Adoption of E.B. CA3 ( 2022 )

Filed 2/15/22 Adoption of E.B. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
Adoption of E.B., a Minor. C092765
M.B., (Super. Ct. No. 19AD00137)
Plaintiff and Appellant,
v.
DEPARTMENT OF SOCIAL SERVICES
ADOPTIONS SERVICES BUREAU,
Respondent.
This appeal arises from a petition to adopt E.B., a now two-year old child born to
his biological parents, J.O. and M.B. and raised by them and appellant.
J.O. and M.B. married in 2007 and for more than 15 years also have been in what
they describe as a committed, polyamorous relationship with appellant. In 2018,
appellant, J.O., and M.B. decided to have a child together. They agreed J.O. and M.B.
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would be the child’s biological parents, appellant would adopt the child, and J.O. and
M.B. would maintain their parental rights. Together, the three of them would share
equally in parenting rights and responsibilities.
After E.B. was born, appellant began adoption proceedings. Consistent with the
requirements for an independent adoption, California’s State Department of Social
Services (CDSS) conducted an investigation and concluded the adoption was in E.B.’s
best interest. Accordingly, CDSS recommended the uncontested adoption be granted.
Rejecting CDSS’s recommendation, the trial court denied appellant’s petition to
adopt E.B. Relying on Family Code section 7612,1 the trial court found appellant had not
yet fulfilled E.B.’s needs for a substantial period of time, and there was no likelihood that
E.B. would be taken from appellant, resulting in detriment to the child. Appellant moved
the court to vacate its order. The trial court denied that motion as well.
Appellant now appeals the trial court’s decision; CDSS joins in her appeal. Both
parties argue the trial court applied the incorrect law to appellant’s adoption petition and,
under the correct law, section 8617, the petition to adopt E.B. should have been granted.
We agree the trial court applied the incorrect law and remand the matter to allow the trial
court to exercise its discretion under the applicable statute.
BACKGROUND
Appellant, J.O., and M.B., have been in a committed, polyamorous relationship for
more than 15 years. In 2018 they decided to have, and raise, a child together. The three
of them planned the child’s conception and birth: J.O. and M.B. would be the child’s
biological parents, appellant would adopt the child after he was born, and together the
three chose the child’s name. Before E.B. was born, they executed an “Agreement to Co-
Parent,” formalizing their intention to be the child’s equal co-parents.
1 Undesignated statutory references are to the Family Code.
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In May 2019, J.O. gave birth to E.B. Appellant was there throughout the labor and
delivery process, and she was treated by medical staff as an equal parent. Following his
birth, however, E.B. suffered complications and was admitted to the neonatal intensive
care unit (NICU). M.B. and J.O were permitted to enter the NICU to be with E.B.
without question, appellant was not. E.B. was in the NICU for five days. The staff
eventually allowed appellant to join J.O. and M.B. and participate in discussions with
physicians regarding E.B.’s care.
In anticipation of E.B.’s birth, appellant (a university professor) opted out of
teaching courses during the summer and took a three-month maternity leave in the fall,
giving her six months to provide full-time care for E.B. During those six months,
appellant bottle-fed E.B. during the week, comforted him, engaged in age-appropriate
play activities, coordinated and took him to doctors’ appointments, and took him to
weekly swim lessons and library story time events. When appellant returned to work in
January 2020, she went back only part time to allow her more time to care for E.B.
When the pandemic began, appellant, J.O., and M.B. all began working from home and
continued to share equally in parenting E.B.
Like he does with J.O. and M.B., E.B. seeks out appellant for comfort, he
complains to her when he is hungry, and giggles at her efforts to amuse him. E.B. brings
appellant books to read to him and points her to the door when he wants her to take him
outside or go for a walk. E.B. calls appellant “momma.” Appellant, J.O., and M.B.
jointly discuss and agree upon parenting decisions for E.B.
On June 15, 2019, appellant, J.O., and M.B. executed an “Independent Adoption
Placement Agreement,” agreeing to establish legal parentage for each person and
allowing them to co-parent E.B. The purpose of the agreement was to acknowledge their
commitment to share legal and financial responsibility for E.B. They agreed to cooperate
and consent to all legal procedures required to establish appellant as one of E.B.’s legal
parents.
