Supreme Court of California Justia
Docket No. S102671
Sharon S. v. Sup. Ct.

Filed 8/4/03




IN THE SUPREME COURT OF CALIFORNIA



SHARON S.,

Petitioner,

S102671

v.

Ct. App. 4/1 D037871

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

San

Diego

County

Respondent;

Super. Ct. No. A46053

)
ANNETTE F.,

)


Real Party in Interest.





This dispute arises in independent adoption proceedings commenced by a

birth mother, Sharon S. (Sharon), and her former domestic partner Annette F.

(Annette) to effect Annette’s adoption of Joshua (now three and a half years old)

who, like his older brother Zachary (now six years old and previously adopted by

Annette), was conceived by artificial insemination of Sharon and born during the

partnership.1 The question presented is whether an independent adoption in which

the birth parent does not agree to termination of her parental rights is legislatively

1

Independent adoptions (Fam. Code, § 8800 et seq.) are those in which no

agency, state or private, joins in the adoption petition (id., § 8524), although the
state does have a role in investigating, evaluating and commenting upon the
petition. (See id., § 8807.) Further unlabeled section references are to the Family
Code.

1


authorized and, if so, whether the statutes are constitutional. The Court of Appeal

granted a writ of mandamus directing the trial court to permit Sharon to withdraw

her consent to, and to terminate, the adoption. For the following reasons, we

reverse the judgment of the Court of Appeal and remand the cause for further

proceedings.

Background

Sharon and Annette attended Harvard Business School together and were in

a committed relationship from 1989 through mid-2000. In 1996, after being

artificially inseminated with sperm from an anonymous donor, Sharon gave birth

to Zachary. With Sharon’s consent and approval, Annette petitioned to adopt

Zachary in a “second parent” adoption, using official forms and procedures that

expressly provided that Sharon consented to Zachary’s adoption by Annette, but

intended to retain her own parental rights.2 The trial court approved Annette’s

adoption petition, and Annette has since been one of Zachary’s two parents.

Three years later, in 1999, Sharon was inseminated again with sperm from

the same anonymous donor and gave birth to Joshua. On August 30 of that year,

Sharon signed an Independent Adoption Placement Agreement (Agreement),

which begins: “Note to birth parent: This form will become a permanent and

irrevocable consent to adoption. Do not sign this form unless you want the

adopting parents named below to adopt your child.” The Agreement goes on to


2

“The phrase ‘second-parent adoption’ refers to an independent adoption

whereby a child born to [or legally adopted by] one partner is adopted by his or
her non-biological or non-legal second parent, with the consent of the legal parent,
and without changing the latter’s rights and responsibilities.” (Doskow, The
Second Parent Trap
(1999) 20 J.Juv.L. 1, 5.) As a result of the adoption, the child
has two legal parents who have equal legal status in terms of their relationship
with the child.

2

recite Sharon’s “permanent and irrevocable consent to the adoption on the 91st

day after I sign” the Agreement.

The Agreement also recites that, upon the court’s approval of the

Agreement, Sharon will “give up all rights of custody, services, and earnings”

with respect to Joshua. However, a written Addendum to Independent Adoption

Placement Agreement (Addendum), a form developed by the California

Department of Social Services (CDSS), was signed by Sharon and Annette on the

same date as they signed the Agreement. The Addendum stated Sharon’s intent,

as Joshua’s birth parent, to retain parental rights and control of Joshua while

placing him with Annette for the purpose of independent adoption. These were

essentially the same procedures and forms Sharon and Annette had used for

Zachary’s adoption.3

Subsequently, Annette filed a petition to adopt Joshua as a second parent

with Sharon. The petition stated that Sharon, as “birth mother of the children

[Zachary and Joshua,] consents to this adoption and will execute a limited written

consent to the child’s [Joshua’s] adoption in the manner required by law.” The

petition also stated that Sharon “intends to retain all her rights to custody and

control as to said child.” In April 2000, the San Diego County Department of

Health and Human Services (HHS), acting in its capacity as an agency licensed by

CDSS under the Family Code to investigate and report upon proposed independent

adoptions, recommended that the court grant Annette’s adoption petition.


3

CDSS forms and procedures for second parent adoptions have been

developed over the past decade and presently are maintained in accordance with a
policy announced by CDSS on November 15, 1999. (See CDSS, All County
Letter No. 99-100 (Nov. 15, 1999)
<http://www.dss.cahwnet.gov/getinfo/acl99/99-100.pdf> [as of Aug. 4, 2003].)

3

Annette and Sharon’s relationship has been somewhat volatile. Apparently

owing to continuing difficulties, Sharon repeatedly requested postponement of the

hearing on Annette’s adoption petition. In August 2000, Sharon asked Annette to

move out of the family residence, which Annette did. Each retained new counsel.

In mediation, the parties agreed on a temporary visitation schedule affording

Annette time with both boys, but they could not reach an agreement respecting

permanent custody or visitation.

On October 23, 2000, Annette filed a motion for an order of adoption

respecting Joshua, contending inter alia that Sharon’s consent had become

irrevocable pursuant to section 8814.5 and that the adoption was in Joshua’s best

interest.

After a family court mediator recommended that Sharon and Annette share

custody and that Annette have specified visitation, Sharon moved for court

approval to withdraw her consent to the adoption. She contended there was no

legal basis for the adoption, that her consent had been obtained by fraud or duress,

and that withdrawal of her consent was in Joshua’s best interest. HHS

subsequently filed a supplemental report with the court, noting that Sharon had

moved to withdraw her consent but had not done so within the statutorily specified

period for revocation. HHS further reported that Annette had shared in Joshua’s

medical expenses and in the planning and handling of his daily care since birth,

that Annette had a close and loving relationship with Joshua as his second parent,

and that Annette’s relationship with Joshua was similar to her relationship with

Zachary. Finding that adoption continued to be in Joshua’s best interest, HHS

again recommended that Annette’s petition to adopt Joshua be granted.

4

In late November 2000, the court ordered interim visitation, encouraged the

parties to try to agree on an ongoing visitation schedule, and appointed counsel for

Joshua.4 Shortly thereafter, Sharon obtained a domestic violence restraining order

against Annette and moved to dismiss the adoption petition. She argued, again,

that the adoption was unauthorized by statute and also that Annette lacked

standing to adopt Joshua. Joshua’s counsel also moved to dismiss the adoption

petition, on the ground that Sharon and Annette’s original counsel had not

complied with her statutory obligations as an attorney representing both the birth

and prospective adoptive parents in an independent adoption. (See § 8800.) The

court denied both dismissal motions. Although it did not separately discuss

Sharon’s request for permission to withdraw consent, the court noted that Sharon

had not attempted to withdraw her consent within the time required by law and

that resolution of the adoption petition was likely to be based on Joshua’s best

interest.

Thereupon, Sharon filed a petition for a writ of mandate, joined in by

counsel for Joshua, challenging the denial of her motion to dismiss. In a divided

opinion, the court, citing section 8617, held that, except for stepparent adoptions,

an adoption where a consenting parent does not relinquish all parental rights has

no statutory basis. We granted Annette’s petition for review.

Discussion

I. Section

8617

“The right to adopt a child, and the right of a person to be adopted as the

child of another, are wholly statutory.” (Estate of Sharon (1918) 179 Cal. 447,

4

As Joshua’s appellate counsel noted during oral argument, the function of a

court-appointed attorney for the child in such proceedings as these is to represent
the child’s interests. (See § 3150.)

5

454.) California’s adoption statutes appear in division 13 of the Family Code,

which is divided into three parts. Part 1 (§§ 8500-8548) provides definitions

applicable throughout. Part 2 (§§ 8600-9206) addresses adoption of unmarried

minors, and part 3 (§§ 9300-9340) adoption of adults and married minors. The

part with which we are concerned, part 2, is in turn divided into several chapters.

Chapter 1 (§ 8600 et seq.) contains general provisions. Subsequent chapters deal

with agency adoptions (§ 8700 et seq.), independent adoptions (§ 8800 et seq.),

intercountry adoptions (§ 8900 et seq.), and stepparent adoptions (§ 9000 et seq.).

As noted, in petitioning to adopt Joshua, Annette has proceeded under the

independent adoption provisions. Pursuant to the current statutory scheme, birth

parents can consent to an independent adoption by entering into an adoption

placement agreement with a prospective adoptive parent. (Fam. Code, § 8801.3;

see also Cal. Code Regs., tit. 22, § 35108, subd. (b).) The birth parent(s) have 30

days in which to revoke this consent. (Fam. Code, § 8814.5, subd. (a)(1).)5 If

they fail to do so, their consent becomes permanent and irrevocable. (§§ 8801.3,

subd. (c)(2), 8814.5, subds. (a)(1), (3), (b), 8815, subd. (a).)

Once the adoption placement agreement has been signed, the prospective

adoptive parent may petition for adoption. (§ 8802, subd. (a)(1)(C).) The court

clerk must give CDSS notice of the petition (id., subd. (a)(2)), and the petitioner

must file a copy of the petition with CDSS (§ 8808).

Subsequently, it is incumbent on CDSS to “investigate the proposed

independent adoption” (§ 8807, subd. (a)) and “ascertain whether the child is a


5

In 1999, when Annette petitioned to adopt Joshua, section 8814.5 provided

that a birth parent consenting to an adoption had 90 days to revoke consent or sign
a waiver of the revocation right. Since then, section 8814.5 has been amended to
shorten the revocation period to 30 days. (See Stats. 2001, ch. 688, § 2.)

6

proper subject for adoption and whether the proposed home is suitable for the

child.” (Fam. Code, § 8806; see also Cal. Code Regs., tit. 22, §§ 35079, subd. (b),

35081, 35083, 35087, 35089, 35093.) CDSS interviews the petitioner and the

birth parents. (Fam. Code, § 8808; see also Cal. Code Regs., tit. 22, § 35083.)

Within 180 days after the petition is filed, CDSS must “submit to the court a full

report of the facts disclosed by its inquiry with a recommendation regarding the

granting of the petition.” (Fam. Code, § 8807, subd. (a); see also Cal. Code Regs.,

tit. 22, §§ 35091, 35123, subd. (a).) A copy of CDSS’s report is given to the

petitioner. (Fam. Code, § 8821.) Although the report is not binding, the court is

to accord due weight to CDSS’s expertise. (San Diego County Dept. of Pub.

Welfare v. Superior Court (1972) 7 Cal.3d 1, 16.) Assuming other statutory

prerequisites are met, if the court is “satisfied that the interest of the child will be

promoted by the adoption, the court may make and enter an order of adoption of

the child by the prospective adoptive parent or parents.” (§ 8612, subd. (c).)

Annette argues that these statutes authorize the superior court to finalize her

adoption of Joshua, because she has complied with the substantive and procedural

prerequisites for an independent adoption. Sharon contends that the adoption is

not authorized, because section 8617 mandates full termination of birth parental

rights in every independent adoption.

Section 8617 provides: “The birth parents of an adopted child are, from the

time of the adoption, relieved of all parental duties towards, and all responsibility

for, the adopted child, and have no right over the child.” The section does not

appear in the chapter devoted to independent adoptions (ch. 3, § 8800 et seq.), but

is, rather, one of the general provisions appearing in chapter 1 of part 2 of division

13 of the Family Code.

“The rule is that the adoption statutes are to be liberally construed with a

view to effect their objects and to promote justice. Such a construction should be

7

given as will sustain, rather than defeat, the object they have in view.”

(Department of Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6; see also

Adoption of Barnett (1960) 54 Cal.2d 370, 377; Adoption of McDonald (1954) 43

Cal.2d 447, 459; In re Santos (1921) 185 Cal. 127, 130.) Consistently with these

principles, we previously have concluded that the Legislature did not intend

section 8617’s nearly identical precursor to bar an adoption when the parties

clearly intended to waive the operation of that statute and agreed to preserve the

birth parent’s rights and responsibilities. (Marshall v. Marshall (1925) 196 Cal.

761, 767.) Nothing in section 8617’s text, context, history, or function justifies

departure in this case from “the established rule that rights conferred by statute

may be waived unless specific statutory provisions prohibit waiver.” (Bickel v.

City of Piedmont (1997) 16 Cal.4th 1040, 1049, fn. 4.)

A.

Waiver of Statutory Rights

In Bickel v. City of Piedmont, supra, 16 Cal.4th 1040 (Bickel), we held that

a party benefited by a statutory provision may waive that benefit if the statute does

not prohibit waiver (id. at p. 1049, fn. 4), the statute’s “public benefit . . . is merely

incidental to [its] primary purpose” (id. at p. 1049), and “waiver does not seriously

compromise any public purpose that [the statute was] intended to serve” (id. at

p. 1050). (See also Civ. Code, § 3513 [anyone “may waive the advantage of a law

intended solely for his benefit”].) The principles underlying Bickel are well

established. As we have recognized for over a century, the law “will not compel a

man to insist upon any benefit or advantage secured to him individually.”

(Knarston v. Manhattan Life Ins. Co. (1903) 140 Cal. 57, 63.) Accordingly, a

party may waive compliance with statutory conditions intended for his or her

benefit, so long as the Legislature has not made those conditions mandatory.

(Murdock v. Brooks (1869) 38 Cal. 596, 602; see also Wells, Fargo & Co. v.

Enright (1900) 127 Cal. 669, 674.)

8

Applying these established principles “to determine whether in this case

[section 8617] bars application of the waiver doctrine, we must ascertain

(1) whether [the statute’s provisions] are for the benefit of [the parties to an

adoption petition] or are instead for a public purpose, and (2) whether there is any

language in [the statute] prohibiting a waiver.” (Bickel, supra, 16 Cal.4th at

pp. 1048-1049.)

Addressing the latter point first, we immediately observe that section 8617

contains no language prohibiting the parties to an independent adoption from

agreeing to waive its provisions. Rather, section 8617 contains a single sentence:

“The birth parents of an adopted child are, from the time of the adoption, relieved

of all parental duties towards, and all responsibility for, the adopted child, and

have no right over the child.” Nor need we move beyond the statute’s plain

language in order to discern its primary purpose. By its terms, section 8617 exists

to “relieve[]” birth parents of “duties towards and all responsibility for, the

adopted child” and to assure adoptive parents of exclusive parental control by

ending birth parents’ “right over the child” from “the time of the adoption.”

Section 8617 thus affords all the parties to the ordinary adoption an incentive for

concluding it. But nothing therein, or in any other statutory provision, prohibits

the parties to an independent adoption from waiving the benefits of section 8617

when a birth parent intends and desires to coparent with another adult who has

agreed to adopt the child and share parental responsibilities.

Since section 8617’s provisions are for the benefit of the parties to an

adoption petition and the section contains no language prohibiting a waiver

(Bickel, supra, 16 Cal.4th at pp. 1048-1049), we conclude that section 8617

declares a legal consequence of the usual adoption, waivable by the parties thereto,

9

rather than a mandatory prerequisite to every valid adoption. (Bickel, supra, at

p. 1048.)6

Such a conclusion accords with our previous pronouncements respecting

the essential elements of an adoption. The adoption laws always have made a

fundamental distinction between the ordinary legal consequences of an adoption

and “what provisions of the law are essential and therefore mandatory.” (In re

Johnson (1893) 98 Cal. 531, 536.) In Johnson, for example, we held that Civil

Code former section 227’s provision for “the examination of a child under the age

of consent” by the judge before the child is adopted “should not be deemed

indispensable to the validity of the adoption proceeding.” (In re Johnson, supra,

at p. 539.) In so holding, we noted “it is necessary that there should be a

substantial compliance with all of the essential requirements of the law under

which the right [of adoption] is claimed; but, in determining what provisions of the

law are essential and therefore mandatory, the statute is to receive a sensible

construction, and its intention is to be ascertained, not from the literal meaning of


6

In so holding, we do not decide, contrary to what our concurring and

dissenting colleagues suggest (see conc. & dis. opn. of Brown, J., post, at p. 9;
conc. & dis. opn. of Baxter, J., post, at p. 10), whether there exists an overriding
legislative policy limiting a child to two parents. This case involves only a second
parent adoption, so we have no occasion to address that point. Justice Baxter errs,
therefore, in asserting that our decision today frees a family court to assign at will
“as many legal parents as the lone judge deems in the child’s best interest.”
(Conc. & dis. opn. of Baxter, J., post, at p. 10; see also conc. & dis. opn. of Brown,
J., post, at p. 11.) While the Family Code contains in several sections language
suggesting the Legislature may harbor a two-parent policy (see, e.g., §§ 3003,
3011, 3161, 3624, 4071, 7572, 7822, 7840, 8604), those statutes are not in issue.
Section 8617, which is in issue, does not speak to parental numerosity, except
incidentally to recognize in its use of the plural, “birth parents,” that a child
ordinarily has two of these.

