placing agency. The board, however, cannot waive the placement requirement in a blood relative adoption since placement is not required for blood relative adoptions. Consequently, if this court were to accept the plaintiffs' argument, a blood relative would have to await a termination of parental rights to adopt while a nonrelative could apply for a waiver. The legislative preference for blood relative adoption, therefore, would be reversed in favor of adoption by an unrelated adoptive parent.
    Moreover, if the legislature meant to give the board the authority to waive the requirement of termination of the biological parent's rights, it simply could have said so. It did not. If we so held, we would be creating legislation. I again observe that this court is not free to create legislation. See Pamela B. v. Ment, 244 Conn. 296, 347, 709 A.2d 1089 (1998) (McDonald, J., dissenting).
    The people alone create laws only through those they elect. We were not appointed to establish adoption and family policy. Those duties rest with the General Assembly and the governor, the representatives of the people. See Claremont School District v. Governor, ___ N.H. ___, 703 A.2d 1353, 1361 (1997) (Horton, J., dissenting). Otherwise, we would have no need for the other branches of government, and the courts, not the people, would be the supreme political power. The people have not so constituted our state. Instead, they have provided: "All political power is inherent in the people, and all free governments are founded on their authority"; Conn. Const., art. I, § 2; and "[t]he legislative power of this state shall be vested in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly." Id., art. III, § 1.
    Accordingly, I concur.

    Baby Z., who was conceived by artificial insemination,See footnote 8 was born to Anne on May 10, 1992. Since the time of their son's birth, Malinda and Anne have shared all of the joys and burdens associated with bringing a new life into the world, including "all emotional, financial and other parenting responsibilities . . . ." Id., 34. Malinda regards Baby Z. as her son, and Baby Z. calls her "Mama." Id., 36.
    The trial court concluded that, "[w]hen it comes to making decisions regarding Baby Z. and his welfare, that is . . . done jointly, honestly and, most importantly, in the child's best interests." Id., 35. It is unchallenged that Malinda has played an intimate and indispensable role in the conception, care and rearing of her son, and that she will continue to do so for as long as she lives. In short, Malinda is Baby Z.'s mother in every sense but the biological.
    Malinda's family also regards Baby Z. as her son. "Malinda's father testified and gave [the] court a good overview of the love and support that this family has received from the extended family on all sides. He indicated that Baby Z. calls him `Grandpa' and that he often referred to Baby Z. as his first grandchild. In fact, he stated that he was thrilled by the birth of his first grandchild, that he enjoys taking Baby Z. on plane rides and that he enjoys other play activities with the child as well. It was apparent that Malinda's father was very supportive of his daughter and as proud of her and Baby Z. as any father or grandfather would or could be." Id., 36.
    Professor Nordhaus testified that Baby Z. would suffer if the adoption were denied. Id., 33. She explained her conclusion as follows: "[The goal is to] determin[e] what is best for any given child. That means what will enhance any given child's capacity to reach his or her maximum potential in development. And what's important for kids is security, continuity, affectionate ties. And that is why in this case . . . what is of primary importance, what is central here, is [that], by allowing [Baby Z.] to be legally adopted by [Malinda] we enhance the possibility [that he will reach his] . . . maximum development potential." (Internal quotation marks omitted.) Id., 37.
    In contrast, "[i]t was [Professor Nordhaus'] experience that children who were never adopted by the `parents' they lived with did not develop their optimum potential. They were left with a feeling of being `unwanted' and thereby were developmentally deprived." Id., 36.
    In short, Professor Nordhaus' expert opinion was that "[a]doption is really the only permanent way to safeguard the ties [between Baby Z. and his two mothers]. It's the ideal way; it's the best way. It's the best thing for [Baby Z.]." (Internal quotation marks omitted.) Id., 37.
    The trial court concluded that allowing Malinda to formalize her status as the mother of her son would "maximize his potential for a stable and loving relationship with the two people who want to be recognized as his parents . . . ." Id., 56_57. Neither Malinda nor Anne is engaging in this litigation in order to encourage respect for gays and lesbians or to grind any other ideological axe. Id., 35 n.4. Instead, Baby Z.'s two mothers seek only to obtain the benefits of legal adoption within their own family. Their six year old son's "long term well-being [is their] paramount concern." Id.
    Judge Austin found as a matter of fact that the best interests of Baby Z. would be promoted by allowing Malinda to formalize her relationship with her son. The evidence supporting this finding is overwhelming and, as previously discussed, every person and agency that has considered the question (including the state of Connecticut) has reached the same conclusion. Moreover, General Statutes § 45a-764 (g)See footnote 9 specifically identifies the evil that the adoption statutes were designed to avoid -- obtaining children by illegal means through black market adoptions -- and this has absolutely nothing to do with the present case.See footnote 10 Having reviewed the plain language of our adoption laws, the legislative history, and the public policy concerns reflected therein, I am persuaded that Malinda is not precluded from adopting Baby Z.