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Approximately 30 days later, appellant filed a request for independent adoption to
adopt E.B. as his third parent. CDSS conducted the required investigation. CDSS
learned that appellant, J.O., and M.B. were in a polyamorous relationship, and living in
the same home. The three adults “received joint physical custody of [E.B.] when [E.B.]
was discharged from the hospital.” CDSS visited the family and found E.B. well-
adjusted to the home and “developing satisfactorily.”
CDSS also found appellant, J.O., and M.B., “have the resources to be able to
provide a stable environment for a child. [Appellant, J.O., and M.B.] will share legal and
parental responsibilities of raising a child together.
“An appropriate parent-child relationship is well established. It appears to be in
the best interests of the child to have this adoption completed.” CDSS understood and
accepted that J.O. and M.B. would maintain their parental rights and share them with
appellant. On March 3, 2020, CDSS filed a report recommending the adoption as in
E.B.’s best interest.
Before hearing appellant’s petition, however, the trial court asked the parties to
submit briefs addressing “[t]he legal basis for this adoption, including any cases in which
courts have approved adoptions in similar circumstances, and an explanation as to how
any such cases apply here; and [¶] Facts and argument as to why this adoption will serve
public policy and the best interest of the child.”
On June 22, 2020, the court held a video hearing on appellant’s petition to adopt
E.B. A CDSS representative, along with family members, were available in the “waiting
room” but were not asked to participate. The court did hear testimony from J.O. and
M.B., both of whom supported appellant’s petition. The court expressed doubt as to
whether the adoption could be granted, heard argument from appellant’s counsel, and
took the matter under submission.
Approximately one week later, the trial court asked appellant to submit another
brief addressing “the factual and legal basis for concluding that this is one of the rare
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cases where ‘recognizing only two parents would be detrimental to the child.’
[Appellant] should address all relevant factors, including, but not limited to: (1) the
extent to which [appellant] has fulfilled the child’s physical needs and the child’s
psychological needs for care and affection; (2) whether [appellant] has done so for a
‘substantial period of time’; (3) whether there is a harm that the child will be removed
from [appellant]; and (4) if the harm articulated in response to #3 is no more than
speculative, the legal basis for concluding that adoption is appropriate at this time.”
Appellant’s counsel filed a brief addressing the court’s concerns and explaining in
detail why the adoption was legally appropriate. Counsel included declarations from
appellant, J.O., M.B., appellant’s brother, and E.B.’s biological grandparents. The
extended family enthusiastically supported appellant’s petition, recognizing that appellant
was an important part of E.B.’s life and was “thriving in [the] secure and loving
environment” created by appellant, J.O., and M.B.
There was no opposition to the adoption.
After hearing additional argument on July 13, 2020, the trial court denied
appellant’s petition. The court found appellant to be a “presumed parent” under section
7611, subdivision (d), but determined she failed to meet the elements of section 7612,
subdivision (c). Quoting In re Donovan L. (2016) 244 Cal.App.4th 1075, 1088, the trial
court found this was not one of the “ ‘rare cases’ where ‘recognizing only two parents
would be detrimental to the child.’ ”
Explaining its decision further, the trial court noted appellant had not fulfilled
E.B.’s physical and psychological needs for a substantial period of time because E.B. was
“just barely one year old.” The court also noted appellant had not shown “there is a harm
that the child will be removed from her,” because the biological parents supported
appellant’s ongoing relationship with the child. Any future harm, the court opined, was
speculative. Finally, the court offered that there were “various other remedies available
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to [appellant] to address her concerns,” including drafting a will reflecting the intent for
appellant to become E.B.’s guardian should something happen to J.O. and M.B.
Appellant filed a motion to vacate the court’s order. She argued the undisputed
evidence and law supported granting the adoption. Before her motion was heard, CDSS
filed an amended report with the trial court reiterating its recommendation that the
adoption be approved and explaining that the adoption was proper under section 8617,
subdivision (b): “In accordance with Family Code 8617 (b), [J.O. and M.B.] exercised
their right to waive their termination of parental duties and responsibilities of the child
when they signed the addendum to the Statement of Understanding (AD 926) and the
addendum to the Independent Adoption Placement Agreement (AD 924). It appears as if
[J.O. and M.B.] were properly advised in accordance with Family Code Section 8801.5 of
their rights in California by Betty Bleicher, LCSW, an Adoption Service Provider, as
defined in Family Code Section 8502(a).”
