State Appeals Court Voids Gay Adoption Procedure

A state appeals court here Friday struck down as illegal an administrative procedure commonly used by gays to adopt the children of their partners.

Gay rights activists and the American Civil Liberties Union immediately denounced the decision as imperiling the financial and emotional well-being of thousands of children who have been adopted this way in California. An appeal is planned.

“What this means is that there will be children who will lose health benefits, Social Security payments, inheritances, visitations with beloved parents and all the things that flow from adoption,” said Debbie Wald, an attorney for the National Center for Lesbian Rights.

In its decision in a case involving a dispute between two lesbians who had been a couple, the 4th District Court of Appeal said the procedure used for more than a decade to allow “second-parent” adoptions in same-sex families was illegal.

But the court, in a 2-1 decision, also noted that the state’s new Domestic Partners Law provides a method for such adoptions.

Activists called that an unacceptable option because it does not provide a remedy for cases in which the couple have moved out of California, the biological parent has died or there has been a breakup of the relationship.

“It’s outrageous,” said Pat Logue, counsel for the Lambda Legal Defense & Education Fund. “This decision destabilizes the lives of thousands of children, exactly the opposite of what adoption is meant to do.”

The case involved a lesbian couple, identified only as Sharon and Annette, who broke up while Annette was adopting Sharon’s son, now 2. The boy was conceived with sperm from an anonymous donor.

Sharon sued to block Annette’s attempt to adopt, claiming that the procedure was illegal, although Annette had adopted Sharon’s first child, Zachary, now 5.

A trial court sided with Annette and gave her visitation privileges with the boy, Joshua. The appeals court reversed that decision, noting that the Legislature had twice in recent years declined to write into law the “second-parent” adoption method used by Sharon and Annette.

As a legal issue, the case involved a dispute about whether Sharon, as the biological mother, could consent to the adoption while retaining her parental rights. Adoption law generally requires the mother to relinquish parental rights when consenting to adoption.

The appeals court ruled that the county Department of Social Services did not have the authority to approve such adoptions before the Domestic Partners Law was enacted. It rejected a request by Annette’s attorneys for a “liberal” interpretation of adoption laws.

“The role of the courts,” said the decision, “is to interpret and apply the existing statutes in accordance with the Legislature’s expressed intention, not to rewrite the statutes or question the Legislature’s wisdom.”