Sharon S. v. Superior Court

*447 BAXTER, J., Concurring and Dissenting.

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, 440.) Under the majority’s approach, section 8617’s termination of the birth parents’ rights in any type of adoption—not merely those that seek to add a second parent—can be waived by mutual agreement, thus permitting a child to have three or more parents.

This makes new law, not only here but nationwide. Other states—even those states that have already validated second parent adoptions—have not taken this step. (E.g., Adoption of B.L.V.B., supra, 628 A.2d at p. 1274, fn. 3 [declining to characterize a Vermont termination-of-rights statute as “directory rather than mandatory”]; see also In Interest of Angel Lace M. (1994) 184 Wis.2d 492 [ 516 N.W.2d 678, 683-684 ] [construing a similar Wisconsin termination-of-rights statute as mandatory].) 2 I find this out-of-state authority persuasive. (See 3 Singer, Statutes and Statutory Construction (6th ed. 2001) § 57:6, p. 30 [“The manner in which similar statutes in other states have been construed may be an element bearing upon this question”].) Unlike the majority, but in accordance with our sister states, I would hold that our termination-of-rights statute can be waived in the limited circumstance of a second parent adoption. Just as it has not been necessary to declare similar *448 provisions to be directory to affirm second parent adoptions in other states, it is not necessary to make new law to uphold second parent adoptions in California.

I cannot fathom why the majority has deliberately chosen a rationale that is unnecessary to the disposition of this case and that has been avoided by other jurisdictions, but I do understand and fear the effect of the majority’s additional holding; to put at risk fundamental understandings of family and parentage. Tomorrow, the question may be: How many legal parents may a child have in California? And the answer, according to the majority opinion, will be: As many parents as a single family court judge, in the exercise of the broadest discretion in our law, deems to be in the child’s best interest.

As stated, I do concur in the judgment. But for the reasons that follow, I will not join the majority opinion.

I

If it is true that you can’t get where you’re going if you don’t know where you’ve been, then it should come as no surprise the majority finds itself in uncharted territory. The majority claims (without any citation) that “[established” (maj. opn., ante, at p. 436.) administrative interpretation and practice by the California Department of Social Services (CDSS) supports its affirmance of second parent adoptions. It is quite simple, as detailed below, to verify CDSS’s interpretation and practice during the relevant period. Unless “established” is redefined to mean “very recent,” the historical claim made by the majority cannot be defended.

The first petitions for second parent adoptions were filed in the early 1980’s. Between that time and 1999, with only a brief exception, CDSS maintained a policy of opposing “any petition for adoption in which a child is to be adopted into an unmarried couple.” (Doskow, The Second Parent Trap: Parenting for Same-Sex Couples in a Brave New World (1999) 20 J. Juv. L. 1, 7.) The lone exception to this policy lasted “only a few months” and was promptly reversed when “then-Govemor Pete Wilson became aware of the change and ordered [CDSS] to return to its original policy.” (Id. at p. 7 & fn. 31, citing CDSS, All County Letter No. 95-13 (Mar. 11, 1995), rescinding CDSS, All County Letter No. 94-104 (Dec. 5, 1994).) The original policy then continued in force until November 15, 1999. (Doskow, supra, 20 J. Juv. L. at p. 8; see CDSS, All County Letter No. 99-100 (Nov. 15, 1999).) Thus, contrary to the assertion in the majority opinion, CDSS had an established and long-standing administrative interpretation and practice of opposing second parent adoptions—based on its interpretation of section 8617—that lasted for well over a decade. (Doskow, supra, 20 J. Juv. L. at pp. 12-13; *449 see also Notice of Proposed Changes in Regulations of the CDSS, Cal. Reg. Notice Register 96, No. 29, p. 446 [proposing adoption of Cal. Code Regs., tit. 22, § 35124].) Moreover, that policy remained in effect until the year before this litigation commenced. Accordingly, any claim that CDSS policy has “for some time” (maj. opn., ante, at p. 440) supported second parent adoption is demonstrably incorrect.

Even if the new CDSS policy had not been of such recent vintage, the majority ought to have steered clear of substantial reliance on it. The majority correctly recites that deference to administrative interpretation “is ‘situational’ and depends on ‘a complex of factors.’ ” (Maj. opn., ante, at p. 436, quoting Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 [ 8 Cal.Rptr.2d 1 , 960 P.2d 1031 ] (Yamaha Corp.).) But the majority then fails to apply those factors. Where an agency (like CDSS) is merely construing a controlling statute, the weight of the agency’s interpretation “ ‘will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” (Yamaha Corp., supra, 19 Cal.4th at pp. 14—15, italics omitted, quoting Skidmore v. Swift & Co. (1944) 323 U.S. 134, 140 [ 89 L.Ed. 124 , 65 S.Ct. 161 ].)

