SHARON S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ANNETTE F., Real Party in Interest, 31 Cal. 4th 417

Opinion WERDEGAR, J. This dispute arises in independent adoption proceedings commenced by a birth mother, Sharon S. (Sharon), and her former domestic partner Annette F. (Annette) to effect Annette’s adoption of Joshua (now three and a half years old) who, like his older brother Zachary (now six years old and previously adopted by Annette), was conceived by artificial insemination of Sharon and born during the partnership.

The question presented is whether an independent adoption in which the birth parent does not agree to termination of her parental rights is legislatively authorized and, if so, whether the statutes are constitutional. The Court of Appeal granted a writ of mandamus directing the trial court to permit Sharon to withdraw her consent to, and to terminate, the adoption. For the following reasons, we reverse the judgment of the Court of Appeal and remand the cause for further proceedings.

BACKGROUND Sharon and Annette attended Harvard Business School together and were in a committed relationship from 1989 through mid-2000. In 1996, after being artificially inseminated with sperm from an anonymous donor, Sharon gave birth to Zachary. With Sharon’s consent and approval, Annette petitioned to adopt Zachary in a “second parent” adoption, using official forms and procedures that expressly provided that Sharon consented to Zachary’s adoption by Annette but intended to retain her own parental rights.

The trial court approved Annette’s adoption petition, and Annette has since been one of Zachary’s two parents. Three years later, in 1999, Sharon was inseminated again with sperm from the same anonymous donor and gave birth to Joshua. On August 30 of that year, Sharon signed an “Independent Adoption Placement Agreement” (Agreement), which begins: “Note to birth parent: This form will become a permanent and irrevocable consent to adoption.

Do not sign this form unless you want the adopting parents named below to adopt your child.” The Agreement goes on to recite Sharon’s “permanent and irrevocable consent to the adoption on the 91st day after I sign” the Agreement. The Agreement also recites that, upon the court’s approval of the Agreement, Sharon will “give up all rights of custody, services, and earnings” with respect to Joshua.

However, a written “Addendum to Independent Adoption Placement Agreement” (Addendum), a form developed by the California Department of Social Services (CDSS), was signed by Sharon and Annette on the same date as they signed the Agreement. The Addendum stated Sharon’s intent, as Joshua’s birth parent, to retain parental rights and control of Joshua while placing him with Annette for the purpose of independent adoption. These were essentially the same procedures and forms Sharon and Annette had used for Zachary’s adoption. Subsequently, Annette filed a petition to adopt Joshua as a second parent with Sharon.

The petition stated that Sharon, as “birth mother of the children [Zachary and Joshua,] consents to this adoption and will execute a limited written consent to the child’s [Joshua’s] adoption in the manner required by law.” The petition also stated that Sharon “intends to retain all her rights to custody and control as to said child.” In April 2000, the San Diego County Department of Health and Human Services (HHS), acting in its capacity as an agency licensed by CDSS under the Family Code to investigate and report upon proposed independent adoptions, recommended that the court grant Annette’s adoption petition.

Annette and Sharon’s relationship has been somewhat volatile. Apparently owing to continuing difficulties, Sharon repeatedly requested postponement of the hearing on Annette’s adoption petition. In August 2000, Sharon asked Annette to move out of the family residence, which Annette did. Each retained new counsel. In mediation, the parties agreed on a temporary visitation

schedule affording Annette time with both boys, but they could not reach an agreement respecting permanent custody or visitation. On October 23, 2000, Annette filed a motion for an order of adoption respecting Joshua, contending, inter aha, that Sharon’s consent had become irrevocable pursuant to

section 8814.5 and that the adoption was in Joshua’s best interest. After a family court mediator recommended that Sharon and Annette share custody and that Annette have specified visitation, Sharon moved for court approval to withdraw her consent to the adoption. She contended there was no legal basis for the adoption, that her consent had been obtained by fraud or duress, and that withdrawal of her consent was in Joshua’s best interest.

HHS subsequently filed a supplemental report with the court, noting that Sharon had moved to withdraw her consent but had not done so within the statutorily specified period for revocation. HHS further reported that Annette had shared in Joshua’s medical expenses and in the planning and handling of his daily care since birth, that Annette had a close and loving relationship with Joshua as his second parent, and that Annette’s relationship with Joshua was similar to her relationship with Zachary.

Finding that adoption continued to be in Joshua’s best interest, HHS again recommended that Annette’s petition to adopt Joshua be granted. In late November 2000, the court ordered interim visitation, encouraged the parties to try to agree on an ongoing visitation schedule, and appointed counsel for Joshua. Shortly thereafter, Sharon obtained a domestic violence restraining order against Annette and moved to dismiss the adoption petition. She argued, again, that the adoption was unauthorized by statute and also that Annette lacked standing to adopt Joshua.

Joshua’s counsel also moved to dismiss the adoption petition, on the ground that Sharon and Annette’s original counsel had not complied with her statutory obligations as an attorney representing both the birth and prospective adoptive parents in an independent adoption. (See § 8800.) The court denied both dismissal motions. Although it did not separately discuss Sharon’s request for permission to withdraw consent, the court noted that Sharon had not attempted to withdraw her consent within the time required by law and that resolution of the adoption petition was likely to be based on Joshua’s best interest.

Thereupon, Sharon filed a petition for a writ of mandate, joined in by counsel for Joshua, challenging the denial of her motion to dismiss. In a divided opinion, the court, citing

section 8617, held that, except for stepparent adoptions, an adoption where a consenting parent does not relinquish all parental rights has no statutory basis. We granted Annette’s petition for review. DISCUSSION I.

Section 8617 “The right to adopt a child, and the right of a person to be adopted as the child of another, are wholly statutory.” (Estate of Sharon (1918) 179 Cal. 447, 454 [177 P. 283].) 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 adoptions (§ 8900 et seq.), and stepparent adoptions (§ 9000 et seq.). As noted, in petitioning to adopt Joshua, Annette has proceeded under the independent adoption provisions. Pursuant to the current statutory scheme, birth parents can consent to an independent adoption by entering into an adoption placement agreement with a prospective adoptive parent. (Fam. Code, § 8801.3; see also Cal.

Code Regs., tit. 22, § 35108, subd. (b).) The birth parents have 30 days in which to revoke this consent. (Fam. Code, § 8814.5, subd. (a)(1).) If they fail to do so, their consent becomes permanent and irrevocable. (§§ 8801.3, subd. (c)(2), 8814.5, subds. (a)(1), (3), (b), 8815, subd. (a).) Once the adoption placement agreement has been signed, the prospective adoptive parent may petition for adoption. (§ 8802, subd. (a)(1)(C).) The court clerk must give CDSS notice of the petition (id., subd. (a)(2)), and the petitioner must file a copy of the petition with CDSS (§ 8808).

Subsequently, it is incumbent on CDSS to “investigate the proposed independent adoption” (§ 8807, subd. (a)) and “ascertain whether the child is a proper subject for adoption and whether the proposed home is suitable for the child.” (Fam. Code, § 8806; see also Cal. Code Regs., tit. 22, §§ 35079, subd. (b), 35081, 35083, 35087, 35089, 35093.) CDSS interviews the petitioner and the birth parents. (Fam. Code, § 8808; see also Cal.

