Sharon S. v. Superior Court

*422 Opinion

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 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,…

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 F. 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 *458 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.

L THE LEGISLATURE HAS PRECLUDED SECOND PARENT ADOPTIONS EXCEPT IN LIMITED CIRCUMSTANCES

This case turns on whether we deem Family Code section 8617 1 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…

The majority’s principal holding—which recognizes second parent adoptions 1 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. 441, fn. 21, citing Adoption of Tammy (1993) 416 Mass. 205 [ 619 N.E.2d 315 ]; Matter of Jacob (1995) 86 N.Y.2d 651 [ 660 N.E.2d 397 , 636 N.Y.S.2d 716 ]; Adoption of B.L.V.B. (1993) 160 Vt. 368 [ 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 (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. 427, 429,…

Terence Chucas and Judith E. Klein, La Mesa, for Minor.

Leigh A. Kretzschmar, Kathleen Murphy Mallinger; Luce Forward, Hamilton & Scripps and Charles A. Bird, San Diego, for Real Party in Interest.

Robert H. Lynn, San Diego; Jason A. Barsi; Maxie Rheinheimer Stephens & Vrevich and Darin L. Wessel, San Diego, 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, San Francisco, 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.

Donna Furth, San Francisco, 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, Los Angeles, for American Civil Liberties Union Foundation of Southern California; Jennifer C. Pizer for Lambda Legal Defense and…