Sharon S. v. Superior Court

BROWN, J., Concurring and Dissenting.

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 “narrow exception[]” to this rule. (Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1707, fn. 8 [ 22 Cal.Rptr.2d 590 ].) This norm reflects the imperative that there should not be any ambiguity about who is a child’s “real” parent. “[T]he effect of an adoption ... 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 This necessarily implies that the natural relationship between the child and its parents by blood is superseded. The duties of a child cannot be owed to two fathers at the same time.” (Estate of Jobson (1912) 164 Cal. 312, 316-317 [ 128 P. 938 ], italics added (Jobson).) The majority asserts the Legislature has merely described, rather than prescribed, this transfer of parental authority and responsibility, which is thus merely one option for the birth and adopting parents involved. Twice in the past decade, however, the Legislature has indicated otherwise.

The logical starting point for construing section 8617 is section 9306, which concerns the adoption of an adult (“person”) rather than a child. The text is nearly identical: “[T]he birth parents of a person adopted . . . are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted person, and have no right over the adopted person.” (§ 9306, subd. (a).) In 1993, the Legislature added subdivision (b) to section 9306, which provides, “Where an adult is adopted by the spouse of a birth parent, the parental rights and responsibilities of that birth parent are not affected by the adoption.” (Stats. 1993, ch. 266, § 2.) If, as the majority claims, there is no statutory restriction on second parent adoptions, subdivision (b) is superfluous.

But the Legislature perceived no superfluity. On the contrary, “[t]he purpose of this bill is [to] create an exception to the automatic severance of *459 parent-child relationships.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 970 (1993-1994 Reg. Sess.) May 18, 1993, p. 2.) The Senate Judiciary Committee’s analysis quoted section 8548 in observing “existing law” provided that a birth parent retains custody and control when a stepparent adopts a child. (See § 8548 [“ ‘Stepparent adoption’ means the adoption of a child by a stepparent where one birth parent retains custody and control of the child”].) Thus, no special subdivision (b) was needed for section 8617 because section 8548 served that purpose. There was no counterpart to section 8548 to provide for second parent adoptions of adults-, section 9306, subdivision (b), therefore conformed the law for these circumstances. “It is unclear why such distinctions were drawn between a stepparent adoption of minors and a stepparent adoption of adult children of spouses but the distinctions seem unnecessary and outmoded.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 970 (1993-1994 Reg. Sess.) May 18, 1993, p. 3.) The amendment to section 9306 indicates stepparenthood was the only context in which the ordinary transfer of duties and rights from birth parent(s) to adoptive parent(s) did not occur.

The Legislature confirmed its understanding that second parent adoptions were not a universal option when it allowed registered domestic partners to participate in this procedure. As the Senate Rules Committee’s analysis explained, “This bill expands California law on domestic partnerships by . . . conferring on domestic partners various rights, privileges and standing conferred by the State on married couples . ... HQ ... HO [including] [t]he right of a domestic partner to adopt a child of his or her partner as a stepparent.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 25 (2001-2002 Reg. Sess.) as amended Sept. 7, 2001, pp. 1-2.) Section 9000, subdivision (f), now provides that “[f]or the purposes of this chapter, stepparent adoption includes adoption by a domestic partner.”

Against these two expressions of legislative limits on second parent adoption, the majority offers a six-sentence “letter” issued by the California Department of Social Services on November 15, 1999 (the Letter), abolishing any marital requirements for second parent adoption. (See maj. opn., ante, at p. 423, fn. 3.) The letter purports to invalidate prior letters expressing a different policy, 2 which it characterized as “an underground regulation inconsistent with the Administrative Procedure Act”—an apt description for the Letter itself. The Administrative Procedure Act (hereafter APA; Gov. Code, § 11346 et. seq.) “establishes] basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations.” (Ibid.) The APA requires the government agency offering the regulation to provide, inter alia, a copy of the proposed regulation; a statement of reasons *460 for the adoption, amendment, or repeal of a regulation; identification of every study justifying the change; a description of alternatives to the proposal; and the agency’s reasons for rejecting those alternatives. (Gov. Code, § 11346.2.) The APA also provides for public input through either a public hearing or written comments. (Gov. Code, § 11346.8.) Because the California Department of Social Services failed to observe these procedures, the Letter did not comply with the statutory requirements, and is thus as much an underground regulation as any former rule.

