Tuesday, August 5, 2003
In Case Spawned by Lesbians’ Breakup:
State High Court Gives Approval to ‘Second Parent’ Adoptions
By KENNETH OFGANG, Staff Writer/Appellate Courts
California law permits a “second parent” adoption in which the birth parent’s non-marital partner may adopt a child without the natural parent relinquishing parental rights, the state Supreme Court ruled yesterday.
Overturning a contrary ruling by the Fourth District Court of Appeal, the court sent the case back to Div. One in San Diego. That court was directed to consider issues that were left unresolved after the justices ruled 2 to 1 that the only second parent adoptions allowed in California are by stepparents.
The high court agreed in January of last year to grant the review sought by Annette F., as she has been known throughout the proceedings. She has been trying for four years to finalize the adoption of her ex-lover’s son.
Sharon S. and Annette F., former classmates at Harvard Business School, became involved in an often-volatile lesbian relationship in 1989 and moved to San Diego the following year, according to testimony. While they were together, Sharon S. had two children through artificial insemination using sperm donated by the same anonymous man.
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 of Joshua was the result of fraud and duress and sought to have the adoption proceedings dismissed.
San Diego Superior Court Judge Susan Hugenor, however, ruled that Annette F. could continue to seek a “modified” independent adoption, meaning that both women would be deemed the child’s parents.
The county Department of Social Services, citing the close relationship between Annette F. and Joshua, urged the court to approve the adoption. The judge approved visitation and denied Sharon S.’s motion to dismiss the proceeding.
The Court of Appeal ruled that California law does not permit second-parent adoptions. While state law makes express provision for stepparent adoptions, the panel said, other forms of adoption require that the biological parent relinquish custody.
But Justice Kathryn M. Werdegar, writing for the high court, said that Family Code Sec. 8617, the statute cited by the Court of Appeal, could be waived in order to accomplish a second-parent adoption. To hold otherwise, the jurist said, would be contrary to precedent, and to the principle that the adoption statutes should serve the best interests of children.
Werdegar said the trial judge correctly applied a 1925 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.
“We agree with the dissenting justice in the Court of Appeal that the considerations we treated as dispositive in Marshall (v. Marshall, 196 Cal. 761), which did not include the marital status of the parties, are fully present in the instant case and lead to the same result.”
No Statutory Bar
The stepparent adoption law was designed to streamline the procedure in those cases, Werdegar said, and does not “expressly nor impliedly bar an independent adoption by a second parent that preserves the child’s legal relationship with one birth parent.”
Chief Justice Ronald M. George and Justices Carlos Moreno and Joyce L. Kennard concurred in the opinion.
Justice Marvin Baxter, writing separately, agreed “fully” that second parent adoptions are legal in California. But the majority, he argued, had gone too far in treating Sec. 8617 as waivable “whenever the parties agree” to such waiver, and had opened the door to adoption by more than two parents.
Justice Ming Chin joined in Baxter’s opinion. Justice Janice Rogers Brown also wrote separately, arguing that second parent adoptions ought to require “a legal relationship between the birth and second parent.”
Such a relationship between non-marital partners could exist under AB 25, which was signed into law by Gov. Gray Davis two years ago. Effective Jan. 1 of last year, members of same-sex couples who register as domestic partners may adopt their partners’ children using the stepparent procedure, among other rights.
John Dodd, the attorney for Sharon S., said he would petition for rehearing, arguing that new issues have arisen since the case was briefed, including whether the proposed adoption violates a U.S. Supreme Court decision that struck down Washington state’s grandparent visitation law as an interference with fundamental parental rights.
Failing that, Dodd said, he may ask the nation’s highest court for review.
“I’m disappointed that the court has gone down the road of “best interests” adoption [meaning that] a single judge in a private, sealed courtroom can allow anyone to adopt anybody as long as he or she thinks it’s in [that child’s] best interests.”
Annette F.’s attorney, Charles Bird, said he was “thrilled by the outcome and by the clear and definitive nature of the decision on the validity of second parent adoptions.”
He added that he doubted the ruling would lead to such “extraordinary” results as those foreseen by Baxter.
The case is Sharon S. v. Superior Court (Annette F.), 03 S.O.S. 4168.
Copyright 2003, Metropolitan News Company