10

any particular word or section, but from a consideration of the entire statute, its

spirit and purpose.” (Id. at p. 536.)

Of course, one “who claims that an act of adoption has been accomplished

must show that every essential requirement of the statute has been strictly

complied with” (Estate of Sharon, supra, 179 Cal. at p. 454), but Sharon points to

no California decision stating or even implying that termination of birth parental

rights and responsibilities under section 8617 is among these essential

requirements.

While California’s adoption statutes nowhere concisely define “adoption,”

they do state the essential elements of a valid adoption. “[A]fter careful

consideration of the question as to what requirements are essential, the conclusion

was stated [in In re Johnson, supra, 98 Cal. 531] as follows: ‘The proceeding is

essentially one of contract between the parties whose consent is required. It is a

contract of a very solemn nature, and for this reason the law has wisely thrown

around its creation certain safeguards, by requiring, not only that it shall be

entered into in the presence of a judge, but also that it shall receive his sanction,

which is not to be given until he has satisfied himself of these three things: 1. That

the person adopting is ten years older than the child. 2. That all the parties whose

consent is required do consent, fully and freely, to the making of such contract.

3. That the adoption contemplated by the contract will be for the best interest of

the child adopted.’ These requirements are there held to be jurisdictional. Unless

they coexist, the proceeding for adoption is insufficient, the attempted contract is

invalid, the judge is without power to approve it, and there is no lawful adoption.”

(Estate of Sharon, supra, 179 Cal. at p. 454, citing several cases.)

Thus, in current statutory terms, the essential elements of every valid

adoption are: a voluntary and informed parental consent to the adoption except

where the parent has surrendered or has been judicially deprived of parental

11

control (§§ 8604-8606); a suitable adoptive parent at least 10 years older than, or

in a specified preexisting family relationship with, the child (see §§ 8601, 8717,

8801, 8811-8811.5); and a judicial determination that “the interest of the child will

be promoted by the adoption” (§ 8612). When these essential elements are

present, “the objective of the adoption statutes to protect the interests of both the

natural or legal parent(s) and the child through the consent and best interests

requirements” is not frustrated when statutory provisions like section 8617 are

treated as nonmandatory. (Patt, Second Parent Adoption: When Crossing the

Marital Barrier Is in a Child’s Best Interests (1987-1988) 3 Berkeley Women’s

L.J. 96, 117, discussing Civ. Code former § 229.)

The Court of Appeal majority failed to recognize this distinction between

essential elements and ordinary legal consequences, asserting that the “statutes

governing independent adoptions require a relinquishment of parental rights” and

“mandate that the parental rights of the birth parent be terminated.” In fact, the

statutes contain no such mandates.

“ ‘Independent Adoption’ means the adoption of a child in which neither

the department nor an agency licensed by the department is a party to, or joins in,

the adoption petition.” (§ 8524.) In addition to the essential elements of all

adoptions set out above, the independent adoption statutes require parental consent

after notice and advisement (§§ 8800, 8801.3, 8814, 8821), opportunities under

specified conditions timely to revoke consent (§ 8814.5) or with court approval to

withdraw it (§ 8815), selection of the adoptive parent or parents by the birth parent

or parents personally (§ 8801), advice to the birth parent of his or her rights by an

adoption service provider or licensed out-of-state agency (§ 8801.5), execution of

an adoption placement agreement satisfying specified requirements on a form

prescribed by CDSS (§ 8801.3), administrative investigation by CDSS or its

delegate (§§ 8806-8811, 8817), an appropriate petition filed with the superior

12

court, usually in the county in which the petitioner resides (§ 8802), and an

appearance before the court by the prospective adoptive parents and the child

(§§ 8612, 8613, 8823). Nowhere does any mandate or requirement of

relinquishment of a birth parent’s rights and responsibilities appear.

Most people who place their children with unrelated adoptive parents

presumably desire to be “relieved of all parental duties towards, and all

responsibility for, the adopted child,” as section 8617 declares, once the adoption

is final. But, as noted, section 8617 neither prohibits a birth parent and another

qualified adult from jointly waiving application of the statute in order to coparent

an adoptable child, nor prohibits a court under such circumstances from ordering

an otherwise valid adoption. (See Bickel, supra, 16 Cal.4th at pp. 1048-1049.)7

B.

Marshall

Decades ago, we held that Civil Code former section 229, the predecessor

statute to Family Code section 8617, was no bar to second parent adoption of a

type—stepparent adoption—that was then not expressly provided for by statute.

7

Estate of Jobson (1912) 164 Cal. 312, 317-318, cited by our concurring and

dissenting colleagues (see conc. & dis. opn. of Baxter, J., post, at p. 9; conc. & dis.
opn. of Brown, J., post, at p. 2), does not compel a contrary conclusion. Our
passing remark in that intestacy case that “duties of a child cannot be owed to two
fathers at one time” (Estate of Jobson, supra, at p. 317) was dictum uttered in the
context of concluding that a birth father who “by virtue of the adoption proceeding
[in that case], ceased to sustain the legal relation of father” could not thereafter
inherit the adopted person’s estate (ibid.). As Jobson involved an ordinary
adoption in which “the natural relationship between the child and its parents by
blood is superseded” (ibid.), we did not consider the contingency before us
today—viz., two parties who voluntarily have waived the benefit of section 8617
in order to effect a second parent adoption, where the natural parent’s relationship
with the child is not superseded. Our holding that they may waive the statute does
not contravene Jobson’s holding that an adopted person’s relationship with his
birth parent, once legally severed, is not automatically “revived by the death of the
foster parent” (Jobson, supra, at p. 317).

13

(Marshall v. Marshall, supra, 196 Cal. at p. 767 (Marshall).) We agree with the

dissenting justice in the Court of Appeal that the considerations we treated as

dispositive in Marshall, which did not include the marital status of the parties, are

fully present in the instant case and lead to the same result.

In Marshall, the second husband of a widowed mother adopted her two

minor children. When the couple later divorced, they agreed the stepfather would

pay support for the two children, but that he would surrender his adoption of them

and their mother would readopt them. On the mother’s petition and with the

father’s consent, a decree was entered purporting to accomplish the mother’s

readoption of her children. Thereafter, the superior court entered interlocutory and

final orders for child support. (Marshall, supra, 196 Cal. at pp. 763-764.) One

year later, the father moved to modify the orders by striking the provision for child

support. The superior court granted the motion on grounds that, by the time the

orders issued, it had lacked jurisdiction to award the child support, because the

mother’s readoption of the children had changed their status so that they were no

longer the “children of the parties” to the divorce action. (Marshall, supra, 196

Cal. at p. 764.)

We reversed, holding that the superior court had erred in its determination

that the earlier child support orders were void as beyond the court’s jurisdiction.

(Marshall, supra, 196 Cal. at p. 767.) In reaching our conclusion, we addressed

the validity and effect of the prior proceeding where the mother had purported to

adopt her own children. Noting that the adoption statutes then, as now, did not

contain a definition of the word “adoption” (id. at p. 765), we characterized that

proceeding as one “by which the adopting parent assumes a parental relationship

toward the child of another” (id. at p. 766). Reasoning that a “natural mother of a

child could legally adopt such child only in a case wherein her parental

relationship had theretofore been severed as a matter of law” (ibid.), we

14

considered whether the stepfather’s prior adoption of the children had had the

effect of legally severing the mother’s parental rights and responsibilities. As

relevant here, we held it had not, “notwithstanding the provisions of [Family Code

section 8617’s predecessor,] Civil Code, [former] section 229, that ‘the parents of

an adopted child are, from the time of the adoption, relieved of all parental duties

towards, and all responsibility for, the child so adopted, and have no right over

it.’ ” (Marshall, supra, at p. 766.)

In declining to construe section 8617’s predecessor as having severed the

mother’s parental rights to her children, we noted in Marshall that it was “plain

from the record of the adoption proceedings,” including the terms of the mother’s

consent and of the adoption order, that the parties “did not intend . . . to sever the

parental relationship between the mother and the children” when effecting the

latter’s adoption by the mother’s new spouse. (Marshall, supra, 196 Cal. at

p. 766.)

Thus, we held in Marshall that “although no express authority therefor is to

be found in the code, nevertheless a husband and wife may jointly adopt a child

pursuant to the procedure therein prescribed, the result of which is to make the

child, in law, the child of both spouses.” (Marshall, supra, 196 Cal. at p. 767,

citing In re Williams (1894) 102 Cal. 70, 70-79.) Section 8617’s predecessor was

not, we held, “intended to apply to a situation such as this, and to effect a result so

plainly opposite to that which was intended” by the parties. (Marshall, supra, at

p. 767.)

In Marshall, we thus effectively read second parent adoption into the

statutory scheme, by approving a type of second parent adoption, stepparent

adoption, which at that time the adoption statutes did not expressly authorize.

(Marshall, supra, 196 Cal. at p. 767.) In so doing, we necessarily determined that

15

relinquishment of the birth parent’s rights was not essential to adoption and that

section 8617’s predecessor was not mandatory.

Contrary to the view of the Court of Appeal majority, our determination in

Marshall that the stepfather’s adoption had not severed the mother’s parental

rights was essential to our conclusion that the trial court had had jurisdiction to

enter the child support orders at issue and had erred in setting them aside as void.

Our invalidation of the trial court’s order vacating the support orders was based on

our conclusion that the mother’s purported readoption of her children had been “an

utter nullity” (Marshall, supra, 196 Cal. at p. 767), as, therefore, was the parties’

effort thereby to sever the stepfather’s parental relationship (ibid.). In order to

reach that conclusion we had to determine whether or not the stepfather’s prior

adoption of the two children had the effect of legally severing the mother’s

parental relationship with them. (Id. at p. 766.) It is on the answer we gave—viz.,

that “notwithstanding the provisions of Civil Code, section 229,” the stepfather’s

prior adoption of the minors had not severed the mother’s parental rights (ibid.)—

that Annette relies. In relying on Marshall’s pronouncement that Family Code

section 8617’s predecessor was not intended by the Legislature “to apply to a

situation such as this, and to effect a result so plainly opposite to that which was

intended” by the parties (Marshall, supra, at p. 767), Annette thus relies on part of

our essential reasoning, not on dictum. (See generally Consumers Lobby Against

Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902.)

Marshall is factually apposite as well. Just as Family Code section 8617 is

the clear successor to Civil Code former section 229, the language and forms

developed by CDSS and used in this case to effect and document Annette’s

adoption of Joshua are comparable to those used by the parties in Marshall. In

Marshall, the stepfather’s petition for adoption recited that he was a fit person to

be allowed “ ‘joint custody and control’ ” of the children along with the mother,

16

and the petition prayed for a court order that the stepfather “ ‘shall jointly together

with [the mother] be adjudged on such adoption as having the status of the natural

father of said minors.’ ” (Marshall, supra, 196 Cal. at p. 766, italics omitted.) In

consenting to the adoption, the children’s mother stated that their stepfather would

adopt the “ ‘minors, my children, as his own natural children and . . . in

conjunction and jointly with me act, maintain and have the legal status of a father

and . . . jointly with me maintain the relationship of a parent to said minors herein

mentioned.’ ” (Id. at pp. 766-767, italics omitted.)

Similarly, Sharon signed an adoption consent form stating her intention to

retain coparental rights and responsibilities and permitting Annette to assume

coparental rights and responsibilities. Annette signed adoption forms clearly

stating her intention to accept coparental rights and responsibilities for Joshua to

be shared with Sharon. We conclude that, just as its predecessor was not intended

by the Legislature “to effect a result so plainly opposite to that which was

intended” by the parties in Marshall, supra, 196 Cal. at page 767, section 8617

was not intended to bar Annette’s adoption of Joshua.

Acknowledging that Marshall supports Annette’s claim, Justice Brown

nevertheless chides us for “read[ing] contemporary norms into a 1925 decision”

(conc. & dis. opn. of Brown, J., post, at p. 5; see also id. at p. 6). In a similar vein,

Sharon takes the position that whatever the factual and legal parallels between

Marshall and this case, Marshall “did not consider either unmarried adopting

parents or same-sex adoptions” and therefore is “too factually and legally different

to be relevant.” We disagree. Although we mentioned in Marshall that the

adoption involved was by a husband, we said nothing to suggest we regarded the

presence of marriage as bearing on our implicit treatment of section 8617’s

predecessor as waivable and not mandatory. (See Marshall, supra, 196 Cal. at

p. 767.)

17

California’s adoption statutes have always permitted adoption without

regard to the marital status of prospective adoptive parents. Section 8600 provides

that “[a]n unmarried minor may be adopted by an adult,” and an adult may adopt a

child so long as he or she is “at least 10 years older than the child” (§ 8601,

subd. (a)). Section 8542 defines “prospective adoptive parent” as “a person who

has filed or intends to file a petition . . . to adopt a child who has been or who is to

be placed in the person’s physical care . . . .” None of these statutes mentions

marital status. Under these circumstances, no justification appears for treating

section 8617 differently in this case than we did its predecessor in Marshall.8

In the years since Marshall was decided, the Legislature has reorganized

and reenacted the adoption statutes9 and amended them many times, inter alia, to

acknowledge stepparent adoptions (§§ 9000-9007) and define them as “an

adoption of a child by a stepparent where one birth parent retains custody and

control of the child” (§ 8548). In doing so, the Legislature has neither repudiated

Marshall nor expressly excepted stepparent adoptions from application of section

8617. “ ‘There is a strong presumption that when the Legislature reenacts a statute

which has been judicially construed it adopts the construction placed on the statute

by the courts.’ ” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353.) That is


8

Consistently with this conclusion, CDSS, the administrative agency that

oversees the county child welfare agencies that perform home studies in all
adoption cases, has determined that unmarried couples who seek to adopt are to be
evaluated on the same basis as married couples. (CDSS, All County Letter No.
99-100 (Nov. 15, 1999); see ante, fn. 3.)
9

“Effective January 1, 1994, the Legislature repealed the Civil Code sections

governing adoption and reenacted them as part of the new Family Code. (Stats.
1992, ch. 162, §§ 4, 10.) There is no substantive difference between the relevant
sections of the Family Code and their predecessors in the Civil Code.” (Adoption
of Michael H.
(1995) 10 Cal.4th 1043, 1049, fn. 1.)

18

because, “ ‘[w]hen the Legislature amends a statute without changing those

portions . . . that have previously been construed by the courts, the Legislature is

presumed to have known of and to have acquiesced in the previous judicial

construction.’ ” (People v. Atkins (2001) 25 Cal.4th 76, 89-90.) Moreover, when

comprehensively reorganizing the adoption statutes in 1990, the Legislature

replaced the version of section 8617’s predecessor that we construed in Marshall,

Civil Code former section 229, with another version containing immaterial

changes (Civ. Code, former § 221.76). In so doing, the Legislature expressly

stated that it did not intend thereby “to lose legislative history or judicial precedent

[including necessarily Marshall] applicable to statutory provisions replaced by this

act.” (Civ. Code, former § 220.10, subd. (e); see generally Stats. 1990, ch. 1363,

§ 3, pp. 6055-6066.)

Thus, for more than 75 years, the Legislature has acquiesced in Marshall’s

treatment of section 8617’s predecessor, implying that an adoption court may

order an otherwise valid adoption in which the parties plainly have stated their

intention to waive section 8617’s benefits.

We long have recognized that if the Legislature enacting a specific adoption

provision did not intend compliance with that provision to be jurisdictional,

“ ‘strict and literal adherence to the letter and form’ ” of that statute is not required

to effect a valid adoption. (Estate of Johnson, supra, 98 Cal. at p. 539; see also

Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 54.) As noted, section 8617

contains no mandate or requirement of termination. Rather, the statute simply

describes how birth parents ordinarily are relieved of all parental rights and duties

after an adoption. Because the Legislature presumptively was aware of Marshall’s

treatment of Civil Code former section 229 as waivable, its retention of parallel

language in Family Code section 8617 requires that we “construe the present

19

provision . . . in conformity with the established judicial interpretation.” (Malcolm

v. Superior Court (1981) 29 Cal.3d 518, 528.)