The court denied the motion to vacate. The court explained it was not required to
grant the adoption but had discretion to do so under section 7612, subdivision (c). The
court reiterated its finding that not enough time had passed in E.B.’s life to “to establish
the type of relationship that would make this one of the ‘rare cases’ where ‘recognizing
only two parents would be detrimental to the child.’ In re Donovan L., 244 Cal.App.4th
at 1088.”
The trial court also found it significant that E.B. had two other, active and
involved parents. The court believed “it would be more appropriate to allow some time
to pass until both [appellant] and the child can demonstrate the strength of the
relationship before making the permanent adoption decision, particularly since there is no
evidence of any risk that the child will be separated from [appellant] any time soon.”
The court went on to say appellant “need not wait for a crisis to occur before
seeking adoption. But there must at least be the prospect that a successful, established
custodial arrangement would be disrupted. Third-parent adoption was not designed as a
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mechanism to simply affirm or formalize what is already a strong relationship between
three presumed parents. Its purpose is to protect the child from harm in the event of a
conflict between the presumed parents.”
DISCUSSION
A. Law Governing Appellant’s Petition to Adopt E.B.
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
2 As discussed in Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 436
(Sharon S.) the term “limited consent adoption” is used by CDSS to refer to an adoption
in which a birth parent simultaneously retains parental rights and consents to an adoption.
3 The phrase “limited consent adoptions,” does not exist in the statute. CDSS,
however, uses the phrase to describe adoptions like the one at issue here. We understand
the phrase to mean the existing parent’s, or parents’, consent to the adoption is limited
only because they are not waiving their own parental rights. The adoptive parent (or
parents) however, will receive the full panoply of parental rights.
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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).
B. Independent Adoptions
State law provides various adoption procedures including agency adoptions,
intercounty adoptions, stepparent adoptions, and, as relevant here, independent adoptions.
(See Sharon S., supra, 31 Cal.4th at p. 425.) In an independent adoption, no state or local
agency takes custody of the child or joins in the adoption petition. (§ 8524.) Rather, the
existing parent(s) consent to the adoption and place their child directly with the adoptive
4 Notably, appellant used Judicial Council form ADOPT-200, a mandatory form, to
petition the court. Form ADOPT-200 does not mention section 7612, or any part of the
UPA. (§§ 7600-7730.)
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parent(s). (§ 8801; In re Michael R. (2006) 137 Cal.App.4th 126, 137.) In order to place
their child with the adoptive parent(s), the existing parent(s) must execute an independent
adoption placement agreement (the Placement Agreement), in which the existing
parent(s) agree either to terminate or retain their parental rights. (§ 8801.3.) If this
consent is not revoked within 30 days, the Placement Agreement becomes permanent and
irrevocable. (§ 8814.5, subd. (a)(1); Sharon S., supra, at p. 422.)
Once the Placement Agreement and an addendum are signed, “the prospective
adoptive parent may petition for adoption. [Citation.] The court clerk must give CDSS
notice of the petition [citation], and the petitioner must file a copy of the petition with
CDSS. [Citation.] [¶] Subsequently, it is incumbent on CDSS to ‘investigate the
proposed independent adoption’ [citation] and ‘ascertain whether the child is a proper
subject for adoption and whether the proposed home is suitable for the child.’
[Citations.] CDSS interviews the petitioner and the birth parents. [Citations.] Within
180 days after the petition is filed, CDSS must ‘submit to the court a full report of the
facts disclosed by its inquiry with a recommendation regarding the granting of the
petition.’ [Citations.] A copy of CDSS’s report is given to the petitioner. [Citation.]
Although the report is not binding, the court is to accord due weight to CDSS’s expertise.
[Citation.]” (Sharon S., supra, 31 Cal.4th at p. 425.)
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.)
5 CDSS’s request for judicial notice, filed on June 24, 2021, which asks this court to
take judicial notice of the legislative history of Senate Bill No. 274, is hereby granted.
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C. Remand For Trial Court To Exercise Its Discretion
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.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
RENNER, J.
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