Can a person legally adopt a child, becoming their third parent, if the child already has two legal parents?

The trial court erred in relying on section 7612, subdivision (c) to deny appellant's petition, finding she failed to meet her burden under that section. Section 7612, subdivision (c) does not apply to adoptions like the one at issue here, where an existing parent (or parents) consents to an adoption, but maintains their parental rights.^[2] These adoptions, are governed by section 8617.^[3]

"'The right to adopt a child, and the right of a person to be adopted as the child of another, are wholly statutory.' [Citation.] California's adoption statutes appear in division 13 of the Family Code, which is divided into three parts. Part 1 (§§ 8500-8548) provides definitions applicable throughout. Part 2 (§§ 8600-9206) addresses adoption of unmarried minors, and part 3 (§§ 9300-9340) adoption of adults and married minors. The part with which we are concerned, part 2, is in turn divided into several chapters. Chapter 1 (§ 8600 et seq.) contains general provisions. Subsequent chapters deal with agency adoptions (§ 8700 et seq.), independent adoptions (§ 8800 et seq.), intercountry

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adoptions (§ 8900 et seq.), and stepparent adoptions (§ 9000 et seq.)." (Sharon S., supra, 31 Cal.4th at pp. 424-425.)

Section 7612, subdivision (c) is not an adoption statute. It is part of the Uniform Parentage Act (UPA), which" 'provides a comprehensive scheme for judicial determination of paternity, and was intended to rationalize procedure, to eliminate constitutional infirmities in then existing state law, and to improve state systems of support enforcement.' [Citations.]" (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050.) Section 7612, subdivision (c) applies to claims of disputed parentage. It is in that context, not adoption, a court may find "that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child." (§ 7612, subd. (c), italics added; see Adoption of Michael H., supra, at p. 1050.)

Appellant did not, however, petition the trial court to establish parentage of E.B. under the UPA. Rather she filed a petition to adopt E.B. as a third parent.^[4] In petitioning to adopt E.B., appellant proceeded under the independent adoption provisions of the Family Code, not the UPA. Thus, it was error to evaluate her application under the burdens of section 7612, subdivision (c).

8617. Termination of parental duties and responsibilities of existing parents of adopted child

(a) Except as provided in subdivision (b), the existing parent or 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.

(b) The termination of the parental duties and responsibilities of the existing parent or parents under subdivision (a) may be waived if both the existing parent or parents and the prospective adoptive parent or parents sign a waiver at any time prior to the finalization of the adoption. The waiver shall be filed with the court.

(c) This section applies to all adoptions except intercountry adoptions governed by Chapter 4 (commencing with Section 8900).

As noted above, an existing parent or parents can retain their parental rights, while also agreeing to confer parental rights on another parent or parent(s). (§ 8617, subd. (b).) Section 8617, subdivision (b) provides that "termination of the parental duties and responsibilities of the existing parent or parents under subdivision (a) may be waived if both the existing parent or parents and the prospective adoptive parent or parents sign a waiver at any time prior to the finalization of the adoption. The waiver shall be filed with the court." (Ibid, italics added.)

If, as here, the existing parent(s) choose to proceed with the adoption, the parties must execute a document titled "Addendum to the Independent Adoption Placement

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Agreement (AD 924)." (See Sharon S., supra, 31 Cal.4th at p. 423.) The addendum is a document created by CDSS, which allows for an express indication that the existing parent(s) parental rights are to be retained. (Ibid.) Executing the addendum can, as it did here, result in an adoption where the child will have more than two legal parents. Such a result was contemplated by the Legislature.