Analysis of the appropriate factors here would counsel caution, not a kowtow to the agency’s recent change in policy. CDSS’s consideration of the applicable statutes was hardly thorough: the All County Letter announcing the policy reversal is less than one page long and nowhere indicates it was issued in accordance with the Administrative Procedure Act. (Yamaha Corp., supra, 19 Cal.4th at p. 13 .) The validity of CDSS’s reasoning is impossible to evaluate; the All County Letter simply announces a reversal in policy, without providing any supporting reasons, and rejects the prior long-standing policy based solely on the fact that it was “an underground regulation inconsistent with the Administrative Procedure Act.” (CDSS, All County Letter No. 99-100, supra.) This indicates merely that the prior rule was promulgated in an impermissible manner, not that it misinterpreted the statute. (E.g., Kings Rehabilitation Center, Inc. v. Premo (1999) 69 Cal.App.4th 215, 217 [ 81 Cal.Rptr.2d 406 ] [“ ‘underground’ regulations” are “rules which only the government knows about”].) The new CDSS policy plainly is not consistent: the All County Letter abandons long-standing policy and had been in effect less than 12 months prior to the institution of this action. (Cf. Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 801 [ 85 Cal.Rptr.2d 844 , 978 P.2d 2 ] [agency’s interpretation of statute for “almost 20 years” is “ ‘ “longstanding” ’ ”].) Nor is CDSS’s policy reversal reasonably contemporaneous with the adoption of the relevant statutes. (Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1118, fn. 4 [ 95 Cal.Rptr.2d 514 , 997 P.2d 1169 ].)

*450 In short, none of these factors supports the majority’s conclusion that the 1999 policy reversal “would appear to be entitled to great weight” and merits “substantial deference.” (Maj. opn., ante, at p. 436.) Accordingly, I would not make such a claim. The significance of the 1999 policy reversal, in my view, is that we are no longer bound to defer to CDSS’s established and longstanding policy of disapproving second parent adoptions. (Yamaha Corp., supra, 19 Cal.4th at p. 13 [“ ‘[a] vacillating position ... is entitled to no deference’ ”].) We need not (and ought not) torture settled administrative law to go further than that.

II

As stated above, I conclude that in the limited circumstance of a second parent adoption, the parties may waive section 8617’s requirement that the parental rights of the birth parent be terminated. Unlike the majority, however, I do not rest my conclusion that section 8617 can be waived in this limited circumstance on the theory that it is merely directory.

The designation of a statute as either mandatory or directory must be made with reference to the statute’s purpose. (People v. McGee (1977) 19 Cal.3d 948, 962 [ 140 Cal.Rptr. 657 , 568 P.2d 382 ].) Designating section 8617 as nonmandatory or directory means that the termination of parental rights at the time of adoption is “ ‘immaterial’ ” and involves only a matter of “ ‘convenience.’ ” (Francis v. Superior Court (1935) 3 Cal.2d 19, 28 [ 43 P.2d 300 ].) Designating section 8617 as directory also means that it may be waived at the will of the parties. (In re Johnson (1893) 98 Cal. 531, 539 [ 33 P. 460 ].) This, of course, is the view advanced by the majority, which states that the termination of parental rights in section 8617 is not “ ‘for a public purpose’ ” but instead is “for the benefit of the parties to an adoption petition” and thus is “waivable by the parties thereto.” (Maj. opn., ante, at p. 427.) This analysis is contrary to our precedents, contrary to legislative policy, and has predictably unfortunate consequences.

Now that section 8617 has been classified as directory, the parties to every type of adoption are free to disclaim its effect whenever they choose. Any number of consenting adults may thus agree to adopt the same child, so long as a single family court judge finds the adoption is in the child’s interest. (See maj. opn., ante, at p. 446.) Nothing in the Family Code would be left to prevent a child from having three or four or a village’s worth of legal parents, so long as all the would-be parents agree to waive section 8617 and a sole family court judge sometime, somewhere, finds the adoption to be in the child’s interest. (In re Johnson, supra, 98 Cal. at p. 539 [a directory provision “is to be complied with or not in the discretion of the judge”].) Inasmuch as there is “[n]o higher discretion” than that vested in a trial court resolving a *451 petition of adoption (In re Adoption of Bewley (1914) 167 Cal. 8, 10 [ 138 P. 689 ]), the majority all but guarantees new and even bizarre family structures.

