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San Diego lawyer Charles Bird was revved up Wednesday by what he thought state Supreme Court Justice Joyce Kennard was asking during arguments in a case that will settle the fate of tens of thousands of so-called second-parent adoptions. Suddenly, Kennard stopped him. “I think you may have misunderstood my question,” she said. “It was really a lifeline to you.” When restated, Bird found himself happily agreeing with Kennard. “You caught the lifeline that time,” Chief Justice Ronald George said, as Bird playfully grabbed air as if trying to catch a life preserver. It was a telling moment. From there on, it was fairly evident that the high court will side with Bird and won’t invalidate second-parent adoptions, which are used by many same-sex couples to form families. In fact, it seemed the court will make it public policy that such adoptions are, and always have been, legal. Their legality has been up in the air since October 2001, when San Diego’s Fourth District Court of Appeal declared second-parent adoptions invalid. In a 2-1 vote, the court said such adoptions — through which one person adopts the legal parent’s child to provide two parents — did not meet the statutory standards set out in the state’s Family Code. Just two weeks earlier, Gov. Gray Davis had signed a bill letting registered domestic partners adopt as stepparents. But the bill did not affect second-parent adoptions, so the court’s ruling left thousands of children exposed to the possibility of losing one parent. In Sharon S. v. Superior Court (Annette F.) , S102671, a woman identified only as Annette F. had used the method in 1997 to become the second parent of her longtime partner Sharon S.’s son, Zachary, who was born through artificial insemination. But while trying to do the same thing in 1999 with Sharon’s second son, Joshua, the couple broke up. Sharon then took steps to block the adoption. After Wednesday’s arguments, however, it seems as if Annette will get another chance at adoption, while kids already in such families won’t lose legal ties to a parent. The justices’ questions, even those by conservative Marvin Baxter, indicated that second-parent adoptions, especially for same-sex couples, deserve strong protections. Kennard’s interrogation of Bird, who represents Annette, focused on whether the high court should prevent gays and lesbians from adopting. “Is that the public policy we should adopt?” she asked. “It certainly is not,” the Luce, Forward, Hamilton & Scripps partner said, once he understood the question. Sharon’s lawyer, John Dodd of Tustin’s John L. Dodd & Associates, meanwhile, was peppered with tough questions, especially when he argued that the literal interpretation of Family Code � 8617 mandates that the birth mother relinquish her parental rights before adoption can proceed. Sharon, who withdrew her consent to the adoption, isn’t willing to relinquish her parental rights, Dodd said. He added that courts have long erred in liberally construing the statute so that birth mothers don’t have to relinquish their rights. Justice Kathryn Mickle Werdegar said relinquishment may be the general rule. “But clearly it’s not mandatory,” she said, “because it doesn’t apply to stepparent adoptions.” Kennard and Chief Justice George piled on by arguing they need not look at the literal language of the statute as long as the process meets all the essential elements of an adoption that would be in the best interests of the child. “Why does not the liberal interpretation concerning the best interest of the child control?” George asked. That echoed the appeal court dissent by Justice Daniel Kremer. Justice Carlos Moreno, who took custody of his niece a couple of years ago, stepped up to ask La Mesa solo practitioner Judith Klein, who represents the minor’s interest, about the possibility of retroactivity if the appeal court ruling is upheld. “Wouldn’t that have a severe impact on tens of thousands of these types of adoptions?” he asked. Klein, who opposes adoption by Annette, said any parental relationships invalidated by the ruling could be reformed through use of the new Family Code that allows domestic partners to adopt each other’s children. But Justice Werdegar said that wasn’t exactly true. Not all second-parent adoptions are by domestic partners, she said. For example, she added, there are some between a birth mother and the child’s grandmother. “They couldn’t qualify” to readopt, she said. Justice Baxter seemed concerned by the possibility that letting couples waive the relinquishment requirement could open the door to multi-parent families — with children having four or more moms and dads. Both Bird and Dodd said that was true, but Bird argued that could be handled adroitly at the trial court level. Dodd said it could lead to families with as many as 87 parents. While wary of that scenario, Baxter appeared to want a solution that would permit second-parent adoptions — but in a way that would not allow families to waive the relinquishment requirement in all cases. “Why isn’t the answer somewhere in between?” he asked. Four parents might seem a violation of the Family Code, he said, but “how is it a violation in a second-parent adoption?” Werdegar, meanwhile, said bluntly that she thought Baxter’s concern was not the issue for now, and that, in any case, it was a discussion best left for the Legislature. “Getting into that in this case,” she said, “is off-track.” Afterward, Bird and other advocates of second-parent adoption stopped short of declaring victory, though they were very confident. Kate Kendell, executive director of San Francisco’s National Center for Lesbian Rights, said the court appeared to be “enormously troubled by the suggestion that a trial court is not left with the discretion to consider a child’s best interests.” “Nobody on that court,” Bird said, “has a strongly committed position against our case.”

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