On their face, moreover, the adoption statutes reveal the Legislature’s

understanding that while ordinarily “[t]he birth parents of an adopted child are,

from the time of the adoption, relieved of all parental duties towards, and all

responsibility for, the adopted child, and have no right over the child” (§ 8617),

adoptions based on modified application of that principle, wherein “one birth

parent retains custody and control of the child” (§ 8548, referencing stepparent

adoptions), may exist. (See also Nancy S. v. Michele G. (1991) 228 Cal.App.3d

831, 841, fn. 8 [judicially recognizing the same with respect to second parent

adoptions].) Sharon acknowledges that for us to construe section 8617 literally as

a “general provision” mandating termination of all birth parents’ rights in every

adoption would be contrary to the stepparent adoption provisions. But she

contends that, nevertheless, “section 8617 must apply to all Chapter 3 Independent

Adoptions,” regardless of the parties’ intent.

Certainly the stepparent adoption provisions contain no such suggestion.

Those statutes neither expressly nor impliedly bar an independent adoption by a

second parent that preserves the child’s legal relationship with one birth parent. In

fact, the stepparent adoption provisions make no mention of independent adoption.

Contrary to Justice Brown’s assertions (see conc. & dis. opn. of Brown, J., post, at

pp. 2-3, 6), that the Legislature, when defining stepparent adoption, noted that

“one birth parent retains custody and control of the child” (§ 8548) neither

logically nor historically implies an intent to confine to the stepparent context our

implication in Marshall, supra, 196 Cal. 761, that a birth parent consenting to an

adoption may waive termination of her parental rights. The scant legislative

history available suggests that the Legislature, when originally adopting that

language, sought only to relieve CDSS’s predecessor of certain administrative

20

burdens in adoptions that were being conducted by stepparents.10 Moreover, any

suggestion that the statutory availability of stepparent adoption implies legislative

disapproval of other kinds of second parent adoption is belied by the possibility11

of second parent adoptions being effected through agency procedures. (See

§ 8700 et seq.)12


10

Compare Statutes 1927, chapter 691, section 3, page 1197 (first modern

revision of Civ. Code, former § 226 to require CDSS’s predecessor in every
nonagency adoption to witness consents, verify allegations, and determine the
adoptability of the child and the suitability of the home) with Statutes 1931,
chapter 1130, section 3, page 2402 (amending Civ. Code, former § 226 to retain
those requirements “except in the case of an adoption by a step-parent where one
natural parent retains his or her custody of the child”). See also tenBroek,
California’s Adoption Law and Programs (1955) 6 Hastings L.J. 261, 266
(relating that the former Department of Social Welfare requested the 1931
amendment because “almost all of the 425 stepparent petitions investigated in the
two years 1928-1929 had been favorably recommended and that the time of its
limited staff could be better spent on actual placement cases”).
11

After CDSS confirmed the possibility in a letter brief filed by the Attorney

General, the Court of Appeal observed that the equivalent of a second parent
adoption may be accomplished through an agency adoption in which the birth
parent relinquishes her or his rights to the custody and control of the child to the
adoption agency or adoption district office, but expressly designates the adoptive
parents to be herself or himself and the prospective second parent.
12

We are not persuaded, as Justice Brown speculates, that the Legislature’s

1993 amendment of provisions for adoption of adults expressly to preserve rights
and responsibilities of a birth parent when the birth parent’s spouse is adopting the
birth parent’s child (§ 9306, subd. (b)), constitutes or recognizes a “statutory
restriction on second parent adoptions” of children. (See conc. & dis. opn. of
Brown, J., post, at p. 2.) Justice Brown opines on the basis of comments in a
cursory legislative committee report that the 1993 amendment “served [the same]
purpose” as is served by section 8548, the statutory definition of stepparent
adoption (conc. & dis. opn. of Brown, J., post, at p. 3), but she nowhere
demonstrates that section 8548 either constitutes or recognizes, as we have
concluded it does not, a statutory restriction on second parent adoptions.

21

C.

Administrative Construction and Practice

Established administrative construction and practice to which we owe

substantial deference buttress the aforestated legal arguments for reversal. While

taking ultimate responsibility for the construction of a statute, we accord “great

weight and respect to the administrative construction” thereof. (Yamaha Corp. of

America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12; see also Styne v.

Stevens (2001) 26 Cal.4th 42, 53 [administrator’s “interpretation of a statute he is

charged with enforcing deserves substantial weight”].) CDSS has adopted the

view that “[a] petition or an application for a limited consent or limited

relinquishment adoption, in which a birth parent, or adoption parent,

simultaneously retains parental rights and consents [to the adoption], agrees [to the

adoption], or designates the adoptive parent of his or her child [to be] an unrelated

adult, is to be reviewed on its merits pursuant to the California Family Code.”

(CDSS, All County Letter No. 99-100 (Nov. 15, 1999); see ante, fn. 3.)13

13

Our concurring and dissenting colleagues correctly observe that CDSS

practice prior to November 15, 1999, included periods both of opposing and of not
opposing adoptions by unmarried couples, generally. (See conc. & dis. opn. of
Baxter, J., post, at pp. 3-4; conc. & dis. opn. of Brown, J., post, at p. 4.) As Justice
Brown also correctly points out, CDSS itself ultimately recognized that any former
policy of categorical opposition was “an underground regulation inconsistent with
the Administrative Procedure Act [(APA)]” (CDSS, All County Letter No. 99-100
(Nov. 15, 1999)), such as we have recognized is “void for failure to comply with
the APA” (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557,
576). We know of no authority for Justice Brown’s apparent implication (see
conc. & dis. opn. of Brown, J., post, at p. 4) that CDSS, before acknowledging the
invalidity of such an underground regulation and returning to “case-by-case”
consideration of second parent adoption petitions “on [their] merits pursuant to the
California Family Code” (CDSS, All County Letter No. 99-100 (Nov. 15, 1999),
was required to comply with APA notice and comment procedures for the
promulgation of regulations. (See Tidewater Marine Western, Inc., supra, at pp.
574-575 [noting a regulation will “apply generally” and “predicts how the agency
will decide future cases”].)

22

Deference to administrative interpretations always is “situational” and

depends on “a complex of factors” (Yamaha Corp. of America v. State Bd. of

Equalization, supra, 19 Cal.4th at p. 12), but where the agency has special

expertise and its decision is carefully considered by senior agency officials, that

decision is entitled to correspondingly greater weight (id. at pp. 12-15). CDSS

indisputably is familiar with the independent adoption provisions as well as with

the entire scheme of the adoption law it enforces, and its interpretation of section

8617 comes from authoritative legal and policymaking levels of the agency.

Accordingly, this is a case in which the administrative construction would appear

to be entitled to great weight. In any event, as it is not clearly erroneous, we owe

substantial deference to CDSS’s views of section 8617 as waivable and of second

parent adoptions as valid under the independent adoption laws. (Kelly v.

Methodist Hospital of So. California (2001) 22 Cal.4th 1108, 1118.)

D. Public

Policy

Several important considerations of public policy also buttress our

conclusion. Precisely how many second parent adoptions have been granted in

California over the years is difficult to know, partly because adoption proceedings

are generally confidential (see § 9200 et seq.), but published materials suggest

they number 10,000 to 20,000.14 That the second parent adoption procedures

14

See, e.g., Pizer, What About the Children? (Nov. 9, 2001) The Advocate,

p. 1 <http://www.advocate.com/html/stories/850/850_lambda_pizer.asp> (as of
Aug. 4, 2003) (“Between 10,000 and 20,000 California families have been made
secure and reassured through this process, just like families in nearly two dozen
other states across the country”); Tuller, Now You’re a Parent, Now You Aren’t
(Nov. 28, 2001) Salon.com, p. 1
<http://archive.salon.com/mwt/feature/2001/11/28/illegal_adoption/index.html>
(as of Aug. 4, 2003) (estimating the Court of Appeal decision in this case placed
“10,000 to 15,000 previously completed” second parent adoptions in doubt);
Curtis, Analysis: Gay Adoptions Get Boost from New California Law, Support


(footnote continued on next page)

23

promulgated by CDSS under the independent adoption statutes have received such

widespread acceptance and have been so extensively used speaks not only to their

utility in the modern context, but to their effectiveness in promoting the

fundamental purposes that adoption has always served.

1.

Fundamental purposes of adoption

The basic purpose of an adoption is the “welfare, protection and betterment

of the child,” and adoption courts ultimately must rule on that basis. (Reeves v.

Bailey (1975) 53 Cal.App.3d 1019, 1022-1023.) While the child’s “best interest”

is “an elusive guideline that belies rigid definition,” obviously overall “[i]ts

purpose is to maximize a child’s opportunity to develop into a stable, well-

adjusted adult.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) That

there are a variety of “costs . . . if a legal relationship with a second parent is not

established—costs that can be both financial and emotional” is well recognized.

(Doskow, The Second Parent Trap, supra, 20 J.Juv.L. at p. 9.) Second parent

adoption can secure the salutary incidents of legally recognized parentage for a

child of a nonbiological parent who otherwise must remain a legal stranger.

Second parent adoptions also benefit children by providing a clear legal

framework for resolving any disputes that may arise over custody and visitation.

Our explicitly recognizing their validity will prevent uncertainty, conflict, and

protracted litigation in this area, all of which plainly are harmful to children caught


(footnote continued from previous page)

from Pediatricians (Apr. 2, 2002) Christian Times on the Web, p. 1
<http://www.christiantimes.com/Articles/Articles%20Apr02/Art_Apr02_10.html>
(as of Aug. 4, 2003) (citing the Court of Appeal decision in this case as “throwing
the legitimacy of more than 10,000 adoptions statewide into question”).

24

in the middle.15 Unmarried couples who have brought a child into the world with

the expectation that they will raise it together, and who have jointly petitioned for

adoption, should be on notice that if they separate the same rules concerning

custody and visitation as apply to all other parents will apply to them.

In addition, second parent adoptions offer the possibility of obtaining the

security and advantages of two parents for some of California’s neediest children,

including many with “special needs” for whom a second parent adoption may

constitute the “closest conceivable counterpart of the relationship of parent and

child” available. (Adoption of Barnett, supra, 54 Cal.2d at p. 377.) The same is

true as regards thousands of others in foster care for whom it is state policy to seek

permanent adoptive placement.16

We need not review here the nonlegal benefits of adoption for children,

parents, and society as a whole, nor need we “assume, either as a policy or factual

matter, that adoption is necessarily in a child’s best interest” (Adoption of Kelsey

S. (1992) 1 Cal.4th 816, 845) in every case. We may observe, however, that

neither the Court of Appeal nor any party or amici curiae has suggested that,


15

See generally Adoption of Michael H., supra, 10 Cal.4th at page 1072

(conc. & dis. opn. of Kennard, J.).
16

It is “the policy of the Legislature that . . . children have a right to a normal

home life free from abuse, that reunification with the natural parent or parents or
another alternate permanent living situation such as adoption or guardianship is
more suitable to a child’s well-being than is foster care, that this state has a
responsibility to attempt to ensure that children are given the chance to have happy
and healthy lives . . . .” (Welf. & Inst. Code, § 396; see generally Fam. Code,
§ 8730 et seq. [adoptions by foster parents or relative caregivers].) In 1996, there
were 97,000 children living in foster care in California, but only about 6,000
adoptions. Approximately one-fourth of adoptions from foster homes by foster
parents were by unmarried adults. (Editorial, Wrongheaded Adoption Rule,
Fresno Bee (Oct. 12, 1996) p. B6.)

25

where an adoption would be in a child’s best interests, second parent adoption

differs categorically from other types of independent adoption in its ability to

achieve adoption’s practical ends.

Amicus curiae Proposition 22 Legal Defense and Education Fund suggests

that to affirm the statutory permissibility of second parent adoption “would offend

the State’s strong public interest in promoting marriage.” We disagree. This case

involves independent adoption, a procedure that is not limited to married persons.

Unmarried persons always have been permitted to adopt children. (See 1 Ann.

Civ. Code, § 221 (1st ed. 1872, Haymond & Burch, commrs. annotators [any adult

may adopt any eligible child]; Fam. Code, § 8600 [same].) More generally,

Justice Brown argues at some length that our decision today “trivializes family

bonds.” (Conc. & dis. opn. of Brown, J., post, at p. 8; see generally id. at pp. 8-

12.) To the contrary, our decision encourages and strengthens family bonds. As

Justice Scalia has noted, the “family unit accorded traditional respect in our

society . . . includes the household of unmarried parents and their children.”

(Michael H. v. Gerald D. (1989) 491 U.S. 110, 123, fn. 3.)17

Justice Brown purports to discern a legislative “insistence that the adopting

parent have a legal relationship with the birth parent” (conc. & dis. opn. of Brown,

J., post, at p. 10), but she cites no authority for the existence of such a requirement,


17

Justice Brown states she would find “reasonable any legislative provision

requiring that adopting parents share a common residence” (conc. & dis. opn. of
Brown, J., post, at p. 10, citing § 297, subd. (b)(1) [common residence requirement
for domestic partner registration]), but she does not claim the adoption statutes
contain any such across-the-board requirement. Nor does Justice Brown explain
what bearing her remark might have on the legality or utility of second parent
adoption. She does not demonstrate that living apart is a greater phenomenon
among couples who utilize second parent adoption procedures than it is among
couples who utilize other procedures or, indeed, among parents generally.

26

and we know of none. Established legislative policy “ ‘bases parent and child

rights on the existence of a parent and child relationship rather than on the marital

status of the parents.’ ” (Johnson v. Calvert (1993) 5 Cal.4th 84, 89 [discussing

Uniform Parentage Act]; see also § 7602 [“The parent and child relationship

extends equally to every child and to every parent, regardless of the marital status

of the parents”].)

The Court of Appeal recited that “in 1997 and 1998, the Legislature

considered, but did not adopt, a bill that would have provided that two unmarried

adults may adopt a child,” thereby implying that the Legislature had considered

and rejected the possibility of such adoptions. (See Assem. Bill No. 53 (1997-

1998 Reg. Sess.) §§ 1, 2 (hereafter Assembly Bill 53).) Not so. Although the

Court of Appeal’s remark correctly describes Assembly Bill 53, a bill introduced

in that session, it misleads to the extent it invites readers to assume the

Legislature’s inaction on the bill reflected a rejection of its substance.

Assembly Bill 53 dealt with adoption by single persons, as well as by

unmarried couples, and was promulgated to nullify a proposed CDSS regulation

that the bill’s proponents perceived would inhibit both. (See Assem. Bill 53, § 1,

subd. (c) [“Excluding potential adoptive parents on the basis of marital status is

not in the best interests of the children who are eligible for adoption”].) The

proposed regulation giving rise to Assembly Bill 53 would have barred agency

recommendation of any adoption by an unmarried person or persons. (See Cal.

Reg. Notice Register 96, No. 29, p. 446; Notice of Proposed Changes in

Regulations of the California Department of Social Services (CDSS), proposing

adoption of Cal. Code Regs., tit. 22, § 35124.)18 Promulgated in response,

18

Annette and Sharon each have submitted a request for judicial notice of

legislative history materials generally available from published sources. We deny


(footnote continued on next page)

27

Assembly Bill 53 would have added to the Family Code a new section explicitly

restating what is already implicitly provided in sections 8600 and 8601, i.e., that

any otherwise qualified single adult or two adults, married or not, may adopt a

child. (See Assem. Bill 53, § 2.) After the proposed regulation was withdrawn,

the responsive bill (i.e., Assembly Bill 53), which had passed the Assembly

Committee on the Judiciary by a vote of 10-4, died in the inactive file. (Assem.

Bill No. 53, Assem. Final Hist. (1997-1998 Reg. Sess.).)

Sharon argues that reversal of the Court of Appeal’s decision will permit

CDSS to authorize unusual adoptions, e.g., involving multiple parties, far removed

from those contemplated by the Legislature. Justice Baxter also expresses concern

that our decision will lead to “new and even bizarre family structures” (conc. &

dis. opn. of Baxter, J., post, at p. 7), while Justice Brown inexplicably refers to our

supposed “irretrievabl[e] commit[ment] to . . . the-more-parents-the-merrier view

of parenthood” (conc. & dis. opn. of Brown, J., post, at p. 9). Nonsense. While

CDSS has for some time treated section 8617 as waivable, such scenarios have not

materialized. Our explicit recognition in this case of the legal ground for second

parent adoptions—a nonmandatory construction of section 8617 that comports

with judicial precedent and ratifies administrative interpretation and practice in

which the Legislature has acquiesced—obviously cannot be taken as authority for

multiple parent or other novel adoption scenarios. Nothing we say in this case can

validate an adoption that is not in the child’s interest, omits any essential statutory

element, or is in violation of a public policy the Legislature may express. CDSS’s

construction honors the established principle that the beneficiary of a statute may

(footnote continued from previous page)

both requests as unnecessary. (Quelimane Co. v. Stewart Title Guaranty Co.
(1988) 19 Cal.4th 26, 46, fn. 9.)