Code Regs., tit. 22, § 35083.) 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. ” (Fam. Code, § 8807, subd. (a); see also Cal. Code Regs., tit. 22, §§ 35091, 35123, subd. (a).) A copy of CDSS’s report is given to the petitioner. (Fam. Code, § 8821.) Although the report is not binding, the court is to accord due weight to CDSS’s expertise. (San Diego County Dept. of Pub. Welfare v.

Superior Court (1972) 7 Cal.3d 1, 16 [101 Cal.Rptr. 541, 496 P.2d 453].) Assuming other statutory prerequisites are met, if the court is “satisfied that the interest of the child will be promoted by the adoption, the court may make and enter an order of adoption of the child by the prospective adoptive parent or parents.” (§ 8612, subd. (c).) 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 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].) A. Waiver of Statutory Rights In Bickel v.

City of Piedmont, supra, 16 Cal.4th 1040 (Bickel), we held that a party benefited by a statutory provision may waive that benefit if the statute does not prohibit waiver (id. at p. 1049, fn. 4), the statute’s “public benefit ... is merely incidental to [its] primary purpose” (id. at p. 1049), and “waiver does not seriously compromise any public purpose that [the statute was] intended to serve” (id. at p. 1050). (See also Civ. Code, § 3513 [anyone “may waive the advantage of a law intended solely for his benefit”].) The principles underlying Bickel are well established.

As we have recognized for over a century, the law “will not compel a man to insist upon any benefit or advantage secured to him individually.” (Knarston v. Manhattan Life Ins. Co. (1903) 140 Cal. 57, 63 [73 P. 740].) Accordingly, a party may waive compliance with statutory conditions intended for his or her benefit, so long as the Legislature has not made those conditions mandatory. (Murdock v. Brooks (1869) 38 Cal. 596, 602; see also Wells, Fargo & Co. v.

Enright (1900) 127 Cal. 669, 674 [60 P. 439].) Applying these established principles “to determine whether in this case [section 8617] bars application of the waiver doctrine, we must ascertain (1) whether [the statute’s provisions] are for the benefit of [the parties to an adoption petition] or are instead for a public purpose, and (2) whether there is any language in [the statute] prohibiting a waiver.” (Bickel, supra, 16 Cal.4th at pp. 1048-1049.) Addressing the latter point first, we immediately observe that

section 8617 contains no language prohibiting the parties to an independent adoption from agreeing to waive its provisions. Rather,

section 8617 contains a single sentence: “The 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.” Nor need we move beyond the statute’s plain language in order to discern its primary purpose. By its terms,

section 8617 exists to “relieve[]” birth parents of “duties towards and all responsibility for, the adopted child” and to assure adoptive parents of exclusive parental control by ending birth parents’ “right over the child” from “the time of the adoption.”

Section 8617 thus affords all the parties to the ordinary adoption an incentive for concluding it. But nothing therein, or in any other statutory provision, prohibits the parties to an independent adoption from waiving the benefits of

section 8617 when a birth parent intends and desires to coparent with another adult who has agreed to adopt the child and share parental responsibilities. Since

section 8617’s provisions are for the benefit of the parties to an adoption petition and the

section contains no language prohibiting a waiver (Bickel, supra, 16 Cal.4th at pp. 1048-1049), we conclude that

section 8617 declares a legal consequence of the usual adoption, waivable by the parties thereto, rather than a mandatory prerequisite to every valid adoption. (Bickel, supra, at p. 1048.) Such a conclusion accords with our previous pronouncements respecting the essential elements of an adoption. 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.” (In re Johnson (1893) 98 Cal. 531, 536 [33 P. 460].) In Johnson, for example, we held that Civil Code former

section 227’s provision for “the examination of a child under the age of consent” by the judge before the child is adopted “should not be deemed indispensable to the validity of the adoption proceeding.” (In re Johnson, supra, at p. 539.) In so holding, we noted “it is necessary that there should be a substantial compliance with all of the essential requirements of the law under which the right [of adoption] is claimed; but, in determining what provisions of the law are essential and therefore mandatory, the statute is to receive a sensible construction, and its intention is to be ascertained, not from the literal meaning of any particular word or section, but from a consideration of the entire statute, its spirit and purpose.” (Id. at p. 536.) Of course, one “who claims that

an act of adoption has been accomplished must show that every essential requirement of the statute has been strictly complied with” (Estate of Sharon, supra, 179 Cal. at p. 454), but Sharon points to no California decision stating or even implying that termination of birth parental rights and responsibilities under

section 8617 is among these essential requirements. While California’s adoption statutes nowhere concisely define “adoption,” they do state the essential elements of a valid adoption. “[A]fter careful consideration of the question as to what requirements are essential, the conclusion was stated [in In re Johnson, supra, 98 Cal. 531] as follows: ‘The proceeding is essentially one of contract between the parties whose consent is required.

It is a contract of a very solemn nature, and for this reason the law has wisely thrown around its creation certain safeguards, by requiring, not only that it shall be entered into in the presence of a judge, but also that it shall receive his sanction, which is not to be given until he has satisfied himself of these three things: 1. That the person adopting is ten years older than the child. 2. That all the parties whose consent is required do consent, fully and freely, to the making of such contract. 3.

That the adoption contemplated by the contract will be for the best interest of the child adopted.’ These requirements are there held to be jurisdictional.

Unless they coexist, the proceeding for adoption is insufficient, the attempted contract is invalid, the judge is without power to approve it, and there is no lawful adoption.” (Estate of Sharon, supra, 179 Cal. at p. 454, citing several cases.) Thus, in current statutory terms, the essential elements of every valid adoption are: 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).

When these essential elements are present, “the objective of the adoption statutes to protect the interests of both the natural or legal parent(

s) and the child through the consent and best interests requirements” is not frustrated when statutory provisions like

section 8617 are treated as nonmandatory. (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, 117, discussing Civ.

Code former § 229.) The Court of Appeal majority failed to recognize this distinction between essential elements and ordinary legal consequences, asserting that the “statutes governing independent adoptions require a relinquishment of parental rights” and “mandate that the parental rights of the birth parent be terminated.” In fact, the statutes contain no such mandates. “ ‘Independent Adoption’ means the adoption of a child in which neither the department nor an agency licensed by the department is a party to, or joins in, the adoption petition.” (§ 8524.) In addition to the essential elements of all adoptions set out above, the independent adoption statutes require parental consent after notice and advisement (§§ 8800, 8801.3, 8814, 8821), opportunities under specified conditions timely to revoke consent (§ 8814.5) or with court approval to withdraw it (§ 8815), selection of the adoptive parent or parents by the birth parent or parents personally (§ 8801), advice to the birth parent of his or her rights by an adoption service provider or licensed out-of-state agency (§ 8801.5), execution of an adoption placement agreement satisfying specified requirements on a form prescribed by CDSS (§ 8801.3), administrative investigation by CDSS or its delegate (§§ 8806-8811, 8817), an appropriate petition filed with the superior court, usually in the county in which the petitioner resides (§ 8802), and an appearance before the court by the prospective adoptive parents and the child (§§ 8612, 8613, 8823).

