Wednesday, January 30, 2002
S.C. to Decide Whether Parent’s Non-Marital Partner Can Adopt Child Without Other Parent Giving Up Rights
By a MetNews Staff Writer
The California Supreme Court yesterday agreed to review a controversial Court of Appeal decision barring domestic partners from adopting their partners’ children.
The decision to review the Oct. 29 ruling of the Fourth District’s Div. One in Sharon S. v. Superior Court; Annette F. RPI , 93 Cal.App.4th 1158H was unanimous.
The ACLU Foundation of San Diego and Imperial County, the Lambda Legal Defense and Education Foundation, the National Center for Youth Law, and the Northern California Association of Counsel for Children were among those urging the high court to look at or depublish the decision.
The divided panel said that California law does not permit a parent’s non-marital partner to adopt a child without the parent relinquishing parental rights. The ruling overturned a trial court order in favor of a San Diego woman.
San Diego Superior Court Judge Susan D. Hugenor had granted Annette F. visitation rights and allowed her to continue adoption proceedings regarding her ex-lover’s son.
The proceedings began when Annette F. and Sharon S. were still living together.
When the couple separated, the mother sought to dismiss the adoption proceedings. But Hugenor ruled that Annette F. could continue to seek a “modified” independent adoption, meaning that both women would be deemed the child’s parents.
The appellate panel disagreed. Justice James McIntyre, joined by Justice Alex McDonald, concluded that California law does not permit “second-parent” adoptions.
While state law makes express provision for stepparent adoptions, the justice said, other forms of adoption require that the biological parent relinquish custody.
Presiding Justice Daniel Kremer dissented, arguing that the trial judge correctly applied a 1925 California Supreme Court ruling allowing a woman to “re-adopt” her natural children after her ex-husband, who had adopted the children during their marriage, surrendered the adoption as part of the couple’s divorce.
The future impact of the ruling will be limited by AB 25, which was signed into law by Gov. Gray Davis last year. Effective Jan. 1, members of same-sex couples who register as domestic partners may adopt their partners’ children using the stepparent procedure, among other rights.
Kremer, however, expressed concern in his dissent that the ruling would cast doubt on the thousands of second-parent adoptions that were finalized before the decision was handed down. McIntyre subsequently modified his opinion to emphasize that the panel was expressing no opinion on the validity of such prior adoptions.
The case grew out of the often-volatile lesbian relationship between Sharon S., who had two children through artificial insemination using donated sperm during the course of the relationship, and Annette F.
The first child, Zachary, was born in October 1996. The two women completed a second-parent adoption the following year.
The second child, Joshua, was born in June 1999. A second-parent adoption petition was filed in September of that year, but the couple separated while the petition was pending.
After attempts at mediation failed, Annette F. began legal proceedings to have herself declared the co-parent of Joshua and to obtain custody of both boys. Sharon S. responded that her consent to the adoption was the result of fraud and duress.
The county Department of Social Services, citing the close relationship between Annette F. and Joshua, urged the court to approve the adoption. Hugenor approved visitation and denied Sharon S.’s motion to dismiss the proceeding.
The appellate panel’s majority, however, said there was no basis for the trial judge’s “liberal interpretation” of the adoption legislation.
The Legislature, McIntyre said, had made it clear that for an independent adoption to occur, the birth mother must relinquish parental rights to the adopting parent or parents.
AB 25, he said, followed several years of unsuccessful efforts to authorize second-parent adoptions. The passage of the legislation, he said, was a “clear indication that the Legislature did not previously authorize the accomplishment of second parent adoptions through the use of a modified independent adoption procedure.”
Copyright 2002, Metropolitan News Company