Other Cases Affecting Children

Sharon S. v. Superior Court of San Diego County (2001) 93 Cal.App.4th 218 [113 Cal.Rptr.2d 107]. Court of Appeal, Fourth District, Division 1.

The juvenile court denied a mother's motion to dismiss an adoption petition filed by the mother's former partner, and ordered visitation between the child and the mother's former partner.

The mother gave birth to her first son after being artificially inseminated, and the mother's partner successfully petitioned to adopt the child as a co-parent. Years later, the mother underwent the artificial insemination procedure again. The mother and her partner signed an Independent Adoption Placement Agreement, stating (1) that the mother could revoke consent to the adoption by the partner for only 90 days after the adoption petition was approved by the court and (2) that the mother would give up her rights to the custody of and services to the child. However, an addendum was attached to the agreement, stating that the mother intended to retain all of her parental rights to the care, custody, and control of the child.

The relationship between the mother and her partner became strained, and the each woman retained new counsel. After the adoption was mediated, a temporary visitation plan was scheduled. The mother's partner filed a motion to adopt the child, contending that the mother's consent had become irrevocable. A family court services counselor recommended that the mother and her former partner share joint legal custody of the children. The juvenile court ordered visitation and appointed an attorney for the child. The mother filed a motion to dismiss the adoption because it was unauthorized by statute, and she claimed that her former partner lacked standing to seek adoption of her child. The child's attorney also filed a motion to dismiss the adoption petition. The juvenile court denied both of these motions. The mother appealed.

The Court of Appeal reversed the decision of the juvenile court. The appellate court explained that there are three methods of adopting an unmarried child: (1) agency adoption (birth parents relinquish their rights to the child to a licensed adoption agency), (2) independent adoption (the parents of the child relinquish their rights directly to adoptive parents), and (3) stepparent adoption (the spouse of a child's birth parent petitions the court to adopt the child). The mother's partner conceded that her petition to adopt the child did not meet the criteria of any of these three adoptions. She argued that her petition sought a modified independent adoption and that the adoption statutes must not preclude a second-parent adoption that was in the best interest of the child. The social services agency, without express statutory authority, indicated that it had developed practices to facilitate second-parent adoptions (including independent adoption as in this case, in which the birth parent consents to an adoption but expresses an intent to retain her parental rights). The appellate court concluded that a second-parent adoption cannot be accomplished through an independent adoption.

The appellate court noted that the language of the statutes is clear and unambiguous and there is no authorization for such second-parent adoptions. The statutes governing independent adoptions mandate that the parental rights of the birth parent be terminated. The mother in this case did not unequivocally agree to a termination of her parental rights. The appellate court concluded that the juvenile court had erred in denying the mother's motion to dismiss the adoption petition and the visitation order between her former partner and her child. The appellate court deemed moot the mother's request for writ relief from orders compelling discovery, and concluded that the sanction orders against the mother be should vacated. Justice Kremer dissented in the opinion. Justice Kremer determined that Marshall v. Marshall (1925) 196 Cal. 761 should have been the controlling case and that California's adoption laws are to be liberally construed to protect the welfare of children. The Family Code as interpreted by Justice Kremer, does not exclude second-parent adoptions, and the order denying the mother's motion to dismiss the adoption petition should have been upheld.