Subdivision (b) was added to section 8617 in 2013, with the passage of Senate Bill No. 274 (2013-2014 Reg. Sess.).^[5] (Stats. 2013, ch. 564, § 7.) As recorded in the Assembly Judiciary Committee's June 17, 2013 report on Senate Bill No. 274, the addition of subdivision (b) to section 8617 was specifically intended to codify the holding in Sharon S., permitting the existing parent(s) to retain their parental rights while consenting to a child's adoption, "and appl[y] it to situations where the child may have more than two parents." (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended May 14, 2013, pp. 7-8.) To demonstrate its intent, the Legislature drafted subdivision (b) to include the phrase "parent or parents" to describe both the existing parent(s) and the prospective adoptive parent(s) in an independent adoption. In so doing, the Legislature authorized independent adoptions that result in a child having more than two parents.

Importantly, CDSS has previously applied section 8617, subdivision (b) to allow third parent adoptions, and their construction of adoption statutes is entitled to "substantial deference." (See Sharon S., supra, 31 Cal.4th at pp. 436-437.) As CDSS notes here, "throughout these proceedings and before, [CDSS has] construed section 8617, subdivision (b) to allow biological parents and a prospective adoptive parent to agree to an adoption that results in all three adults sharing coextensive parental rights." (Italics added.)

On remand, the trial court is to consider only the essential elements of every valid adoption, as noted by our Supreme Court: "[A] voluntary and informed parental consent to the adoption except where the parent has surrendered or has been judicially deprived of parental control (§§ 8604-8606); a suitable adoptive parent at least 10 years older than, or in a specified preexisting family relationship with, the child (see §§ 8601, 8717, 8801, 8811-8811.5); and a judicial determination that 'the interest of the child will be promoted by the adoption.' (§ 8612.)" (Sharon S., supra, 31 Cal.4th at p. 429.)

In considering those elements, it is worth noting the following facts appear to be undisputed: (1) the required paperwork has been submitted, and (2) J.O. and M.B. have given their informed, voluntary consent to appellant's adoption petition. Moreover, CDSS completed its investigation and concluded appellant is a suitable adoptive parent; that conclusion also has not been challenged.

The Legislature has made the policy judgment that it is in the best interests of California to permit a child to have more than two parents if the child's best interests are served by an adoption. The wisdom of the policy is supported by the Supreme Court in Sharon S., supra, 31 Cal.4th at pp. 425, 429. Whether the adopting parent is suitable and whether a particular child's best interests will be "promoted by the adoption" (§ 8612; Sharon S., supra, 31 Cal.4th at pp. 425, 429) is a judgment vested in the trial court, guided by the expertise and fact finding of CDSS. The "best interests of the child" is a familiar standard, as is the edict that CDSS's recommendation must be given "due weight" in considering a petition to adopt. We shall remand to permit the court to apply the standard within the proper statutory framework.

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DISPOSITION

The judgment of the trial court is reversed and the matter is remanded to allow the trial court to exercise its discretion under the authorities discussed in this opinion.

Annette argues that these statutes authorize the superior court to finalize her adoption of Joshua, because she has complied with the substantive and procedural prerequisites for an independent adoption. Sharon contends that the adoption is not authorized, because section 8617 mandates full termination of birth parental rights in every independent adoption.

Section 8617 provides: "The birth parents of an adopted child are, from the time

[2 Cal.Rptr.3d 706]

of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child." The section does not appear in the chapter devoted to independent adoptions (ch. 3, § 8800 et seq.), but is, rather, one of the general provisions appearing in chapter 1 of part 2 of division 13 of the Family Code.

"The 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; see also Adoption of Barnett (1960) 54 Cal.2d 370, 377, 6 Cal.Rptr. 562, 354 P.2d 18; Adoption of McDonald (1954) 43 Cal.2d 447, 459, 274 P.2d 860; In re Santos (1921) 185 Cal. 127, 130, 195 P. 1055.) Consistently with these principles, we previously have concluded that the Legislature did not intend section 8617's nearly identical precursor to bar an adoption when the parties clearly intended to waive the operation of that statute and agreed to preserve the birth parent's rights and responsibilities. (Marshall v. Marshall (1925) 196 Cal. 761, 767, 239 P. 36.) Nothing in section 8617's text, context, history, or function justifies departure in this case from "the established rule that rights conferred by statute may be waived unless specific statutory provisions prohibit waiver." (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1049, fn. 4, 68 Cal.Rptr.2d 758, 946 P.2d 427.)