The majority discounts this possibility as “[njonsense,” claiming that “[w]hile CDSS has for some time treated section 8617 as waivable, such scenarios have not materialized.” (Maj. opn., ante, at p. 440.) I do not find this comforting. Nothing in CDSS policy states that section 8617 is nonmandatory. Rather, the new CDSS policy, like this separate opinion, permits section 8617 to be waived only in the limited circumstance of a second parent adoption. In any event, it is far toó soon to gauge the effect of the recent reversal in CDSS policy, which (as Justice Brown points out) postdates the adoption agreement in this case. (Conc, and dis. opn. of Brown, J., post, at p. 459, fn. 2.) The regime the majority announces today has not yet been tested here.

However, it does not take much imagination to predict what that regime will look like. Commentators have recognized that a child may end up with any number of parents when family structure becomes a matter of private ordering. (King, Solomon Revisited: Assigning Parenthood in the Context of Collaborative Reproduction (1995) 5 UCLA Women’s L.J. 329, 388 (King) [“Unlike the nuclear family model, families of consent can include one, two, or more parents”].) The available empirical evidence supports this prediction. An Alaska superior court’s finding that a similar termination-of-rights statute was directory was followed quickly by an adoption in which neither natural parent severed ties with the child. “Accordingly, the child now has three legal parents.” (Patt, Second Parent Adoption: When Crossing the Marital Barrier Is in a Child’s Best Interests (1987-1988) 3 Berkeley Women’s L.J. 96, 132, italics added (Patt).) Moreover, at oral argument, Annette’s counsel informed us that superior courts in this state have already allowed a child to have more than two legal parents, apparently based on counsel’s theory that section 8617 is merely directory. 3

*452 Since I am not a legislator, my own views as to whether children should be allowed to have three or more legal parents are not relevant here, although it does appear that such arrangements are highly problematic. (See Shapo, Matters of Life and Death: Inheritance Consequences of Reproductive Technologies (1997) 25 Hofstra L.Rev. 1091, 1199 [“The facts of Michael H. [v. Gerald D. (1989) 491 U.S. 110 [ 105 L.Ed.2d 91 , 109 S.Ct. 2333 ] highlight the practical difficulties of a divided authority and a disrupted family unit that may result from more than two legal parents”].) The existence of multiple parents would also make more difficult the resolution of disputes that may arise over custody and visitation, as well as conflicts over other parental rights and responsibilities. (Cf. maj. opn., ante, at p. 424.) In any event, the important point—and the one the majority deliberately ignores—is that “[e]xisting law recognizes a maximum of two parents per child.” (King, supra, 5 UCLA Women’s L.J. at p. 386.) Indeed, no commentator of whom I am aware shares the majority’s agnosticism as to “whether there exists an overriding legislative policy limiting a child to two parents.” (Maj. opn., ante, at p. 427, fn. 6; cf. Liebler, Are You My Parent? Are You My Child? The Role of Genetics and Race in Defining Relationships After Reproductive Technological Mistakes (2002) 5 DePaul J. Health Care L. 15 , 53 [“I suggest that the statutory requirements that children can have only two parents be changed”]; Sheldon, Surrogate Mothers, Gestational Carriers, and a Pragmatic Adaptation of the Uniform Parentage Act of 2000 (2001) 53 Me. L.Rev. 523, 573, fn. 226 [“innumerable state and federal statutes ... are premised on a maximum of two parents”]; Katz, Ghost Mothers: Human Egg Donation and the Legacy of the Past (1994) 57 Albany L.Rev. 733, 755 [“The premises underlying the legal definitions of parent and nonparent have been that a child should have no more than two legal parents”]; see also Michael H. v. Gerald D., supra, 491 U.S. at p. 118 (plur. opn. of Scalia, J.) [“California law, like nature itself, makes no provision for dual fatherhood”].) Moreover, numerous provisions of the Family Code—including the sections cited by the majority—demonstrate the Legislature intended to limit a child to no more than two legal parents. In fact, this intent is made manifest in section 8617 itself, which terminates the birth parents’ rights “from the time of the adoption.” Since a child can have no more than two birth parents (see Fam. Code, § 8512; id., § 7613, subd. (b); see also Johnson v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8 [ 19 Cal.Rptr.2d 494 , 851 P.2d 776 ]), section 8617 ensures that the child does not acquire more than two through the process of adoption. The majority’s unique unwillingness to acknowledge section 8617’s role in limiting a child to no more than two parents defies common sense. 4