Nowhere does any mandate or requirement of relinquishment of a birth parent’s rights and responsibilities appear. Most people who place their children with unrelated adoptive parents presumably desire to be “relieved of all parental duties towards, and all responsibility for, the adopted child,” as

section 8617 declares, once the adoption is final. But, as noted,

section 8617 neither prohibits a birth parent and another qualified adult from jointly waiving application of the statute in order to coparent an adoptable child, nor prohibits a court under such circumstances from ordering an otherwise valid adoption. (See Bickel, supra, 16 Cal.4th at pp. 1048-1049.) B. Marshall Decades ago, we held that Civil Code former

section 229, the predecessor statute to Family Code

section 8617, was no bar to second parent adoption of a type—stepparent adoption—that was then not expressly provided for by statute. (Marshall v. Marshall, supra, 196 Cal. at p. 767 (Marshall).) We agree with the dissenting justice in the Court of Appeal that the considerations we treated as dispositive in Marshall, which did not include the marital status of the parties, are fully present in the instant case and lead to the same result. In Marshall, the second husband of a widowed mother adopted her two minor children.

When the couple later divorced, they agreed the stepfather would pay support for the two children, but that he would surrender his adoption of them and their mother would readopt them. On the mother’s petition and with the father’s consent, a decree was entered purporting to accomplish the mother’s readoption of her children. Thereafter, the superior court entered interlocutory and final orders for child support. (Marshall, supra, 196 Cal. at pp. 763-764.) One year later, the father moved to modify the orders by striking the provision for child support.

The superior court granted the motion on grounds that, by the time the orders issued, it had lacked jurisdiction to award the child support, because the mother’s readoption of the children had changed their status so that they were no longer the “children of the parties” to the divorce action. (Marshall, supra, 196 Cal. at p. 764.) We reversed, holding that the superior court had erred in its determination that the earlier child support orders were void as beyond the court’s jurisdiction. (Marshall, supra, 196 Cal. at p. 767.) In reaching our conclusion, we addressed the validity and effect of the prior proceeding where the mother had purported to adopt her own children.

Noting that the adoption statutes then, as now, did not contain a definition of the word “adoption” (id. at p. 765), we characterized that proceeding as one “by which the adopting parent assumes a parental relationship toward the child of another" (id. at p. 766). Reasoning that a “natural mother of a child could legally adopt such child only in a case wherein her parental relationship had theretofore been severed as a matter of law” (ibid.), we considered whether the stepfather’s prior adoption of the children had the effect of legally severing the mother’s parental rights and responsibilities.

As relevant here, we held it had not, “notwithstanding the provisions of [Family Code

section 8617’s predecessor] Civil Code, [former]

section 229, that ‘the parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it.’ ” (Marshall, supra, at p. 766.) In declining to construe

section 8617’s predecessor as having severed the mother’s parental rights to her children, we noted in Marshall that it was “plain from the record of the adoption proceedings,” including the terms of the mother’s consent and of the adoption order, that the parties “did not intend ... to sever the parental relationship between the mother and the children” when effecting the latter’s adoption by the mother’s new spouse. (Marshall, supra, 196 Cal. at p. 766.) Thus, we held in Marshall that “although no express authority therefor is to be found in the code, nevertheless a husband and wife may 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.” (Marshall, supra, 196 Cal. at p. 767, citing In re Williams (1894) 102 Cal. 70, 70-79 [36 P. 407].)

Section 8617’s predecessor was not, we held, “intended to apply to a situation such as this, and to effect a result so plainly opposite to that which was intended” by the parties. (Marshall, supra, at p. 767.) In Marshall, we thus effectively read second parent adoption into the statutory scheme, by approving a type of second parent adoption, stepparent adoption, which at that time the adoption statutes did not expressly authorize. (Marshall, supra, 196 Cal. at p. 767.) In so doing, we necessarily determined that relinquishment of the birth parent’s rights was not essential to adoption and that

section 8617’s predecessor was not mandatory. Contrary to the view of the Court of Appeal majority, our determination in Marshall that the stepfather’s adoption had not severed the mother’s parental rights was essential to our conclusion that the trial court had had jurisdiction to enter the child support orders at issue and had erred in setting them aside as void.

Our invalidation of the trial court’s order vacating the support orders was based on our conclusion that the mother’s purported readoption of her children had been “an utter nullity” (Marshall, supra, 196 Cal. at p. 767), as, therefore, was the parties’ effort thereby to sever the stepfather’s parental relationship (ibid.).

In order to reach that conclusion we had to determine whether or not the stepfather’s prior adoption of the two children had the effect of legally severing the mother’s parental relationship with them. (Id. at p. 766.) It is on the answer we gave—viz., that “notwithstanding the provisions of Civil Code,

section 229,” the stepfather’s prior adoption of the minors had not severed the mother’s parental rights (ibid.)—that Annette relies. In relying on Marshall’s pronouncement that Family Code

section 8617’s predecessor was not intended by the Legislature “to apply to a situation such as this, and to effect a result so plainly opposite to that which was intended” by the parties (Marshall, supra, at p. 767), Annette thus relies on part of our essential reasoning, not on dictum. (See generally Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].) Marshall is factually apposite as well. Just as Family Code

section 8617 is the clear successor to Civil Code former

section 229, the language and forms developed by CDSS and used in this case to effect and document Annette’s adoption of Joshua are comparable to those used by the parties in Marshall.

In Marshall, the stepfather’s petition for adoption recited that he was a fit person to be allowed “ ‘joint custody and control’ ” of the children along with the mother, and the petition prayed for a court order that the stepfather “ ‘shall jointly together with [the mother] be adjudged on such adoption as having the status of the natural father of said minors.’ ” (Marshall, supra, 196 Cal. at p. 766, italics omitted.) In consenting to the adoption, the children’s mother stated that their stepfather would adopt the “ ‘minors, my children, as his own natural children and ... in conjunction and jointly with me act, maintain and have the legal status of a father and . . . jointly with me maintain the relationship of a parent to said minors herein mentioned.’ ” (Id. at pp. 766-767, italics omitted.) Similarly, Sharon signed an adoption consent form stating her intention to retain coparental rights and responsibilities and permitting Annette to assume coparental rights and responsibilities.

Annette signed adoption forms clearly stating her intention to accept coparental rights and responsibilities for Joshua to be shared with Sharon. We conclude that, just as its predecessor was not intended by the Legislature “to effect a result so plainly opposite to that which was intended” by the parties in Marshall, supra, 196 Cal. at page 767,

section 8617 was not intended to bar Annette’s adoption of Joshua. Acknowledging that Marshall supports Annette’s claim, Justice Brown nevertheless chides us for “reading] contemporary norms into a 1925 decision” (conc. & dis. opn. of Brown, J., post, at p. 460; see also id. at p. 461). In a similar vein, Sharon takes the position that whatever the factual and legal parallels between Marshall and this case, Marshall “did not consider either unmarried adopting parents or same-sex adoptions” and therefore is “too factually and legally different to be relevant.” We disagree.

Although we mentioned in Marshall that the adoption involved was by a husband, we said nothing to suggest we regarded the presence of marriage as bearing on our implicit treatment of

section 8617’s predecessor as waivable and not mandatory. (See Marshall, supra, 196 Cal. at p. 767.) California’s adoption statutes have always permitted adoption without regard to the marital status of prospective adoptive parents.

Section 8600 provides that “[a]n unmarried minor may be adopted by an adult,” and an adult may adopt a child so long as he or she is “at least 10 years older than the child” (§ 8601, subd. (a)).

