Monday, October 29, 2001
Parent’s Non-Marital Partner Cannot Adopt Child, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
California law does not permit a parent’s non-marital partner to adopt a child without the parent relinquishing parental rights, the Fourth District Court of Appeal ruled Friday.
The ruling, by a divided panel in Div. One, overturns a trial court order in favor of a San Diego woman. San Diego Superior Court Judge Susan D. Hugenor had granted Annette F., as she was identified by the court, 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.
But Justice Richard 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 earlier this month. 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.
Sharon S. and Annette F. 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 donated sperm.
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. The judge 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. Marshall v. Marshall (1925) 196 Cal. 761, isn’t “an open invitation to disregard the express language of the statutes governing independent adoptions,” McIntyre wrote.
The Legislature, the justice 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. The stepparent adoption procedure, he noted, was enacted after Marshall was decided, without any accompanying legislation eliminating the requirement of termination of parental rights for independent adoptions.
AB 25, he noted, followed several years of unsuccessful efforts to authorize second-parent adoptions.
“The recent enactment of this legislation is 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,” the justice said. “It does, however, provide a mechanism by which couples who have in the past attempted to adopt children through a modified independent adoption to ratify those adoptions by complying with the domestic partner adoption provisions, thus minimizing the feared impact of this decision on those relationships.”
Kremer, dissenting, argued that “the Supreme Court in Marshall read second-parent adoption into the statute and did not require full relinquishment or termination of the birth parent’s parental rights.” He also criticized the majority for having “call[ed] into question the legitimacy of hundreds or perhaps thousands of existing parent-child relationships created through [second-parent adoption] procedures.”
The case is Sharon S. v. Superior Court, Annette F. RPI, 01 S.O.S. 5196.
Copyright 2001, Metropolitan News Company