*453 The majority’s contention that section 8617 “does not speak to parental numerosity” (maj. opn., ante, at p. 427, fh. 6) is not only very hard to understand, but is also flatly contrary to our precedents. In Estate of Jobson (1912) 164 Cal. 312 [ 128 P. 938 ], we construed the predecessor to section 8617 in a situation where the biological father sought a partial distribution of his decedent son’s estate. The decedent, however, had been adopted by his maternal grandparents years before. In rejecting the biological father’s claim, we explained the operation of the statute: “These various rulings seem to establish the doctrine that the effect of an adoption under our Civil Code is to establish the legal relation of parent and child, with all the incidents and consequences of that relation, between the adopting parent and the adopted child. This necessarily implies that the natural relationship between the child and its parents by blood is superseded .... Once we have reached the conclusion that the effect of an adoption under the code is to substitute the adopting parent for the parent by blood, we must give to that conclusion its logical results. From the time of the adoption, the adopting parent is, so far as concerns all legal rights and duties flowing from the relation of parent and child, the parent of the adopted child. From the same moment, the parent by blood ceases to be, in a legal sense, the parent. His place has been taken by the adopting parent.” (Estate of Jobson, supra, 164 Cal. at pp. 316-317, italics added.)

I read Estate of Jobson as confirming the pivotal role of section 8617’s predecessor in limiting the number of legal parents a child may acquire through an adoption. And I do not think mine is an idiosyncratic reading. Commentators—even those quoted by the majority itself—have recognized that section 8617 “protects the child from the burden of owing duties and obligations to two families.” (Patt, supra, 3 Berkeley Women’s L.J. at p. 117.) Thus, by gratuitously holding that section 8617 is nonmandatory, the majority guts that protection, to the detriment of children generally.

The majority claims to agree that courts should leave innovation in adoption policy to the Legislature. (Maj. opn., ante, at p. 443.) But the claim rings hollow here—since by classifying section 8617 as directory, this court has usurped the Legislature’s power to limit a child to no more than two parents and has bestowed it instead on an individual family court judge, who may assign a child as many legal parents as the lone judge deems in the child’s best interest. In my view, that is a breathtaking innovation in adoption policy. A change of this scope should be decided only by the Legislature or *454 the people by initiative. (Williams v. North Carolina (1942) 317 U.S. 287, 303 [ 87 L.Ed. 279 , 63 S.Ct. 207 ].)

III

To the extent the majority believes itself compelled to classify section 8617 as directory in order to authorize second parent adoptions in California, it is mistaken. Our case law—including the same case law the majority purports to apply—would allow the parties to an adoption to waive the effect of section 8617, as long as the waiver did not seriously compromise the provision’s public purpose. Second parent adoptions, by definition, pose no threat to the legislative policy limiting a child to no more than two legal parents. Hence, under our existing case law, it is enough to say that section 8617 does not bar second parent adoptions generally or this proposed adoption in particular.

We begin with our rules for construing the Family Code. Although the law of adoption is “wholly statutory” (Estate of Sharon (1918) 179 Cal. 447, 454 [ 177 P. 283 ]), “[t]he rule is that the adoption statutes are to be liberally construed with a view to effect their objects and to promote justice. Such a construction should be given as will sustain, rather than defeat, the object they have in view.” (Department of Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6 [ 81 Cal.Rptr. 345 , 459 P.2d 897 ].) “ The main purpose of adoption statutes is the promotion of the welfare of children ... by the legal recognition and regulation of the consummation of the closest conceivable counterpart of the relationship of parent and child.’ ” (Adoption of Barnett (1960) 54 Cal.2d 370, 377 [ 6 Cal.Rptr. 562 , 354 P.2d 18 ].)

A second parent adoption promotes the welfare of children by formalizing in law a relationship that already exists in fact between the child and the prospective parent. Moreover, it does so without compromising the public purpose, set forth in section 8617, of limiting a child to no more than two parents. Therefore, in this limited circumstance, the parties should be permitted to waive the requirements of section 8617 and avoid the termination of the birth parent’s rights.