The Letter fails in substance as well as procedure. Government Code section 11349, subdivision (a), requires a “ ‘[necessity’ ” for the rule, “to effectuate the purpose of [a] statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific . . . .” Subdivision (e) requires “ ‘[Reference’ ” to the statute, court decision, or other legal provision. The Letter provides neither of these. Furthermore, the regulation must “be[] in harmony with, and not in conflict with” existing law. (Id., § 11349, subd. (d).) Since, as noted, the Legislature has provided only narrow exceptions to Family Code section 8617, the Letter arguably conflicts with the law as it then existed. Nevertheless, the lesson of the majority opinion is that administrative agencies need not follow the dictates of the Legislature or this court, we will follow them. The California Department of Social Services’ violation of the statutory law thus serves as its retroactive justification.

II. NEITHER MARSHALL NOR WAIVER PRINCIPLES SUPPORT PROSPECTIVE VALIDATION OF SECOND PARENT ADOPTIONS OUTSIDE THE STATUTORY SCHEME

Against the expressed intent of the Legislature, the majority abrogates any status-based requirements for second parent adoptions, relying on our decision in Marshall v. Marshall (1925) 196 Cal. 761 [ 239 P. 36 ] (Marshall) and the principle that parties may waive rules imposed primarily for their benefit. Neither justification supports the majority’s conclusion.

A. Marshall

The court in Marshall retroactively authorized a second parent adoption by the new husband of a widow and held that “a husband and wife may jointly adopt a child . . . the result of which is to make the child, in law, the child of both spouses.” (Marshall, supra, 196 Cal. at p. 767 , italics added.) The majority both disregards the context and finds the italicized language immaterial, concluding instead that the opinion authorizes adoption by any couple wishing to adopt, regardless of marital status. This reads contemporary norms into a 1925 decision, when the prevailing precedents deemed marriage “the *461 most important relation in life, and one in which the state is vitally interested .... The well-recognized public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation and illicit unions.” (Deyoe v. Superior Court (1903) 140 Cal. 476, 482 [ 74 P. 28 ].)

Moreover, the Legislature subsequently enacted former section 226 of the Civil Code, which contained four separate references to “an adoption by a step-parent where one natural parent retains his or her custody and control of the child.” (Italics added.) Had the Legislature deemed stepparenthood immaterial, it would not have specifically included the italicized language. Accordingly, even if the Marshall court had been indifferent to the existence of a marital commitment, the Legislature was not. The Legislature has since added an entire chapter of statutes expressly regulating stepparent adoptions. (Fam. Code, § 9000 et seq.) These provisions reflect the Legislature’s understanding that it was creating a special procedure for adoption and an exception to the general rule set forth in Family Code section 8617. Section 9000, subdivision (f), confirms this understanding.

The Legislature also recently extended to registered domestic partners the opportunity to follow the stepparent adoption procedure. Unlike the pre Marshall legal landscape, where there was no statutory authorization for a child to live with a birth parent and a second parent, the law currently provides that opportunity to all couples who comply with the statutory prerequisites by formalizing their relationship.

Thus, even if the Marshall court lacked any legislative guidance, we do not. The Legislature has twice prescribed the terms by which a child may gain a second parent without losing the first: only where the two parents are related by marriage or domestic partnership. This court has no authority to reject the legislative rule for one it deems preferable.

At most, Marshall supports Annette’s claim; as we vindicated the intent and expectations of the Marshalls, perhaps so too should we vindicate the (original) intent and expectations of Sharon S. and Annette. But retroactive authorization of the adoption in Marshall did not create a prospective rule that any second parent adoption would be valid. Even if it had, subsequent legislation established that this option is available only to those couples who marry or form a domestic partnership, nullifying any contrary expectation or assumption. The majority may have justification for applying equitable principles to preserve a family attachment already created, but it has no basis for prospectively abrogating a legislative scheme that has stood for more than 70 years.

*462 B. Waiver

The majority also asserts that the section 8617 transfer of authority from birth parent to adoptive parents is optional, because it amounts to a benefit for the parents themselves. But section 8617 is but one of many rules governing adoption that exist to effect not the preferences of the adults but the welfare of the child, and thus society itself. The majority’s reconstruction of section 8617 ignores this imperative.