28

waive it, is consistent both with judicial precedent and discernible legislative

intent, and serves the best interests of California’s children.

In sum, adherence to the Court of Appeal’s construction of section 8617 as

precluding second parent adoption would unnecessarily eliminate access to a duly

promulgated, well-tested adoption process that has become “routine in California”

(Eskridge & Hunter, Sexuality, Gender and the Law (1997) p. 866) and that is

fully consistent with the main purpose of the adoption statutes to promote “the

welfare of children ‘by the legal recognition and regulation of the consummation

of the closest conceivable counterpart of the relationship of parent and child’ ”

(Department of Social Welfare v. Superior Court, supra, 1 Cal.3d at p. 6).

2.

Settled familial expectations

The Court of Appeal’s implication that California courts lack jurisdiction to

grant second parent adoptions potentially called into question the legitimacy of

existing families heretofore created in this state through established administrative

and judicial procedures. Such families are of many types.

Although second parent adoptions may involve children conceived, as in

this case, by artificial insemination,19 others involve children placed directly by

their birth parents or private agencies with two unmarried adoptive parents. (See

generally 1 Hollinger, Adoption Law and Practice (2002) Placing Children for

Adoption, §§ 3.01-3.02, pp. 3-3 through 3-18.)20 Others involve dependent

19

Such children otherwise would have only one parent, as in California a

mere sperm donor is not a legal parent. (§ 7613, subd. (b).)
20

“Second parent adoptions may occur when a child’s heterosexual parents

are unable or unwilling to marry and establish paternity or when the parents are
lesbian or gay.” (Bryant, Second Parent Adoption: A Model Brief (1995) 2 Duke
J. of Gender L. & Policy 233, 233, fn. omitted; see also Ellis, Bitterly Opposed
Adoption Rule Died Quiet Death
, L.A. Times (Nov. 29, 1998) p. A1 [reporting
that most unmarried couples who adopt are heterosexual]; see, e.g, Patt, Second


(footnote continued on next page)

29

children, often with special needs because of prior abuse or neglect, who were

placed by public agencies with an unmarried “fost-adopt” parent whose partner

later became a second adoptive parent. Still others are “kinship” adoptions, in

which a grandparent or other relative became a second legal parent of a child

whose very young mother was unable to raise the child on her own. Such

adoptions also have involved children born in other countries and adopted either in

their country of origin or in California by an unmarried adult whose partner later

became a second adoptive parent. (1 Hollinger, Adoption Law and Practice,

supra, pp. 3-3 through 3-18.) Established practice in California thus has created

settled expectations among many different types of adoptive families.21

Affirmance would unnecessarily risk disturbing these.

Affirmance not only would cast a shadow of uncertainty over the legal

relationships between thousands of children and their adoptive parents (contrary to

the clearly stated intention of all interested parties), but potentially could prompt


(footnote continued from previous page)

Parent Adoption: When Crossing the Marital Barrier Is in a Child’s Best
Interests
, supra, 3 Berkeley Women’s L.J. at pp. 128-130, citing In re Adoption
Petition of D.J.L.
(Super. Ct. San Diego County, 1988, No. A-28,345) [second
parent adoption granted to child’s mother and former stepfather after they
divorced]; In re Adopting Parent (Super. Ct. Riverside County, 1985, No. A-
10,169) [same].)
21

California practice accords with the national trend. As of 2001, at least 21

American jurisdictions had recognized second parent adoption. (Lilith, The
G.I.F.T. of Two Biological and Legal Mothers
(2001) 9 Am.U. J. Gender, Soc.
Policy & L. 214.) The highest state courts in Massachusetts, New York and
Vermont expressly have permitted second parent adoption without requiring
termination of the birth parent’s rights. (See Adoption of Tammy (Mass. 1993)
619 N.E.2d 315; In re Jacob (N.Y. 1995) 660 N.E.2d 397; Adoptions of B.L.V.B.
and E.L.V.B.
(Vt. 1993) 628 A.2d 1271.) The remainder have permitted second
parent adoptions at intermediate appellate and lower court levels.

30

some adoptive parents to disclaim their established responsibilities. Indeed, as the

Court of Appeal dissenter noted, perpetuating the Court of Appeal opinion “would

invite attempts to nullify completed second party adoptions in myriad species of

litigation including support/custody/visitation disputes, inheritance contests and

withdrawals of entitlements to previously available health and pension benefits,

both governmental and private. The ultimate financial and emotional losers will

be children who are the intended beneficiaries of the adoption laws.”

Sharon errs in asserting that, even if we were to affirm, persons who

previously had completed a second parent adoption would have remedies such as

compliance with the domestic partner registration provisions (§ 297 et seq.)22 if

they wish to “ratify” the earlier proceeding. Domestic partner registration

constitutes no such panacea. With an exception for some seniors, California’s

domestic partner registry is open only to same-sex couples, and not to

heterosexuals. (§ 297, subd. (b)(6).)

Registered domestic partners, moreover, must have a common residence

(§ 297, subd. (b)(1)), thus excluding qualified adoptive parents who might live

apart for reasons having no bearing on whether an adoption is in a particular

child’s interest. Similarly, blood relatives cannot register, and therefore cannot

adopt, as domestic partners (id., subd. (b)(4)), even though many modern

adoptions are kinship adoptions. (See 1 Hollinger, Adoption Law and Practice,

supra, Placing Children for Adoption, §§ 3.01-3.02, pp. 3-3 through 3-18.) And

families that have moved out of state, or where one adoptive parent has died, will


22

Added by Statutes 1999, chapter 588, section 2; amended by Statutes 2001,

chapter 893, section 3.

31

not be able to seek ratification as domestic partners.23 Even for parents who are

legally qualified to register as domestic partners, undertaking a “re-adoption”

would pose financial hardship and painful legal uncertainty.24 No parent should

have to face these kinds of choices, and no child should be placed in this kind of

needless jeopardy.

Nothing on the face of the domestic partnership provisions, or in their

history as revealed in the record, states or implies a legislative intent to forbid,

repeal, or disapprove second parent adoption or CDSS’s forms and procedures

facilitating such. Thus, contrary to Justice Brown’s assertion, the Legislature’s

conferring on domestic partners “the right . . . to adopt a child of his or her partner

as a stepparent” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading

analysis of Assem. Bill No. 25 (2001-2002 Reg. Sess.) as amended Sept. 7, 2001,

pp. 1-2, italics added), far from “confirm[ing] its understanding” that second

parent adoption was not available (conc. & dis. opn. of Brown, J., post, at p. 3),

simply streamlines the adoption process for a subset of those who already were

accessing second parent procedures, much as occurred in 1931 when the

Legislature streamlined stepparent adoption itself. (See ante, fn. 9.) Domestic


23

Additionally, privacy concerns undermine the utility of domestic partner

registration for some qualified adoptive parents who require confidentiality.
While records in adoption cases generally are confidential (§ 9200 et seq.),
domestic partner registration requires a declaration that the couple shares “an
intimate and committed relationship,” in a document generally subject to public
disclosure. (§ 298.5; 84 Ops.Cal.Atty.Gen. 55 (2001).)
24

Forcing established adoptive families to return to court to ratify their family

ties would burden the justice system with re-addressing consensual arrangements
that have already been administratively and judicially ratified. Such duplication
hardly would constitute the “prompt resolution of adoption proceedings”
(Adoption of Kelsey S., supra, 1 Cal.4th at p. 851) on which we consistently have
placed a priority.

32

partner registration does not broadly secure for California’s children the benefits

of the availability of second parent adoption, nor does it eliminate the uncertainty

the Court of Appeal’s decision created for existing second parent adoptees and

their parents.

II. Constitutional

Considerations

Sharon in opposing review specified two additional questions: whether

Annette’s adoption of Joshua would violate the constitutional doctrine of

separation of powers and whether the adoption would violate Sharon’s due process

rights under the Fourteenth Amendment to the United States Constitution.

A.

Separation of Powers

In promulgating forms and procedures to facilitate second parent adoptions,

Sharon asserts, CDSS—an agency of the executive branch of our state

government—is improperly engaging in the equivalent of legislation. She cites

three Court of Appeal cases discussing child visitation, apparently for the

proposition that courts should leave innovation in adoption policy to the

Legislature. (See West v. Superior Court (Lockrem) (1997) 59 Cal.App.4th 302

(West); Nancy S. v. Michele G., supra, 228 Cal.App.3d 831 (Nancy S.); Curiale v.

Reagan (1990) 222 Cal.App.3d 1597 (Curiale).) With that proposition generally,

we do not disagree. But, as discussed, second parent adoption is the status quo in

California, not an innovation.

The cases Sharon cites are not apposite. They all address the jurisdiction of

California courts to award visitation to a “de facto” parent; none addresses the

validity of an adoption.25 Annette is not seeking custody of Joshua on the basis of


25

“The de facto parenthood doctrine simply recognizes that persons who have

provided a child with daily parental concern, affection, and care over substantial
time may develop legitimate interests and perspectives, and may also present a


(footnote continued on next page)

33

her past relationship as caregiver to him, nor on any other equitable theory.

Rather, she seeks finalization of an independent adoption, with at least partial

custody as one of its incidents. In passing on the validity of these adoption

proceedings, we have no occasion to address de facto parenthood.

In any event, in suggesting that de facto parenthood involves policy

questions best left to the Legislature (see West, supra, 59 Cal.App.4th at p. 307;

Nancy S., supra, 228 Cal.App.3d at p. 841; Curiale, supra, 222 Cal.App.3d at

pp. 1600-1601), the courts in the cases Sharon cites did not hold that any judicial

action in this area would be unconstitutional. And to the extent each relied partly

on a de facto parent’s failure to adopt the child involved, they impliedly

recognized the viability of second parent adoption under existing statutes. (See

West, supra, at p. 304; Nancy S., supra, at p. 841; Curiale, supra, at p. 1599; see

also In re Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 527.) The Court of

Appeal in Nancy S., citing our Marshall decision for support, expressly found

“nothing in these provisions that would preclude a child from being jointly

adopted by someone of the same sex as the natural parent.” (Nancy S., supra, at

p. 841, fn. 8.)

Sharon concedes the Legislature authorized CDSS to promulgate for use in

the independent adoption process a form adoption placement agreement (§ 8801.3,

subd. (b)) that includes a consent to the adoption (id., subd. (c)(5)), but urges that

CDSS “has no power by regulation or otherwise to add to or detract from the rules

for adoption prescribed in the Civil [now Family] Code” (Adoption of McDonald,

supra, 43 Cal.2d at p. 461). As we have explained at length, however, in

(footnote continued from previous page)

custodial alternative, which should not be ignored in a juvenile dependency
proceeding.” (In re Kieshia E. (1993) 6 Cal.4th 68, 77.)

34

interpreting the independent adoption statutes to permit parental consent to a

second parent adoption where the procedural prerequisites thereto and the essential

elements of a valid adoption are satisfied, CDSS does not “add to or detract from”

those statutes but, rather, construes them reasonably.

B. Due

Process

Sharon in her brief on the merits expressly refrains from arguing that

Annette’s adoption of Joshua would violate her due process rights, but in opposing

review she suggested this case presents that question. She cited in support Troxel

v. Granville (2000) 530 U.S. 57, 75 (Troxel), wherein a plurality of the high court

held that a Washington State statute providing that any person may at any time

petition for visitation of an unrelated child, and that the court may order such

visitation when it is in the child’s best interest, violated the birth mother’s

substantive due process rights.

Troxel is readily distinguishable. Most fundamentally, Troxel was a

visitation case, whereas this case involves an adoption, and in California the

statutes and procedures governing adoption are different from those governing

visitation. (Compare generally §§ 3100-3103 with §§ 8600-9206.) The

Washington statute at issue in Troxel provided specifically that “[a]ny person may

petition the court for visitation rights at any time” and that courts may award

visitation whenever “visitation may serve the best interest of the child” (Wash.

Rev. Code, § 26.10.160(3), italics added). Calling this language “breathtakingly

broad,” the high court noted it “effectively permits any third party seeking

visitation to subject any decision by a parent concerning visitation of the parent’s

children to state-court review.” (Troxel, supra, 530 U.S. at p. 67.) California law

provides for no such freestanding visitation proceeding. Nor is Annette just “any

person” (Wash. Rev. Code, § 26.10.160(3)); she is a prospective adoptive mother.

35

The statute at issue in Troxel did not require parental consent (or a finding

of parental unfitness), and it was that fact, primarily, that led to its invalidation.

(See Troxel, supra, 530 U.S. at pp. 67-70.) While Sharon now wishes to terminate

these proceedings, she does not deny that she originally joined Annette in

invoking the superior court’s adoption jurisdiction (§ 200) or that she failed to

revoke her consent within the prescribed statutory period (§ 8814.5, subd. (3)(b)).

In short, Troxel neither involved nor discussed adoption. Nor, as discussed,

are the California adoption statutes subject to the constitutional criticisms the high

court leveled there against Washington’s visitation statute.

For the foregoing reasons, we conclude that neither due process nor the

doctrine of separation of powers constitutes a bar to Annette’s adoption of Joshua.

Consequently, section 8617 does not prevent the superior court from proceeding to

a best interests analysis of Annette’s petition. (§ 8612.)

III. Fraud

and

Duress

As noted at the outset of this opinion, in requesting approval to withdraw

her consent to the adoption, Sharon, in addition to the statutory and constitutional

objections reviewed above, argued to the trial court that she had signed the

adoption consent form under fraud, undue influence, and duress and that the

original adoption attorney representing her and Annette had failed to obtain a

signed waiver regarding conflict of interest. In her writ petition, Sharon reprised

these arguments.

With a few statutory exceptions not relevant here, a legal parent’s valid

consent is a jurisdictional prerequisite to an adoption, regardless of the child’s

interests. (See Matter of Cozza (1912) 163 Cal. 514, 523, disapproved on another

ground in Adoption of Barnett, supra, 54 Cal.2d at p. 378.) Where a parent’s

consent to adoption is obtained through fraud or duress, the consent “is not

voluntary and the jurisdictional prerequisite to a valid adoption is lacking.”

36

(Adoption of Kay C. (1991) 228 Cal.App.3d 741, 751; see also In re Yoder (1926)

199 Cal. 699, 701 [order of adoption may be set aside for fraud, mistake,

inadvertence, surprise, or excusable neglect].) Since the Court of Appeal agreed

with Sharon’s statutory argument, it had no occasion to address the superior

court’s implicit rejection of her contentions respecting fraud and undue influence.

We shall remand the cause to permit the Court of Appeal to address this issue in

the first instance. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 95; Lisa M. v.

Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 306.)

Subject to the Court of Appeal’s resolution of this remaining issue, the

superior court on remand may validly exercise its discretion to order Annette’s

adoption of Joshua under the independent adoption statutes if it concludes that the

administrative procedures, including section 8617 waiver, duly established

thereunder have been complied with and that all statutory prerequisites are

satisfied. Sharon retains the right to oppose finalization of the adoption on the

ground that new circumstances make it contrary to Joshua’s interests. (See County

of Los Angeles v. Superior Court (1969) 2 Cal.App.3d 1059, 1065-1066.) We take

no position on such outstanding factual questions, and nothing in this opinion

should be taken by the court below on remand to indicate a view as to whether

adoption is in Joshua’s interests.

37

Conclusion

For the foregoing reasons, we reverse the judgment of the Court of Appeal

and remand the cause for further proceedings consistent with this opinion.

WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
MORENO, J.



38










CONCURRING AND DISSENTING OPINION BY BAXTER, J.

The majority’s principal holding—which recognizes second parent

adoptions1 as valid in California—is unremarkable. At least 20 other jurisdictions

have already done so (Krause & Meyer, What Family for the 21st Century? (2002)

50 Am. J. Comp. L. 101, 114, fn. 23), including the highest courts of three sister

states. (Maj. opn., ante, at p. 30, fn. 21, citing Adoption of Tammy (Mass. 1993)

619 N.E.2d 315; Matter of Jacob (N.Y. 1995) 660 N.E.2d 397; Adoption of

B.L.V.B. (Vt. 1993) 628 A.2d 1271.) I join fully in that holding.