There is ample precedent for permitting a limited waiver of statutes that serve important public purposes. After all, this is the analytical model we employed in Cowan v. Superior Court (1996) 14 Cal.4th 367 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (Cowan). This is also the analysis we approved in Bickel v. City of Piedmont (1997) 16 Cal.4th 1040 [ 68 Cal.Rptr.2d 758 , 946 P.2d 427 ] (Bickel). And this is the analysis we invoked most recently County of Riverside v. Superior Court (2002) 27 Cal.4th 793 [ 118 Cal.Rptr.2d 167 , 42 P.3d 1034 ] (County of Riverside). None of these cases even uttered the words “mandatory” or “directory.”

*455 In Cowan , we held that a criminal defendant under certain circumstances may waive the benefit of a statute of limitations to a lesser offense than that charged, even though the statute existed partly to achieve certain public benefits. ( Cowan, supra, 14 Cal.4th at pp. 374-375; Bickel, supra, 16 Cal.4th at p. 1050 .) We described the operative waiver as one that is knowing, intelligent, and voluntary; is made for the defendant’s benefit after consultation with counsel; and does not handicap the defense “ ‘ “or contravene any other public policy reasons motivating the enactment of the statutes.” ’ ” (Cowan, supra, 14 Cal.4th at p. 372 .)

Similarly, in Bickel , we observed that developers could waive the benefits of the Permit Streamlining Act “if the administrative record shows that the applicant has made a knowing, intelligent, and voluntary waiver in circumstances where the applicant might reasonably anticipate some benefit or advantage from the waiver, and if the waiver does not seriously compromise any public purpose that the Act’s time limits were intended to serve.” (Bickel, supra, 16 Cal.4th at p. 1050 .)

Finally, in County of Riverside, we upheld a limited waiver by a probationary deputy sheriff of the Public Safety Officers Procedural Bill of Rights Act —which is yet another law “ ‘established for a public reason.’ ” (County of Riverside, supra, 27 Cal.4th at p. 804 .) This waiver, once again, was limited to the circumstance where “enforcement of the waiver would not particularly undermine the public purpose of the Act.” (Id. at p. 806.)

Unlike the majority, I would find it sufficient to apply Cowan, Bickel, and County of Riverside here and permit the parties to a second parent adoption to knowingly, intelligently, and voluntarily waive the termination of parental rights otherwise required by section 8617, inasmuch as the waiver would not contravene, compromise, or undermine the statute’s public purpose. (Cf. Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 668-671 [ 26 Cal.Rptr.2d 703 ] [strict compliance with mandatory provision is unnecessary where every reasonable objective of the statute has been satisfied].)

Construing section 8617 in this manner is not only consistent with our canons of construction generally, it is also consistent with our precedents in the area of adoption law. In Marshall v. Marshall (1925) 196 Cal. 761 [ 239 P. 36 ], which nowhere mentions the terms “directory” or “mandatory,” we permitted the parties to waive the predecessor to Family Code section 8617 in an analogous circumstance. We held that a stepfather’s adoption of his wife’s children did not terminate her parental relationship with the children, notwithstanding the provisions of Civil Code former section 229, on the ground that the parties to that adoption “did not intend thereby to sever the parental *456 relationship between the mother and the children.” (Marshall, supra, at p. 766 .) But, rather than make the provision waivable in all circumstances, we merely recognized a limited waiver to permit “a husband and wife . . . [to] jointly adopt a child pursuant to the procedure therein prescribed, the result of which is to make the child, in law, the child of both spouses.” (Id. at p. 767.) Had Marshall intended to make the provision directory, it would not have been necessary to limit our holding, as we did repeatedly, to “the circumstances of this case” (id. at p. 766) and “a situation such as this” (id. at p. 767).

In my view, Marshall's construction of Civil Code former section 229 was grounded on the circumstance that the stepparent adoption did not contravene, compromise, or undermine that provision’s public purpose, which we had discussed previously in Estate of Jobson, supra, 164 Cal. 312 . Marshall thus supports the validity of second parent adoptions involving unmarried persons, which similarly do not undermine section 8617’s public purpose. A fair reading of Marshall refutes the notion that we have ever deemed Civil Code former section 229—or its successor—to be directory.

IV

The majority’s remaining justifications for classifying section 8617 as directory are similarly without merit.

The majority appears to reason that because section 8617 is not jurisdictional, it cannot be classified as mandatory. (Maj. opn., ante, at pp. 428, 434.) The majority has made a common mistake. “A typical misuse of the term ‘jurisdictional’ is to treat it as synonymous with ‘mandatory.’ ” (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 4, pp. 548-549.) “But for the Legislature to declare that a section is mandatory does not necessarily mean that a failure to comply with its provisions causes a loss of jurisdiction to make any decision whatever.” (Liberty Mut. Ins. Co. v. Ind. Acc. Com. (1964) 231 Cal.App.2d 501, 509 [ 42 Cal.Rptr. 58 ].) Hence, the fact that section 8617 is not jurisdictional does not shed light on whether it is nonetheless mandatory. (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 551, fn. 2 [ 94 Cal.Rptr. 158 , 483 P.2d 774 ].)