Section 8542 defines “prospective adoptive parent” as “a person who has filed or intends to file a petition ... to adopt a child who has been or who is to be placed in the person’s physical care . . . .” None of these statutes mentions marital status. Under these circumstances, no justification appears for treating

section 8617 differently in this case than we did its predecessor in Marshall. In the years since Marshall was decided, the Legislature has reorganized and reenacted the adoption statutes and amended them many times, inter alia, to acknowledge stepparent adoptions (§§ 9000-9007) and define them as “an adoption of a child by a stepparent where one birth parent retains custody and control of the child” (§ 8548). In doing so, the Legislature has neither repudiated Marshall nor expressly excepted stepparent adoptions from application of

section 8617. “ ‘There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.’ ” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [211 Cal.Rptr. 742, 696 P.2d 134].) That is because, “ ‘[w]hen the Legislature amends a statute without changing those portions . . . that have previously been construed by the courts, the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction.’ ” (People v.

Atkins (2001) 25 Cal.4th 76, 89-90 [104 Cal.Rptr.2d 738, 18 P.3d 660].) Moreover, when comprehensively reorganizing the adoption statutes in 1990, the Legislature replaced the version of

section 8617’s predecessor that we construed in Marshall, Civil Code former

section 229, with another version containing immaterial changes (Civ. Code, former § 221.76). In so doing, the Legislature expressly stated that it did not intend thereby “to lose legislative history or judicial precedent [including necessarily Marshall] applicable to statutory provisions replaced by this act.” (Civ. Code, former § 220.10, subd. (e); see generally Stats. 1990, ch. 1363, § 3, pp. 6055-6066.) Thus, for more than 75 years, the Legislature has acquiesced in Marshall’s treatment of

section 8617’s predecessor, implying that an adoption court may order an otherwise valid adoption in which the parties plainly have stated their intention to waive

section 8617’s benefits. We long have recognized that if the Legislature enacting a specific adoption provision did not intend compliance with that provision to be jurisdictional, “ ‘strict and literal adherence to the letter and form’ ” of that statute is not required to effect a valid adoption. (Estate of Johnson, supra, 98 Cal. at p. 539; see also Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 54 [87 Cal.Rptr.2d 569].) As noted,

section 8617 contains no mandate or requirement of termination. Rather, the statute simply describes how birth parents ordinarily are relieved of all parental rights and duties after an adoption. Because the Legislature presumptively was aware of Marshall’s treatment of Civil Code former

section 229 as waivable, its retention of parallel language in Family Code

section 8617 requires that we “construe the present provision ... in conformity with the established judicial

interpretation.” (Malcolm v.

Superior Court (1981) 29 Cal.3d 518, 528 [174 Cal.Rptr. 694, 629 P.2d 495].) On their face, moreover, the adoption statutes reveal the Legislature’s understanding that while ordinarily “[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” (§ 8617), adoptions based on modified application of that principle, wherein “one birth parent retains custody and control of the child” (§ 8548, referencing stepparent adoptions), may exist. (See also Nancy S. v.

Michele G. (1991) 228 Cal.App.3d 831, 841, fn. 8 [279 Cal.Rptr. 212] [judicially recognizing the same with respect to second parent adoptions].) Sharon acknowledges that for us to construe

section 8617 literally as a “general provision” mandating termination of all birth parents’ rights in every adoption would be contrary to the stepparent adoption provisions. But she contends that, nevertheless, “section 8617 must apply to all

Chapter 3 Independent Adoptions,” regardless of the parties’ intent. Certainly the stepparent adoption provisions contain no such suggestion. Those statutes neither expressly nor impliedly bar an independent adoption by a second parent that preserves the child’s legal relationship with one birth parent. In fact, the stepparent adoption provisions make no mention of independent adoption.

Contrary to Justice Brown’s assertions (see conc. & dis. opn. of Brown, J., post, at pp. 458, 461), that the Legislature, when defining stepparent adoption, noted that “one birth parent retains custody and control of the child” (§ 8548) neither logically nor historically implies an intent to confine to the stepparent context our implication in Marshall, supra, 196 Cal. 761, that a birth parent consenting to an adoption may waive termination of her parental rights.

The scant legislative history available suggests that the Legislature, when originally adopting that language, sought only to relieve CDSS’s predecessor of certain administrative burdens in adoptions that were being conducted by stepparents. Moreover, any suggestion that the statutory availability of stepparent adoption implies legislative disapproval of other kinds of second parent adoption is belied by the possibility of second parent adoptions being effected through agency procedures. (See § 8700 et seq.) C.

Administrative Construction and Practice Established administrative construction and practice to which we owe substantial deference buttress the aforestated legal arguments for reversal. While taking ultimate responsibility for the construction of a statute, we accord “great weight and respect to the administrative construction” thereof. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 [78 Cal.Rptr.2d 1, 960 P.2d 1031]; see also Styne v.

Stevens (2001) 26 Cal.4th 42, 53 [109 Cal.Rptr.2d 14, 26 P.3d 343] [administrator’s “interpretation of a statute he is charged with enforcing deserves substantial weight”].) CDSS has adopted the view that “[a] petition or an application for a limited consent or limited relinquishment adoption, in which a birth parent, or adoption parent, simultaneously retains parental rights and consents [to the adoption], agrees [to the adoption], or designates the adoptive parent of his or her child [to be] an unrelated adult, is to be reviewed on its merits pursuant to the California Family Code.” (CDSS, All County Letter No. 99-100 (Nov. 15, 1999); see ante, fn. 3.) Deference to administrative

interpretations always is “situational” and depends on “a complex of factors” (Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 12), but where the agency has special expertise and its decision is carefully considered by senior agency officials, that decision is entitled to correspondingly greater weight (id. at pp. 12-15). CDSS indisputably is familiar with the independent adoption provisions as well as with the entire scheme of the adoption law it enforces, and its

interpretation of

section 8617 comes from authoritative legal and policymaking levels of the agency. Accordingly, this is a case in which the administrative construction would appear to be entitled to great weight. In any event, as it is not clearly erroneous, we owe substantial deference to CDSS’s views of

section 8617 as waivable and of second parent adoptions as valid under the independent adoption laws. (Kelly v. Methodist Hospital of So. California (2001) 22 Cal.4th 1108, 1118 [95 Cal.Rptr.2d 514, 997 P.2d 1169].) D. Public Policy Several important considerations of public policy also buttress our conclusion. Precisely how many second parent adoptions have been granted in California over the years is difficult to know, partly because adoption proceedings are generally confidential (see § 9200 et seq.), but published materials suggest they number 10,000 to 20,000.

That the second parent adoption procedures promulgated by CDSS under the independent adoption statutes have received such widespread acceptance and have been so extensively used speaks not only to their utility in the modem context, but to their effectiveness in promoting the fundamental purposes that adoption has always served. 1. Fundamental purposes of adoption The basic purpose of an adoption is the “welfare, protection and betterment of the child,” and adoption courts ultimately must rule on that basis. (Reeves v.

Bailey (1975) 53 Cal.App.3d 1019, 1022-1023 [126 Cal.Rptr. 51].) While the child’s “best interest” is “an elusive guideline that belies rigid definition,” obviously overall “[i]ts purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704 [117 Cal.Rptr. 856].) That there are a variety of “costs” if a legal relationship with a second parent is not established— costs that can be both financial and emotional” is well recognized. (Doskow, The Second Parent Trap, supra, 20 J. Juv.

