Sharon S. v. Superior Court

• Decision Date: 25 October 2001
• Docket Number: No. D037871.,D037871.
• Citation: 93 Cal.App.4th 218,113 Cal.Rptr.2d 107
• Court: California Court of Appeals Court of Appeals
• Parties: SHARON S., Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Annette F., Real Party in Interest.

113 Cal.Rptr.2d 107

93 Cal.App.4th 218

SHARON S., Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Annette F., Real Party in Interest.

No. D037871.

Court of Appeal, Fourth District, Division 1.

October 25, 2001.

As Modified on Denial of Rehearing November 21, 2001.

Review Granted January 29, 2002.

Douglas Shepersky, William Blatchley, San Diego, John L. Dodd & Associates, John L. Dodd, Tustin, and Lisa A. DiGrazia, for Petitioner.

No appearance for Respondent.

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

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

Martha Matthews, Oakland, and Katina Ancar on behalf of National Center for Youth Law as Amicus Curiae.

Shannan Wilber, San Francisco, on behalf of Legal Services for Children as Amicus Curiae.

Jordan C. Budd, San Diego, on behalf of ACLU Foundation of San Diego & Imperial Counties, Mark, Los Angeles, on behalf of ACLU Foundation of Southern California, Jennifer C. Pizer, Los Angeles, on behalf of Lambda Legal Defense and Education Fund and Shannon Minter, San Francisco, and Courtney Joslin on behalf of National Center for Lesbian Rights and Children of Lesbians and Gays Everywhere, Family Pride Coalition et al. as Amici Curiae.

Diane Goodman, Encino, on behalf of Academy of California Adoption Lawyers as Amicus Curiae.

McINTYRE, J.

Annette F. petitioned under the independent adoption statutes to adopt Joshua, the biological son of her relationship partner, Sharon S. (the petitioner here). After the women severed their relationship, Sharon sought to terminate the adoption proceedings, arguing in part that the adoption statutes do not permit a second parent, or co-parent, adoption (one in which the unmarried relationship partner of the parent adopts the child and the parent retains parental rights). We agree that the statutes governing independent adoptions require a relinquishment of parental rights and conclude that a second parent adoption cannot legally be accomplished by a "modified" independent adoption, a practice developed by the Department of Social Services (Social Services). Accordingly, we grant Sharon's request for writ relief (which is joined in by Joshua) from orders of the superior court (1) denying her motion to dismiss Annette's petition, (2) granting Annette visitation with Joshua over her objection, and (3) compelling her to respond to discovery propounded by Annette and imposing sanctions against her and her attorney.

In doing so, we reject contentions by Annette and amici Children of Lesbians and Gays Everywhere, Family Pride et al. (COLAGE) and the National Center for Youth Law and Legal Services for Children that, although Annette's adoption petition does not meet the express statutory requirements, we should liberally construe the independent adoption statutes to permit a second parent adoption if it is in the best interests of the child. Because the statutory language is clear that the parental rights of a parent placing her child for independent adoption terminate upon approval of the adoption, we conclude that a second parent adoption cannot be accomplished pursuant to that procedure.

FACTUAL AND PROCEDURAL BACKGROUND

Sharon and Annette became involved in a lesbian relationship in 1989 and moved to San Diego together in 1990. The relationship was volatile and over the years Sharon and Annette attended couples counseling to help them work through their conflicts.

In 1996, after being artificially inseminated with sperm from an anonymous donor, Sharon gave birth to a son, Zachary. Annette petitioned to adopt Zachary as a co-parent with Sharon, with Sharon retaining parental rights to Zachary; the superior court approved Annette's petition, apparently despite a contrary recommendation by the San Diego County Department of Health and Human Services (the Department).

Several years later, Sharon underwent artificial insemination again, using sperm from the same anonymous donor as involved in Zachary's conception, and in June 1999, gave birth to Joshua. Shortly thereafter, Sharon and Annette retained an attorney to represent both of them in a proceeding for Annette's adoption of Joshua.

Sharon and Annette signed an "Independent Adoption Placement Agreement," which stated that Sharon was placing Joshua with Annette "for the purpose of independent adoption," that she could only revoke her consent to the adoption within 90 days and that, upon the court's approval of the adoption petition, she would "give up all [her] rights of custody, services, and earnings of [Joshua]...." An addendum to the agreement, on a form developed by Social Services, stated in part that, notwithstanding the contrary language of the agreement, Sharon intended to retain all of her rights as a parent to care, custody and control of Joshua and understood that the adoption, when final, would create a legal parent-child relationship between Annette and Joshua and confer on Annette parenting rights and responsibilities coextensive with her own.