    Requiring Anne to terminate her parental rights to Baby Z. before permitting the proposed adoption constitutes a denial of equal protection because it discriminates against an unmarried biological parent without any grounds whatsoever, let alone the requisite reasonable grounds.See footnote 45 Under the majority's reading of the statutory scheme regulating adoptions in Connecticut, Anne may not share legal custody of her son with her life partner unless she first endures the enormous trauma, degradation and uncertainty associated with terminating all of her legal rights to her child.See footnote 46 Married parents, in contrast, do not suffer this disability.
    This disparity makes no sense. The evidence is clear that the best interests of the child, in general, and of Baby Z., in particular, are promoted when both parents share legal custody. The absence of a marriage certificate does not alter this fact, particularly in cases such as this one where the two parents have so clearly committed their lives to one another and to their child. Neither the state nor the majority has advanced any justification for visiting a grave sanction upon an unmarried parent such as Anne, and for good reason: the classification is wholly irrational. Accordingly, it violates equal protection.See footnote 47

    An enormous amount of ink has been expended on this case. The complexity of this case, however, is not commensurate with the length of our writings. The majority's only substantive argument boils down to the following paradox: the board possesses the authority to waive every significant aspect of the requirement of a statutory parent, but it can only exercise this authority if a child already has a statutory parent. More specifically, the majority claims that the board may waive the vitally important duties of a statutory parent, but can not waive the technicality that a statutory parent perform the perfunctory clerical task of filing some paperwork with the Probate Court. This is so, the majority maintains, notwithstanding the fact that waiving the placement requirement obviates any conceivable need for a statutory parent, because the board may only grant a waiver if it first determines -- after conducting an evidentiary hearing -- that the adoption is in the best interests of the child.
    My position is also straightforward, and can be summarized in a few sentences. It is undisputed that the best interests of Baby Z. will be promoted if Malinda is permitted to adopt him. The plain language of the statutory scheme permits this adoption. Even if this conclusion were incorrect, this court must engage in liberal construction of the statutory scheme in order to promote the best interests of Baby Z. Either way, there are two procedural routes by which the proposed adoption may be accomplished: (1) the board may waive the requirement of a statutory parent; or (2) Anne (as a biological mother) may give her son in adoption to Malinda (as her spouse). The majority's misreading of the plain meaning of the relevant statutes -- coupled with its refusal to (1) engage in liberal construction pursuant to the legislative mandate of § 45a-706, (2) acknowledge the well settled common-law rule that remedial statutes must be liberally construed, or (3) defer to either the legislative history or the state's own interpretation of the relevant language -- creates grave violations of both due process and equal protection, constitutional issues that the majority also refuses to consider.
    In conclusion, I would affirm the trial court's judgment and remand the case to that court with direction to remand the case to the board to waive the requirement of a statutory parent in order to approve Malinda's adoption of Baby Z. pursuant to § 45a-764 (a). In the alternative, I would remand this case to the trial court with direction to remand the case to the Probate Court in order to permit Anne to give Baby Z. in adoption to Malinda, as her spouse, pursuant to § 45a-724 (a) (2) (B).
    Accordingly, I dissent.See footnote 48

Footnotes