L. at p. 9.) Second parent adoption can secure the salutary incidents of legally recognized parentage for a child of a nonbiological parent who otherwise must remain a legal stranger. Second parent adoptions also benefit children by providing a clear legal framework for resolving any disputes that may arise over custody and visitation. Our explicitly recognizing their validity will prevent uncertainty, conflict, and protracted litigation in this area, all of which plainly are harmful to children caught in the middle.

Unmarried couples who have brought a child into the world with the expectation that they will raise it together, and who have jointly petitioned for adoption, should be on notice that, if they separate, the same rules concerning custody and visitation as apply to all other parents will apply to them.

In addition, second parent adoptions offer the possibility of obtaining the security and advantages of two parents for some of California’s neediest children, including many with “special needs” for whom a second parent adoption may constitute the “closest conceivable counterpart of the relationship of parent and child” available. (Adoption of Barnett, supra, 54 Cal.2d at p. 377.) The same is true as regards thousands of others in foster care for whom it is state policy to seek permanent adoptive placement.

We need not review here the nonlegal benefits of adoption for children, parents, and society as a whole, nor need we “assume, either as a policy or factual matter, that adoption is necessarily in a child’s best interest” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 845 [4 Cal.Rptr.2d 615, 823 P.2d 1216]) in every case.

We may observe, however, that neither the Court of Appeal nor any party or amici curiae has suggested that, where an adoption would be in a child’s best interests, second parent adoption differs categorically from other types of independent adoption in its ability to achieve adoption’s practical ends. Amicus curiae Proposition 22 Legal Defense and Education Fund suggests that to affirm the statutory permissibility of second parent adoption “would offend the State’s strong public interest in promoting marriage.” We disagree.

This case involves independent adoption, a procedure that is not limited to married persons. Unmarried persons always have been permitted to adopt children. (See 1 Ann. Civ. Code, § 221 (1st ed. 1872, Haymond & Burch, commrs. annotators [any adult may adopt any eligible child]; Fam. Code, § 8600 [same].) More generally, Justice Brown argues at some length that our decision today “trivializes family bonds.” (Conc. & dis. opn. of Brown, J., post, at p. 463; see generally id. at pp. 463-465.) To the contrary, our decision encourages and strengthens family bonds.

As Justice Scalia has noted, the “family unit accorded traditional respect in our society . .. includes the household of unmarried parents and their children.” (Michael H. v. Gerald D. (1989) 491 U.S. 110, 123, fn. 3 [105 L.Ed.2d 91, 109 S.Ct. 2333].) Justice Brown purports to discern a legislative “insistence that the adopting parent have a legal relationship with the birth parent” (conc. & dis. opn. of Brown, J., post, at p. 464), but she cites no authority for the existence of such a requirement, and we know of none.

Established legislative policy “ ‘bases parent and child rights on the existence of a parent and child relationship rather than on the marital status of the parents.’ ” (Johnson v.

Calvert (1993) 5 Cal.4th 84, 89 [19 Cal.Rptr.2d 494, 851 P.2d 776] [discussing Uniform Parentage Act]; see also § 7602 [“The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents”].) The Court of Appeal recited that “in 1997 and 1998, the Legislature considered, but did not adopt, a bill that would have provided that two unmarried adults may adopt a child,” thereby implying that the Legislature had considered and rejected the possibility of such adoptions. (See Assem. Bill No. 53 (1997-1998 Reg.

Sess.) §§ 1, 2 (hereafter Assembly Bill 53).) Not so. Although the Court of Appeal’s remark correctly describes Assembly Bill 53, a bill introduced in that session, it misleads to the extent it invites readers to assume the Legislature’s inaction on the bill reflected a rejection of its substance.

Assembly Bill 53 dealt with adoption by single persons, as well as by unmarried couples, and was promulgated to nullify a proposed CDSS regulation that the bill’s proponents perceived would inhibit both. (See Assembly Bill 53, § 1, subd. (c) [“Excluding potential adoptive parents on the basis of marital status is not in the best interests of the children who are eligible for adoption”].) The proposed regulation giving rise to Assembly Bill 53 would have barred agency recommendation of any adoption by an unmarried person or persons. (See Notice of Proposed Changes in Regulations of the California Department of Social Services (CDSS), Cal.

Reg. Notice Register 96, No. 29, p. 446 [proposing adoption of Cal. Code Regs., tit. 22, § 35124].) Promulgated in response, Assembly Bill 53 would have added to the Family Code a new

section explicitly restating what is already implicitly provided in sections 8600 and 8601, i.e., that any otherwise qualified single adult or two adults, married or not, may adopt a child. (See Assembly Bill 53, § 2.) After the proposed regulation was withdrawn, the responsive bill (i.e., Assembly Bill 53), which had passed the Assembly Committee on the Judiciary by a vote of 10-4, died in the inactive file. (Assem. Bill No. 53, Assem. Final Hist. (1997-1998 Reg.

Sess.).) Sharon argues that reversal of the Court of Appeal’s decision will permit CDSS to authorize unusual adoptions, e.g., involving multiple parties, far removed from those contemplated by the Legislature. Justice Baxter also expresses concern that our decision will lead to “new and even bizarre family structures” (conc. & dis. opn. of Baxter, J., post, at p. 451), while Justice Brown inexplicably refers to our supposed “irretrievable] committment] to . . . the-more-parents-the-merrier view of parenthood” (conc. & dis. opn. of Brown, J., post, at p. 463). Nonsense. While CDSS has for some time treated

section 8617 as waivable, such scenarios have not materialized. Our explicit recognition in this case of the legal ground for second parent adoptions—a nonmandatory construction of

section 8617 that comports with judicial precedent and ratifies administrative

interpretation and practice in which the Legislature has acquiesced—obviously cannot be taken as authority for multiple parent or other novel adoption scenarios. Nothing we say in this case can validate an adoption that is not in the child’s interest, omits any essential statutory element, or is in violation of a public policy the Legislature may express. CDSS’s construction honors the established principle that the beneficiary of a statute may waive it, is consistent both with judicial precedent and discernible legislative intent, and serves the best interests of California’s children. In sum, adherence to the Court of Appeal’s construction of

section 8617 as precluding second parent adoption would unnecessarily eliminate access to a duly promulgated, well-tested adoption process that has become “routine in California” (Eskridge & Hunter, Sexuality, Gender and the Law (1997) p. 866) and that is fully consistent with the main purpose of the adoption statutes to promote “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’ ” (Department of Social Welfare v. Superior Court, supra, 1 Cal.3d at p. 6). 2.

Settled familial expectations The Court of Appeal’s implication that California courts lack jurisdiction to grant second parent adoptions potentially called into question the legitimacy of existing families heretofore created in this state through established administrative and judicial procedures. Such families are of many types. Although second parent adoptions may involve children conceived, as in this case, by artificial insemination, others involve children placed directly by their birth parents or private agencies with two unmarried adoptive parents. (See generally 1 Hollinger, Adoption Law and Practice

(2002) Placing Children for Adoption, §§ 3.01-3.02, pp. 3-3 through 3-18.) Others involve dependent children, often with special needs because of prior abuse or neglect, who were placed by public agencies with an unmarried “fostadopt” parent whose partner later became a second adoptive parent. Still others are “kinship” adoptions, in which a grandparent or other relative became a second legal parent of a child whose very young mother was unable to raise the child on her own.

