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
Date: | Docket Number: |
Mon, 08/04/2003 | S102671 |
1 | Sharon, S. (Petitioner) Represented by John L. Dodd Attorney At Law 17621 Irvine Blvd., Suite 200 Tustin, CA |
2 | Superior Court Of San Diego County (Respondent) Represented by District Atty - San Diego County 101 W. Broadway, #707 101 W. Broadway, #707 San Diego, CA |
3 | F., Annette (Real Party in Interest) Represented by Charles A. Bird Luce, Forward, Hamilton & Scripps, LLP 600 W. Broadway, Suite 2600 San Diego, CA |
4 | Berner Kadish, Nicole G. (Pub/Depublication Requestor) 1012 Elm Avenue Takoma, MD 20912 |
5 | Aclu 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 |
6 | Aclu 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 |
7 | Northern 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 |
8 | Family Builders By Adoption (Pub/Depublication Requestor) 528 Grand Avenue Oakland, CA 94610 |
9 | Lambda 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 |
10 | S., Joshua (Overview party) Represented by Judith E. Klein Attorney at Law 5638 Lake Murray Blvd., Ste 208 San Diego, CA |
11 | Proposition 22 Legal Defense & Education Fund (Amicus curiae) attn: William J. Knight 400 Capitol Mall, Ste, 1560 Sacramento, CA 95814 |
12 | City & County Of San Francisco (Amicus curiae) Represented by Dennis Jose Herrera Attorney at Law 1390 Market Street, 6th floor San Francisco, CA |
13 | City & County Of San Francisco (Amicus curiae) Represented by Julia Mary Friedlander Ofc City Attorney 206 City Hall San Francisco, CA |
14 | City & County Of San Francisco (Amicus curiae) Represented by Kamala Devi Harris 1390 Market Street, 6th fl. 1390 Market Street, 6th fl. San Francisco, CA |
15 | City & 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 |
16 | City & 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 |
17 | Department Of Social Services (Amicus curiae) Represented by Susan A. Nelson Attorney at Law 110 West "A" St. #1100 San Diego, CA |
18 | California Association Of Adoption Agencies (Amicus curiae) Represented by Nancy Elizabeth Lofdahl Attorney at Law 631 O'Farrell St #2101 San Francisco, CA |
19 | National Center For Youth Law (Amicus curiae) Represented by Martha Alys Matthews 405 14th Street, 15th Floor 405 14th Street, 15th Floor Oakland, CA |
20 | Los 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 |
21 | Children 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 |
22 | National Association Of Social Workers (Amicus curiae) Represented by Richard Stanley Zbur Latham & Watkins 633 W. 5th Street, Ste 4000 Los Angeles, CA |
23 | National Association Of Social Workers (Amicus curiae) Represented by Robert John Schulze Latham & Watkins 633 W. 5th St., #4000 Los Angeles, CA |
24 | Tom Homann Law Association (Amicus curiae) Represented by Darin Lee Wessel Maxie Rheinheimer 555 W 5th Street, 31st Floor Los Angeles, CA |
25 | Tom 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 2003 | Opinion: Reversed |
Dockets | |
Dec 3 2001 | Petition for review filed by counsel for (Real Party Interest) Annette F. |
Dec 5 2001 | Received Court of Appeal record 1 doghouse |
Dec 10 2001 | Answer to petition for review filed by counsel for petitioner (Sharon S.) |
Dec 11 2001 | Received: amended proof of service/service on CA |
Dec 17 2001 | Request for depublication (petition for review pending) National Center for Youth Law (non-party) |
Dec 18 2001 | Request for depublication (petition for review pending) Nicole G. Berner-Kadish (non-party) |
Dec 20 2001 | Request for depublication (petition for review pending) ACLU Foundation of San Diego and Imperial County (non-party) |
Dec 20 2001 | Request for depublication (petition for review pending) Northern California Association of Counsel for Children (non-party) |
Dec 21 2001 | Request for depublication (petition for review pending) Family Builders By Adoption (non-party) |