In addressing the questions of whether the statute is designed to benefit the parties or the public, the majority construes the provision as a primarily private benefit to the parents only through a selective citation of the text. Perhaps birth parents often wish to be “ ‘relieved of all . . . duties towards, and all responsibility for, the adopted child.’ ” (Maj. opn., ante, at p. 429, quoting § 8617.) After all, many people may wish to limit their duties and responsibilities. But this disregards the second part of the statute, which deprives the birth parent of any “right over the child.” (§ 8617.) A rule that strips both duties and rights from one party is not primarily intended to benefit that party.

Nor is the argument that the law is primarily designed for the benefit of the birth and adoptive parents any stronger, for it suffers from the same defect. The law both deprives the birth parents of their rights and imposes duties and responsibilities on the adoptive parents. In terms of the legal position of the parties, therefore, they swap places in a zero-sum game. There would be no point for the Legislature to specify terms if the adoption were nothing more than a mutually self-interested contract between two adults or couples.

But it is not. “The agreement is for the benefit of the child, not of the parents or persons making it.” (Estate of Grace (1948) 88 Cal.App.2d 956, 966 [ 200 P.2d 189 ]; see also Adoption of Barnett (1960) 54 Cal.2d 370, 377 [ 6 Cal.Rptr. 562 , 354 P.2d 18 ] [“ ‘The main purpose of adoption statutes is the promotion of the welfare of children’ ”].) We have explained how a complete transfer of duties and rights is necessary to prevent the confusing position of multiple lines of parental authority. We thus announced the general imperative (from which the Marshall court and then the Legislature carved exceptions) that “[f]rom the time of 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.” (Jobson, supra, 164 Cal. at p. 317 .)

This rule prevents the child from being burdened with a conflict between the birth parent(s) and adoptive parents(s). If the agreement were simply a *463 means for the birth and adopting parents to effect their private preferences, the law could authorize all permutations of divided rights and duties. The Legislature has concluded otherwise, insisting on an unambiguous transfer of authority unless the birth parent and adopting parent have formally joined together to forge a common future.

III. THE MAJORITY TRIVIALIZES FAMILY BONDS

The majority’s reliance on a mutual waiver imports the principles of the marketplace into the realm of home and family, which was once thought to represent a “haven in a heartless world” of self-interested interactions. (Lasch, Haven in a Heartless World (1977).) The family is the area where people act not in accordance with specifically contracted agreements but the duties of the heart. Parents are not simply self-interested utility maximizers. Raising a child is, like hope, a task of the spirit. It is so much more than an aggregation of services.

Parenthood instead is the opportunity and responsibility to join the web of human connectedness through which we touch the past, the present, and the future. The relationship of parent and child is the most fundamental bond humans share and the influence of family in determining what kind of people we become is profound. Society has a considerable stake in the health and stability of families, because it is upon the families—what Burke calls “the little platoon—that we rely [on] not only to nurture the young but to provide the seed beds of civic virtue required for citizenship in a self-governing community. [The family teaches us to] care for others, [and] to moderate . . . self-interest. . . .” (Berns, The First Amendment and the Future of American Democracy (1976) p. 222.) All tasks which will be hampered if the family is simply “a collection of individuals united temporarily for their mutual convenience and armed with rights against each other.” (Schneider, Moral Discourse and the Transformation of American Family Law (1985) 83 Mich. L.Rev. 1803, 1859.) The “arduous, long-term educational process [of raising a child] requires not a spirit of contractualist autonomy, but a spirit of adult commitment and . . . sacrifice.” (Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging (1991) 1991 BYU L.Rev. 1, 30.)

The majority, irretrievably committed to its the-more-parents-the-merrier view of parenthood, declines to interpret section 8617 to effectively preclude a child from having more than two parents; and at oral argument Annette’s counsel asserted no such limit should exist. Such a position is consistent with the stunted view of parenthood as purely ministerial and economic—signing consent slips and providing health insurance. But this is the least part of being a parent, as anyone who has ever seen a newborn resting securely in her father’s hand can understand; and anyone who has sat up late at night *464 awaiting the safe return of a newly minted teenage driver knows. The all-encompassing nature of parenthood renders eminently reasonable any legislative provision requiring that adopting parents share a common residence with each other and the adopted child. (See Fam. Code, § 297, subd. (b)(1).) Parenthood requires more than a telephone and a checkbook.