Such adoptions also have involved children born in other countries and adopted either in their country of origin or in California by an unmarried adult whose partner later became a second adoptive parent. (1 Hollinger, Adoption Law and Practice, supra, §§ 3.01-3.02, pp. 3-3 through 3-18.) Established practice in California thus has created settled expectations among many different types of adoptive families. Affirmance would unnecessarily risk disturbing these.

Affirmance not only would cast a shadow of uncertainty over the legal relationships between thousands of children and their adoptive parents (contrary to the clearly stated intention of all interested parties), but potentially could prompt some adoptive parents to disclaim their established responsibilities.

Indeed, as the Court of Appeal dissenter noted, perpetuating the Court of Appeal opinion “would invite attempts to nullify completed second party adoptions in myriad species of litigation including support/custody/visitation disputes, inheritance contests and withdrawals of entitlements to previously available health and pension benefits, both governmental and private.

The ultimate financial and emotional losers will be children who are the intended beneficiaries of the adoption laws.” Sharon errs in asserting that, even if we were to affirm, persons who previously had completed a second parent adoption would have remedies such as compliance with the domestic partner registration provisions (§ 297 et seq.) if they wish to “ratify” the earlier proceeding. Domestic partner registration constitutes no such panacea.

With an exception for some seniors, California’s domestic partner registry is open only to same-sex couples, and not to heterosexuals. (§ 297, subd. (b)(6).) Registered domestic partners, moreover, must have a common residence (§ 297, subd. (b)(1)), thus excluding qualified adoptive parents who might live apart for reasons having no bearing on whether an adoption is in a particular child’s interest.

Similarly, blood relatives cannot register, and therefore cannot adopt, as domestic partners (id., subd. (b)(4)), even though many modern adoptions are kinship adoptions. (See 1 Hollinger, Adoption Law and Practice, supra, Placing Children for Adoption, §§ 3.01-3.02, pp. 3-3 through 3-18.) And families that have moved out of state, or where one adoptive parent has died, will not be able to seek ratification as domestic partners. Even for parents who are legally qualified to register as domestic partners, undertaking a “re-adoption” would pose financial hardship and painful legal uncertainty.

No parent should have to face these kinds of choices, and no child should be placed in this kind of needless jeopardy. Nothing on the face of the domestic partnership provisions, or in their history as revealed in the record, states or implies a legislative intent to forbid, repeal, or disapprove second parent adoption or CDSS’s forms and procedures facilitating such. Thus, contrary to Justice Brown’s assertion, the Legislature’s conferring on domestic partners “the right ... 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, italics added), far from “confirm[ing] its understanding” that second parent adoption was not available (conc. & dis. opn. of Brown, J., post, at p. 459), simply streamlines the adoption process for a subset of those who already were accessing second parent procedures, much as occurred in 1931 when the Legislature streamlined stepparent adoption itself. (See ante, fn. 10.) Domestic partner registration does not broadly secure for California’s children the benefits of the availability of second parent adoption, nor does it eliminate the uncertainty the Court of Appeal’s decision created for existing second parent adoptees and their parents.

II. Constitutional Considerations Sharon, in opposing review, specified two additional questions: whether Annette’s adoption of Joshua would violate the constitutional doctrine of separation of powers and whether the adoption would violate Sharon’s due process rights under the Fourteenth Amendment to the United States Constitution. A. Separation of Powers In promulgating forms and procedures to facilitate second parent adoptions, Sharon asserts, CDSS—an agency of the executive branch of our state government—is improperly engaging in the equivalent of legislation.

She cites three Court of Appeal cases discussing child visitation, apparently for the proposition that courts should leave innovation in adoption policy to the Legislature. (See West v. Superior Court (Lockrem) (1997) 59 Cal.App.4th 302 [69 Cal.Rptr.2d 160] (West); Nancy S. v. Michele G., supra, 228 Cal.App.3d 831 (Nancy S.); Curiale v. Reagan (1990) 222 Cal.App.3d 1597 [272 Cal.Rptr. 520] (Curiale).) With that proposition generally, we do not disagree. But, as discussed, second parent adoption is the status quo in California, not an innovation. The cases Sharon cites are not apposite.

They all address the jurisdiction of California courts to award visitation to a “de facto” parent; none addresses the validity of an adoption. Annette is not seeking custody of Joshua on the basis of her .past relationship as caregiver to him, nor on any other equitable theory. Rather, she seeks finalization of an independent adoption, with at least partial custody as one of its incidents. In passing on the validity of these adoption proceedings, we have no occasion to address de facto parenthood.

In any event, in suggesting that de facto parenthood involves policy questions best left to the Legislature (see West, supra, 59 Cal.App.4th at p. 307; Nancy S., supra, 228 Cal.App.3d at p. 841; Curiale, supra, 222 Cal.App.3d at pp. 1600-1601), the courts in the cases Sharon cites did not hold that any judicial action in this area would be unconstitutional.

And to the extent each relied partly on a de facto parent’s failure to adopt the child involved, they impliedly recognized the viability of second parent adoption under existing statutes. (See West, supra, at p. 304; Nancy S., supra, at p. 841; Curiale, supra, at p. 1599; see also In re Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 527 [84 Cal.Rptr.2d 48].) The Court of Appeal in Nancy S., citing our Marshall decision for support, expressly found “nothing in these provisions that would preclude a child from being jointly adopted by someone of the same sex as the natural parent.” (Nancy S., supra, at p. 841, fn. 8.) Sharon concedes the Legislature authorized CDSS to promulgate for use in the independent adoption process a form adoption placement agreement (§ 8801.3, subd. (b)) that includes a consent to the adoption (id., subd. (c)(5)), but urges that CDSS “has no power by regulation or otherwise to add to or detract from the rules for adoption prescribed in the Civil [now Family] Code” (Adoption of McDonald, supra, 43 Cal.2d at p. 461).

As we have explained at length, however, in interpreting the independent adoption statutes to permit parental consent to a second parent adoption where the procedural prerequisites thereto and the essential elements of a valid adoption are satisfied, CDSS does not “add to or detract from” those statutes but, rather, construes them reasonably. B. Due Process Sharon in her brief on the merits expressly refrains from arguing that Annette’s adoption of Joshua would violate her due process rights, but in opposing review she suggested this case presents that question. She cited in support Troxel v.

Granville (2000) 530 U.S. 57, 75 [147 L.Ed.2d 49, 120 S.Ct. 2054] (Troxel), wherein a plurality of the high court held that a Washington State statute providing that any person may at any time petition for visitation of an unrelated child, and that the court may order such visitation when it is in the child’s best interest, violated the birth mother’s substantive due process rights. Troxel is readily distinguishable.

Most fundamentally, Troxel was a visitation case, whereas this case involves an adoption, and in California the statutes and procedures governing adoption are different from those governing visitation. (Compare generally §§ 3100-3103 with §§ 8600-9206.) The Washington statute at issue in Troxel provided specifically that “[a]ny person may petition the court for visitation rights at any time” and that courts may award visitation whenever “visitation may serve the best interest of the child” (Wash. Rev. Code, § 26.10.160(3), italics added).

Calling this language “breathtakingly broad,” the high court noted it “effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” (Troxel, supra, 530 U.S. at p. 67, 120 S.Ct. 2054.) California law provides for no such freestanding visitation proceeding. Nor is Annette just “any person” (Wash. Rev. Code, § 26.10.160(3)); she is a prospective adoptive mother.