Dec 24 2001 | Request for depublication (petition for review pending) Lambda Legal Defense and Education Fund, Inc. (non-party) |
Dec 26 2001 | Answer to petition for review filed counsel for (minor) Joshua S. (40n) |
Jan 29 2002 | Petition for Review Granted (civil case) Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno JJ. |
Feb 5 2002 | Note: Mail returned (unable to forward) National Center for Youth Law |
Mar 1 2002 | Opening brief on the merits filed by counsel for (Real Party In Interest) Annette F. (40k) |
Mar 1 2002 | Request for judicial notice filed (in non-AA proceeding) by counsel for (RPI) Annette F. (40k) |
Mar 11 2002 | Received: letter from counsel for (minor) Joshua, regarding briefing date. |
Mar 26 2002 | Request 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 2002 | Request for extension of time filed by counsel for Minor (Joshua S.) requesting extension to May 13, 2002. to file answer brief. |
Mar 28 2002 | Extension 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 2002 | Extension 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 2002 | Note: Mail returned (unable to forward) forwarding order expired (Nat'l Center for Youth Law) |
Apr 10 2002 | Request 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 2002 | Extension 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 2002 | Answer brief on the merits filed by counsel for petitioner (Sharon S.) |
Apr 29 2002 | Request for judicial notice filed (in non-AA proceeding) by counsel for petitioner (Sharon S.) |
May 13 2002 | Answer brief on the merits filed by counsel for minor (Joshua S.) |
Jun 4 2002 | Reply brief filed (case fully briefed) by counsel for Real Party in Interest (Annnette F.) (40k) |
Jun 17 2002 | Received application to file amicus curiae brief; with brief from counsel for (non-party) Prop. 22 Legal Defense and Education Fund |
Jun 20 2002 | Permission to file amicus curiae brief granted to Proposition 22 Legal Defense and Education Fund |
Jun 20 2002 | Amicus Curiae Brief filed by: Proposition 22 Legal Defense and Education Fund (non-party) in support of Sharon S. |
Jul 2 2002 | Received 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 2002 | Received application to file amicus curiae brief; with brief Tom Homann Law Association supports RPI Annette F. |
Jul 3 2002 | Received application to file amicus curiae brief; with brief Children of Lesbians and Gays Everywhere, et al., / App & Brief separate / support neither party. |
Jul 3 2002 | Received 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 2002 | Received application to file amicus curiae brief; with brief Calif. Dept. of Social Services (non-party). (brief under same cover) |
Jul 3 2002 | Received application to file amicus curiae brief; with brief California Assoc. of Adoption Agencies, et al.) (non-party) in support of neither party. |
Jul 5 2002 | Received 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 2002 | Received 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 2002 | Permission to file amicus curiae brief granted Calif. Dept. of Social Services |
Jul 9 2002 | Amicus Curiae Brief filed by: Calif., Department of Social Services |
Jul 9 2002 | Permission to file amicus curiae brief granted National Center for Youth Law, et al., in support of neither party. |
Jul 9 2002 | Amicus Curiae Brief filed by: National Center for Youth Law, et al. |
Jul 9 2002 | Permission to file amicus curiae brief granted City and County of San Francisco, et al., in support of neither party. |
Jul 9 2002 | Amicus Curiae Brief filed by: City and County of San Francisco, et al. |
Jul 9 2002 | Permission to file amicus curiae brief granted Calif. Association of Adoption Agencies, et al, in support of neither party. |
Jul 9 2002 | Amicus Curiae Brief filed by: Calif. Association of Adoption Agencies, et al,. |
Jul 9 2002 | Permission to file amicus curiae brief granted Los Angeles County Bar Assoc., et al., in support of neither party. |