The United States Supreme Court has found parental authority constitutes a zero-sum game. (Michael H. v. Gerald D. (1989) 491 U.S. 110, 118 [ 105 L.Ed.2d 91 , 109 S.Ct. 2333 ].) Parental authority cannot not be divided because it goes beyond ministerial functions; the parent “ ‘direct[s] the child’s activities; . . . make[s] decisions regarding the control, education, and health of the child; . . . [and exercises] the duty, to prepare the child for additional obligations, which includes the teaching of moral standards, religious beliefs, and elements of good citizenship.’ ” (Id. at p. 119, quoting 4 Cal. Fam. Law (1987) § 60.-02[1][b], fns. omitted.) Devolving these responsibilities on a multitude of parties would lead to a variety of conflicts and inconsistencies, as Justice Baxter correctly notes. (See conc. & dis. opn. of Baxter, J., ante, at p. 453.)

The two-person limit is one point on which proponents of Proposition 22 and Assembly Bill No. 25 (2001-2002 Reg. Sess.) agree. The Legislature’s insistence that the adopting parent have a legal relationship with the birth parent reflects the fact that the adoptive parent’s relationship with the child does not exist in a vacuum but is related to the parents’ relationship with each other. Justice Thurgood Marshall wrote for a unanimous Supreme Court in holding it was proper to distinguish between formerly married and never-married fathers in granting only the former the right to veto an adoption by the mother’s new husband. (Quilloin v. Walcott (1978) 434 U.S. 246, 256 [ 54 L.Ed.2d 511 , 98 S.Ct. 549 ].) “[T]he State was not foreclosed from recognizing this difference in the extent of [the] commitment to the welfare of the child.” (Ibid.) This “commitment enables the courts, as well as those most personally involved, to make certain assumptions—even knowing they will at times be disappointed—about what to expect.” (Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy: Balancing the Individual and Social Interests (1983) 81 Mich. L.Rev. 463, 499.)

The law permits single individuals to adopt a child on their own because one parent is better than none. It does not follow, however, that two unrelated parents are better than one. The majority cites the legislative policy that “ ‘adoption or guardianship is more suitable to a child’s well-being than is foster care’ ” (maj. opn., ante, at p. 438, fn. 16, quoting Welf. & Inst. Code, § 396), as adoption is a more permanent relationship than foster care. However, if the birth parent has a relationship with a second parent, and then a third, and then a fourth, the child may be worse off than if the birth parent *465 had simply raised the child alone. The choice in second parent adoption cases is not between adoption and foster care. The birth parent in such circumstances is willing and able to continue expressing parental responsibility. If the two adults are uncertain whether the second parent will be a permanent resident of the household, the adoption ought to wait until they are ready for that commitment.

There is a long-standing tension within the law as to whether legal standards should reflect ideal behavior or simply the mean. 3 The majority, however, refuses to impose even a standard of the mean. Couples who raise children together do predominantly have a formal legal relationship with each other. It is not a standard that individuals cannot reach absent heroism, and every Californian adult has access to such a relationship. Today’s decision maximizes the self-interest and personal convenience of parents, but poorly serves the state’s children who deserve as much stability and security as legal process can provide.

Petitioner’s petition for a rehearing was denied October 22, 2003. Brown, J., did not participate therein. Baxter, J., and Chin, J., were of the opinion that the petition should be granted.

Hereafter, all statutory references are to the Family Code unless otherwise indicated.

Even assuming the Letter validly described the law, the contrary rule was thus in place in August 1999, when Sharon and Annette signed the adoption agreement for Joshua.

“ ‘All systems of ethics, no matter what their substantive content, can be divided into two main groups. There is the “heroic” ethic, which imposes on men demands of principle to which they are generally not able to do justice, except at the high points of their lives, but which serve as signposts pointing the way for man’s endless striving. Or there is the “ethic of the mean,” which is content to accept man’s everyday “nature” as setting a maximum for the demands which can be made.’ ” (Schneider, Moral Discourse and the Transformation of Family Law, supra, 83 Mich. L.Rev. at p. 1819, quoting letter from Max Weber to Edgar Jaffe (1907).)