Likewise, it is irrelevant that compliance with section 8617 is not an “essential element[] of every valid adoption.” (Maj. opn., ante, at p. 428.) Section 8617, of course, is not even intended to apply to every valid adoption. For example, section 8617 would not apply where the birth parents are deceased or have otherwise had their rights terminated, and does not apply at all in agency adoptions. (See Fam. Code, § 8700 et seq.) That section 8617 does not apply in some circumstances, though, has no bearing on whether it *457 is mandatory in the circumstances in which it does apply. Not surprisingly, the majority offers no authority to the contrary.

The majority also lacks support for its artificial distinction between a “mandatory prerequisite” to an adoption (maj. opn., ante, at p. 427) and a “legal consequence.” (Id. at p. 427.) In particular, nothing in In re Johnson, which addressed the validity of an adoption where the minor child was not examined by the judge under Civil Code former section 227, supports the claim that the adoption laws “always have made a fundamental distinction between the ordinary legal consequences of an adoption and ‘what provisions of the law are essential and therefore mandatory.’ ” (Maj. opn., ante, at p. 428, quoting In re Johnson, supra, 98 Cal. at p. 536 .) Consequences, like prerequisites, can be mandatory. (E.g., West Shield Investigations & Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 949 [ 98 Cal.Rptr.2d 612 ] [mandatory consequences of court-ordered emancipation].) In fact, much of law involves attaching mandatory consequences to a particular constellation of facts. That section 8617 may describe a consequence rather than an element of an adoption thus has no bearing on whether it is mandatory.

In sum, nothing in law or policy justifies the majority’s evisceration of the important public purpose underlying section 8617—namely, the legislative declaration and case authority that a child needs no more than two legal parents.

V

Second parent adoptions by unmarried persons are consistent with California law. I would apply that settled law to decide this case. It is disappointing that, in reaching the same result, the majority has instead upset fundamental legislative policy concerning family structure, substantially altered administrative law concerning deference to executive agencies, and rendered unrecognizable our own case law concerning the distinction between statutory provisions that are mandatory and those that are directory. I can therefore join only in the judgment.

Chin, J., concurred.

I adopt the majority opinion’s definition of “second parent adoption” (maj. opn., ante, at p. 422, fn. 2) and, like the majority, distinguish such adoptions from stepparent adoptions. (See Fam. Code, §§ 8548, 9000-9007.)

Indeed, the New York Court of Appeals’ construction of a similar termination-of-rights statute as “mandatory in all cases” was superseded only by subsequent legislation. (Matter of Jacob, supra, 660 N.E.2d at p. 404 .)

The majority states that because “[t]his case involves only a second parent adoption,” we have no occasion to consider “whether there exists an overriding legislative policy limiting a child to two parents.” (Maj. opn., ante, at p. 427, fn. 6.) Naturally, I wholeheartedly agree. After all, it is only the majority’s gratuitous holding that section 8617 is directory—and hence waivable at the election of the parties—that raises concerns about how many parents a child might acquire through the adoption process. The majority’s alternate assertion that it does not intend to validate an adoption that “omits any essential statutory element” or “is in violation of a public policy the Legislature may express” (maj. opn., ante, at p. 440) is mere wishful thinking—for without section 8617, there is no statutory element, essential or otherwise, that protects the child who completes the adoption process from ending up with more than two legal parents. Tellingly, the majority does not even purport to identify one.

In its truncated discussion of section 8617’s purpose, the majority seems to operate under the impression that a statute’s public purpose must be ascertained by considering the provision in isolation. If so, the majority is again mistaken. (Francis v. Superior Court, supra, 3 Cal.2d at p. 28 [“Another rule equally well recognized in the construction of such a statute is that whether a statute is mandatory or directory depends upon the legislative intent as ascertained *453 from the consideration of the whole act”]; Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1513 [ 55 Cal.Rptr.2d 443 ] [“considering the purpose and provisions of the statutory scheme as a whole”].) Indeed, since at least In re Johnson, supra, 98 Cal. at page 536 , we have found it “necessary” to read the statute in question “with other sections of the same code relating to the subject of adoption” to determine whether the statute was mandatory or directory.