The statute at issue in Troxel did not require parental consent (or a finding of parental unfitness), and it was that fact, primarily, that led to its invalidation. (See Troxel, supra, 530 U.S. at pp. 67-70.) While Sharon now wishes to terminate these proceedings, she does not deny that she originally joined Annette in invoking the superior court’s adoption jurisdiction (§ 200) or that she failed to revoke her consent within the prescribed statutory period (§ 8814.5, subd. (b)). In short, Troxel neither involved nor discussed adoption.

Nor, as discussed, are the California adoption statutes subject to the constitutional criticisms the high court leveled there against Washington’s visitation statute. For the foregoing reasons, we conclude that neither due process nor the doctrine of separation of powers constitutes a bar to Annette’s adoption of Joshua. Consequently,

section 8617 does not prevent the superior court from proceeding to a best interests analysis of Annette’s petition. (§ 8612.) III. Fraud and Duress As noted at the outset of this opinion, in requesting approval to withdraw her consent to the adoption, Sharon, in addition to the statutory and constitutional objections reviewed above, argued to the trial court that she had signed the adoption consent form under fraud, undue influence, and duress and that the original adoption attorney representing her and Annette had failed to obtain a signed waiver regarding conflict of interest.

In her writ petition, Sharon reprised these arguments.

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 In re Adoption 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.) 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 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.

CONCLUSION For the foregoing reasons, we reverse the judgment of the Court of Appeal and remand the cause for further proceedings consistent with this opinion. George, C. J., Kennard, J., and Moreno, J., concurred. Independent adoptions (Fam. Code, § 8800 et seq.) are those in which no agency, state or private, joins in the adoption petition (id., § 8524), although the state does have a role in investigating, evaluating and commenting upon the petition. (See id., § 8807.) Further unlabeled

section references are to the Family Code. “The phrase ‘second-parent adoption’ refers to an independent adoption whereby a child bom to [or legally adopted by] one partner is adopted by his or her non-biological or non-legal second parent, with the consent of the legal parent, and without changing the latter’s rights and responsibilities.” (Doskow, The Second Parent Trap (1999) 20 J. Juv. L. 1, 5.) As a result of the adoption, the child has two legal parents who have equal legal status in terms of their relationship with the child.

CDSS forms and procedures for second parent adoptions have been developed over the past decade and presently are maintained in accordance with a policy announced by CDSS on November 15, 1999. (See CDSS, All County Letter No. 99-100 (Nov. 15, 1999) <http://www.dss.cahwnet.gov/getinfo/acl99/99-100.pdf> [as of Aug. 4, 2003].) As Joshua’s appellate counsel noted during oral argument, the function of a court-appointed attorney for the child in such proceedings as these is to represent the child’s interests. (See § 3150.) In 1999, when Annette petitioned to adopt Joshua,

section 8814.5 provided that a birth parent consenting to an adoption had 90 days to revoke consent or sign a waiver of the revocation right. Since then,

section 8814.5 has been amended to shorten the revocation period to 30 days. (See Stats. 2001, ch. 688, § 2.) In so holding, we do not decide, contrary to what our concurring and dissenting colleagues suggest (see conc. & dis. opn. of Baxter, J., post, at p. 453; conc. & dis. opn. of Brown, J., post, at p. 463), whether there exists an overriding legislative policy limiting a child to two parents. This case involves only a second parent adoption, so we have no occasion to address that point.

Justice Baxter errs, therefore, in asserting that our decision today frees a family court to assign at will “as many legal parents as the lone judge deems in the child’s best interest.” (Conc. & dis. opn. of Baxter, J., post, at p. 453; see also conc. & dis. opn. of Brown, J., post, at p. 464.) While the Family Code contains in several sections language suggesting the Legislature may harbor a two-parent policy (see, e.g., §§ 3003, 3011, 3161, 3624, 4071, 7572, 7822, 7840, 8604), those statutes are not in issue.

Section 8617, which is in issue, does not speak to parental numerosity, except incidentally to recognize, in its use of the plural “birth parents,” that a child ordinarily has two of these. Estate of Jobson (1912) 164 Cal. 312, 317-318 [128 P. 938], cited by our concurring and dissenting colleagues (see conc. & dis. opn. of Baxter, J., post, at p. 453; conc. & dis. opn. of Brown, J., post, at p. 458), does not compel a contrary conclusion.

Our passing remark in that intestacy case that “duties of a child cannot be owed to two fathers at one time” (Estate of Jobson, supra, at p. 317) was dictum uttered in the context of concluding that a birth father who “by virtue of the adoption proceeding [in that case], ceased to sustain the legal relation of father" could not thereafter inherit the adopted person’s estate (ibid.).

As Jobson involved an ordinary adoption in which “the natural relationship between the child and its parents by blood is superseded” (ibid.), we did not consider the contingency before us today—viz., two parties who voluntarily have waived the benefit of

section 8617 in order to effect a second parent adoption, where the natural parent’s relationship with the child is not superseded. Our holding that they may waive the statute does not contravene Jobson’s holding that an adopted person’s relationship with his birth parent, once legally severed, is not automatically “revived by the death of the foster parent” (Jobson, supra, at p. 317).

Consistently with this conclusion, CDSS, the administrative agency that oversees the county child welfare agencies that perform home studies in all adoption cases, has determined that unmarried couples who seek to adopt are to be evaluated on the same basis as married couples. (CDSS, All County Letter No. 99-100 (Nov. 15, 1999); see ante, fn. 3.) “Effective January 1, 1994, the Legislature repealed the Civil Code sections governing adoption and reenacted them as part of the new Family Code. (Stats. 1992, ch. 162, §§ 4, 10.) There is no substantive difference between the relevant sections of the Family Code and their predecessors in the Civil Code.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1049, fn. 1 [43 Cal.Rptr.2d 445, 898 P.2d 891].) Compare Statutes 1927,

chapter 691,

section 3, page 1197 (first modern revision of Civ. Code, former § 226 to require CDSS’s predecessor in every nonagency adoption to witness consents, verify allegations, and determine the adoptability of the child and the suitability of the home) with Statutes 1931,

chapter 1130,

section 3, page 2402 (amending Civ. Code, former § 226 to retain those requirements “except in the case of an adoption by a step-parent where one natural parent retains his or her custody of the child”). See also tenBroek, California’s Adoption Law and Programs (1955) 6 Hastings L.J. 261, 266 (relating that the former Department of Social Welfare requested the 1931 amendment because “almost all of the 425 stepparent petitions investigated in the two years 1928-1929 had been favorably recommended and that the time of its limited staff could be better spent on actual placement cases”).

After CDSS confirmed the possibility in a letter brief filed by the Attorney General, the Court of Appeal observed that the equivalent of a second parent adoption may be accomplished through an agency adoption in which the birth parent relinquishes her or his rights to the custody and control of the child to the adoption agency or adoption district office, but expressly designates the adoptive parents to be herself or himself and the prospective second parent.

We are not persuaded, as Justice Brown speculates, that the Legislature’s 1993 amendment of provisions for adoption of adults expressly to preserve rights and responsibilities of a birth parent when the birth parent’s spouse is adopting the birth parent’s child (§ 9306, subd. (b)), constitutes or recognizes a “statutory restriction on second parent adoptions” of children. (See conc. & dis. opn. of Brown, J., post, at p. 458.) Justice Brown opines on the basis of comments in a cursory legislative committee report that the 1993 amendment “served [the same] purpose” as is served by

section 8548, the statutory definition of stepparent adoption (conc. & dis. opn. of Brown, J., post, at p. 459), but she nowhere demonstrates that

section 8548 either constitutes or recognizes, as we have concluded it does not, a statutory restriction on second parent adoptions.