I part company with the majority, however, over its interpretation of

Family Code section 8617, which states that from the time of adoption, the birth

parent shall “have no right over the child.” I would hold that the parties to an

adoption may waive section 8617 in the limited circumstance of a second parent

adoption. This is sufficient to resolve the case. Unfortunately, the majority does

not stop there but makes the additional holding that section 8617 is a

nonmandatory consequence of an adoption and can be waived whenever the

parties agree to do so. (Maj. opn., ante, at pp. 9, 12, 28.) Under the majority’s

approach, section 8617’s termination of the birth parents’ rights in any type of


1

I adopt the majority opinion’s definition of “second parent adoption” (maj.

opn., ante, at p. 2, fn. 2) and, like the majority, distinguish such adoptions from
stepparent adoptions. (See Fam. Code, §§ 8548, 9000-9007.)

1

adoption—not merely those that seek to add a second parent—can be waived by

mutual agreement, thus permitting a child to have three or more parents.

This makes new law, not only here but nationwide. Other states—even

those states that have already validated second parent adoptions—have not taken

this step. (E.g., Adoption of B.L.V.B., supra, 628 A.2d at p. 1274, fn. 3 [declining

to characterize a Vermont termination-of-rights statute as “directory rather than

mandatory”]; see also In Interest of Angel Lace M. (Wis. 1994) 516 N.W.2d 678,

683-684 [construing a similar Wisconsin termination-of-rights statute as

mandatory].)2 I find this out-of-state authority persuasive. (See 3 Singer, Statutes

and Statutory Construction (6th ed. 2001) § 57:6, p. 30 [“The manner in which

similar statutes in other states have been construed may be an element bearing

upon this question”].) Unlike the majority, but in accordance with our sister

states, I would hold that our termination-of-rights statute can be waived in the

limited circumstance of a second parent adoption. Just as it has not been

necessary to declare similar provisions to be directory to affirm second parent

adoptions in other states, it is not necessary to make new law to uphold second

parent adoptions in California.

I cannot fathom why the majority has deliberately chosen a rationale that is

unnecessary to the disposition of this case and that has been avoided by other

jurisdictions, but I do understand and fear the effect of the majority’s additional

holding: to put at risk fundamental understandings of family and parentage.

Tomorrow, the question may be: How many legal parents may a child have in

California? And the answer, according to the majority opinion, will be: As many


2

Indeed, the New York Court of Appeals’ construction of a similar

termination-of-rights statute as “mandatory in all cases” was superseded only by
subsequent legislation. (Matter of Jacob, supra, 660 N.E.2d at p. 404.)

2

parents as a single family court judge, in the exercise of the broadest discretion in

our law, deems to be in the child’s best interest.

As stated, I do concur in the judgment. But for the reasons that follow, I

will not join the majority opinion.

I

If it is true that you can’t get where you’re going if you don’t know where

you’ve been, then it should come as no surprise the majority finds itself in

uncharted territory. The majority claims (without any citation) that “[e]stablished”

(maj. opn., ante, at p. 22) administrative interpretation and practice by the

California Department of Social Services (CDSS) supports its affirmance of

second parent adoptions. It is quite simple, as detailed below, to verify CDSS’s

interpretation and practice during the relevant period. Unless “established” is

redefined to mean “very recent,” the historical claim made by the majority cannot

be defended.

The first petitions for second parent adoptions were filed in the early

1980’s. Between that time and 1999, with only a brief exception, CDSS

maintained a policy of opposing “any petition for adoption in which a child is to

be adopted into an unmarried couple.” (Doskow, The Second Parent Trap:

Parenting for Same-Sex Couples in a Brave New World (1999) 20 J. Juv. L. 1, 7.)

The lone exception to this policy lasted “only a few months” and was promptly

reversed when “then-Governor Pete Wilson became aware of the change and

ordered [CDSS] to return to its original policy.” (Id. at p. 7 & fn. 31, citing CDSS,

All County Letter No. 95-13 (Mar. 11, 1995), rescinding CDSS, All County Letter

No. 94-104 (Dec. 5, 1994).) The original policy then continued in force until

November 15, 1999. (Doskow, supra, 20 J. Juv. L. at p. 8; see CDSS, All County

Letter No. 99-100 (Nov. 15, 1999).) Thus, contrary to the assertion in the majority

opinion, CDSS had an established and long-standing administrative interpretation

3

and practice of opposing second parent adoptions—based on its interpretation of

section 8617—that lasted for well over a decade. (Doskow, supra, 20 J. Juv. L. at

pp. 12-13; see also Cal. Reg. Notice Register 96, No. 29, p. 446; Notice of

Proposed Changes in Regulations of Cal. Dept. Soc. Services (CDSS), proposing

adoption of Cal. Code Regs., tit. 22, § 35124.) Moreover, that policy remained in

effect until the year before this litigation commenced. Accordingly, any claim that

CDSS policy has “for some time” (maj. opn., ante, at p. 28) supported second

parent adoption is demonstrably incorrect.

Even if the new CDSS policy had not been of such recent vintage, the

majority ought to have steered clear of substantial reliance on it. The majority

correctly recites that deference to administrative interpretation “is ‘situational’ and

depends on ‘a complex of factors.’ ” (Maj. opn., ante, at p. 23, quoting Yamaha

Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha

Corp.).) But the majority then fails to apply those factors. Where an agency (like

CDSS) is merely construing a controlling statute, the weight of the agency’s

interpretation “ ‘will depend upon the thoroughness evident in its consideration,

the validity of its reasoning, its consistency with earlier and later pronouncements,

and all those factors which give it power to persuade, if lacking power to control.”

(Yamaha Corp., supra, 19 Cal.4th at pp. 14-15, italics omitted, quoting Skidmore

v. Swift & Co. (1944) 323 U.S. 134, 140.)

Analysis of the appropriate factors here would counsel caution, not a

kowtow to the agency’s recent change in policy. CDSS’s consideration of the

applicable statutes was hardly thorough: the All County Letter announcing the

policy reversal is less than one page long and nowhere indicates it was issued in

accordance with the Administrative Procedure Act. (Yamaha Corp., supra, 19

Cal.4th at p. 13.) The validity of CDSS’s reasoning is impossible to evaluate: the

All County Letter simply announces a reversal in policy, without providing any

4

supporting reasons, and rejects the prior long-standing policy based solely on the

fact that it was “an underground regulation inconsistent with the Administrative

Procedure Act.” (CDSS, All County Letter No. 99-100, supra.) This indicates

merely that the prior rule was promulgated in an impermissible manner, not that it

misinterpreted the statute. (E.g., Kings Rehabilitation Center, Inc. v. Premo

(1999) 69 Cal.App.4th 215, 217 [“ ‘underground’ regulations” are “rules which

only the government knows about”].) The new CDSS policy plainly is not

consistent: the All County Letter abandons long-standing policy and had been in

effect less than 12 months prior to the institution of this action. (Cf. Ramirez v.

Yosemite Water Co. (1999) 20 Cal.4th 785, 801 [agency’s interpretation of statute

for “almost 20 years” is “ ‘ “long-standing” ’ ”].) Nor is CDSS’s policy reversal

reasonably contemporaneous with the adoption of the relevant statutes. (Kelly v.

Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1118, fn. 4.)

In short, none of these factors supports the majority’s conclusion that the

1999 policy reversal “would appear to be entitled to great weight” and merits

“substantial deference.” (Maj. opn., ante, at p. 23.) Accordingly, I would not

make such a claim. The significance of the 1999 policy reversal, in my view, is

that we are no longer bound to defer to CDSS’s established and long-standing

policy of disapproving second parent adoptions. (Yamaha Corp., supra, 19

Cal.4th at p. 13 [“ ‘[a] vacillating position . . . is entitled to no deference’ ”].) We

need not (and ought not) torture settled administrative law to go further than that.

II

As stated above, I conclude that in the limited circumstance of a second

parent adoption, the parties may waive section 8617’s requirement that the

parental rights of the birth parent be terminated. Unlike the majority, however, I

do not rest my conclusion that section 8617 can be waived in this limited

circumstance on the theory that it is merely directory.

5

The designation of a statute as either mandatory or directory must be made

with reference to the statute’s purpose. (People v. McGee (1977) 19 Cal.3d 948,

962.) Designating section 8617 as nonmandatory or directory means that the

termination of parental rights at the time of adoption is “ ‘immaterial’ ” and

involves only a matter of “ ‘convenience.’ ” (Francis v. Superior Court (1935) 3

Cal.2d 19, 28.) Designating section 8617 as directory also means that it may be

waived at the will of the parties. (In re Johnson (1893) 98 Cal. 531, 539.) This, of

course, is the view advanced by the majority, which states that the termination of

parental rights in section 8617 is not “ ‘for a public purpose’ ” but instead is “for

the benefit of the parties to an adoption petition” and thus is “waivable by the

parties thereto.” (Maj. opn., ante, at p. 9.) This analysis is contrary to our

precedents, contrary to legislative policy, and has predictably unfortunate

consequences.

Now that section 8617 has been classified as directory, the parties to every

type of adoption are free to disclaim its effect whenever they choose. Any number

of consenting adults may thus agree to adopt the same child, so long as a single

family court judge finds the adoption is in the child’s interest. (See maj. opn.,

ante, at p. 36.) Nothing in the Family Code would be left to prevent a child from

having three or four or a village’s worth of legal parents, so long as all the would-

be parents agree to waive section 8617 and a sole family court judge sometime,

somewhere, finds the adoption to be in the child’s interest. (In re Johnson, supra,

98 Cal. at p. 539 [a directory provision “is to be complied with or not in the

discretion of the judge”].) Inasmuch as there is “[n]o higher discretion” than that

vested in a trial court resolving a petition of adoption (Matter of Bewley (1914)

167 Cal. 8, 10), the majority all but guarantees new and even bizarre family

structures.

6

The majority discounts this possibility as “[n]onsense,” claiming that

“[w]hile CDSS has for some time treated section 8617 as waivable, such scenarios

have not materialized.” (Maj. opn., ante, at p. 28.) I do not find this comforting.

Nothing in CDSS policy states that section 8617 is nonmandatory. Rather, the

new CDSS policy, like this separate opinion, permits section 8617 to be waived

only in the limited circumstance of a second parent adoption. In any event, it is far

too soon to gauge the effect of the recent reversal in CDSS policy, which (as

Justice Brown points out) postdates the adoption agreement in this case. (Conc.

and dis. opn. of Brown, J., post, at p. 4, fn. 2.) The regime the majority announces

today has not yet been tested here.

However, it does not take much imagination to predict what that regime

will look like. Commentators have recognized that a child may end up with any

number of parents when family structure becomes a matter of private ordering.

(King, Solomon Revisited: Assigning Parenthood in the Context of Collaborative

Reproduction (1995) 5 UCLA Women’s L.J. 329, 388 (King) [“Unlike the nuclear

family model, families of consent can include one, two, or more parents”].) The

available empirical evidence supports this prediction. An Alaska superior court’s

finding that a similar termination-of-rights statute was directory was followed

quickly by an adoption in which neither natural parent severed ties with the child.

“Accordingly, the child now has three legal parents.” (Patt, Second Parent

Adoption: When Crossing the Marital Barrier Is in a Child’s Best Interests (1987-

1988) 3 Berkeley Women’s L.J. 96, 132, italics added (Patt).) Moreover, at oral

argument, Annette’s counsel informed us that superior courts in this state have

7

already allowed a child to have more than two legal parents, apparently based on

counsel’s theory that section 8617 is merely directory.3

Since I am not a legislator, my own views as to whether children should be

allowed to have three or more legal parents are not relevant here, although it does

appear that such arrangements are highly problematic. (See Shapo, Matters of Life

and Death: Inheritance Consequences of Reproductive Technologies (1997) 25

Hofstra L.Rev. 1091, 1199 [“The facts of Michael H. [v. Gerald D. (1989) 491

U.S. 110] highlight the practical difficulties of a divided authority and a disrupted

family unit that may result from more than two legal parents”].) The existence of

multiple parents would also make more difficult the resolution of disputes that

may arise over custody and visitation, as well as conflicts over other parental

rights and responsibilities. (Cf. maj. opn., ante, at p. 24.) In any event, the

important point—and the one the majority deliberately ignores—is that “[e]xisting

law recognizes a maximum of two parents per child.” (King, supra, 5 UCLA

Women’s L.J. at p. 386.) Indeed, no commentator of whom I am aware shares the

majority’s agnosticism as to “whether there exists an overriding legislative policy

limiting a child to two parents.” (Maj. opn., ante, at p. 10, fn. 6; cf. Liebler, Are

3

The majority states that because “[t]his case involves only a second parent

adoption,” we have no occasion to consider “whether there exists an overriding
legislative policy limiting a child to two parents.” (Maj. opn., ante, at p. 10, fn. 6.)
Naturally, I wholeheartedly agree. After all, it is only the majority’s gratuitous
holding that section 8617 is directory—and hence waivable at the election of the
parties—that raises concerns about how many parents a child might acquire
through the adoption process. The majority’s alternate assertion that it does not
intend to validate an adoption that “omits any essential statutory element” or “is in
violation of a public policy the Legislature may express” (maj. opn., ante, at p. 28)
is mere wishful thinking—for without section 8617, there is no statutory element,
essential or otherwise, that protects the child who completes the adoption process
from ending up with more than two legal parents. Tellingly, the majority does not
even purport to identify one.

8

You My Parent? Are You My Child? The Role of Genetics and Race in Defining

Relationships After Reproductive Technological Mistakes (2002) 5 DePaul J.

Health Care L. 15, 53 [“I suggest that the statutory requirements that children can

have only two parents be changed”]; Sheldon, Surrogate Mothers, Gestational

Carriers, and a Pragmatic Adaptation of the Uniform Parentage Act of 2000

(2001) 53 Me. L.Rev. 523, 573, fn. 226 [“innumerable state and federal statutes

. . . are premised on a maximum of two parents”]; Katz, Ghost Mothers: Human

Egg Donation and the Legacy of the Past (1994) 57 Albany L.Rev. 733, 755 [“The

premises underlying the legal definitions of parent and nonparent have been that a

child should have no more than two legal parents”]; see also Michael H. v. Gerald

D., supra, 491 U.S. at p. 118 (plur. opn. of Scalia, J.) [“California law, like nature

itself, makes no provision for dual fatherhood”].) Moreover, numerous provisions

of the Family Code—including the sections cited by the majority—demonstrate

the Legislature intended to limit a child to no more than two legal parents. In fact,

this intent is made manifest in section 8617 itself, which terminates the birth

parents’ rights “from the time of the adoption.” Since a child can have no more

than two birth parents (see Fam. Code, § 8512; id., § 7613, subd. (b); see also

Johnson v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8), section 8617 ensures that the

child does not acquire more than two through the process of adoption. The

majority’s unique unwillingness to acknowledge section 8617’s role in limiting a

child to no more than two parents defies common sense.4


4

In its truncated discussion of section 8617’s purpose, the majority seems to

operate under the impression that a statute’s public purpose must be ascertained by
considering the provision in isolation. If so, the majority is again mistaken.
(Francis v. Superior Court, supra, 3 Cal.2d at p. 28 [“Another rule equally well
recognized in the construction of such a statute is that whether a statute is
mandatory or directory depends upon the legislative intent as ascertained from the


(footnote continued on next page)

9

The majority’s contention that section 8617 “does not speak to parental

numerosity” (maj. opn., ante, at p. 10, fn. 6) is not only very hard to understand,

but is also flatly contrary to our precedents. In Estate of Jobson (1912) 164 Cal.

312, we construed the predecessor to section 8617 in a situation where the

biological father sought a partial distribution of his decedent son’s estate. The

decedent, however, had been adopted by his maternal grandparents years before.

In rejecting the biological father’s claim, we explained the operation of the statute:

“These various rulings seem to establish the doctrine that the effect of an adoption

under our Civil Code is to establish the legal relation of parent and child, with all

the incidents and consequences of that relation, between the adopting parent and

the adopted child. This necessarily implies that the natural relationship between

the child and its parents by blood is superseded. . . . Once we have reached the

conclusion that the effect of an adoption under the code is to substitute the

adopting parent for the parent by blood, we must give to that conclusion its logical

results. From the time of the adoption, the adopting parent is, so far as concerns

all legal rights and duties flowing from the relation of parent and child, the parent

of the adopted child. From the same moment, the parent by blood ceases to be, in

a legal sense, the parent. His place has been taken by the adopting parent.”