Annette filed a petition to adopt Joshua as a co-parent with Sharon. The petition stated in part that "the birth mother ... consents to this adoption and will execute a limited written consent to the child's adoption in the manner required by law, but ... intends to retain all her rights to custody and control of said child." Eight months later, the Department submitted a report recommending that the court grant Annette's petition to adopt Joshua.

As a result of continuing difficulties between Sharon and Annette, the hearing on Annette's adoption petition was repeatedly postponed at Sharon's request and ultimately Sharon asked Annette to move out of their residence. Thereafter, each of the women retained new counsel in connection with the adoption proceedings. With the assistance of a mediator, the parties reached agreement on a temporary visitation schedule by which Annette would have time with each of the boys, but were unable to agree on a permanent visitation plan.

In September 2001, Annette filed a motion to establish a parental relationship with Joshua and to obtain sole physical custody of Joshua and Zachary. A month later, she filed a motion to adopt Joshua, contending that Sharon's consent to the adoption had become irrevocable pursuant to Family Code section 8814.5, that the adoption was in Joshua's best interests and that she was entitled to parental rights by estoppel.

After a family court services counselor recommended that Sharon and Annette share joint legal custody of the children and that Annette have specified visitation with the boys, Sharon filed a motion to withdraw her consent to the adoption. Sharon contended that her consent to the adoption was the result of "fraud, undue influence and duress, there was no legal basis for the requested adoption and the withdrawal of consent was in Joshua's best interests." The Department submitted a supplemental report recommending that, in light of the nature of Annette's relationship with and involvement in Joshua's life, the court approve Annette's petition to adopt Joshua.

In late November, the court ordered visitation, encouraging the parties to reach agreement on a visitation schedule, and appointed counsel to represent Joshua. Shortly thereafter, Sharon obtained a domestic violence restraining order against Annette and filed a motion to dismiss the adoption petition, arguing that the adoption was unauthorized by statute and that Annette lacked standing to seek to adopt Joshua. After the parties reached agreement on a visitation schedule, Joshua's counsel filed a second motion to dismiss the adoption petition based on the failure of Sharon and Annette's original attorney to comply with the statutory requirements for obtaining Sharon's consent to the proposed adoption. At a hearing, the court denied both motions. Although it did not specifically rule on Sharon's motion to withdraw her consent to the adoption, the court noted that Sharon did not withdraw her consent within the time required by law and indicated that the resolution of the adoption petition was likely to be based on what was in Joshua's best interests.

DISCUSSION

1. The Denial of Sharon's Motion to Dismiss the Adoption Petition

A. Law Governing Adoptions

At common law, there was no mechanism for adopting a person and it is now well established that the ability to adopt another exists purely by virtue of statute. (Adoption of McDonald (1954) 43 Cal.2d 447, 452, 274 P.2d 860; see also Fam.Code, § 8600.) The Family Code authorizes three methods for adopting an unmarried minor: (1) an agency adoption (Fam.Code, § 8700 et seq.); (2) an independent adoption (Fam.Code, § 8800 et seq.); and (3) a stepparent adoption (Fam. Code, § 9000).

(1) Agency Adoption

In an agency adoption, the existing parents of the child (referred to by statute and hereinafter as the "birth parents"; see Fam.Code, § 8512) relinquish their parental rights to the child to a licensed adoption agency or Social Services. (Fam. Code, §§ 8700, 8518.) In their relinquishment, the birth parents may name the person or persons with whom such parent or parents intend for the child to be placed. (Fam.Code, § 8700, subd. (f).) A relinquishment of parental rights terminates the birth parents' parental rights and responsibilities (Fam.Code, § 8700, subds. (e), (j)) and gives exclusive custody and control of the child to the agency or Social Services pending adoption of the child. (Fam.Code, §§ 8700, subds. (e), (j), 8704, subd. (a).) Typically, the agency or Social Services conducts a home study and places the child with the prospective adoptive parents for a test period before consenting to the adoption. (Fam.Code, § 8704, subds.(a), (b); see generally, 10 Witkin, Summary of Cal. Law (9th ed. 1989 & 2001 Supp.) § 388.) Upon court approval of an agency adoption, the adoptive parents...