Sharon S. v. Superior Court, No. S102671.

• Court: United States State Supreme Court (California)
• Citation: 73 P.3d 554,2 Cal.Rptr.3d 699,31 Cal.4th 417
• Decision Date: 04 August 2003
• Docket Number: No. S102671.
• Parties: SHARON S., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Annette F., Real Party in Interest.

2 Cal.Rptr.3d 699
73 P.3d 554
31 Cal.4th 417

SHARON S., Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent;
Annette F., Real Party in Interest

No. S102671.

Supreme Court of California.

August 4, 2003.

Rehearing Denied October 22, 2003.

Certiorari Denied March 1, 2004.

2 Cal.Rptr.3d 701

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

Kronick, Moskovitz, Tiedemann & Girard and Andrew P. Pugno, Sacramento, for Proposition 22 Legal Defense and Education Fund as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

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.

2 Cal.Rptr.3d 702

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 Education Fund; Shannon Minter and Courtney Joslin for The National Center for Lesbian Rights as Amici Curiae on behalf of Children of Lesbians and Gays Everywhere, American Civil Liberties Union Foundation of San Diego & Imperial Counties, American Civil Liberties Union Foundation of Southern California, Bay Area Lawyers for Individual Freedom, Family Matters, Family Pride Coalition, Lambda Legal Defense and Education Fund, LHR: The Lesbian and Gay Bar Association, The Los Angeles Gay and Lesbian Center, The National Center for Lesbian Rights, Our Family Coalition and The Pop Luck Club.

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

Nancy E. Lofdahl for California Association of Adoption Agencies and the California Alliance of Child and Family Services as Amici Curiae.

Morrison & Foerster, Michael N. Feuer and Elizabeth A. Thornton, Los Angeles, for the Los Angeles County Bar Association, Bar Association of San Francisco, Santa Clara County Bar Association, The Bar Association of Silicon Valley, Beverly Hills Bar Association, San Fernando Valley Bar Association, Women Lawyers' Association of Los Angeles, Bet Tzedek Legal Services, Public Counsel and Northern California Chapter of the American Academy of Matrimonial Lawyers as Amici Curiae.

Dennis J. Herrera, City Attorney (San Francisco), Therese M. Stewart, Chief Deputy City Attorney, Kamala Harris, Julia M.C. Friedlander, Ellen Forman and Sherri Sokeland Kaiser, Deputy City Attorneys, for City and County of San Francisco and California State Association of Counties as Amici Curiae.

Bill Lockyer, Attorney General, James M. Humes, Assistant Attorney General, John H. Sanders and Susan A. Nelson, Deputy Attorneys General, for California Department of Social Services as Amicus Curiae.

Latham & Watkins, Richard S. Zbur, Robert J. Schulze and James R. Repking, Los Angeles, for National Association of Social Workers and California Chapter, National Association of Social Workers as Amici Curiae.

Certiorari Denied March 1, 2004. See 124 S.Ct. 1510.

2 Cal.Rptr.3d 700

WERDEGAR, J

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

2 Cal.Rptr.3d 703

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, Annette petitioned to adopt Zachary in a "second parent" adoption, using official forms and procedures that expressly provided that Sharon consented to Zachary's adoption by Annette but intended to retain her own parental rights.² The trial court approved Annette's adoption petition, and Annette has since been one of Zachary's two parents.

Three years later, in 1999, Sharon was inseminated again with sperm from the same anonymous donor and gave birth to Joshua. On August 30 of that year, Sharon signed an "Independent Adoption Placement Agreement" (Agreement), which begins: "Note to birth parent: This form will become a permanent and irrevocable consent to adoption. Do not sign this form unless you want the adopting parents named below to adopt your child." The Agreement goes on to recite Sharon's "permanent and irrevocable consent to the adoption on the 91st day after I sign" the Agreement.

The Agreement also recites that, upon the court's approval of the Agreement, Sharon will "give up all rights of custody, services, and earnings" with respect to Joshua. However, a written "Addendum to Independent Adoption Placement Agreement" (Addendum), a form developed by the California Department of Social Services (CDSS), was signed by Sharon and Annette on the same date as they signed the Agreement. The Addendum stated Sharon's intent, as Joshua's birth parent, to retain parental rights and control of Joshua while placing him with Annette for the purpose of independent adoption. These were essentially the same procedures and forms Sharon and Annette had used for Zachary's adoption.³

Subsequently, Annette filed a petition to adopt Joshua as a second parent with Sharon. The petition stated that Sharon, as "birth mother of the children [Zachary and Joshua,] consents to this adoption and will execute a limited written consent to the child's [Joshua's] adoption in the manner required by law." The petition also stated that Sharon "intends to retain all her rights to custody and control as to said child." In April 2000, the San Diego County Department of Health and Human Services (HHS), acting in its capacity as an agency licensed by CDSS under the Family Code to investigate and report upon proposed independent adoptions, recommended

2 Cal.Rptr.3d 704

that the court grant Annette's adoption petition.

Annette and Sharon's relationship has been somewhat volatile. Apparently owing to continuing difficulties, Sharon repeatedly requested postponement of the hearing on Annette's adoption petition. In August 2000, Sharon asked Annette to move out of the family residence, which Annette did. Each retained new counsel. In mediation, the parties agreed on a temporary visitation schedule affording Annette time with both boys, but they could not reach an agreement respecting permanent custody or visitation.

On October 23, 2000; Annette filed a motion for an order of adoption respecting Joshua, contending, inter alia, that Sharon's consent had become irrevocable pursuant to section 8814.5 and that the adoption was in Joshua's best interest.

After a family court mediator recommended that Sharon and Annette share custody and that Annette have specified visitation, Sharon moved for court approval to withdraw her consent to the adoption. She contended there was no legal basis for the adoption, that her consent had been obtained by fraud or duress, and that withdrawal of her consent was in Joshua's best interest. HHS subsequently filed a supplemental report with the court, noting that Sharon had moved to withdraw her consent but had not done so within the statutorily specified period for revocation. HHS further reported that Annette had shared in Joshua's medical expenses and in the planning and handling of his daily care since birth, that Annette had a close and loving relationship with Joshua as his second parent, and that Annette's relationship with Joshua was similar to her relationship with Zachary. Finding that adoption continued to be in Joshua's best interest, HHS again recommended that Annette's petition to adopt Joshua be granted.

In late November 2000, the court ordered interim visitation, encouraged the parties to try to agree on an ongoing visitation schedule, and appointed counsel for Joshua.⁴ Shortly thereafter, Sharon obtained a domestic violence restraining order against Annette and moved to dismiss the adoption petition. She argued, again, that the adoption was unauthorized by statute and also that Annette lacked standing to adopt Joshua. Joshua's counsel also moved to dismiss the adoption petition, on the ground that Sharon and Annette's original counsel had not complied with her statutory obligations as an attorney representing both the birth and prospective adoptive parents in an independent adoption. (See § 8800.) The court denied both dismissal motions....