(Estate of Jobson, supra, 164 Cal. at pp. 316-317, italics added.)

I read Estate of Jobson as confirming the pivotal role of section 8617’s

predecessor in limiting the number of legal parents a child may acquire through an

(footnote continued from previous page)

consideration of the whole act”]; Cole v. Antelope Valley Union High School Dist.
(1996) 47 Cal.App.4th 1505, 1513 [“considering the purpose and provisions of the
statutory scheme as a whole”].) Indeed, since at least In re Johnson, supra, 98
Cal. at page 536, we have found it “necessary” to read the statute in question “with
other sections of the same code relating to the subject of adoption” to determine
whether the statute was mandatory or directory.

10

adoption. And I do not think mine is an idiosyncratic reading. Commentators—

even those quoted by the majority itself—have recognized that section 8617

“protects the child from the burden of owing duties and obligations to two

families.” (Patt, supra, 3 Berkeley Women’s L.J. at p. 117.) Thus, by gratuitously

holding that section 8617 is nonmandatory, the majority guts that protection, to the

detriment of children generally.

The majority claims to agree that courts should leave innovation in

adoption policy to the Legislature. (Maj. opn., ante, at p. 33.) But the claim rings

hollow here—since by classifying section 8617 as directory, this court has usurped

the Legislature’s power to limit a child to no more than two parents and has

bestowed it instead on an individual family court judge, who may assign a child as

many legal parents as the lone judge deems in the child’s best interest. In my

view, that is a breathtaking innovation in adoption policy. A change of this scope

should be decided only by the Legislature or the people by initiative. (Williams v.

North Carolina (1942) 317 U.S. 287, 303.)

III

To the extent the majority believes itself compelled to classify section 8617

as directory in order to authorize second parent adoptions in California, it is

mistaken. Our case law—including the same case law the majority purports to

apply—would allow the parties to an adoption to waive the effect of section 8617,

as long as the waiver did not seriously compromise the provision’s public purpose.

Second parent adoptions, by definition, pose no threat to the legislative policy

limiting a child to no more than two legal parents. Hence, under our existing case

law, it is enough to say that section 8617 does not bar second parent adoptions

generally or this proposed adoption in particular.

We begin with our rules for construing the Family Code. Although the law

of adoption is “wholly statutory” (Estate of Sharon (1918) 179 Cal. 447, 454),

11

“[t]he rule is that the adoption statutes are to be liberally construed with a view to

effect their objects and to promote justice. Such a construction should be given as

will sustain, rather than defeat, the object they have in view.” (Department of

Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6.) “ ‘The main purpose of

adoption statutes is the promotion of the welfare of children . . . by the legal

recognition and regulation of the consummation of the closest conceivable

counterpart of the relationship of parent and child.’ ” (Adoption of Barnett (1960)

54 Cal.2d 370, 377.)

A second parent adoption promotes the welfare of children by formalizing

in law a relationship that already exists in fact between the child and the

prospective parent. Moreover, it does so without compromising the public

purpose, set forth in section 8617, of limiting a child to no more than two parents.

Therefore, in this limited circumstance, the parties should be permitted to waive

the requirements of section 8617 and avoid the termination of the birth parent’s

rights.

There is ample precedent for permitting a limited waiver of statutes that

serve important public purposes. After all, this is the analytical model we

employed in Cowan v. Superior Court (1996) 14 Cal.4th 367 (Cowan). This is

also the analysis we approved in Bickel v. City of Piedmont (1997) 16 Cal.4th

1040 (Bickel). And, this is the analysis we invoked most recently County of

Riverside v. Superior Court (2002) 27 Cal.4th 793 (County of Riverside). None of

these cases even uttered the words “mandatory” or “directory.”

In Cowan, we held that a criminal defendant under certain circumstances

may waive the benefit of a statute of limitations to a lesser offense than that

charged, even though the statute existed partly to achieve certain public benefits.

(Cowan, 14 Cal.4th at pp. 374-375; Bickel, supra, 16 Cal.4th at p. 1050.) We

described the operative waiver as one that is knowing, intelligent, and voluntary; is

12

made for the defendant’s benefit after consultation with counsel; and does not

handicap the defense “ ‘ “or contravene any other public policy reasons motivating

the enactment of the statutes.” ’ ” (Cowan, supra, 14 Cal.4th at p. 372.)

Similarly, in Bickel, we observed that developers could waive the benefits

of the Permit Streamlining Act “if the administrative record shows that the

applicant has made a knowing, intelligent, and voluntary waiver in circumstances

where the applicant might reasonably anticipate some benefit or advantage from

the waiver, and if the waiver does not seriously compromise any public purpose

that the Act’s time limits were intended to serve.” (Bickel, supra, 16 Cal.4th at p.

1050.)

Finally, in County of Riverside, we upheld a limited waiver by a

probationary deputy sheriff of the Public Safety Officers Procedural Bill of Rights

Act—which is yet another law “ ‘established for a public reason.’ ” (County of

Riverside, supra, 27 Cal.4th at p. 804.) This waiver, once again, was limited to the

circumstance where “enforcement of the waiver would not particularly undermine

the public purpose of the Act.” (Id. at p. 806.)

Unlike the majority, I would find it sufficient to apply Cowan, Bickel, and

County of Riverside here and permit the parties to a second parent adoption to

knowingly, intelligently, and voluntarily waive the termination of parental rights

otherwise required by section 8617, inasmuch as the waiver would not contravene,

compromise, or undermine the statute’s public purpose. (Cf. Cal-Air

Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 668-

671 [strict compliance with mandatory provision is unnecessary where every

reasonable objective of the statute has been satisfied].)

Construing section 8617 in this manner is not only consistent with our

canons of construction generally, it is also consistent with our precedents in the

area of adoption law. In Marshall v. Marshall (1925) 196 Cal. 761, which

13

nowhere mentions the terms “directory” or “mandatory,” we permitted the parties

to waive the predecessor to Family Code section 8617 in an analogous

circumstance. We held that a stepfather’s adoption of his wife’s children did not

terminate her parental relationship with the children, notwithstanding the

provisions of Civil Code former section 229, on the ground that the parties to that

adoption “did not intend thereby to sever the parental relationship between the

mother and the children.” (Marshall, supra, at p. 766.) But, rather than make the

provision waivable in all circumstances, we merely recognized a limited waiver to

permit “a husband and wife . . . [to] jointly adopt a child pursuant to the procedure

therein prescribed, the result of which is to make the child, in law, the child of

both spouses.” (Id. at p. 767.) Had Marshall intended to make the provision

directory, it would not have been necessary to limit our holding, as we did

repeatedly, to “the circumstances of this case” (id. at p. 766) and “a situation such

as this” (id. at p. 767).

In my view, Marshall’s construction of Civil Code former section 229 was

grounded on the circumstance that the stepparent adoption did not contravene,

compromise, or undermine that provision’s public purpose, which we had

discussed previously in Estate of Jobson, supra, 164 Cal. 312. Marshall thus

supports the validity of second parent adoptions involving unmarried persons,

which similarly do not undermine section 8617’s public purpose. A fair reading of

Marshall refutes the notion that we have ever deemed Civil Code former section

229–or its successor–to be directory.

IV

The majority’s remaining justifications for classifying section 8617 as

directory are similarly without merit.

The majority appears to reason that because section 8617 is not

jurisdictional, it cannot be classified as mandatory. (Maj. opn., ante, at pp. 11,

14

19.) The majority has made a common mistake. “A typical misuse of the term

‘jurisdictional’ is to treat it as synonymous with ‘mandatory.’ ” (2 Witkin, Cal.

Procedure (4th ed. 1996) Jurisdiction, § 4, pp. 548-549.) “But for the Legislature

to declare that a section is mandatory does not necessarily mean that a failure to

comply with its provisions causes a loss of jurisdiction to make any decision

whatever.” (Liberty Mut. Ins. Co. v. Ind. Acc. Com. (1964) 231 Cal.App.2d 501,

509.) Hence, the fact that section 8617 is not jurisdictional does not shed light on

whether it is nonetheless mandatory. (County of Santa Clara v. Superior Court

(1971) 4 Cal.3d 545, 551, fn. 2.)

Likewise, it is irrelevant that compliance with section 8617 is not an

“essential element[] of every valid adoption.” (Maj. opn., ante, at p. 11.) Section

8617, of course, is not even intended to apply to every valid adoption. For

example, section 8617 would not apply where the birth parents are deceased or

have otherwise had their rights terminated and does not apply at all in agency

adoptions. (See Fam. Code, §§ 8700 et seq.) That section 8617 does not apply in

some circumstances, though, has no bearing on whether it is mandatory in the

circumstances in which it does apply. Not surprisingly, the majority opinion

offers no authority to the contrary.

The majority also lacks support for its artificial distinction between a

“mandatory prerequisite” to an adoption (maj. opn., ante, at p. 10) and a “legal

consequence.” (Id. at p. 9.) In particular, nothing in In re Johnson, which

addressed the validity of an adoption where the minor child was not examined by

the judge under Civil Code former section 227, supports the claim that the

adoption laws “always have made a fundamental distinction between the ordinary

legal consequences of an adoption and ‘what provisions of law are essential and

therefore mandatory.’ ” (Maj. opn., ante, at p. 10, quoting In re Johnson, supra, 98

Cal. at p. 536.) Consequences, like prerequisites, can be mandatory. (E.g., West

15

Shield Investigations & Security Consultants v. Superior Court (2000) 82

Cal.App.4th 935, 949 [mandatory consequences of court-ordered emancipation].)

In fact, much of law involves attaching mandatory consequences to a particular

constellation of facts. That section 8617 may describe a consequence rather than

an element of an adoption thus has no bearing on whether it is mandatory.

In sum, nothing in law or policy justifies the majority’s evisceration of the

important public purpose underlying section 8617—namely, the legislative

declaration and case authority that a child needs no more than two legal parents.

V

Second parent adoptions by unmarried persons are consistent with

California law. I would apply that settled law to decide this case. It is

disappointing that, in reaching the same result, the majority has instead upset

fundamental legislative policy concerning family structure, substantially altered

administrative law concerning deference to executive agencies, and rendered

unrecognizable our own case law concerning the distinction between statutory

provisions that are mandatory and those that are directory. I can therefore join

only in the judgment.

BAXTER, J.

I CONCUR:

CHIN, J.

16









CONCURRING AND DISSENTING OPINION BY BROWN, J.

This case raises questions concerning the past, present and future of

California adoption law. Regarding the past, I agree that we should not disturb

settled familial relationships. Regarding the present, Annette may deserve partial

custody based on estoppel. The most important question, however, is whether the

California Department of Social Services ought to continue authorizing these

second parent adoptions in the thousands of cases that will arise in the future. The

Legislature has heretofore required a legal relationship between the birth and

second parent, and I would defer to this rule and bar second parent adoptions that

violate the statutory scheme.

I. THE LEGISLATURE HAS PRECLUDED SECOND PARENT ADOPTIONS

EXCEPT IN LIMITED CIRCUMSTANCES

This case turns on whether we deem Family Code section 86171 directory

or mandatory. The statute provides “[t]he birth parents of an adopted child are,

from the time of the adoption, relieved of all parental duties towards, and all

responsibility for, the adopted child, and have no right over the child.” (Ibid.) As

a general rule, adoption extinguishes the rights of the natural parents forever,

although stepparenthood provides a “narrow exception[]” to this rule. (Estate of

Cleveland (1993) 17 Cal.App.4th 1700, 1707, fn. 8.) This norm reflects the


1

Hereafter, all statutory references are to the Family Code unless otherwise

indicated.

1

imperative that there should not be any ambiguity about who is a child’s “real”

parent. “[T]he effect of an adoption . . . is to establish the legal relation of parent

and child, with all the incidents and consequences of that relation, between the

adopting parent and the adopted child. This necessarily implies that the natural

relationship between the child and its parents by blood is superseded. The duties

of a child cannot be owed to two fathers at the same time.” (Estate of Jobson

(1912) 164 Cal. 312, 316-317, italics added (Jobson).) The majority asserts the

Legislature has merely described, rather than prescribed, this transfer of parental

authority and responsibility, which is thus merely one option for the birth and

adopting parents involved. Twice in the past decade, however, the Legislature has

indicated otherwise.

The logical starting point for construing section 8617 is section 9306,

which concerns the adoption of an adult (“person”) rather than a child. The text is

nearly identical: “[T]he birth parents of a person adopted . . . are, from the time of

the adoption, relieved of all parental duties towards, and all responsibility for, the

adopted person, and have no right over the adopted person.” (§ 9306, subd. (a).)

In 1993, the Legislature added subdivision (b) to section 9306, which provides,

“Where an adult is adopted by the spouse of a birth parent, the parental rights and

responsibilities of that birth parent are not affected by the adoption.” (Stats. 1993,

ch. 266, § 2.) If, as the majority claims, there is no statutory restriction on second

parent adoptions, subdivision (b) is superfluous.

But the Legislature perceived no superfluity. On the contrary, “[t]he

purpose of this bill is [to] create an exception to the automatic severance of parent-

child relationships.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 970

(1993-1994 Reg. Sess.) May 18, 1993, p. 2.) The Senate Judiciary Committee’s

analysis quoted section 8548 in observing “existing law” provided that a birth

parent retains custody and control when a stepparent adopts a child. (See § 8548

2

[“ ‘Stepparent adoption’ means the adoption of a child by a stepparent where one

birth parent retains custody and control of the child”].) Thus, no special

subdivision (b) was needed for section 8617 because section 8548 served that

purpose. There was no counterpart to section 8548 to provide for second parent

adoptions of adults; section 9306, subdivision (b), therefore conformed the law for

these circumstances. “It is unclear why such distinctions were drawn between a

stepparent adoption of minors and a stepparent adoption of adult children of

spouses but the distinctions seem unnecessary and outmoded.” (Sen. Com. on

Judiciary, Analysis of Sen. Bill No. 970 (1993-1994 Reg. Sess.) May 18, 1993,

p. 3.) The amendment to section 9306 indicates stepparenthood was the only

context in which the ordinary transfer of duties and rights from birth parent(s) to

adoptive parent(s) did not occur.

The Legislature confirmed its understanding that second parent adoptions

were not a universal option when it allowed registered domestic partners to

participate in this procedure. As the Senate Rules Committee’s Analysis

explained, “This bill expands California law on domestic partnerships by . . .

conferring on domestic partners various rights, privileges and standing conferred

by the State on married couples . . . . [¶] . . . [¶] [including] [t]he right of a

domestic partner to adopt a child of his or her partner as a stepparent.” (Sen.

Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No.

25 (2001-2002 Reg. Sess.) as amended Sept. 7, 2001, pp. 1-2.) Section 9000,

subdivision (f), now provides that “[f]or the purposes of this chapter, stepparent

adoption includes adoption by a domestic partner.”

Against these two expressions of legislative limits on second parent

adoption, the majority offers a six-sentence “letter” issued by the California

Department of Social Services on November 15, 1999 (the Letter), abolishing any

marital requirements for second parent adoption. (See maj. opn., ante, at p. 3,

3

fn. 3.) The letter purports to invalidate prior letters expressing a different policy,2

which it characterized as “an underground regulation inconsistent with the

Administrative Procedure Act”—an apt description for the Letter itself. The

Administrative Procedure Act (hereafter APA; Gov. Code, § 11346 et. seq.)

“establish[es] basic minimum procedural requirements for the adoption,

amendment, or repeal of administrative regulations.” (Ibid.) The APA requires

the government agency offering the regulation to provide, inter alia, a copy of the

proposed regulation; a statement of reasons for the adoption, amendment, or repeal

of a regulation; identification of every study justifying the change; a description of

alternatives to the proposal; and the agency’s reasons for rejecting those

alternatives. (Gov. Code, § 11346.2.) The APA also provides for public input

through either a public hearing or written comments. (Gov. Code, § 11346.8.)

Because the California Department of Social Services failed to observe these

procedures, the Letter did not comply with the statutory requirements, and is thus

as much an underground regulation as any former rule.