Jul 9 2002 | Amicus Curiae Brief filed by: Los Angeles County Bar Assoc. et al,. |
Jul 10 2002 | Response to amicus curiae brief filed by counsel for ( Annette F.) to Proposition 22 Legal Defense and Education Fund |
Jul 10 2002 | Received: 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 2002 | Order 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 2002 | Permission to file amicus curiae brief granted Children of Lesbians and Gays Everywhere, et al. in support of neither party. |
Jul 12 2002 | Amicus Curiae Brief filed by: Children of Lesbians and Gays Everywhere, et al. |
Jul 12 2002 | Permission to file amicus curiae brief granted National Assoc. of Social Workers, et al., |
Jul 12 2002 | Amicus Curiae Brief filed by: Nat'l Assoc. of Social Workers, et al |
Jul 12 2002 | Permission to file amicus curiae brief granted Tom Homann Law Assoc. in support of Real Party in Interest |
Jul 12 2002 | Amicus Curiae Brief filed by: Tom Homann Law Assoc. |
Jul 30 2002 | Response to amicus curiae brief filed by petnr Sharon S. (response to multiple a/c briefs) |
Oct 16 2002 | Filed: by counsel for Real Party In Interest (Annette F.) Joint Motion for Partial Vacation of Stay |
Oct 21 2002 | Change of Address filed for: counsel for amici Lambda Legal Defense and Education Fund Inc. |
Oct 22 2002 | Opposition filed by counsel for respondent (Sharon S.) to Motion to Vacate Stay |
Oct 25 2002 | Filed: by counsels for (Annette F. and Joshua S.) Joint Reply to Opposition to petitioner's Motion to Vacate Stay |
Jan 29 2003 | Order 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 2003 | Case ordered on calendar 5-7-03, 9am, S.F. |
Apr 17 2003 | Filed: RPI's request to continue oral argument from May 7 to May 8. ***Request denied. Letter will be sent. |
Apr 23 2003 | Filed: request of counsel for Sharon S. to allocate oral argument time to counsel for minor. |
Apr 25 2003 | Order filed The request of counsel for petitioner and the minor to allow two counsel to argue ia hereby granted. |
Apr 25 2003 | Order filed Request granted for petitioner to allocate 10 minutes of oral argument time to minor's counsel, Judith Klein. |
May 1 2003 | Received: Notice Re Text of Previously Cited Authority from counsel for RPI (Annette F.) |
May 7 2003 | Cause argued and submitted |
Aug 4 2003 | Opinion 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 2003 | Rehearing petition filed by counsel for respondent (Sharon S.) |
Aug 18 2003 | Answer to rehearing petition filed by counsel for appellant (Annette F.) |
Aug 18 2003 | Time extended to consider modification or rehearing to and including November 3, 2003 |
Aug 25 2003 | Change of Address filed for: counsel for City and Co. San Francisco |
Aug 29 2003 | Filed: by counsel for Real Party In Interest (Annette F.) Errata to Answer to Petition or Rehearing . |
Oct 22 2003 | Remittitur issued (civil case) |
Oct 22 2003 | Rehearing 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 2003 | Note: Records returned to CA 4/1 |
Nov 4 2003 | Received: Receipt for remittitur from CA 4/1 |
Jan 20 2004 | Note: Received letter notif. of writ of certiorari filed and placed on docket Jan. 14. 2004, No. USS 03-1012 |
Briefs | |
Mar 1 2002 | Opening brief on the merits filed |
Apr 29 2002 | Answer brief on the merits filed |
May 13 2002 | Answer brief on the merits filed |
Jun 4 2002 | Reply brief filed (case fully briefed) |
Jun 20 2002 | Amicus Curiae Brief filed by: |
Jul 9 2002 | Amicus Curiae Brief filed by: |
Jul 9 2002 | Amicus Curiae Brief filed by: |
Jul 9 2002 | Amicus Curiae Brief filed by: |
Jul 9 2002 | Amicus Curiae Brief filed by: |
Jul 9 2002 | Amicus Curiae Brief filed by: |
Jul 10 2002 | Response to amicus curiae brief filed |
Jul 12 2002 | Amicus Curiae Brief filed by: |
Jul 12 2002 | Amicus Curiae Brief filed by: |
Jul 12 2002 | Amicus Curiae Brief filed by: |
Jul 30 2002 | Response to amicus curiae brief filed |