Our concurring and dissenting colleagues correctly observe that CDSS practice prior to November 15, 1999, included periods both of opposing and of not opposing adoptions by unmarried couples, generally. (See conc. & dis. opn. of Baxter, J., post, at pp. 448-450; conc. & dis. opn. of Brown, J., post, at p. 459.) As Justice Brown also correctly points out, CDSS itself ultimately recognized that any former policy of categorical opposition was “an underground regulation inconsistent with the Administrative Procedure Act [(APA)]” (CDSS, All County Letter No. 99-100 (Nov. 15, 1999)), such as we have recognized is “void for failure to comply with the APA” (Tidewater Marine Western, Inc. v.

Bradshaw (1996) 14 Cal.4th 557, 576 [59 Cal.Rptr.2d 186, 927 P.2d 296]).

We know of no authority for Justice Brown’s apparent implication (see conc. & dis. opn. of Brown, J., post, at p. 459) that CDSS, before acknowledging the invalidity of such an underground regulation and returning to “case-by-case” consideration of second parent adoption petitions “on [their] merits pursuant to the California Family Code” (CDSS, All County Letter No. 99-100 (Nov. 15, 1999), was required to comply with APA notice and comment procedures for the promulgation of regulations. (See Tidewater Marine Western, Inc., supra, at pp. 574-575 [noting a regulation will “apply generally” and “predicts how the agency will decide future cases”].) See, e.g., Pizer, What About the Children? (Nov. 9, 2001) The Advocate, p. 1 <http://www.advocate.com/html/stories/850/850_lambda_pizer.asp> (as of Aug. 4, 2003) (“Between 10,000 and 20,000 California families have been made secure and reassured through this process, just like families in nearly two dozen other states across the country”); Tuller, Now You’re a Parent, Now You Aren’t (Nov. 28, 2001) Salon.com, p. 1 <http://archive.salon.com/mwt/feature/2001/ll/28/illegal_adoption/index.html> (as of Aug. 4, 2003) (estimating the Court of Appeal decision in this case placed “10,000 to 15,000 previously completed” second parent adoptions in doubt); Curtis, Analysis: Gay Adoptions Get Boost from New California Law, Support from Pediatricians (Apr. 2, 2002) Christian Times on the Web, p. 1 <http://www.christiantimes.com/Articles/Aiticles20Apr02/Art_Apr02_10.html> (as of Aug. 4, 2003) (citing the Court of Appeal decision in this case as “throwing the legitimacy of more than 10,000 adoptions statewide into question”).

See generally Adoption of Michael H., supra, 10 Cal.4th at page 1072 (conc. & dis. opn. of Kennard, J.). It is “the policy of the Legislature that . . . children have a right to a normal home life free from abuse, that reunification with the natural parent or parents or another alternate permanent living situation such as adoption or guardianship is more suitable to a child’s well-being than is foster care, that this state has a responsibility to attempt to ensure that children are given the chance to have happy and healthy lives . . . .” (Welf. & Inst. Code, § 396; see generally Fam.

Code, § 8730 et seq. [adoptions by foster parents or relative caregivers].) In 1996, there were 97,000 children living in foster care in California, but only about 6,000 adoptions. Approximately one-fourth of adoptions from foster homes by foster parents were by unmarried adults. (Editorial, Wrongheaded Adoption Rule, Fresno Bee (Oct. 12, 1996) p.

B6.) Justice Brown states she would find “reasonable any legislative provision requiring that adopting parents share a common residence” (conc. & dis. opn. of Brown, J., post, at p. 464, citing § 297, subd. (b)(1) [common residence requirement for domestic partner registration]), but she does not claim the adoption statutes contain any such across-the-board requirement. Nor does Justice Brown explain what bearing her remark might have on the legality or utility of second parent adoption.

She does not demonstrate that living apart is a greater phenomenon among couples who utilize second parent adoption procedures than it is among couples who utilize other procedures or, indeed, among parents generally. Annette and Sharon each have submitted a request for judicial notice of legislative history materials generally available from published sources. We deny both requests as unnecessary. (Quelimane Co. v.

Stewart Title Guaranty Co. (1988) 19 Cal.4th 26, 46, fn. 9 [77 Cal.Rptr.2d 709, 960 P.2d 513].) Such children otherwise would have only one parent, as in Cahfomia a mere sperm donor is not a legal parent. (§ 7613, subd. (b).) “Second parent adoptions may occur when a child’s heterosexual parents are unable or unwilling to marry and establish paternity or when the parents are lesbian or gay.” (Bryant, Second Parent Adoption: A Model Brief (1995) 2 Duke J. of Gender L. & Pol’y 233, 233, fn. omitted; see also Ellis, Bitterly Opposed Adoption Rule Died Quiet Death, L.A. Times (Nov. 29, 1998) p.

A1 [reporting that most unmarried couples who adopt are heterosexual]; see, e.g, Patt, Second Parent Adoption: When Crossing the Marital Barrier Is in a Child’s Best Interests, supra, 3 Berkeley Women’s L.J. at pp. 128-130, citing In re Adoption Petition of D.J.L. (Super. Ct. San Diego County, 1988, No. A-28,345) [second parent adoption granted to child’s mother and former stepfather after they divorced]; In re Adopting Parent (Super. Ct. Riverside County, 1985, No. A-10,169) [same].) California practice accords with the national trend.

As of 2001, at least 21 American jurisdictions had recognized second parent adoption. (Lilith, The G.I.F.T. of Two Biological and Legal Mothers (2001) 9 Am.U. J. Gender, Soc.

Pol’y & L. 214.) The highest state courts in Massachusetts, New York and Vermont expressly have permitted second parent adoption without requiring termination of the birth parent’s rights. (See Adoption of Tammy (Mass. 1993) 416 Mass. 205 [619 N.E.2d 315]; In re Jacob (1995) 86 N.Y.2d 651 [660 N.E.2d 397, 636 N.Y.S.2d 716]; Adoption of B.L.V.B. and E.L.V.B. (1993) 160 Vt. 368 [628 A.2d 1271].) The remainder have permitted second parent adoptions at intermediate appellate and lower court levels. Added by Statutes 1999,

chapter 588,

section 2; amended by Statutes 2001,

chapter 893,

section 3. Additionally, privacy concerns undermine the utility of domestic partner registration for some qualified adoptive parents who require confidentiality.

While records in adoption cases generally are confidential (§ 9200 et seq.), domestic partner registration requires a declaration that the couple shares “an intimate and committed relationship,” in a document generally subject to public disclosure. (§ 298.5; 84 Ops.Cal.Atty.Gen. 55 (2001).) Forcing established adoptive families to return to court to ratify their family ties would burden the justice system with re-addressing consensual arrangements that have already been administratively and judicially ratified.

Such duplication hardly would constitute the “prompt resolution of adoption proceedings” (Adoption of Kelsey S., supra, 1 Cal.4th at p. 851) on which we consistently have placed a priority. “The de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding.” (In re Kieshia E. (1993) 6 Cal.4th 68, 77 [23 Cal.Rptr.2d 775, 859 P.2d 1290].)