The Letter fails in substance as well as procedure. Government Code

section 11349, subdivision (a), requires a “ ‘[n]ecessity’ ” for the rule, “to

effectuate the purpose of [a] statute, court decision, or other provision of law that

the regulation implements, interprets, or makes specific . . . .” Subdivision (e)

requires “ ‘[r]eference’ ” to the statute, court decision, or other legal provision.

The Letter provides neither of these. Furthermore, the regulation must “be[] in

harmony with, and not in conflict with” existing law. (Id., § 11349, subd. (d).)

Since, as noted, the Legislature has provided only narrow exceptions to Family


2

Even assuming the Letter validly described the law, the contrary rule was

thus in place in August 1999, when Sharon and Annette signed the adoption
agreement for Joshua.

4

Code section 8617, the Letter arguably conflicts with the law as it then existed.

Nevertheless, the lesson of the majority opinion is that administrative agencies

need not follow the dictates of the Legislature or this court, we will follow them.

The California Department of Social Services’ violation of the statutory law thus

serves as its retroactive justification.



II. NEITHER MARSHALL NOR WAIVER PRINCIPLES SUPPORT

PROSPECTIVE VALIDATION OF SECOND PARENT ADOPTIONS

OUTSIDE THE STATUTORY SCHEME

Against the expressed intent of the Legislature, the majority abrogates any

status-based requirements for second parent adoptions, relying on our decision in

Marshall v. Marshall (1925) 196 Cal. 761 (Marshall) and the principle that parties

may waive rules imposed primarily for their benefit. Neither justification supports

the majority’s conclusion.

A.

Marshall

The court in Marshall retroactively authorized a second parent adoption by

the new husband of a widow and held that “a husband and wife may jointly adopt

a child . . . the result of which is to make the child, in law, the child of both

spouses.” (Marshall, supra, 196 Cal. at p. 767, italics added.) The majority both

disregards the context and finds the italicized language immaterial, concluding

instead that the opinion authorizes adoption by any couple wishing to adopt,

regardless of marital status. This reads contemporary norms into a 1925 decision,

when the prevailing precedents deemed marriage “the most important relation in

life, and one in which the state is vitally interested. . . . The well-recognized public

policy relating to marriage is to foster and protect it, to make it a permanent and

public institution, to encourage the parties to live together, and to prevent

separation and illicit unions.” (Deyoe v. Superior Court (1903) 140 Cal. 476,

482.)

5

Moreover, the Legislature subsequently enacted former section 226 of the

Civil Code, which contained four separate references to “an adoption by a step-

parent where one natural parent retains his or her custody and control of the

child.” (Italics added.) Had the Legislature deemed stepparenthood immaterial, it

would not have specifically included the italicized language. Accordingly, even if

the Marshall court had been indifferent to the existence of a marital commitment,

the Legislature was not. The Legislature has since added an entire chapter of

statutes expressly regulating stepparent adoptions. (Fam. Code, § 9000 et seq.)

These provisions reflect the Legislature’s understanding that it was creating a

special procedure for adoption and an exception to the general rule set forth in

Family Code section 8617. Section 9000, subdivision (f), confirms this

understanding.

The Legislature also recently extended to registered domestic partners the

opportunity to follow the stepparent adoption procedure. Unlike the pre-Marshall

legal landscape, where there was no statutory authorization for a child to live with

a birth parent and a second parent, the law currently provides that opportunity to

all couples who comply with the statutory prerequisites by formalizing their

relationship.

Thus, even if the Marshall court lacked any legislative guidance, we do not.

The Legislature has twice prescribed the terms by which a child may gain a second

parent without losing the first: only where the two parents are related by marriage

or domestic partnership. This court has no authority to reject the legislative rule

for one it deems preferable.

At most, Marshall supports Annette’s claim; as we vindicated the intent

and expectations of the Marshalls, perhaps so too should we vindicate the

(original) intent and expectations of Sharon and Annette. But retroactive

authorization of the adoption in Marshall did not create a prospective rule that any

6

second parent adoption would be valid. Even if it had, subsequent legislation

established that this option is available only to those couples who marry or form a

domestic partnership, nullifying any contrary expectation or assumption. The

majority may have justification for applying equitable principles to preserve a

family attachment already created, but it has no basis for prospectively abrogating

a legislative scheme that has stood for more than 70 years.

B. Waiver

The majority also asserts that the section 8617 transfer of authority from

birth parent to adoptive parents is optional, because it amounts to a benefit for the

parents themselves. But section 8617 is but one of many rules governing adoption

that exist to effect not the preferences of the adults but the welfare of the child,

and thus society itself. The majority’s reconstruction of section 8617 ignores this

imperative.

In addressing the questions of whether the statute is designed to benefit the

parties or the public, the majority construes the provision as a primarily private

benefit to the parents only through a selective citation of the text. Perhaps birth

parents often wish to be “ ‘relieved of all . . . duties towards, and all responsibility

for, the adopted child.’ ” (Maj. opn., ante, at p. 13, quoting § 8617.) After all,

many people may wish to limit their duties and responsibilities. But this

disregards the second part of the statute, which deprives the birth parent of any

“right over the child.” (§ 8617.) A rule that strips both duties and rights from one

party is not primarily intended to benefit that party.

Nor is the argument that the law is primarily designed for the benefit of the

birth and adoptive parents any stronger, for it suffers from the same defect. The

law both deprives the birth parents of their rights and imposes duties and

responsibilities on the adoptive parents. In terms of the legal position of the

parties, therefore, they swap places in a zero-sum game. There would be no point

7

for the Legislature to specify terms if the adoption were nothing more than a

mutually self-interested contract between two adults or couples.

But it is not. “The agreement is for the benefit of the child, not of the

parents or persons making it.” (Estate of Grace (1948) 88 Cal.App.2d 956, 966;

see also Adoption of Barnett (1960) 54 Cal.2d 370, 377 [“ ‘The main purpose of

adoption statutes is the promotion of the welfare of children’ ”].) We have

explained how a complete transfer of duties and rights is necessary to prevent the

confusing position of multiple lines of parental authority. We thus announced the

general imperative (from which the Marshall court and then the Legislature carved

exceptions) that “[f]rom the time of adoption, the adopting parent is, so far as

concerns all legal rights and duties flowing from the relation of parent and child,

the parent of the adopted child. From the same moment, the parent by blood

ceases to be, in a legal sense, the parent.” (Jobson, supra, 164 Cal. at p. 317.)

This rule prevents the child from being burdened with a conflict between

the birth parent(s) and adoptive parents(s). If the agreement were simply a means

for the birth and adopting parents to effect their private preferences, the law could

authorize all permutations of divided rights and duties. The Legislature has

concluded otherwise, insisting on an unambiguous transfer of authority unless the

birth parent and adopting parent have formally joined together to forge a common

future.

III. THE MAJORITY TRIVIALIZES FAMILY BONDS

The majority’s reliance on a mutual waiver imports the principles of the

marketplace into the realm of home and family, which was once thought to

represent a “haven in a heartless world” of self-interested interactions. (Lasch,

Haven in a Heartless World (1977).) The family is the area where people act not

in accordance with specifically contracted agreements but the duties of the heart.

8

Parents are not simply self-interested utility maximizers. Raising a child is, like

hope, a task of the spirit. It is so much more than an aggregation of services.

Parenthood instead is the opportunity and responsibility to join the web of

human connectedness through which we touch the past, the present, and the future.

The relationship of parent and child is the most fundamental bond humans share

and the influence of family in determining what kind of people we become is

profound. Society has a considerable stake in the health and stability of families,

because it is upon the families—what Burke calls “the little platoon—that we rely

[on] not only to nurture the young but to provide the seed beds of civic virtue

required for citizenship in a self-governing community. [The family teaches us to]

care for others, [and] to moderate . . . self-interest . . . .” (Berns, The First

Amendment and the Future of American Democracy (1976) p. 222.) All tasks

which will be hampered if the family is simply “a collection of individuals united

temporarily for their mutual convenience and armed with rights against each

other.” (Schneider, Moral Discourse and the Transformation of American Family

Law (1985) 83 Mich. L.R. 1803, 1859.) The “arduous, long-term educational

process [of raising a child] requires not a spirit of contractualist autonomy, but a

spirit of adult commitment and . . . sacrifice.” (Hafen, Individualism and

Autonomy in Family Law: The Waning of Belonging (1991) 1991 BYU L.Rev. 1,

30.)

The majority, irretrievably committed to its the-more-parents-the-merrier view

of parenthood, declines to interpret section 8617 to effectively preclude a child from

having more than two parents; and at oral argument Annette’s counsel asserted no

such limit should exist. Such a position is consistent with the stunted view of

parenthood as purely ministerial and economic—signing consent slips and providing

health insurance. But this is the least part of being a parent, as anyone who has ever

seen a newborn resting securely in her father’s hand can understand; and anyone who

9

has sat up late at night awaiting the safe return of a newly minted teenage driver

knows. The all-encompassing nature of parenthood renders eminently reasonable any

legislative provision requiring that adopting parents share a common residence with

each other and the adopted child. (See Fam. Code, § 297, subd. (b)(1).) Parenthood

requires more than a telephone and a checkbook.

The United States Supreme Court has found parental authority constitutes a

zero-sum game. (Michael H. v. Gerald D. (1989) 491 U.S. 110, 118.) Parental

authority cannot not be divided because it goes beyond ministerial functions; the

parent “ ‘direct[s] the child’s activities; . . . make[s] decisions regarding the

control, education, and health of the child; . . . [and exercises] the duty, to prepare

the child for additional obligations, which includes the teaching of moral

standards, religious beliefs, and elements of good citizenship.’ ” (Id. at p. 119,

quoting 4 Cal. Fam. Law (1987) § 60.-02[1][b], fns omitted.) Devolving these

responsibilities on a multitude of parties would lead to a variety of conflicts and

inconsistencies, as Justice Baxter correctly notes. (See conc. & dis. opn. of

Baxter, J., ante, at p. 8.)

The two-person limit is one point on which proponents of Proposition 22

and Assembly Bill No. 25 agree. The Legislature’s insistence that the adopting

parent have a legal relationship with the birth parent reflects the fact that the

adoptive parent’s relationship with the child does not exist in a vacuum but is

related to the parents’ relationship with each other. Justice Thurgood Marshall

wrote for a unanimous Supreme Court in holding it was proper to distinguish

between formerly married and never-married fathers in granting only the former

the right to veto an adoption by the mother’s new husband. (Quilloin v. Walcott

(1978) 434 U.S. 246, 256.) “[T]he State was not foreclosed from recognizing this

difference in the extent of [the] commitment to the welfare of the child.” (Ibid.)

This “commitment enables the courts, as well as those most personally involved,

10

to make certain assumptions—even knowing they will at times be disappointed—

about what to expect.” (Hafen, The Constitutional Status of Marriage, Kinship,

and Sexual Privacy: Balancing the Individual and Social Interests (1983) 81

Mich. L.Rev. 463, 499.)

The law permits single individuals to adopt a child on their own because

one parent is better than none. It does not follow, however, that two unrelated

parents are better than one. The majority cites the legislative policy that

“ ‘adoption or guardianship is more suitable to a child’s well-being than is foster

care’ ” (maj. opn., ante, at p. 26, fn. 16, quoting Welf. & Inst. Code, § 396), as

adoption is a more permanent relationship than foster care. However, if the birth

parent has a relationship with a second parent, and then a third, and then a fourth,

the child may be worse off than if the birth parent had simply raised the child

alone. The choice in second parent adoption cases is not between adoption and

foster care. The birth parent in such circumstances is willing and able to continue

expressing parental responsibility. If the two adults are uncertain whether the

second parent will be a permanent resident of the household, the adoption ought to

wait until they are ready for that commitment.

There is a long-standing tension within the law as to whether legal

standards should reflect ideal behavior or simply the mean.3 The majority,


3

“ ‘All systems of ethics, no matter what their substantive content, can be

divided into two main groups. There is the “heroic” ethic, which imposes on men
demands of principle to which they are generally not able to do justice, except at
the high points of their lives, but which serve as signposts pointing the way for
man’s endless striving. Or there is the “ethic of the mean,” which is content to
accept man’s everyday “nature” as setting a maximum for the demands which can
be made.’ ” (Schneider, Moral Discourse and the Transformation of Family Law,
supra, 83 Mich. L.R. at p. 1819, quoting letter from Max Weber to Edgar Jaffe
(1907).)

11

however, refuse to impose even a standard of the mean. Couples who raise

children together do predominantly have a formal legal relationship with each

other. It is not a standard that individuals cannot reach absent heroism, and every

Californian adult has access to such a relationship. Today’s decision maximizes

the self-interest and personal convenience of parents, but poorly serves the state’s

children who deserve as much stability and security as legal process can provide.

BROWN, J.

12

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sharon S. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 93 Cal.App.4th 218
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S102671
Date Filed: August 4, 2003

__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Susan D. Huguenor

__________________________________________________________________________________

Attorneys for Appellant:

Douglas Shepersky, William Blatchley; John L. Dodd & Associates, John L. Dodd and Lisa A. DiGrazia
for Petitioner.

Kronick, Moskovitz, Tiedemann & Girard and Andrew P. Pugno for Proposition 22 Legal Defense and
Education Fund as Amicus Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Terence Chucas and Judith E. Klein for Minor.

Leigh A. Kretzschmar, Kathleen Murphy Mallinger; Luce Forward, Hamilton & Scripps and Charles A.
Bird for Real Party in Interest.

Robert H. Lynn; Jason A. Barsi; Maxie Rheinheimer Stephens & Vrevich and Darin L. Wessel for Tom
Homann Law Association as Amicus Curiae on behalf of Real Party in Interest.

Martha Matthews and Katina Ancar for National Center for Youth Law as Amicus Curiae.

Alice Bussiere for Youth Law Center as Amicus Curiae.

Shannan Wilber for Legal Services for Children as Amicus Curiae.

Farella Braun & Martel, Norman Formanek and Julie Salamon for Child Advocacy Program, University of
California at Berkeley as Amicus Curiae.



1




Page 2 - counsel continued - S102671


Attorneys for Respondent:

Donna Furth for Northern California Association of Counsel for Children as Amicus Curiae.

Marvin Ventrell for National Association of Counsel for Children as Amicus Curiae.

Jordan C. Budd for American Civil Liberties Union Foundation of San Diego & Imperial Counties; Mark
Rosenbaum for American Civil Liberties Union Foundation of Southern California; Jennifer C. Pizer for
Lambda Legal Defense and Education Fund; Shannon Minter and Courtney Joslin for The National Center
for Lesbian Rights as Amici Curiae on behalf of Children of Lesbians and Gays Everywhere, American
Civil Liberties Union Foundation of San Diego & Imperial Counties, American Civil Liberties Union
Foundation of Southern California, Bay Area Lawyers for Individual Freedom, Family Matters, Family
Pride Coalition, Lambda Legal Defense and Education Fund, LHR: The Lesbian and Gay Bar Association,
The Los Angeles Gay and Lesbian Center, The National Center for Lesbian Rights, Our Family Coalition
and The Pop Luck Club.

Diane Goodman for Academy of California Adoption Lawyers as Amicus Curiae.

Nancy E. Lofdahl for California Association of Adoption Agencies and the California Alliance of Child
and Family Services as Amici Curiae.

Morrison & Foerster, Michael N. Feuer and Elizabeth A. Thornton for the Los Angeles County Bar
Association, Bar Association of San Francisco, Santa Clara County Bar Association, The Bar Association
of Silicon Valley, Beverly Hills Bar Association, San Fernando Valley Bar Association, Women Lawyers’
Association of Los Angeles, Bet Tzedek Legal Services, Public Counsel and Northern California Chapter
of the American Academy of Matrimonial Lawyers as Amici Curiae.

Dennis J. Herrera, City Attorney (San Francisco), Therese M. Stewart, Chief Deputy City Attorney,
Kamala Harris, Julia M. C. Friedlander, Ellen Forman and Sherri Sokeland Kaiser, Deputy City Attorneys,
for City and County of San Francisco and California State Association of Counties as Amici Curiae.

Bill Lockyer, Attorney General, James M. Humes, Assistant Attorney General, John H. Sanders and Susan
A. Nelson, Deputy Attorneys General, for California Department of Social Services as Amicus Curiae.

Latham & Watkins, Richard S. Zbur, Robert J. Schulze and James R. Repking for National Association of
Social Workers and California Chapter, National Association of Social Workers as Amici Curiae.




