Opposition Brief — Sharon S. v. Superior Court of California

i Supreme Cour. US.

(2) FILED

JAN 2 8 2004

No. 03-1012

| OFFICE OF 1 HE CLERK |

Jn The

Supreme Court of the United States

-

SHARON S.,

Petitioner,

v.

ANNETTE F.,,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of

The State Of California

o

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

4

CHARLES A. BIRD

Counsel of Record

LUCE, FORWARD, HAMILTON & SCRIPPS LLP

600 West Broadway, Suite 2600

San Diego, California 92101-3372

619.236.1414

\ Attorney for Respondent, Annette F.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

To the Honorable Chief Justice William H. Rehnquist

and the Honorable Justices of the Supreme Court of the

United States:

Annette F. (“Annette”) respectfully submits the

following brief in opposition to the Petition for Writ of

Certiorari (“Petition” or “Petn.”) by Sharon S. (“Sharon”).

I. The Issue One Can See Is Not the Real Issue

The Petition leaves the reader wondering what, if any,

federal constitutional question Sharon presents. She

admits she consented in August 1999 to an adoption by

which Annette would become coparent of her son, Joshua.

Petn. at 4-7. She admits that more than a year later, she

attempted to withdraw her consent. Petn. at 8. She reveals

that the California trial court ruled her attempt to with-

draw consent was untimely as a matter of law. Petn. at 9.

She provides a copy of the statute — CAL. FAM. CODE

§ 8814.5(b) — that terminated her right to withdraw

consent 90 days after the August 1999 adoption placement

agreement. Appendix (“App.”) at 104-106. And yet she

frames her issue for review (Petn. at i) as if this case were

a successor to Troxel v. Gi ille, 530 U.S. 57 (2000), in

which the jurisdictional fact was the fit single parent’s

unwavering opposition to grandparental visitation. What

gives?

In California, adoptions are founded on the consent of

birth parents. Sharon S. v. Superior Court, 31 Cal.4th 417,

445 (2003). Sharon consented, and that fact was a key

reason why the California Supreme Court concluded that

Troxel did not apply to any of the arguments Sharon has

made before the current Petition. Id.

To give Sharon full credit, there is a potential federal

constitutional question in the Petition, but it lurks in the

last sentence of the paragraph below the quotation on

page 15. In that part of her argument, Sharon authors the

ipse dixit that CAL. FAM. CODE § 8814.5(b) “cannot be

employed to hold Sharon’s consent may not be revoked.”

Petn., p. 15 (inappropriate quotation marks omitted). Of

course it can. The potential federal constitutional question

in this case is whether States labor under a substantive

due process restriction on their power to fix a period in

which the birth parent’s consent is no longer revocable. No

amount of innuendo about same-sex relationships can

distinguish for due process analysis applying CAL. FAM.

CODE § 8814.5(b) here from applying any State’s consent

withdrawal period to any other adoption. To the contrary,

the deprivation of parental rights in most adoptions is

complete, but here Sharon consented to, and Annette seeks

only, sharing parental rights.

II. The Real Issue Is Not Here

Sharon’s primary problem in presenting to the United

States Supreme Court the only potential federal constitu-

tional question in this case is that she never submitted it

to any California court. Her citation to her papers in the

trial court (Petn. at 3) is wrong. Sharon argued that if

there was no statutory scheme under which her consent

was enforceable, due process prevented the State proceed-

ing without her contemporaneous consent. Vol. Three of

Exhs. in Support of Petn. for Writ of Mandate at 647. Her

citation to her appellate petition (Petn. at 3) is wrong.

Sharon again argued that if California statutes did not

authorize independent adoption with retention of birth

parent rights, due process precluded any other path to

adoption. Petn. for Writ of Mandate, pp. 44-45. Answering

Annette’s petition for review to the California Supreme

Court, Sharon again conditioned her constitutional argu-

ment on second-parent adoption “not being sanctioned in

California law. ..” Ans. to Petn. for Review at 25. Bluntly,

one can view this record with an imaging satellite, an

electron microscope, or anything in between, and never

find a hint of a constitutional attack on the 90-day limit

for revoking consent.

Not surprisingly, the California Supreme Court did

not discuss an argument Sharon did not articulate.

Sharon S., 31 Cal.4th at 444-45. It founded its discussion

on Sharon’s consent, without considering whether sub-

stantive due process restricted the State’s legislative

discretion to fix a period after which consent could not be

withdrawn. Thus, if the constitutional permissibility of the

90-day period has become law of the case, it is because

Sharon failed to articulate her position effectively and not

because the California Supreme Court rejected it explic-

itly.

Sharon’s failure to frame the issue earlier is no mere

technical error. First, she begs the question whether

States must afford birth parents a right to withdraw

consent at all. Second, had she taken her current position

earlier, children’s advocates would have arisen with a

single voice to denounce it. If a State allows withdrawal of

consent at all, fixing a definite termination of that right is

essential to the adoption process.

4

III. The Petition Presents No Worthy Issue

Most of Part 1.A of the Petition contends that the

California Supreme Court’s decision conflicts with every-

thing from Troxel to “virtually the entire history of sub-

stantive due precess jurisprudence from this Supreme

Court.” Petn. at 13-17. In contrast, the California Supreme

Court’s short discussion of substantive due process distin-

guished the limited and defective arguments Sharon

made. Sharon S., 31 Cal.4th at 444-45. Part 1.A of the

Petition concludes by complaining that the California

Supreme Court’s decision did not use CAL. FAM. CODE

§ 8617 to foreclose the possibility that a child could have

three legal parents. Petn. at 17. But there is no explana-

tion why parental numerosity is a federal constitutional

issue, or how it is presented on this record, or why not

foreclosing a result is the equivalent of authorizing it,

which the California Supreme Court explicitly disavowed.

Sharon S., 31 Cal.4th at 427 n. 6.

Part 1.B of the Petition argues that the California

Supreme Court’s decision conflicts with decisions of other

States. Petn. at 18. Her concession that those decisions

involve interpretations of state statutory law is fatal. Id.

Although the Petition prefaces its concession with “gener-

ally,” the fact is that the cited cases do not involve sub-

stantive due process.

Part 2 of the Petition anticipates that Annette will

argue the Petition is premature under 28 U.S.C. § 1257.

Petn. at 18-22. Sharon tries to shoehorn herself into the

fourth exception to that statute discussed in Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975). Petn. at 19-22.

The shoe does not fit. First, Sharon would have to show

“the federal issue has been finally decided in the state

courts....” Cox, 420 U.S. at 482. As demonstrated above,

the only potential federal issue has been finally decided

only if law of the case applies after Sharon’s failure to

articulate the issue effectively. Second, Sharon would have

to show that “a refusal immediately to review the state-

court decision might seriously erode federal policy.” Id. at

483. But she cannot find a federal policy unless her con-

sent to Joshua’s adoption is somehow vitiated, and since

the California Supreme Court’s decision does not allow

adoption without consent, requiring Sharon to try the

validity of her consent in the state courts does not erode

any federal policy. Thus, Part 2 of the Petition has proved

the Petition cannot survive scrutiny under 28 U.S.C.

§ 1257.

IV. Conclusion

For the reasons set forth in this Brief in Opposition,

Annette F. respectfully requests that the Petition for

Certiorari of Sharon S. be denied.

Respectfully submitted,

LUCE, FORWARD, HAMILTON &

SCRIPPS, LLP

CHARLES A. BIRD

Counsel of Record

Attorneys for Annette F-