With a few statutory exceptions not relevant here, a legal parent's valid consent is a jurisdictional prerequisite to an adoption, regardless of the child's interests. (See Matter of Cozza (1912) 163 Cal. 514, 523, 126 P. 161, disapproved on another ground in Adoption of Barnett, supra, 54 Cal.2d at p. 378, 6 Cal.Rptr. 562, 354 P.2d 18.) Where a parent's consent to adoption is obtained through fraud or duress, the consent "is not voluntary and the jurisdictional prerequisite to a valid adoption is lacking." (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 751, 278 Cal. Rptr. 907; see also In re Yoder (1926) 199 Cal. 699, 701, 251 P. 205 [order of adoption may be set aside for fraud, mistake, inadvertence, surprise, or excusable neglect].) Since the Court of Appeal agreed with Sharon's statutory argument, it had no occasion to address the superior court's implicit rejection of her contentions respecting fraud and undue influence. We shall remand the cause to permit the Court of Appeal to address this issue in the first instance. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 95, 124 Cal. Rptr.2d 530, 52 P.3d 703; Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 306, 48 Cal.Rptr.2d 510, 907 P.2d 358.)

Subject to the Court of Appeal's resolution of this remaining issue, the superior court on remand may validly exercise its discretion to order Annette's adoption of Joshua under the independent adoption

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statutes if it concludes that the administrative procedures, including a section 8617 waiver, duly established thereunder have been complied with and that all statutory prerequisites are satisfied. Sharon retains the right to oppose finalization of the adoption on the ground that new circumstances make it contrary to Joshua's interests. (See County of Los Angeles v. Superior Court (1969) 2 Cal.App.3d 1059, 1065-1066, 82 Cal.Rptr. 882.) We take no position on such outstanding factual questions, and nothing in this opinion should be taken by the court below on remand to indicate a view as to whether adoption is in Joshua's interests.

If, however, a parent or parents consent to a child's adoption through independent 6 or stepparent adoption proceedings, the outcome with respect to the duty to support may be different. In these circumstances the court can enter an order of adoption of the child by the prospective parent or parents if it is satisfied that “the interest of the child will be promoted by the adoption.” (§ 8612, subd. (c).) From the time of the adoption, the birth parents ordinarily are “relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.” (§ 8617.) Nonetheless a birth parent may waive section 8617 in order to preserve his or her legal relation with the child and coparent the child with the adoptive parent, as in the case of stepparent and second parent adoptions. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 427, 434–435 [2 Cal. Rptr. 3d 699, 73 P.3d 554].)

Turning to the merits, the asserted legal impediment is Family Code section 8603. It provides that, subject to exceptions not applicable here, "[a] married person, not lawfully separated from the person's spouse, shall not adopt a child without the consent of the spouse . . . ." (Id., subd. (a).) Mr. W. was not divorced, and it was not clear when he would be able to get divorced. However, he was legally separated from his wife. Hence, he did not need her consent, and Family Code section 8603 was not an impediment.

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The parents do not argue that two unmarried people cannot adopt jointly. Rather, they state, "There is no authority as to whether more than one person, other than a husband and wife or person currently or formerly in a domestic partnership or similar arrangements, are entitled to jointly adopt." They then argue that "[t]he [trial] court had a sua sponte duty to consider" this legal issue.

Actually, in California, two unmarried persons can adopt jointly. An existing parent and a prospective adoptive parents can agree that they will both continue to have parental rights after an adoption. (Fam. Code, § 8617, subd. (b).) Thus, our Supreme Court has held that a person can adopt, as second parent, the child of another person, even if they are not married. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 432.) Here, then, if Mr. W. adopted on Monday, Ms. D. could also adopt, with his consent, on Tuesday. We therefore see no barrier to them both adopting jointly on the same day.