2





Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Judith E. Klein
5638 Lake Murray Boulevard, #208
La Mesa, CA 91942
(619) 698-1882

Charles A. Bird
Luce Forward, Hamilton & Scripps
600 West Broadway, Suite 2600
San Diego, CA 92101-3391
(619) 236-1414


3

Opinion Information
Date:Docket Number:
Mon, 08/04/2003S102671

Parties
1Sharon, S. (Petitioner)
Represented by John L. Dodd
Attorney At Law
17621 Irvine Blvd., Suite 200
Tustin, CA

2Superior Court Of San Diego County (Respondent)
Represented by District Atty - San Diego County
101 W. Broadway, #707
101 W. Broadway, #707
San Diego, CA

3F., Annette (Real Party in Interest)
Represented by Charles A. Bird
Luce, Forward, Hamilton & Scripps, LLP
600 W. Broadway, Suite 2600
San Diego, CA

4Berner Kadish, Nicole G. (Pub/Depublication Requestor)
1012 Elm Avenue
Takoma, MD 20912

5Aclu Foundation Of San Diego & Imperial Counties, Inc. (Pub/Depublication Requestor)
Represented by Jordan Charles Budd
Amer Civil Liberties Union
P.O. Box 87131
San Diego, CA

6Aclu Foundation Of San Diego & Imperial Counties, Inc. (Pub/Depublication Requestor)
Represented by Shannon Minter
Natl Ctr for Lesbian Rights
1663 Mission St. #550
San Francisco, CA

7Northern California Association Of Counsel For Children (Pub/Depublication Requestor)
Represented by Donna Wickham Furth
Attorney at Law
1333 Balboa Street, Suite 1
San Francisco, CA

8Family Builders By Adoption (Pub/Depublication Requestor)
528 Grand Avenue
Oakland, CA 94610

9Lambda Legal Defense & Education Fund (Pub/Depublication Requestor)
Represented by Jennifer Carol Pizer
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 WILSHIRE BLVD., SUITE #1300
LOS ANGELES, CA

10S., Joshua (Overview party)
Represented by Judith E. Klein
Attorney at Law
5638 Lake Murray Blvd., Ste 208
San Diego, CA

11Proposition 22 Legal Defense & Education Fund (Amicus curiae)
attn: William J. Knight
400 Capitol Mall, Ste, 1560
Sacramento, CA 95814

12City & County Of San Francisco (Amicus curiae)
Represented by Dennis Jose Herrera
Attorney at Law
1390 Market Street, 6th floor
San Francisco, CA

13City & County Of San Francisco (Amicus curiae)
Represented by Julia Mary Friedlander
Ofc City Attorney
206 City Hall
San Francisco, CA

14City & County Of San Francisco (Amicus curiae)
Represented by Kamala Devi Harris
1390 Market Street, 6th fl.
1390 Market Street, 6th fl.
San Francisco, CA

15City & County Of San Francisco (Amicus curiae)
Represented by Ellen Forman Obstler
Office Of The City Attorney - City Hall
1 Dr. Carlton B. Goodlett Pl., Room 234
San Francisco, CA

16City & County Of San Francisco (Amicus curiae)
Represented by Therese Marie Stewart
City and County of San Francisco
1 Dr.Carlton B. Goodlett Place
San Francisco, CA

17Department Of Social Services (Amicus curiae)
Represented by Susan A. Nelson
Attorney at Law
110 West "A" St. #1100
San Diego, CA

18California Association Of Adoption Agencies (Amicus curiae)
Represented by Nancy Elizabeth Lofdahl
Attorney at Law
631 O'Farrell St #2101
San Francisco, CA

19National Center For Youth Law (Amicus curiae)
Represented by Martha Alys Matthews
405 14th Street, 15th Floor
405 14th Street, 15th Floor
Oakland, CA

20Los Angeles County Bar Association (Amicus curiae)
Represented by Michael Nelson Feuer
555 West Fifth Street, Ste. 3500
555 West Fifth Street, Ste. 3500
Los Angeles, CA

21Children Of Lesbians & Gays Everywhere (Amicus curiae)
Represented by Jennifer Carol Pizer
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 Wilshrie Blvd., Ste 1300
Los Angeles, CA

22National Association Of Social Workers (Amicus curiae)
Represented by Richard Stanley Zbur
Latham & Watkins
633 W. 5th Street, Ste 4000
Los Angeles, CA

23National Association Of Social Workers (Amicus curiae)
Represented by Robert John Schulze
Latham & Watkins
633 W. 5th St., #4000
Los Angeles, CA

24Tom Homann Law Association (Amicus curiae)
Represented by Darin Lee Wessel
Maxie Rheinheimer
555 W 5th Street, 31st Floor
Los Angeles, CA

25Tom Homann Law Association (Amicus curiae)
Represented by Robert H. Lynn
Attorney At Law
555 W. Fifth Street, 31st floor
San Diego, CA


Disposition
Aug 4 2003Opinion: Reversed

Dockets
Dec 3 2001Petition for review filed
  by counsel for (Real Party Interest) Annette F.
Dec 5 2001Received Court of Appeal record
  1 doghouse
Dec 10 2001Answer to petition for review filed
  by counsel for petitioner (Sharon S.)
Dec 11 2001Received:
  amended proof of service/service on CA
Dec 17 2001Request for depublication (petition for review pending)
  National Center for Youth Law (non-party)
Dec 18 2001Request for depublication (petition for review pending)
  Nicole G. Berner-Kadish (non-party)
Dec 20 2001Request for depublication (petition for review pending)
  ACLU Foundation of San Diego and Imperial County (non-party)
Dec 20 2001Request for depublication (petition for review pending)
  Northern California Association of Counsel for Children (non-party)
Dec 21 2001Request for depublication (petition for review pending)
  Family Builders By Adoption (non-party)
Dec 24 2001Request for depublication (petition for review pending)
  Lambda Legal Defense and Education Fund, Inc. (non-party)
Dec 26 2001Answer to petition for review filed
  counsel for (minor) Joshua S. (40n)
Jan 29 2002Petition for Review Granted (civil case)
  Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno JJ.
Feb 5 2002Note: Mail returned (unable to forward)
  National Center for Youth Law
Mar 1 2002Opening brief on the merits filed
  by counsel for (Real Party In Interest) Annette F. (40k)
Mar 1 2002Request for judicial notice filed (in non-AA proceeding)
  by counsel for (RPI) Annette F. (40k)
Mar 11 2002Received:
  letter from counsel for (minor) Joshua, regarding briefing date.
Mar 26 2002Request for extension of time filed
  by counsel for petitioner (Sharon S.) requesting extension to April 30, 2002 to file answer brief on the merits.
Mar 27 2002Request for extension of time filed
  by counsel for Minor (Joshua S.) requesting extension to May 13, 2002. to file answer brief.
Mar 28 2002Extension of time granted
  Counsel for petitioner (Sharon S.) time to serve and file the answer brief on the merits is extended to and including April 30, 2002.
Mar 29 2002Extension of time granted
  Counsel for (Minor) Joshua S. time to serve and file the answer brief on the merits is extended to and including May 13, 2002. *** NO FURTHER EXTENSIONS WILL BE GRANTED***
Apr 5 2002Note: Mail returned (unable to forward)
  forwarding order expired (Nat'l Center for Youth Law)
Apr 10 2002Request for extension of time filed
  by counsel for RPI (Annette F.) requesting extension to June 3, 2002 to file the reply brief on the merits.
Apr 12 2002Extension of time granted
  Real Party in Interest (Annette F.) time to serve and file reply brief on the merits is extended to and including June 3, 2002. ** N0 FURTHER EXTENSIONS WILL BE GRANTED***
Apr 29 2002Answer brief on the merits filed
  by counsel for petitioner (Sharon S.)
Apr 29 2002Request for judicial notice filed (in non-AA proceeding)
  by counsel for petitioner (Sharon S.)
May 13 2002Answer brief on the merits filed
  by counsel for minor (Joshua S.)
Jun 4 2002Reply brief filed (case fully briefed)
  by counsel for Real Party in Interest (Annnette F.) (40k)
Jun 17 2002Received application to file amicus curiae brief; with brief
  from counsel for (non-party) Prop. 22 Legal Defense and Education Fund
Jun 20 2002Permission to file amicus curiae brief granted
  to Proposition 22 Legal Defense and Education Fund
Jun 20 2002Amicus Curiae Brief filed by:
  Proposition 22 Legal Defense and Education Fund (non-party) in support of Sharon S.
Jul 2 2002Received application to file amicus curiae brief; with brief
  Los Angeles County Bar Assoc (includes its Family Law Section, Sexual Orientation Bias Committee and Barristers Children's Rights Comm.) Bar Assoc. of San Francisco, Santa Clara County Bar Assoc: The Bar Association of Silicon Valley, Beverly Hills Bar Assoc., San Fernando Valley Bar Assoc. [Including its Family Law Section), Women Lawyers' Assoc. of L. A., Bet Tzedek Legal Svcs., Public Counsel and Northern California Chapter of the American Academy of Matrimonial Lawyers. [app & brf under separate covers -- in support of neither party.] ["BAR ASSOCIATIONS; SECTIONS, PUBLIC INTEREST LAW FIRMS AND PROFESSIONAL ORGANIZATIONS"]
Jul 3 2002Received application to file amicus curiae brief; with brief
  Tom Homann Law Association supports RPI Annette F.
Jul 3 2002Received application to file amicus curiae brief; with brief
  Children of Lesbians and Gays Everywhere, et al., / App & Brief separate / support neither party.
Jul 3 2002Received application to file amicus curiae brief; with brief
  City and County of San Francisco and Calif. State Assoc. of Counties, (non-party) in support of neither party. (brief under same cover)
Jul 3 2002Received application to file amicus curiae brief; with brief
  Calif. Dept. of Social Services (non-party). (brief under same cover)
Jul 3 2002Received application to file amicus curiae brief; with brief
  California Assoc. of Adoption Agencies, et al.) (non-party) in support of neither party.
Jul 5 2002Received application to file amicus curiae brief; with brief
  National Center for Youth Law and Youth Law Center (non-party) in support of neither party. (40k)
Jul 5 2002Received application to file amicus curiae brief; with brief
  National Association of Social Workers and Calfiornia Chapter, National Association of Social Workers / App & Brf separate / supports ?
Jul 9 2002Permission to file amicus curiae brief granted
  Calif. Dept. of Social Services
Jul 9 2002Amicus Curiae Brief filed by:
  Calif., Department of Social Services
Jul 9 2002Permission to file amicus curiae brief granted
  National Center for Youth Law, et al., in support of neither party.
Jul 9 2002Amicus Curiae Brief filed by:
  National Center for Youth Law, et al.
Jul 9 2002Permission to file amicus curiae brief granted
  City and County of San Francisco, et al., in support of neither party.
Jul 9 2002Amicus Curiae Brief filed by:
  City and County of San Francisco, et al.
Jul 9 2002Permission to file amicus curiae brief granted
  Calif. Association of Adoption Agencies, et al, in support of neither party.
Jul 9 2002Amicus Curiae Brief filed by:
  Calif. Association of Adoption Agencies, et al,.
Jul 9 2002Permission to file amicus curiae brief granted
  Los Angeles County Bar Assoc., et al., in support of neither party.
Jul 9 2002Amicus Curiae Brief filed by:
  Los Angeles County Bar Assoc. et al,.
Jul 10 2002Response to amicus curiae brief filed
  by counsel for ( Annette F.) to Proposition 22 Legal Defense and Education Fund
Jul 10 2002Received:
  from counsel for American Civil Liberties Union of Northern California, Application to file Joinder in amicus brief of Children of Lesbians and Gays Everywhere, et al.
Jul 12 2002Order filed
  The application of American Civil Liberties Union of Northern California for permission to file a joinder in the amicus brief of Children of Lesbians and Gays Everywhere, et al. in support of neither party is hereby granted.
Jul 12 2002Permission to file amicus curiae brief granted
  Children of Lesbians and Gays Everywhere, et al. in support of neither party.
Jul 12 2002Amicus Curiae Brief filed by:
  Children of Lesbians and Gays Everywhere, et al.
Jul 12 2002Permission to file amicus curiae brief granted
  National Assoc. of Social Workers, et al.,
Jul 12 2002Amicus Curiae Brief filed by:
  Nat'l Assoc. of Social Workers, et al
Jul 12 2002Permission to file amicus curiae brief granted
  Tom Homann Law Assoc. in support of Real Party in Interest
Jul 12 2002Amicus Curiae Brief filed by:
  Tom Homann Law Assoc.
Jul 30 2002Response to amicus curiae brief filed
  by petnr Sharon S. (response to multiple a/c briefs)
Oct 16 2002Filed:
  by counsel for Real Party In Interest (Annette F.) Joint Motion for Partial Vacation of Stay
Oct 21 2002Change of Address filed for:
  counsel for amici Lambda Legal Defense and Education Fund Inc.
Oct 22 2002Opposition filed
  by counsel for respondent (Sharon S.) to Motion to Vacate Stay
Oct 25 2002Filed:
  by counsels for (Annette F. and Joshua S.) Joint Reply to Opposition to petitioner's Motion to Vacate Stay
Jan 29 2003Order filed
  The stay of proceedings imposed by the Court of Appeal on May 25, 2002, is hereby partially vacated, pending further order of this court, for the limited purposes of allowing the superior court to: (1) determine and supervise interim visitation, as appropriate, between Annette F., real party in interest, and Joshua S. and (2) entertain any appropriate petition by appointed counsel for Joshua S. regarding substitution or association of counsel or for an award of attorney fees or costs.
Apr 9 2003Case ordered on calendar
  5-7-03, 9am, S.F.
Apr 17 2003Filed:
  RPI's request to continue oral argument from May 7 to May 8. ***Request denied. Letter will be sent.
Apr 23 2003Filed:
  request of counsel for Sharon S. to allocate oral argument time to counsel for minor.
Apr 25 2003Order filed
  The request of counsel for petitioner and the minor to allow two counsel to argue ia hereby granted.
Apr 25 2003Order filed
  Request granted for petitioner to allocate 10 minutes of oral argument time to minor's counsel, Judith Klein.
May 1 2003Received:
  Notice Re Text of Previously Cited Authority from counsel for RPI (Annette F.)
May 7 2003Cause argued and submitted
 
Aug 4 2003Opinion filed: Judgment reversed
  and Remanded. OPINION BY: Werdegar, J. -- joined by: George, C.J., Kennard, Moreno, JJ. CONCURRING AND DISSENTING OPINION BY: Baxter, J -- joined by Chin, J CONCURRING AND DISSENTING OPINION BY: Brown, J
Aug 8 2003Rehearing petition filed
  by counsel for respondent (Sharon S.)
Aug 18 2003Answer to rehearing petition filed
  by counsel for appellant (Annette F.)
Aug 18 2003Time extended to consider modification or rehearing
  to and including November 3, 2003
Aug 25 2003Change of Address filed for:
  counsel for City and Co. San Francisco
Aug 29 2003Filed:
  by counsel for Real Party In Interest (Annette F.) Errata to Answer to Petition or Rehearing .
Oct 22 2003Remittitur issued (civil case)
 
Oct 22 2003Rehearing denied
  Baxter, J., is of the opinion the petition should be granted. Chin, J., is of the opinion the petition should be granted. Brown, J., was absent and did not participate.
Oct 24 2003Note:
  Records returned to CA 4/1
Nov 4 2003Received:
  Receipt for remittitur from CA 4/1
Jan 20 2004Note:
  Received letter notif. of writ of certiorari filed and placed on docket Jan. 14. 2004, No. USS 03-1012

Briefs
Mar 1 2002Opening brief on the merits filed
 
Apr 29 2002Answer brief on the merits filed
 
May 13 2002Answer brief on the merits filed
 
Jun 4 2002Reply brief filed (case fully briefed)
 
Jun 20 2002Amicus Curiae Brief filed by:
 
Jul 9 2002Amicus Curiae Brief filed by:
 
Jul 9 2002Amicus Curiae Brief filed by:
 
Jul 9 2002Amicus Curiae Brief filed by:
 
Jul 9 2002Amicus Curiae Brief filed by:
 
Jul 9 2002Amicus Curiae Brief filed by:
 
Jul 10 2002Response to amicus curiae brief filed
 
Jul 12 2002Amicus Curiae Brief filed by:
 
Jul 12 2002Amicus Curiae Brief filed by:
 
Jul 12 2002Amicus Curiae Brief filed by:
 
Jul 30 2002Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website